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Principles  of  contract  at  law  and  in  equ 


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PRINCIPLES  OF  CONTRACT 

AT  LAW  AND  IN  EQUITY 


A   THEATISE   ON   THE 


GENERAL    PRINCIPLES    CONCERNING    THE   VALIDITY    OF 
AGREEMENTS  IN  THE   LAW  OF  ENGLAND  AND  AMERICA 


Sir  FEEDEEICK  POLLOCK,  Bart., 

OF  LINCOLN'S  INN,    BARRISTER  AT  LAWJ 

CORPUS  PROFESSOR  OF  JURISPRUDENCE    IN    THE    UNIVERSITY    OP    OXFORD;    LATE    FELLOW    OF 

TRINITY     COLLEGE,      CAMBRIDGE;      D.   C.   L.     OXFORD;     HON.     LL.  D.    EDINBURGH,    DUBLIN    AND 

HARVARD;  AND   CORRESPONDING  MEMBER  OF  THE  INSTITUTE   OF   FRANCE. 

THIRD  AMERICAN  FROM  THE  SEVENTH  ENGLISH  EDITION 


ANNOTATIONS   AND   ADDITIONS 


GUSTAVUS  H.  WALD, 

LATH  DEAN  OF  THE  LAW  SCHOOL  OF  THE  UNIVERSITY  OF  CINCINNATI. 
AND 

SAMUEL  WILLISTON, 

"WELD  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 


"This  notion  of  contract  is  part  of  men's  common  stock  even  outside  the  field  of 
legal  science,  and  to  men  of  law  so  familiar  and  necessary  in  its  various  applications  that 
we  might  expect  a  settled  and  just  apprehension  of  it  to  prevail  everywhere.  Neverthe- 
less we  are  yet  far  short  of  this.'* — Savigny,  System  des  hsutigen  romischen  Rechts,  §  140. 


NEW  YORK: 

BAKEE,  VOOEHIS  &  COMPANY. 
1906. 


fj/d'667. 


Copyright,  190G, 
By  RICHARD  H.  WALP. 


J.    B.    LYON    COMPANY 

PRINTERS    AND    BINDERS 

ALBANY,   N.   Y. 


PREFACE. 


This  book  owes  its  origin,  as  the  title  implies,  to  the  work  of 
the  late  Gustavus  H.  Wald.  He  devoted  much  time  in  his  early 
manhood  to  the  preparation  of  two  earlier  editions  of  Sir 
Frederick  Pollock's  work,  the  later  of  which  appeared  in  1885, 
and  the  thorough  and  scholarly  character  of  his  American  anno- 
tations won  deserved  recognition.  Having  in  mind  the  possibility 
of  further  editions  Mr.  Wald  habitually  noted  in  their  appro- 
priate places  in  an  interleaved  copy  of  his  book  all  decisions 
bearing  on  topics  therein  discussed,  which  his  regular  examina- 
tion of  current  reports  brought  to  his  attention.  At  his  untimely 
death  in  June,  1902,  these  manuscript  annotations  containing 
citations  of  the  decisions  of  the  courts  for  the  preceding  seven- 
teen years  came  into  the  possession  of  his  brother,  Mr.  Richard 
H.  Wald,  who,  impressed  with  their  value,  and  feeling  that  prop- 
erly prepared  for  the  press,  they  would  furnish  the  basis  for  a 
new  edition,  put  the  material,  both  printed  and  unprinted,  into 
my  hands.  His  only  stipulation  in  so  doing  was  that  the  book 
which  I  should  prepare  should  be  "  Wald's  Pollock  on  Contracts," 
and  it  is  rightly  so  called.  The  material  necessarily  had  to  be 
recast  and  put  in  shape  for  the  printer.  In  doing  this  I  have 
had  a  free  hand  and  have  endeavored  simply  to  make  as  good  a 
book  as  I  could  with  the  use  not  only  of  Mr.  Wald's  materials 
but  of  matter  which  I  had  accumulated  while  teaching  the  sub- 
ject of  contracts  at  the  Harvard  Law  School.  It  has  not  been 
practicable  to  distinguish  in  the  American  notes  between  the  late 
Mr.  Wald's  work  and  my  own.  Where  I  have  thought  I  could 
make  an  improvement  I  have  done  so,  and  few  of  the  notes  are 
in  the  exact  form  in  which  Mr.  Wald  left  them,  but  the  great 
bulk  of  the  work  —  not  only  the  collection  of  cases,  but  the 
statement  of  their  effect  and  the  comment  upon  them  —  is  Mr. 
Wald's. 

Sir  Frederick  Pollock  has  unfortunately  never  fully  com- 
pleted his  book  on  contracts.  In  the  preface  to  the  fourth  edition 
he  expressed  the  hope  of  filling  in  later  editions  gaps  left  by  the 


lv  PREFACE. 

omissions  of  such  topics  as  the  performance  and  discharge  of 
contracts.  The  chapter  entitled  Duties  under  Contract,  first 
inserted  in  the  fifth  edition,  is  the  only  chapter,  however,  which 
has  been  added  by  the  author,  and  this,  though  excellent  as  far 
as  it  goes,  is  not  a  full  presentation  of  the  subject  with  which  it 
deals.  In  order  to  make  this  edition,  so  far  as  possible,  a  com- 
plete treatise  on  the  law  of  contracts,  I  have  written  a  chapter 
on  the  discharge  of  contracts  and  portions  of  chapters  on  promises 
for  the  benefit  of  a  third  person  and  on  the  repudiation  of  con- 
tracts. The  responsibility  for  these  additions  is  wholly  mine. 
They  are  included  in  pages  237-278,  333-369,  811-880: 

The  American  annotations  are  printed  in  full  lines  at  the 
bottom  of  the  pages  and  are  numbered  with  arabic  figures, 
being  thus  readily  distinguishable  from  the  English  notes,  which 
are  printed  in  half  lines  and  headed  with  italic  letters.  In  a 
few  instances  additional  matter  has  been  inserted  in  the  English 
notes,  but  such  additions  are  always  in  brackets.  The  English 
text  has  not  been  altered. 

My  thanks  are  due  to  Sir  Erederick  Pollock  for  his  cordial 
assent  to  my  request  for  permission  to  prepare  this  edition. 

SAMUEL  WILLISTOK 

Cambeidge,  November  1,  1905. 


TABLE  OF  CONTENTS. 


CHAPTEE  I. 
Agbeement,  Proposal,  and  Acceptance. 

»  PAGE. 

Nature  of   contract 1 

Definitions     2 

Agreement:    nature  of  consent  required 3 

Obligation     4 

Ways  of  declaring  consent 5 

Promise     6 

Contract    7 

Void   agreements    7 

Voidable    contracts    8 

Rules  as  to  proposal  and  acceptance 9 

Express  and  tacit  contracts,  and  quasi-contracts 10 

Proposals  to  unascertained  persons   (contracts  by  offer  of  reward,  &c.)  ..  13 

Discussion  of  cases ]  5 

Difficulties  considered   19 

Theory  of  floating  obligation  inadmissible 21 

Other  kinds  of  general  proposal 24 

Contract  by   indirect  communication 26 

Revocation  of  offer 27 

Determination  of  offer 29 

Communication  of  revocation 30 

Dickinson  v.  Dobhs  considered 32 

Can  there  be  double  acceptance  ? 33 

Communication  of  acceptance 35 

Contracts  by  correspondence 37 

Artificial   theories  on  the   subject 38 

State  of  English  authority 39 

Effect  of  death  of  proposer 42 

Certainty  of  acceptance 43 

Agreements  in  terms  where  consent  not  final 45 

Certainty,  of  terms  of  agreement 48 

Illusory  promises   49 

Construction  of  tacit  acceptances 52 

Promises  by  deed  may  bind  without  acceptance 55 


CHAPTER  II. 

Capacity  of  Pabties. 

Variations   in  personal   capacity 68 

Artificial  persons -_.._. 59 

Limitations  of  capacity 5& 

1.    Infants.     General  statement    59 

Contracts  voidable,  not  void 59 

Supposed   distinction   between   void   and   voidable    contracts   now   ex- 
ploded      60 

[V] 


VI  TABLE    OF    CONTENTS. 

PAGE. 

Special  classes  of  contracts  considered  on  this  point 61 

Avoidance  of  infant's  contracts   66 

Infant's   Relief   Act,    1874 69 

Liability  on  obligations  incident  to  property 73 

On  beneficial   contract 74 

For  necessaries    76 

Sale  of  Goods  Act,  1893,  s.  2 76 

What   are   necessaries 78 

Certain  contracts  of  infants  binding  by  custom 81 

By  statute   81 

Liability  of  infants  on  wrongs  collateral  to  contract 82 

In  equity,  on  representations  of  full  age 84 

Subsequent  contract  after  full  age  prevails 86 

2.  Married  Women.     Can  contract  only  as  to  separate  property.  , 87 

7ms  mariti  and  survivorship 89 

Cannot  revive  barred  debt  by  acknowledgment 90 

Exceptions  at  common  law 90 

Custom  of  London  as  to  married  woman  trading  alone 91 

Agreements  for  separation  between  husband  and  wife  alone 92 

Statutory  exceptions :    judicial   separation,   &c 93 

Equitable  doctrine  of  separate  estate 94 

Married  Women's  Property  Act,  1882 94 

3.  Lunatics  and  Drunken  Persons.     Old  law 98 

Modern  law :     contract  not  void  but  voidable 100 

4.  Convicts,   &c 104 

Extension  of  capacity 105 

1.  Agency    105 

Authority  of  agent 105 

Contracts  by  authorized  agents 107 

When  agent  known  to  be  such,  there  is  contract  with  principal 107 

If  principal  named,  prima  facie  no  contract  with  agent 107 

If  principal  not  named,  prima  facie  there  is  contract  with  agent.  .  .  .  108 

These  rules  subject  to  evidence  of  contrary  intention Ill 

When  agent  not  known  to  be  such,  there  is  generally  contract  with 

undisclosed  principal   112 

Exceptions  to  and  limits  of  the  rule 113 

Rights  of  other  contracting  party 115 

Professed  agent  not  having  authority  cannot  sue  on  the  contract  if 

a  responsible  principal  has  been  named 117 

Nor  be  sued  on  it 119 

But  may  be  sued  on  implied  warranty  of  authority 119 

Where  no  principal  named,  or  one  who  could  not  be  responsible,  pro- 
fessed agent  is  treated  as  principal 123 

2.  Artificial  Persons   124 

Nature  of  artificial   persons 124 

Corporations :    common   law  doctrine 126 

Capacities  of  corporations  in  themselves 128 

As  limited  by  positive  rules 133 

As  determined  by  purposes  of  incorporation 133 

Application  of  partnership  law 134 

Public  policy  and  interests  of  the  public 138 

Corporations  cannot  bind  themselves  by  negotiable  instruments:    ex- 
planations of  this    143 

Exceptions    146 

Conflicting  theories  in  TJ.  S 146 

Corporations  bound  by  estoppel,  &c 147 


TABLE    OF    CONTENTS.  Vll 

CHAPTER  III. 

Form  of  Contract. 

PAGE. 

I.  Formality  in  Early  English  Law  148 

Modern  principles  as  to  requirements  of  form 148 

Position  of  informal  contracts  in  ancient  law 149 

Formal  and  informal  contracts  in  Roman  law 149 

Archaic   modes   of   proof    150 

The  deed  in  English  medieval  law 150 

Remedies  on  contracts:  debt  on  covenant  or  simple  contract 151 

Action  of   covenant 152 

Action  of  account 153 

II.  The  Action  of  Assumpsit 154 

Introduction  of  assumpsit  to  supply  remedy  on  executory  agreements. .  154 

III.  Modern  Requirements  of  Form   157 

Modern  law:  requirements  of  form  exceptional 157 

Contracts  of  record 157 

Contracts  subject  to  special  forms   158 

1.  Contracts'  of  Corporations 159 

Old  law;  requirement  of  seal 159 

Modern  exceptions 161 

Trading  corporations :   contracts  in  course  of  business 162 

Non-trading  corporations :   contracts  necessary  and  incidental  to  cor- 
porate purposes 164 

Municipal  corporations,  &c 164 

Appointments  of  officers 165 

Executed  contracts  with  corporations 166 

Statutory  forms  of  contract 167 

Summary 168 

2.  Negotiable  Instruments '. 168 

3.  Statutory  Forms 168 

A.  Statute  of  Frauds   168 

Guarantees , 169 

Agreements  upon  consideration  of  marriage 172 

Interests  in  land   172 

Agreements  not  to  be  performed  within  a  year 175 

Sale  of  goods    178 

The  "  note  or  memorandum  " 178 

Transfers  of  ships  and  copyright 183 

B.  Marine  Insurance 183 

C.  Transfer  of  Shares' 1S4 

D.  Acknowledgment  of  Barred  Debts 184 


CHAPTER  IV. 

Consideration. 

Definition  of  consideration 185 

Gratuitous   promises    186 

Early  history  of  the  doctrine 187 

Assumpsit 189 

Causa  in  Roman  law 189 

Benefit  to  promisor 192 

Adequacy  of  consideration 193 

Past   consideration    ineffectual 199 

Acknowledgment  of  barred  debts 201 

Promises  to  perform  duties  already  existing 203 


Vlll  TABLE    OF    CONTENTS. 

PAGE. 

Performance  of  obligation  to  third  person 206 

Consideration  for  discharge  of  contract 210 

For  variation  of  contract 212 

Forbearance  to  sue 212 

Compromises 214 

Treatment  of  gratuitous  contracts  under  seal  in  equity 216 

Imperfect  gifts 218 

CHAPTER  V. 

Persons  affected  by  Contbact. 

Preliminary   220 

Definitions  and  rules 221 

1 .  Parties  must  be   certain 223 

2.  Third  persons  not  bound 224 

Apparent  exceptions 225 

Novation 227 

3.  Third  persons  not  entitled  by  the  contract  itself 228 

Apparent  exceptions   228 

Trusts 230 

Exception  of  certain  provisions  for  children 231 

Statutory  exceptions 232 

Contract   for   benefit   of   third   person  gives   him  no   right   of   action 

at  law 233 

Authorities    in    equity    233 

Third  person  cannot  be  empowered  to  sue  for  convenience  of  parties .  .  235 

Negotiable  instruments  payable  to  holder  of  office 236 

Law  of  the  United  States 237 

Distinctions  of  property  rights,  agency,  novation,  &e 237 

Contracts  for  the  sole  benefit  of  a  third  person 242 

Contracts  to  discharge  a  debt  of  the  promisor 244 

Law  of  Massachusetts  denies  rights  to  sole  beneficiary 247 

Law  of  other  States 249 

Life  insurance  and  other  illustrative  cases 251 

Law  as  to  promises  to  discharge  a  debt 255 

Assumption  of  mortgages    260 

Other  illustrative  eases 266 

Rights  of  the  promisee 268 

Creditor's  right  to  sue  both  debtor  and  new  promisor 270 

Defences 271 

Rescission  or  release   273 

Contracts  under  seal ■ 276 

Incidental  beneficiaries 277 

4.  Assignment  of  contracts    278 

Notice  to  debtor 281 

Assignment  "  subject  to  equities  " 284 

Assignment   free   from   equities   by   agreement    of   parties:    transfer- 
able debentures 287 

Negotiable  instruments 290 

Rights   of  bona  fide  holder 291 

What  instruments  may  be  negotiable 292 

How  instruments  may  cease  to  be  negotiable 294 

Transferable  shares 295 

Obligations   attached  to   property 297 

Covenants  running  with  land 298 

Bills  of  lading 302 

Conflict  between  common  law  and  equity  as  to  burden  of  covenants 

running  with  the  land 304 

The  foundation  of  the  equitable  doctrine 305 


TABLE    OP    CONTENTS.  IX 

CHAPTER  VI. 

Duties  under  Contract. 

PAGE. 

1.  Interpretation  generally 307 

Necessity  of  interpretation    307 

Agreements  in  writing:   rule  against  parol  variations 310 

Apparent  exceptions 311 

Extrinsic  evidence 313 

Customs  of  the  country 315 

Trade  usages,  &c 316 

Construction:   preference  of  general  intention 317 

Special  rules  of  construction 318 

2.  Order  and  Mutuality  of  Performance 320 

Order  of  performance  in  executory  contracts 320 

Modern  authorities  look  to  general  intention  of  contract 320 

Effect  of  default 324 

Agreements  presumed  to  be  entire 325 

3.  Default  in  first  or  other  instalments  of  Discontinuous  Performance .  .  .  .   327 

Sales  for  delivery  by  instalments 327 

Effect  of  default  in  instalments 327 

Sale  of  Goods  Act 332 

4.  Repudiation  of  Contracts 333 

A.  Rescission 334 

Restitution  of  money,  land,  chattels,  &e 334 

Where  no  performance 338 

Repudiation  or  breach  sufficient 339 

Election  must  be  manifested 345 

Civil  law  and  Indian  Contract  Act 346 

B.  Action  ox  the  Conteact 347 

Lord  Coekburn's  rule 348 

Inconsistent  with  American  decisions 348 

True  rule 350 

Contract  not  terminated 351 

Election  need  not  be  manifested 353 

Prospective  inability  to  perform 354 

C»  Time  When  Right  of  Action  Accrues 355 

Explanation  of  early  decisions 356 

Hochster  v.  De  la  Tour 359 

Law  in  England  and  America 360 

Distinction  between  defence  and  right  of  action 361 

Distinction    between    action    for    restitution    and    action    on    the 

contract 362 

No  inconsistency  in  allowing  full  damages  before  all  performance 

due 362 

Time  of  performance  fixed  by  act  of  the  other  party 363 

Contracts  to  marry 365 

Practical  convenience 366 

Illustrations  of  inconvenience   367 

Measure  of  damages   369 

CHAPTEE  VII. 

Unlawful  Agreements. 

Of  unlawful  agreements  in  general,  and  their  classification 373 

A.  Contrary  to  positive  law   374 

Agreements  to  commit  an  offence 374 

Agreements  wrongful  against  third  persons 376 


TABLE    OF    CONTENTS. 

PAGE. 

Fraud  on  creditors    377 

Dealings    between    creditor    and    principal    debtor    to    prejudice    of 

surety 383 

Dealings  by  agent,  executor,  &c,  against  his  duty 386 

Settlements  in  fraud  of  marital  right 392 

Married  Women's  Property  Act,  1882 393 

Marriages  within  prohibited  degrees 395 

Royal  Marriage  Act   , 397 

Agreements  illegal  by  statute  397 

Rules  for  construction  of  prohibitory  statutes 398 

When  agreements  may  be  not  void  though  forbidden,  or  void  with- 
out being  illegal 404 

Wagers   40.5 

B.  Agreements  contrary  to  morals  or  good  manners 410 

Agreements  in  consideration  of  illicit  cohabitation 411 

Validity  of  separation  deeds   413 

Agreement  for  future  separation  void 418 

Publication  of  immoral  or  seditious  works  is  not  merely  immoral 

but   an   offence    419 

Contracts  as  to  slaves 420 

C.  Agreements  contrary  to  public  policy 421 

Connection  of  the  doctrine  with  the  common  law  as  to  wagers 42 1 

Modern  extent  of  the  doctrine :  Egerton  v.  Brownlow 423 

Public  policy  as  to  external  relations  of  the  State 426 

Trading   with   enemies    426 

Effect  of  war  on  subsisting  contracts 427 

Negotiable  instruments  between  England  and  hostile  country 429 

Hostilities  against  friendly  States   430 

Trade  with  belligerents  not  unlawful 431 

Foreign  revenue  laws   431 

Public  policy  as  to  internal  government:  attempts  to  influence  legis- 
lation, &c,  by  improper  means 434 

Sale  of  offices,  &c 438 

Assignment  of  salaries    439 

"  Stifling  prosecutions  "  and  compounding  offences 440 

Compromise  of  election  petition 443 

Secret  agreement  as  to  conduct  of  winding-up 445 

Agreements   for   reference  to   arbitration:    extent  of   their  validity 

at  common  law,  and  by  the  Arbitration  Act 445 

Maintenance  and  champerty   449 

Rules   as  to   champerty 452 

Purchase  of  subject-matter  of  suit 455 

Statute  of  Henry  VIII.  against  buying  pretended  titles 457 

Maintenance  in  general    460 

Public  policy  as  to  duties  of  individuals 461 

Agreements  as  to  custody  of  children • .  .  461 

Discretion  of  equity    462 

Custody  of  Infants  Act 463 

Insurance  of  seamen's  wages 463 

Agreements  against  social  duty 464 

Public  policy  as  to  freedom  of  individual  action 464 

Agreements  in  restraint  of  marriage 465 

Agreements  to  influence  testators 466 

Agreements  in  restraint  of  trade 467 

General  principles    467 

Early  history  of  the  doctrine 47 1 

Freedom  of  trade  upheld  by  the  common  law 472 

Particular  restraint  admitted 474 

Restrictive  covenants  in  17th  century 474 

Limits  of  space 475 

Modern  rule  as  to  limits 475 


TABLE    OF    CONTENTS.  XI 

PAGE. 

Table  of  decisions  since  1854 478 

Measure  of  distances    480 

Indian  Contract  Act   480 

Contracts  to  serve  for  life  or  exclusively 481 

Judicial  treatment  of  unlawful  agreements  in  general 481 

Independent  promises,  where  some  lawful  and  some  not 482 

Where  consideration  or  immediate  object  unlawful 483 

Unlawful  ulterior   intention    485 

Connection  with  unlawful  design  already  executed 489 

Securities  for  payment  under  unlawful  agreement  are  void 491 

Extrinsic  evidence  of  illegality 492 

Specific  unlawful  intention,  how  shown  or  contradicted 493 

When  payments  can  be  recovered :  rule  as  to  party  in  •pari  delicto .  .  496 

Exceptions:   duty  of  agents  to  principal  unaffected 498 

Money  recoverable  where  agreement  not  executed 502 

Where  the  payment  was  compulsory 503 

In  equity  where  circumstances  of  fraud,  &c,  as  between  the  parties.  504 

Final  statement  of  the  rule  and  qualification 505 

Conflict  of  laws  in  space 506 

Generally   lex   loci  solutionis  prevails 506 

Exceptions  —  when  a  prohibitory  municipal  law  is  not  merely  local.  506 

When  agreement  is  immoral  iure  gentium 508 

Treatment  of  slave  contracts  in  English  courts :  Santos  v.  Illidge .  .  509 
Other   instances   of   conflict   of   laws   as   to   validity   of   agreement 

considered 511 

Agreements  against  interests  of  the  local  sovereign 513 

Conflict  of  laws  in  time:   subsequent  illegality  dissolves  contract..  514 

Rules  as  to  knowledge  of  parties  collected 516 


CHAPTER  VIII. 

Impossible  Agreements. 

Performance  of  agreement  may  be  impossible  in  itself,  by  law,  or  in  fact 

(i.  e.,  by  reason  of  particular  state  of  facts) 518 

General  statement  of  law 520 

Agreement  impossible  in  itself  is  void 520 

Practical  impossibility 522 

Logical  impossibility 522 

Impossibility  merely  relative  to  promisor  no  excuse 523 

Agreements  impossible  in  law  524 

Performance  becoming  impossible  by  law 525 

Buying  one's  own  property    526 

Impossibility  in  fact  no  excuse  where  contract  absolute 527 

Performance  forbidden  by  foreign  law 530 

Obligation  to  pay  rent  when  premises  accidentally  destroyed 530 

Exceptions  in  cases  of  events  not  contemplated  by  the  contract 534 

Performance  dependent  on  specific  thing  existing 536 

Appleby  v.  Meyers 537 

Impossibility  at  date  of  contract  from  existing  state  of  things  not  known 

to  the  parties 539 

Sale  of  cargo  already  lost:  Couturier  v.  Eastie 540 

Covenants  to  work  mines,  &c,  Clifford  v.  Watts 541 

Construction  of  express  exceptions  in  certain  contracts 542 

Performance  dependent  on  life  or  health  of  promisor 543 

Robinson  v.  Davison   544 

Anomalous  decision  on  contract  to  marry  in  Ball  v.  Wright 546 

Limits  of  rule  as  to  personal  services 547 

'l"t 


Xll  TABLE    OF    CONTENTS. 

t>-   ,  PAGE. 

Rights   already   acquired   under   contract  not   discharged   by   subsequent 

impossibility 548 

Substituted   contracts   549 

Impossibility  by   default   o*  either   party:   such   default   of   promisor   is 

equivalent  to  breach   of   contract 549 

Default  of  promisee  discharges  promisor 549 

Alternative  contracts  where  one  alternative  is  or  becomes  impossible....   552 

Conditional  contracts 554 

Impossible  conditions  in  bonds :  peculiar  treatment  of  them 555 

Indian  Contract  Act  on  impossible  agreements 558 


CHAPTER  IX. 

Mistake. 

Past  I. —  Of  Mistake  in  General. 

Classification  of  ccaditions  affecting  validity  of  consent  in  agreement: 

Mistake,  Fraud,  &c 561 

A.  Mistake  in  general 564 

Generally  it  is  in  itself  inoperative  either  to  avoid  civil  liabilities 

(Except  in  certain  special  cases,  and  except  so  far  as  in  the  case 
of  purchaser  for  value  without  notice  ignorance  is  a  condition  of 

acquiring  rights )    564 

Or  to  take  away  or  alter  existing  rights 570 

Or  to  alter  construction  of  contract 572 

Saving  as  to  variation  by  mutual  consent 572 

Special  cases  where  mistake  important 574 

B.  Mistake  of  Fact  and  of  Law 574 

Limits  of  the  distinction :  where  certainly  or  probably  not  applicable.  575 

Common  mistake  and  rectification  of  instruments 576 

Renunciation  of  rights   577 

Recovering  back  money  paid 579 

Past  II. —  Mistake  as  Excluding  True  Consent. 

Division  of  cases  under  this  head 581 

A.  Error  as  to  nature  of  transaction 583 

Thoroughgood's  case    583 

Foster  v.  Mackinnon , 585 

Cases  in  equity 587 

Error  as  to  legal  character  of  transaction 589 

B.  Error  as  to  the  person  of  the  other  party 590 

Analogous  doctrines:  satisfaction  by  stranger 593 

Personal  contracts  not  transferable 594 

Agency 597 

C.  Error  as  to  the  subject-matter 597 

With  regard  to  identity  of  specific  thing 599 

Inclusion  of  parcels  by  mistake  on  sale  of  land 600 

Contracts  to  take  shares  exceptional 602 

Error  with  regard  to  kind,  quantity,  &c 603 

Error  in  price 605 

Error   as   to   quality   inoperative   unless   material   and   common   to 

both  parties 606 

Even  if  error  of  one  party  known  to,  but  not  caused  by,  the  other.  .  609 
Cases  distinguished  where  misdescription  of  estate  on  sale  entitles 

purchaser  to  rescind   611 

Error  as  to  existence  of  subject-matter 611 


TABLE    OF    CONTENTS.  Xlll 

PAGE. 

Purchase  of  one's  own  property 015 

Herein  of  ignorance  of  law :  Cooper  v.  Phibbs 615 

Assignments   of   leases   for   lives 617 

Where  only  one  party  is  ignorant  of  the  material  fact 617 

Where  fundamental  error  produced  by  fraud  or  misrepresentation.  619 

Error  as  to  sample  in  case  of  sale  by  sample 619 

Remedies  of  party  to  void  agreement 620 

Election  to  adopt  agreement 621 

Part  III. —  Mistake  in  Expressing  True  Consent. 

Correction  of  mistake  in  expressing  intention 622 

1.  Rules  of  construction  common  to  law  and  equity 622 

Effect  given  to  general  intent 623 

2.  Peculiar  rules  of  construction  in  equity 625 

A.  Restriction  of  general  words 625 

B.  Stipulations  as  to  time 626 

Where  time  of  essence  of  contract 628 

Indian  Contract  Act  thereon 629 

C.  Relief  against  penalties    629 

3.  Peculiar  defences  and  remedies  derived  from  equity 633 

A.  Defence  against  specific  performance 633 

Effect  of  Statute  of  Frauds  herein 635 

B.  Rectification  of  instruments   636 

Oral  evidence  how  far  admissible 637 

Real    intention   must   be    distinctly   proved,    and   common   to   all 

parties 639 

Quasi  estoppel  of  one  party  acting  as  other's  agent  in  framing  in- 
strument    641 

Reformation   of   settlements    642 

Who  is  entitled  to  have  deed  rectified 643 

Rectification  as  alternative  to  cancellation 641 

Disentailing   deeds    644 

Agreement  executed  by  Court  cannot  be  rectified 644 

Consent  orders 645 


CHAPTER  X. 

MlSBEPRESENTATION  AND  FbATJD. 
Paet  I. —  Generally. 

Of  misrepresentation  in  general 646 

As  to  innocent  statements   647 

Deceit  in  relation  to  contract 647 

Judicial  language  as  to  "  constructive  fraud  "  formerly  ambiguous 648 

Estoppel 648 

Representation  as  term  of  contract 649 

The  doctrine  of  "  making  representations  good  " 649 

Past  II. —  Misrepresentation  and  non-disclosure. 


No  general  positive  duty  of  disclosure 650 

But  such  duties  implied  in  certain  contracts 651 

Classes  of  contracts  specially  treated 652 

Representations  amounting  to  Warranty  or  Condition 652 

Distinctions  between  warranty  and  condition  on  sale  of  goods 652 


XIV  TABLE    OF    CONTENTS. 

Cases  specially  treated:  page. 

A.  Insurance 656 

Marine  Insurance 656 

Life  Insurance 657 

Fire  Insurance 658 

B.  Suretyship   and  Guaranty   659 

Extent  of  creditor's  duty  to  surety 660 

C.  Sales   of  land .  662 

Specific  performance  and  compensation:   three  classes  of  cases  dis- 
tinguished    663 

General  duty  of  vendor  to  describe  property  correctly 669 

Wilde  v.  Gibson  considered 671 

D.  Family  Settlements 673 

E.  Partnership,  contracts  to  take  shares  in  companies,   and  contracts 

of  promoters 674 

The  Companies  Act,   1900 676 

Contract  to  marry  not  exceptional 677 

Voluntary  gifts 678 

Part  III. —  Fraud   or  Deceit. 

Fraud  generally  but  not  always  includes  misrepresentation 678 

Eight  of  rescission 680 

Fraudulent  representation  or  concealment 680 

"  Active  concealment  " 681 

Fraud  as  actionable  wrong:   reckless  ignorance  equivalent  to  knowledge 

of   untruth    682 

Representation  of  expectation  as  present  fact 683 

Special  rule  as  to  sales  by  auction 684 

Marriage  an  exception:  not  avoided  by  fraud 685 

But  knowledge  of  nature  of  ceremony  essential 685 

Consent  of  third  person  procured  by  fraud  is  voidable 686 

CHAPTER  XI. 

The  Eight  of  Rescission. 

General  rules  as  to  rescission  for  misrepresentation  or  fraud 687 

The  representation  relied  on  must  be  of  fact 688 

Not  of  mere  matter  of  opinion 691 

The  representation  must  be  such  as  to  induce  the  contract 693 

Effect  of  party  misled  having  means  of  knowledge 693 

Materiality  of  representation   696 

Contracts  connected  with  previous  fraud 698 

Representation  must  be  by  a  party  to  the  contract 698 

Representations  of  agents  and  liability  of  principals 699 

Statements  of  directors  and  promoters 702 

Agent  always  liable  for  his  own  wrong 703 

Representation  must  be  in  same  transaction 703 

Rights  of  party  misled :  option  to  rescind 705 

Election  how  to  be  made 707 

Right  exercisable  by  and  against  representatives 712 

No  rescission  where  the  former  state  of  things  cannot  be  restored 712 

No  rescission  against  innocent  purchasers  for  value 715 

Distinction  in  cases  of  obtaining  goods  by  fraud  where  no  property  passes.  718 

Repudiation  of  shares    719 

Rescission  must  be  within  reasonable  time,  i.  e.,  a,  time  not  such  as  to 

show  acquiescence 721 

Special  duties  of  shareholders  in  companies 723 

Result  of  unfounded  charges  of  fraud 724 

Cancellation   of    instruments 725 


TABLE    OF    CONTENTS.  XV 

CHAPTEE  XII. 

Duress  and  Undue  Influence.  .  _ 

PAGE. 

I.  Duress  at  Common  Law 728 

Recovery  of  money  paid  under  compulsion 730 

II.  The  equitable  doctrine  of  Undue  Influence 732 

Presumption  of  influence  from  confidential  relations 734 

Rules  as  to  burden  of  proof 738 

Rules  as  to  voluntary  settlements 738 

Presumptions  against  and  duties  of  persons  in  fiduciary  relations .  . .  739 

Family  arrangements 743 

Particular  cases  where  influence  presumed 744 

Relations  analogous  to  parent  and  child 744 

To  solicitor  and  client 745 

Spiritual  influence  746 

Undue  influence  without  fiduciary  relation 747 

Duty  of  trustees    748 

Undervalue  material  only  as  evidence 749 

Whether  in  itself  a  ground  for  refusing  specific  performance 752 

Exceptional  protection  of  expectant  heirs  and  reversioners 755 

Old  law  as  to  sales  of  reversions 758 

Act  of  1867 759 

Rules  of  equity  as  to  "  catching  bargains  "  not  affected 759 

What   are   "  catching   bargains  " 760 

Burden  of  proof   761 

Terms  of  relief 762 

The  Money-Lenders  Act,   1900    763 

Sales   of   reversionary   interests 764 

"  Surprise "    and   "  improvidence "   not    substantive   ground   of   relief 

against  contracts,  but  only  evidence  of  fraud,  &c 765 

Right  of  rescission  for  undue  influence 767 

Confirmation  and  acquiescence  769 

Special  questions  as  to  relation  of  solicitor  and  client 770 


CHAPTER  XIII. 

Agreements  of  Imperfect  Obligation. 

Nature  of  Imperfect  Obligations :    Right  without  remedy 772 

1.  Remedy  lost.     Statutes  of  Limitation   773 

Rights  of  creditor  notwithstanding  loss  of  remedy  by  action 774 

Acknowledgment 777 

What  is  sufficient  acknowledgment   777 

Statutes  of  Limitation  belong  to  lex  fori  779 

2.  Conditions  precedent  to  remedy  not  satisfied   782 

A.  Statute  of  Frauds,  s.  4 782 

A  law  of  procedure  only,  not  of  substance 784 

Results  of  informal  agreement  785 

Where  money  paid    785 

Where  agreement  executed    787 

Part  performance  in  equity   790 

Informal  ante-nuptial  agreements,  and  confirmation  by  post-nuptial 

waiting  792 

Informal  agreement  as  defence  794 

Distinction  of  equitable  estoppel  795 

B.  The  "  Slip  "  in  marine  insurance 795 

Recognition  of  it  for  collateral  purposes  by  modern  decisions ....  796 

Of  stamp  duties  in  general   798 


XVI  TABLE    OF    COXTENTS. 

PAGE. 

C.  Statutes  regulating  professions    799 

Costs  of  uncertificated  solicitors    800 

Medical  practitioners 801 

Medical  Act,  1886    802 

Apothecaries  Act   802 

Special  questions  on  Medical  Act 802 

3.  No  remedy  at  all  803 

Arbitrators 803 

Counsel's  fees   803 

As  to  non-litigious  business,  or  account  with  solicitor  804 

Judicial  recognition  of  counsel's  fees    806 

Solicitors'  Remuneration  Act,   1881    806 

Special  agreements  between  solicitor  and  client   806 

Certain  contracts  of  infants  since  Infants'  Relief  Act   807 

Tippling  Act   807 

Trade  Union  agreements    808 

A  converse  case  on  repeal  of  usury  laws  808 

Treatment  of  equitable  obligations  at  Common  Law 809 

Summary  of  results  of  this  chapter   8K 


CHAPTER  XIV. 

DlSCHAHGB   OF   CONTRACTS. 

Methods  of  discharge   811 

Release 812 

Nature  and  effect  of  812 

Effect  of  statutes   813 

Covenant  to  forbear    813 

Conditional   release    814 

Construction 814 

Rescission  by  parol  agreement   815 

Elements  of  such  agreement   815 

Agreements   before   breach    of    unilateral    contract   to    discharge    the 

obligor 817 

Agreements  to  discharge  a  party  to  a  bill  or  note 819 

Written  contracts    821 

Contracts  under  seal   825 

Accord  and  satisfaction '828 

Definition  828 

Whether  an  accord  is  a  valid  contract  829 

Unexecuted  no  bar  at  law  831 

Equitable  relief    833 

Accord  if  taken  as  satisfaction  is  a  bar 834 

Sealed  contracts   835 

Debts  of  record   836 

Requisites  of  satisfaction    837 

Check  sent  in  satisfaction  of  a  disputed  claim   838 

Accord  and  satisfaction  with  a  third  person   840 

Cancellation  and  surrender   843 

Normal  method  of  discharging  specialties    843 

Bills  and  notes    844 

Simple   contracts    844 

Alteration    845 

Common  law  rule  —  Pigot's  case    845 

Distinction  between  conveyances  and  covenants  845 

Kinds  of  contract  to  which  the  rule  is  applicable  851 

Excusable  alteration,  authority,  and  ratification    852 

Effect  of  immaterial  alterations   859 


TABLE   OP   CONTENTS.  XV11 

PAGE. 

What  alterations  are  material   859 

What  alterations  are  immaterial   863 

Assignment  of  altered  contracts   866 

When  a  debt  survives  the  writing  868 

Alteration  before  execution   871 

Pleading  and  evidence 872 

Merger    874 

By  judgment  or  bond 874 

Requisites  of  merger   876 

Arbitration  and   award    877 

Authority  revocable  before  award   878 

Arbitrator  must  follow  authority   879 

Statutory  arbitration   880 


APPENDIX. 

Note  A.     Terminology  and  fundamental  conceptions  of  contract 881 

Note  B.     Authorities  on  contract  by  correspondence   882 

Note  C.     History  of  the  equitable  doctrine  of  separate  estate   886 

Note  D.     Authorities  on  limits  of  corporate  powers  896 

Note  E.     Classification  of  contracts  in  Roman  and  Medieval  Law   902 

Note  F.     Early  authorities  on  assignments  of  choses  in  action 906 

Note  G.     Occupations,  dealings,  &c,  regulated  or  restrained  by  statute .  .  909 

Note  H.     Bracton  on  fundamental  error   , 913 

Note    I.     Mistake  in  wills    914 

Note  K.     On  the  supposed  equitable  doctrine  of  "  making  representations 

good  "  • 915 

Note  L.     French  law  on  "  inofficious  "  gifts  and  captation 922 

ii 


TABLE  OF  CASES. 


A.  PAGE. 

A.  A.  Cooper  Wagon  Co.  v.  Wool- 

dridge 852 

A.  R.  Beck  Co.  v.  Rupp 786 

A.  Wight  Co.  v.  Steinkemeyer  ...  719 

Aaron  v.  Harley 79 

Aaron's  Reefs  v.  Twiss 714 

Abbey  v.  Billups 161 

v.  Chase 119 

Abbott  v.  Abbott  850,  857 

— ■ — '  v.  Bayley 91 

v.  Creal 102 

v.  Doane 208,  210 

('.  Draper 786 

v.  Hapgood 121,  226 

p.  Hunt 174 

v.  Inskip 789 

v.  Jackson 892 

r.  Johnson 134 

t\  McKinley 110 

v.  Rose 585 

v.  Shepard 39 

v.  Sworder  .  754 

■  v.  Treat 688 

Abel  v.  Alexander 205,  206 

— —  v.  Boynton 459 

Abell  v.  Insurance  Co 428 

Aberaman  Ironworks  Co.  v.  Wick- 
ens  669 

Abernathy  v.  Wheeler 565 

Abraham  v.  Insurance  Co.  .  .   577,  642 

Abrams  v.  Wingo   390 

Acer  v.  Hotchkiss 708 

Ackenburgh  v.  McCool 390 

Acker  v.  Bender 834 

Ackerman  v.  Rubens 336 

Ackert  v.  Barker 451,  452 

Ackley  School  District  v.  Hall ....  145 

v.  Westervelt 890 

Ackroyd  v.  Smith 304 

Acme  Harvester  Co.  v.  Butterfield.  853 

Adair  v.  Adair 734 

v.  Winchester 279 

Adam  v.  Meldrum 717 

v.  Newbigging 714 

Adam,  etc.,  Co.  v.  Stewart 716 

Adams  v.  Adams  . .  49,  248,  253,  444 

792,  879 

v.  Barrett 488 

v.  Beall 67,     69 

v.  Burbank 550 


PAGE. 

Adams  v.  Byerly 361,  365 

v.  Coulliard 432,  486 

v.  Cowen 748,  768 

v.  Frye 866 

v.  His  Creditors 160 

r.  Honness 216 

p.  Irving  Bank 729,  747 

v.  Kuehn 258,  259,  266 

■  v.  Leavens 286 

v.  Lindsell 31,  882,  884 

v.  Morgan '. 312 

v.  Nichols 528 

v.  Palmer 685 

v.  Rodarmel 286 

■  v.  Sayre 388 

v.  Schiffer 731 

v.  South  British  Ins.  Co...   448 

■  r.  Stevens 802 

c.  Stringer 728 

r.  Union  R.  R.  Co.  242,  250,  268 

v.  Wadhams 258 

e.  Yates 873 

Adams  County  v.  Hunter 204 

Adams       Radiator       Works       v. 

Schnader 51 

Adamson  v.  Lamb 820 

AddinelPs  Case 44 

Addison  v.  Cox 283 

Adkins  v.  Flemming 501,  502 

Adolph  v.  Minneapolis  Ry.  Co.  .  .  .  583 

jEtna  Ins  Co.  v.  Commonwealth. .  468 

v.  Fowler 661 

iEtna  Life  Ins.  Co.  r.  Nexsen ....  363 
^EtnaNat.   Bank   v.   Fourth   Nat. 

Bank 258,  267 

Agar    v.    Athenaeum    Life    Assur. 

Soc 900 

Aggs  v.  Nicholson 293 

Agricultural    Cattle    Ins.    Co.    r>. 

Fitzgerald 845,  848,  850 

Aguilar  r.  Aguilar 895 

Ah  Foe  v.  Bennett 736 

Ahearn  v.  Ayres  19 

Ahearne  v.  Hogan 735,  746 

Ahem  v.  Baker  33 

Aigen  v.  Boston  &  Me.  R.  R. .  257,  259 
Aiken  v.  Blaisdell   402,  486 

v.  Nogle 178 

v.  Short 580 

v.  Western  Union  Tel.  Co. .  .   254 


[xix] 


TABLE    OF    CASES. 


TASK 

Ainsworth  v.  Mount  Moriah  Lodge.  532 

v.  Kitt 532 

v.  Wilding 566 

Aitken  v.  Lang's  Adm 42 

Aitkins  v.  Gamble 603 

Akerman,  Re  776 

Akin  v.  Kellogg 691 

Alabama  Ins.  Co.  v.  Garner 658 

Alabama  Land  Co.  v.  Thompson.  .  848 
Alaska    Packers'    Assoc,     v.    Do- 

menico 204 

Alaska  Packing  Assoc,  v.  Alaska 

Imp.  Co 419 

Albany  v.  McNamara 11 

Albany  City  Sav.  Inst.  v.  Burdick.  639 

Albee  v.  Wyman 417 

Albert  v.  Perry  461 

Albert's  Ex.  v.  Ziegler's  Ex.  .  828,  844 
Albert  Lea  College  v.  Brown.  186,  187 
Albion  Steel  Wire  Co.  v.  Martin.  .   389 

Alcalda  v.  Morales   258 

Alden  v.  Hart   652 

Alderson  v.  Langdale 869 

1  v.  Maddison 915,  918 

Alderton  v.  Buchoz   782 

Aldous  v.  Cornwell 859 

v.  Hicks 260,  264 

Aldrieh  v.  Ames  171 

v.  Jackson 654 

v.  Smith 859 

Alexander  v.  Brogley 584,  585 

v.  Crosbie 638 

v.  Dorsey 532 

v.  Gardner 359 

v.  Hickox 845 

v.  MeNear 880 

v.  N.  W.  C.  University 388 

r.  Pierce 729 

v.  Swackhamer 592,  718 

Alfred  v.  Kankakee,  etc.,  R.  Co . .  .  880 
Alger  v.  Anderson 390,  392 

v.  Keith 694,  709 

v.  Scoville 170 

v.  Thacker 474 

Alie  v.  Nadeau .     876 

Alison,  Ex  parte 613 

Alkire  v.  Alkire  394 

Allaire  v.  Ouland  495 

Allard  v.  Lamirande   451 

Allcard  v.  Skinner..  733,  737,  738,  747 

769,  771 

v.  Walker     577 

Allcock  v.  Moorhouse 299 

Allen  v.  Allen  62 

v.  Anderson 608 

v.  Baker 547 

v.  Berryhill 101 

v.  Bryson 11 

v.  Chouteau 47 

v.  Coit 110 

v.  Davison 249,  253 


Allen  v.  Dornan 


PAGE. 

.    863 


■  v.  Duffle 187 

v.  Dunham 441 

-  v.  First  Nat.  Bank 404 

•  v.  Flood 225 

■  v.  Ford 707 

v.  Frazee 452,  460 

v.  Hammond 612,  614 

•  r.  Harris 826,  829,  830,  878 

v.  Hart 692 

c.  Henly 386 

•  v.  Jaquish 345 

v. 
v. 

■  V. 

■  V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


Kirwan 19 

Leflore  Co 747 

MeNear 880 

Maine  Cent.  E.  Co 571 

Milner 877 

Mut.  Compress  Co 51 

Pegram 122 

Rouse 204 

St.  Louis  Bank 389 

Sanders 324 

Schuchardt 782 

Sharpe 384 

Smith 786 

Thomas 238 

Turck 210 

Watson 878 

Willis 571 

Withrow 855 

Allen's  Appeal 685 

Aller  v.  Aller 217 

-  v.  Pennell 550 

Alliance  Bank  v.  Broom 213 

Alliance  Bank  of  Simla  v.  Carey.   781 
Alliance   Mut.    L.    Assn.    Soc.    v. 

Welch 257 

Allis  v.  Billings 61,  101 

Allison  v.  Abendroth 211 

v.  Sutlive 114 

Allison  Bros.  Co.  v.  Allison 640 

Allkins  v.  Jupe 496,  910 

Allore  v.  Jewell 750,  768 

Allsopp  v.  Wheatcroft 480 

Almy  ti.  Orme 377 

Alpers  v.  Hunt   452 

Alsop  v.  Riker    774 

Alston  v.  Durant  731 

1  v.  Richardson 575 

Alt  v.  Groff  82 

Althen  v.  Vreeland 468 

Alton  v.  First  Bank 616 

v.  Midland  Ry.  Co 84 

Alvanley  i\  Kinnaird 602 

Alvarez  de  la  Rosa  v.  Prieto 803 

Alves  v.  Schlesinger 460 

Alvord  v.  Cook 388,  390 

v.  Smith 14,  405 

V.  Spring  Valley  Gold  Co..   256 

261,  262 

v.  Syracuse  Sav.  Bank   ....    137 


TABLE    OF    CASES. 


XXI 


PACE. 

Ambler  V.  Cox 175 

Amer  i?.  Folk 839 

American  Assoc,  v.  Bear   593 

American  Bank  v.  American  Wood 
Paper  Co 145 

v.  Bangs 864 

t?.  Gluck 144 

,  17.  Wall  Paper  Co 142 

American  Broom  Co.  v.  Addicks . .  332 
American  Cotton  Oil  Co.  v.  Kirk. .  197 
American  Ins  Co.  17.  Bass  Bros.  ..  448 
American  Life  Ins.  Co.  v.  McAden.  344 
American  Live  Stock  Co.  17.  Chi- 
cago Live  Stock  Exchange  Co.      372 

American  Mtge  Co.  v.  Wright ...     69 
American  Nat.  Bank  v.  Klock.  . .   261 

269,  272 
American  Oak  Leather  Co.  t7.  Por- 
ter      181 

American  Pub.  Co.  v.  Fisher  ....   852 

v.  Walker 349 

American  Refrigerator  Co.  r.  Chil- 
ton      197 

American  Splane  Co.  v.  Barber.  . .   257 

276 
American  Steamship  Co.  v.  Young.  731 
American  Strawboard  Co.  17.  Hal- 

deman  Paper  Co 298,  300 

American  Telegraph  Co.   v.  Len- 

nig 383 

American  Unitarian  Assoc,  v.  Mi- 

not 302 

Amerman  v.  Dean 306 

Ames  17.  Colburn 854 

17.  Jackson 786 

17.  Manhattan  Ins.  Co 873 

v.  Moir 336,  408 

Ames-Brooks  Co.  v.  iEtna  Ins.  Co.  197 
Amey  v.  Granite  State  Ins  Co. . . .   48G 

Amonett  «.  Montague 272 

Amsden  v.  Jacobs 409 

Anchor  Electric  Co.  v.  Hawkes .  .  .   468 

Anchor  Insurance  Co.  Case . .' 578 

Anchor  Mill  Co.  17.  Railroad  Co.  .   302 

Ancliff  17.  June 464 

Anderson  17.  Adams 522 

v.  Anderson 416 

17.  Armstead 88 

1  17.  Baxter 778 

17.  Beard 108 

.  v.  Bellenger ' 862 

v.  Board  of  Public  Schools.     18 

17.  Burnett 693 

17.  Eggers 11 

— — >  17.  Fitzgerald 658 

17.  Haskell 342 

v.  Jett 425,  468 

v.  Kennedy 635 

17.  Line 892 

17.  May 528,  539 

17.  Miller 282 


PACE. 

Anderson  v.  Moncrief 498 

v.  Portland  Mills   110 

•  17.  Powell 500 

v.  Radcliffe 453,  455 

v.  Rice 346 

17.  Soward 69 

17.  Standard  Granite  Co.  .  . .   839 

v.  Timberlake 107 

17.  Van  Alen 283 

•  17.  Walter 585 

Anderson's  Case   571 

Anderson  County  v.  Beal 137 

Anderson  Transfer  Co.  17.  Fuller. .    160 

Anderton  v.  Shoup 110 

Anding  17.  Levy 515 

Andreae  v.  Redfield 779 

Andres  v.  Fry  160 

Andrew  17.  Boughey   828 

17.  Brewing  Assoc 498 

17.  Spurr 577 

Andrews,  Re  461 

17.  Andrews 634,  640,  644 

17.  Becker 284 

17.  Belfield 51 

i  v.  Burdick 852,  854 

t>.  Cheney 345 

17.  Jones 768 

v.  Marrett 383 

17.  Mockford 700,  705 

17.  Salt 462 

17.  Simms 860 

>  17.  Schreiber 40 

Andrews  Co.  17.  Youngstown  Co.  . .   634 
Angell,  Re 805 

v.  Duke 173,  313,  533,  921 

Anglo-American  Co.  t7.  Davis  Co.      157 

17.  Prentiss 30 

Anglo-Egyptian  Navigation  Co.  17. 

Rennie 538 

Angier  r.  Eaton  C.  &  B.  Co 194 

Angus  17.  Scully 538 

Anheuser-Busch  Assoc.  17.  Mason.   486 

Anheuser-Busch  Co.  17.  Bond 514 

Ankeney  17.  Harmon 890 

Ankeny  17.  Clark 343,  344 

Anketel  v.  Converse 568 

Ann,  Re 96,  890 

Anonymous   334,  394,  685,  753 

Ansell  17.  Baker   876 

Anthony  17.  German  Am.  Ins.  Co.  269 
■  17.  Herman 261,  277 

17.  Hutchins 747 

v.  Mott 261 

Antisdel  17.  Williamson 264,  382 

Antoine  v.  Morshead 429 

17.  Smith 413 

Anvil   Mining   Co.   v.   Humble . .  .   352 

353,  550 

Apollinaris  Co.  17.  Scherer 298 

Apperson  17.  Cross 383 

17.  Gogin 834 


xxn 


TABLE    OF    CASES. 


PAGE. 

Appleby  v.  Johnson 44 

v.  Myers 537 

Appleton  v.  Turnbull  387 

Appleton  Bank  v.    McGilvray . . . .  575 

Arbenz  v.  Exley 531 

Arbuthnot  v.  Norton 440 

Archer   v.   California  Lumber  Co.  639 
<  r.  Helm      175 

r.  Hudson 735,  740,  744 

v.  Stone 118 

Ardglasse  v.  Muschamp 757 

Arend  r.  Smith 204,  210 

Arendale  v.  Morgan  716 

Argenti  v.  San  Francisco  ....  142,  161 

Argoll  v.  Cheney 845,  846 

Argus  Co.  r.  Albany 181 

Arkansas  Smelting  Co.  v.  Belden 

Co 595 

Arlington  i>.  Hinds  258 

Armijo  v.  Abeytia 827,  836 

Armistead  v.  Brooke   776 

Armitage  v.  Widoe 67 

Armour  !'.  Insurance  Co 659 

Armstrong  v.  American  Bank.  .  .  .  409 
•  v.  Armstrong 493 

r.  Bank  292 

.  r.  Karshner 689 

v.  Kattenhorn 791 

v.  Lewis 493 

r,  McGhee 3 

v.  Masten 878 

-  v.  Noble 295 

.  v.  St.  Paul,  etc.,  Co 353 

■  v.  School  District  842 

v.  Stokes   109,  116 

v.  Toler      485,  489 

Arnault  v.  Arnault 735 

Arnegaard  v.  Arnegaard   395 

Arnett  r.  Cloudas 716 

v.  Smith 831 

Arnold  v.  Alden 231 

v.  Arnold 572,  667 

>  v.  Chesebrough    158 

v.  Georgia  R.  &  B.  Co 579 

v.  Hagerman 703 

t\  Lyman 257 

v.  Mayor  of  Poole  ....   159,  165 

i>.  Nichols 258,  266,  272 

v.  Richmond  Iron  Works.  .  .  101 

103 

v.  Rothschild's  Sons  Co.  ...  46 

: v.  Teel 682 

Arnot  v.  Pittston,  etc.,  Coal  Co.  .  468 

486 

i\  Woodburn 295 

Arrison  v.  Harmstead..   847,  849,  850 

851 

Arrowsmith,  Ex  parte 909 

Arthur  v.  Blackman 536 

v.  Gordon 30 

«>.  Griswold 702 


PAGE. 

Arthur  v.  Palatine  Ins.  Co 659 

■  v.  Wynne 547 

Artman  v.  Ferguson 893 

Arundel  v.  Gardiner   ,   495 

Arundel's  Case  127 

Ashbrook  v.  Hite   345 

Ashburner  v.  Parrish 439 

Ashbury   Ry.    Carriage   and    Iron 
Co.  r.  Riche.  .134,  136,  139,  143,  624 

902 

Ashby  i<.  Smith 386 

Ashcraft  v.  Allen 549 

c.  De  Armond 102 

Ashcroft   r.    Butter-worth 19 

Asher  v.  Brock   794 

Ashley  v.  Henahan 11 

Ashley's  Case 710 

Ashling  v.   Boom   799 

Ashmore  v.  Cox 369,  530,  559 

Ash  ton  v.  Dashaway  Assoc 132 

-  v.  Thompson 735,  737 

Ashurst's  Appeal 389 

Asiatic  Banking  Corporation,  Ex 

parte 24,  287 

Askey  v.  Williams 79,  81 

Aspden  v.  Nixon  876 

v.  Seddon 301 

Atchison  v.  Pease  175 

Atchison,  etc.,  R.  R.  Co.  v.  Eng- 
lish     176,  789 

f.  Johnson 451 

Athenaeum  Life  Assurance  Soc.  v. 

Pooley 289 

Atherfold  v.  Beard 422 

Atherton  v.  Low 508 

(  r.  Roche 577,  643 

Athey  v.  McHenry   634 

Atkins  v.  Farr 843 

Atkinson  v.  Ailen 729 

v.  Bell 337 

v.  Denby 504,  732 

c.  Hawdon 869 

v.  Railroad  Co 140 

v.  Ritchie 514,  527 

Atlantic,  etc.,   Coal   Co.  v.  Mary- 
land Coal  Co 639 

Atlantic  Dock  Co.  v.  New  York .  .   842 

Atlas  Nat.  Bank  r.  Holm 470 

Atlee  v.  Backhouse  728 

1  v.  Bartholomew   107,  181 

v.  Fink 390 

Attaway  v.  Third  Bank 439 

Attenborough   v.    St.    Katharine's 

Dock  Co 716,  718 

Attorney-General    v.    G.    E.    Ry. 

Co 134,  139,  902 

v.  Jacobs  Smith    231 

v.  London  County  Council .  .    902 

— —  v.  Railway  Co 139 

v.  Ray 658 

v.  Sitwell 638 


TABLE    OP    CASES. 


XXI 11 


PAGE. 
Attorney-General  v.  Whitney  ....  875 
Attorneys  and  Solicitors  Act,  Re.  452 

Attwood  v.  Small 693,  694 

Atty  r.  Parish 344 

Atwater  v.  Manville 500 

Atwell  v.  Jenkins 66,  100 

Atwood  v.  Fisk 488 

Auburn  Works  v.  Shultz 187 

Audenried's  Appeal 735,  746 

Auditor  v.  Ballard 14 

Auerbaeh  ('.  Le  Sueur  Mill  Co. .  .  .    144 

Aulick  v.  Wallace 622 

Ault  v.  Dustin 349,  361 

Aultman  v.  Olson 585,  587 

v.  Waddle 451 

Aultman  &  Taylor  Co.  v.  Mead ...   343 
Austerberry  v.  Corporation  of  Old- 
ham   300,  302 

Austin  v.  Burgess 515 

i".  Davis 199 

— ' — ■  v.  Guardians      of      Bethnal 

Green 159,  165 

<  v.  G.  W.  By.  Co 569 

v.  Markham 380 

v.  Wack's    627,  628 

Austin  Co.  v.  Bahn 206 

Australian  Boyal  Mail,  etc.,  Co.  v. 

Marzetti 163 

Austria,  Emperor  of  v.  Day  and 

Kossuth 420 

Austrian  v.  Springer 181 

Auteliff  v.  McAnally  528 

Auten  r.  Gruner 585 

Averbeck  v.  Hall 441 

Averett  v.  Lipscombe 633 

Averill  v.  Hedge 30 

v.  Wood 816 

Avery  v.  Bowden 345,  360,  524 

v.  Everett 91 

1  v.  Halsey 495 

v.  Langford 477 

v.  Vansickle 891 

Axford  V.  Reid 96 

Axson  v.  Blakely  90 

Axtel  v.  Chase 242,  343,  346 

Ayeock  v.  Kimbrough 175 

Ayer  v.  Warren 91 

■  v.  Western  Union  Tel.  Co.  .   604 

Ayer's  Appeal 249,  250,  255 

Ayers  v.  Burns 80,     81 

v.  Chicago,  etc.,  R.  R.  Co.      204 

v.  Dixon    261,  269 

■  v.  South    Australian    Bank- 
ing Co 72 

Ayerst  v.  Jenkins. .  412,  413,  488,  498 

Ayles  v.  Cox  667 

Aylesford,  Earl  of  v.  Morris .  .  755,  756 
757,  758,  759,  760,  761,  763 

Ayliffe  v.  Tracy 180 

Aylsworth  r.  Whitcomb 739 


PAGE. 

Ayr  Harbour  Trustees  v.  Oswald.  138 
Ayres  v.  Gallup 259,  267 

v.  Desportes 508 

v.  Probaseo     855 

Az&mar  v.  Casella 608,  653 

B. 

B.  F.  Bruce,  The 655 

B.  S.  Green  Co.  v.  Blodgett 436 

Babb  v.  Clemson   848,  850 

Babbage  v.  Coulburn 448 

Babbett  v.  Young 108 

Babcock  v.  Bonnell 571 

.  v.  Chase 249,  251,  253 

■  v.  Hawkins 834,  835 

r.  Lawson  716,  718 

r.  Murray 872 

•  v.  Read 174 

v.  Trice 652,  653 

Bach  v.  Ballard 175 

v.  Tuch   708 

Bache  v.  Billingham 447 

Backer  v.  Pyne 695 

Backus  v.  Byron   450 

v.  Spalding    286 

Bacon  v.  Bonham 459 

V.  Cobb 528 

v.  Green 342 

v.  Hooker 851,  852 

v.  Reich 876 

V.  Woodward 248,  249,  253 

Badger  v.  Celler   452 

v.  Phinney 68 

Badger  Mining  Co.  v.  Drake 109 

Badger  Paper  Co.  v.  Rose 187 

Badlam  v.  Tucker 557 

Badische   Anilin,    etc.,    Fabrik    v. 

Schott 426,  477 

Baehr  v.  Clark 718 

v.  Wolff 441,  505 

Baer  v.  Knewitz 261 

Baer's  Sons  Co.  v.  Cutting  Fruit 

Packing  Co 449 

Bagaley  v.  Waters 258 

Bagge  v.  Slade 207,  838 

Bagley  v.  Cleveland  Rolling  Mill 

Co 653 

-  v.  Findlay 336 

v.  Fletcher 63 

1  v.  Peddie 633 

Bagnall  v.  Carlton 676 

Bagshaw  v.  Seymour 704 

Bagster  v.  Earl  of  Portsmouth  ...      99 

Baham  «'.  Bach 684 

Bahia  and  San  Francisco  Ry  Co., 

Re 289 

Bailey  v.  Austrian 197 

v.  Bamberger 67,     68 

i'.  Butler 775 

v.  Dillon 415 


XXIV 


TABLE    OF    CASES. 


PAGE. 

Bailey  v.  Gilman  Bank 859,  870 

v.  Harris 403 

Bailey  v.  Hememvay 174 

— <—  v.  Hope  Ins.  Co 39 

v.  Insurance  Co 577 

■  v.  Mogg 515,  802 

v.  Ogden 179 

■  v.  Piper 668 

v.  Smock 696 

r.  Stephens 304 

v.  Tillinghast 598 

Baillie    v.    Edinburgh    Oil    Gas- 
Light  Co 880 

Baillie's  Case 592 

Baily  v.  De  Crespigny  .  .  523,  525,  534 

-  v.  Smith 292 

Baily's  Case  30 

Bain  v.  Brown 390 

v.  Buff 891 

v.  Fothergill 611 

Bainbridge  v.  Downie   112 

■  r.  Firmstone 194 

Bainbrigge  v.  Browne   744 

Baines  v.  Geary 477 

v.  Woodfall 46 

Baird  v.  Boehmer  483 

v.  Mayor 706,  709,  721 

v.  Sheehan 470 

Baird's  Case 135 

Baker  v.  Baker   685,  875 

v.  Bradley 744 

-  v.  Briggs 386 

r.  Bryan 253 

■  r.  Cartwright 677 

■  v.  Cooper 417 

v.  Eglin 245,  258 

v.  Farris 440 

v.  Flick 173 

v.  Hedgecock 477 

-  v.  Holt 43 

v.  Humphrey 387 

i'.  Johnson 525 

v.  Johnson  Co 30,  43 

V.  Jordan 393 

v.  Kennett 66,  67,  69 

v.  Kinsey 295 

— ' — ■  v.  Lever      722 

v.  Loader 746 

v.  Massey 576 

v.  Maxwell 695 

.  v.  Monk 750,  765 

v.  Morton 729 

v.  Read 743 

.  r.  Stone      82 

v.  Stonebraker's    Admrs.  .  .  .  781 

v.  Whiting 387 

Bal  r.  Van  Staden 39 

Bald  Eagle  Valley  R.  Co.  v.  Mit- 

tany  Valley  R.  Co 302 

Baldwin  v.  Barrows  585 


PAGE. 

Baldwin  v.  Central  Bank 214 

■  v.  Emery 257,  268,  269 

Baldwin  v.  Flagg 407 

v.  Foss 579 

■  v.  Insurance  Co 577 

v,  Kerlin 639 

— i — ■  v.  Lessner 346 

v.  Liverpool,  etc.,  Co 731 

v.  Marqueze 353 

— <—  v.  National  Hedge  Co 636 

■  v.  Parker 736 

■  v.  Potter 498 

■  v.  Rosenman 379 

v.  Schiappaeasse 107 

Baldy  t\  Hunter   431 

v.  Stratton 411 

Balfour  v.  Ernest 293,  898,  899 

Ball  v.  Campbell  408 

■  v.  Dowd 449 

v.  Newton 14 

v.  Storie      636,  638 

Ballanee  v.  Vanuxem 326 

Ballard  v.  Brown 405 

v.  Burton 185 

— i—  v.  Franklin  Ins.  Co 870 

.  v.  Green 409 

■  v.  Pope 495 

Ballentine  v.  Robinson 336 

Ballingham  Co.  v.  Brisbois 285 

Ballman  r.  Burt 331 

Ballou  v.  Billings.  .  335,  339,  344,  345 
.  v.  Hale 175 

v.  Taylor 775 

Baltimore  v.  Chester 91 

•  r.  Peat 299 

v.  Schaub 332 

Baltimore  Breweries  Co.  v.  Cal- 
lahan    176 

Baltimore  Coal  Tar  &  Mfg.  Co.  v. 

Fletcher 112,  115 

Baltimore  &  Ohio  R.  Co.  v.  Dia- 
mond Coal  Co 497 

Baltimore,  etc.,  R.  Co.  v.  Brydon.  52 

v.  O'Donnell 514 

— • —  v.  Stankard 449 

Baltimore  Ry.  Co.  v.  Voigt 436 

Baltimore  Retort  Co.  v.  Mali 218 

Baltimore  Sugar  Co.  v.  Campbell 

&  Zell  Co 392 

Baltzen  v.  Nicolay  119 

Bamfield  v.  Rogers 678,  738 

Banchor  v.  Mansel  486 

Bancroft  v.  Dumas 399,  402 

v.  Otis       736 

v.  Scribner 595 

■  v.  Union  Embossing  Co  ....  468 

Bane  v.  Detrick 730 

Banet  v.  Railroad  Co 135 

Bangs  v.  Dunn 439 

v.  Hornick 409 


TABLE    OE    CASES. 


XIV 


PAGE. 

Banigan  r.  Bard 719 

Bank  v.  Adams 292 

v.  Anderson  Co 660 

v.  Archer 142 

■  v.  Balliet 286 

17.  Bangs 23 

F.  Bellis 88 

r.  Bemis 302 

v.  Bertschy 786 

v.  Blakesley 137 

v.  Board  of  Trustees   137 

-  c.  Brown 722 

p.  Brownell 660 

v.  Bryan 729 

v.  Burehard 142 

v.  Burt 528 

v.  Butler 141 

■  v.  Bynum 286 

v.  Charlotte 135 

v.  Chase 108 

v.  Clark 25 

v.  Collins 891 

v.  Cook 110 

v.  Cooper 661 

.  17.  Coster's  Exrs 25,  26 

v.  Crafts 443 

e.  Curry t.  .  867 

v.  Davidson 508 

17.  Davis 161 

v.  Dean 293 

i:  Dearing 141 

v.  Dickerson 383 

17.  Diefendorf 292 

v.  Dix 122 

v.  Donally 781 

v.  Downey 391 

v.  Drake 389 

v.  Eastman 849 

■  v.  Elliott 302 

v.  Eltinge 575 

1  17.  Farmers'  L.  &  T.  Co 388 

v.  Faurot 145 

v.  Field 384 

v.  Flour  Co 147 

v.  Forty-second  St.  R.  Co.  . .  701 

v.  Friend 119 

v.  Gallaudet 654 

v.  Garlinghouse 142 

v.  Geary 578 

v.  German  Ins.  Co 108 

v.  Globe  Works 144 

v.  Graham 130 

■  t'.  Grand  Lodge 250,  259 

•  v.  Gregg 701 

v.  Hall 43 

v.  Hammond 856 

v.  Harrison 142 

v.  Hart 23 

17.  Hatch 383 

v.  Hawkins 147 


PAGE. 

Bank  v.  Hendrie 437 

v.  Hobbs 141 

r.  Hoeber 378 

v.  Hollenbeck 108 

v.  Holtsclaw 292 

v.  Hooper 291 

v.  Hornberger 741 

v.  Hunt 695 

r.  Hyde 382 

17.  Insurance  Co 577 

v.  Irebein  Co 125 

v.  Jacobs 140,  144 

v.  Johns 585 

v.  Joy 110 

v.  Kaufman 25 

L\  Keene 443 

v.  King 483 

v.  Kurtz 654 

v.  Lansingburgh 173 

r.  Legrand 384 

v.  Lierman 585 

F.  Lineberger 385 

v.  Lucas 383 

v.  Luce 25 

v.  Ludlum 699 

v.  Lynch 25 

v.  Matthews    141,  142 

v.  McCoy    102 

■  v.  McNeir 291 

v.  Mann 577 

v.  Mich.   Barge  Co 144,  699 

f.  Mining  Co 160,  161 

v.  Monteath   110 

i*.  Moore  102 

v.  Morgan    292 

v.  Morton 125 

v.  Mott 443 

v.  Mumford 279 

v.  Neet 294 

v.  Nolan 142 

v.  Nolting 112 

v.  Ohio  Buggy  Co 37S 

v.  Owens   142,  399 

v.  Page 383 

-  v.  Partee 87,     91 

17.  Pierce 108 

17.  Plimpton 115 

v.  Porter  Township 137 

17.  Pratt 141 

• v.  Pruyn 892 

17.  Railroad  Co 160 

r.  Rice      25 

v.  Richards   25 

17.  Savery 291 

v.  Schuler 281 

r.  Sherwood 142 

— — ■  v.  Simons 388 

17.  Smith 585 

17.  Sneed 102 

17.  Sprague 470,  684 


XXVI 


TABLE    OF    CASES. 


PACE. 

Bank  v.  Steffes 585 

r.  Stegall 400 

• v.  Stein 108 

v.  Stevens 660 

t .  Strauss   63,  G6 

c.  Swavne 142 

v.  Taylor 891 

c  Texas 295 

v.  Thayer 386 

i .  Torrey 386 

v.  Traube 383 

v.  Traver 891 

i\  Union  R.  &  T.  Co 303 

r.  United  States 382 

c  Vanderhorst 106 

p.  Waggoner 142 

r.  V/allace 375,  501 

r.  Webb 583 

v.  Weston      291 

t'.  Whitman 384 

v.  Whitney 142 

v.  Young 386 

Bank  of  Australasia  v.  Breillat.  .  135 

482 

v.  Harding 877 

v.  Nias 877 

v.  Palmer 312,  313 

Bank  of  Batavia  v.  Railroad    .  .  .    302 

Bank  of  Billings  v.  Wade 868 

Bank  of  China  v.  Morse    508 

Bank  of  Columbia  v.  Patterson.  .   161 
Bank  of  Commerce  v.  Hoeber  ..  .   37S 

380 
Bank  of  England  v.  Anderson  .  .  400 
Bank  of  Hindustan  v.  Alison  ...   613 

v.  Smith 853 

Bank  of  Ireland  v.  Evans'    Char- 
ities   147,  160 

Bank  of  Mo.  v.  Benoist 257 

Bank  of  New  Zealand  v.  Simpson.   314 
Bank  of  Ohio     Valley     v.     Lock- 
wood      857 

Bank  of  United  States  v.  Daniel.  576 

580 

v.  Merchants'  Bank   ...876,  877 

v.  Owens 400 

Bank      Commissioners      v.      New 

Hampshire  Trust  Co 323,  355 

Bank  Supervisors  c  Clark 383 

Bankart   v.   Bowers 321 

Banking  Assn.  v.  White  Lead  Co.    144 
Banks  v.  Crossland 785 

v.  Harris  Mfg.   Co 181 

■  v.  Lee 860,  863 

v.  Poitiaux 141 

Bannan  v.  Graeff  541 

Banner  v.  Johnston  230 

Bannerman  v.  White 608,  609 

651,  668 
Banta  v.  Palmer 690 


PAGE. 

Barabasz  v.   Kabat 565 

Barber  v.  Lamb 877 

Barbour  v.  Barbour 444 

Barclay  ;;.  Pearson 405,  501 

Barclift  v.  Treece 874 

Barcus   v.   Dorries 592 

Barden  v.  Keverberg 91 

v.   Southerland 855 

Barge   v.   Haslam 172,  178 

Barham  v.  Thanet 260 

v.  Turbeville 83 

Barickman  v.  Kuykendall 787 

Barker  v.  Barker   452,  461 

V.  Barth    284 

v.  Bradley 258 

v.  Bucklin 258 

v.  Cox 666 

r.  Dinsmore 592,  718 

v.  Furlong 56  "> 

v.  Hibbard 711 

v.  Hodgson 514,  530 

•  v.  McClure 385 

v.  Parker 498 

■  v.  Seudder 171 

v.  Valentine 158 

Barkley  v.  Railroad  Co 106 

Barkwoj-th  r.  Young 552,  553,  793 

Barlow  v.  Buckingham 854 

c.  Delaney 892 

!'.  Myers 258 

v.  Smith 199 

Barnard  v.  Backhaus   406,  407 

v.  Campbell    716,  717 

v.  Paber   656,  659,  920 

■  v.  Lee 627 

Barnardo  v.  McHugh   463 

Barnes  v.  Allison 175 

v.  Barnes 736 

r.  Black 794 

v.  Brown 377.  439,  505 

■  v.  Gibbs 877 

v.  McMullins 295 

v.  Morrison 470 

— —  v  ■  Perrine 35 

v.  Reed .  22 

v.  Shoemaker 591 

v.  Smith 409 

V.  Strong 461 

v.  Toye 77 

v.  Van  Keuren   863 

Barnet  v.   Gilson 880 

Barnett,  Ex  parte 592 

— —  v.  Franklin    College 187 

v.  Howard  94,  97 

v.  Kinney 508 

v.  Pratt 257 

v.  Sweringen 52,  337 

Barnev  v.  Newcomb   25 

Barnsdall  v.  Boley 856 

Barnum  v.  Read  219 


TABLE    OF    CASES. 


XXVU 


PAGE. 
Barr  v.  Logan 334 

v.  New  York,  etc.,  R.  Co. . .  723 

Barrett  v.  Dean   35 

v.  Geisinger 217,  467 

v.  Hartley 751 

v.  Koella 707 

■ i\  McHugh 170 

v.  Thorndike 845 

v.  Weber 441 

Barron   r.  Porter   283 

v.  Tucker 441 

v.  Vandvert 204 

v.  Willis   . .  .  .735,  736,  740,  742 

768,  770 

Barrow  v.  Isaacs   574 

v.  Ker 43 

v.  Richard 302 

Barrow  S.  S.  Co.  v.  Mexican  Cent. 

Ry.  Co 35,     43 

Barry  v.  Capen 436,  493 

v.  Coombe 180 

v.  Croskey 698 

v.  Doremus 177 

v.  Hamburg-Bremen  Ins.  Co.  631 

v.  Harding' 260 

v.  Kirkland 443 

v.  Merchants'  Exchange  Co.  140 

144 

v.  Page 109,  114 

v.  Ransom 171 

v.  Schmidt 3SS 

Barth  v.  Graf   171 

v.  Iroquois    Furnace    Co. . .   508 

Bartholomew  v.  Jackson 12 

v.  Leech   387 

v.  Markwick 337 

Bartholomew     Co.     Commrs.     v. 

Jameson 460 

Bartlett  v.  Bailey 68 

v.  Bartlett 610 

v.  Blaine 378 

v.  Holbrook 194 

v.  Smith 406,  409 

v.  Tuchin 334 

v.  Tucker 119 

v.  Wells   84 

v.  Wheeler 789 

v.  Wyman 204 

v.  Young 175 

Bartley  v.  Conn   258 

Barton  v.  Benson 470 

v.  Gray 821,  824,  825,  826 

v.  Kane 605 

v.  London  &  N.  W.  Ry.  Co.     29 

v.  Muir 398 

v.  Mulvane 490 

v.  Piggott 403 

Barton  Co.  Commrs.  v.  Newell .  . .  429 
Barwick    p.    English   Joint   Stock 

Bank 700 


PAGE. 

Basford  v.  Pearson 855 

Bashaw's  Adm.  v.  Wallace's  Adm.  864 

Baskcomb  v.  Beckwith   668 

Basket  v.  Moss 439 

Bassett  v.  Bassett   857 

v.  Bradley 261,  262 

v.  Hughes 259,  274,  276 

v .  Shoemaker 387 

Baston  v.  Clifford 345 

Batchelder  v.  Sargent 891 

v.  White 848 

Bate  v.  Hooper   581 

Bateman  v.  Butler    170 

v.  Countess  of  Ross 92 

r.  Paber 97 

v.  Mid- Wales  Ry.  Co 146 

v.  Pinder   777 

v.  Robinson 503 

Bates,  Ex  parte   86 

v.  Babcock 174 

v.  Ball 104 

t>.  Hyman   101,  102 

v.  Lancaster 502 

v.  Moore 177 

v.  Bandy 215 

v.  Townley 877 

Bates  County  v.  Winters 135 

Bates  Machine  Co.  v.  Norton  Iron 

Works       528 

Bateson   !'.   Gosling    384 

Bath  Gas  Light  Co.  v.  Claffy.,139,  142 
Bath,    Earl    of,    and    Montague's 

Case 766 

Batson  v.  Murrell   776 

v.  Newman 405 

Battersbee   v.   Farrington 794 

Batturs  v.  Sellers 182 

Batty  v,   Chester   412 

v.  Snook 630 

Bauer   v.  Bauer    744 

v.  Roth 584 

v.  Samson  Lodge   449 

Baum   v.  Baum 415,  444 

v.  Birchall   886 

Baurman  v.  Binzen 49 

Bawden     v.     London,     Edinburg 

and  Glasgow  Assur.  Co 658 

Baxendale  v.  Bennett 587 

v.  Seale 601 

Baxley  t\  Linah   877 

Baxter  v.  Billings 543 

v.  Bush 83 

v.  Camp 250,  259,  852,  874 

v.  Little 295 

v.  Sherman 115 

Bay  v.   Shrader 865 

V.Williams    261,273 

Bayard  v.  Lathy   25 

v.  McLane 452 

Bayler  v.  Commonwealth 459 


xxvm 


TABLE  .OF    CASES. 


PAGE. 

Baylies   v.  Fettyplace 428 

Bayliss  o.  Williams 737,  745 

Bayly  v    Garford 846 

Bayne  t>.  Wiggins 182 

Beach  i:  Endress   844 

v.  First  M.   E.   Church.. 42,  187 

Beachey   v.   Brown 516,  677 

Beadles    v.    Bless ' 406 

Beal  r.  Brown  786 

p.  McVieker 439 

c.  Minneapolis  Co 341 

v.  Polhemus 377,  436,  437 

Beall  i-.  McGehee  688 

v.  Mann 734 

Beals  o.  Beals 249,  252 

v.  See 102 

Beam  v.  Copeland 581 

Beaman  r.  Russell 874 

Bean  v.  Amsinck  378,  504 

v.  Atwater 324 

■  v.  Bean 880 

v.  Brookmire 378,  504 

v.  Heath 88 

v.  Miller 332 

r.  Morgan 91 

Beanland  p.  Bradley   744 

Beard  v.  Beard  444 

v.  Kirk 100 

1-.  Webb 92 

Beardslee  v.  Morgiier 257,  269 

Beardsley  v.  Duntley 634,  791 

v.  Hotehkiss 66 

Bearss  v.  Ford   63C 

Beary  v.  Haines S66 

Beasley  v.  Webster   256 

Beasly  v.  Texas,  etc.,  By.  Co 437 

Beath  v.  Chapoton  441 

Beattie   v.  Lord  Ebury 119,  688 

Beattie  Mfg.  Co.  v.  Gerardi 238 

Beatty  r.  Howe  Lumber  Co.. 332,  353 

■  p.  Western  College   187,  650 

Beaty  v.  Grim 170 

Beaubien  Produce  Co.  v.  Robert- 
son             40 

Beauchamp,  Earl  v.  Winn 564 

Beaumont   P.  Dukes    919 

v.  Reeve  . 411,  412 

Beaupre   v.   Telegraph   Co 19 

Beavan  v.  M'Donnell 102 

Beaver  v.  Beaver 219 

v.  Fulp 211 

Bebout  v.  Bodle   384 

Bechervaise  r.  Lewis 386 

Bechtel  v.  Cone    788 

Bechuanaland  Exploration  Co.  v. 

London  Trading  Bank.  145,  288,  293 
Beck  v.  Blue   631 

v.  Pierce 98 

Beck's  Case   45 

Becker  v.  Howard   631 


PAGE. 

Becker  v.  Keokuk  Water  Works .  .  2 54 

Beckhuson  v.  Hamblet   108 

Beckwith  v.   Bank 286 

Beckham  v.  Drake   109,  112,  114 

i.  Brackett 351 

v.  Frisbie 731 

v.  Talbott 182 

Bedell   e.  Hering    585 

c  Wilder 612 

Bedford   v.   Bagshaw 704 

Bedford,  Duke  of,   v.  Trustees  of 

British  Museum 306 

Bedgood  v.  MeLain   873 

Bedinger  v.  Wharton 68 

Beebe   v.   Insurance   Co 659 

v.  Johnson   522,  524,  530 

r.  Real  Estate  Bank 295 

Beecher  r.  Conradt   324 

Beed  v.  Blandford   342 

Beeler   v.   Clarke    77S 

P.  Young 77,  79,  80,  81 

Beemer  v.  Packard   258 

Beer  v.  Landman 488,  492 

Beere  v.  Beere 393 

Beers   v.  Robinson   258 

v .  Spooner        240 

Beeson  v.  Green 261 

Beeston  v.  Beeston  499 

Begbie  v.  Phosphate  Sewage  Co.  .  498 

Beggs   v.  State 64 

Behl  v.  Schuett   730 

Behler  v.  Weyburn 88 

Behn  v.  Burness 651,  655 

Behrens   i:   McKenzie 102 

Belden  r.  Ham 861 

■  v.  Munger 444 

Belding  p.  Frankland   679 

r.  Smythe 505 

v.  State    557 

Belfast  Nat.  Bank  v.  Harriman . .  866 

Belknap  r.  Bender 238 

■  r.  Gleason 775 

v.  National  Bank 866 

v.  Schild       112 

Bell  p.  Balls   180 

v.  Bank 56 

v.  Banks 876 

v.  Bell 392 

r.  Bennett 98 

v.  Bruen       624 

v.  Campbell 747 

v.  Chapman 430 

p.  Eaton 677 

v.  Hewitt's  Ex 176 

p.  Lamprey 725 

v.  Leggett 380 

■ 0.  McConnell    388 

p.  Mahin 856,  859 

i'.  Mendenhall 257,  267 

v.  Morrison 777 


TABLE    OF    CASES. 


XXIX 


PAGE. 

Bell  v.  Moss 571 

v.  Offutt   47,  336 

v.  Packard 886 

v.  Reid 426 

v.  Reynolds 112 

v.  Sappington 241 

v.  Thompson 664 

Bellairs  v.  Bellairs    466 

v.  Tucker 692 

Bellamy  v.  Debenham 667 

Bellamy  v.  Sabine   744 

Bellas  v.  Fagely 258,  259 

Beller  v.  Block   109 

Belleville  Works  v.  Samuelson...   717 

Bellevue  Assn.  v.  Jeckel 661 

Bellows  v.  Russell   470 

— —  v.  Sowles 215 

Belmont  v.  Coman 262 

Belshaw  p.  Bush 594,  841 

Belt  v.  Ferguson    393 

v.  McLaughlin 261 

Bement  v.  La  Dow 691,  715 

v.  National  Harrow  Co ... .   469 

Bence  v.  Shearman   283 

Bender  i:  Fromberger   624 

Bendix  v.  Ayers 211 

Benedict  v.  Beebee 174 

v.  Cowden 865 

v.  Hunt 272 

Benedict  v.  Lynch 628 

•  v.  Miner 856 

v.  Roome 747 

Benge  v.  Hiatt's  Adm 249,  253 

Benjamin  v.  Birmingham  .  . .  256,  261 

v.  Bruce 197 

V.  McConnel 865 

v.  Zell  174 

Benecke  v.  Haebler 361,  366 

v.  Bennecke  v.  Insurance  Co.  614 

Bennett  v.  Bates 275 

v.  Bennett 685 

v.  Covington 409 

v.  Dyer 791 

(Doe  d.)  v.  Hale 804 

v.  Ingoldsby 847 

v.  Judson 702 

v.  Littlefield 219 

v..  Mahler 177 

v.    Merchantville    Building 

Assoc 238,  258 

l'.  Morse 522 

v.  Rosenthal 258 

v.  Shaughnessy 332,  342 

Bensick  v.  Thomas 389 

Bensimer  v.  Fell 258 

Bensinger  v.  Wren  : 382 

Bensley  v.  Bignold 399,  911 

Benson  v.  Cowell 343 

v.  Cutler 629 

v.  Markoe 577,  641 


PAGE. 

Benson  v.  Mole    812 

v.  Phipps 206 

Bent  v.  Priest 391,  452 

v.  Underdown 719 

Bentinck  v.  Franklin 452 

Bentley  e.  Davis    878 

r.  Greer 69 

r.  Mackay 572,  639,  644,  769 

r.  Root   282 

r.  State 528,  530,  538 

v.  Vilmont 717 

Benton  v.  Holland 778 

Benton  County  Bank  v.  Boddicker.  404 

Bentsen  v.  Taylor .• 655 

Benwell  v.  Inns 478 

Benyon  v.  Nettlefold 412 

Beram  v.  Kruscal   495 

Beran  v.  Tradesmen's  Nat.  Bank.  285 

Bercich  v.  Marye   565 

Berdoe  r.  Dawson 769 

Bergen  i\  Frisbie 436 

v.  Udall 768 

Berger  v.  Ebey 639 

Berk   v.   International   Explosives 

Co 197 

Berka  v.  Woodward 399 

Berkly  v.  Cannon 100 

Berkmeyer  v.  Kellerman 735,  745 

Berkshire  L.  I.  Co.  v.  Hutchings.   261 

Berkson  v.  Heldman 697,  699 

Berlin  Works  v.  Perry 468 

Bermudez  Co.  v.  Crichfield 436 

Bernard  v.  Dickins 346 

v.  Torrance 29 

Bernard,  etc.,  Mfg.  Co.  v.  Packard.   892 
Bernier  v.  Cabot  Mfg.  Co.  .  .  .  178,  790 

Bernshouse  v.  Abbott 114 

Berrien  v.  McLane 453,  513 

Berry  v.  American  Ins.  Co.  .  .  616,  689 

v.  Bakeman 677 

r.  Berry 728,  729 

■  v.  Doremus 258 

V.  Graddy  216,  785,  789 

v.  Henderson 911 

v.  Sewald 175 

v.  Whitney 689 

Berryman  v.  Manker 862 

v.  Trustees 437 

Berthold  v.  St.  Louis  Construction 

Co 332,  353 

Berwick  v.  Oswald 836 

Berwind  v.  Schultz 109,  116 

Besant,  Re 461,  463 

v.  Wood 415 

Besse  v.  Dyer 23 

Best  v.  Bauder 402 

— -  v.  Stow 633 

Bestor  v.  Hickey   69 

■  v.  Wathen 437 

Beswick  v.  Swindells 555,  558 


TYT 


TABLE    OF    CASES. 


PAGE. 

Bethany  v.  Howard 269 

Bethel  v.  Salem  Improvement  Co.  352 
Bethell  v.  Bethell  688 

V.  Clark  571 

Bettini  v.  Gye   325 

Bettle  v.  Wilson 415 

Betts  v.  Burch 632 

v.  Gibbons 495 

v.  Gunn 577 

Beverley  v.  Lincoln  Gas  Co 163 

Beverley's  Case  98 

Beveridge   v.  New  York  Elevated 

R.  R.  Co 250,  256 

Beyer  v.  National  Assoc 691 

Beyerstedt  v.  Winona  Mill  Co.  . .   197 

Beymer  v.  Bonsall 116 

Beynon  v.  Cook 756,  759,  762,  763 

Bibb  v.  Freeman 216 

v.  Miller 498 

Bick  v.  Overfelt   452 

Bickel  v.  Sheets   486 

Bickerton  v.  Burrell 117,  118,  123 

Bicknall   v.   Waterman 607 

Bidault  v.  Wales 679 

Biddel  v.  Brizzolara 261,  274 

Bidder  v.  Bridges 210,  212 

Biddle  v.  Coryell 324 

Bierbauer  v.  Wirth 441 

Bierman  v.  City  Mills  Co 652 

Biery  v.  Haines  861 

j>_  Steckel  .  .   415 

Biest  v.  Ver  Steeg  Shoe  Co.  . .  176,  178 

Biffin  v.  Bignell  730 

Bigelow  v.  Benedict  408 

v.  Bigelow 216 

v.  Grannis 69 

v.  Railway  Co 142 

v.  Stilphen 853 

Biggers  v.  Owen   34 

Biggerstaff  v.  Rowatt's  Wharf 899 

Biggs  v.  Barry 679 

v.  Fisk 63 

V.  Harris 596 

Bigham  v.  Madison 610 

Bigler  r.  Jack  631 

v.  Morgan 335 

Bignall,  etc.,  Mfg.   Co.  v.  Pierce, 

etc.,  Mfg.   Co 361 

Bilgerry  p.  Branch   430 

Bill  v.  W.  U.  Telegraph  Co 389 

Billage  v.  Southee 737,  746 

Billings  v.  O'Brien  439 

Billingsley  v.  Clelland 215 

v.  Dempelwolf   170 

Billington  v.  Cahill   178 

v.  Wagoner 833 

Bindley  v.  Mulloney    418 

Binford  v.  Adams    841 

v.  Bruso   584 

v.  Bing  v.  Willey 443 


PAGE. 

Bingham  v.  Bingham 576,  615 

v.  Browning 211,  813,  839 

v.  Scott 408 

v.  Wentworth 383 

Birch  v.  Anthony 444 

v.  Steppler 88 

Birchell  v.  Neaster    170 

Bird  v.  Bird 850 

v.  Breedlove 434 

v.  Jacobus 466 

v.  Lanius 257,  260 

v.  Morrison 174 

v.  Munroe 782 

Bird's  Trust    317 

Bird  Coal  Co.  v.  Hume 391 

Birdsall  v.  Russell   866 

Birkmyr  v.  Darnell 172,  179 

Birmingham  Co.  v.  Elyton  Co.  .  .  .  689 
Birmingham    and    District    Land 

Co.  v.  Allday 305 

Birmingham  Ins.  Co.  v.  Pulver .  .  .  448 

Birnie  v.  Main 775 

Birrell  v.  Dryer 309,  315 

Bisbee  v.  McAllen 402 

Biscoe  v.  Kennedy 893 

Bish  V.  Beatty 692 

'  v.  Johnson 135 

Bishop  v .  Allen  584 

v.  American  Preservers'  Co.  468 

v.  Busse 204 

v.  Douglas   262 

v.  Eaton 22 

■  i>.  Holcomb 281,  285 

v.  Honey 486 

v.  Insurance  Co 640 

v.  Palmer 406,  483,  484 

v.  Small 691 

•  v.  Stewart 258 

Bissell  v.  Foss 296 

.  v.  Heath 720 

v.  Jaudon 778 

■  v.  Jeffersonville 137 

•  v.  Lewis 25 

v.  Railroad  Co 144 

Bissing  v.  Britton 171 

Bitter  v.  Rathman   892 

Bivins  i".  Jarnigan 413,  735 

Bixby  v.  Moore 10,  483 

Blachford  v.  Preston 439 

Black  v.  Canal  Co 135 

v.  Cord 217 

v.  Railway  Co 584 

v.  Security  Mut.  Assoc.    .  .  .  402 

v.  White 778 

v .  Woodrow 349,  550 

Blackburn  'v.  Haslam   657 

v.  Mann 172,  178 

v.  Ormsby 832 

v.  Reilly 331,  332,  340 

■  v.  Smith 342,  715 


TABLE    OF    CASES. 


XXXI 


PAGE. 

Blackburn  v.  Vigors 657 

Blackie  v.  Clark 641,  735,  738,  746 

Blacklock  v.  Dobie  380 

Blacknall  v.  Parish   855 

Blacksmith's  Case,  The 471 

Blackstone  v.  Miller 852 

Blackwell  c.  Webster 513 

Blackwood   v.    London    Chartered 

Bank  of  Australia 567 

Blade  v.  Noland 844 

Blades  v.  Free 42,  10G 

Blagborne  r,  Hunger 815,  826 

Blain  v.  Pacific  Exp.  Co 14 

Blaine  v.  Knapp 49 

Blair  v.  Chicago  &  Alton  Co 625 

r.  Insurance  Co 383 

v.  Smith 175 

•  v.  T.  L.,  etc.,  Co.  v.  Walker.   257 

Blaisdell  f.  Ahern   451 

Blake  i:  Cornwell  791 

v.    Hamburg-Bremen    F.     I. 

Co 39 

v.  Lobb's  Estate 541 

t:  McClung 125 

v.  Niles 557 

v.  Pine  Mountain  Co 310 

v.  Railroad  Co 389 

-  v.  Voight 176 

c.  White 833 

Blake's  Case 826,  835,  878 

Blake  Co.  v.  Insurance  Co 640 

Blakeley  v.  Benneke 122 

Blakely  v.  Sousa 376,  543 

Blakeman  v.  Blakeman 576 

Blakeney  v.  Goode  176 

Blakeston  v.  Wilson 880 

Blakey  v.  Johnson 853,  868 

Blackistone  v.  Bank 49 

Blalock  v.  Phillips   707 

Blanchard  v.  Fearing   '.  .  .  631 

v.  Jones 390 

v.  Weeks 176 

Blanding  v.  Sargent 176,  789 

Blaney  v.  Hoke 48 

■  v.  Rogers   612 

Blank  v.  Nohl 444 

Blanton  v.  Commonwealth  860 

i  v.  Knox 789 

Blasdel  v.  Fowle 380,  491 

Blass  v.  Terry 174,  262 

Blattmacher  v.  Saal 120,  495 

Bleakley  v.  White 842 

Bledsoe  v.  Thompson 501 

Blenn  v.  Lyford  295 

Bless  v.  Jenkins 177,  789 

Blewett  v.  Bash 874 

Bliss  v.  Kaweah  Canal,  etc.,   Co.  160 

v.  Lawrence 439 

v.  Matteson 378 

v.  Mclntyre    848,  850 


PAGE 

Bliss  v.  Plummer's  Ex 259 

Block  v.  Darling 502 

Blodgett  r.  Hobert 634 

Blood  v.  Crew  Levick  Co.  .  .  262,  269, 

272 

v.  Enos 550,  815 

— —  v.  La  Serena  Land  Co 389 

Bloodgood  v.  Bruen 778 

Bloom  v.  Richards   399 

Bloomer  v.  Bernstein 323,  340 

v.  Nolan  .  , 68,  69 

v.  Spittle 600,  644 

Blooming  Grove   Ins.   Co.    v.   Mc- 

Enerney 658 

Blossom  v.  Dodd 53 

■  v .  Railroad  Co 15 

v.  Shotter 629 

Blount   c.  Harvey 304 

r.  Robeson 387 

v.  Spratt 102 

Bloxam  v.  Met.  Ry.  Co 457,  897 

Bluck  v.  Gompertz 855 

Blue  r.  Capital  Nat.  Bank 377 

Blumenberg  v.  Adams   91 

Blumenthal  v.  Goodall 34 

■ ■  r.  Shaw 565 

Bly  v.  Bank  492 

Blyer  r.  Monholland 262 

Blymire  v.  Boistle 258,  259 

Blyth  &  Co.'s  Case 798 

Boaler  v .  Mayor   876 

Boals  v.  Nixon 256 

Board  v.  Branham 382 

v.  Duparquet 285 

v.  Gray 856,  857,  860 

v.  Greenleaf 861 

Board    of    Education    v.    Greens- 

baum 161 

v.  Townsend 536,  552 

Board  of  Marion  Co.  v.  Shipley.  .  .   26 

Board  of  Supervisors  v.  Randolph.  137 

Boardman  v.  Keeler    558 

V.  Spooner 180 

■  v.  Thompson 451 

■  v.  Ward 11 

Boast  v.  Firth 544,  546 

Bobbett  v.  Pinkett 292 

Bobbs-Merrill  Co.  v.  Snellenburg.  298 

Bobo  v.  Richmond 175 

Bocchino  v.  Cook .' 731 

Boddy  v.  Henry 683 

Bodine  v.  Kileen 88 

v.  Morgan 729 

Boeckler  v.  McGowan 890 

Boffinger  v.  Tuyes   837 

Bogard  v.  Turner 787 

Bogardus  v.  N.  Y.  Life  Ins  Co.  .  .  340 

v.  Young 258 

Bogart,  Re 776 

v.  Phillips 272 


XXX11 


TABLE    OF    CASES. 


PAGE. 

Bogarth  v.  Breedlove 860 

Boggs  v.  Pacific  Laundry  Co 176 

Bogie  V .  Nolan 735 

Bogk  v.  Gassert 311 

Bohanan  v.  Pope 257,  271 

Bohannon  v.  Pace  786 

Bohn  v.  Lowry 802 

Bohn  Mfg.  Co.  r.  Lewis 187 

Boigneres  v.  Boulon 411 

Boisaubin  v.  Boisaubin 734 

Boisot  v.  Chandler   . 261 

Boisseau  r.  Fuller   46 

Bokcmper  r.  Hazen 102 

Boland  v.  O'Neil  415 

Bold  v.  Hutchinson 643 

Bolles  v.  Crescent  Drug  &  Chemi- 
cal Co 548 

Bollman  v.  Loomis  390 

Bolman  v.  Overall   466,  467 

Bolton  v.  Bishop  of  Carlisle.  .  845,  847 

v.  Lambert    47,  107 

— ' —  v.  Madden 195 

r.  Salmon 383 

Bolton,  Duke  of  v.  Williams.  887,  895 

Bolton  Co.  r.  Stoker 708 

Bomeisler  r.  Forster 833 

Bomier  v.  Caldwell 627 

Bompart  p.  Roderman 175 

Bonar  i\  Macdonald 382 

Bond  v.  Bunting 844 

■  i\  Conway 89 

■  v.  Dolby 261 

v.  Jackson 827 

v.  Heirs  of,  v.  Smith 776 

Bone  v.  Ekless 501 

Boney  r.  Hollingsworth 745 

Bonhote  v.  Henderson 641,  644 

Bonner  i:  American,  etc.,  Mfg.  Co.  226 

r.  G.  W.  By.  Co 138 

— ■ —  i\  Tottenham  Society. .   244,  260 

Bonnett  r.  Bonnett 462 

Bonnewell   v.   Jenkins 47 

Bonnot  Co.  v.  Newman 584 

Bonta  r.  Gridley 377 

Boody  v.  McKenny 68 

Boogher  v.  Life  Assn.  of  America.  130 

Booker  r.  Stivender 845,  857 

— —  v.  Wingo 488 

Bool  v.  Mix  63,     67 

Boone  v.  Chiles  568 

v.  Eyre 327 

Boord  v.  Boord  216 

Booth  v.  Bank  of  England 400 

v.  Conn.  Mut.  Life  Ins.  Co.  259 

260 

v.  Cottingham    99 

v.  Eighmie 1/0 

— ' —  v.  Hoskins 774 

v.  Powers     870 

v.  Robinson 631 


PAGE. 

Booth   v.   Spuyten   Duyvil  R.   M. 

Co 523,  528,  539 

Boothby  v.  Plaisted  886 

v.  Scales   608 

Boots  v.  Steinberg   448 

Borcherling  r.  Katz 110 

Borden  V.  Boardman 257,  259 

Borel  v.  Mead  217 

Borell  i;.  Dann 754 

Borley  v.  McDonald 573 

Born  v.   Schrenkeiser 639 

Borrekins  v.  Bevan 653 

Borries  v.  Imperial  Ottoman  bank.  115 

Borst  v.  Corey 775,  794 

— ■ —  V.  Spelman 89 

Boruff  v.  Hudson   257 

Bosanquet  v.  Wray   810 

Boschen's  Ex.  r.  Jurgen's  Ex 610 

Bosley  v.  National  Machine  Co.  .  .    675 
Bosshardt  Co.  r.  Crescent  Oil  Co.     27 

Bostick  v.  Haynie   709 

Bostock   v.    N.    Staffordshire   By. 

Co 138 

Boston,  etc.,  Co.  v.  Ansell 352 

Boston  Hat  Manufactory  p.  Mes- 

singer 382 

Boston  Ice  Co.  v.  Potter 591 

Boston,  etc.,  R.  Corp.  v.  Nashua, 

etc.,   R.   Cor 878 

Boston    Rubber    Co.    v.    Peerless 

Wringer  Co 839 

Boston  Safe  Deposit  Co.  v.  Salem 

Water   Co 254 

Bostwiek  v.  Beach   666 

v.  Leach 173,  174 

v.  Mutual   Ins.   Co 710,  713 

■  v.  Railroad  Co 54 

•  r.  Van   Voorhis    662 

Botsford  v.  Morehouse   850 

Bottelle  v.  Northwestern  Co 226 

Bouchell  v.  Clary   79,     81 

Boulton   r.  Jones    591 

Bourn  r.  Davis 690 

Bourne  v.  Shapleigh   46 

Bouscaren  v.  Brown 299 

Boussmaker,  Ex  parte 428 

Boutelle  v.  Carpenter 864 

Bowdell   v.   Parsons 360,  365 

Bowditch  v.  New  England  Ins.  Co.  403 

404' 

Bowdoin   College  x>.   Merritt 736 

Bowen   c.   Bailey    324 

■  v.  Buck 442 

•  v.  Fenn 692 

v.  Hall 225 

v.  Hart 44 

v.  Kurtz 261 

Bower  v.   Cooper 300 

■ — —  j'.  Webber 409 

Bowers,   Re 741 


TABLE    OF    CASES. 


XXX111 


PAGE. 

Bowers  v.  Bowers 438 

v.  Briggs 862,  863 

v.  Hutchinson 415 

v.  Jewell   854,  861 

v.  Whitney 180 

v.  Worth 605 

Bowery  Bank  !>.  Wilson 439 

Bowes  v.  Shand   314*  326,  629 

Bowker   v.  Bradford 893 

Bowlin  v.  Silver 625 

Bowling  v.  Flood   384 

Bowman  v.  Carithers   693 

r.  Coffroth 434 

v.  Hiller 729 

v.  MeClenahan 684 

v.  Mitchell 870 

v.  Officer   387 

v.  Patrick 32 

v.  Wright 818,  826 

Bowser  v.  Cole 850,  853,  861 

v.  Patrick 275,  452 

v.  Randell 862,  863 

Boyce  v.  Edwards 25 

v.  McCullough 822 

v.  Tabb    421,  514 

Boyd,  Ex  parte 95 

• v.  Boyd 734 

— — ■  v.  Brotherson 872 

v.  De   La   Montagnie. .  .505,  735 

768 

v.  Graves   175 

v.  Hallowell 52 

v.  Hanson 409 

v.  Hawkins 770 

v.  Kennedy 145 

v.  McConnell 853 

v.  McCullough 324 

Boyden  v.  Boyden   69 

Boyer  v.  Berryman   101 

v.  Pulmer 541 

v.  Soules  . 171 

Boykin  v.  Campbell 595 

Boyle  v.  Adams 470 

v.  Albert  Lea   132 

v.  LybTand 299 

Boynton  i\  Ball 876 

v.  Prye 870 

v.  Hubbard 464 

Boyse  v.  Rossborough . .  .562,  733,  736 

Bozeman  v.  Browning 66,     68 

Brace  v.  Calder  350,  544 

Bracewell  v.  Williams   215 

Bracken  Co.  v.  Daum 860,  871 

Brackett  r.  Griswold   693,  704 

v.  Hoyt 399 

Bradbury  v.  White   633 

Braddick  v.  Thompson 826 

Bradford  r.  Bank   633 

v.  Jenkins 421,  514 

v.  Manly 608 

iii 


PAGE. 

Bradford  v.  Metcalf 226 

v.  Romney 311 

p.  Roulston    200 

v.  Symondson 614 

v.  Williams   321 

Bradlaugh    o.    Newdegate.  .  .  .451,  461 
Bradley  v.  Ballard 142 

v.  Bertoumieux 340 

v.  Bradley 700 

v.  Dells  Lumber  Co 873 

v.  Glenmary   Co 210 

r.  Gregory 832 

v.  Harter 823 

r.  King 332 

r.  Levy 346 

■  v.  Obear 716 

v.  Pratt 80,     81 

r.  Sadler 792 

v.  Seaboard  Bank    699 

Bradshaw  v.  Bradshaw 379 

i:  Davis 832 

v.  Lanes,    and    Yorks.    Ry. 

Co 223 

■  v.  Yates 721,  745 

Bradstreet  v.  Baer 892 

Brady  c.  Berwind- White  Co.  .865,  873 

v.  Finn 694,  695 

;;.  Horvath 498 

v.  Insurance   Co 529 

v.  Nally 112 

Bragg  v.  Davidson   650,  821 

v.  Israel 200 

v.  Stanner 474 

Brahmaputra  Tea  Co.  v.  Scarth.  .   481 

Brainard  v.  Arnold 639 

Braithwaite  v.  Skinner 244,  252 

Bralev  r.  Powers   690 

Brail,"  Re   61 

Bramah  v.  Roberts 145 

Bramble  v.  Ward   384 

Brampton  v.  Beddoes   480 

Branch  v.  Haas    431 

Branch  v.  Palmer 332,  408 

Brand  v.  Johnrowe 873 

Brandao  v.  Barnett 291 

Brandon  v.  Brown 68 

v.  Nesbitt 430 

Branham  v.  Stallings   496 

Branson  v.   Turner    608 

Brant  v.  Ehlen 720 

Brantley  v.  Thomas 652 

v.  Wolf 68,     82 

Brassel   v.  Troxel 323,  355 

Brassell  v.  McLemore   629 

Braswell  v.  Insurance  Co 106 

Brattleboro  Bank  v.  Trustees. . .  .    137 

Bratton  v.  Massey  ...» 416 

Brauer  v.  Shaw 31,  33,     39 

Braun  r.  Wisconsin  Rendering  Co.  577 
Braunn  v.  Keally 486 


XXXIV 


TABLE    OF    CASES. 


PAGE. 

Bray  v.  Kettel   109 

Brayshaw  v.  Eaton   77 

Brazee  v.  Schofield 175 

Breck  v.  Blanchard   730 

Breckenridge   v.   Lewis 585,  867 

v.  Crocker 182 

Brecknock     School     District     v. 

Frankheuser 14 

Breed  v.  Judd   68 

Brenner  r.  Luth 257,  267,  277 

Brentnall  v.  Marshall  324 

Brereton  v.  Hull   725 

Breslin  v.  Brown   470 

Breton  v.  Woollven 219 

Brett,  Ex  parte   679 

Brett  v.  Marston   854 

Brewer  d.  Arantz  693 

v.  Broadwood 354 

v.  Brown 667 

c.  Dyer 257,  269,  271 

v.  Hieronymus 467 

v.  Horst-Lachman  Co 182 

v.  Marshall 304 

i\  Maurer     262,  265,  274 

Brewer    Lumber    Co.    v.    Boston, 

etc.,  E.  Co 571 

Brewing  Assoc,  v.  Nipp   197 

Brewster  v.  Hatch   676 

v.  Wooster 344 

Brewton  c.  Glass   310 

Brey  r.  Hagan   872 

Brice,  Re   86 

Brick  p.  Gannar  178 

Brick  Co.   I .  Pond 541 

Brick  Presb.  Church  v.  New  York.  514 

524,  526 
Bricker  r,  Bricker   624 

r.  Hughes 173 

Brickley  r.  Edwards   703 

Bridge  v.  Connecticut  Ins.  Co.  282,  294 

Bridge  Co.  r.  Frankfort 161 

Bridgeford  v.  Adams   708 

Bridgeport    Bank    v.    New    York, 

etc.,  R.  Co 856 

Bridger  v.  Goldsmith 289 

r.  Savage 499 

Bridgers  v.  Hutchins  844 

Bridges  v.  Stevens  779 

p.  Winters 860 

Bridgewater  Iron  Co.  v.  Insurance 

Co 599,  607,  612 

Bridgford  P.  Crocker 336 

Bridgman  v.  Green 745,  766 

Briggs,  Ex  parte 709 

Briggs  v.  Boyd   731 

v.  Ewert 585 

/-.  Partridge        110,   112 

r.  Ryan 97 

v.  United  States  427 

v.  Walker 427 

Brigham  v.  Fayerweather 101 


PAGE. 

Brigham  v.  Herrick 204,  815 

v.  Lipman,  etc.,  Co. 130 

v.  Newton 736,  741 

Bright  v.  Legerton  721 

v.  Taylor 550 

Brightman  v.  Bates   411 

v.  Hicks 650 

Brindle  r.  Mcllvaine 282 

Brinkley  v.  Brinidey  .  .   394,  395,  793 

Brinley  v.  Whiting 452 

Brisban  v.  Boyd  45 

Briscoe   r.  Ashby   569 

Bristol  c.  Scranton   391 

Bristol  Milling  &  Mfg.  Co.  v.  Pro- 

basco 125 

Briston  v.  Lane 250 

Bristow  v.  Secqueville     434 

Britain  i\  Rossiter  .  .  .  782,  790,  791 
British   and   American   Telegraph 

Co.  v.  Colson   884,  885 

British  Linen  Co.  v.  Drummond.  .  780 
British  Waggon  Co.  v.  Lea  &  Co.  .    223 

Brittain  t.  MeCay  173 

Britton  r.  Bishop  295 

v.  Dierker 861,  871 

i\  Phillips 39 

Britzell  r.  Fryberger 257 

Broad  v.  Jollyfe   474 

r.  Munton 671 

Broadwater  i\  Darne 101 

Broadwell  v.  Getman   177,  789 

Brock  v.  Hidy 627 

t\  Odell 577 

Brodhead  r.  Reinbold 324,  354 

Brodrib  v.  Brodrib 101 

Brodt  v.  Hickman   395 

Brogden   v.    Metrop.   Ry.    Co.  10,     31 

36,     47 
Brokaw  i:  Duffy 335 

v.  Railroad  Co 130 

Bromley  r.  Smith  763 

Bronnenberg  v.  Coburn 205 

Bronson  i:  Coffin 300,  301 

Bronson  Electric  Co.  v.  Rheubot- 

tom      717 

Brook  v.  Brook 396 

v.  Hook 443 

Brookbank  p,  Brookbank   847 

Brooke  v.  Logan  461 

Brookfield  Bank  v.  Kimble   786 

Brooklyn  Bank  v.  De  Grauw 832 

Brookman  v.  Kurzman   623 

Brooknian's   Trust,   Re    466 

Brooks  r.  Allen    853 

v.  Ball 193 

v.  Berryhill 729 

v.  Cooper            470 

p.  Curtis        791 

i:  Martin 500,  742 

v.  Matthews 583,  584 

v.  Meekin 395 


TABLE    OF    CASES. 


XXXV 


PAGE. 
Brooks  v.  Merchants'  Bank 200 

v.  Scott's  Exec 346 

v.  Wichita 633 

Brophy  r.  Marble 205 

Brosnan  r.  McKee   174 

Brotherhood's  Case    901 

Brothers  c.  Brothers   387 

Brotherton  i\  Reynolds 694 

Brou  v.  Becnel 877 

Broughton  v.  Fuller 857,  859 

V.  Hutt 576,  616 

v.  Manchester     Waterworks 

Co 144 

v.  West 862 

Broun  r.  Kennedy 643,  745 

Brower  p.  Fass   488 

v.  Goodyer 679 

Brower  Lumber  Co.  v.  Miller  ....   254 
Brown  v,  Adams 171 

v.  Ambler 25 

v.  Ames 654 

v.  Austin 112 

v.  Bank 110,  142 

v.  Beauehamp 450 

v.  Bell 789 

v.  Bigne 452 

v.  Bowen 791 

■  v.  Bradlee 23 

v.  Brine 445 

r.  Bronson .' 395 

v.  Brown 170,  377,  791 

■  v.  Browning 509 

v.  Bulkley 736 

■  v.  Burbank 735,  745 

v.  Burns 776 

v.  Byers 145 

v.  C.  C.  &  R.  Gravel  Road  Co.  575 

■  v.  Colquitt 855 

v.  Cranberry  Co 108 

■  v.  Curran 258 

v.  Dale 132 

v.  Delano 514 

v.  Dillehanty 557 

1  v.  Duncan 402,  432 

v.  Durham 82 

v.  Eaton 174 

v.  Equitable  Soc 285,  294 

v.  Everett,  etc.,  Co.  ...   378,  504 

v.  Express  Co 54 

i  v.  First  Bank.  434,  436,  438,  445 

v.  Foster 51 

V.  Gardner 104,  427 

v.  German-American  Title  & 

Trust  Co 258 

v.  Ginn 451,  452 

v.  Godfrey 205 

1  v.  Griswold .' 174 

v.  Guarantee  Trust  Co 330 

■  v.  Hall 761 

v.  Hartford  Ins.  Co 283 

v.  Johnson 863 


PAGE. 

Brown  v.  Killingsworth 88 

■>  v.  Kinsey 411,  413 

v.  Knapp 253 

v.  Lamphear 600 

v.  Latham 199,  778 

c.  Leavitt 284,  879 

v.  McCreight 442 

.  o.  McCune 82 

v.  MeGill 888 

■  v.  Markland 258 

v.  Mayor  of  London  . . .  526,  557 

v.  Mercantile  Co 738,  739 

v.  Minis 285 

— r—  v.  Mize 879 

v.  Montgomery 654 

v.  Muller 350,  360,  369 

v.  Nealley 378,  380 

v.  N.  Y.  Central  R.  R.  Co.  46,     47 

v,  'Norman 713 

v.  O'Brien 258 

v.  Odill...  361,  365,  444,  465,  517 

v.  Parker 110,  781 

v.  Railroad  Co 53 

v.  Railway  Co 298,  301 

v.  Ralston 344 

v.  Rawlings 786 

v.  Reed 865 

v.  Reiman 116 

v.  Rice 27 

v.  Rounsavell 469 

v.  Royal  Ins.  Co. . .  528,  529,  553 

v.  St.  Paul,  etc.,  Ry.  Co.  345,  346 

v.  Savage 847 

v.  Savings  Union   27 

v.  Smith 693 

v.  Stillman 265 

v.  Strait 256 

v.  Telegraph  Co .116 

v .  Tillinghast 575 

v.  Timmany 502 

v.  Tuttle 411 

v.  Whipple 179,  182 

v.  Winnisimmet  Co 140 

v.  Witter 343 

Brown  &  Haywood  Co.  v.  Ligon. .  .   250 
Browne  r.  Carr 384 

v.  McDonald 42 

i\  Patterson 629 

v.  United  States  539 

■  o.  West 452 

Brownell  v.  Briggs 395 

v.  Winnie 857,  858,  863 

Brownfield  v.  Johnson 605 

Brownfield's  Ex.  v.  Brownfield...   822 
Browning  v.  Bancroft   708 

v.  De  Ford 708 

v.  Gosnell 856,  857,  863 

v.  Magill 567 

v.  Parker 786 

v.  Wright 624,  625 


TABLE    OF    CASES. 


PAGE. 

Brownlee  r.  Love  210 

Brownlie  v.  Campbell..   649,  699,  921 

Brownson  p.  Weeks   200 

Bruce  v.  Bishop   3 

v.  Hastings 174 

v.  Lee 380 

v.  Osgood 174 

Bruff  v.  Thompson  890 

Bruhl  v.  Coleman  592 

Brumby  v.  Smith   538 

Brummitt  v.  McGuire 575 

Brummond  v.  Krause   744 

Brundige  v.  Blair  640 

Braner  v.  Wheaton   43,  45,  890 

Brunswick  v.  Dunning 127 

• — —  v.  Valleau 486 

Brunswick  Co.  r.  U.  S.  Gas  Fuel 

Co 142 

Brunswick,  etc.,  By.  Co.  v.  Clem .  .  834 
Brunswick   Terminal    Co.   v.    Na- 
tional Bank 780 

Brunton's  Claim 289 

Brush  v.  Sweet    456 

Brutt  v.  Picard    854 

Bryan  (Doe  d.)   r.  Baneks 61 

p.  Brazil   108 

-  v.  Hunt 821 

— —  p.  McNaughten 387 

p.  Reynolds 436 

v.  Spruill 725 

Bryant  v.  Bank 855,  857 

p.  Booze 39 

v.  Crosby 173 

■ v.  Flight 50 

p.  Herbert 152 

r.  Isburgh 608 

u.  Peck 488 

i'.  Vix 292 

r.  Wells      112 

v.  Whitcher 567 

Bryant's  Pond  Co.  v.  Felt   .  .   27,  187 
Bryant    and    Barningham's    Con- 
tract, Re 597 

Bryce  v.  Insurance  Co 639 

Bryson  p.  Haley   486 

■ ■  v.  McShane 467 

Bubb  v.  Yelverton   913 

Buchanan  v.  Cleveland  Oil  Co.   .  .  112 

v.  Curry     429 

v.  Griggs 63 

v.  Layne 541 

v.  Tilden 249,  251,  253 

Buchner  r.  Ruth 415 

Buck  v.  Albee  499 

v.  Bank 436,  441 

v.  Coward 468 

v.  Pickwell 173,  180.  784 

Buckingham  v.  Ludlum   789 

Buckland  r.  Buckland 05 

p.  Rice 419 

Bucklen  v.  Huff   384 


PAGE. 

Buckley  P.  Bank 292 

v.  Buckley 177,  789 

p.  Gray     704 

p.  Humason 402 

v.  Meidroth 51 

Buckmaster  v.  Consumers'  Ice  Co.     49 

Buckner  v.  Street   420,  775 

Buel   v.   Miller    822 

Buell   p.  Buckingham    387 

Buel  v.    Chapin    40 

Buena  Vista  Co.  p.  Billmyer 689 

Buerger  v.   Boyd    532 

Buffalo,  etc.,  Co.  v.  Bellevue,  etc., 

Co 535 

p.  Medina  Gas  Co 125 

Buffalo  Cement  Co.  v.  McNaugh- 

ton 249,  254 

Buffalo   Oil   Co.   v.   Standard   Oil 

Co ,    130 

Buffalo  Press  Club  v.  Greene  ....  440 
Buffalow  v.  Buffalow  .  .  .745,  750,  768 

Buford  v.  Adair  91 

Bulord  %.  Speed  430 

Bugg  r.  Shoe  Co 679 

Bughman  v.  Bank 679 

Buhl  v.  Stephens   176,  177,  784 

Bulfield  v.  National  Supply  Co.  .  .  114 
Bulger  v.  Roche   780 

v.  Ross   736 

Bulkley  e.  Landon 199 

v.  Morgan 708 

r.  Wilford   391 

Bull   r.  Bull    839 

.  17.  Griswold   173 

r.  Harragan 402 

r.  McCrea 176 

v.  Sink   282 

r.  Titsworth 272 

Bullard  i:  Smith 408,  780 

■  p.  Northern  Pac.  Ry.  Co.   .  .    514 

Bullen  v.  Milwaukee  Trading  Co.  160 

Bullion  Bank  v.  Hegler   778 

Bullock  r.  Adams  Exr 628 

v.  Sprawls 68,     873 

Bult  v.  Morrel   145 

Bulteel  v.  Plummer 466 

Bui  winkle  v.  Cramer 108 

Bumps   v.   Taggart    798 

Bumpus  p.  Bumpus   49 

Buncombe  T.  Co.  v.  McCarson  ...    161 

Bundy  v.  Cocke    892 

Bunn  v.  Postell    101 

v.  Schnellbacher 691 

v.  Winthrop 411 

Bunnell   v.  Carter    264 

Bunse  v.  Agee    640 

Buntain  v.  Curtis   879 

Burbank  r.  Dennis 389,  676 

v.  Gould 242,  257,  268 

v.  Pillsbury 301,  302 


TABLE    OF    CASES. 


XXXV1J. 


PAGE. 

Burch  17.  Pope 854 

Burehell,  Re 384 

v.  Clark  317 

Burchinell  v.  Hirsch  679 

Burdett  v.  Williams 82 

Burge  v.  Ashley  and  Smith 501 

v.  Burge 231 

v.  Cedar  Rapids,  etc.,  R.  R. 

Co 343 

Burgess  v.  Blake 848 

v.  Denison  Mfg.  Co 829 

v.  Eve 385 

Burgess's  Case 720 

Burgess  Fibre  Co.  v.  Broomfield.  .    197 

Burghart  v.  Hall 78 

Burgin  v.  Burgin 566 

Burgoon  v.  Johnston 633 

Burgwin  v.  Bishop  873 

Burkard  r.  Crouch. 791 

Burke  v.  Allen 100,  103 

v.  Levy 721 

v.  Purifoy 528 

v.  Shaver 361,  365,  411 

v.  S.  E.  Ry.  Co '54 

■ v.  Taylor 595 

v.  Wells  Fargo   14,     23 

Burkhalter  v.  Jones 606 

Burkhardt      17.      Georgia      School 

Township 525 

Burkholder  v.  Beetem's  Adm 495 

v.  Lapp's  Ex 861 

Burkholder's  Appeal   92,  231 

Burkholder's  Ex.  v.  Plank 217 

Burley  v.  Russell   82 

Burlingame  v.  Brewster   864 

Burlington  Co.  v.  Evans  Co 587 

Burn  v.  Carvalho 281 

Burnard  v.  Haggis   83 

Burnes  17.  Scott 452 

v.  Simpson 157 

Burnett  17.  Hawpe's  Ex 889,  891 

17.  McCluey 850,  861 

Burney,  Heirs  of  v.  Ludeling.  377,  437 

Burney  v.  Savannah  Grocery  Co . .  893 

Burnham  17.  Ayer. .  .  859,  864,  866,  873 

v.  Gosneil 862 

v    Heselton 736,  741 

v.  Railroad  Co 53 

Burns  v.  Fidelity  Real  Estate  Co . .  822 

823 

17.  Lynde 855 

Burnside  v.  Wayman 855 

Burr  v.  Beers 261,  262 

v.  Boyer 386 

Burrell,  Ex  parte 379,  689 

Burritt  v.  Insurance  Co 659 

Burroughes  v.  Bayne   154 

Burroughs  v.  Hunt 501 

v.  Pacific  Guano  Co . . .   585,  694 

Burrow  v.  Scammell 668 

Burrows  v.  Klunk 868 


PAGE. 

Bursinger  v.  Bank  of  Watertown..  100 

Burson  v.  Huntington 587,  868 

Burt  17.  Bowles 688,  68!) 

v.  Mason 683 

r.  Union  Central  Ins.  Co.  .  .   376 

Burtis  17.  Thompson  361,  365 

Burton  r.  American  Ins.  Co..  852,  873 

874 

v.  Dupree 487 

v.  Gage 281 

17.  Great  Northern  Ry.  Co. .  .    197 

v.  Larkin 277 

r.  Perry 452 

17.  Shotwell 27 

v.  Sturgeon 93 

Burton's  Appeal   294 

Burton  Lumber  Co.  v.  Wilder ....   592 

Burwell  v.  Orr 866,  867 

Bury  v.  Hartman 284 

Busby  17.  Littlefield 634 

Buse  v.  Page 631 

Bush  [',  Breinig 101 

l\  Cole 109 

».  Koll 51 

v.  Lathrop 281 

v.  Linthicum 63 

v.  Rawlins 204 

17.  Wick 65 

Busjahn  i\  McLean   854 

Bussman  v.  Ganster   532,  533 

Bute,  Marquis  of  v.  Thompson.  .  .   541 
Butler  v.  Butler 98,  393,  395,  550 

17.  Duncan 757,  761 

■  r.  Eschleman 677 

v.  Greene 878 

v.  Haskell 770 

•  v.  Kaulback 108 

•  v.  Kidder 531 

17.  Lee 789 

r.  Legro 451,  452 

■  v.  Moses 606 

v.  Prentiss 697,  713 

17.  Shehan 176 

v.  Winona  Mill  Co 50 

Butler  and  Baker's  Case 56 

Butterfield  r.  Byron 528,  537 

17.  Hartshorn 240 

17.  McNamara 577 

Butters  v.  Haughwout 717 

Buttigieg  v.  Booker 834 

Button  v.  Hoffman 125 

v.  Rathbone 717 

Buxton  u.  Hamblen 402 

17.  Jones 693 

v.  Rust 180 

Buzzard  v.  Houston 726 

Bwlch-y-Plwm  Lead  Mining  Co.  17. 

Baynes 710 

Byars  v.  Doore's  Admr 119 

Byars  V.  Stubbs   683 

Bvassee  v.  Reese   173 


xxxvm 


TABLE    OF    CASES. 


PAGE. 

Byers  v.  Chapin   608 

Byington  v.   Simpson    108 

Byrd  r.  Hughes    390 

Byrd  v.  Rautman    690 

v.  Wells   776 

Byrne  v.  Schuyler   135 

■ v.  Van  Tienhoven 31 

C. 

C.  F.  Jewett  Pub.  Co.  v.  Butler.  .  .  323 

355,  495,  596 

Caballero  v.  Henty   670 

Cabe  v.  Jameson   836 

Cable  v.   Foley    728 

v.  United  States  Ins.   Co. . .  658 

699 
Cabot  v.  Christie 697 

r.  Haskins       241 

Cadman  v.  Peter   631 

Cadwallader  v.  West 735,  746,  750 

768 
Cady  r.  Straus   27 

v  Walker 879 

Cagwin  v.  Town  of  Hancock  ....   137 

Cahen   v.    Piatt    332 

Cahill  r.  Bigelow  786 

v.  Cahill       93 

Cain  c.  McGuire,  etc., 173 

i\  Spann 295 

v.  State 557 

Caines  v.   Smith    359,  365 

Caird   r.   Moss    644 

Cake  v.  Peet   636 

Caldecott,  Ex  parte   443,  498 

Calder  v.   Dobell    105,   107,  108 

Caldwell  v.   Caldwell   387,  390 

v  Depew 633 

— —  v.  Harding 498 

v.  Henry      695 

■  v.  Parker 865 

V.  Shepherd        452 

v.  Steamboat  Co 130 

v.  Wentworth 402 

Caldwell's  case 558 

Caledonian  Ins.  Co.  v.  Gilmour  .  .   448 

Calhoun  v.  Calhoun 421 

California  Fig  Syrup  Co.  v.  Put- 
nam     419 

Calkins   v.  Falk   179 

Call  v.  Calef   460 

v.  Hagar 879 

Callahan  v.  Aekley   199 

Callender  v.  Edcison   269,  270 

Calliope  Min.  Co.  v.  Herzinger  .  .  821 

Calloway  v.  Snapp   384 

Calloway's  Admr.  v.  Saunders   .  .  786 

Calverley  v.  Williams   600 

Calvert  v.   Carter    880 

v.  Idaho  Stage  Co 161 

Calvo  v.  Davies   264,  383 

Camberwell  and  S.  London  Build- 
ing Society  v.  Holloway    667 


PAGE. 

Cambioso  v.  Maffitt   432,  500 

Cambridge,  Mayor  of  v.  Dennis  .  .    382 

Cambridge  Bank  v.  Hyde    864 

I  Camden  Iron  Works  v.  Fox   ....   629 
!  Cameron  v.  Estabrooks   584 

v.  Little   284 

v.  White   349,  522 

Cameron  and  Wells,  Re 231 

Camp   v.   Barker    550 

Camp  Mfg.  Co.  p.  Parker  . .  .   627,  628 

Campanari  v.  Woodburn 42 

Campbell,   Ex  parte    613 

Campbell    r.   Baldwin    778 

i\  Campbell   443 

v.  Christie 852 

c.  Dearborn 631 

v.  Findley 258 

v.  Fleming 709 

v.  French 914 

v.  Holt 774,  781 

v.  Hurd 834 

v.  Insurance   Co 658 

v.  Lacock    258,   259,  266 

•  v.  Lambert 197 

i:  McLeod 332 

v.  Maple's  Adm 774,  775 

v.  Mayhugh 876 

v.  Patterson 257 

v.  Richardson 406 

v.  Segars 399 

v.  Smith 261 

v.  Stakes 83 

v.  Thomas    175 

Campbell's  'Case    898,  901 

Campbell's   Est 821 

Campbell    Printing   Press    Co.    v. 

Marsh 339,  342,  343 

-V.  Thorp   51 

Campion  v.  Whitney 383 

Canada  v.  Canada- 550 

Canal  Co.  v.  Racecourse  Co 50 

v.  Ray 827 

Canal  and  Dock  Co.  v.  Russell 622 

Canda  v.  Wick   364 

Canedv  v.  Marcy   577,  638 

Canham  v.  Barry   523,  680 

•  v.  Piano  Mfg.  Co 608 

Cannam  v.  Farmer    87 

Cannan  v.  Bryce 487 

Canning  v.  Farquhar  ....   19,  20,     47 

Cannon   r.  Alsbury    65 

■ v.     Hunt 528 

Cannon  Rivers  Assoc,  v.  Rogers       829 

Canon  v.  Grisby 856 

Canterbury  v.  Sparta   40 

Canton  Inst.  v.  Murphy 624 

Cape  Ann  Bank  v.  Burns  .  .  .   866,  872 

Capital  Bank  v.  Armstrong 854 

Capital  Ins.  Co.  v.  Watson   661 

Caples  v.  Steel   683 

Caplice  v.  Kelley   751 

Cappell   v.  Hall    427 


TABLE    OF    CASES. 


XXXIX 


PAGE. 

Capuro  v.  Insurance  Co 725 

Cardinal  v.  Hadley 610 

Carew   v.  Rutherford    731 

Carew's   Estate,   Re, 470 

Carey  v.  Burrus 892 

v.  Dyer 217 

v.  Hulett 158 

Cargo  ex  Argos    398 

Cargill  v.  Bower   702 

v.  Corby 136 

Carhart's  Appeal   218 

Carington,  Lord  v.  Wycombe  Ry. 

Co 138 

Carl   v.  Riggs    257 

Carleton  v.  Lombard 652 

v.  Whitcher 438,  483 

v.  Woods   483 

Carley  v.  Pox  260 

Carlill  v.  Carbolic  Smoke  Ball  Co.     13 

19,  21,  23,     36 

Carlisle  v.  People's  Bank 861 

Carlson  v.  Presbyterian  Board  .  .  533 
Carlton  v.  Western,  etc.,  R  Co.  . .  204 
Carmarthen,  Mayor  of  v.  Lewis  .  .    166 

Carmichael   v.   Carmichael    467 

v.  State 158 

r.  Vandebur 695 

Carmody  v.  Powers   121 

Carnagy  v.  Woodcock 628 

Carnahan  r.  Tousey 261,  264,  274 

Carnegie  v.  Morrison   257 

Carney  v.  Mosher 176 

V.  Newberry 345,  346 

p.  Plimmer : 407 

Carnig  v.  Carr   176 

Carnochan  v.  Christie    879 

Carolina  Assoc,  v.  Black 82 

Carpenter  v.  Bank 292 

v.  Carpenter 67,  68,     82 

v.  Carpenter's  Ex'rs 88 

v.  Chicago,  etc.,  Ry.  Co.  . . .   832 

v.  Pisher 388 

v.  Galloway 823 

v.  Hatch 734 

v.  Hqgan 388 

v.  Longan 292,  299 

l\  Osborn    415 

*.  Rodgers 101,  103 

i\  Snelling 798 

v.  Soule 813 

v.  State 774 

v.  Taylor   204 

v.  Wright 695 

Carr  v.  Carr 631 

v.  Clough 67 

v.  Dooley 173 

v.  Duval 29 

v.  Jackson Ill,  124 

v.  Leavitt 174 

v.  Lynch 179 

v.  McCarthy 176 


PAGE. 

Carr  v.  National  Bank 701 

v.  Waugh 284 

v.  Welch 864 

Carrier  v.  Sears   103 

Carrington   v.  Roots   783 

Carris  r .  Carris  685 

Carrol  v.  Blencow   91 

v.  Porsyth   778 

■  v.  Girard  Ins.  Co 448 

Carrothers  v.  Russell    438 

Carson  v.  Allen 346 

r.  Browder 173 

i\  Carter 880 

v.  Dunham 427 

v.  Murray    414, 415 

Carstarphen  c.  Holt   175 

Oarstens  v.  McDonald 361 

Carter  v.  Beckwith   99 

v.  Black   842 

v.  Brown 789 

v.  Calvert 880 

r.  Carter 415 

v.  Dixon 734 

v.  Duncan 383 

v.  Howe  Machine  Co 130 

— —  v.  Insurance   Co 279 

c.  McLaren    565 

v.  Producers'  Oil  Co 135 

v.  Tice 736 

v.  Wormald 832 

v.  Zenblin 820 

Carthage  Bank  v.  Butterbaugh  .  .   443 

Cartmell  p.  Newton  30,     43 

Cartney  v.  Tyrer  786 

Cartwright  v.  Cartwright 418 

Cartwright  t\  Hateley 596 

Carville  v.  Crane   172 

Cary  v.  Greenman   608 

Cary  v.  Hess   378 

Casborne  v.  Bursham   740 

Case  r.  Barber 829 

r.  Gerrish 378 

v.  Smith 445 

Case  Co.  r.  Smith   181 

Case  Works  (;.  Ross   717 

Casey  v.  Casey   743 

Cash  v.  Clark 180,  182 

Cashen  v.  Berlin  School  Dist.   .  .  .   552 

Cashman  V.  Root   408 

Cason  v.  Grant  County  Bank. . . .   867 

868 

Casoni  v.  Jerome 853,  860 

Caspari  v.  First  Germ.  Church  of 

New   Jerusalem    746 

Cass  County  v.  American  Bank      874 
Cass  County  Bank  v.  Brickner  . .   441 

Cassell  v.  Dows   25 

Casserleigh  r.  Wood   445,  451 

Cassiday  v.   McKenzie    106 

Cassidy  v.  St.  Germain 798 

Castle  v.  Wilkinson 666 


xl 


TABLE    OF    CASES. 


PAGE. 

Caswell  v.  Black  River  Mfg.  Co.  .   346 

v.  Hunton 697 

i\  Parker 82 

v.  Putnam   603 

Cate  v.   Blodgett    673 

Cathcart  v.  Robinson   753 

Catlett  b.  Dougherty 822 

Catlin   v.   Haddox    69 

v.  Henton       441 

Catlin  Coal  Co.  v.  Lloyd 874 

Catling  v.  King   179 

Cato  v.  Thompson   311 

Caton  v.  Caton   791,  792 

v.  Stewart   434 

Catt  r.  Tourle 478 

Catts  v.  Phalen    49!) 

Caudell  v.   Shaw   92 

Caulkins  v.  Pry 100,  102 

i:  Whisler    586 

Cavanaugh  v.  Jackson 175 

Cavendish  v.  Geaves   286,  287 

Caylor  v.  Roe  172 

Cecil  v.   Henderson    779 

Center  t\  McQuesten  .  .  170,  240,  245 
Central,  etc.,  R.  Co.  v.  Cheatham.  23 
Central  Ry.   Co.   of  Venezuela  v. 

Kisch 675,  694,  723 

Central  Salt  Co.  r.  Guthrie  .  425,  468 
Central  Shade  RoMer  Co.  v.  Cush- 

man       469 

Central     Transportation     Co.     v. 

Pullman  Co 142,  143,  147 

Central    Trust    Co.     v.    Berwina- 

White  Co 256,  276 

v.  East  Tenn.  Land  Co.    .  .  .  389 

r.  Railroad   Co 573 

v.  Respass .  500 

v.  West  India  Co 285 

Cesar  v.  Kountz  673 

Chabot  i\  Winter  Park  Co 628 

Chadwiek  v.  Eastman   860 

Chadwick  v.  Knox  434 

■  r.  Manning      916 

Chaires  v.  Brady  749 

Chalfant  v.  Payton   465 

Challis's  Case   602 

Chalmers,  Ex  parte,   323 

v.  Turnipseed 875 

Chamberlain  v.  Beller 495 

v.  Dorrance       725 

r.  Grimes 452 

v.  Williamson       546 

Chamherlin  r.  Fisher   486 

v.  Fuller      695 

v.  Morgan 363 

r.  Scott 337 

v.  White       854 

v.  Whitford   199,  201 

Chambers  r.  Chambers   745 

v.  Livermore 633 

v.  McDowell 875 


PAGE. 

Chambers  v.  Manchester  and  Mil- 
ford  Ry.  Co 400 

v.  Watson 914 

v.  Whitney 778 

Chamblee  c.  McKenzie  256 

Chambliss  v.  Matthews 286 

Champion  r.  Genin   179 

f.  Rigby 770 

Champlain  Co.  v.  O'Brien   ......   210 

Champlin  r.  Champlin   394 

Chance  v.   Board  of   Commission- 
ers      715 

Chandler  v.  Coe   108,  110,  112 

v.  Fulton   571 

r.  Hollingsworth 393,  395 

r.  Johnson 440,  483 

v.  Sanger   731 

v.  Simmons    68 

C'handley  v.  Cambridge  Springs       448 
Chanter  v.  Hopkins   653 

v.  Leese    235 

Chanute  Bank  r.  Crowell    267 

Chapin  v.  Brown   425 

t'.  Chapin 444 

v.  Dobson 173 

v.  Freeland 781,  794 

v.  Longworth 596 

r.  Shafer   67 

Chapleo    v.    Brunswick    Building 

Society 701,  900 

Chapman  r.  Barnes 778 

v.  Beltz  Co 361,  528 

v.  Brainard 877 

v.  Chapman 67,  158 

v.  Cole 590 

■  v.  County  of  Douglas.  .    142,  405 

v.  Forbes 581 

v.  Gray 414,  415 

v.  Hughes 717 

v.  Kansas     City,     etc.,     Ry. 

Co 364 

v.  Mears 246,  258 

v.  Rockford  Ins.  Co 448 

v.  Rose   585 

v.  Shattuck      282,  284 

v.  Veach 586 

Chappelle  v.  Olney 89 

Chappie  v.  Cooper  79 

Chapsky  v.  Wood   461,  462 

Charch  v.  Charch  204 

Charles  v.  Hastedt   82,     85 

Charles  E.  Wisewall,  The 402,  490 

Charles  P.  Kellogg  Co.  v.  Horkey.   717 

Charlcstown  -v.  Hay 552 

Charles  worth  r.  Holt   417 

Charter  v.  Charter 914 

v.  Trevelyan  ....   388,  712,  721 

Chase  v.  Corcoran   12 

v.  Dwinal 731 

r.  Fitz       172,  547 

v.  Insurance   Co 659 


TABLE    OE    CASES. 


ill 


Chase  v.  Redfield  Creamery  Co . .   226 

v.  Swain. 876 

Chasemore  v.  Turner 777 

Chattanooga  Bank.  v.  Rome  Iron 

Co 768 

Chattock  v.  Muller   470 

Chavasse,  Ex  parte 431 

Cheale  v.  Kenwavd   195 

Cheek  e.  Nail 851,  865,  870,  871 

Cheesman  r.  Wiggins   171 

Cheever    c.    Smith    116 

r.  Wilson 891 

Chemical  Bank  v.  City  Bank  ....  110 
Chemical    Nat.    Bank  -v.    World's 

Fair  Exposition   323,  355 

Chemin    de    fer    du    Dauphine    v. 

Clet 538 

Chenerj-  r.  Dele 175 

Cheney  r.  Cook    28 

v.  Eastern  Tansp.  Line  ....     47 

v.  Libby 627,  628 

c.  Stone   775 

Cherokee  Iron  Co.  v.  Jones    ....    135 
Cherry  v.   Colonial  Bank  of  Aus- 
tralasia      119 

r.  Frost 294 

v.  Heming 177,  182,  789 

Cherry  Valley  Works  v.  Florence, 

etc.    Co 353 

Chesapeake    Fuel    Co.    v.    United 

States 469 

Chesebrough  v.  Conover   436 

Cheshire  v.  Payne 393,  394 

Chesley  V.  Frost 845,  848,  849 

Chessman   V.   Whittemore    845 

849,  850,  853 

Chester   v.  Dickerson    174 

Chester  Co.  v.  Barber 451 

Chester  Glass  Co.  v.  Dewey  ....  142 
Chesterfield  v.  Janssen..   755.  756.  757 

Chevalier  v.  Carter   458 

Cheveront  v.  Textor   378 

Chew  v.  Barnet   569 

Chezun  v.  McBride    856 

Chicago  v.  Cameron   135 

v.  Railroad   Co 514 

v.  Selden 573 

v.  Sexton 337 

v.  Tilley 550 

Chicago  Bg.  Co.  v.  Creamery  Co     •  226 

Chicago,  etc.,  Co.  v.  Barry 349 

Chicago  Dock  Co.  v.  Kinzie  ....  786 
Chicago    and    G-.    E    Ry.    Co.    v. 

Dane   

Chicago,  etc.,  R.  R.  Co.  v.  Bell. . 


196 

249 
255 


v.  Gardiner 508 

v.  Pullman  Co 469 

v.  Sebring 14 

Chicago,    etc.,    Ry.    Co.    v.    Belli- 

With 584 


PAGE. 

Chicago,  etc.,  Ry.  Co  v.  Clark...  211 

«.  Coburn 437 

v.  Lewis   100 

V.  Merchants'  Bank   292 

v.  Wabash  Ry.  Co 500 

Chicago  Title  Co.   v.   Smith    284 

Chicago  Training  School  v.  Dav- 

ies   337 

Chicago  Trust  Co.  v.  O'Marr 863 

Chicago   Wrecking  Co.  v.   United 

■  States    632 

Chickasaw  Co.  v.  Pitcher   383 

Chicora   Fertilizer   Co.    r.  Dunan.  830 

834 

Chilcott  v.  Trimble 10 

Child  v.  Dureka  Powder  Works ...  877 

Childer  v.  Bank 573 

Childs  o.  Dobbins   67 

Chiles  r.  Nelson  39 

Chilton  v.  Brooks 263,  264 

v.  Corporation  of  London.  .  .  232 

-  v.  Robbins 384 

Chimene  v.  Pennington   486 

Chinnock  v.  Marchioness  of  Ely.  .  46 
Chippewa  Lumber   Co.   v.   Phenix 

Ins.  Co 448 

v.  Valley     Co.     i\     Chicago, 

etc.,  Co 436 

Chisholm  v.  Montgomery 146 

Chism  v.  Bank 292 

v.  Sehipper 289 

Chisolm  v.  Newton 283 

Cholmondeley  v.  Clinton 458 

Chorley,  Ex  parte 289 

Chouteau  v.  Jupiter  Iron  Works.  816 

821 

Chresman  v.  Hodges 816 

Christian  r.  Cabell  663 

Christian  College  v.  Hendley 187 

Christian  County  Bank  v.  Goode . .  853 

Christmas  v.  Russell   780 

Christopher  St.  Ry.  Co.  v.  Twenty- 
third  St.  Ry.  Co 640 

Christy  v.  Flemington 778 

Chrysler  v.  Canaday 692 

Chubb  v.  Stretch  893 

v.  Upton   720 

Chubbuck  v.  Cleveland 700 

Church  v.  Fowle 853 

v.  Howard    860 

v.   Imperial    Gaslight,    etc., 

Co 159,  163 

v.  Proctor 197,  37P,  419,  488 

493 

v.  Sterling    387 

Church  Wardens  v.  Mayor 127 

Churchill  r.  Bradley 193,  194,  384 

v.  Rogers 634 

v.  Scott 768 

v.  White   84 


xlii 


TABLE    OF    CASES. 


PAGE. 
Chute  v.  Pattee 206 

v.  Quincy    606 

Chytraus  v.  Smith  39 

Cicotte  v.  Church  of  St.  Anne ....     11 

Cilley  v.  Colby 384 

Cincinnati   v.   Cincinnati  Gas  Co.  573 

579 
Cincinnati  Gas  Co.  v.  Western  Sie- 
mens Co 591 

Cincinnati  R.  Co.  v.  Bensley 11 

Cincinnati  Volksblatt  Co.  v.  Hoff- 

meister 125 

Citizens'  Bank  v.  Babbitt  ...214,  215 

v.  Importers'  Bank 292 

v.  Lay 295 

v.  Richmond 871 

v.  Smout 892 

v.  Williams 858 

Citizens'    Bank    of    Louisiana    v. 

First  National  Bank  of  New  Or- 
leans   795,  919 

Citizens'  Nat.  Bank  v.  Richmond.   858 

City  Bank,  Ex  ■pwrte 145,  146,  288 

City  Bank  ;;.  Bangs 14 

v.  Dun 701 

v.  Nat.  Bank  575 

v.  Wright 786 

City  National  Bank  v.  Kusworm.  441 

729    748 
Clack  v.  Hadley 639'  640 

v.  Holland 284 

Claes,  etc.,  Mfg.  Co.  v.  McCord.  .   350 

361 

Claffey  v.  Ledwith 734 

Claflin  v.  Godfrey 581 

p.  Ostrom 258,  266,  269 

Claflin  et  al.  v.  Carpenter 173 

Claggett  i.  Crall 695 

".  Salmon 385 

Claiborne  County  v.  Brooks 147 

Clampet  v.  Bells 179 

Clancy  v.  Flusky 552 

Clanton  v.  Young 14 

Clapp  v.  Hoffman  616 

v.  Mass.  Benefit  Assoc 658 

v.  Wilder 302 

Clare  v.  Hatch     248 

r.  Lamb  . 580 

Clark,  Re 81 

v.  Allen 388 

r.  Baker 343 

v.  Bayer 462 

v.  Boyd 282 

r.  Burr   43 

r.  Bush 813 

v.  Busse   537 

v.  Clark 158,  415 

v.  Collier   528,  538 

v.  Connecticut  Peat  Co.   .  .  .   285 

v.  Dales 45 

v.  Davidson 787 


PAGE. 

Clark  v.  Des  Moines 146 

v.  Eckstein 873 

v.  Fairfield 346 

v.  Fey 823 

v.  Fisk 262,  274 

i\  Fosdick 415 

v.  Franklin 538 

i\  Gilbert 548 

v.  Girdwood 642 

v.  Guest 173 

r.  Hart 577 

r.  Henry 630 

v.  Howard 258 

r.  Insurance  Co 659 

v.  Jones 170 

f.  Lillie 572 

— — -  v.  Lopez 750 

v.  McCleery    335 

v.  McMahon 794 

v.  Malpas 750 

v.  Manchester 337 

■  v.  Marsiglia 349 

r.  Mayor 337 

i'.  National  Benefit  Co 360 

v.  Needham 468 

r.  Northampton 147 

v.  Pease 730 

v.  Pendleton 172,  176 

v.  Ralls 691 

r.  Reeder 693 

i\  Russell 214 

■  r.  Shehan 786 

•  v.  Stanhope 470 

v.  Tanner   508 

v.  Tate 68 

(-.  Terry 789 

v.  Turnbull 729 

r.  Valentino 91 

V.  Van  Court 69 

Clark's  Appeal    193 

Clarke  v.  Birley   384 

r.  Cobley 84 

r.  Cuckfield  Union   164 

r.  Dickson 713,  714 

r.  Dinsmore 832 

r.  Dunraven  (Earl  of )  .  .  .  6,  26 

r.  Dutcher 579 

r.  Foss 409 

■  v.  Grant , 312 

v.  Hawkins 832 

v.  Hogeman 281 

v.  Insurance  Co 399 

t'.  Lincoln  Lumber  Co 400 

v.  McFarland's  Exec.  . '.  249,  253 

!».  Reins 664,  666 

v.  White 378 

Clarkson  v.  Edge 478 

Clarksville  Land  Co.  v.  Harriman.  559 

Clawson  v.  Gustin   861 

Clay  v.  Allen  408,  409 

v.  Freeman 775 


TABLE    OF    CASES. 


xliii 


PAGE. 
Clay  v.  Powell 469 

17.  Ray 491,  492 

v.  Van  Winkle 892 

v.  Woodrum 272 

v.  Yates 337,  341 

Clayton  v .  Adams  88 

v.  Clark 211 

v.  Corby 303 

v.  Freet 577,  639 

v.  Merrett 106 

17.  Rose 88 

Clearwater  v.  Meredith 549 

Cleary  v.  Sohier 537 

Cleaveland  ;>.  Richardson 683 

Cleaver  17.  Burcky 275 

v.  Mut.   Reserve   Fund   Life 

Assoc 243,  252 

Cleaves  v.  Stockwell 596 

Cleere  v.  Cleere 737 

Clegg  17.  Clegg 447 

I?.  Hands 299 

Clem  v.  Railroad  Co 688 

Clement  17.  Mattison 98 

Clement's  Appeal 171,  378,  491 

Clements    v.    L.    &    N.    W.    Ry. 

Co 60,     75 

i'.  Clements  v.  Moore 365 

Clementson  v.  Blessig 427 

Clendenning  17.  Hawks 388 

v.  Wyatt 459 

Cleve  C'.  Financial  Corporation.  .  .    195 

Cleveland  r.  Williams 106 

Cleveland  Rolling  Mill  r.  Rhodes.  331 

360,  629 

Cleves  v.  Willoughby 673 

Clews  17.  Jamieson 408,  409 

Clifford  v.  Hunt   429 

t\  Watts  ....  519,  520,  541,  542 

Clifton  v.  Litchfield 832 

Clinan  v.  Cooke 635 

Clinch  v.  Financial  Corporation.  .   725 

Cline  17.  Goodale 852,  854 

Cline  r.  Guthrie 585 

17.  Hovey 634 

v.  Templeton 215 

Clinton  r.  Fly 595 

f.  Strong 731 

Clinton  Bank  17.  Studemann .  .  245,  257 

Clippenger  17.  Hepbaugh   436 

Clitherall  v.   Ogilvie 753 

Clitheroe  v.  Simpson 243 

Clive  v.  Beaumont 45 

Clodfelter  v.  Cox 281,  285 

v.  Hulett 257,  688 

Clopton  v.  Bolton 324 

Close  v.  Close,   385 

v.  Crossland 608 

Clough  v.  Adams  750 

v.  Hosford 335 

■  v.  L.  &  N.  W.  Ry.  Co 679 

698,  708,  710,  711,  713,  724 


PAGE. 

Clough  17.  Seay 870 

Clover  v.  Gottlieb 337,  343 

Clow  v.  Borst 842 

r.  Derby  Coal  Co 385 

Clowes  i>.  Higginson 311,  601,  635 

Clubb  v.  Hutson 442 

Clugas  v.  Penaluna    433 

Clute  v.  Small 870 

Clyne  v.  Helmes 673 

Coaks  v.  Boswell 670,  671 

Coale  v.  Merryman  638 

Coates  v.  Collins 617 

r.  Cook 620 

17.  Early 584 

Coats  v.  Gordon 87 

Cobb  v.  Charter 731 

v.  Cole 610 

v.  Fishel 261,  265 

v.  Foree 40 

v.  Hall 786 

v.  Hatfield 709 

t*.  Heron 256,  273 

r.  Knapp 116 

17.  Tirrell  378 

Cobbett  v.  Brock 735,  768,  769 

Coburn  r.  Raymond 101 

Cochran  i\  Atchison   292 

r.  Baker 119 

r.  Nebeker 865,  866 

r.  People's  Ry.  Co 528 

v.  Perry 595 

r.  Stewart 294 

v.  Tatum 346 

■  r.  Ward 782,  784 

Cochrane  v.  Willis 614,  615 

Cock  v.  Moore 258 

r.  Richards 465 

Cockcroft  v.  Muller   335 

Cockell  v.  Taylor 749 

Cocker's  Case 228 

Cocking  v.  Ward 788 

Cockrell  v.  Thompson 409 

Cocks  17.  Varney 258,  276 

Codding  !-.  Munson 122 

Coe  v.  Hobby 827 

Coe  v.  Smith 548 

Coffee  v.  Ruffin   749 

Coffey  v.  Commonwealth 14 

Coffin  17.  Adams 260 

t\  Bradbury  257 

17.  Portland    37 

Coffman  17.  Bank  748 

v.  Harrison    119 

Cogan  v.  Duffield 643 

Cogley  17.  Cushman 67,     69 

Cohen  v.  Berlin  Envelope  Co 468 

v.  Insurance  Co 429 

v.  Kittell    499 

Cohn  17.  Heimbauch 488 

v.  Plumer 48 

Cohrt  17.  Kock  274 


xliv 


TABLE    OF    CASES. 


PAQE. 
Coit  v.  Houston  832 

v.  N.  C.  Gold  Amalgamating 

Co 720 

v.  Schwartz 653 

v.  Starkweather 860 

Colborne     and     Strawbridge,     Ea> 

parte 288 

Colcord  v.  Fletcher 880 

Cold  Blast  Co.  v.  Kansas  City  Co.  197 

Coldcleugh  t\  Johnson 775 

Coldcot  r.  Hill   625 

Cole  v.  Clark 11 

i\  Cole 98,  266 

v,  Getzinger 750 

17.  Gibbons 756 

v.  Gibson 464 

v.  Hawes 624 

17.  Hills 854,  863,  874 

v.  Joliet  Opera  House  Co.      725 

v.  O'NeUl 393 

v.  Pennoyer 66 

v.  Savage 275 

v.  Saxby 52 

Cole's  Lessee  v.  Pennington 864 

Coleman  v.  Applegarth ...   28,  33,     35 

v.  Bank 112 

v.  Billings    451 

v.  Frazer 99 

v.  Grubb 573 

17.  Hatcher 245 

v.  Hiler 249,  251,  252 

17.  Rowe 324 

v.  United  States 11 

17.  Waller 380 

v.  Wooley's  Exr 889 

Coleman's  Est 735 

Coles  v.  Bowne   605,  640 

v.  Clark 565 

4?.  Pilkington 186,  917 

v.  Trecothick 754 

17.  Yorks 851,  866 

Colgan  v.  Jones 453 

Collamer  v.  Day  406 

College  v.  Wilkinson 99,  102 

College  Mill  v.  Fidler 19 

Collen  17.  Wright 119 

Collet  v.  Jaques 847 

Collier  v.  Baptist  Soc 187 

v.  Brown 753 

Collins  v.  Ball 873 

17.  Blantern 442,     493 

v.  Bradbury 292 

v.  Delaporte 349 

v.  Fowler 388 

v.  Goldsmith 88 

v.  Locke 448,  473 

— —  17.  Martin 11 

v.  Murrell 483 

v.  Prosser 857,  863 

v.  Ralli 719 

v.  Westbury 728 


PAGE. 

Collyer  v.  Fallon  439 

».  Moulton 349,  816,  818 

Colman  v.  E.  C.  Ry.  Co 897 

Coloma  v.  Eaves  137 

Colorado  Springs  Co.  v.  American 

Pub.  Co 140 

Colson  v.  Arnot  292 

Colson  v.  Meyers   501,  502 

Colt  17.  McConnell    193 

Columbia  Bank  v.  Holdeman 502 

Columbia  Carriage  Co.  v.  Hatch.  483 
Columbia    Wire    Co.    v.    Freeman 

Wire  Co.  .  : 197 

Columbia  Iron  Works  v.  Douglas.  608 

653 
Columbus,  etc.,  Ry.  Co.  17.  Gaffney.     12 

Colyear  v.  Mulgrave 234 

Comer  v.  Thompson 879,  880 

Comes  v.  Lamson  178,  789 

Comfort  v.  Betts 279 

Comley  v.  Dazian   240 

Comly  17.  Hillegass   405 

Commercial  Bank  v.  Patterson...  864 
Commercial  Bank  v.  Pirie 716 

17.  Wood.  .258,  259,  261,  264,  273 

Commercial  Ins.  Co.  17.  Hallock  .  .  39 
Commercial  Tel.  Co.  v.  Smith ...  46 
Commercial    Union    Ass.     Co.    17. 

Hocking 449 

Commings  v.  Heard 877 

Commissioners  v.  Aspinwall 137 

17.  Bolles 137 

17.  Emigrant  Bank   866 

17.  January 137 

i',  Vandyke 495 

v.  Young 524,  526 

Commissioners  of  Guilford  Co.  v. 

March 411' 

Commissioners  of  Sewers  17.  Reg.  536 
Commonwealth  v.  Aves 510 

r.  Bassford 507,  508 

17.  Central   Bridge   Co 131 

17.  Cooper 389 

i;.  Gabbert's  Admr 383 

17.  Holmes 383 

v.  Kennedy 486 

■  v.  Lane 306,  509 

17.  Leeds 596 

17.  Munson 158 

17.  Overby 557 

17.  Peaslee 486 

v.  Pulaski  Co 130 

17.  Railroad  Co 130,  131 

•  17.  Savings  Bank   137 

v.  Sides 284 

17.  Terry 557 

t'.  Vandyke 205 

r.  Webster 557 

v.  Williamstown   146 

Commonwealth  Ins.  Co.  17.  Knabe.  886 
Companies'  Acts,  Re   526 


TABLE    OF    CASES. 


xlv 


PAGE. 

Compton  v.  Martin 177 

G'omstock,  Be 87 

Comstock  v.  Adams 444 

v.  Herron 650 

r.  Howd 187 

v.  Price .336 

r.  Smith 275,  874 

Conable  v.  Keeney 856 

v.  Smith 856 

Conant  v.  Alvord 119 

r.  B.  F.  Canal  Co 147 

Conary  v.  Sawyer 63 

Conboy  v.  Howe   77 

Condiet  v.  Flower 853 

v.  Blackwell 743 

Condon  v.  Barr 200 

v.  Walker 402 

Cone  v.  Russell 376,  377,  439 

Confederate  Note  Case,  The 431 

Congdon  v.  Darey 46 

Conger  v.  James 880 

Congregational  Soc.  v.  Flagg.  246,  258 

v.  Perry 187 

Congress  Spring  Co.  v.  Knowlton.  495 
Coniers  and  Holland's  Case   ....   817 

Conine  v.  Railroad  Co 160 

Conkey   v.    Bond    388 

Conklin   v.    Conway    501 

v.  Smith 257 

Conkling   v..   Tuttle    204 

Conlan  v.  Roemer   690,  692,  713 

Conley  v.   Nailor    736 

v.  Palmer 515 

Conn   v.    Coburn    80 

Connecticut  Ins.  Co.  v.  Chase  .  . .   661 

t\  Hamilton 448 

v.  Jones    870 

v.  United  States 532 

v.  Way 452 

Connecticut    Mut.    L.    I.    Co.    v. 

Knapp 272 

v.  Mayer    264 

Connecticut  River  Lumber  Co.  v. 

Brown 839 

Connell  v.   Kitchens    399 

Connelly  v.  Devoe    550 

Conner  v.  Canter 438,  439 

v.  Drake 446 

v.  Fitzgerald 790 

v.  Fleshman 874 

v.  Sharpe 872 

Connolly  v.  Branstler 88 

-v.  Union  Pipe  Co 490 

Connor  v.  Black   408,  502 

V.  Jones    282 

v.  Simpson 880 

v.  Stanley 746,  747 

Conover  v.  Hobart 275 

v.  Stillwell 204 

Conquest's  Case   227 


PAGE. 

Conrad  v.  Lane   82 

v.  Schwamb 666 

v.  Williams   465 

Conroe  r.  Birdsall  82 

Conrow  v.  Little    708' 

Consaul    r.    Sheldon    852 

Consolidated  Co.  v.  Curtis    565 

Consolidated      Exploration      and 

Finance  Co.  r.  Musgrave 443 

Consolidated  Milling  Co.  v.  Fogo .  679 
Constable  v.   National   Steamship 

Co 250,  259,  277 

Consumer's  Ice  Co.  r,  Jennings .  . .  852 
Continental    Nat.    Bank    v.    Mc- 

Geoch   380 

Continental   Trust   Co.   v.   Toledo, 

etc.,    Ry.    Co 390 

Converse  v.  Michigan  Dairy  Co.   .  299 

Conway  r.   Cutting    281 

17.  Garden  City  Co 470 

v.  Gore 634 

Conway's  Exrs.  v.  Alexander 631 

Conyers,  Admr.  of,  r.  Magrath. ...  114 

Coody  v.  Gress  Lumber  Co 173 

Coogan  v.  Parker   531,  534 

Cook  v.  Anderson    531 

-v.  Andrews 541 

v.  Berlin  W.  M.  Co 390 

r.  Berrott 258 

v.  Bradley 199 

c.  Casler 34 

v.  Coxwell   872 

v.  Doggett 787 

r.  Field 459 

v.  Lister 295,  593 

i'.  Liston 639 

v.  McCabe 528 

v.  Morris    876 

v.  Preston   634 

r.  Sherman    500 

v.  South  Columbia  Co 389 

— — ■  v.  Tullis 121 

v.  Walker 643 

Cooke  v.  Cooke    446,  458 

v.  Eshelby   115 

v.  Lamotte 737 

v.  Murphy , 204 

v.  Nathan 689 

v.  Oxley    27,  31,  34 

v.  Pool 452 

Cooksey  i".  Kansas  City,  etc.,  R. 

Co 876 

Cool  v.  Cunningham   197 

Cooley  v.  Lobdell    790 

v.  Steele 88 

Coolidge  t'.  Payson  25 

-v.  Rhodes 690 

Coombes  v.  Chandler   294 

-  v.  Dibble 912 

Coombs  v.  Emery 402 

v.  Gorden 567 


xlvi 


TABLE    OF    CASES. 


PAGE. 

Coombs  v.  Railway  Co 782 

v.  Wilkes   179 

Coon  v.   Rigden    180 

Cooney  v.  Lincoln   102,  104 

Cooper  <i;.  Altimus   22 

v.  Austin   175 

v.  Commonwealth 590 

'V.  Cooper   .    11 

v.  Evans 662 

.».  Foss   261 

v.  Gum   335 

v.  Hornsby 786 

r.  Insurance   Co 639 

v.  Joel 662 

v.  Johnson 878 

<r.  Lansing  Wheel  Co 197 

v.  Lee   736 

v.  Lovering 690,  692 

v.  Parker 838 

v.  Phibbs 564,  576,  579,  615 

616 

v.  Simmons 74,  79,  596 

v.  State 81 

v.  Vesey 568,  593 

• ■  v.  Yazoo,  etc.,  R.  Co 839 

Coors  v.  German  Bank   291 

Coover  v.  Davenport 120,  495 

Cope  v.  Parry   241 

— —  t\  Rowlands 400 

■  v.  Thames   Haven,   etc.,   Co.  165 

Copeland  v,  Boaz   444 

r.  Insurance    Co 388 

V.  Manton    281 

■  v.  Wading  River  Co 879 

Copenrath  v.  Kienby  101 

Copes  v.  Matthews 112 

Copley  v.  Grover  S.  M.  Co 130 

Coppell  v.   Hall    497 

Copper  v.  Mayor    145 

Copper    Miners     of     England     v. 

Fox   163 

Coppock  v.  Bower   444,  493 

Coquillard  v.  Bearss    451 

Corbett  v.  Cochran    170 

v.  Lucas 821 

■ r.  Underwood 408 

v.  Waterman 261,  264 

Corbin  v.   Wachhorst    486 

Corbyn  v.  Brokmeyer    215 

Corcoran  v.  Corcoran 444 

v.  Doll   873 

v.  Lehigh  Coal  Co 408 

■  r.  While 44 

Cordes  v.  Miller    514,  529 

Cordingley   v.   Cheesebrough    ....  665 

Corey  v.  Powers    246,  258 

Cork    and    Bandon    Ry.    Co.    v. 

Cazenove      73 

Cork  and  Youghal  Ry.  Co.  Re  .  .  .   400 
Corley  r.  Lord  Stafford  ....   391,  642 

v.  Williams   442 


PAGE. 

Corn  r.  Matthews 62,     75 

Corn     Exch.     Bank     v.     Nassau 

Bank 292 

Cornell   v.  Cornell   551 

v.  Crane 695 

v.  Hall   631 

v.  Hichens   292 

Cornelson  v.  Insurance  Co 14 

Corner  v.  Mackey   258,  266 

■  r.  Sweet   814 

Cornfoot  v.  Fowke    700 

Cornford  v.  Carlton  Bank 130 

Corning  v.  Abbott   402 

r.  Burton 260,  264 

Cornish  v.  Wiessman    302 

Corns  v.  Clouser   436,  488 

Cornwall  v.  Henson   340,  345 

v.  McFarland 692 

Corrigan  i".  City 532 

■  v.  Tiernay  , 636 

Cort     r.     Ambergate,     etc.,     Ry. 

Co 353,  364 

Cortelyou  i\  Hoagland   171 

Cortland  Mfg.   Co.  v.   Piatt    699 

Cory  v.  Gertcken   85 

v.  Patton   796 

Cosgrove  i".  Fanebust   874 

Costa  Rica  Ry.  Co.  r.  Forwood.  .  .   391 
Coster  v.  Albany,  Mayor  of 258 

276 

Costigan    v.   Hastier    755 

Cote,  Ex  parte   39,  571 

Cotes  V.  Bennett    261 

Cothran  v.  Ellis   406 

Cottage    Street    Church    v.    Ken- 
dall     35,  186,  187 

Cotten  v.  Williams    857 

Cotton   v.   Edwards    858 

v.  McKenzie 483 

Cottrill  v.  Krum   695 

Couchman's  Admr.  v.  Couchman  .   735 
Coughlin  i\  Knowles   786 

v.  Railroad   Co 451 

Coulson  v.  Allison   735 

Coulter  r.  Clark  692 

■  v.  Robinson   491 

County    of    Gloucester    Bank    v. 

Rudry  Merthyr,  etc.,  Co 899 

County  Life  Assurance  Co.  Re  .  .  898 

County  of  Macon  v.  Shores    ....  144 

Courcamp  v.  Weber 873  • 

Coursolle  v.  Weyerhauser   ...   66,  174 

Courtenay  v.  Williams   776 

Courtis  c.  Cane    565 

Courtright  i .  Burns    452 

v.  Courtright 577 

Coutts    v.   Aeworth    768 

Courturier  v.  Hastie   .  .   540,  612,  915 

Covell   r.   Bostwick    194 

Coventry  r.   Barton   495 

Cover   v.  McLaughlin    346 


TABLE    OF    CASES. 


xlvii 


PAGE. 

Coverdale  p.  Eastwood  918 

Coverly    v.    Terminal    Warehouse 

Co 470 

Covington  v.  Threadgill 399,  400 

402,  483 
Cowan  P.  Baird   662 

v.  Fairbrother 468 

f.  Milbourn  .  372,  420,  488,  489 

911 

r.  O'Connor 36 

Coward  v.  Hughes    580,  759 

Coward     and     Adam's     Purchase 

Re   94 

Cowasjee   Manabhoy  v.   Lallbhoy 

Vullubhoy   544 

Cowdin  r.  Gottgetreu 170 

Cowdrey   p.   Vandenburgh    294 

Cowdry  v.  Day 630 

Cowee  v.  Cornell    193,  737,  738 

Cowell  r.  Lumloy 531 

Cowen  P.  Truefitt,  Ltd 317 

Cowing  v.  Cloud 292 

Cowles   v.  Morgan    889 

V.  Raguet 488 

Cowles  Electric  Co.  v.  Lowrey  . . .   622 

Cowley  v.   Smyth   692 

Cox  v.  Alexander 867 

r.  Britt 622 

v.  Haun 388 

p.  Hoxie 275 

v.  Jagger 879 

v.  McLaughlin 332,  352 

v.  Montgomery 723 

p.  Prentice    610,  621 

v.  Railroad  Co 54,  383 

Cox  Shoe-Co.  p.  Adams 717 

Coxhead  P.  Mullis 70 

Coy  p.  Downie 531 

Coyle  P.  Baum 341 

Coyner  v.  Lynde 204 

Crabill  v.  Marsh 790 

Crabtree  P.  Kile 607 

r.  May 64 

t\  Messersmith 361 

Craft  v.  Kendrick 170 

p.  McConoughy 468,  500 

Craft's  Appeal 291 

Craftsbury  v.  Hill 879 

Cragie  P.  Hadley 701 

Cragin  v.  Lovell 110,  277 

Cragoe  v.  Jones 383 

Craig  P.  Butler 531 

v.  Dimock 798 

v.  Harper 27 

p.  Kittredge 634 

v.  Lowe 870 

p.  Town  of  Andes 137 

v.  Van  Bebber 68 

Craighead  v.  McLoney 805 


PAGE. 

Cram  p.  Cottrell 199 

Cramer  v.  Hanaford 890 

p.  Lepper   , 275 

Crampton  v.  Ballard 250 

v.  Ridley 803 

v.  Varna  Ry.  Co 166 

Crandall  p.  Auburn  Bank 858 

v.  Willig 28,  217 

Crane  v.  Crane  685 

V.  C.  Crane  &  Co 197 

V.  Wheeler ' 171 

v.  Wilson 629 

Cranmer  v.  Porter   850 

Cranson  v.  Cranson  .  . '. 395 

V.  Goss 495 

Cra?s  v.  Cruggs 831 

Cravens  v.  Booth 88 

Craver  v.  Hornburg 608 

Crawford  v.  Berry 880 

v.  Edison 170 

v.  Edwards 260,  263,  275 

v.  Insurance  Co 55,  428 

•  v.  Longstreet 140,  161 

v.  Mail  &  Express  Co 52 

v.  Millspaugh 816,  821 

■  v.  Osmun 505 

■  p.  Rohrer 719 

v.  Russell 464 

■  r.  Seovell 102 

v.  Spencer 406,  409 

v.  West  Side  Bank 861,  871 

v.  Wick 409 

v.  Witherbee 301 

Crawshaw  v.  Roxbury 23 

Crayton  v.  Clark   286 

Cream  City  Co.  v.  Friedlander.  .  .  108 

Crears  v.  Hunter 213 

Creed -p.  Henderson   186 

Creekmore  v.  Chitwood 402 

Creesy  v.  Willis 260 

Creigh's  Aumr.  v.  Boggs 664 

Creighton  p.  Gregory 840 

Crescent  Co.  v.  Bear   500 

Cresinger  P.  Welch 63,  68,  69 

Cress  p.  Blodgett 261,  273 

Cresswell  v.  McCaig 736 

v.  Martindale 332 

Cribben  v.  Deal 855,  856 

Cribbins  v.  Markwood 757 

Cribbs  p.  Sowle 729 

Crim  v.  Fitch   170 

Cripps  v.  Hartnoll 170,  171 

Criss  v.  Criss  774 

Crisup  v.  Grosslight 441 

Critcher  v.  Holloway 487 

Crocker  p.  Arey 780 

•  v.  Bellange 456 

v.  Higgins 259 

p.  Manley   691 

v.  Railroad  Co 16,  27 


xlviii 


TABLE    OF    CASES. 


PAGE. 

Crockett  v.  Doriot 890 

•  c.  Thomason 859 

Croft  v.  Graham  759 

v.  White 853 

Crofts  r.  Middleton 398 

Crolley  v.  Railway  Co 141 

Cromwell  v.  Wilkinson..  341,  342,  629 

Crone  v.  Stinde 249,  251,  265 

Cronin  v.  Watkins 298 

Croninger  r.  Crocker 605 

v.  Paige 608 

Cronk  v.  Cole  691 

Cronkhite  v.  Nebeker  868 

Croockewit  v.  Fletcher 873 

Crook  v.  Corporation  of  Seaford.  .    147 

Crooker  v.  Holmes   52 

Crooks  v.  Crooks 218 

r.  Nippolt 708 

Crookshank  v.  Rose   807 

Cropton  v.  Davies 317 

Crosby  v.  Meeks   703 

v.  Wadsworth 783 

Cross  v.  Brown  295 

v.  Button 531 

.  v.  Cross 444 

v.  Powell 843 

v.  State  Bank 855 

r.  Truesdale 257 

Crossley  v.  Conn.  Ins.  Co 448 

v.  Maycock 44 

v.  Moore 378,  504 

v.  Stanley 661 

Crossman  v.  Lurman 878 

v.  Universal  Rubber  Co....   707 

v.  Wohlleben 205 

Croswell  v.  Labree    854 

Crouch  v.  Credit  Foncier  of  Eng- 
land   288,  293,  294 

Crow  v.  Kimball  Lumber  Co 831 

r.  Lewis 272 

v.  Robinson '. 285 

V.  Rogers 244 

Crowell  c.  Currier   263,  274,  276 

v.  Hospital  of  St.  Barnabas.  274 

v.  Jackson      683 

Crowley  r.  Genesee  Mining  Co.  .  ..  161 

v.  Langdon 690 

Crown  Cycle  Co.  v.  Brown 707 

Crown  Point  Iron  Co.  v.  iEtna  Ins. 

Co 40 

Crowther  v.  Farrer 830 

Croyle  v.  Moses 681 

Crozier,  Re 260 

v.  Shants 283 

Crum  r.  Sawyer 814 

Crumbaugh  v.  Kugler 258 

Crumlish's  Admr.  v.  Central  Imp. 

Co 841 

Crump  v.  Morgan   98 

v.  U  S.  Mining  Co.  675,  700,  701 


PAGE. 

Crutcher  v.  Trabue 384 

Crutehfield  v.  Donathon 788 

Cueullu  v.  Walker 257,  274 

Cudney  v.  Cudney 736 

Cuff  v.  Penn 823 

Culbreath  v.  Culbreath 579 

Cullen  e.  Bimm 652 

v.  Thomson's    Trustees    and 

Kerr 703 

Culmer  v.  American  Co 285 

Culp  v.  Love 468 

Culver  v.  Banning 187 

Cumber  v.  Wane   211,  838 

Cumberland  Assoc,  v.  Gibbs..  385,  661 

Cumberland  Bank  v.  Penniman.  .  .  859 

Cummer  v.  Butts 49 

Cumming  v.  Ince  730 

Cumming's  Appeal   193 

Cummings  v.  Arnold 821,  823 

v.  Bramhall 776 

v.  Gann 13,  23 

v.  Little 386 

v.  Union  Stone  Co 468 

Cundy  r.  Lindsay   592,  718 

Cunningham  v.  Barnes 463 

v.  Carpenter 283 

v.  Dunn 530 

v.  Jones 453 

v.  Munroe 731 

v.  Neeld 179 

v.  Williams 180,  850 

Cuno,  Be,  Mansfield  v.  Mansfield.  95 

Curlewis  v.  Clark 838 

Curley  v.  Dean 878 

Curran  v.  Curran 789 

v.  Downs 402 

Currie  v.  Goold 581 

v.  Misa 185 

Curry  v.   Curry  11 

t>.  Rogers 250,  255 

Curtin  v.  Patton 82 

Curtis  v.  Albee 563,  639 

v.  Aspinwall 684 

v.  Blair 174 

v.  Curtis 459,  814 

v.  Gibney 332 

■  v.  Gokey 375 

v.  La  Grande  Water  Works.  791 

v.  Lakin 723 

v.  Leavitt 140 

i\  McDougal 69 

v.  Sage 177 

v.  Smith 550 

v.  Tyler 262 

v.  Van  Bergh 633 

v.  Williamson 116 

Curzon  v.  Belworthy 765 

Cushing  v.  Field  859' 

v.  Rice 112 

Cushman  i;.  Insurance  Co 658 


TABLE    OF    CASES. 


xlix 


PAGE. 

Cuthbertson's  Appeal 734 

Cutler  v.  Gilbreth 608 

v.  Haven 282 

v.  Pope 173 

v.  Rose 85 1 

v.  Welsh 487 

Cutter  v.  Cook 295 

v.  Gillette 363 

v.  Powell    327 

Cutts  i\  Guild 599 

v.  United  States 854 

v.  Ward   913 

Cuxon  v.  Chadley 240 

D. 

D.  C.  v.  Gallagher 318 

Da  Costa  v.  Davis 552 

v.  Jones 425 

Daere  v.  Gorges  600 

Dadirrian  v.  Yacubian  419 

Dady  v.  Condit  693 

Dagenham  Dock  Co.,  Re 632 

Daggett  r.  Flanagan 284 

v.  Johnson  51 

Dailey  v.  Cohen  798 

r.  Hollis 470 

v.  King 214 

Daily  v.  Minnick 193,  195,  200 

Dakota,  etc.,  Co.  v.  Price 335 

Dale,  Be 548 

v.  Hamilton  174,  791 

v.  Robinson 891 

Daley  v.  Peoples'  Assoc 346,  352 

Dallas  v.  Heard  891 

Dally  v.  Wonham 743 

Dalrymple  v.  Scott. 348,  360,  367,  368 
Dalton  v.  Angus 304 

v.  Gib 78 

i\  Midland  Ry.  Co 83 

v.  Thurston 679 

Dambmann  r  Schulting 683 

Dame  v.  Baldwin 567 

Damron  y.  Comm 82 

Dana  v.  Hancock  823 

v.  Stearns 63 

Danby  v.   Coutts   815 

Danforth  r.  Culver 777 

v.  Walker   349 

Dangel  v.  Levy 873 

Dangler  v.  Baker 699 

Daniel  v.  Bowles  495 

v.  Daniel 872 

v.  Frazer 782 

v.  Hill 736 

v.  Mason 88 

v.  Robinson  ,   170 

Daniel's  Settlement  317 

Daniell  v.  Sinclair 576,  579 

Daniels  v.  Benedict.  92,  414,  415,  735 

t\  Gibson  v 170 

v.  Hallenbeck S42 

v.  Johnson 261,  267,  631 

iv 


PAGE. 

Daniels  v.  Newton 358,  359,  364 

Daniher  v.  Grand  Lodge  449 

Dannat  v.  Fuller 549 

Dansby  v.  Frieberg    378,  380 

Dant  v.  Head   177,  789 

Danube,  etc.,  Co.  v.  Xenos 360 

Danziger   v.  Hoyt    842 

Darby  v.  Kroell  693 

Darland  v.  Taylor  844 

Darling  r.  Cumming 182 

Darlington's  Appeal 735,  768 

Darlington  Iron  Co.  v.  Foote 3!) 

Darrell  v.  Hastings 79 

r.  Tibbitts 533,  659 

Darrow  v.  H.  R.  Home  Co..   108,  112 

Darst  v.  Gale   142 

Darwin  v.  Ripley 860 

Dashwood  r.  Jermyn 918 

Daskam  v.  Ullman 654 

Daubuz  v.  Morshead 429 

Dauglish  r.  Tennent 378 

Dauler  v.  Hartley 50 1 

Davenport  v.  Bishopp 234 

r.  First  Congregational  Soe.  210 

r.  Gentry's  Admr 596 

v-  Reg 61 

Davey  v.  Shannon 177,  479 

David  v.  Park 695 

P.  Ryan   514,  529 

Davidson  v.  Burke 211,  816 

v.  Cooper   853,  873 

v.  Greer   ; .  640 

?■  Kelly    875 

v.  Little    749,  757,  768 

Davidson's   Appeal 88 

Davie  v.  Lumbermen's  Mining  Co.     49 

50 
Davies  r.  Burns 205 

r.  Davies 65,  70,  477,  481 

v.  Fitton    637,  638 

v.  Jenkins    889 

v.  London     and     Provincial 

Marine  Ins.  Co 660,  681 

v.  Lyon   701 

v.  Makuna   801,  803 

r.  Smith   52 

v.  Stowell   460 

Davis  v.  Mtna,  Mut.  F.  Ins.  Co. . .     39 

v.  Allen   lie 

— —  v.  Arledge    495 

— —  v.  Bank    106 

v.  Bauer    857,  859 

v.  Betz 688,  706,  708,  709 

v.  Boggs    623 

v.  Bronson    349 

v.  Brown    468 

v.  Building  Union 144 

v.  Caldwell   77 

v.  Calloway    257,  260 

■  v.  Campbell    187,  852 

v.  Carlisle     853 

v.  Coburn   595 


TABLE    OF    CASES. 


PAGE. 

Davis  v.   Commonwealth 436,  451 

v.  Curtis  875 

v.  Davis    106,  407 

v.  Dean   744 

v.  Dexter   Co 226 

v.  Dudley    69 

v.  Duke  of  Marlborough ....  440 

e.  Ely   634 

v.  Eppler    860 

v.  George   673 

v.  Gerber   174 

v.  Grand  Rapids,  etc.,  Co.  .  .  361 

v.  Gray    194 

v.  Hamlin  390 

v.  Hardy  271 

v.  Hartlerode   608 

V.  Henry   865 

v.  Holbrook    502 

»  Hulett   263 

v.  Inscoe   786 

v.  Jeffris   326 

v.  Lane    100,  106 

v.  Laning 91 

v.  McFarlane    173 

r.  Meeker    692 

r.  Miller    295 

r.  Morgan    199,  204 

■ v.  Munson     205 

v.  Nat.  Bank  of  Commerce..  271 

v.  Newman  581 

v.  Noll    295 

v.  Parker   666 

v.  Patrick    171 

r.  Pryor  120,  158,  495 

r.  Railroad  Co 142,  143 

v.  Richardson    798 

v.  School   District 11 

v.  Seeley    291 

v.  Settle    452 

v.  Shafer    857 

r.  Shields     180 

c.  Smith     890,  89.3 

v.  Snyder    583 

r.  Stout   206 

i:  Strange's  Exrs 735 

r.  Stuard    721 

r.  Tarver   99 

p.  Thomas    631 

r.  Tift   170 

f .  Tingle  88 

r.  Tubbs    353 

r.  Water  Works 254 

v.  Wells    22,  35 

r.  Williams   437 

r.  Wrigley    775 

Davis,  etc..  Works  v.  McHugh ....  28 

Davison  r.  Davison   790 

v.  Von     Lingen 655 

Davisson  v.  Ford 215 

Davoue  v.  Fanning 387 


PAGE. 

Davy  v.  Bangs 409 

|  Dawe  v.  Morris 650,  689,  693 

Dawes,  Ex  parte 624 

Dawes  v.  Harness 710 

i\  Jackson    112 

Dawkins  v.  Gill 445 

v.  Sappington    14 

Dawson  v.  Burns 584 

v.  Collis   334,  342 

v,  Dawson    89 

k.  Ellis    789 

— — •  v.  Fitzgerald   448,  449 

v.  Helmes   63 

v.  State   383 

Day  v.  Caton 11 

r.  Cloe  170 

v.  Connecticut,  etc.,  Co 361 

v.  Day    639,  644 

r.  Fort  Scott  Co 689,  854 

r.  Gardner    210 

—  r.  Holmes    389 


r.  MeLea 


839 


e.  New  York  Cent.  R.  R.  Co.   170 

f.  Newman    753,  754 

v.  Patterson    261 

r.  Pool    608 

v.  Putnam  Ins.  Co 205 

ii.  Singleton    611 

v .  Vinson   59.3 

v.  Wilson    786 

Dayton  v.  Fargo  456 

—  v.  Turnpike   Co 220 

Dayton  Co.  v.  Sloan 786 

Deacon  v.   Gridley 203 

Dean  v.  Carruth 56 

v.  Driggs    293 

r.  Emerson    483 

v.  Oliver    690 

r.  Rice    385 

v.  Rose    693 

v.  Walker    265 

v.  Yates    592 

Dearborn  v.  Bowman 199,  201 

©earden  v.  Adams 67 

Dearie  v.  Hall 281 

Dearmond  v.  Dearmond 395 

Deatley's  Heirs  v.  Murphy 505 

Deaton  v.  Munroe 737,  738 

r.  Tennessee  Coal  Co 176 

Deaver  v.  Bennett 501 

De  Baun  v.  Brand 470 

De  Bebian  v.  Gola 112 

De  Beil  v.  Thomson 466,  915 

Debenham  r.  Ox 466 

De  Bolle  v.  Pennsylvania  Ins.  Co..  276 
De  Bussehe  V.  Alt.  388,  389,  392,  596 

723 

De  Camp  r.  Hamma 585 

Decan  o.  Shipper 592,  718 

Decell  v.  Lewenthal 77 


TABLE    OF    CASES. 


H 


PAGE. 

De  Chambrun  v.  Scb.ermerb.oni . . .  505 
Decker  r.  Decker 914 

r.  Fredericks    702 

Dedrick  v.  Blyker 264 

Dee  i".  Downs 171 

r.  Key  City  Ins.  Co 448 

Deere  v.  Morgan 679,  708 

Deering  r.  Chapman 483 

l\  Cunningham    434,  436 

r.  Earl  of  Winchelsea 386 

v.  Moore   212 

Deering  Co.  v.  Peugh 662 

Deering  Harvester  Co.  v.  White.  .   853 

Defenbaugh  p.  Weaver 827 

De  Francesco  r.  Barnum 75 

De  Freest  v.  Warner 778 

De  Graunm  r.  Jones 892 

De  Groff  i\  Amer.  L.  T.  Co 142 

r.  United  States 879 

De  Hoghton  v.  Money. . .  226,  453,  456 

457 

Deierling  r.  Sloop 409 

Deischer  v.  Price 644 

Deitz  v.  Insurance  Co 112 

De  Jarnett  v.  Cooper 634 

De  Jonge  v.  Hunt 45 

Delacroix  v.  Bulkley 827 

De  la  Cuesta  v.  Insurance  Co.  579,  731 

Delafleld  v.  Parish 734 

De  Lancey  v.  Finnegan 630 

Dc  Lassale  r.  Guildford.  173,  313,  533 

921 

De  la  Touche's  Settlement,  Re 623 

De  La  Vergne  Co.  v.  German  Sav. 

Inst 143 

Delavina  v.  Hill 486 

Delaware,    etc.,    Co.    v.    Common- 
wealth       131 

Delaware  County  v.  Diebold  Safe 

Co  595 

D.  &  H.  C.  Co.  r.  Penn.  Coal  Co.  448 

v.  Westchester  Bank...  238,  258 

Delaware  Navigation   Co.   v.  Rey- 

bold    4M 

Delaware,  etc.,  R.  Co.  v.  Frank .  .  .   490 

De  Leonis  v.  Walsh 502 

Delier  v.  Plymouth  Soc 405 

Dellett  v.  Kemble 791 

Dellinger  r.  Gillespie 584 

Delmas  r.  Insurance  Co 420,  431 

Delone  v.  Hull 707 

De  Longuemere  v.  Insurance  Co . .  657 

De  Lovenzo  v.  Hughes 839 

Delp  r.  Brewing  Co 258,  259,  266 

De  Malarin  v.  United  States 855 

Demars  r.  Musser-Santry  Co 214 

De  Martin  t'.  Phelan 630 

De  Mattos  v.  Gibson 298 

Demeritt  r.  Bickford 171 

Deming  r.  Darling 690  694 

v.  State 503 


PAGE. 

De  Montague  v.  Bacharach 343 

Dempsey  t:  Harm 498 

v.  Lawson    337 

Den  v.  Wright 853 

Dendy  v.  Henderson 478 

De  Nicholls  v.  Saunders 594 

De  Nicols,  Re 174 

Denio  v.    State 382 

Denison  v.  Denison 158 

Denman  v.  Bayless 879 

v.  MeMahin 820,  844 

Denn  v.  Wilford 624 

Dennehy  v.  McNulta 490 

Dennett  v.  Atherton 304 

v.  Dennett    104 

v.  Lamson   813 

Denney  v.  Johnson 431 

v.  Wheelwright    52 

Dennis  v.  Jones 709 

v.  Northern  Pac.  Co 634 

Denny  p.  Hancock 602 

v.  Williams    782 

Densmore  Oil  Co.  v.  Densmore, . .   389 

674,  676 

Dent  v.  Bennett 735,  737,  746 

1  v.   Ferguson  496 

v.   Long  769 

Denton  i>.  English 413 

V.  G.  N.  Ry.  Co 15,     19 

i\  Peters   291 

Denver,  etc.,  Co.  v.  Stout 448 

Denver,  etc.,  R.  R.  Co.  v.  Riley. .  .   448 

De  Pauw  v.  Bank 867,  868 

De  Perez  r.  Everett 699 

De  Peyster  v.  Hasbrouck 634 

Deposit  Bank  r.  Hearne 661 

Deposit   Life   Assur.    Co.    v.   Ays- 
cough  710 

Derby  v.  Johnson 337,  349,  550 

v.  Phelps   172,  178 

v.  Thrall    863 

Dermott  v.  Jones 528 

Derocher  v.  Continental  Mills ....      67 

Derr  r.  Keaough 868 

Derry  r.  Duchess  of  Mazarine.  ...      91 

v.  Peek 647,  677,  683,  684 

Des  Farges  v.  Pugh 679 

Deshon  i\   Fosdick 43 

r.  Wood  794 

Desilver,  Estate  of 101 

Des  Moines  Univ.  v.  Livingston.  .    186 

De  Sobry  v.  De  Laistre 511 

Detroit  Bank  v.  Blodgett 729 

Dettra  v.  Kestner 716 

Deutsch  r.  Pratt 572,  604 

Deux  v.  Jefferies 836 

Devecmon  v.  Shaw 9,  196,  216 

Devendorf  r.  W.  Va.  Oil,  etc.,  Co.  110 

Devers  r.  Howard   249,  251,  253 

Devine  r.  Edwards 575,  610 

v.  Harkness    470 


lii 


TABLE    OF    CASES. 


PAGE. 

Devine  v.  State 557 

Devlin  v.  Mayor 595 

Devoe  v.  Brandt 679,  717 

Devonshire's   (Earl  of)    Case 153 

Dew    r.    Parsons 731,  732 

De  Wahl  v.  Braune 91,  104 

Dewees  v.  Miller 406 

Deweese  v.  Cheek 832 

v.  Muff 106 

Dewey  v.  Merritt 873 

— — ■  v.  Union  School  Dist 552 

De  Witt  v.  Berry 652 

v.  Railway  Co 30 

v.  Walton 110 

De  Witt  Co.  r.  New  Jersey  Co. . .  468 

De  Wolf  v.  French 52 

Dews  v.  Olwill 285 

De  Wfitz  r.  Hendricks 430 

Dexter   v.   Edmands 780 

v.  Hall 43,  100,  101 

v.  McCellan 390 

v.  Norton 534,  559 

v.  Young 879 

Dey  r.  Martin 383 

Dial  v.  Crain 822 

Diamond  v.  Harris 531 

Diamond  Match  Co.  v.  Roeber.  . .  426 

468,  478 

Dibbins  v.  Dibbins 107 

Dibble  ('.  Insurance  Co 55 

Dibblee  v.   Sheldon 708 

Dick  v.  Leverich 292 

r.  Page 106 

Dickerman  e  Miner 863 

v.  Northern  Trust  Co 490 

v.  Mays 787 

Dickey,  Succession  of 801 

v.  Linscott 545 

Dickinson,  Ex  parte 508 

v.  Burrell 456 

• v.  Calahan    543 

•  v.  Dodds  ...   27,  28,  32,  34,  42 

v.  Gay 620 

v.  Seaver     456 

i'.  Valpy 145 

Dickie  v.  Nashville  Abstract  Co .  .  700 

Dickson  v.  Bamberger 856 

v.  Kittson 439 

v.  Miller   893 

v.  Patterson   709 

v.  Reuter's  Telegram  Co 233 

v.  Swansea  Vale  Ry.  Co.  .  .  .  288 

Dickson's  Exr.  r.  Thomas...   406,  407 
Dickson    Mfg.    Co.    v.    American 

Locomotive  Co 449 

Diddle   v.  Needham 789 

Diem   r.    Koblitz. .  .323,  335,  355,  361 

571 

Dietrich  r.  Hoefelmeir 177 

Dietz,    Re 380 


PAGE. 

Dietz's  Assignee  v.   Sutcliffe 707 

Diffenderfer  v.  Scott 195 

Diggle  v.  Higgs 406,  501,  912 

v.    London    and    Blackwall 

Ry.  Co 162 

Diggs  v.  Denny 679 

Di  Iorio  r.  Di  Brasio 215 

Dikeman  v.  Arnold 346 

Dilks  v.  Hammond 87!' 

Dill  v.  Bowen 68 

Dillaby  r.  Wilcox 171 

Dillard  r.  Brenner 408 

Dillard  v.  Insurance  Co 428 

Dillaway  i>.  Alden 409 

■  v.   Peterson 264 

Dillinger's  Appeal 415 

Dillman  v.  Nadlehoffer 688 

Dillon  o.  Allen 399 

V.  Anderson 349 

t1.  Cunningham 894 

Diman  v.  Railroad  Co 639,  641 

Dimmick  r.  Register 256,  268 

Dimmock  r.  Hallett 665 

Dingeldein   v.    Third    Ave.    R.    R. 

Co 258 

Dingley  v.  Oler 360,  368 

Dinkier   v.   Potts 717 

Dinsmore  v.  Duncan 853 

v.  Stimbert    585 

v.  Tidball 661 

Dinwiddie  v.  Self 577 

Dion  f.  St.  John  Baptiste  Soc ....  406 

I  Distilled    Spirits,   The 108 

Distilling  Co.   v.  Nutt 486 

District  of   Columbia  v.   Camden 

Iron  Works 160 

v.  Gallaher 573 

Diteham  v.  Worrall 70 

Ditson  v.  Ditson 685 

Dittoe's  Adm'r  v.  Cluney's  Exrs.  .  844 

Dively  v.  Cedar  Falls 146 

Diver  v.  Friedheim 850 

Diversy  v.  Kellogg 106 

Cix  v.  Cobb 285 

Dixie   c.  Worthy 200 

Dixon,  Ex  parte 114 

t\  Bovill    29:'. 

v.  Dixon 417 

•  v.  Duke 786 

v.  Fridette      340 

r.  Olmstead 441,  488 

v.  Pace 240 

v.  Spencer   383 

v.  Wilmington   Trust   Co...   706 

Dixon  County  r.  Field 137 

Doane  r.  Chicago  City  R.  R.  .  436,  437 
— —  v.  Dunham   652 

r.   Eldridge 861 

Dobbin  r.  Cordiner 88 

v.  Hubbard 891,  893 


TABLE    OF    CASES. 


liii 


PAGE. 

Dobbins  v.  Higgins 332 

Dobell  v.  Stevens 694 

Dobson  v.  Bspie 817,  818 

Dockery   v.  McLellan 451 

Dod    v.    Edwards 812 

Dodd  v.  Bartholomew 023 

v.  Churton 529,  551 

V.  Wakeman 391 

Dodder  v.  Snyder 173 

Dodge,   Re 39 

e.  Adams 199 

v.  Hopkins 107,  174 

— — •  v.  Nat.   Exchange  Bank. . . .  258 

v.  Zimmer  173 

Dodge's  Admr.  v.  Moss 257,  274 

Doe  v.  Bingham 850 

v.  Burnham 402 

v.  Catomore    873 

v.  Hirst 845,  846,  848 

Doe  d.  Bennett  v.  Hale 804 

Doe  d.  Bryan  v.  Bancks 61 

Doe  d.  Garnons  v.  Knight 6,     55 

Doe  d.  Leach  v.  Micklem 317 

Doe  d.  Pennington  v.  Taniere. ...    166 
Doe  d.  Williams   v.   Evans... 458,  459 

Doggett  v.  Emerson 701 

Doheny  v.  Lacy 737 

Doherty  v.  Dolan 335 

v.  Hill    179 

Dolan  i?.  Rodgers..   335,  536,  53S,  559 

Dolbeer  v.  Livingston S55,  856 

Dolbier  v.  Norton 859 

Doll  v.  Crume 249,  254,  273 

v.  Noble 52 

Dollar  v.  Partington 178 

Dolson  v.  Hope 402 

Don  v.   Lippmann 781 

Donaldson  i\  Farwell 679,  712 

v.  Williams   845 

Donegal  v.  Verner 445 

Donellan  v  Read 789 

Donnell  v.  Bennett 469 

Donnelly  v.  Currie  Hardware  Co. .     40 

v.  Newbold 210 

Donnelly's   Will 735 

Donner  v.  Redenbaugh 660 

Donovan  v.  Daiber 409 

v.  Donovan    685 

v.  Ward    69 

Don  Yook  v.  Washington  Mill  Co .   258 

Dooley  v.  Jackson 502 

Doolin  v.  Ward 470 

Doolittle  p.  McCullongh 337,  728 

Doran  v.  McConlogue 738 

Dorland  v.  Mulhollan 25 

Dorr  v.  Cory 690 

r.  Fisher    608 

Dorrington  v.  Minnick 270 

Dorsey  v.  Conrad 874 

v.  Packwood   218 

Dorwin  v.  Smith 460 


PAGE. 

Doty  v.  Railroad  Co 298  301 

Dougan  v.  Macpherson 387 

Dougherty  r.  Bash 172 

v.  Catlett  822 

v.  Powe 101 

■ r.  Seymour    487 

■  v.  Sprinkle     891 

Dougherty  Bros.  v.  Central  Bank.  323 

355 

Doughten  v.  Camden  Assoc 343 

Doughty  v.  Manhattan  Brass  Co..  180 

■  v.  Savage    379,  660 

Douglas  v.  Culverwell 631 

Douglass  v.  Branch  Bank 276 

r.  Ferris 384 

v.  Matting    585 

v.  Scott    867,  872 

Dover  v.  Robinson 856 

Dow  V.  Clark 267 

V.  Harkin   336,  341,  345 

v.  Sanborn    679 

v.  Tuttle   833 

Dowagiac  Mfg.  Co.  v.  Schroeder.  .  584 

585 

Dowie  v.  Driscoll 737,  746 

Downard  v.  Hadley 391 

Downer  r.  Bank 569 

■  v.  Thompson  605 

Downes  v.  Jennings 393,  394 

Downey  v.  Riggs 345 

Downing  v.  Ringer 399 

Downs  r.  Donnelly. ' 579 

Dows  v.  Glaspel 409 

v.  Perrin   302 

v.  Swett    171 

Doyle  v.  Dixon 178 

v.  Union  Pacific  Co 673 

Draheim  r.  Evison 790 

Drake  v.  Beckham 109 

v.  Glover   88 

v.  Goree  339 

i;  Lauer    493 

v.  Siebold 402 

v.  White   552 

Draughan  v.  Bunting 171 

Draycott  v.  Harrison 97 

Dreer  v.  Pennsylvania  Co 253 

Dreifus  v.  Columbian  Co 204,  815 

Drennan  v.  Douglas 411 

Dressel  v.  Jordan 629 

Dresser  v.  Dresser 176 

r.  Norwood  108,  115 

Drew  v.  Claggett 342 

v.  Nunn 43,  100,  104,  106 

v.  Wheelihan   292 

v.  Wiswall     667 

Driefontein  Consol.  Gold  Mines  t\ 

Janson     427 

Drimmie  v.  Davies 244 

Drinkall  v.  Movius  Bank 488 


liv 


TABLE    OF    CASES. 


PAGE. 
Driscoll  v.  Carlin 565 

i'.  Winters    382 

Droege  r.  Ahrens 708 

Drude  r.  Curtis 82 

Druiff  v.  Lord  Parker.  .   312,  637,  638 

Drum  v.  Drum 853 

Drummond  v.  United  States.  .14,     23 

i.  Van    Ingen 620,  652 

Drury  r.  Foster 88,  856,  857 

v.  Young    180 

Dub6  v.  Beaudry 67 

Dublin   and   Wicklow   Ry.   Co.    r. 

Black    73 

Du  Bois  t".  Water  Works  Co 528 

Dubose  v.   Wheddon 81 

Dubowski  v.  Goldstein   479,  483 

Ducker  v.  Rapp 383 

v.  Whitson   217 

Duckett  r.  Gover 897 

Dudgeon  v.  Pembroke 489,  911 

Dudley  v.  Dudley 394,  395 

v.  Lindsey    157  j 

r.  Littlefield    174 

r.  Odom   470 

Duffy  r.  Hobson 798 

Dugan  !'.  Anderson 361 

Dugdale  v.  Lovering 11 

Duggan  v.  TJppendahl 175 

Duggar  v.  Dempsey 339 

Dugger  r.  Bocoek 431 

Duke  v.   Clark 285 

r.  Harper 451 

Duker  v.  Franz 854 

Dukes  v.  Spangler 849 

Dulany  r.  Rogers 641 

Du  Larans  r.  Railroad  Co 17 

Dulo  v.  Miller 639 

Dumont  r.  Dufore 488 

r.  Williamson    654 

Dunbar  r.  Dunbar 214 

Dunbarton  v.  Franklin 158 

Duncan  v.  Cashin 887 

v.  Central,  etc.,  R.  R.  Co .  .  .    306 

v.  Charles    - 324 

v.  Dixon     65,     70 

v.  Duncan    175 

v.  Louisville,  etc 292 

t'.  New  York  Ins.  Co 612 

- —  r.  Nil^s    119 

v.  Sylvester   :  .  .    175 

!'.  Topham    884 

Duncan's  Appeal 393 

Duncan,  Fox  &  Co.  v.  N.  and  S. 

Wales  Bank 386 

Duncklee  r.  Greenfield  Co 282 

Duncombe  r.  Richards 745 

Dundas  r.  Dutens 793 

Dundas'   Appeal 387 

Dundee  Works  ; .  Connor 751 

Dung  r.  Parker 120 

Dunham  v.  Averill 914 


PAGE. 

Dunham  v.  Griswold 729 

v.  New    Britain 524,  526 

v.  St.  Croix  Mfg.  Co 406 

Dunkin  v.  Hodge 441,  496 

Dunks  v.  Fuller 709 

Dunlop  r.  Higgins 884,  885 

Dunmore    (Countess  of)    v.  Alex- 
ander      883 

Dunn  v.  Beaman 786 

v.  Chambers   749 

v.  Drummond    501 

r.  Dunn    739,  741 

v.  Macdonald    112,  119 

v.  Record   453,  736,  741 

v.  St.  Andrew's  Church....    161 

r.  Steubing   629 

v.  West    171 

Dunnage  v.  White 750 

Dunne  r.  English   391 

Dunnigan,    Re 86 

Dunning  v.  Leavitt 272 

Dnnnock  v.  Dunnock 395 

Dunphy  r,  Ryan 174 

Dunston    v.    Imperial    Gas    Light 

Co 165 

Dunsworth  r.  Wood  Machine  Co.   346 

Dunton  v.  Brown 63,  66,     67 

v.  Dunton   196 

Duplan  Silk  Co.  r.  Spencer 768 

Duplex  Co.  v.  Garden 52 

Durant  v.  Burt 408 

v.  Crowell     568 

V.  Roberts  &  Co 113 

^uren  r.  Getchell 878 

Durfee  v.  Jones 590 

v.  O'Brien    177,  789 

Durgin  r.   Dyer 399,  402 

Durham  r.  Bischof 275 

v.  Durham    99 

r.  Insurance   Co 639 

Durham  (Earl  of)  v.  Legard.  611,  667 

Durham  Bros.  r.  Robertson 279 

Durham  Co.  v.  Guthrie 181 

Durkee  r.  Moses 486 

v.  Vermont  Cent.  R.  R.  Co..     39 

604 

Durkin  i\  Cobleigh 667 

Durnherr  v.  Rau 277 

Duryea  v.  Bliven 415 

Dusenbury  v.  Callaghan 842 

Dushane  v.  Benedict 652,  653 

Dustan  v.  McAndrew 336 

Dutch  v.  Warren 334 

Dutton  p.  Dutton 92,  414 

v.  Marsh    293 

v.  Poole    233 

!'.  Solomson   346 

v.  Thompson   739 

li.  Willner    391 

Duval  r.  Wellman 464,  503,  505 

Duvergier  r.  Fellows 492 


TABLE    OF    CASES. 


lv 


PAGE. 

Dwinel  v.  Brown 633 

Dwinnell  v.  McKibben 384 

Dwyer  v.  Mayor 530 

v.  Tulane,  etc.,  Adms 364 

Dyer  v.  Brannock 158 

v.  Hargrave..   664,  668,  693,  694 

v.  Winston    180 

Dyer's  Case,  The 471 

Dykers  v.  Townsend 108,  180 

Dykes  v.  Wyman 728,  731 

E. 
E.  C.  Dailey  Co.  v.  Clark  Can  Co . .  197 

Eadie  v.  Slimmon 747 

Eads  v.  Carondelet 46 

Eager  Co.  r.  Burke 486 

Eagle  r.  Smith 14 

Eagle  Fire  Co.  v.  Lent 63 

Eagle  Ins.  Co.,  Ex  parte 898 

Eagle  Iron  Works  v.  Des  Moines 

Ry.  Co 608 

Eagle,  etc.,  Machine  Co.  v.  Shat- 

'   tuck  171 

Eaglesfleld  v.  Marquis  of  London- 
derry       576,  598 

Eakin  v.  Shultz 265 

Eakright  v.  Torrent 337 

Earhart  v.  Holmes 744 

Earl  v.  Peck 193 

Earle  r.  Angell 43 

v.  Chace    735 

■  r.  Coburn     12 

r.  Hopwood    454 

v.  Kingscote   87 

v.  Oliver    198 

r.  Reed    81 

Early  r.  Burt 211 

v.  Mahon    809 

East  v.  Cayuga  Lake  lee  Co 197 

v.  New  Orleans  Ins.  Assoc.  271 

v.  Wood 684 

East  Lincoln  v.  Davenport 135 

East  Line  Co.  v.  Scott 176 

East  London   Waterworks    Co.   v. 

Bailey    162 

East  St.  Louis  v.  Freels 402 

Easter  r.  Railroad  Co 301 

v.  White   171 

Eastern  Advertising    Co.    v.    Mc- 

Gaw    595 

Eastern    Arkansas    Fence    Co.    v. 

Tanner    337 

Eastern  Counties      Ry.      Co.      v. 

Hawkes   902 

Eastern  Granite  Co.  V.  Heim 550 

Eastern  Township  Bank  v.  Beebe.  877 

Eastland  v.  Sparks 346 

Eastman  v.  Miller 204 

p.  Plumer    753 

v.  Wright 282 

Easton  v.  Jones 332,  354 


PAGE. 

Easton  v.  Worthington 567 

Eastwood  v.  Kenyon 170,  199 

Eatherly  v,  Eatherly 623 

Eaton  v.  Basker 167 

v.  Davidson  717 

v.  Eaton   102,  104 

v.  Fairbury    Water     Works 

Co 249,  254 

v.  Hill  83 

v.  Kegan    402 

— ■—  v.  Libbey  ". 195,  241 

v.  Littlefield    380 

v.  Winnie   695 

Eaton  Cole  and  Burnham  Co.    p. 

Avery   699 

Ebbw  Vale  Co.'s  Case 163 

Eberstein  r.  Willets 727 

Eblin  v.  Miller's  Exec 204 

Ebsworth  and  Tidy's  Contract ...    669 

Eccles.  Comrs.  v.  Merral 166 

Eckert  v.  Louis 853,  866 

D.  Pickel    869,  870 

Eckler  v.  Galbraith 52 

Eclipse  Windmill  Co.  v.  Thornton.  114 
Eddy  v.  Capron 438 

v.  Clement    528 

v.  Davis    324 

r.  Graves  827 

v.  Herrin  729 

r.  Roberts    256 

Edelman  v.  Latshaw 690,  692 

Edelmuth  v.  McGarren 487 

Eden  v.  Chaffee 170 

r.  Ridsdale,  etc.,  Co 736 

Edenfleld  v.  Canady 169 

Edgar  v.  Breck 653 

Edgcomb  v.  Dee 151,  154,  188 

Edgcombe  r.  Rodd 841 

Edge  Moor  Bridge  Works  r.  Bris- 
tol        18,     46 

Edgell  v.  McLaughlin 406 

Edgerton  v.  Peckham 627 

v.  Weaver    213 

v.  Wolf   67 

Edgett  v.  Tucker 245 

Edgeworth  v.  Wood 136 

Edgington   v.    Fitzmaurice . .   689,  691 

697 
Edgware  Highway  Board  v.  Har- 
row Gas  Co 185,  494 

Edick  v.  Green 258,  266 

Edinboro  Academy  v.  Robinson. ..  187 

Edison  v.  Hawthorne 125 

Edmond's  Appeal 640 

Edmunds  v.  Bushell 110 

v.  Illinois  Central  R.  Co 456 

v.  Merchants'  Desp.  Transp. 

Co 592,  718 

Edmundson  r.  Penny. .  .  250,  253,  269 

"Kelson  v.  Hudson 717 

Edward  v.  Estelle 790 


lvi 


TABLE    OF    CASES. 


PAGE. 
Edward  Hines  Lumber  Co.  v.  Al- 
ley        360 

Edward  Thompson  Co.  v.  Baldwin.  864 

Edwards,   Re 461 

Edwards    r.   Aberayron,   etc.,    So- 
ciety       448,  449 

v.  Bedford   Chair   Co 384 

1-.  Brown     586 

v.  Burt   763 

v.  Carter 65 

v.  Clements    .' 259 

v.  Davenport    100,  101 

v.  Fairbanks   141 

v.  Fry   791 

■  v.  Gasoline  Works 136,  296 

v.  Gildermeister 112 

v.  Golding    112 

v.  Hancher   834 

v.  McEnhill    893 

•  v.  McLean   531,  673 

v.  Mattingly    872 

r.  Mevrick    743 

i'.  Nelson   199 

v.  Noel   608 

v.  Randle    438,  439 

p.  Roberts     709 

v.  Sheridan    89 

v.  Skirving    492 

v.  Thomas    291 

v.  Walters    816,  91S 

v.  Weeks    817 

Edwards  Brokerage  Co.  v.  Steven- 
son      408,  409 

Effinger  v.   Kenney 431 

Egan  r.  Guardians  of  Kensington 

Union 804 

Egerton  v.  Earl  of  Brownlow.  . .  .   421 
422,  423,  425,  434 

Egger  v.  Nesbitt 30,  39,  43,     45 

Eggleston  v.  Morrison 261 

v.  Wagner 43 

Ehrensperger  v.  Anderson 339 

Ehrlich  r.  /Etna  L.  Ins.  Co 337 

Elirman  v.  Bartholomew 480 

v.  Insurance  Co 140,  141 

Eichelberger  v.  Morris 383 

Eidelin  v.  Clarkson's  Exrs 788 

Eidenmiller,    Re 86 

Eingartner  v.  Illinois   Steel  Co.  .   781 

Eisel  v.  Hayes 468 

Ekerly  v.  McGee 890 

Elbinger      Actien-Gesellschaft      v. 

Claye  109 

Elder  r.  Chapman 339 

v.  Elder   634 

El  dredge  v.  Walker 38S 

Eldridge  r.  Dexter,  etc.,  Co 584 

Elerick  v.   Reid 692 

Eley  v.  Positive  Assurance  Co...    177 

235,  243 


PAGE. 

Elgin  v.  Hall 873 

Elias  ■(>.  Enterprise  Assoc 101 

Eliason  v.   Henshaw 2'j,  43 

Elizabeth  r.  Force 866 

Elkhart  County  Lodge  v.  Crary..  436 

Elkin  i\  Timlin 171 

Elkins    i\    Parkhurst 399 

v.  Railroad  Co 135 

Ellen  v.  Topp 551,  826 

Ellerman  v.  Chicago,  etc.,  Co.  140,  375 

Ellesmere   Co.  v.   Cooper 858,  871 

872 

Ellett  v.  McGhee 20,i 

Ellieott  v.  Turner 177 

■  v.  White 602 

Elliman  Sons  &  Co.  v.  Carrington 

&  Son 477 

Elliot   v.   Ince 102,  103 

Elliott  v.  Blair 869,  870 

v.  Dazey 830 

r.  Gower    891 

r.  Levings   867 

r.  McClelland 452 

v.  Richardson 445 

i\  Royal  Exch.  Assur.   Co..  448 

449 

v.  Sackett   639 

r.  Swartwout 731 

Ellis  r.  Andrews 692 

r.  Barker    748,  769 

r.  Clark 9 

c.  Harrison.  .   247,  257,  267,  272 

r.  Midland  Ry.  Co 559 

v.  Smith 452 

v.  Staples 876 

v.  Wilmot 384 

Ellison  v.  Mobile,  etc.,  R.  Co 873 

Elliston  r.  Berryman 495 

Ellsworth  v.  Fogg 844 

v.  Randall 123,  592 

Ellwood  r.  Monk 258 

Elmore  v.  Johnson 453 

v.  Sands 53 

Elphinstone    (Lord)    v.  Monkland 

Iron  and  Coal  Co 632 

Elrod  v.  Meyers   77 

Elstner  v.  Fife 569 

Elston   v.  Jasper 101 

Eltham  v.  Kingsman 422 

Elting  v.  Vanderlyn 214 

Elwell  v.  Chamberlain 701 

■  v.  Martin 84 

v.  Mersick    115 

v.  Walker 794 

— —  v.  Wilson 451 

Ely    r.    Early 640 

^^  v-  Ely  ' 533,  874 

v.  Ormsby 782 

v.  Stewart 693 

v.  Webster 4a6 


TABLE    OF    CASES. 


lvii 


PAGE. 

Elysville,  etc.,  Co.  v.  Okisko  Co. .  161 

Elyton  Co.  t\  Hood 384 

Emanuel  v.  Dane 335,  336 

Embler  i\  Hartford  Ins.  Co 277 

Embrey   r.  Jemison   406 

Emerson  p.  Opp 856 

v.  White 623 

Emery  r.  Burbank 782 

v.  Darling   467 

*>.  Kempton    495 

•  r.  Ohio   Candle   Co 468,  498 

500 

v.  Smith  177 

Emery's  Sons  v.  Bank 302 

Emley  v.  Perrine 281 

Emmerson  o.  Townsend 492 

Emmerson's  Case 613 

Emmitt  v.  Brophy 258,  274,  276 

Emmittsburg  v.  Donoghue 215 

Emmons  v.  Alvord 392 

v.  Murray    67 

Empire     Transportation     Co.     v. 

Steele    302 

Emporia  Bank  17.  Shotweli 592 

Express   Engineering  Co 121,  234 

235,  243,  244 

Empson's  Case  588 

Enders    v.   Enders 462 

Endriss  v.  Belle  Isle  Ice  Co 204 

Engbretson    v.    Seiberling 211 

Engel  f.  Brown 778 

Engesette  17.  McGilvray 361 

Engine  Co.  v.  Green 27 

England  v.  Davidson.  .  : 23,  205 

v.  Downs 392,  393 

Englebert  v.  Troxell 66,  68,     77 

Englehart  r.  Clanton 704 

English  v.  Porter 104 

■  v.  Young 409 

English's  Exr.  r.  McNair's  Admr.    622 
English  and  foreign  Credit  Co.  17. 

Arduin 46 

Enloe  17.  Hall 112 

Ennis  v.  Burnham 744 

v.  H.  Borner  &  Co 681 

■  17.  Pullman 211 

Eno  v.  Dunn 419 

Enochs-Havis,    etc.,    Co.    v.   New- 
comb  : 281 

Enos  v.  Sanger 262,  265 

Ensel  i\  Levy 700 

Ensminger  17.  Horn 14 

Ensworth  *'.  King 56 

Episcopal  Mission  v.  Brown..  272,.  273 

Eppens  v.  Littlejohn 523,  559 

Epperson  v.  Nugent 79 

Epstein.   Re 699,  708 

Equitable  Ass'n  v.  Brennan 302 

Equitable  Assur.  Soc.  v.  McElroy.   658 

Equitable  Co.  r.  Hersee 708 

Equitable  Ins.  Co.  v.  Hearne 641 


PAGE. 

Erary  v.  American  Rubber  Co. . . .     51 

Erb  i\  Brown 204 

Erickson  v.  First  Bank 859,  866 

17.  Fisher 695 

Erie  By.  Co.  ads.  Union  L.  &  E. 

E.  Co 482 

Erie  By.  Co.   r.  Winter's  Admr..     53 

Erkens  i>.  Nicolin 579 

Erlanger  v.  New  Sombrero  Phos- 

i      phate   Co 676,  724,  736 

,  Ernest  v.  Nicholls 899 

Ernst   v.    Crosby 486.  487 

i  Errington,  Uc 260 

Erskine  17.  Adeane.    173,  313,  533,  921 

v.  Plummer 173,  784 

Erwin  v.  Erwin 49 

v.  Myers 664,  668 

Esch   v.   Home  Ins.   Co 642 

V.  White 171 

Esham  r.  Lamar 751 

Eshleman  v.  Lightner 608 

Espert  v,  Wilson 753 

Espey   r.  Lake 745 

Esposito  v.  Bowden 426,  428,  429 

514 
Essex  17.  Day 639 

p.  Insurance  Co 636 

Essley  v.   Sloan 275 

Estabrook  v.  Smith 624 

Esterly  Co.  r.  Pringle 204 

Estes  v.  Reynolds 721 

Estill  v.  Rogers 158 

Etter  y.  Greenwalt 253 

Etting  r.  Bank 661 

Eubanks  r.   Banks 507 

Euneau  v.  Rieger 452 

Eureka  v.  Gates 639 

Eureka  Co.  v.  Bailey  Co 160 

■  r.  Edwards    68 

Eureka  Iron  Works  v.  Bresnahan.  140 

Evans,  Re 461 

Evans  v.  Bell 199 

17.  Bicknell    915 

v.  Bremridge    662 

v.  Carrington    417,  678 

v.  Edmonds   672,  682 

v.  Ellis     736,  741 

17.  Evans    444 

r.  Foreman   854,  856 

».  Hoare    180 

v.  Green    174 

v.  Lee  160 

- — -  17.  Llewellyn    765,  766 

!".  Partin    858,  872 

P.  Powis   834 

17.  Prothero    799 

r,  Sheldon   880 

17.  Smallcombe  900 

r.  Trenton    498 

v.  Wain    108 

17.  Williamson    853 


lviii 


TABLE    OF    CASES. 


PAGE. 

Evan's   Appeal 579 

Evans,  etc.  v.  McFadden 157 

Evanturel  v.  Evanturel 424 

Eve  v.  Rogers 120 

Evelyn  r.  Chichester 73 

Everet  c.  Williams 374,  500 

Everhardt  !'.  Searle 388,  389 

Everhart  i:  Dolph 180 

v.  Puckett    444 

Everhart's  Appeal  174 

Everinghani  r.  Meighan 407 

Everitt  r.  Everitt 739 

Everman  v.  Herndon 182 

r,  Hyman   123 

v.  Piron   775 

Eversole  v.  Maule   295 

Everson   v.   International  Granite 

Co 606 

Everstein  v.  Gerstenberg 306 

Ewell   r.  Daggs 61 

Ewer  r.  Jones 244,  252 

Ewing  r.  Bass 735 

c.  Crouse   628 

r.  Ewing 828 

t\  Smith   891 

r.  Toledo  S.  B.  &  T.  Co.  .  .  .    141 

Ewins  r.  Gordon 627,  629 

Exchange  Bank  r.  Gaitskill 703 

v.  Rice   257,  259 

Exhaust  Ventilator  Co.  r.  Chicago, 

etc.,  Ry.  Co 51 

Express  Co.  r.  Haynes 54 

v.  Moon    54 

c.   Stettaners    54 

Express  Pub.  Co.  v.  Aldine  Press.   854 

Exter   c.   Sawyer 389,  676 

Exton  r.   Scott 55 

Eyre  r.  Potter 749 

Ezell  r.  King 199 

F. 

Fabacker  v.  Bryant 468 

Fame  v.  Brown 754 

Fairbank  Canning  Co.  v.  Metzger.  608 

653 
Fairbanks  v.  Bank 378 

r.  Richardson  Drug  Co 538 

v.  Sargent   281 

r.  Snow 727,  728,  729 

Fairchild  v.  Feltman 258 

v.  McMahon    690,  701 

(\  North  Eastern  Assoc ....   276 

■ v.  Philadelphia  R.  Co 508 

Fairfax  v.  Fairfax's  Ex 776 

Fairhurst  v.  Liverpool  Adelphi  L. 

Assoc 87 

Fairlie  v.  Fenton 108 

Fairplay  r.  O'Neal 49 

Falcke  v.  Gray 754 


PAGE. 

Falk  r.  Curtis  Pub.  Co 130 

Falkingham     r.      Victorian      Ry. 

Comrs 879 

Fallis  v.  Insurance  Co 630 

r.  Keys     890 

Falls  Wire  Mfg.  Co.  v.  Broderick.  43 

Fane  v.  Fane 674 

Fanning  v.  Russell 241 

Fant  v.  Miller 434 

Fanton  r.  Middlebrook 780 

Fare  v.  John 18 

Fareira  r.  Gabell 406,  407 

Farewell  v.  Coker 625 

Fargo  r.  Arthur 14 

Fargo  Coke  Co.  v.  Fargo  Electric 

Co 695 

Fergusson  r.  Winslow 731 

Farina  r.  Fickus 50 

Farley  t:  Cleveland 241,  258 

v.  Parker  101 

Farlow  v.  Kemp 257 

Farmer  r.  Farmer 735 

r.  People's    Bank 292 

v.  Rand    860,  866 

Farmer's  Ex.  v.  Farmer 743 

Farmers'  Assoc,  v.  Scott 703 

Farmers'  Bank  r.  Myers 862,  863 

Farmers'    etc.,   Bank   v.   Railroad 

Co 141 

Farmers'  Co.  v.  Bazore 886 

Farmers'  L.  &  T.  Co.  v.  Galesburg.  342 

Farmers'  Trust  Co.  i:  Floyd.    119,  120 

i\  Siefke   872 

r.  Wilson    106 

Farmington  r.  Hobert 109,  276 

Farnarn  r.  Brooks 104,  743 

Farnham  r.  Benedict 137 

Farnsworth  / .  Cotts 383 

v.  Duffner     694 

V.  Sharp    874 

Farnum  tr.  Patch 296 

Farquharson  c.  King 719 

Farrar  v.  Bessey 90 

r.  Churchill    693 

v.  Farrar  84!) 

v.  Toliver    815 

v.  Walker    720 

Farrell  v.  Lovett 291 

Farrer  r.  Nightingale 334 

Farris  t'.  Richardson 86 

Farrow  v.  Wilson 223,  543 

Farson  v.  Fogg 436 

Farwell  v.  Hanchett 679 

-r.  Myers   708 

Farwell  Co.  r.  Hilton 708 

Fassett  v.  Mulock 282 

v.  Ruark  659 

Faulkner  v.  Faulkner 243 

Faurie  v.  Morin's  Syndics 438 

Faviell  v.  E.  C.  Ry.  Co 165 


TABLE    OF    CASES. 


lix 


PAGE. 

Fawcett  v.  Freshwater 206 

l'.  Osborn  567 

l'.  Whitehouse    674 

Fawcett  and  Holmes,  Re 663 

Fay  v.  Burditt 101 

v.  Oatley 441,  442 

v.  Oliver 339,  343,  344,  715 

v.  Sanderson 238 

v.  Slaughter   443 

v.  Tower 384 

Fayette  Land  Co.  v.  Railroad....   141 

Fear  v.  Jones 605 

Fearn  v.  Mayers 596 

Fearnley  v.  De  Mainville.  .  .   377,  437 

Fearon  v.  Earl  of  Aylesford 417 

Fears  v.  Sykes 781 

Fechheimer   v.  Baum 699 

v.  Pierce    892 

Feeney  v.  Bardsley S45 

Fegley  v.  McDonald 386 

Fehlberg  v.  Cosine 600 

Feineman  v.  Sachs 486 

Feist  v.  Schiffer 258 

Felch  v.  Taylor 248,  249,  253 

Feldman  v.   Gamble 378 

K.  McGuire 258,  271 

Felix  v.  Griffiths 531 

Fellowes  r.  Lord  Gwydyr. . .    117,  118 

v.  Steamboat  Co 106 

Felthouse  v.  Bindley 29,     42 

Feltmakers,  Co.  of  v.  Davis 232 

Felton  v.  Dickinson 248,  249,  253 

Fenn  v.  Union  Co 271 

Fenner    v.   Tucker 470 

Fenness  v.  Boss 376 

Fennessey  r.   Fennessey 394,  395 

Fenton  v.  Clark 545,  548  j 

v.  White    81 

Fenwick  v.  Grimes 689  ' 

Ferebee  v.  Pritchard 393,  395 

Fereira  v.  Savers 544  | 

Feret    v.    Hill 488,  679 

Ferguson  v.  Bobo 82,     83 

Ferguson  v.  Carrington 679,  707 

Ferguson  r.  Coleman 405 

v.  Harris 199 

v.  Lowery 736,  740 

v.  Oxford  Mercantile  Co 141  ! 

Ferguson's    Succession 261 

Fergusson  v.  Norman 403 

Fernald  v.  Gilman 177,  789 

Ferrand  r.  Beshoar 892 

v.  Bischoffsheim 113 

Ferre  Canal  Co.  v.  Burgin 46 

Ferrell  v.  Maxwell 171 

Ferrier  v.   Storer 30,     39 

Ferris   v.  Adams 438 

v.  American  Brewing  Co. . .   249 

255,  469 

v.  Carson  Water  Co 249,  254 


PAGE 

Ferris  v.  Cranford 275 

v.  Hoglan 335,  342 

v.  Irving 106 

v.  Snow 110 

v.  Spooner 361 

Ferry  v.  Moore 116 

v.  Stephens 211,  813 

Fessenden  v.  Ockington 640 

Festerman  v.   Parker 204 

Festing  v.  Hunt 339,  344 

Fetrow   r.  Wiseman 66 

Fickus,  Re   49,  650,  918 

Fidelity  Assoc,  v.  Dewey 382 

Fidelity  Co.  e.  Lawler 171 

v.  Railroad  Co 160 

Field  d.  Chipley 439 

V.  Moore 65 

v.  Stagg 855,  856 

v.  Stearns 716 

V.  Woods 873 

Fields  v.  Helms 630 

Fife  v.  Clayton 635 

Fightmaster  v.  Levi 729 

Filbert  f.  Philadelphia 528,  530 

Filby  v.  Hounsell 44,  47,  179 

Filgo  r.  Penny 590 

Fillieul  v.  Armstrong 327 

Filson's  Trustees  v.  Himes...438,  483 
Financial  Corporation's  claim....  288 
Finch  v.  Finch 792 

v.  Mansfield 432,  886 

v.  Simon 813 

Findlay  v.  Pertz 392,  436 

Findley  v.  Hulsey 727 

Findon  v.  Parker 460 

Fine  r.  Rogers 816 

Finlay  v.  Bristol  and  Exeter  Ry. 

Co 163,  168 

v.  Chirney 223,  547 

Finucan  v.  Kendig 739 

Fire.  Alarm  Co.  v.  Big  Rapids. ...     51 

Fire  Assoc,  v.  Rosenthal 529 

Fire  Ins.  Assoc,  v.  Wickham. ..   9,  211 

625 

Firestone  i\   Firestone 387 

First  Bank,  Re 892 

First  Bank  v.  Buchanan 384 

v.  Chalmers 170 

v.  Drew 654 

v.  Fricke 859,  860 

v.  Gerke 382 

v.  Hayes 606 

v.  Hendrie : 437 

= v.  Johns 867 

v.  Leppel 498 

v.  Marshall 813 

v.  Payne 861 

v.  Perris  285 

v.  Ryan S69 

V.  Sowles 180,  704 

v.  Thomas 775 

■  v.  Watkins 731 


lx 


TABLE    OF    CASES. 


PAGE. 

First  Bank  v.  Webster 868 

r.  Weidenbeck  .  .  .  859,  862,  863 

v.  Woodman 778 

0.  Zeims 587,  868 

First  Church  r.  Donnell 186 

v.  Gillis 187 

— —  v.  Pungs 187 

v.  Swanson 180 

First  Nat.  Bank  r.  Clark 285 

v.  Mack 873 

r.  Oskaloosa  Packing  Co.  .  .  406 

v.  Pipestone 257  | 

r.  Smith 404  ; 

v.  Spear 324  | 

v.  Watkins 22,  35 

Firth  r.  Midland  Ry.  Co 549 

Fischer  v.  Hope  Mut.  Life  Ins.  Co.  271  i 

277,  363 

v.  Kamala  Naicker 4G0 

Fish  v.  Cleland 688,  745 

r.  Hayward 264 

Fishack   v.  Ball 634 

Fishback  -v.  Miller 697 

Fishburne  v.  Ferguson 733 

Fishell  r.  Gray 483,  484 

Fisher  v.  Bishop 733,  737 

v.  Bridges 490,  491,  492 

v.  Budlong 683 

v.  Fisher 408 

v.  Hildreth 501 

v.  Knox 282  ] 

v.  Koontz 444 

v.  Lighthall   673 

v.  Liverpool    Marine    Insur- 
ance Co 796,  797 

r.  Lord         432,  486 

r.  May      578 

r.  Merchants'  Ins.  Co.  .  .448,  449 

v.  Mershon 844 

v.  N.  Y.  Com.  Pleas 689 

v.  Seltzer 15 

r.  Smith 827 

r.  White 263 

r.  Wilmoth      257 

r.  Worrall         118 

Fisher's  Appeal   387 

Fisher  &  Co.  r.  Apollinaris  Co.  .  .  442 

Fisherdick  r.  Hutton 853,  866 

Fisheries  Co.  i\  Lennen 468 

Fishkill  Sav.  Inst.  v.  Bank 701 

Fishmongers'    Co.    c.    Robertson.  .  159  : 

166 

Fisk  v.  McGregory 170 

v.  McNeal 864  j 

Fist's  Claim  866  | 

Fislce  v.  Insurance  Co 656  i 

Fitch  v.  Chandler 257 

— —  v.  Fitch 459 

v.  Johnson 300,  301 

v.  Jones 405,  407,  522 

v .  Reiser 744  , 


PAGE. 

Fitch  v.  Snedaker   14 

v.  Sutton 838 

Fitler  v.  Commonwealth 116 

Fitts  v.  Hall 82 

Fitz  v.  lies 480 

Fitzgerald  r.  Allen 337 

V.  Barker 261,  272 

v.  Chapman 93 

a.  First  Bank 573 

v.  McClay 249 

v.  Vestal    459 

Fitzhugh  r.  Jones 45 

Fitzpatrick  v.  Fitzpatriek 856 

c.  School  Commrs 443 

Fitzsimmons  v.  Joslin 700 

Fivaz  r.  Nicholls 498 

Fivey  r.  Pennsylvania  R.  Co 725 

Flac'h  r.  Gottsehalk  Co 102 

Flagg  v.  Baldwin 406,  508 

r.  Mann 631 

Flaherty  v.  Cary 377,  439 

Flanagan  v.  Hutchinson 257 

Flanders  n.  Abby 892 

v.  Blandy     219 

v.  Doyle 275 

v.  Fay 206 

v.  Wood 470 

Flandrau   v.   Hammond 654 

Flannegan  v.  Crull -. 109 

Flanneiy  v.  Jones 684 

Flash  v.  American  Glucose  Co ...  .  608 

Flavell,  Re,   242 

Fleckner  v.  Bank 161 

Fleet  v.  Murton 105,  111 

v.  Perrins 89 

Fleetwood  r.  Brown 612 

r.  Hull 299 

Fleming  v.  Hanley 716 

v.  King 531 

v.  Ramsey 215 

Flesh   r.   Lindsay 87 

Fletcher  c.  Ashley 393 

r.  Cole 342 

r.  Fletcher •  55 

r.  Gamble 385 

( .  Harcot 495 

v.  Hickman 463 

i:  Minneapolis  Ins.  Co .  .  852,  856 

!'.  Peck 515 

r>.  Warren 413 

v.  Webster        880 

Flickinger  r.  Saum 249,  253 

Flight  v.  Bolland 66,  71 

v.  Booth 611,  663 

v.  Reed 72,  809,  912 

Flinn  v.  Brown 854 

r.  Carter      813 

v.  Mowry 366 

Flint  v.   Cadenasso 264 

o.  Clinton  Co 160 

v.  Gilpin 540 


TABLE    OF    CASES. 


Ixi 


PAGE. 

Flint  r.  Pierce 257,  259 

r.  Woodin 684 

Florence  Cotton  Co.  v.  Field 816 

Florence  R.  Co.  v.  Bank 144 

Florida  Central  Co.  v.  State 437 

Flory  r.  Hauck 792,  794 

Flower  r.  Barnekoff 174 

V.  Brurnbach 708 

v.  L.  &  X.  W.  By.  Co 75 

v.  Sadler 441 

Floyd   e.   Calvert 158 

v.  Ort        257,  271 

■  v.  Patterson 498 

Fluharty   c.   Mills 174 

Flureau  v.  Thornhill 611 

Fly  r.  Brooks 610 

Flynn  r.  Insurance  Co 276 

■  r.  Mass.  Ben.   Assoc 242 

Foakes  v.  Beer 211,  212 

Fogel  v.  Church 467 

Fogg  r.  Blair 725 

v.  Boston  &  Lowell  R.  Co.  .  130 

v.  Griffin 701 

v.  Portsmouth  Athenaeum.  .  11 

Fogg's  Admr.  v.  Bodgers  ....  653,  654 

Foley  r.  Crow 629,  664. 

r.  Felrath 28 

■ v.  Greene 747 

v.  Piatt 205 

v.  Speir 438,  483 

Foley  Co.  i\  Solomon 874 

Follansbee   v.   Adams 361 

v.  Johnson 238,  261 

v.  O'Reilly 388 

Follett  v.  Brown 708 

r.  Buyer 286 

Folmar  r.  Siler 585 

Folsom  r.  Insurance  Co 657 

Folty  p.  Ferguson 68 

Foltz  v.  Wert 174 

Fonner  v.  Smith 257,  267 

Fonseca  v.  Cunard  S.  S.  Co.  .  .  53,  507 

Fooks  t\  Lawson 878 

Foote  v.  Cincinnati 532 

• v.  Emerson 377 

v.  Hambrick 854 

v.  Nickerson 415 

Forbes  p.  Cochrane 510 

v.  McDonald 377,  439 

v.  Sheppard 383 

v.  Taylor 853 

■ ■  v.  Watt 573 

Forbes  &  Co.'s  Claim 659 

Forchheimer  v.  Holly 431,  798 

Ford  v.  Beech.. 317,  813,  814,  833,  836 

v.  Bell 290 

v.  Cameron  Bank 863 

v.  Cotesworth 530 

v.  Crenshaw 210 

i:  Finney 256,  261 

v.  Ford .....  735,  866 


PAGE. 

Ford   v.   Garner.1 210 

v.  Harrington 505 

r.  Hennessy 746,  768 

I <;.  Hurd 566 

p.  Joyce 640 

v.  Newth 196 

v.  Olden 751,  768 

v.  Phillips 69 

r.  Stier 685,  727 

r.  Tilev     .   .  .  358,  363,  364,  365 

| v.  White 284 

i ('.  Williams 112 

Ford  and  Hill,  Re 673 

Fordyce   v.  Kosminski 868 

Foreman  v.  Bigelow 706,  720 

Forepaugh  v.  Delaware  R.  Co....  508 

Forget  v.   Ostigny 408 

Forinquet  v.  Tegarden 495 

Forman  v.  The  Liddesdale 345 

Forman  v.  Wright 580,  759 

Formby  v.  Barker 301 

v.  Pryor .  434 

Forney  r.    Shipp 114 

Forrer  v.  Nash 354 

Forrest  v.  Hart 501 

Forrest  r.  Manchester,  etc.,  Ry  Co.  897 

Forshaw  v.  Chabert 852 

Forster  v.   Green 11 

i'.  Taylor 402 

Forsythe  v.  Bonta 443 

Fort  t\  Allen 879 

v.  Wells 565 

Fort  Dearborn  Bank  r.  Carter.  . .  .  698 

Fort  Payne  Co.  v.  Webster  . .  323,  354 

Fort  Wayne  Co.  r.  Miller 187 

Fort    Worth    City    Co.    r.    Smith 

Bridge  Co 140 

Fortenbury  v.  State 408 

Fortier  v.  Bank 142 

Fortunato    r.    Patten 281 

Forward  v.   Armstead 216 

Fosdick   v.  Fosdick 416 

Foshay  r.   Ferguson 728 

Foss  v.  Cummings 407 

Foss,  etc.,  Co.  r.  Bullock 350,  360 

Fossett  v.   Wilson 730 

Foster  r.  Bartlett 342 

v.  Bear  Valley  Co 791 

v.  Boston 27 

v.  Cockerell 281 

r.  Dawber  .  .  816,  818,  819,  820 

r.  Graham 112 

r.  Hanchett 677 

r.  Jacks 451 

r.  London,  etc.,  Ry.  Co 140 

v.  Lookout   Water   Co 254 

r.  Maekinnon  ....  585,  588,  619 

v.  Marsh 269 

v.  Means 98 

p.  Metts 215 

v.  Peyser 673 


lxii 


TABLE    OF    CASES. 


PAGE. 

Foster  v.  Purdy  813 

v.  Redgrave 77 

v.  The  Richard  Busteed. . . .   876 

v.  Thurston 486 

• ■  v.  Wheeler 2,     51 

Foulkes  p.  Metro.  Dist.  Ry.  Co.  . .   569 

Fountain  v.  Harrington 879 

Fountain  Spring  Co.  v.  Roberts .  . .  392 
Fountaine  p.  Carmarthen  Ry.  Co.  .  898 
Fourth  Street  Bank  v.  Yardley. . .  894 
Foust  v.  Bd.  of  Publication 42 

v.  Renno 865,  866 

Fowell  v.  Forrest 812 

Fowkes  p.  Manchester  and  London 

Assurance  Assoc 309 

Fowle  v.   Park 469 

Fowler  r.  Bott 531 

v.  Brooks 206,  384 

-p.  Collan 452 

i\  Fowler 639 

v.  Hollins 565 

r.  McCann 693 

v.  Monmouthshire  Canal  Co.  800 

■  p.  Smith 837 

p.  Water  Co 254 

p.  Woodward 623 

Fox  i.  Bank 291 

p.  Davis 415 

p.  Kitton 353,  361 

P.  Nott 303 

v.  Rogers 493,  495 

p.  Tabel 113,  117 

v.  Turner 30 

0.  Webster 679 

Foxworthy  v.  Colby 860 

Foy  r.  Houghton 693 

Fradley   r.  Hyland 115 

Frailey's  Adm.  v.  Thompson 11 

Fraker  v.  Cullum 856 

P.  Little 575,  856 

Fraley's  Appeal 281 

Frame  v.  Coal  Co 114 

Francis  i\  Deming 829 

Francisco  v.    Shelton 263 

Franco-Texan  Co.  v.  Simpson. ...  610 
Frank  v.   Bobbitt 508 

V.  Eltingham 179 

p.  Hoey 886 

v.  Ingalls 53 

-p.  Lanier 654 

p.  Lilienfeld 292,  889 

v.  Miller 182 

Franke  v.   Hewitt 46 

v.  Riggs 790 

Franklin  t>.  Baker 874 

v.  Brown f 73 

p.   Franklin 416 

v.  Miller 325,  339,  341 

Franklin  Av.  Germ.  Sav.  Inst.   u. 

Board,  etc.,  of  Roscoe 141 

Franklin  Bank  r.  Severin 820 


PAGE. 

Franklin  Bridge  Co.  v.  Wood 140 

Franklin  Co.  v.  Lewiston  Inst,  for 

Savings 142 

Franklin  Min.  Co.   p.  O'Brien 390 

Franks,  Ex  parte 91 

Frantz  v.  Brown 284 

Franz  v.  Bieler 483 

Franzen   p.   Hutchinson 508 

Frary  v.  Sterling 177 

Fraser  v.  Ehrensperger 878 

Fraser  v.   Gates 177,  789 

p.  Hatton 204 

v.  Hill 493 

Frazee   r.   Frazee 87 

Frazer  v.  Fulcher 91 

Frazier    v.    Gelston 88 

r.  Jeakins 387 

r.  Moore's   Admr 877 

v.  Thompson 484 

Frear  v.  Hardenbergh 174 

Fred  Heim  Co.  v.  Hazen 861 

Fredenburg  v.   Turner 549 

Fredericks  v.   Fasnacht 46 

Freed  p.  Brown 101 

Freedley   v.    French 585 

Freedman  p.  Provident  Ins.  Co. .  .  658 

"  Freedom,"  The 303 

Freeland  1\  Compton 384 

Freeland  p.  Williams 157 

Freeman,  Re   837 

p.  Auld 275 

p.  Bernard 877 

p.  Boland 84 

v.  Bridger 79 

P.   Cooke 649 

v.  Curtis 581 

p.  Foss 178,  790 

p.  Freeman 791 

v.  Hartman 393 

p.  Jeffries 715 

p.  Pa.  R.  R.  Co 258,  259 

Freeman  Imp.  Co.  v.  Osborn 226 

Freer  v.   Walker 89 

Freeth  v.  Burr.  .328,  329,  330,  333,  339 

340 

Freiclmecht  v.  Meyer 576 

Fremont  Foundry  Co.  p.  Norton.  .  839 

French  v.  Arnett 625 

v.  Burns 631 

v.  New 879 

v.  Price 116 

p.  Richards 531 

v.  Ryan 692 

v.  Shoemaker 728 

v.  Vix 277 

Frend  v.  Dennett 167 

Freshfield's  Trusts,  Re 281 

.Fresno  Canal  Co.  v.  Dunbar.  .  301,  361 
Fresno  Milling  Co.  v.  Fresno  C.  & 

I.   Co 536 

Freyman  P.  Kneeht 608 


TABLE    OP    CASES. 


liiii 


PAGE. 

Friar  v.  Smith 388 

Frick  v.  Joseph 834 

Friedlander  t\  Texas,  etc.,  Ry.  Co.  302 

Friedman  v.  Bierman 415 

Friend  v.  Miller 440 

v.  Woods 535 

Fripp   v.  Fripp 753 

Fritts   v.   Palmer 141 

Fritz  v.  Commissioners 854 

r.  Finnerty 388 

Fritz's  Est.,  Re 459 

Fritzler  v.  Robinson 612 

Frizzell   p.   Bundle 565 

Froelich  r.  Froelich  Trading  Co..  110 
Frontenae  Loan  Co.  v.  Hysop ....  260 
Frost  v.  Gage 379,  380 

v.  Knight  .  .   .  .20,  348,  360,  365 

367,  368,  394 

v.  Steele 786 

v.  Tarr 176 

Fry  v.  Insurance  Co 22 

v.  Lane 751,  759,  764 

Frybarger  v.  Simpson 501,  502 

Fryer  v.  Rishell 88 

Fuentes  t\  Montis 302 

Fugate  v.  Hansford's  Ex 180 

Fugure  r.  Mut.  Soc.  of  St.  Joseph.  250 

Fullalove  v.  Parker 800 

Fuller  v.  Bartlett 88 

— —  r.  Brown 545 

v.  Dame.  .377,  425,  437,  464,  466 

v.  Davis 558 

v.  Green 866 

v.  Hooper 110 

r.  Kemp 211 

v.  Leet 886 

v.  Parmenter 459,  460 

v.  Parrish 631 

v.  Rice 790 

v,  Steiglitz 286,  508 

Fuller,  etc.,  Co.  v.  McHenry 893 

Fullerton  v.  Sturges 853,  867 

Fulmer  v.  Seitz 857 

r.  Wightman 259,  273 

Fulton  r.  Andrew 585,  734,  914 

v.  Colwell 640 

v.  Day 515,  809 

v.  Whitney 387 

Funk  v.  Gallivan 399 

Fuqua  v.  Pabst  Co 469 

Furguson  v.  Bond 850 

Furman  v.  Parke 14 

Furnas  v.  Durgin 270 

Furnival  v.  Combes 122 

Furtado  v.  Rodgers 427 

Futrell  v.  Vann 595 

G. 

Gaar  v.  Green 204 

Gabbert  v.  Schwartz. .  .•. 292 

Gabell  v.  S.  E.  Ry.  Co 54 


PAGE. 

Gabriel  v.  Dresser 832 

Gadd  v.  Houghton Ill 

Gaffney  v.  Hayden 67 

Gage  v.  Allen 579 

v.  Ames 876 

v.  Bissell 174 

v.  Downey 452 

v.  Du  Puy   452 

v.  Fisher 377 

Gage  v.  Lewis 689 

v.  Riverside  Trust  Co 775 

Gaines  v.  Transportation  Co 54 

Gaines'  Adm.  v.  Poor  418 

Gainesville  Bank  v.  Bamberger .  . .   699 

Gainor  v.  Gainor 393 

Gaither  v.  Dougherty 878 

Galbraith  v.  Lunsford 88 

v.  McLain 459 

Gale  f.  Gale 231 

v.  Nivon 343 

Gale  Mfg.  Co.  v.  Stark 608 

Galena  v.  Corinth 140 

Galena,  etc.,  R.  v.  Ennor 28 

Gall  v.  Gall 158,  466 

Gallagher  v.  Button 673 

v.  Gallagher 790 

v.  Hathaway,  etc.,  Corp....     10 

v.  Nichols 549 

Gallaher  v.  Lincoln 438 

Galley  v.  Galley 789 

Galloway  v.  Bartholomew 874 

v.  Mayor  of  London 138 

Gallup  v.  Bernd 61u 

Galton  v.  Emuss 470 

Galusha  v.  Galusha 415,  417 

Galvin  v.  Prentice 789 

Galway  r.  Shields 786 

Galyon  v.  Ketchen 528 

Gamble  v.  Wilson 299 

Gambs  v.  Sutherland's  Est 486 

Gammaye  v.  Moore 636 

Gammill  v.  Johnson 695 

Gammon  v.  Blaisdell 524,  525 

Gammons  v.  Gulbranson 452 

v.  Johnson 452 

Gandell  v.  Pontigny 337 

Gandolfo  v.  Hartman 430 

Gandy  v.  Gandy 241,  243 

v.  Macaulay 626 

Gano  v.  Farmers'  Bank 661 

v.  Heath 862 

Gany,  Re 697 

Garberino  v.  Roberts  . .  324,  354,  361 

Garbracht  r.  Commonwealth 886 

Garbutt  v.  Bank 679 

Gardiner  r.  Harback  . . .  856,  857,  865 

v.  Menage 576 

— —  v.  Morse 470 

Gardner  v.  Allen's  Ex 114 

r.  Arnett 547 

v.  Case 729 


Jxiv 


TABLE    OP    CASES. 


PACE. 
Gardner  v.  Caylor 573 

r.  Cazenove 631 

v.  Clark 332 

■ v.  Gardner 844 

r.  Lane 590,  603,  619 

v.  Newman 878,  879 

r.  Ogden 387 

• v.  Raisbeek 876 

v.  Tatum 402 

r.  Van  Nostrand 385 

v.  Walsh 857,  862,  863 

v.  Watson 383 

Garland  v.   Carlisle 566 

17.  Garland 414 

v.  Pamphlin 891 

v.  Wells 586 

Garnett  r.  Farmers'  Bank 383 

■  v.  Macon 663,  753 

Garnons  (Doe  d. )  v.  Knight  ...  6,     55 
Garnsey  v.  Mundy 739 

v.  Rogers   256,  266,  274 

Garrard  r.  Frankel 600,  644 

v.  Haddan 868 

v.  Lauderdale 239 

■  v:  Lewis 867 

Garretson  v.  North  Atchison  Bank.     40 
Garrett  v.  Pierson 776 

c.  Trabue 106 

Garrett's  Adm.  r.  Garrett 787 

Garrey  v.  Stadler 802 

Garrison  i:  Burns 492 

v.  Technic  Works 692,  701 

Garst  v.  Hall  &  Lyon  Co 298 

■  o.  Harris 469,  633 

Gartrell  v.  Stafford 180 

Garver  v.  Miller 92,  416 

Garvey  v.  Jarvis 837 

Garvin  v.  Linton 809 

v.  Mobley 257,  276 

v.  Williams 736,  737,  740 

Gary   r.   Newton 459 

Gas  &  Fuel  Co.  v.  Diary  Co 140 

Gas     Light     and     Coke     Co.     v. 

Turner 485,  487 

Gascoyne   v.    Edwards 878 

Gashwiler  v.  Willis 125 

Gaslight  Co.  v.  Lansden 130 

Gasque  v.   Small 753 

Gass  r.  Stinson 382 

Gasser  v.  Sun  Fire  Office 448 

Gassett   r.    Glazier 377 

Gaston  v.  Drake   438 

Gastonia  v.  McEntee-Peterson  Co.  254 

Gates  City  Co.  r.  Post 704 

Gates  v.  Goodloe '.   514,  531 

v.  Green      531,  534 

v.  Raymond 713 

V.  Renfroe 461 

v.  Finning      405 

Gatling  v.   Rodman 88 

Gatt's  Ex.  v.  Swain  187 


PAGE. 

Gaullagher  v.   Caldwell 282,  284 

Gault    v.    Brown 17G 

Gause  v.  Clarksville 146 

Gaussen  v.  United  States 383 

Gautzert  v.  Hoge 276 

Gavagan   v.    Bryant 589 

Gay  v.   Gillilan 736 

v.  Witherspoon 749 

Gaylord  v.  Pelland 630 

v.  Soragen 432,  486 

Gear  p.  Gray 552 

Gebhard   v.   Gamier 157 

Geddes  v.  Blackmore 867,  872 

Gee'V.  Hicks 789 

Geer  v.   Frank '.  .   451 

v.  School  Dist 137 

Geere   v.   Mare 491 

Geier    v.    Shade 442 

Geiger  r.   Blackley 891 

Geipel    r.   Smith 428,  542,  547 

Gelpcke  r.  Dubuque 482 

General  Electric  Co.  v.  Wise 490 

Genereaux  r.  Sibley 68 

Genet  r.  Delaware  Canal  Co 708 

Gennert  r.  Ives 702 

George  v.  Andrews 263,  264 

v.  Clagett 114 

r.  East  Tenn.   Co 469 

V.  Hoskins 171 

Georgia  Medicine  Co.  v.  Hyman.  .   584 

Gerber  v.  Wabash  R.  R.  Co 495 

Gerhard   v.   Bates 704 

Gerhart   Realty   Co.   v.    Northern 

Assur.  Co 834 

Gerlach   v.    Redinger 892 

v.  Skinner 483 

Gerli   r.  Poidebard  Silk  Co 332 

Germain    Fruit    Co.     v.    Western 

Union  Tel.   Co 604 

German  v.  Gilbert 185 

German,  etc.,  Assoc,  v.  Droge.  . .  .  335 

German  Bank  v.  Dunn  856,  859 

German  Saving  Soc.  u.  Lashmutt.  101 

Gerner   v.   Yates 683 

Gerrish  v,  Glines 865 

Getty  v.  Devlin 389 

v.  Peters 345 

Gettysburg    Nat.    Bank    v.    Chis- 

ho'lm 853,  8G6 

Geurinck  v.  Alcott 498 

Ghegan   v.  Young 299 

Ghent  v.  Adams 112 

Gibbins    v.    N.    E.    Metropolitan 

Asvlum     District   46 

Gibbon  v.  Budd 802 

Gibbons  r.  Bente 187,  349 

v.  Gibbons 444 

v.  Grinsel 187 

r.   Proctor 14,     21 

v.  Vouillon 814 

Gibbs  r.  Consolidated  Gas  Co.  of 

Baltimore 399,  406,  468 


TABLE    OF    CASES. 


lxv 


PAGE. 

Gibbs  v.  Harding  416 

v.  Linabury 585 

V.  Penny 631 

v.  Smith 470 

Gibson  v.  Cranage 51 

v.  Daniel 206 

v.  D'Este 671,  672 

v.  E.  I.  Co 165 

■  v.  Gibson 844 

v.  Holland 180 

V,  Jeyes 734,  736,  741 

•  e.  Kirk 167 

v.  Pelkie 612 

V.  Perry 531 

v.  Powell 879 

v.  Soper 101,  102 

v.  Spear 82 

Giddings  v.  Baker 683 

v.  Eastman 513 

v.  Giddings'  Adm 193 

Gidley  v.  Lord  Palmerston 112 

Gieve,  Be  408 

Giffert   r.    West    654 

Gifford  v.  Corrigan 261,  264 

266,  274 

v.  Dyer   914 

v.  Father  Matthew  Soc 272 

v.  Willard 787 

Gilbert   v.    Anthony 855 

v.  Baxter 43 

v.  Bulkley 850 

v.   Carlan    83 

v.  Finch 377 

v.  Lewis 725 

v.  Peteler 302 

v.  Sanderson  257,  274 

v.  Sykes 422 

v.  Thompson 876 

v.  Wetherell 844 

Gilbert- Arnold  Co.  v.  Superior .  .  .    460 
Gilbert,  etc.,  Co.  v.  Butler..   536,  537 

".0 

Gilchrist,  Ex  parte  95,  !>8 

v.  McGee 175 

v.  Williams 776 

Giles  v.  Edwards 334,  550 

v.  Paxson 51 

r,.  Williams    725 

Gilgallon  v.  Bishop 102 

Gilkerson-Sloss  Co.  v.  Salinger. . .  893 

Gilkes   v.  Leonino 27 

Gilkeson   Co.  v.   Bond 452 

Gill  v.  Bradley 627 

v.  Hopkins 864 

v.  Weller 271 

Gillard  v.   Brittan 335 

Gillaspie  v.  Kelley 867 

Gilleland  v.  Failing 461 

Gillespie,  In  re 281,  282 

v.  Bailey 69 

v.  Battle 788 

V 


PAGE. 

Gillespie  v.  Darwin   386 

■  v.  Moon 634 

Gillett  v.  Sweat - 860 

Gillette  v.    Smith 859,  870 

Gilliam  v.  Alford 579 

v.  Brown 498,  500 

Gilliland  v.  Phillips 515 

Gillis  r.  Goodwin 67,  68 

Gilman   r.   Jones 450 

Gilmore  r.  Lewis 14,  205 

v.  Williams 608,  055 

('.  Woodcock  501 

Gilroy  p.  Alis 600 

Gipps  Brewing  Co.  v.  De  France . .  39 

886 

Girard  v.  Taggart 363 

Girdner  v.  Gibbons    866 

Girty  v.  Standard  Oil  Co 7'29 

Gisaf  v.  Neva! 413 

Gist  v.  Western  Union  Tel.  Co.  .  .  408 

508,  512 

Gittings  v.  Mayhew 186 

Givan  v.  Masterson 745 

Given's  Appeal  492 

Glass  v.  Hulbert 634,  791,  792 

Glass  Co.  v.  Mathews 382 

Glasscock  v.  Glasscock 214 

Glasspoole  v.  Young 566 

Glazebrook  v.  Woodrow 326 

Gleason  v.  Allen 832 

■  v.    Hamilton    853 

Glen  i\  Fisher   253 

i.  Hope  Mutual  L.   I.   Co..  249 

277 
Glencoe  Lime  Co.  v.  Wind. .   249,  251 

253,  267 

Glenmavis,    The    508 

Glenn  r.  Marbury 278,  270 

v.  Mathews 377 

i'.  Rossler 335 

Glens  Falls  Gas  Light  Co.  v.  Van 

Vranken 249,  251 

Gidden  r.  Strupler 88 

Globe  Tobacco   Warehouse  Co.  r. 

Leach 490 

Glocke  r.  Glocke 335 

Gloucester  Glue  Co.  v.  Russia  Ce- 
ment Co 469 

Glover  r.  Ott 79 

v.  Taylor 439 

Glubb,  Re  678,  738 

Gluckstein   v.   Barnes 681,  690 

Glynn  v.  Moran 573 

Goble  v.  American  Nat.  Bank. . .  .   831 

r.  O'Connor 470 

Goddard  v.  Beebe 415 

— —  v.   Johnson    89 

r.   O'Brien    210 

■  r.  Railroad  Co 130 

v.  Snow  393 

■  v.  Wescott   547 


lxvi 


TABLE  OF  CASES. 


PAGE. 

Godden  v.  Pierson   17  i 

Godfrey  v.  Thornton 88 

Godkin  v.  Monahan 310 

Godman  v.  Meixsel 408 

Godwin  v.   Francis 119 

Goebel  17.  Linn 204 

Goetter  v.  Weil 584 

Goetz  17.   Foss    170 

Goff   v.   Bankston    662 

Gold  17.  Ogden 272 

17.  Phillips 241,  258 

Gold  Medal   Sewing  Machine  Co. 

17.  Harris   813 

Gold  Mining  Co.  v.  Nat.  Bank.  .  .   403 

Goldberg  r.  Feiga 502 

Golden  v.  Hardesty 586 

Goldman  v.  Goldman 536 

— — ■  v.  Rosenberg 536 

Goldsborough  v.  Cradie 23 

v.  Gable 204 

Goldsmith  v.  Guild 628 

Goman  v.  Salisbury 311 

Gompertz  v.  Bartlett 606 

v.  Denton 342 

Gooch    v.    Faucett 508,512 

Gooch's    Case    63,     64 

Good  17.  Cheesman 212,  834,  835 

v.  Elliott 421 

— — •  r.  Zook 746 

Goodall  v,   Cooley 803 

— — •  r.  Thurman 411 

Goode  v.   Harrison 64 

v.  Hawkins 470 

17.  Riley 634,  6,59 

Goodell  v.  Field 640 

Goodenough,  In  re 463 

Goodfellow  17.   Inslee 853 

Goodger  v.  Finn 708 

Goodhue  17.  Davis 391 

Goodin  v.  Canal  Co 389 

Goodman  v.   Alexander 78 

v.  Eastman 868,  871 

v.  Harvey 291 

».  Pocock 346 

v.  Randall 275 

v.  Sayers 581 

v.  Simonds 291 

v.  Walker 452 

Goodnow  v.  Empire  Lumber  Co..  .     69 

r.  Moulton 11 

Goodrich  v.  Gordon 25 

v.  Johnson 176,  177 

v.  Northwick 51 

c.  Shaw 750 

■ v.  Stanley 834 

v.  Tenney 445 

Goodsell  v.  Myers 69 

Goodson  r.  Whitfield 394 

Goodspeed  p.  Bank 130 

v.   Cutler 856 

Goodwin  v.  Buzzell  778 

v.  Crowell  440 


PAGE. 

Goodwin  17.  Cunningham 286 

v.  Goodwin 444,  743 

V.  Mass.   Trust   Co....   716,  717 

v.  Morris 781 

t.  Norton 845 

v.  Robarts 293,  294 

v,  Thompson 64 

Goodyear  Co.  v.  Selz 633 

Goodyear   Shoe   Machinery   Co.   v 

Dancel 250,  259 

Goram  17.  Sweeting 910 

Gorder  v.  Plattsmouth  Canning  Co.  160 

Gordon  v.  Brewster 363 

17.  Butler    691 

17.  Dalby    439 

v.  George   299 

i>.  Gordon    210,  674 

17.  McCarty    720 

c.  Parmelee 691 

v.  Railroad    Co 16 

r.  Robertson    854 

v.  Street    597,  697 

v.  Third    Bank 861 

Gore  f.  Gibson 100 

Goree  v .  Wilson 193 

Gorgier  v.  Mieville 294 

Gorham  (■.  Gilson 125 

v.  Keyes    440 

Gorrell  v.  Greensboro  Water  Co .  .  249 

254 

Gorringe  v.  Read 748 

Gorsuth  i:  Butterfleld 402,  515 

Gosbell  v.  Archer 334 

Goss  17,  Lord  Nugent...   821,  822,  824 

Gossler  t:  Eagle  Sugar  Refinery.  652 

Gott  v.  Dinsmore 54 

Gottlieb  t\  Thatcher 761 

Gough   17.   Williamson 639 

Gould  v.  Bank 710 

17.  Kendall    500 

! 17.  McFall    579 

I •  17.  Partridge     302 

I ■  t7.  Stein 620,  652,  653 

I  Goulding  17.   Davidson 200 

Governor,  The  v.  Allen 127 

Governor  17.   Lagow 872 

Govett  v.  Richmond 220 

Gowans  r.  Pierce 275 

Gowen  17.  Pierson 448 

Gower  i\  Andrew 390 

17.  Sterner  636 

Gowers  v.  Klaus 179 

Gowing   v.  Thomas 831,  832 

Grace  17.  Adams 54 

v.  Hale    79 

17.  Lynch    177,  789 

Gradle  v.  Hoffman 385 

v.  Warner 181 

Graef  17.  Bernard 877 

Grteme  r.  Wroughton 491,  911 

i  Graf  17.  Cunningham 332 


TABLE    OF    CASES. 


hcvii 


PAGE. 

Graffenstein  v.  Epstein 692 

Grafton  v.  Cummings 179 

v.  St.  Louis,  etc.,  Ry.  Co . .  .   205 

Graham  r.  Chicago,  etc.,  Ry.  Co. .   515 

v.  Graham  50,  735 

r.  Holloway    345 

•  c.  Holt  855 

v.  Johnson   287,  288,  289 

— -  r.  Little    744 

V.  Marks    729 

v.  Pancoast   692 

v.  Railroad    Co 125 

v.  Rush   872 

(*.  Stanton   11,  199 

v.  Tilford    286 

Graham  Paper  Co.  i:  Pembroke..   281 

Grain's  Case 227,  228 

Grand  Isle  v.  Kinney 187 

Grand  Lodge  v.  Farnham 42,  187 

Grand  Lodge,  etc.  i:  Stepp 143 

Grandin  v.  Grandin 215 

Granger  i:  Roll 262 

Grannis  v.  Hooker 709 

Grant  v.  Bradstreet 252 

v.  Burgwyn    876 

v.  Diebold  Safe  Co 250 

v.  Gold     Exploration,     etc., 

Syndicate  of  British  Columbia.   388 

392 

('.  Green    210 

v,  Maddox   314 

v.  Porter    199 

v.  Southern  Contract  Co .  . .   132 

• ■  v.  Walsh    701 

Grant's    Case 41,  391 

Grattan  v.  Wiggins 786 

Gratz  v.  Gratz '. 880 

Grau  v.  MeVicker 360 

Gravely  v.  Barnard.  .  .  .    195,  475,  478 
Graves  v.  Bank 292,  6G0 

V.  Berdan   531,  532 

v.  Graves'  Exs 780 

r.  Johnson    432,  485 

v.  Legg    325,  327 

v.  Saline  Co 147 

r.  White 335,  340,  345,  745 

Gray  v.  Barton 211,  813 

r.  Central  R.  R.  Co 51 

v.  Chicago  Ry.  Co 437 

r.  Fowler    708,  709 

r.  Gibson  236 

v.  Gray   786 

r.  Hamil    199 

v.  Herman    841 

v.  Hook    438  439 

v.  Lewis    160,  897 

v.  Mathias   411,  412,  413 

v.  Meek    324 

v.  Moore   655 

v.  Palmer    174 


PAGE. 

Gray  t'.  Pearson   236 

v.  Richmond  Bicycle  Co 877 

v.  Seigler    412 

v.  Sims    514 

v.  Warner    390 

— — •  v.  Wilson    446,  449 

Gray's  Ex.  v.  Brown 384 

Graybill   v.  Brugh 217 

Greary  v.   Bangs 332 

Greason  r.  Keteltas 446 

Great  Northern  Ry.  Co.  v.  Kasis- 

chke    584 

v .  Palmer   55 

I".  Witham    196,  197 

Greathouse  v.  Throckmorton 409 

Greaves  v.  Ashlin 335 

Greele  v.  Parker 25 

Greely  v.  Dow 833 

Green,  In  re 406 

Green  v.  Adams 395 

v.  Baverstock     684 

('.  Burton    170 

v.  Campbell    462 

v.  Cole     48 

r.  Collins    486 

v.  Creighton 302 

r.  Drummond   . .  . . : 174 

r.  Duckett    731 

v.  Estes    170,  257  • 

r.  Gilbert    545,  548 

v.  Goodall     394 

c.  Green   68,  345,  392 

r.  Greenbank   82 

v.  Holway    798 

v.  Jones    791 

v.  Kelley 210 

i:  Langdon    211,  813 

v.  Levin    346 

v.  Maloney    583 

v.  Morrison    256,  261 

v.  North  Buffalo  Township.  584 

v.  Parker    261 

c.  Railroad  Co 577,  786 

v.  Sevin    628 

r.  Sizer    431 

v.  Sneed    854 

r.  Starr    877 

v.  State     685 

v.  Stone    263,  272,  276 

r.  Thompson    75 

v.  Turner    272 

i\  Wells    528,  816,  836 

v.  Wilding    66 

v.  Wilkie    585 

V.  Wynn    384 

Green  Bay  Co.  v.  Hewitt 577 

Greenburg  v.  Early 544 

Greene  c.  Bateman 605 

v.  Haley    342,  550 

v.  Smith  577 


lxviii 


TABLE  OF  CASES. 


PAGE. 

Greenfield's    Estate 584,  736 

Greenfield  Bank  v.  Stowell..   857,  807 

868 
Greenleaf  v.  Allen 299 

v.  Gerald   697 

v.  Hill    89 

Greenmen  r.  Cohee 452 

Greencragh  v.  Baleh 399 

Greentree  ( .  Rosenstock 281 

Greenway  v.  Gaither 366 

Gi-eemvell   r.   Porter 377,  439 

Greenwich  Bank  v.  De  Groot 41 

Greenwood  r.  Curtis...   508,  510,  511 

i .  Greenwood    317 

Gregg  v.  Pierce 205 

r.  Sanford    136 

v.  Woolscroft    107 

Gregory  v.  Boston  Safe  Dep.  Co..   878 

v.  Lee    80 

v.  Pierce   91 

v.  Pike    878 

• c.  Spieker    468 

v.  Wendell    406,  409 

v.  Williams    234,  244 

i:  Wilson    399 

v.  Winston    393 

Grell  v.  Levy 452,  512 

Gremm  c.  Carr's  Adm 12u 

Grenier  v.  Cota 30 

Gresley  v.  Mousley.  712,  736,  768,  770 

Grever  r.  Taylor 703 

Greville  r.  Da  Costa 334,  344 

Grey  v.  Tubbs 628 

Gribben  v.  Atkinson 541 

v.  Maxwell    101,  102 

Grice  r.  Noble 29 

Gridley  v.  Gridley 253 

Grierson  i:  Mason 312 

Grievance  Committee  v.  Brown .  . .  446 
Griffin  r.  Boynton 847 

('.   Cunningham    170 

?'.  Deveuille    745 

r.  Farrier    692 

v.  Ranney    798 

v.  Rembert  26 

Griffith  r.  Burden 145 

v.  Diffenderffer    736 

i:  Fowler    567 

■  v.  Godey   750 

v.  Sebastian   Co 612 

v.  Sitgreaves    729 

r.  Thompson   789 

r.  Tower  Pub.  Co 596 

v.  Townley   576 

■ v.  Wells    402 

v.  Young  787 

Griffiths  r.  Hardenbergh 496 

v.  Jones   602 

v.  Kellogg   585 

r.  Robins    745 

v.  Sears     402 


PAGE. 

Grigby  v.  Cox 735 

Grigg  v .  Landis 628,  629 

Griggs  v.  Swift 544 

v.  Woodruff   709 

Grim   i:  Murphy 175 

Grimaldi  v.  White 33S 

Grime  v.  Borden 415 

Grimes  v.  Butts 174 

v.  Piersol    859 

Grimsted  r.  Briggs 856 

Gring  v.  Lerch 547 

Griswold  i:  Hazard  576 

— —  r.  Minneapolis,  etc.,  Ry.  Co.  437 

V.  Waddington    429 

Groat  r.  Pracht 878 

Grommes  v.  Sullivan 144 

Gronstadt  v.  Withoff 573 

Gross  i\  Arnold 27 

v.  Caldwell    11 

■ r.  Drager    584 

i\  Leber   617 

Grosvenor  v.  Flint 446 

v.  Sherratt    742,  745 

Grotenkemper  r.  Achtermyer 15 

Groton  v.  Waldborough 438 

Grover  v.  Hoppock 200 

Grow  r.  Garlock 3S6 

Grubb's  Adm.  r.  Suit 547 

Gruman  v.  Smith 408 

Grumley   r.   Webb 390 

Grymes  v.   Blofield 840,  841 

v.  Sanders   721,  723 

Guard    v.   Whiteside 813 

Guardhouse  v.   Blackburn...   312,  914 

Guckenheimer  v.  Angevine 713 

Guderian   v.   Leland 384 

Guerin  v.  Stacey 633 

Guernsey  v.  American  Ins.  Co..  .  .  04;) 

v.  Cook 375,  376,  430 

v.  West  Coast  Lumber  Co..  332 

Guest  !'.  Burlington  Co 107 

■ ■  v.  Smythe 3N.S 

Guild  v.  Baldridge 575 

r.  Butler 384,  386 

Guild  &  Co.  v.  Conrad 170 

Guildhall,  The   508 

Guilleaume  v.  Rowe 730 

Guinness   v.  Land  Corporation  of 

Ireland 902 

Gulf,  etc.,  Ry.  Co.  v.  Hefley 495 

v.  Smith 300 

1-.  Winton 49,  50,  197 

Gulick  v.  Gulick 120 

r.  Ward     470 

v.  Webb         470 

Gullich    p.   Alford 342,343 

Gunn's   Case    37 

Gunnell   r.  aimers  n 269 

Gunning  r.  Royal 215 

Gunnison   County  Comrs.    r.   Rol- 
lins    137 


TABLE    OF    CASES. 


lxix 


PAGE. 

G-unter  v.  Addy ,  854,  855,  803 

r.  Leckey 402 

v.  Mooney 276 

r.  Williams 892 

Guptill  v.  Verback 677 

Gupton   v.  Gupton 467 

Gurin  v.    Cromartie 35 

Gurney  v.  Behrend 302 

v.  Womersley 608 

Guthart  v  Gow 448 

Guthing  v.  Lynn 48 

Guthman   v.   Parker 501 

Guthrie   i:  Bashline ,283 

l\  Kerr 250,  252 

■  c.  Morris 81 

Gutta  Percha  Co.  17.  Mayor 157 

Guy    v.    Churchill 453,  456,  461 

Gwm  v.  Anderson 874 

v.  Sirnes 809 

Gwynn  v.   Gwynn 893 

v.  Schwartz 175 

Gwynne  r.   Heaton 749 

T.  Hitchner 51 

H. 

H.  v.  W 418 

H.  D.  Williams  Cooperage  Co.  v. 

Schofield 326 

H.    W.    Williams   Trans.    Line    v. 

Darius  Cole  Trans.  Co 608 

Haack  r.  Weicken 735 

Haarstick  v.   Fox 39 

Haas   v.  Myers 39,  40,     41 

— ■ —  v.  Shaw   893 

Hebeler  v.  Rogers 336 

Habricht  r.  Alexander's  Exs 427 

Hack  v.  Rollins 395 

Hacheny  v.  Leary 39 

Hack  r.  London  Provident  Build- 
ing Society   447 

Hackensaek  Water  Co.  v.  De  Kay.  137 
Hacker  v.  Australian,  etc.,  Co . . .  340 
Hackett   r.   King 730 

v.  Martin 2S2 

Hackettstown  ads.  Swackhammer.  146 

Hackley   r.   Headley 728,  731 

■  v.  Ockford 44 

Hadcock  v.  Osmer 682,  692 

Hadley  v.  Clarke 428 

v.  Clinton  Importing  Co...   681 

Hadlock  v.  Brooks 451 

Haflin  v.  Bingham 173 

Hagan  v.  Insurance  Co 874 

Hagee  v.   Grossman 693 

Hagey  v.  Detweiler 175 

v.  Hill 385 

Haggard   v.   Conkwright 430 

Haggerty  v.  Johnston 257 

Haggett  v.  Hurley 893 

Hahn  v.  Baker  Lodge 532 

Haigh  v.  Brooks 194 

v.  North  Bierly  Union 164 


PAGE. 

Haines  v.   Busk 494 

Haines  v.  Dearborn 10 

c.  Dennett 6(i 

c.  Lewis 434,  441 

i:  Starkey    108 

Haines'  Adm.  r.  Tarrant 80,  81 

Hairston   r.  Jaudon 787 

Halbot    r.    Lens .  120 

Haldane  v.  United  States.   28,  29,  41 

Hale  v.  Dressen 818,  821 

First  Bank      285 

Forbis    205,  206 

Gerrish    09 

Hollon    459 

Insurance  Co 147 

-  c.  Ripp     249,  255 

v.  Sherwood 501,  502 

!'.  Wall    429 

v.  Wilkinson    753 

Haley  v.  Congdon 295 

Halford    v.    Cameron's   Coalbrook, 

etc.,   Co 293 

Halhead   r.  Young 310 

Halifax  Union  Guardians  v.  Wheel- 
wright      586 

!  Hall,  Ex  parte 199 

j lie 805 

j  Hall  r.  Alford 256,  257,  27) 

Bainbridge    236 

Bishop 402 

Butterfield    68 

Carmichael   393 

v.  Cazenove 523 

i>.  Cockrell 109 

v.  Conder    609 

v.  Dimond  571 

!\  Dyson 380 

v.  Eccleston 891 

v.  Ewin  203,  306 

v.  First   Bank 49,  573,  833 

v.  Fuller    869 

v.  Gilman    467 

r.  Gird  452 

v.  Hall  630,  736,  739 

•  i'.  Hickman    286 

17.  Hinks 716 

v.  Huntoon 250 

v.  Jones   241 

v.  Kimmer 492 

•  17.  Knappenberger 738 

v.  Loomis 666 

v.  Mayor   of   Swansea 167 

i".  Mesenheimer    179 

■  v.  Odber  877 

v.  Old  Talargoch  Lead  Min- 
ing Co 719 

v.  Palmer   55,  413 

v.  Perkins    744 

■  i".  Railroad  Co 17 

V.  Rogers   171 

r.  Smith   '. 934,  872 

v.  Timmons  83 


c. 
t\ 
r. 
•r. 


Ixx 


TABLE    OF    CASES. 


PAGE.  , 

Hall  v.  United  States 58 

v.  Warren 98  ! 

v.  Weaver    866,  872 

r.  Wheeler   578 

v.  Wright.  .  .    465.  543,  546,  547  | 

Hall's  Adm.  v.  McHenry 862,  872 

Hall-Dare  u.  Hall-Dare 644 

Halle  v.  Newbold 301 

Hallenbeck  v.  Dewitt 584 

v.  Kindred    258 

Hallett  r.  Holmes 385 

— —  r.  New  England  Grate  Co .  .  580 

v.  Oakes  99 

r.  Wylie 531 

Halletsville  t:  Long 662 

Halliburton  r.  Nance 240 

Hallidie  v.  Sutter  St.  Ry.  Co 51 

Hallock  r.  Insurance  Co 39 

Hallows  c.  Fernie   692 

Halls  v.  Thompson 693 

Halsey  r.  Grant 663,  664 

■ v.  Reed 262 

Ilalsted  v.  Francis   259 

Ham  r.  Greve 660 

Hamarskold  v.   Bull 112 

Hambell  r.  Hamilton 789 

Hamblet  v.  Insurance  Co 43,  657 

Hamblin  v.  Bishop 616 

Hamer  v.  Sidway 185,  196 

Hamet  v.  Letcher 592,  718 

Hamilton  v.  Browning 299 

r.  Grainger 403 

v.  Gray 451 

v.  Hamilton 444 

r.  Hart 827 

r.  Hector  462 

I!.  Home  Ins.  Co 445,  448 

r.  Hooper 862.  863 

!'.  Insurance  Co 161,  429 

• v.  Lycoming    39 

r.  Railroad  Co 161 

v.  Smith    394 

— —  v.  Stewart S3P 

v.  Thirston    789 

v.  Thrall    332 

v.  Vaughan-Sherrin  &  Co. . .  .   69 

r.  Vought    292 

p.  Watson     660,  601 

<v.  Wood     854,  861 

Hamilton  Co.  r.  Milliken 703 

Hamlen  v.  Werner 301 

Hamlin  r.  Abell 683 

r.  Drummond  240 

■  v.  Great  Northern  Ry.  Co .  .  .   16 

Hamlyn   &    Co.    v.    Talisker    Dis- 
tillery     446,  506 

Hammer  v.  Breidenbach 549 

Hammersley  v.  Baron  de  Beil 466 

915,  916,  917,  918 

Hammond  r.  Hopping 809 

17.  Messenger 279 


PAGE. 

Hammond  v.  Pennock 710,  713 

Hampden  v.  Walsh  501 

v.  Mayes    869 

Hanauer  v.  Doane.   409,  431,  486,  489 

v.  Gray 483 

v.  Woodruff   431,  497 

Hanback  v.  Corrigan 596 

Hanchett  v.  Blair 786 

Hancock  17.  Hancock  95 

v.  Harper    774 

v.  Peaty    99 

v.  Watson 622 

Hand  v.  Baynes 528,  530 

— —  r.  Evans  Marble  Co .  .  .   257,  259 

v.  Hand   88 

v.  Kennedy   261 

Handforth  v.  Jackson 343,  715 

Handlin  v.  Davis 743 

Handy  v.  St.  Paul  Globe  Co 515 

— —  c  Waldron    692 

Hanford  ;;.  Blessing 631 

Hanger  v.  Abbott 428 

Hannington  v.  Du  Chastel 438 

Hankins  ;:.  Shoupe 295 

Hanks   v.  Barron 20*,  210 

v.  Nagles 411 

Hanley  v.  Pearson 643 

17.  Sweeney 6S3 

Hanlon  v.  Doherty 820 

17.  Wheeler    79 

Hanna  17.  Ingram 408 

r.  Kasson 749 

17.  Mills 346 

17.  Wilcox  735 

Hannah  17.  Fife 470 

Hannahs  v.   Sheldon 103 

Hannan  v.  Prentis 388 

Hannigan  17.  Allen 258,  266 

Hannum  v.  Richardson 654 

Hanover  Bank  v.  First  Bank 487 

Hanover  Fire  Ins.  Co.  v.  Lewis. . .  .   448 

Hanover  Nat.  Bank  r.  Blake 379 

Hanrahan  17.  National  Assoc 706 

Hansen  v.   Gaar 204,  215 

17.  Myer    298 

Hansley  v.  Railway  Co 17 

Hanson  17.  Crawley 860 

17.  Marsh    179 

Hanson  v.  Waller 565 

Hanson  Trustees  v.  Stetson 187 

Hanthorn  v.  Quinn 528 

Harben  17.  Phillips 897 

Harberg  v.  Arnold 265 

Harbers  17.  Gadsden 664 

Harbison  17.  Lemon 104 

Harbor  17.  Morgan 829 

Harcrow  r.  Harerow 377 

Harden  r.  Lang 343,  340 

Hardesty   v.   Cox 257 

v.  Jones 170 

Hardin  v.  Boyd 775 


TABLE    OF    CASES. 


lxxi 


PAGE. 

Hardin   v.  Young 89 

Harding,  In  the  Goods  of 90 

v.  American  Glucose  Co.  ...   135 

v.  Durand 775 

v.  Gibbs 27 

v.  Hagar 402 

v.  Hale   877 

Hardman  v.  Booth 592,  718 

Hardware  Co.  v.  Deere 121 

Hardwick  v.  King 837 

Hardy  v.  Dyas 101 

v.  Jones   501 

v.  Metropolitan     Land    and 

Finance  Co 570 

v.  Van  Harlingen 735 

t\  Waters 66 

Hare  v.  Murphy 261,  265 

Hare's  Case   602,  711 

Harford  v.  Street 876 

Hagardine  v.  McKittrick  Co 30 

Hargrave  v.  Conroy 548 

Harker  v.  Hough  879 

Harlan  v.  Central  Phospuate  Co . .   576 

616 

Harland  17.  Person 252 

Harlem  v.  Lehigh  Co 612 

Harlow  v.  Beaver  Falls  Borough.   337 

v.  Homestead 528,  530 

v.  La  Brun   690 

-  v.  Putnam    43,  194 

Harman  v.  Harman 790 

Harman's  Case  228 

Harmon  v.  Adams 35 

v.  Birehard   566 

17.  Harmon 729 

Harmony  v.  Bingham 528,  731 

Harmony  Lodge  v.  White 299 

Harms  v.  McCormick 276 

v.  Parsons    478 

Ham  v.  Smith 175 

Harnden  v.  Melby 502 

Harner  v.  Dipple 66 

17.  Fisher 113 

Harnett  v.  Holdrege  860 

Harper  v.  Bank  110 

v.  Hampton 836 

v.  Harper 176,  505 

17.  Little 106 

v.  Reaves 848,  874 

v.  Stroud 862,  863 

v.  Terry 713 

Harran  v.  Foley 605 

Harraway  v.  Harraway 735 

Harrell  v.  Miller  173 

v.  Watson 217 

Harries  v.  Edmonds 350 

Harriman,  The  528 

Harriman  v.  Tyndale 180 

Harrington  v.  Connor  125 

v.  Harrington 877 

17.  Kansas  City  R.  R.  Co.  . .   176 


PAGE. 

Harrington  v.  Long 453,  457 

17.  Rutherford 689 

v.  Victoria     Graving     Dock 

Co 389 

17.  Watson 531,  532 

Harrington's  Adm.  v.  Crawford .  .   495 

Harris  v.  Brisco 451,  461 

—  r.  Cannon 63 

v.  Carmody    729 

v.  Carstarphen    737 

17.  Carter 204 

v.  Cassady   210 

17.  Chamberlain   439 

v.  G.  W.  Ry.  Co 54 

v.  Harris    217 

17.  Heackman 299,  531 

17.  Johnson 543 

17.  Mckerson 15,     18 

17.  Oakley 175 

p.  Owen 848,  851 

v.  Pepperell 600,  644 

17.  Porter 178 

v.  Powers 173 

v.  Quine 780 

■ 17.  Runnels 402,  432 

v.  Scott 30 

v.  Smith 589 

v.  Social  Mfg.  Co 880 

v.  Taylor   89 

17.  Tremenheere 746 

17.  Turnbridge 408 

■  v.  Tyson 683 

1?.  Wall 66 

17.  Wamsley 750 

17.  Watson 204 

v.  White 405,  406 

v.  Wilson 889 

v.  Woodruff 498 

v.  Young 169 

Harris'   Case    884,  885 

Harrisburg  Assoc.  17.  United  States 

Fidelity  Co 383 

Harrison  v.  Cage 202 

17.  Glucose  Co 468 

r.  Good 301 

17.  Guest 750,  752 

17.  Harrison 96,  685 

v.  Hatcher 488 

17.  Hicks    841 

p.  Howe 311 

v.  Insurance  Co 660,  661 

17.  Jones 399 

17.  Luke 346 

v.  Myer 531 

17.  Otley 101 

17.  Owen 848,  851 

17.  Polar  Star  Lodge 816 

17.  Railway  Co 528 

17.  Seymour 383 

17.  Simpson 257,  26/ 

r.  Talbot 600 


lxxii 


TABLE    OF    CASES. 


PAGE. 

Harrison   v.  Town    753 

c.   Tuberville 8j:> 

v.  Wilcox 212 

r.  Wright       257,  267 

Harrison  Machine  Works   ( .  Mil- 
ler    342 

Harrod   v.  Carder's  Adm 770 

Harse  v.  Pearl  Life  Ass.  Co 495 

Harshberger's  Adm.  v.  Alger....  S89 

Harson  v.  Pike    14,  22 

Hart  v.  Adler  292 

r.  Bank 108 

v.  British  Ins.  Co 656 

r.  Gregg 459 

i\  Hart 49 

i.  Miles 194 

r.  Mills      604 

c.   Norton 12 

r.  Sharpton   874 

('.   State 451 

r.   Swaine 672 

Harter  r.  Christoph 640 

v.  Elzroth 054 

p.  Harter     914 

Hartford  Fire  Ins.  Co.  v.  Chicago, 

etc.,  Ry.  Co 515 

r.  Davenport 248,  259 

Hartford  Ins.  Co.  v.  Hon 449 

c.  Lasher  Stocking  Co 39 

Hartford,  etc.,  R.  Co.  v.  Jackson.  .  599 

Hartley  r.  Cummings 197,  481 

r.  Harrison 275 

>\  Ponsonby       204,  205 

v.  Pace 465 

— ■ — •  v.  Sandford 171 

Harts  P.  Emery 261,  270 

Hartung  v.  Witte 175,  298,  301 

Hartwell  v.  Gurney 684 

Harvey  v.  Briggs  68 

v.  Curry      890 

r.  Dale 654 

r.  Facey       19,  45 

v.  Farnie 579 

v.  Gibbons 524 

v.  Girard 579 

v.  Grabham 822,  824 

r.  Harris 599 

•  v.  Hunt 378 

V.  Merrill        406,  408 

■  v.  Mount 745 

v.  Smith 865,  868 

v.  State 870 

v.  Sullens 734 

r.  Tama  County    841 

Harvey  Lumber  Co.   v.  Herriman 

Lumber  Co 257 

Harwell  r.  Steele  776 

Hasbrouck  r.  Tappen 823,  824 

Haskell  v.  Burdette 383 

v.  Champion  ....   859,  860,  862 


1  PAGE. 

Haskell  v.  Davidson 23 

c.  Starbird 699,  i  ui 

v.  Tukesbury 179,  214 

Hassinger  v.  Newman 171 

Hastelow  v.  Jackson 501,  503 

Hastings,  Lady,  Re 895 

v.  Dollarhide 66,  67,  69 

r.  Lovejoy   827 

r.  Lovering 052,  G5.'J 

Hatch  r.  Coddington 106 

r.  Douglas 408 

r.  Hanson 500 

v.  Hatch   735,  736,  744,  845 

c.  Hatch's  Est 69 

l\  Leonard 90 

i:  Mann 205 

r.  Searles 807 

v.  Spoil ord 877 

Hatcher  v.  Buford 395 

Hathaway  r.  Lynn 81S 

Hatton,   Re    834 

Hatzfield  v.  Gulden   434 

Haubelt  v.  Rea  &  Page  Mill  Co .  .  604 

Hauessler  r.  Missouri  Iron  Co.  .  .  304 

Ha  ugh  v.  Blythe's  Exs 177,  789 

Havana  rress  Drill  Co.  r.  Ashurst.  210 

Haven  i .  Foster 580 

Haven  i\  Russell   51 

Haviland  v.  Halstead 120 

v.  Willets 614,  618,  689 

Haw  r.  American  Wire  Nail  Co.  .  181 

Hawes  c.  Dingley 710 

Hawk  r.  Marion  County 14 

Hawkins  r.  Chace  180 

i .  Davis 592 

('.   Graham 51,  52 

v.  Hawkins       584 

r.  Pemberton      654 

c.  Smith 402 

Hawkinson  v.  Harmon  181 

Hawksworth  !'.  Hawkswofth 462 

Hawley  r.  Bibb  292,  407 

r.  Exchange  Bank  ....   257,  207 

r.  Foote 829 

r.  Howell       103 

v.  Moody 787 

r.   Smith 550 

r.  Wilkinson 257 

Hawralty  c.  Warren  572 

Hay  c.  Insurance  Co 639 

Hay's  Case 389 

Hay's  Estate 470 

Haycraft  i\  Creasy  G92 

Haydel  r.  Mutual  Life  Assoc 573 

Hayden  r.  Devery 272 

v.  Goodnow 874 

v.  Snow 272 

i\   Souger        22,  205 

Haydock  r.  Haydock  737,  738 

Hayes  » .  Allen  832 

v.  Gross 538 


TABLE    OP    CASES. 


Ixxiii 


PAGE. 

Hayes   v.   Hyde   Park 432 

r.  Jackson 178 

v.  Massachusetts  Co 214 

V.  Nashville 352 

c.  Pai-ker    85 

c.  Wagner 848,  858,  869 

v.  Waverlv,  etc.,  Co 301 

v.  Wells  .' 384 

Have's  Exs.  r.  Hayes 914 

Haygarth   c.   Wearing.  .   670,  672,  765 

Haymaker  i:  Eberly 214 

Haymond  v.   Camden    430 

Haynes  i:  Doman   477,  479,  483 

!'.  Nice 785 

i:  Rudd 440,  496,  747 

r.  Second  Baptist  Church . .   528 

538 

Hayney  i\  Coyne 451 

Havs   (,-.  Cage    877 

— -  v.  Gas  Light  Co 142 

r.  Hall 324 

r.  Kershaw 217 

i'.  Midas 708 

r.  Odom 853 

v.  Railroad  Co 130 

Hayward  v.  Andrews   279 

r.  Barker 200 

v.  Hayward   89 

r.  Leeson 389,  670 

i:  Nordberg  Mfg.  Co 430 

Haywood   r.    Brunswick   Building 

Society 302,  305 

■ •  v.  Cope 754 

v.  McNair 295 

Hazard  r.  Dillon   500 

v.  Griswold    584,  725,  729 

v.  Insurance  Co 599 

v.  Railroad 302 

Hazen  v.  Mathews 302 

Hazle  v.  Bondy 261 

Hazlerigg  v.  Donaldson 728 

Hazlett  v.  Burge 689 

v.  Sinclair 300,  301 

Head  v.  Clark 15 

v.  Diggon   31 

v.  Goodwin 782 

Headley  v.  Pickering 689 

Heady  v.  Boden 66 

Heagney  i.   J  I.   Case  Machinery 

Co 350 

Heaps  r.  Dunham 729 

Heard  v.  Bowers 358,  359 

v.  Pilley 174 

V.  Tappan 866 

Hearn  v.  Kiehl 832 

Hearne  v.  Chadbourne 178 

v.  Insurance  Co 641 

Heartley  v.  Nicholson  219 

Heath  r.  Blake  .  . .   851,  854,  863,  870 

v.  Crealock 56S 

v.  Heath 176 


PAGE. 

Heath  v.  Vaughn   834 

v.  West 07 

Heathcote  v.  Paignon 754 

Heaton  V.  Eldridge 784 

v.  Norton  Co.  Bank 729 

Heaver  c.  ijanahan  349 

Hebb's  Case  31,  35,  884 

Hebblethwaite  v.  Hepworth 158 

Heburn  i\  Warner  891 

Hecht  v,  Batcheller   607,  654 

i:  Caughron 256 

Hecker  v.  Mahler 863 

Heckman  v.  Doty 498 

i\  Manning 820 

■  v.  Swartz 488 

Hedin  v.  Minneapolis  Institute .  .  .   692 

Heermans  v.  Ellsworth 282 

Heeter  v.  Glasgow 312 

Heffer  v.  Martyn  470 

HeiBeld  v.  Meadows  315 

Heffron  v.  Pollard 110 

Heflin  v.  Milton  176 

Hefner  v.  Vandolah 443 

Hefter  v.  Calm  378 

Hegenmyer  v.  Marks    743 

Hei  v.  Heller  173 

Heideman  v.  Wolfstein   180 

Heilbronn  v.  Herzog 707 

■!'.  MeAleenan 7 IS 

Heilbutt  r.  Hickson 342,  619 

Heim  i\  Vogel   ^.ui,  265 

Heinlin  v.  Fish 816 

Heins  v.  Lincoln 146 

Heirn  v.  Carron  832 

v.  McCaughan  17 

Heiserman  v.  Railroad  Co 731 

Heisley  v.  Swanstrom 823 

Helberg  v.  Niehol 390 

Helburn  v.  MorTord 531,  532 

*■'  Helen,"  The 431 

Helfenstein's  Est 42,  187 

Hellen  v.  Anderson  464 

Heller  t.  Elliott 708 

Helmer  v.  Krolick 292 

Helms  v.  Douglas 291 

v.  Franciscus 415 

Helps  ('.  Clayton 79 

Heman  v.  Gilliam 863 

Hemingway  r.  Coleman 749 

v.  Hamilton 679 

Hemmer  r.  Cooper 690 

Hemminger  r.  Western  Assur.  Co.  337 

Hemphill  v.  McClimans 199,  200 

Hemsley  v.  Hotel  Co 302,  300 

Hendee  r.  Cleaveland 3S7 

Henderson     f.    Australian    Royal 

Mail,  etc.,  Co 162,  1G3 

v.  Bellew   275 

v.  Fox 74,       80 

■  v,  Gibbs 716 

v.  Henderson 415,  821 


lxxiv 


TABLE    OF    CASES. 


PAGE. 

Henderson  v.  Killey 244 

v.  McDonald  ....   249,  252,  2/3 

r.  Palmer 440 

r.  Railroad  Co 701 

r.  Stevenson 53 

r.  Stokes 639,  640 

v.  Waggoner 487 

v.  Williams 719 

Henderson  Bridge  Co.  c.  McGrath.     50 
Hendricks  r.  Railroad  Co 54 

v.  Comstook 780,  781 

— —  v.  Frank 257,  260 

v.  Isaacs    92 

v.  Lindsay 276 

v.  Robinson 199 

Hendrickson  r.  Trenton  Bank  ....   285 

Henkel  v.  Pape 604 

Henkle  v.  R'oyal  Exch.  Assce.  Co.  639 

Henley  v.  Hotaling 631 

Hennen  v.  Gilman  427 

Hennequin  v.  Naylor 679 

Hennessy  r.  Bacon 345 

r.  Bond 259,  277 

Henning  r.  Werkheiser 8uo,  866 

Henninger  r.  Heald 713 

Henricus  v.  Englert  110 

Henry  v.  Coats 862 

v.  Dennis 700 

v.  Gauthreaux    88 

v.  Heeb 443 

— — •  v.  Henry 792 

v.  Murphy 246.  256,  271 

r.  Root 175 

r.  Vance      681 

Henry,  etc.,  Assoc,  v.  Walton 443 

Henshaw  v.  Robbins 654 

Hensler  r.  Jennings 501,  5u2 

Henthorn  r.  Fraser  .  .   28,  30,  31,     33 

36,  38,  41 

Hentz  v.  Jewell 409 

v.  Miller 592,  718 

Hepburn  r.  Auld  664 

Hepler  v.  Mt.  Carmel  Bank 864 

Herbert  v.  Mueller 214 

Herbst  v.  Hagenaers  880 

Herdman  v.  Bratten  859 

Hereford  and  South  Wales  Waggon 

and  Engineering  Co.,  Re 698 

Herman  v.  Hall  696 

Herman  v.  Jeuchner 443,  502 

Herndon  i:  Gibson 470 

Herpolsheimer  v.  Funke 469 

Herr  v.  Payson 453 

Herreshoff  v.  Boutineau. . 468 

Herrick  r.  Baldwin 850 

r.  Lynch 505 

i:  Malin 845 

■  r.  Newell 787 

Herriman  v.  Menzies 469 

Herron  i .  Herron 745 

Hershey  v.  Luce  573 


PAGE. 

Hershey  v.  O'Neill   565 

Hershizer  v.  Florence 889 

Herster  v.  Herster 730 

Herter  v.  Mullen  559 

Hertzler  v.  Geigley '.   402,  493 

Hertzog  r.  Hertzog 11,     12 

Hervey  v.  Hervey 869 

Herzog  v.  Purdy 332 

-y.  Sawyer 826,  830 

Hess  v.  Dawson 332 

v.  Draffen 692 

Hesse  v.  Stevenson 624 

Hessick  v.  Hessick 735 

Hewes  v.  Platts  402 

Hewett  v.  Currier 215 

Hewitt  v,  Anderson 14 

1-.  Wilcox 802 

Heysham  v.  Dettre 728 

Heywood  v.  Mallalieu 671,  674 

Heyworth  v.  Hutchinson  654 

Hibblewhite  v.  McMorine   855 

Hick  v.  Raymond 530 

Hickerson  v.  Benson  502 

Hiekey  r.  O'Brien 197 

v.  Railway  Co 301 

Hickman  v.  Berens 603 

r.  Haynes 824 

v.  Layne 249,  254 

Hickock  v.  Hoyt 345 

Hicks  v.  Aylsworth 628 

r.  British  Am.  Assur.  Co...   361 

■  r.  Cleveland 782 

v.  Cody 577 

v.  Hamilton 265 

v.  Hicks 630 

v.  McGarry  ." 259 

v.  McGoun 880 

v.  Steel 743 

— — ■  v,  Stevens 695 

v.  Wyatt   256 

Hidden  i:  Chappel   238 

Hides  v.  Hides 746 

Higby  v.  Whittaker 342,  344,  345 

Higert  v.  Trustees  187 

Higgens's  Case   875 

Higgins  r.  Dale 199 

v.  Eagleton 345,  354 

■  v.  Hayden  . 701 

•  v.  Illinois  Bank 654 

v.  Pitt    380 

v.  Railway  Co 565 

v.  Russo 495 

v.  Samels 696 

v.  Scott 775 

v.  Senior 108 

Higginson  r.  Clowes 601,  635 

■  v .  Schaneback   174 

■  v.  Simpson 499 

Higgs  ! .  Northern  Assam  Tea  Co.  2S9 

High  r.  Worley 88 

Highberger  v.  Stiffler   744 


TABLE    OF    CASES. 


lxxv 


PAGE. 

Hilborn  v.  Buckman  729 

Hileman  v.  Wright  634 

Hill  v.  Baker 427 

p.  Blake 340,  342 

p.  Boyle 456 

■ v.  Cooper 93 

p.  Day 100,  106 

r.  Freeman 413 

i?.  Gould 226 

r.  Gray 681 

v.  Grigsby 324 

v.  Hooper   178 

v.  Jamieson 176 

v.  Levy 409 

p.  More 445,  879 

r.  Morris 596 

v.  Myers   890 

v.  Omaha,  etc.,  R.  R.  Co. . .   277 

p.  O'Neill 871 

v.  Railroad  Co 54 

i\  Spear 399,  486,  509 

v.  Sweetser 662 

v.  Thixton 289 

v.  Trainer   384 

v.  Tupper 303,  304 

p.  Walker 776 

r.  Wilson   311,  589 

Hillestad  v.  Lee 839 

Hillhouse  r.  Jennings  178 

Hilliard  p.  Eiffe 672,  725 

Hilliard  r.  New  York,  etc.,  Co.  531,  .532 

Hills  r.  Barnes 873 

■ •  v.  Loomis 631 

p.  Metzenroth 301 

v,  Rowland 641 

v.  Snell 590 

v.  Sughrue 519,  527,  542 

Hillyard  v.  Mutual  Benefit  Ins.  Co.  514 

Hilton  v.  Crooker 595 

■  v.  Eckersley 472,  473 

r.  Guyot 157 

v.  Shepherd 68 

v.  Woods 452 

Himrod  v.  Gilman 292 

Himrod  Co.  v.  Cleveland  Co 181 

Hinchman  p.  Kelley  456 

v.  Weeks 699 

Hinckley  v.  Pittsburg  Steel  Co. .  .    364 

v.  Southgate 178 

Hind  r.  Holdship 193,  258,  259 

Hindley  v.  Marquis  of  Westmeath.  418 

Hindley's  Case  30 

Hindman  v.  Bank 700 

v.  First  Bank    704 

Hinds  v.  Vattier 568 

Hindson  v.  Weatherill  736 

Hinely  v.  Margaritz  69 

Hinkley  v.  Fowler  257,  276 

v.  Smith 890 

v.  Walters 776 

Hinman  r.  Hapgood 803 


PAGE. 

Hinton  i\  Insurance  Co 640 

Hipwell  v.  Knight 628 

Hirsch  v.  Chicago  Carpet  Co 210 

Hirschbach  v.   Ketchum    452 

Hirschfeld    v.    London,    Brighton 

South  Coast  Ry.  Co 689 

Hirschman,  Re  708 

Hirschman  v.  Budd 861 

Hirst  p.  Tolson  548 

Hiscock  v.  Harris 879 

Hislop   P.  Leckie   305 

Hitchcock  v.  Bacon 525 

v.  Coker 471,  475,  476 

v.  Giddings 614 

v.  Libby  175 

Hitshins  r.  Pettingill  634 

Hitner's  Appeal   414 

Hoadly  v.  House   608 

v.  McLaine   179,  181 

Hoaglin  v.  Henderson   893 

Hoare  v.  Bremidge 726 

v.  Rennie    328,  329,  330 

Hobart  r.  Butler   803,  804 

v.  Johnson    892 

Hobbs  r.  Columbia  Falls  Co.  .   323,  341 

355,  810 

r.  Greifenhagen 199 

p.  Insurance  Co 446 

r.  McLean 375 

v.  Massassoit  Whip  Co 10 

Hoboken,  Mayor  of,  v.  Bailey.  ...  14 

Hoch's  Appeal    776 

Horhmark  v.  Richler 857,  872 

Hochstein  v.  Berghauser  640 

Hochster  i:  De  La  Tour 338,  352 

353,  359,  361,  363,  364,  365,  367 

Hockenbury  Adm.  Meyers 214 

Hockett  v.  Bailey 88 

Hocking  v.  Hamilton 361,  362 

Hocknell  i\  Sheley 870 

Hodgdon  v.  White  776 

Hodge  p.  Farmers'  Bank  860 

■  r.  Seott   874 

v.  Sloan   304 

p.  Tufts   608 

Hodges  p.  Elyton  Co 264,  384 

p.  Hall 169 

r.  Kowing 180 

v.  Nalty 187 

-p.  Phelps 250,  253,  2o3 

r.  Richmond  Mfg.   Co 176 

r.  Smith  813,  836 

Hodgson,  Re  890 

r.  Dexter 112 

v,  Perkins  . 595 

v.  Temple    432 

Hodson  c.  Davis 892 

— —  r.  Heuland  790,  791 

Hodson's  Settlement,  Re 65,     66 

Hoe  v.  Marshall 358,  813 

Hoe's  Case 813,  814 


lxxvi 


TABLE    (IF    CASES. 


PAGE. 

Hoes  v.  Van  Hoeaen 815 

Hoey    v.   Jarman    874 

v.  McEwan 544 

Hoff's  Appeal    262,  269 

Hofflin  v.  Moss 289 

Hoffman  17.  Carow 565,  567 

v.  Dixon 653 

v.  Gallagher 51 

— —  v.  Hoffman 880 

17.  Maehall 375 

v.  Maffioli 197 

— — ■  v.   Molloy    870 

17.  Planters'  Bank    854,  859 

v.  Riehl 623 

v.  Vallejo 451,  452 

Hoffman  Coal  Co.  v.  Cumberland 

Coal  Co 389 

Hogan  v.  Kyle  324 

17.  Shorb 114 

v.  Stophlet 205 

■  v.  Wixted 720 

Hoggins  v.  Gordon  803,  804 

Hoghton  v.  Hoghton  .  .  .   584,  737,  744 

Hoile  v.  Bailey 259 

Hoit  v.  Berger-Crittenden  Co 880 

17.  Hodge 501 

Holberg  r.  Jaffray 778 

v.  Armstrong 177 

17.  Connor 690,  691 

v.  Electric  Appliance  Co.  . .  .   816 

v.  Investment  Co 628 

v.  Tiffany 803 

v.  Weaver 390 

Holden  p.  Banes  19'9,  200 

— ■ — •  v.  Cosgrove 809 

v.  Rutland  R.  R 114,  859 

1?.  Upton 403 

Holder  v.  Nat.  Bank   274 

Holdridge  17.  Gillespie 390 

Hole  v.  Bradbury 596 

Holladay  v.  Patterson 425,  437 

Holladay-Klotz  Co.  17.  T.  J.  Moss 

Co 845,  848,  850,  873 

Holland,   Re    793 

17.  Cincinnati,  etc.,  Co 33G 

17.  Hall   496 

Hollida  17.  Shoop   174 

Hollingsworth  v.  Holbrook. .   845,  851 

853 

■  V.  Pickering 880 

Hollins  17.  Fowler 565,  592,  718 

Hollis  17.  Chapman 538 

v.  Stowers  177 

Hollister  v.  Nowlen 54 

Holloway  17.  Griffith  361,  365 

17.  Hill    301 

v.  Lowe  452 

Holloway's  Assignee  v.  Rudy.  199,  201 

210 
Holman  v.  Johnson 432,  433,  497 

17.  Loynes 736,  740,  743,  768 


PAGE. 

Holme  17.   Brunskill 382 

17.  Guppy 551 

Holmes  v.  Bell 876 

1?.  Blogg     69 

17.  Board    of   Trade 11,     12 

17.  Boyd    206 

17.  Doane    204 

17.  Gardner     292,  299 

v.  Holmes   211,  395,  813 

17.  Jacques    237 

17.  Knights     171 

I7w  McCray     174 

17.  Mackrell     180 

17.  Trumper     867 

Hoist  17.   Stewart   694,  695 

Holt  17.  Green    399,  402 

17.  Holt    173 

17.  Silver    550 

v.  Thurman    439 

v.  Ward  Clarencieux   66 

Holzapfel's  Co.  v.  Rahtjen's  Co...   419 

Roman    v.    Steele    187 

Homans  17.  Tyng   813 

Home  Ins.   Co.  17.  Elwell    780 

v.  Watson    213 

Home   Nat.   Bank  17.   Waterman's 

Est 264 

Homer  17.  Thwing   83 

v.  Wallis    866 

Homersham     17.      Wolverhampton 

Waterworks    Co 162 

Honek  17.  Miiller    329 

Honeyman  17.  Marryat   44 

Honour  17.  Equitable  Soc 366 

Honsding  17.  Solomon  51 

Hood  17.  Bloch 652 

v.  Hammond       775 

v.  Hampton,  etc.,  Co 549 

p.  People's,  etc.,  Assoc 344 

('.  Smith 611 

Hood-Barrs  i>.   Cathcart    97 

v.  Heriot    94,     97 

Hooker  r.  De  Palos 496 

r.  Williamson    880 

Hoole  17.  G.  W.  Ry.  Co 897 

Hoop  v.  Plummer 89 

Hooper  v.   Brundage 286 

Hooper  v.  Hooper 170,  258 

17.  Whitaker   798 

Hooper's    Case    875 

Hoover  17.  Hoover   253 

v.  Sidener    607 

Hope  17.   Hope 416,  444,  512 

Hopkins  17.  Cockerell   775 

r.  Commonwealth   557 

v.  Ensign 193,  470 

v.  Farwell   295 

—  v.  Insurance  Co 585 

17.  Logan      206 

17.  O'Kane   408 

v.  Prescott    438 


TABLE    OF    CASES. 


Lsxvii 


PAGE. 
Hopkins  v.  Richardson 199 

v.  Smith 301 

v.  Snedeker   713 

v.  Warner    261,  262 

Hopkins  Mfg.  Co.  c.  Aurora  F.  & 

M.  Ins.  Co 248 

Hopkinson  v.  Foster  894 

■  c.  Warner   271 

Hopper   v.   Covington    146 

Hoppin  v.  Tobey   737 

Hopple  v.  Brown  Township 137 

v.  Hippie  137 

Hord  v.  Taubman   859 

Horn  i\  Bray   171 

v.  Buck    608 

■  v.  Fuller 241 

v.  Keteltas    631 

v.  Newton  Bank.  .   857,  859,  866 

Hornberger    v.    Feder 336 

Hornblower  v.  Crandall  701 

Home  v.  Smith   345 

Home's    Case    300 

Horner  v.  Chicago  Ry.  Co 437 

v.  Parkhurst    608 

Horner's   Appeal    821,  828 

Horrocks  v.  Rigby 668 

Horsfall  v.  Fauntleroy 116 

v.  Thomas    696 

Horst  v.  Wagner  859 

Hort's  Case 227,  228 

Horton  v.  Davis  .  . .  ., 275 

v.  Horton's  Est 864 

v.  New  York  Life  Ins  Co .  . .     39 

r.  Williams' 717 

Horton's   Appeal    595 

Hoskins  v.  Mitcheson  786 

Hosier  v.  Beard 99,  102 

v .  Hursh    832,  834 

Hosmer  v.  McDonald 573 

r.  Wilson   349,  364 

Hostetter  v.  Alexander   292 

v.  Auman 173 

l'.  Hollinger 250,  252 

Hotchkin  v.  Third  Bank. 693 

Hotchkiss  v.  Banks    291 

v.  Dickson 495 

Hotel  Co.   v.  Jones 136 

Hotel  Lanier  Co.  «.   Johnson....   854 

Hotson  v.  Browne  310 

Hottell  v.  Farmers'  Assoc 301 

Houck    v.    Graham    862 

r.  Wright 402,  490 

Hough   v.  Brown   , 43 

v.  Hersey    275 

v.  Manzanos    Ill 

v.  Richardson    .  . .   693,  697,  715 

Hough,  Admrs.  of,  v.  Hunt 751 

Houghtaling  v.  Ball 782 

v.  Hills    679 

Houghton  v.  Milburn   277 

Houghwout  v.  Bofsaubin 180 


PAGE. 

Houldsworth   v.   City  of  Glasgow 
Bank 701,  704 

v.  Evans    901 

Hoult  v.  Baldwin    608 

Houlton  v.  Dunn  436 

v.  Nichol   436 

House   i>.  Alexander   79 

Household  Fire  Ins.  Co.  v.  Grant.     40 

885 
Housekeeper  Pub.  Co.  v.  Swift.  .  .   816 

Houseman  v.  Grossman 88 

Houser  v.  Lamont 786 

Houston  r.  Kentlinger 468 

v.  Thornton 683,  704 

Houston,  etc.,  R.  Co.  v.  Texas.  ...   431 
Hovey  v.   Chase  104 

v.  Hobson 101,  102,  104 

v.  Page    546 

How   v.  How   270 

Howard  v.  American  Mfg.  Co....   550 

v.  Brownhill 809 

e.  Bergen 176 

Howard  v.  Daly 361 

v.  Doolittle 531 

v.  Edgell   749 

v.  F.    I.     Church    of    Balti- 
more     436 

v.  Harris   630 

v.  Hoey    . 652 

v.  Huffman   850 

v.  Industrial   School    19 

v.  Odell    631 

v..  Robbins    262 

v.  Simpkins 79 

v.  Smedley    51 

v.  Turner 720 

v.  Wilmington,   etc.,   R.    Co.  816 

Howard  Col.  v.  Turner 363 

Howarth   v.    Brearley    803 

Howden  v.  Haigh   379 

Howden   (Lord)  v.  Simpson 493 

Howe  v.  Batchelder 173 

i\  Howe   101 

V.  Hutchinson 338,  352 

v.  Nickels    22 

v.  Peabody 858,  860,  871 

v.  Smith 338 

v.  Taggart 214 

v.  Watson   181 

! v.  Wilder    849 

I  Howe  Machine  Co.  v.  Farrington .   662 

Howell   v.  Coupland   539 

v.  Field   170 

■ v.  George    753,  755 

v.  Hair 781 

v.  Hale 88 

v.  Hough  257 

v.  Insurance  Co 656 

v.  Kelly   174 

v.  Monical 877 

v.  Ransom    736,  742 


lxxviii 


TABLE    OF    CASES. 


PAGE. 

Howell  v.  Stewart 487 

r.  Webb    875 

Howells  i:  Stroook  29 

Howgate  &  Osborn's  Contract,  Re.  863 
Howland  v.  Lounds  14 

b.  Maynard   130 

Howley  v.  Knight   127 

v.  Whipple    604 

Howlin  r.  Castro  335 

Howsmon  v.  Trenton  Water  Co.  .   249 

251,  254 
Hoxie  v.  Lincoln  67 

v.  Potter    462 

Hoxsie  v.  Empire  Lumber  Co.  .  .  .   832 

Hoy  v.  Holt   533 

Hoyle,  Re    171 

v.  Southern  Works....    715,  749 

v.  Stowe 63 

Hoyt  v.  Cross   492 

r.  Latham 723 

v.  Murphy    256 

V.  Thompson 160 

• v.  Wilkinson 67 

Hubbard  r.  Belden   548 

v.  Bugbee 200 

):.  Matthews   429 

v.  Moore 486 

• v.  Ogden    383 

i .  Sayre 488 

r.  Tenbrook    112 

r.  Williamson    865 

Hubbell  r.  Carpenter   385 

v.  Custer    City    146 

v.  Pacific   Mut.    Ins.   Co....   340 

r.  Von  Schoening   627 

Hubbert  v.  Borden   112 

Huber  v.   Guggenheim   689 

c.  Johnson    451,  452 

r.  Steiner 780,  781 

Huckabee  v.  May  256 

Huckins  r.  Hunt   378,  380 

Hucklesby  v.  Hook   180 

Huddersfield  Banking  Co.  v.  Lis- 
ter       615,  645 

Hudson,  Re,  Creed  v.  Henderson.  186 

r.  Hudson        466 

v.  Eevett    857 

Hudson's  (Lody)   Case 846 

Hudson's  Co.  v.  Tower   27,  187 

Hudson    Iron    Co.    v.    Stockbridge 

Iron    Co 640 

Hudspeth  v.  Thomason    638 

Huff  v.  Cole   864 

Huffman  r.  Hummer   627 

v.  Long 123,  592 

v.  Mulkey    335,  822 

v.  Western  Mortgage   Co.  . .   262 

274 

Huger,    Re    776 

Hughes,   Re    93,  890 

Hughes   v.   Done    807 


PAGE. 
Hughes  v.  Gross  544 

v.  Hamilton 890,  891 

v.  Humphreys    913 

v.  Jones    664,  605,  669 

v.  Klingender 509 

v.  Littlefield 854 

v.  Oregon  Co 258,  276 

v,  Pennsylvania  R.  Co 508 

v.  Sheaff    631 

v.  So.    Warehouse    Co 204 

v.  Wamsutta  Mills   545 

v.  Wilson    736 

Huguenin  v.  Baseley   .  .   737,  746,  747 

768 

v.  Courtenay 536 

Hulbert  v.  Clark   775 

Hulen  v.   Earel    468 

Hulhorst  v.  Scharner 492,  505 

Hull  r.  Caldwell   608 

Hull  r.  Hayward   .....   262,  264,  269 

v.  Johnson     839,  840 

r.  Ruggles   432,  486 

■  v.  Watts    610 

Hull  Coal  Co.  v.  Empire  Coal  Co.  332 

351 

Hulle  v.  Heightman   337 

Hulme   r.   Coles    385 

v.  Tenant 887,  893 

Hulse,  Ex  parte 630 

v.  Young 109 

Humaston  v.  Telegraph  Co 550 

Humble  r.   Curtis    285 

v.  Hunter     113,  592 

Hume  r.  Mazelin  205,  206 

p.  Pocock 695 

r.  United  States   606 

Humes  v.  Decatur  Co 210 

Humfrey  v.   Dale   Ill,  316 

Humiston  v.   Wheeler    532 

Hummel  v.   Stern    52 

Humphrey    17.    Eddy    Transporta- 
tion Co 389 

f.  Merriam 693 

Humphreys  r.   Green   790 

v.  Guillow 856 

v.  New  York,  etc.,  E.  Co.  .  .   573 

v.  Third  Nat.  Bank   832 

17.  Polak       463 

Hun  v.  Van  Dyek 842 

Hungerford  v.  Hungerford ...    92,  415 

Hunnewell  v.  Duxbury 703,  704 

Hunstock  17.  Palmer 486,  487 

Hunt,  In  the  Goods  of 587 

v.  Baker 696 

■  r.  Brown 830,  834,  835 

r.  Elliott 375,  470 

v.  Gray 853,  869,  874 

v.  Higman 39 

i.  Hunt 172,  410,  414,  415 

416,  418 
■  r.  King 253 


TABLE    OF    CASES. 


lxxix 


PAGE. 

Hunt  v.  Livermore 49 

c.  New  Hampshire  Fire  As- 
soc   259 

v.  Peake 65 

v.  Postlewait  205 

v.  Rousmaniere's      Adminis- 
trators   576,  577,  636,  641 

-  v.  Shaekleford 286 

Silk 342,  715 

Strew 259 

Test 436 

Wimbledon  Local  Board. .    147 
164,  167 

r.  Wyman 28 

Hunter  v.  Agee 495 

Atkins 768 

Bilyeu  633 

Cobb    798 

Daniel 453,  457 

McLaughlin 691 

Noli 438,  439 

Owens 750 

Parsons 866 

Pfeiffer 470,  500 

Starkes 778 

Tolbard 100 

Walters 586,  588,  593 

Wilson    256,  276 

Huntington  v.  Asher 304 

i'.  Bank 867 

V.  Bardwell 470 

-  v:  Clark 379 

r.  Finch 862 

■  v.  Knox 109,  114 

p.  Wellington 171 

Huntsville  v.  Huntsville  Gas  Light 

Co 114 

Hurd  r.  Bickford 717 

v.  Gill 550 

Hurlbut  v.  Hall 866 

v.  Phelps    836 

Huron  Printing  Co.  v.  Kittleson..  226 

Hurst  v.  Beach 844 

v.  Litchfield 879 

Hurt  v.  Ford 171 

Huss  v.  Morris 639 

Hussey  r.  Horne-Payne 44,  47 

Husted  v.  Van  Ness 639 

Hustis  r,  Pieklands 402 

Huston  v.  Railroad  Co 301 

Hutches  v.  J.  I.  Case  Co 862 

Huteheson  v.  Blakeman 43 

v.  Eaton Ill 

Hutchings  v.  Miner 258 

v.  Stilwell 501 

Hutchins  v.  Dixon 415 

v.  Kimmell 158,  509 

v.  Scott 848 

Hutchinson  p.  Hutchinson 176 

v.  Tatham  .  ; 105,  111 

v.  Wright 384 


v. 
v. 

V. 
V. 


V. 

r. 
v. 
v. 
c. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


PAGE. 

Huthmacher  v.  Harris's  Adm ....   590 

Hutley  v.  Hutley 451,  453,  461 

Hutton  v.  Bulloch 109 

■  v.  Campbell 386 

i\  Dewing 708 

v.  Hutton's  Adm 92,  416 

c.  Warren 316 

Huyett  Mfg.  Co.   v.  Chicago  Edi- 
son Co w 538 

Hyatt  v.  Dale  Mfg.  Co.  .* 194 

•  f.  Robinson 729 

Hybart  r.  Parker 236 

Hyde  v.  Hyde  &  Woodmansee.  .  .  .  509 

v.  Miller 262,  264 

v.  Wolf 116 

v.  Wrench 30 

Hydeville  Co.  v.  Eagle  R.  R.  Co..  .  827 
Hydraulic  Engineering  Co.  v.  Mc- 

Haffie 629 

Hyer  i:  Hyatt 66,  80 

■  r.  Little 749 

Hyer  v.  Richmond  Traction  Co.  .  .  470 

Hyman  v.  Cain 80 

Hynds  v.  Hays 484 

Hynes  v.  MeDermott 158 

Hynson  v.  Dunn 725 


Iasigi  v.  Brown 700 

Ide  v.  Churchill 382 

Ilett  v.  Collins 775 

Ilgenfritz  r.  Ilgenfritz 735,  742 

Illinois  Central  R.  Co.  v.  Schwartz  877 

Illinois  Land  Co.  v.  Speyer 456 

Illinois  Leather  Co.  .v.  Flynn 679 

Ilsley  r.  Merriam 108 

Imlay  v.  Huntington " .  .  .  231,  891 

Imperial  Loan  Co.  v.  Stone..   98,  100 

103 

Inchbald  v.  Western,  etc.,  Co 363 

Ind's  Case 603 

,  India  Bagging  Assn.  v.  Kock 468 

Indiana  v.  Woram 142 

Indiana  Mfg.  Co.  v.  Hayes 10 

Indiana  Meeting  v.  Haines..  .  722,  889 
Ingalls   v.   Hobbs 673 

v.  Miller 747 

r.  Sutliff 204 

i  Ingersoll  v.  Martin 199,  812 

J v.  Roe 747 

Ingle  v.  Hartman 388 

j  Inglish  v.  Breneman 861,  867 

|  Ingraham  r.  Baldwin 101 

i v.  Whitmore 880 

j  Ingram  r.  Ingram 261,  264,  470 

■  r .  Little 855 

r>.  Osborn   259 

r.  State    558 

Inhabitants  v.  Huntress 856 

j  Inman  r.  Inman 86 

I  Unnis  v.  Templeton 88 


lxxx 


TABLE    OF    CASES. 


PAGE. 

Inskoe  v.  Proctor 636 

Insurance  Co.  v.  Atwood's  Admx.  429 

v.  Babcock S!J  1 

v.  Bachler 659 

— —  v.  Bailey 726 

v.  Blankenship J  02 

v.  Brehm 688 

v.  Clopton 429 

v.  Crane    640 

v.  Doll 573 

■  v.  Duerson 429 

v.  Dutcher 573 

v.  Elliott 499 

v.  Findley . 385 

v.  Prance 658 

v.  Frear  Stone  Mfg.  Co. .  .  .  719 

■  v.  Gridley 658 

v.  Hachfield 291 

v.  Hamill 659 

v.  Harmer 659 

v.  Hearne 641 

— ■ — •  v.  Henderson 589,  640 

v.  Hilliard 66,  429 

— —  v.  Hodgkins 584 

v.  Holoway 385,  661 

v.  Horan 659 

v.  Hull 440,  492,  503 

v.  Humble 701 

-  r.  Hunt 102 

r.  Hutchinson 533,  726 

v.  Ireland 177 

v.  Knabe  Co 39 

v.  Mabbett 662 

v.  Manning    146 

v.  Massachusetts 136 

v.  McCain 106 

■  v.  McWhorter 584 

■  v.  Meeker 729 

v.  Morse 446 

v.  Noyes 74,     79 

■  r.  Oakley 161 

v.  Pyle      658 

v.  Railroad  Co 54 

v.  Reed     688 

v.  Ruden's  Ad 656 

r.  Buggies 657 

— ■ —  v.  Ruse 614 

■  v.  Scott         385 

v.  Simmons 385 

v.  Spradley         487 

■-  v.  Stoney 656,  657 

v.  Turner • 675 

v.  Tuttle 886 

r.  Warwick 429 

v.  Wise 658 

Interior  Woodwork  Co.  v.  Prasser  140 
International     Bank     v.     German 

Bank 294 

r.  Parker 865 

International  Trust  Co.  v.  Wilson  291 


PAGE. 

Interstate  Tel.   Co.   v.   Baltimore 

Tel.  Co 116 

Ionides  v.  Pacific  Insurance  Co . . .   796 

i:  Pender 656,  697 

Iowa  Valley  Bank  v.  Sigstad 861 

Ipswich  Tailors'  Case 472 

Ireland  v.  Ireland 735 

.  v.  Rittle 175 

Irick  V.  Fulton's  Exs 602 

Irnham   (Lord)  v.  Child 577 

Iron  Co.  v.  Harper 388 

Irvin  v.  Irvin 444 

Irvine  v.  Irvine 69 

v.  Watson 115 

Irwin  v.  Johnson 821,  828 

v.  Lee 324 

-  v.  Locke 199 

v.  Lombard   University 187 

249    255 

v.  Williar 389,'  406 

v.  Wilson 582,  599,  603,  618 

Isberg  r.  Bowden 114 

Ish  v.  Crane 106 

Isler  v.  Baker 103 

Isnard  v.  Torres b68 

Ison  r.   Wright 449 

Ivans  v.  Laury 652 

Ivens  r.  Butler 894 

Ives  v.  Bank 867 

v.  Hazard 635 

v.  Jones    495 

r.  Sterling   187 

Ivey  v.  Lalland 432,  508 

Izard  v.  Izard 794 

i.  Middleton 176 

J. 

J.  B.  Alfree  Mfg.  Co.  v.  Grape.  .  .  346 

J.  G.  v.  H.  G 416 

J.  I.  Case  Co.  t.  Peterson 872 

J.  I.  Case  Works  v.  Marr 52 

Jackson,  Ex  parte   401 

Jackson  r.  Blodgett  299 

v.  Brick  Assoc 500 

v.  Burchin    63 

v.  Campbell  160 

v.  Carpenter 63 

v.  City  Bank   486,  487 

v.  Cobbin 204 

v.  Creswell 528 

v.  Day 873 

v.  De  Long 880 

r.  Duchaire 377 

v.  Ely 625 

v.  Evans 173 

r.  Gould 845,  848 

v.  Hall 347 

v.  Hamm 281 

v.  Harder 175 

v.  Hayner 584 

v.  Higgins 174 


TABLE    OF    CASES. 


Ixxxi 


PAGE. 

Jackson  v.  Johnson   856 

v.  Ligon  627 

v.  Litch 823 

v.  Longwell 775 

V.  Ludeling  . 377 

r.  Malin 859 

v.  Olney 589 

v.  Pennsylvania  R.  Co 842 

v.  Perrine 573 

v.  Stackhouse 828 

v.  Stanfield 786 

v.  Stevenson 306 

v.  Turquand 44 

-; v.  Union   Marine  Insurance 

Co 543 

v.  Willard 299 

Jackson  Iron  Co.  v.  Negaunee  Co.  177 

277 

Jacobs,  Ex  parte 384 

Jacobs  v.  Credit  Lyonnais. . .   514,  530 

v.  Gilreath 856 

i\  Locke 664 

r.  Revell 665 

i?.  Seward 570 

Jacquinet  v.  Boutron 553 

Jaffray  v.  Davis 211,  844 

«>.  Wolf 707 

Jaggar  v.  Winslow 688 

James,  Ex  parte 580 

James,  In  re 557 

James  v.  Burchell  324,  354 

v.  Clough   187 

v.  Cotton : 334 

v.  Couchman 739 

v.  Cutler 639 

v.  Darby 30,     44 

r.  Day  '.   264 

v.  Fulcrod 470 

v.  Gillen 68 

v.  Hodsden 697 

v.  Isaacs    593,  841 

r.  Jellison 483 

v.  Kerr 451 

v.  Patten 180 

v.  Roberts 492,  505 

v.  Smith 783 

v.  Steere 444 

v.  Tilton 854 

James  H.  Rice  Co.  v.  Penn  Co..  .   369 

James  T.  Hair  Co.  v.  Daily 391 

Jameson  v.  Gregory 486 

Jamieson  v.  Indiana  Gas  Co 514 

Jamison  v.  Calhoun 495 

v.  Ludlow  .' 199 

v.  Petit 175 

Jangraw  v.  Perkins   464 

Janney  v.  Goehringer   856 

January  v.  Martin 753 

Janvrin  v.  Exeter 14 

Jaqua  v.  Montgomery 289 


PAGE. 

Jaques  v.  Withy 515 

Jaquess  v.  Thomas,  Re  Thomas.  .   454 

Jaquith  v.  Adams 346 

Jarboe  v,  Severin 787 

Jarman  v.  Wilkerson 891 

Jarratt  c.  Aldham 771 

Jarrett  v.  Hunter 179 

Jarvis  v.  Cowger's  Heirs 627 

v.  Rogers 294 

■ •  v.  Schaefer 108,  388 

Jay  and  Amphlett,  Be 894 

Jee  v.  Thurlow 417 

Jefferson  v.  Asch.  .   250,  254,  256,  276 

v.  Burhans  497 

v.  Hewitt 691 

Jefferson  County  v.  Hawkins 579 

Jefferys  v.  Gurr 167 

Jeffrey  v.  Bigelovv   702 

v.  Rosenfeld   854,  870 

Jeffreys  v.  Southern  Ry.  Co 625 

Jeffries  v.  Insurance  Co 658 

v.  Mutual  Ins.  Co 451 

v.  Wiester 388 

Jefts  v.  York 122 

Jehle  v.  Brooks 260 

Jellison  v.  Jordan 787 

Jemison  v.  Bank 142 

Jenkins  v.  Clarkson 204 

v.  Freyer 89 

v.  Frink 470 

v.  Jenkins 623 

v.  Jenkins'  Heirs   98 

v.  Jones 458 

v.  Kebren 23 

v.  Mapes 590 

v.  Morris 104 

v.  Pye 735,  769 

v.  Stetson 459 

v.  Trager 175 

Jenks  v.  Fritz 610 

■  v.  Fullmer 571 

v.  Shaw 775 

Jenners  v.  Howard   104 

Jenness  v.  Lane   204,  832 

v.  Mount  Hope  Iron  Co.  ...     43 

Jennings  v.  Broughton   693 

v.  Gratz 652 

v.  Johnson 454,  912 

v.  Lyons 544,  548 

v.  McConnell 736 

v.  Rundall 83 

Jennings'  Appeal   134 

Jenson  v.  Lee 337 

Jepherson  v.  Hunt   169 

Jervis  v.  Berridge 312 

v.  Tompkinson 542 

Jester  *.  Sterling 264 

Jesup  v.  City  Bank 853 

v.  Illinois  Central  R.  R.  Co.  246 

259,  723 


lxxxii 


TABLE    OF    CASES. 


PAGE. 

Jewell  v.  Neidy 451,  400 

Jewelers'  Pub.  Co.  v.  Jacobs 140 

Jewell  c.  Sehroeppel   345 

Jewett  o.  Carter 701 

v.  Railroad  Co 135 

Jewitt  v.  Eckhardt 183 

Jilson  v.  Gilbert 176 

Johannes  v.  Phenix  Ins.  Co..   259,  267 

277 

Johannessen  v.  Munroe 25 

John  v.  Sabattis  175 

John  Brothers  Co.  v.  Holmes  ....  301 
John  Griffiths  Cycle  Corp.  r.  Hum- 

ber  &  Co 180 

John  V.  Farwell  Co.  v.  Nathanson.  679 

v.  Wolf 456 

Johnasson  v.  Bonhote   783 

Johns  v.  Fritchey 104 

i'.  Wilson 259,  260,  263 

Johnson  v.  Allen 331 

v.  Bank 859 

v.  Bernheim 136 

».  Bloodgood 295 

r.  Bragge      634,  638 

r.  Brown 852 

v.  Buck 109,  182 

e.  Carpenter 292 

r.  Christian 106 

—  v.  Cummins 889 

c.  E.  C.  Land  Co 173 

r.  Elkins 440 

/.  Eveleth 571 

r.  Fall 406 

v.  Filkington   27 

v.  Gallagher      888,  893,  894,  895 

r.  Heagan 865 

v.  Hilton 451 

v.  Hubbell 467 

r.  Hudson 402 

v.  Hulings 402,  497 

v.  Hunt 464 

v.  Insurance  Co 68,  489 

c.  Johnson 743 

v.  Johnson's  Adm 199 

v.  Kimball 11,  201 

v.  Kincade 98 

r.  Knapp 257 

v.  Lansley 499 

r.  Lines 77 

r.  Lusk 89 

c.  McClung 250,  259 

■ P.  Meeker 349,  405 

■ v.  Monnell 679 

v.  Moore 850,  851,  861 

v.  Otterbein  University  ....  187 

T.  Parker 864 

v.  Parmely 275 

r.  Peck 717 

v.  Peterson       393 

r.  Pie 82 

v.  Portwood 832 


PAGE. 

Johnson  v.   Eailroad   Co 774 

v.  Raylton 315 

v .  Stephenson 43 

v.  Stockham 689 

r.  Terry 461 

v.  Tyng 332 

c.  Van  Wyek 451 

v.  Walker 545 

v.  Watson 789 

v.  Way 291 

r.  Whitman  Works   608 

v.  Wilson 175 

Johnson's  Adm.  r.  Seller's  Adm..  210 

Johnson's  Appeal   390 

Johnson  Forge  Co.  t'.  Leonard.  .  .  332 

Johnson  Harvester  Co.  v.  McLean.  868 

Johnston  v.  Allen 488 

— ■ —  v.  Boyes 18 

r.  Cole 662 

c.  Crawley 160 

v.  Georgit  Co 17 

v.  Hussey 778 

■  v.  Jones 175 

— —  ( .  Lobat 174 

v.  McConnell 402 

v.  May 861 

V.  Miller 408,  409 

.v.  Patterson 572,  584 

■  v.  Rogers     19 

v.  Eussell      502 

v.  Trippe 28 

Johnstone  r.  Marks 77 

•  v.  Milling..  .  .  341,  348,  367,  368 

Joliffe  v.  Baker 673 

Jonassohn  r.  Young 332,  339 

Ex  parte   86,  889,  891 

Be  ([1893]  2  Ch.) 65,  800 

Jones   r,  Ames 407 

■  r.  Backley 321 

v.  Bacon  .  . 171 

■  v.  Bangs 871 

■  r.  Bank 14,  487,  775 

•  v.  Booth    822 

r.  Broadhurst 291,  593 

594,  840,  841 

v.  Brown 707 

v.  Caswell   470 

v.  Cavanaugh 501 

•  v.  Chamberlain 836 

v.  Clifford   576,  615 

v.  Clifton   415 

v.  Colvin       77 

v.  Comer    1.77,  552,  7S9 

v.  Crowley 859 

r.  Daniel   44 

v.  Dannenberg  Co 440 

v.  Degge 740 

v.  Emery 680 

v.  Fleming 890 

v.  Foster 259 

v.  Gibbons 300 


TABLE    OF    CASES. 


lxxxiii 


PAGE. 

Jones  v.  Giles 913 

v.  Gordon 291 

r.  Harris   878,  888,  895 

v.  Hay 177 

v.  Higgins    272 

r.  Hoard    869 

v.  Hodgkins 106 

v .  Holm 543 

r.  Hook  780 

r.  Houghton   729 

v.  Humphreys   279 

t".  Insurance   Co 116,  275 

v.  Jamison   877 

v.  Jones   283,  465,  743,  745 

780,  788 

v.  Judd 525 

v.  Just 652 

v.  Lane 292 

v.  Lees   478 

v.  Lloyd 387 

r.  Lowery 285 

v.  McMichael   176 

v.  Merionethshire     Building 

Society 440,  443 

v.  Mial 352 

i'.  Nat.  Bid.  Assn 701 

v.  North 473,  516 

r.  Pacific  Wood  Co 258 

v.  Parker 85 

v.  Pashby  175 

v.  Peterson   729 

v.  Pouch   170 

v.  Quinnipiaek  Bank    813 

v.  Railroad  Co 550 

v.  Ransom 837 

r.  Reeves   175 

r.  Rice   442 

v.  Ricketts 759 


v.  Rimmer  . 
v.  Risley  .  . 
v.  Robinson  . 


670 
204 
235 


v.  St.     John's    College,    Ox- 
ford     529 

—  v.  Sarchett   385 

— -  v.  Sevier   409 

—  v.  Shackleford   .    . 664 

—  v.  Shelbyville   Ins.   Co 872 

—  v.  Shorter   171 

—  v.  State   590 

—  v.  Surprise   486 

—  r.  Sweet 638 

— •  v.  Thomas 258,  269,  276 

—  v.  United    States.   523,  528,  539 

—  v.  Victoria  Dock  Co...   180,  181 

—  v.  Voorhees 54 

—  v.  Waite....     194,  207,  417,  484 

—  r.  Walker   550 

—  v.  Ward 384 

—  v.  Welwood 879 

—  v.  Williams 439 


PAGE. 

Jones  v.  Witter 284 

Jones  County  ( .  Norton 11 

Jordan  v.  Coffield   79 

v.  Dobbins 42 

o.  Donahue   253 

r.  Great  Northern  Ry.  Co..  211 

v.  Indianapolis   Co 197 

?>.  James    571 

•  r.  Jordan    774 

r.  Katz 822 

r.  Loftin 662 

v.  Osgood 679 

r.  Parker 716 

r.  Railroad  Co 130 

v.  Sayre 775 

r.  Stevens   616 

i\  Stewart 873 

r.  Westerman 444 

V.  White 257,  261 

Jorden  r.  Money.  .  .  791,  916,  917,  919 

Jorgensen  r.  Jorgensen    791 

Joseph  v.  McCowsky  419 

Josephs  v.  Pebrer   296 

Joslin  v.  Cowee   708 

i'.  N.    J.    Car    Spring    Mfg. 

Co 258,  276 

Jossey  v.  Railroad  Co 584 

Joy  v.  Adams  775 

v.  Metcalf   451 

v.  St.  Louis    300 

Joyce  r.  Shafer 324,  354 

r.  Swann 45 

v.  White 550 

Judah  v.  M'Namee   801 

Judd  r.  Harrington  425,  468 

Judge  of  Probate  Court  v.  Cham- 
berlain       89 

Judson  r.  Corcoran   281,  282 

r.  Dada 261,  272 

c.  Gray    258 

— —  r.  Miller 634 

r.  Railroad  Co 54 

Judy  v.  Louderman 193,  194 

Justice  v.  Lang   180 

Juzan  v.  Toulmin   749 

K. 

Kadish  v.  Young 353,  361 

Kahn  v  Gumberts 378 

Kansas  r.  Smelting  Co 296 

Kahn  r.  Traders'  Ins.  Co 449 

v  Walton    406 

Kahnweiler  c.  Phoenix  Ins.  Co. .  .  448 

Kaiser  r.  Richardson 524 

Kalkhoff  v.  Nelson   361,  548 

Kamena  r.  Huelbig   281 

Kanaga  v.  Taylor    508 

Kane  v.  Jenkinson   345 

Kansas  City  Mut.  Ins.  Co.  v.  Coal- 
son     873 

Kansas  City  R.  R.  Co.  v.  Conlee.    178 


lxxxiv 


TABLE    OF    CASES. 


PAGE. 

Kansas   City,   etc.,   R.   R.   Co.   v. 

Morley    210 

Kansas   City    Sewer   Pipe    Co.   v. 

Thompson     253 

Kansas  Pac.  Ry.  Co.  v.  Hopkins.   257 

271 
Kansas,  etc.,  Ry.  Co.  v.  McCoy.  .  .   436 

Karberg's  Case  226,  676 

Kase  v.  Insurance  Co 595 

v  John    608 

Kasling  v.  Morris   23,  205 

Kaster  v.  Welsh   877 

Katama  Land  Co.  v.  Jernegan.  .  .    135 

Katzenbach  v.  Holt   258 

Kauffman  v.  Raeder   327,  343 

Kauffman  Milling  Co.  v.  Stuckey.608 
Kaufman  v.  U.  S.  Nat.  Bank.  .  .  .  257 
Kaufmann  v.  Cooper  .  .  249,  254,  273 
Kay  r.  Allen  22 

P.  Smith     745 

Kaye  v.  Waghorne  836 

Kayton  v.  Barnett.   110,  113,  123,  592 

Keady  v.  White   794 

Kean  v.  Brandon   388 

v.  Johnson     135 

Kearley  v.  Thomson   502 

Kearney  v.   Doyle    337 

v.  Taylor    470 

r.  Whitehead    Colliery    Co..   484 

Kearon  v.  Pearson  527 

Kearsley  v.  Cole  383 

Keates   i:  Earl  Cadogan 673,  681 

Keates  v.  Lyon   301,  305 

Keating  v.  Price   663,  667 

Keator  v.  Brown    664 

Keck  p.  Hotel  Owners'  F.  I.  Co..  840 
Kedar  Nath  Bhattacharji  v.  Gorie 

Mahomed    186 

Kee  v.  Cahill  257 

Keech  v.   Sandford    390 

Keefe  r.  National  Soc 448 

p.  Sholl     702 

Keeler  v.  Clifford 52,  332,  337 

■  p.  Harding     877 

Keen  v.  Coleman   87 

p.  Hartman    87 

r.  Stuckley    755 

v.  Vaughan's  Exs 829 

Keenan  v.  Handley   .  .    : 215 

Keene  v.  Demelman 600,  672 

r.  Weeks     869 

Keene  Mach.  Co.  v.  Barratt   857 

Keesling  r.  Frazier   171 

Kehoe  v.   Patton    258 

Kehr  v.   Smith    414 

Keighler  v.  Savage  Mfg.  Co. .  387,  388 
Keighley,  Maxsted   &   Co.   v.  Du- 

rant     113 

Keily,  Be   24 

Keiper  v.  Miller   451,  452 


PAGE. 

Keir  f.  Leeman   441,  442 

Keirn  v.  Andrews    206 

Keisselbrack  v.   Livingston    634 

Keith  v.  Hersehberg  Co 469 

v,  Kellam     734 

v.  Woodruff     639 

Keithley  v.  Pitman   240 

Kekewich  v.  Manning  217 

Keller  v.  Ashford   263,  264 

r.  Fisher     627 

v.  Holderman    3 

v.  Johnson 725 

v.  Lee   264,  269,  270 

v.  Reynolds     327 

v.  Ruppold     585 

r.  Ybarru     197 

Kelley  v.  Boettcher 774 

r.  Insurance  Co 289 

v.  MeKinney 634 

v.  Riley     495 

i\  Thompson 177,  789 

Kellogg  r.  Mix 622 

v.  Olmsted     205,  206 

r.  Peddicord 735 

v.  Robinson 301 

v.  Scott   383,  624 

v.  State 716 

v.  Stockton 22 

V.  Turpie 707 

Kelly  v.  Babcock 240 

v.  Bliss     818 

v.  Insurance  Co 489 

r.  Kelly     452 

■  v.  McGrath 395 

v.  Riley 120 

v.  Solari ; 575 

r.  Terrell 178 

■  r.  Thuey 179,  859 

p.  Trumble 854,  861 

v.  Whitney 292 

Kelner  v.  Baxter 121,  122 

Kelsey  v.  Harrison 679 

p.  Hibbs( 171 

•  r.  New  England  Co 392 

Kelso's  Appeal 88 

Kemp  v.  Balls 841 

v.  Falk 570 

r.  Freeman 607 

t>.  National   Bank 786 

Kempe  v.  Bader 781 

Kemper,  etc.,  Co.  v.  Kidder  Bank.   717 

Kempner  v.  Cohn 31,     39 

Kempson  p.  Ashbee 745,  770,  771 

Kendall   v.   Garneau 177 

r.  Kendall 850,  851 

v.  May 99 

Kendrick  v.  Latham 873 

p.  Neisz 69 

Kenicott  p.  Supervisors 292 

Kenigsberger  p.  Wingate 210 


TABLE    OF    CASES. 


ixxxv 


PAGE. 

Kennedy,  In  re 157 

Kennedy  v.  Bank 147 

v.  Brown 804,  805,  806 

v.  Brown 275 

v.  Crandell 870 

-  v.  Embry 335,  346 

v.  Green 587,  588 

v.  Lancaster  Bank 856 

v.  Lee 27 

v.  Lyell 458 

V.  Panama,  etc.,  Mail  Co. .  .   597 

606,  607 

v.  Parke 281 

v.  Richardson 691 

Kenner  v.    Harding 681 

Kenneth  v.  Railroad  Co 731 

Kennett  r.  Chambers 430 

Kennion  r.  Kelsey   875 

Kenny  v.  Lembeek 470 

Kensington,  The 53,  54,  508 

Kent  v.  Freehold  Land  Co..   602,  711 

v.  Kent 176 

l".  Miltenberger 407 

v.  Rand 200 

v.  Reynolds 844 

v.  Snyder 725 

Kentucky  Distillers'  Co.  v.  War- 
wick Co 627 

Kentucky  Mut.  Ins.  Co.  v.  Jenks.     39 

Kenworthy  v.  Sawyer 385 

Keppell  v.  Bailey 304,  306 

Kerfoot  v.  Hyman 392 

Kern  v.  Myll 673 

V.  Thurber     716 

Kernohan  v.  Durham 285,  295 

v.  Manss     292,  299  t 

Keron  v.  Cashman 590 

Kerper  r.  Wood  781 

Kerr  v.  Bell 68 

v.  Corry    145 

v.  Emerson    608 

v.  Hill     173 

v .  Lucas    193 

v.  Sydecker  775 

v.  Urie     892 

Kershaw  v.  Kelsey.  104,  426,  427,  429 

430 

v.  Kershaw    459 

Kessler  v.  Smith    181 

Ketchum  v.  Catlin    612 

v.  Evertson    345 

Kettle  v.  Eliot   73 

v.  Harvey     324 

Kettle   River   R.    Co.   v.   Eastern 

Ry.  Co 304 

Keuka  College  v.  Ray 187 

Key  v.  Jennings   721 

v.  Vattier     450 

Keys  v.  Harwood 346 

v.  Weaver    125 


PAGE. 

Keyser  v.  District   173 

v.  Hitz    892 

Keystone  Bridge  Co.  v.  McCluney.  720 
Keystone  Lumber,  etc.,  Co.  v.  Dole.  559 

Kibble,  Ex  parte 70 

Kickland  v.  Menasha  Woodenware 

Co 137 

Kidd  v.  Hurley 386 

Kidder  v.  Blake   215 

v.  Hunt     787 

v.  Kidder 816,  821,  832 

Kidderminster,  Mayor  of  v.  Hard- 
wick  159,  165,  166 

Kiefer  ;;.  Rogers 696 

Kien  i;.   Stukeley   755 

Kiewert  v.  Rindskopf 498,  501 

Kilborn  v.  Field  444 

Kilbourn  v.  Bradley 809 

v.  Brown    87 

Kilbreath  v.  Bates   142 

Kilbride  v.  Moss 169 

Kilgore  u.  Bruce 690 

v.  Jordan 82 

v.  Rich    80 

Killmer  v.  New  York  Central  R. 

Co 731 

Kilmer  v.  Smith 639 

Kimball  v.  Noyes   259 

v.  Ranney     387 

Kimberly  v.  Arms 390,  742 

Kimbrough  v.  Lane 440,  483 

Kime  v.  Jesse   851 

Kinard  v.  Glenn 864,  866 

Kincaid  v.  Eaton 23 

v.  Higgins    52 

Kincheloe  v.  Holmes   22 

Kine  v.  Turner  470 

King  v.  Barnes   174 

•  v.  Batterson    113,   595,  664 

v.  British  Am.  Co 335 

v.  Brown    789 

v.  Bushnell    786 

v.  Dahl    45 

v.  Doolittle    576,  580,  612 

r.  Downey    253 

t\  Duluth  Ry.  Co 204 

V.  Faist 338,  711,  823 

v.  Gillett 815,  817 

v.  Green     498 

v.  Hamlet    761 

v.  Hawkins    439 

v.  Haynes     383 

v.  Holbrook   ; .   639 

v.  Howard    446 

v.  King 372,  465,  484 

v.  Knapp    663 

v.  Merritt    623 

v.  Mollahan 92 

v.  Murphy   249,  254,  273 

v .  Nichols    383 


lxxxvi 


TABLE    OF    CASES. 


PAGE. 

King  r.  Remington   387 

v.  Ruckman     627 

f.  Smith    789 

r.  Steiren     363 

c.  Victoria  Insurance   Co..  .  279 

v.  Waterman    361 

v.  Welcome    790 

r.  Whitely 262,  265 

r.  Wight    300 

r.  Winants    470,  500 

King's  Est.,  Ee  440 

King  Co.  c.  Ferry   872 

King,  etc.,  Co.  !>.  St.  Louis 549 

King  Philip  Mills  v.  Slater 331 

Kinghorne  v.  Montreal  Tel.  Co...  19 

Kingman  v.  Stoddard    708 

Kingman  v.  Western  Mfg.  Co 349 

550 
Kingsbury  r.  Earle  258 

v.  Kirwan    406 

v.  Westfall     533 

Kingsford  v.  Merry 590,  592,  719 

Kingsley  v.  Davis  116 

Kingsman  R.  Co.  t.  Quinn 725 

Kingston  r.  Preston  321 

Kinkead,  In  re   892 

Kinley  r.  Irvine   387 

Kinloeh  v.  Savage   180 

Kinne  v.  Webb  394,  723 

Kinney  r.   Baltimore,   etc.,   Asso- 
ciation       449 

r.  Commonwealth     397 

• r.  Murray    790 

v.  Schmitt    867 

Kinsey  v.  Feller   88 

Kinsman  v.  Parkhurst 194,  498 

Kintrea,  Ex  parte 686,  696 

Kintzing   r.   McElrath    .  . .  .' 683 

Kirby  v.  Harrison .  .  338,  342,  345,  628 

( .  Landis    384 

Kirchner  v.  New  Home  Co 626 

Kirk  v.  Bromley  Union   166 

■ t\  Merry    205 

v.  Morrow    499 

Kirkland   r,  Benjamii     440 

Kirkpatrick  v.  Adams   407,  409 

v.  Bonsall   406,  408 

v.  Clark    488 

■ v.  Howck    386 

v.  Peshine    301 

r.  Stainer     109 

Kirksey  c.  Kirksey 215 

Kiser  c.  Holladay   11 

Kisling  v.  Shaw  736 

Kistler  v.  Indianapolis  R.  Co. .  .  .   839 
Kitchen  v.  Greenabaum    499 

i".  Lee    68 

i .  Loudenback    291 

Kitchin    v.   Hawkins    578 

Kittredge  v.  Nicholes   775 


PAGE. 

Kitzinger  v.  Beck    284 

Klamath  Falls  r.  Sacks 137 

Klapworth  v.  Dressier 263 

Klauber  v.  Street  Ry.  Co 525 

526,  528 

Kleckley  r.  Leyden 402 

Kleeb   c.  Bard 864,  874 

Kleeman  v.  Collins 180,  784 

v.  Frisbie 292 

Klein  v.  Caldwell 87 

v.  German  Bank 874 

v.  Isaacs 272 

v,  McNamara 631 

Kleinhaus  r.  Generous.  . .  % 384 

Klenke  v.  Koeltze "  .   890,  893 

Kline  v.  Baker 886 

v.  Kline 735 

r.  LAmoureux 77 

v.  Raymond 852 

Kling  v.  Bordner 790 

Knab,  Re 52 

Knaggs   r.  Green 69 

Knapman  Whiting  Co.  r.  Middle- 
sex Water  Co 528 

Knapp  t'.  Connecticut  Mut.  L.  I. 

Co 272 

v.  Mayor 146 

v.  Roche 842 

v.  Standley     285 

Knappen  v.  Freeman 701 

Kneedler's   Appeal 102 

Kneeland  v.  Gibson 147 

Knickerbocker  i\   Wilcox 122 

Knickerbocker  Ice  Co.  v.  Smith .  .  447 
Knickerbocker    Life    Ins.    Co.    r. 

Nelson 275 

Knight  i'.  Bowyer 4o6,  455,  457 

v.  Clark 112 

v.  Cooley J  9 

-  v.  Croekford 180 

v.  Hunt 380 

v.  Lee 500,  912 

r.  Marjoribanks ,  751 

— — ■  p.  Railway  Co '302 

r.  Simmons 305 

Knight,   Distributees   of,   v.    God- 
bolt  776 

Knights  Templars  Co.  v.  Jarman.   376 

Knill  v.  Williams 865 

Knisely  v.  Brown 240 

Knitting  Co.  v.  Blanchard 679 

Knobb  v.  Lindsay 753 

Knoebel  v.  Kineher 856 

Knott  v.  Dubuque,  etc.,  Ry.  Co .  .  .   257 

r.  Stephens 877 

Knottsville  Mill  Co.  v.  Mattmgly.    135 
Knowles  r.  Erwin.  .   249,  251,  252,  273 

v.  Shapleigh      878 

v.  Toone 891,  892 

Knowlton  v.  Keenan 650,  689,  916 


TABLE    OF    CASES. 


lxxxvii 


PAGE. 

Knox  v.  Bufflngton 136 

v.  Ckildersburg  Land  Co.  .  .  524 

v.  Clark 56 

r.  Gye 231,  774 

p.  Haralson 173 

p.  MoFarran 717 

v.  Rossi 798 

Knox    Blasting    Co.    v.    Grafton 

Stone 633 

Knoxville  Bank  v.  Clarke 868 

Knye  r.  Moore 412 

Koch   v.  Branch 5oo 

p.  Lyon 679,  712 

i\  Willi     114 

Kocher  r.  Cornell 890,  891 

Kocourek  v.  Marak 729 

Koegel  v.  Trust  Co 286 

Koehler  v.  Black  River,  etc.,  Co..  160 

p.  Saunders 419 

Koenigsberg  v.  Lennig 199 

Kohn  v.  Melcher 486 

v.  Renaisance 432 

Kohne  v.  Insurance  Co boi 

Kokomo  Co.  v.  Inman 332 

Kollock  v.  Parcher 262 

Kolls  p.  De  Leyer.  ..'. 892 

Koonce  v.  Wallace 64 

Koons   v.  Vanconsant 441 

Koontz  t'.  Bank 575 

Kopp  r.  Reiter 175 

Kornegay  v.  Everett 577 

Korsmeyer  Co.  v.  McClay.  .  .   249,  254 

Koster  v.  Seney 483 

Kountz  v.  Davis 69 

v.  Houlthouse   258,  259 

p.  Kennedy 858 

Kowalke    v.    Milwaukee    Electric 

Co 607 

Kraemer  P.  Adelsberger 631 

Kraft  v.  Koenig 769 

Krake  v.  Alexander 409 

Kraker  p.  Byrum 77 

Kramer  v.  Cook 531 

V.  Faulkner   565 

Kramrath  v.  Albany 161 

Kranert  v.  Simon 717 

Kraus  v.  Thompson 708 

Krause  v.  Crothersville 528 

— — -  v.  Meyer 869 

Krauser  p.  McCurdy 839 

Krell  v.  Codman 217,  467 

Kremelberg  v.  Kremelberg. . .   416,  417 

Kretschmar  v.  Bruss 382 

Kribben  v.  Haycraft 434 

Kriger  v.  Leppel 789 

Kroeger  i*.  Pitcairn 119 

Kromer  v.  Heim 832 

Kronheim  v.  Johnson 182 

Kronschnabel-Smith  Co.  v.  Kron- 

schnabel    468 

Krouse  v.  Woodward 603 


PAGE. 

Krueger  v.  Ferrant 673 

Krum  v.  Chamberlain 44 

Krumm  v.  Beach 702 

Kruse  v.  Steffens 387 

Krutz  v.  Fisher 387 

Kugler  v.  Wiseman 550 

Kuhl  v.  Chicago  &  N.  W.  R.  R. . .  .  267 

Kuhlman  v.  Leavens 384 

Kuhn  v.  Freeman 524,  525 

Kuhn's  Est.,  Ee 459 

Kullman  v.  Greenebaum.  .  .  .   378,  380 

Kulp  t\  Brant 699 

Kunert  v.  Strong 631 

Kunwar  Ram  Lai  v.  Nil  Kanth .  .  460 

762 

Kurtz  v.  Frank 361,  365,  411 

Kusterer  v.  Beaver  Dam 451 

Kyle  v.  Kavanagh 599 

L. 

Lacey,  Ex  parte  386 

Lachlan  v.  Reynolds  670 

Laehman  v.  Block 22 

v.  Lehman 145 

p.  Wood : 83 

Lacy  v.  Gard   174 

r.  Getman 543 

«.  Hall   390 

v.  Kynaston   830 

v.  Sugarman 430 

Ladd  v.  King   823 

v.  Lord    702 

v.  Nystol   725 

Lafargue  v.  Harrison 25 

Lafayette  Co.  v.  Neely 725 

La  Fayette  Corporation  v.  Ryland.  187 

Lafferty,  -Be    786 

p.  Jelly 390 

Laffey  v.  Kaufman  786 

Lafltte  v.  Selogny  200 

Lagunas   Nitrate   Co.   p.   Lagunas 

Syndicate   676 

Lahmers  p.  Schmidt 261 

Laidlaw  v.  Morrow  566 

v.  Organ 651,  683 

Laing  v.  McCall   443 

Laird   v.    Farwell    565 

v.  Wilder 419 

Lake  v.  Brown  286 

p.  Reed 291 

v.  Tyree 691 

Lake  Shore  R.  Co.  v.  Prentice. ...  130 
v.  Richards   .    . .    326,  349,  352 

550 

v.  Rosenzweig 130 

Lakeman  v.  Mountstephen  . .   169,  170 

v.  Pollard   549 

Lally  v.  Crookston  Co 789 

Lamar  v.  Micou   430 

p.  Simpson     856 

Lamare  p.  Dixon  919,  920 


1XXXV111 


TABLE    OF    CASES. 


PAGE. 

Lamb  v.  Brewster   911 

v.  Cranfield    581 

- — -  v.  Tucker    261 

Lamb's  Case   524,  557 

Lamb  Knit  Goods  Co.  v.  Lamb.  .  .  391 

.Lambert  r.  Clewley  213 

r.  Shitler    383 

Lamberton  c.  Dunham 683 

Lamborn  v.  County  Commrs 579 

Lamott  c.  Sterett  531 

L'Amoureux  v.  Gould 35 

Lampet's  Case   278 

Lampleigh  v.  Brathwait.  .  12,  186,  200 

Lamprell  v.  Billericay  Union.  ...  !6-l 

Lamprey  v.  Lamprey 211,  217 

Lamson  v.  Moflfatt   631 

Lamson  Co.  v.  Prudential  Ins.  Co.  449 

Lanahan  v.  Patterson   499 

Lancaster  v.  Elliot   39 

v.  Frescoln     254 

v.  Roberts    ' 664 

v.  Walsh   14,  23 

Lancaster  Bank  v.  Huver  .  .  .  323,  355 
Lancaster,    etc.,    Co.    v.    Murray, 

etc.,  Co.    . .- 226 

Land   Trust  Co.   v.   Northwestern 

Bank   592 

Landa  v.  Obert  729,  748 

Landauer  v.  Cochran  716 

Landell  v.  Hamilton 301,  306 

Lander  v.  Castro   119 

Landesman  v.  Gummersell 605 

Landis  r.  Boyer  199,  200 

v.  Saxton   392 

Landon  v.  Hutton   816 

Landreth  Co.  P.  Schenerel   689 

Landt  v.  McCullough 873 

Lane  v.  Bishop   893 

i .  Dayton,  etc.,  Co 68 

r.  Evans     291 

v.  Horlock    759 

v.  Pacific,  etc.,  By.  Co 854 

Lane's  Appeal   383 

Lang  v.  Henry 259 

v.  Lynch    402,  486 

Langan  i:  Supreme  Council.   361,  363 

Langden  v.  Stokes   817 

Lange  v.  Werk   483 

Langenberger  v.  Kroeger 853 

Langfort  t.  Tiler   335 

Langston  v.  Aderhold   778 

Lanning  v.  Carpenter   577 

Lanpher  v.  Glenn  531 

Lansden   v.  McCarthy    595 

Lansing  v.   Michigan   Central   R. 

Co 67 

Lantry  v.  Wallace 141,  719,  720 

Lanzit  v.  J.  W.  Sefton  Mfg.  Co..   468 

Lapp  v.  Smith    839 

Larey  r.  Baker   390 

Larkin  v.  Hardenbrook 844 


PAGE. 

Larkins  v.  Biddle 577 

Larmon  v.  Jordan   28,     29 

Larne  v.  Groezinger  59.5 

Larned   e.  Andrews    402 

Larrabee  r.  Baldwin   157 

La  Rue  v.  Gilkyson   99 

Larwell  v.  Hanover  S.  F.  Society.  140 

142 

Lasar  v.  Johnson   187 

Lash  v.  Parlin    181 

Lassalle  v.  Guildford 173,  533 

Lassence  r.  Tierney  792 

Lassiter's  Adm.  v.  Lassiter's  Ex. .    104 

Latapee  v.  Pecholier   832 

Latham  v.  Smith   798 

Lathrop  r.  Bank   161 

r.  Morris    335 

v.  Soldiers'  L.  &  B.  Assn 88 

Latrobe  v.  Winans    886 

Latshaw  r.  Hiltebeitel 859,  871 

Lattimore  v.  Harsen 204 

v.  Simmons    547 

Laub  r.  Paine  860 

Lauer  Brewing  Co.  v.  Riley 661 

Laughter's  Case  ., 552,  557 

Laur    v.    People    876 

Lauten  v.  Rowan   409 

Lavender  v.  Hall   786 

Laver  v.  Dennett   644 

Lavery  v.   Pursell    173 

v.  Turley    788 

Law  v.  Blomberg 865 

r.  Crawford    865 

v.  Grant    699,  701 

v.  Hodson     402 

Lawes  v.  Purser   194 

Lawing  v.  Rintles    528 

Lawrance  v.  Norreys   725 

Lawrason  t.  Mason   25 

Lawrence  r.  Bank. 575 

— —  r.  Beaubien 616 

r.  Clark 378 

v.  Dale    346 

v.  Fox 241,  256,  258,  260 

266,  267,  26S 
■  v.  McArter 66 

v.  McCalmont 193 

v.  Milwaukee,  etc.,  Ry.  Co.  .     48 

r.  Oglesby.  .  .    199,  249,  252,  253 

v.  Smith 419 

;-.  Staigg 600 

Lawton   p.  Estes 492,  496 

Lawyer  v.  Post   823 

Layne  v.   Bone 699 

Lazarus  v.   Cowie 295 

Leach  t\  Duvall 395 

Leach  (Doe  d.)  v.  Micklem 317 

Leach  v.   Mullett 603 

■  r.  Nichols 585 

v.  Republic  Ins.  Co 449 

Leahi  v.  Dugdale's  Adm 282 


TABLE    OF    CASES. 


Ixxxix 


PAGE. 

Leahy  v.  Dugdale 284 

Leak  v..  Driffield 96 

Leake   (>.  Ball 257 

Leal  v.  Terbush 616 

Lear  r.  Prather 577 

Learn  v.  Upstill 122 

Learoyd  v.  Brook 551 

Leary  [-.  King 393 

Leas*  v.  Walls   868 

Leask  v.  Scott 691,  717 

Leather     Cloth    Co.     v.    Hieroni- 

nius 182,  823 

Leather  Cloth  Co.  v.  Lorsont. . . .  474 

476,  478 

Leavitt  v.  Dover 528 

v.  Morrow 841 

v.  Palmer      482,  577 

v.  Windsor,  etc.,  Co 573 

Leaycraft  v.  Hedden 893 

Leazure  v.  Hillegas 141 

Lebeau  v.  General  Steam  Naviga- 
tion Co 659 

Lebel  r.  Tucker 291 

Le  Brasseur  and  Oakley,  Re, 805 

Le  Bret  v.  Papillon 104 

Leeomte  v.  Toudouze 175 

Ledbetter  v.  Davis 695 

Leddy  v.  Barney 584 

Ledger   r.   Stanton 836 

Ledlow  o.  Becton ,  169 

Lee,  Ex  parte 427 

v.  Alexander   852,  853 

v.  Briggs 353 

v.  Bude,  etc.,  By.  Co 398 

v.  Burnham 708 

r.  Cherry 180,  181 

v.  Cohick 891 

v.  Downey 776 

v.  Flemmingsburg 14 

v.  Gaskell 174 

v.  Hawks    824 

v.  Hills 6d4 

v.  Jones 660,  661,  681 

v.  Kimball 717 

v.  Kirby 577,  753 

v.  Lee 284,  736,  864 

v.  Mutual,  etc.,  Assoc 361 

v.  Newman 261,  275,  276 

v.  Onstott 879 

v.  Pearee 768 

v.  Peckham 515 

v.  Portwood 716 

v.  Sellers 378 

v.  Simmons    679 

Lee's  Adm.  V.  Hill 178 

Lee's  Exs.  v.  Boak 844 

Leech  v.  Leech 846 

Leeds  v.  Cheetham 531,  532 

Lees  v.  Colgan 205 

Leeson  v.  Anderson 211 

v.  North  British,  etc.,  Co..  353 


PAGE. 

LefTerson  v.   Dallas 786 

Le  Gendre  v.  Byrnes 387 

Legge  v.  Croker 672 

Leggett  v.  N.  J.  Mfg.  etc.,  Co 160 

Leggott  r.  G.  N.  By.  Co 223 

Le  Grand  v.  Eufaula  Bank 679 

Lehan   r.   Good 8/7 

Lehigh  Zinc  and  Iron  Co.  v.  Bam- 

ford 541,  682 

Lehman  v.   Central  Co 868 

v.  Peld 409 

v.  Press 291 

v.  Shackleford 728 

!'.  Strassberger 407 

Lehow  v.  Simonton    256 

Lehr  v.  Beaver 92 

Leicester  v.  Bose 379 

Leifchild's    Case 219 

Leigh  v.  Leigh 284 

v.  Patterson   369 

Leighton   v.  Orr 735 

Leinbach  v.  Templin 890 

Leitensdorfer  r.  Hempstead 63 

Leman    v.    Fletcher 802 

v.  Houseley 403,  802 

Lemayne  v.  Stanley 180 

Lemmon  v.  Beeman 66,     68 

Lemon  v.  Grosskopf 498,  499 

Lemonius  v.  Mayer 408,  508 

Lempriere  v.  Lange 85 

Lenderman  v.  Talley 89 

Lennard  r.  Bobinson Ill 

Lennig's  Est.,  Re 459 

Lenning's  Est 262 

Lennon  v.  Brainard 292 

v.  Napper 627,  630 

Lennox  v.  Hendricks 175 

v.  Murphy 323,  355 

Lenoir    v.    Linville    Improvement 

Co ". 548 

Lenz  r.  Chicago,  etc.,  By.  Co 267 

Leonard  r.  Bates 324 

v.  Boynton 531 

v.  Duffin 200 

v.  Poole 468,  500 

r.  Smith 5o0 

v.  Vredenburgh 172 

r.  Wills 577 

Leopold  v.  Salkey 326,  545 

Le  Page  v.  Lalance  Mfg.  Co 840 

Lerch  v.  Gallup 495 

Lerned  v.  Johns 112 

v.  Wannemach'er 182 

Leroux  r.  Brown 784 

Leroy  v.  Crowninshield 780 

Leskie  v.  Haseltine 18 

Leslie  v.  Fitzpatrick 62,     74 

Lesson  v.  Anderson 214 

Lestapies  v.  Ingraham 498 

Lester  v.  Buel 408,  501 

v.  Howard  Bank 404 


xc 


TABLE    OF    CASES. 


PAGE. 

Lester  v.  Mahan  751 

Lesure    Lumber    Co.    v.    Mutual 

Fire  Ins.  Co 448 

Letcher  r.  Bates 854 

Letehford,  Re " 81 

Letson  r.  Kenyon 778 

Leupert   e.  Shields 444,  517 

Lever  v.  Koffler 181 

Levering  r.  Mayor 100 

r.  Shockey 87 

Levet  r.  His  Creditors 488 

Levi   r.   Levi 470 

r.  Mendell 861 

Levine  r.  Lancashire  Ins.  Co 448 

Levisohn   r.  Waganer 39 

Levy  v.  Cohen 39,  886 

v.  Glassberg     336 

■ r.  Gray  .  .   .  .  * 88 

v.  Green 604 

r.  Loeb 345,  388 

r.  Maddox 175 

■  r .  Spencer 390 

i .  Tatum       437 

v.  Very      827 

Levy,  etc.,  Co.  v.  Kauffman 9 

Lewallen   V.   Overton .175 

Lewellen  r.  Garrett 575 

Lewinson  r.  Montauk  Theatre  Co.  839 
Lewis,  Re 679 

v.  Alexander 487 

( .  Bannister 727 

■  v.  Brass 48 

■  r.  Bright 404 

■  v.  Brown 460 

v.  Browning 41 

t\   Bruton 501 

r.  Covelland 256 

r.  Denver 439 

v.  Gollner 302 

r.  Harrison 174 

■ i .  Jones 688 

r.  Kerr 106 

v.  Kirk         292 

■ v.  Knox 438 

■ r.  Latham 486 

• — —  r.  Lewis 98 

r.  Littlefield 83 

v.  McGrath     735 

r.  Nicholson 119 

•  v.  Payn 847,  853,  869 

■ r.  Schenck  854,  869 

v.  Seabury 173 

r.  Simons 199 

v.  Tapman 178,  361 

365,  685 

r.  Tilton 122 

v.  Tipton 52 

v.  Welch     402 

■  v.  Wood 179 

Lewy  v.  Crawford 501 


PAGE. 

Lexington  v.  Butler 144 

Leyland  r.   Illingworth 601,  664 

i .  Stewart 183 

Libby  r.  Douglas 552 

r.  Downey 402 

Liberman  v.  Gurensky 778 

Liberty  Paper  Co.  v.  Stoner  Co.  .  .  595 

Licey  i;.  Licey 843,  844 

Litchfield  v.  Baker 581 

Lichtenstein  v.  Brooks 303 

Lieberman  v.  First  Bank 704 

Liening  r.  Gould i:U4 

Life    Association    of    Scotland    v. 

Siddal 722 

Light  v.  Killinger 864 

Lightbone  v.  Weeden 847 

Lightburn  v.  Cooper 608 

Lighthall  t\  Moore 505 

Ligon's  Adm.   i:  Rogers 577 

Liles  v.  Terry 741 

Lilienthal  v.  Suffolk  Co 692,  693 

Lillard   c.   Mitchell 501 

v.  Turner    891 

Lilley  v.  Ford 778 

Limer  v.  Traders'  Co 12 

Limited     Investment     Assoc,     v. 

Glendale  Investment  Assoc.  ...   691 
Lincoln  r.  Battelle 780,  781 

v.  Lincoln 872 

v.  Rowe  889 

Lincoln  College  Case 61 

Lindauer  v.  Hay 679,  699 

Lindell  c.  Rokes 196 

Lindley  v.   Hofman 585 

Lindo  f.  Lindo 625,  815 

Lindsay   r.   Cundy 592 

r.  Smith 440,  442,  482,  484 

v.  Wilson 281 

Lindsay  Petroleum  Co.  v.  Hurd.  .   691 

722 

Lindsey  v.  Veasy 672,  698 

■  r.  Lamb 855 

Lindus  P.  Bradwell 110 

Line  v.  Blizzard 729 

i\  Nelson 212,  813 

Linington  r.  Strong 856 

Linker  r.  Smith 393 

Linn  v.  Barkey 640 

v.  McLean 39 

v.  Rugg 295 

Linneman  i\  Moross 250,  252 

Linton   r.   Allen 624 

Lipp  v.  South  Omaha  Co 282 

Lishman     r.    Northern    Maritime 

Insurance  Co 797 

Liska  r.  Lodge 584 

Lisle  v.   Rogers 859,  861 

Lister   v.   Hodgson 643 

v.  Lister    417 

v.  Pickford 570 


TABLE    OF    CASES. 


X01 


PAGE. 

Lister  v.  Stubbs 392 

Liston  r.  Jenkins 623 

Litchfield  v.  Flint 258 

Litt  v.  Cowley 571 

Littauer   v.  Goldman 607,  654 

Little  v.  Banks 249,  251 

v.  Fowler 869 

v.  Herndon 873 

i\  Little 789 

v.  Martin 788 

v.  MeCarter 170 

v.  Poole    402 

Little  Rock,  etc.,  Co.  v.  Walker . .  565 

Littlefield  v.  Coombs 864 

17.  Smith 285 

v.  Story 284 

Littlejohn  v.  Gordon 775 

Livermore  r.  Land  Co 689 

v.  Northrup 786 

r.  Peru 579 

Liverpool  Ins.  Co.  v.  Creighton .  . .  448 

Liverpool  Wharf  17.  Prescott 175 

Livings  v.   Wiler 443 

Livingston  v.  Lynch 134 

17.  Ralli 445 

Lizzie  Merry,  The 595 

Llanelly  Ry.  and  Dock  Co.  v.  L.  & 

N.  W.  Ry.  Co 218,  447 

Lloyd  v.  Attwood 722 

v.  Banks 283 

r.  Brewster 708 

v.  Clark 745 

v.  Colston 388 

v.  Conover 175 

v.  Crispe •  •  524 

17.  Guibert 318 

- —  i\  Nowell 44,  47 

Lloyd's  Bank  17.  Pearson 283 

Lloyd's  Bank,  Ltd.  v.  Bullock 588 

Lloyd  Edwards,  Re 29 

Lloyds  17.  Harper 242 

Load  r.  Green....   679,  712,  716,  722 

Loader  r.  Clarke 394 

Lobdell  r.  Bank 378 

17.  Mason  174 

Locke  v.  Homer 270 

17.  Locke 610 

17.  Smith 80 

v.  Stearns 701 

Locknane  v.  Emmerson 858 

Lochren  17.  Rustan 488 

Lockwood  17.  Fitts 715 

v.  Stockholm 90 

Lockwood  Co.  17.  Mason  Co 51 

Loder  v.  Hatfield 253 

Loeb  v.  Flash 716 

17.  Peters 717 

17.  Stern 408 

i'.  Trustees 147 

17.  Weis 25/ 

17.  Willis 273 


PAGE. 

Loewer  17.  Harris 681 

Lofft  V.  Dennis 531,  532,  534 

Loffus  v.  Maw 917 

Log  Cabin  Assoc.  17.  Gross 275 

Logan  v.  Davidson 839 

r.  McGinnis 467 

v.  Miller 586 

v.  Musick 408,  409 

v.  Simmons 394 

■ ■  v.  Smith 292 

Logan  County  Bank  v.  Townsend.   503 

Lohre  17.  Aitchison 320 

Lomerson  v.  Johnston 747 

London  Assurance  Co.  v.  Mansel.   657 

658 
London  Chartered   Bank  of   Aus- 
tralia  p.  LampriSre 725,  888 

London,  etc.,  Co.,  Re 548 

London  Dock  Co.  17.  Sinnott 163 

London     Joint     Stock     Bank     v. 
Mayor  of  London 129 

r.  Simmons    294 

London  Land  Co.  17.  Harris     .  .        726 

London,  Mayor  of  v.  Cox 566 

London  and  Northern  Bank,  Re.  .     31 

41 
London    and    N.    W.    Ry.    Co.    v. 

M'Michael 67,  73,     74 

London  and  Provincial  Insurance 

Co.  v .  Seymour. .  . 726 

London    and    S.    W.    Ry.    Co.    v. 

Blackmore 625,  815 

London    and    S.    W.    Ry.    Co.    17. 

Gomm    , 302 

London  Trust  Co.  v.  Mackenzie..  .    132 

Lonergan  ( .  Buford 731 

Long  v.  Battle  Creek 49 

v.  Brown 199 

r .  Chicago,  etc.,  Ry.  Co ... .   259 

v.  Dollarhide 174 

v.  Hartwell 822,  823 

r.  Long 685 

v.  Mulford 733,  737 

v.  Neville 205 

v.  Perine 311 

r.  Railway  Co 141 

r.  Rankin 200 

r.  Rhawn 295 

v.  Scanlan 832 

r.  Thayer 106 

v.  Tow'l    215 

v.  White 173 

•  17.  Woodman 689 

Longenecker  u.  Church 720,  737 

Longmate  17.  Ledger 750,  751 

Longnecker  17.  Shields 486 

Longshore  17.  Longshore 459 

Longworth  v.  Mitchell 29 

Lonsdale  v.  Bank 25 

Lookout   Mountain   R.   R.    Co.   i>. 

Houston 258 


XC11 


TABLE    OF    CASES. 


PAGE. 

Loomis  v.  Newhall 199 

Loque  v.  Smith 864 

Loranger  v.  Jardine 402 

Lord  v.  American  Assoc 585 

v.  Grow     654 

v.  Lord 252 

v.  Parker 893 

v.  Thomas 349 

-  v.  Wheeler    537 

Lorentz  v.  Conner 402 

Lorillard,  Re 778 

Lorillard  v.  Clyde..  249,  250,  375,  535 

Lorimer  v.  Lorimer 158 

Loring  v.  Boston 23,24,     30 

v.  Folger 566 

Los  Angeles  Traction  Co.  v.  Wil- 

shire 34,  35,  343 

Losecco  v.   Gregory 539 

Losee  v.  Morey 753 

Loss  v.  Obry 636 

Lothrop  v.  King 378 

v.  Marble 790 

Loud  v.  Hamilton 441,  748 

v.  Loud 415 

v.  Pomona  Land  Co 324 

Loudenback  i.  Tennessee  Co..    197,  332 

Louis  v.  Connecticut  Ins.  Co 658 

Louisiana  v.  Mayor 12,  157 

Louisville  v.  Henning 579 

Louisville  Asphalt  Varnish  Co.  r. 

Lorick 180,  182 

Louisville  Banking  Co.   r.  Eisen- 

man 125 

Louisville,    etc.,   R.    Co.    v.   Alex- 
ander        893 

Louisville,  etc.,  P..  Co.   v.  Donne- 

gan 449 

Louisville,  etc.,  R.  Co.  v.  Helme . .   839 
Louisville,  etc.,  P.  R.  Co.  v.  Offutt  176 

v.  Whitman     130 

Louisville  Ry.  Co.  v.  Sumner 437 

Louisville  Trust  Co.   ;•.   Railroad 

Co 137 

Lound  v.  Grimwade 440,  445 

Lounsbury  r.  Beebe 6z0 

Liove  v.  Hackett 777 

v.  Harvey 406,  502 

v.  Hoss : 390 

v.  Shoape 857 

Lovejoy  v.  Howe 257,  267 

r.  Kaufman      49S 

v.  Michels     468 

Lcvell  v.  Insurance  Co 548,  550 

Lovelock  v.  Franklyn 358,  359 

Loveren  v.  Loveren 444 

Loveridge  v.  Cooper 281 

Lovering  v.  Coal  Co 535,  536 

Lovesy  v.  Smith 642 

Lovett  v.  Steam  Saw  Mill  Assn.  .    160 
Loving  v.  Milliken 631 


PAGE. 
Low  v.  Argrove 865 

v.  Railroad  Co 226 

Lowber  v.  Connit 180,  181 

Lowden  v.  Schoharie  Bank.  .   867,  868 
Lowe  v.  Hamilton 261 

v.  Harwood   353,  364 

v.  London    and    N.    W.   Ry. 

Co 163,  167 

v.  Peers    465 

v.  Sinklear 67 

Lowell  v.  Daniels 87,     88 

Lowenstein   v.    Glass 708 

Lower  v.  Winters 174 

Lowery  v.  Cate 82 

Lowis  r.  Rumney 776 

Lowremore  r.  Berry 854 

Lowry  v.  Adams 25 

t\  Dillman 406 

r.  Spear 459 

Lowther  v.  Lowther 388 

Lozear  v.  Shields 104 

Lucas  v.  Allen 434 

■ — ■ — ■  v.  Anstey 917 

v.  Crippen 691 

v.  Dixon 182 

v.  Mitchell 633 

•  v.  Scott 666 

Lucas  Co.  v.  Roberts 386 

Luce  v.  Gray 249,  251,  252 

Luceseo  Oil  Co.  v.  Brewer 332 

Luckett  v.  Williamson 664,  792 

Luckhart  v.  Ogden 180 

Lucy  v.  Bundy 787 

Luddy's  Trustee  v.  Peard 741 

Luders  v.  Anstey 917 

Ludington  r.  Bell 211 

v.  Ford 639 

v.  Patton 706 

Ludlow  v.  Hardy 809 

Ludlow,  Mayor  of  v.  Charlton...    159 

164 

Ludwig  r.  Gillespie 1 12 

Lufkin  Rule  Co.  v.  Fringeli 468- 

Luhrs  v.  Hancock 101 

Luker  v.  Dennis 304 

Lum  v.  McEwen 377,  437,  439 

Lumberman's  Co.  v.  Gilchrist.  .  .  .   528 
Lumley  r,  Gye 225 

v.  Railway  Co 584,  625.  725 

Lumsden's    Case 64 

Luney  v.  Mead 261 

Lungstrass  v.  German  Ins.  Co ...  .     39 

Lunt  v.  Silver 862,  863,  872 

Lupkin  v.  Mayall 67 

Lurman,  Matter  of 878 

Push's    Trusts 795 

Luxon  &  Co.   (No.  2) 73 

Lyall  v.  Edwards 626 

Lyddon  v  Moss 741 

Lydick  r.  Railroad  Co 50,  302 


TABLE    OF    CASES. 


XC111 


PAGE. 

Lydig  v.  Braman 181 

Lyle  v.  Shinnebarger 173,  575 

Lyniari  y.  Brown 877 

v.  Insurance  Co 639,  640 

r.  Kansas  City  R.  Co 573 

r.  Lincoln 249,  251,  254 

v.  Robinson 46,     47 

-  v.  Suburban  R.  Co 437 

t\  Townsend 487 

Lynch,  Ex  parte _. 86 

Lynch  v.  Curfman 608 

t\  Fallon b88 

v.  Hicks 864 

v.  Mercantile  Trust  Co 695 

701 

v.  Moser 261 

i'.  Rosenthal 40d 

Lynde     v.     Anglo-Italian     Hemp 

Spinning  Co 702 

r.  Lynde 444 

Lynn  v  Bruce 826,  830,  832,  834 

Lyon  v.  Annable 334 

v.  Bertram 607 

r.  Culbertson 406 

— ■ — ■  v.  Haynes 297 

r.  Home    746,  922 

c.  Lyon 914 

r.  Mitchell 436 

v.  Waldo 727 

Lyons  v.  Blenkin 462 

r.  Briggs    691 

Lysaght  r.  Bryant 56 

Lyth  v.  Ault 211 

Lytle    v .    Breckenridge 354 


M. 


McAfee  v.  Ferguson 393 

v.  McAfee 786 

McAlister  v.  Marberry 276 

v.  Safley 349 

McAllister  v.  Mi  tenner 849 

McAndrews  v.  Tippett.  .  .  .• 551 

Mc Annuity  v.  McAnnulty.-. 793 

v.  Seick 631 

McArthur  v.  Goddin , .  780 

v.  Times  Printing  Co. . .  121,  226 

Macbeath  v.  Haldimand 112 

McBlair  v.  Gibbes 431,  490 

McBratney  v.  Chandler 436 

McBride  v.  Floyd 258 

v.  Insurance  Co 428 

Macbryde  v  Weekes 629 

McCabe  v.  Grey 286 

V.  O'Connor 186 

McCall's  Adm.  v.  Hampton 460 

M'Callan  v.  Mortimer 498 

McCandless     v.     Allegheny,     etc., 

Co 205,  426 


PAGE. 

McCann  v.  Lewis 205 

McCardle  v.  Kennedy 335 

McCarreri  v.  McNulty 51 

McCarteney     v.     Wyoming     Nat. 

Bank  .  .' 260,  276 

McCarthy  v.  Decaix 579 

v.  Henderson 68 

v.  Insurance  Co 289 

v.  Mt.  Teearte  Co 2S4 

r.  Nierosi 68 

McCartney  r.  Shepard 495 

McCarty  v.  Hampton  Bldg.  Assn.  204 

v.  New  York  Ins.  Co 713 

v.  Woodstock   Iron  Co 67 

McCasland  v.  Doorley 256 

McCaughey  r.  Smith 862,  863 

McCauley    v.    Coe 33 

McCausland's   Estate 158 

McCeney  v.  Duvall 608 

McClain  v.  Davis 102 

McClair  v.  Wilson 729 

McClallen  v.  Adams 801 

McClanahan  v.  McKinley 691 

McClaskey  v.  Barr ' 106 

MeClatchie  v.    Haslam 441 

M'Clean    v.    Clydesdale    Banking 

Co 293 

McClean  v.  Kennard 573 

Maclean's  Trusts 440 

McCleandon  v.  Kemp 879 

McClellan  v.  Citizens'  Bank 470 

v.  Kennedy   578 

v.  Sanford 177,  789 

r.  Scott  692,  695 

McClelland  v.   McClelland 335 

McClintick  v.   Cummins 729 

McClintock   v.    S.    Penn.   Oil    Co. 

39,  107 

McClung  v.   Kelly 652 

McClure  v.  Briggs 51 

v.  Central  Trust  Co.  .  .   654,  663 

v.  Law 377,  391 

v.  Lewis 737,  745,  770 

r.  Little 854 

v.  McClure 444 

V.  Miller 393 

v.  Raben 459 

v.  Times  Pub.  Co 37 

McClurg  v.  Terry 3 

v.  Whitney 816 

McColley  v.   The  Brabo 11 

McCollum  v.  Edmonds 194 

McComb  v.  Kittredge 206 

McConaughy  v.  Wilsey 779 

McConkey  v.  Cockey 740 

McConnell    v.    Barber 786 

v.  Brillhart 180 

r.  Hector 430 

v.  Kilgallen 337 


XC1V 


TABLE    OF    CASES. 


PAGE. 
MeConnell  v.  Kitchens 402 

v.  Reed 419 

Maecord  r.  Osborne 778 

MeCormick   r.  Basal 361 

■ v.  Cheevers 173 

v.  Drummett 176 

v.  Gray 879 

r.  Leggett 67 

■  r.  Malin 737,  743,  751,  770 

v.  Molburg   584 

r.  St.  Louis 839 

MeCormick  Co.  v.  Knoll 608 

v.  Lauber 861 

r.  Miller .729 

r.  Ockerstrom 51 

MeCormick,  etc.,  Co.  v.  Cnesrown.     51 

t>.  Kae 384 

MeCormick  Machine  Co.  v.  Brown.  350 

McCotter  v.  Mayor, 43 

McCoubray  v.  Thomson 243 

McCown  v.  Schrimpf 262,  274 

McCoy  r.  Able 449 

r.  Lockwood 866 

McCracken  r.  Clarke 879 

v.  San    Francisco 121 

McCracken      Co.      v.      Mercantile 

Trust  Co 774 

McCray  r.  Railroad  Co 135 

McCreery  v.  Day 341,  827,  836 

McCrillis  v.  Bartlett 99 

V.  Carlton     715 

-  v.  How 81 

McCroskey  v.  Ladd 324 

M'Culloch  v.  Gregory 672 

McCulloch  v.  Insurance  Co 39 

■ t\  Scott 715 

McCullough  v.  Baker 332,  337 

v.  Franklin  Coal  Co 837 

V.  Virginia 482 

McCune  v.  Lytle   878 

McCurdy    v.    Rogers 120 

McDaniel  r.  Gray 335,  344 

■ v.  Whitsett 856,  858 

McDaniels  t'.  Rutland 839 

McDermott    v.    Evening    Journal 

Assn 130 

McDill  v.  Gunn 261 

McDonald,  Re 384 

v.  American   Bank ....    238,  240 

247,  249,  260 

v.  Bewick 27 

Macdonald  r.  Bond 878 

McDonald  v.  Born 486 

v.  Buckstaff 436 

v.  Chemical   Nat.   Bank ....      40 

■ v.  Crosby 789 

!'.  Dickson 157 

v.  Huff 27 

v.  Jackson 844 

v.  Kneeland 285 


PAGE. 

Macdonald  v.  Law  Union  Insur- 
ance Co 658 

Macdonald  v.  Longbottom 314 

McDonald  v.   Lund 500 

v.  McCoy 121 

v.  McDonald 459 

v.  Mountain  Lake  Co 836 

v.  Sargent 66 

■  v.  Yungbluth 634 

McDonough  v .    Webster 501 

MacDougall  v.  Gardiner 897 

McDougall  v.  Perce 735 

v.  Walling 384 

McDowell  v.  Hendrix 541 

v.  Laev 259,  276 

v.  Simms 684 

McDuffie  r.  Dame 295 

v.  Sinnott  .' 781 

McElhenny  v.     Hubert  Oil   Co..   389 

676 

McElmoyle  v.  Cohen 780 

McElroy  v.  Carmichael 406 

v.  Ludlum  178,  789 

l\  Maxwell 584 

v.  Percheron  Horse  Co 1^5 

•  v.  Swope 174 

McElven  v.  Sloan 199 

McElwee  v.  Bridgeport  Land  Co.   324 

353 

McFadden  v.  Henderson.  .  45,  112,  629 

v.  Jenkyns 244 

v.  Leeka         134,  296 

■  v.  Wilson 284 

McFarlin  v.  First  Bank 598 

McGann   r.  Marshall 63 

McGavoek  v.  Morton 871 

v.  Puryer 487 

McGee  v.   Hall 722 

McGeehen  v.  Duffield 878 

McGibbons  v.   Wilder 695 

McGill  v.  Wallace 876 

McGilvray  v.  Avery 8/7 

McGinn  v.  'Tobey 589 

McGinty  v.  Henderson 779 

McGiverin  v.  James 39 

McGoren  v.  Avery 612 

McGovern   v.    Hern 179 

McGowan  v.  Reid 775 

McGowen  r.  West 788 

McGrann  v.  North  Lebanon  R.  Co.  827 

McGrath  v.  Clark 871 

r.  Gegner 332 

■  j\  Kennedy 501 

McGraw  v.   Solomon 717 

McGreal  v.  Taylor 68,  82 

Macgregor   r.   Dover   &   Deal   Ry. 

Co 139 

McGregor  v.  McGregor ..  .  93,  177,  414 
McGregor,   etc.,    R.    Co.   v.   Sioux 

City,   etc.,  R.   Co 879 


TABLE    OF    CASES. 


XOV 


PAGE. 
McGuire  v.  Adams 82 1 

c.  Caskey 306 

v.  McGuire .   249,  4G7 

v.  Pitts 285 

McGunn  v.  Hanlin 610 

McHarry  v.  Irwin 745 

McHenry  v.  Davies 894,  895 

i\  Duffield  119 

v.  Hazard 726 

MeHugh  L\  County  of  Schuylkill.  443 

— —  i\  O'Connor 299 

Mclntire  r.   Cagley 633 

Mcintosh   v.  Aubrey 440 

v.  Miner 826,  827 

Mclntyre  v.  Ajax  Mining  Co.  .  .  .   206 

v.  Parks 432,  486,  507 

v.  Velte 851 

v.  Williamson   625 

v.  Yates 241 

McKamy  v.  Cooper 82 

McKanna  t\  Merry 77 

Mackay,  Ex  parte 40 1 

Mackay   v.    Commercial   Bank  of 

New  Brunswick    700 

Mackay  v.  Dick 551 

McKay  v.  Jackman   194 

v.  Simpson 577,  636 

v.  Ward 262,  265 

v.  Williams 387 

McKecknie  v.  Ward 385 

MeKee  v.  Eaton 695 

v.  Lamon 238 

v.  Manice 502 

v.  Miller 549 

McKee's  Adm.  r.  Purnell 99 

McKeen  v .  Morse 839 

r.  Olyphant 880 

MeKenna  v.  Kirkwood 286,  295 

v.  Rowlett 889 

Mackenzie  v.  Coulson 641 

McKenzie  v.  Donnell 101 

v.  Harrison 827 

t\  Hesketh 601,  605 

v.  Lego 388 

•  v.  McKenzie 577 

v .  Nevins 109 

r.  Rothschild 679 

Mackenzie  v.  Seeberger 690 

McKenzie  v.  Weineman 700 

McKewan  v.  Sanderson 378,  380 

McKinlay  17.  Gaddy 776 

MeKinney  v.  Andrews 486 

v.  Cobell 863 

v.  Harvie 786 

v.  Hensley 744 

r.  McCloskey 177  j 

v.  Pinckard 751 

McKnight    Flintic    Stone    Co.    v. 

Mayor 530 


PAGE. 

McLachlin  v.   Brett 108,  114 

McLanahan  v.  Insurance  Co 656 

McLaren  i\  Hutchinson 256 

McLaurin  v.  Wilson 88 

McLay  v.  Bruce  Co 130 

McLean    r.   Bank 142 

v.  Brown 326 

v.  Clapp 721 

McLees  r.  Hale 177 

McLennan  r.  Boutcll 174 

v  McLennan 397 

McLeod   v.   Bullard 630 

McMahan  v.  Smith 736 

McMahon   v.  Borden 404 

v.  McGraw 387 

v.  Rooney 725 

v.  Smith 440 

McManus  v.  Bark 206,  212 

t'.  Cassidy 344 

r.  Cooke 790 

McMath  v  Johnson 324 

McMerty  v.  Morrison 780,  781 

McMicken  v.  Beauchamp 873 

McMillan  v.  Ames 35,     55 

v.  Fish 577,  639 

v.  Fox 536 

v.  Harris 684 

r.  Hefferlin 857 

l\  Railroad  Co 54 

v.  Solomon 532 

McMillen  v.  Pratt 174 

McMinn  v.  Richmonds 81 

McMinns  Legatees  v.  Phipps 470 

McMullen  v.  Hoffman 434,  470 

498,  500 

McMurphy  v.  Garland, 827 

McMurtey  v.  Sparks...    854,  858,  861 

McNab  v.  Young 855 

McNaught  t*.  Fisher 199 

McNaughten  v.  Patridge 875 

McNaughton  i;.  Conkling 25 

McNear   v.    Bailey 879 

McNeil  v.  Bank 294 

v.  Jordan 586,  589 

McNeile  p.  Cridland 701 

McNeilly  v.   Insurance  Co 106 

McNeill's  Case 711 

McNish  v.  Reynolds 206 

MeNutt  v.  Dix 391 

McParland  v.  Larkin 736 

McPherson  v.  Cox -.  451,  728 

v.  Fargo 180 

v.  Watt 741 

McQuade  v.  Rosecrans 483 

MeQuaid  v.  Rpss 607 

McQueen  r.  Burhans 723 

v.  Wilson   736,  740,  746 

McQuie  v.  Peay 855 

McRaven  v.  Crisler 854 

McSparran  v.  Neeley 102,  292 


XCV1 


TABLE    OF    CASES. 


PAGE. 

McVeigh  v.  United  States 430 

McVey  v.  Cantrell 891 

McWilliams  v.  Webb 285 

M.  F.  Parker,  The 650 

M.  &  M.  Railroad  Co.  v.  M.  &  W. 

Railroad  Co 456 

Mabry  v.  Bullock 402 

Macauley  v.  Smith 630 

Macey  v.  Childress 171 

Mack  v.  Bragg 789 

v.  Prang 441 

Mackey  v.  Mackey's  Adm 48 

v.  Peterson 585 

Macknet  v.  Maeknet 579 

Maclay  v.  Harvey 29 

Maclure,  Ex  parte 548 

Macomber  v.  Detroit,  etc.,  R.  Co.   784 

v.  Peckham 634 

Mactier'a  Adms.  v.  Frith 28,     39 

Macullar  v.  McKinley 699 

Madan  v.  Sherard 53 

Madden  v.  Boston 5 

v.  Floyd 786 

Maddison  v.  Alderson 650,  782 

784,  790,  795,  917 

Maddon  v.  White 62,     74 

Mader   v.   Cool 204 

v.  Jones 608 

Madhub   Chumder  Poramanick  v. 

Raj^oomar  Das 481 

Madison  Ave.,  etc.,  Church  v.  Bapt. 
Church  in  Oliver  street. .    141,  142 

Madison  Co.  v.  Brown 137 

Madison  Plk.  Rd..   Co.  v.  Water- 
town  Plk.  Rd.  Co 142 

"  Madras,"  The 537 

Maffet  v.  Ijams 470 

Magaw  v.  Lambert 533 

Magdalen  Hospital,  Governors  of 

v.  Knotts CI 

Magee  v.  Allison 874 

■  v.  Insurance  Co 660 

•  v.  Lavell 632 

■  v.  Scott  Lumber  Co 51 

Magennis  v.  McCullock 846 

Magers  v.  Dunlap 865 

Maggart  v.  Freeman 699 

Magnes  v.  Sioux  City  Seed  Co.  .  . .   330 

Magnolia  v.  Sharman 731 

Magnolia  Metal  Co.  v.  Price 468 

Magoon  v.  Marks 204 

Magruder  v.  Peter 775 

Maguire  v.  Eichmeier 869 

v.  Maguire 685 

— —  v.  Smock 436 

Mahaffey  v.   Ferguson 654,  694 

Mahaiwe  Bank  r,  Douglass 872 

Mahan  i\  United  States 782 

Maher  v.  Martin 199 

v.  Van  Horn 502 


PAGE. 

Maher's  Est.,  Re,   158 

Mahoney  v.  McLean 110 

v.  East     Holyford     Mining 

Co 898 

Mahood  v.  Tealza 486 

Main  v.  Ryder 735 

Main   Street   Co.   17.   Los   Angeles 

Co 204 

Mainprice  v.  Westley 18 

Maitland  v.  Backhouse 709 

v.  Irving 736,  744 

Majestic,    The 53 

Major  v.  Kelly 383 

Majors  v.  Hickman 550 

Makemson  v.   Kauffman 436 

Malcolmson  v.  Wappoo  Mills ....   548 

Maldaner  v.  Smith 874 

Malins  v.   Freeman 61,  600 

Mallalieu  v.  Hodgson 203,  204,  379 

Mallet  v.  Bateman 171 

— — •  v .  Simpson 141 

v.  Lewis 176 

Mallinckrodt  Works  v.  Nemnich . .  468 
Mallory  v.   Gillett 172 

v.  Insurance    Co 658 

-  v.  Leach    681 

■ v.  Oil  Co 143,  468 

v.  Stodder 845 

Malone  v.  Crescent  Co 256 

v.  Keener 171 

y.  Kelly 736 

v.  Railroad  Co 53 

Maloney  v.  Nelson 443 

Malott  v.  Wilson 55 

Maltby  v.  Austin 692 

v.  Eisenhauer 361 

Manby  v.  Scott 889 

Manchester  v.  Braedner 778 

v.  Tibbetts 7S6 

Manchester,  Mayor  of  v.  Williams.  129 
Manchester     Brewing     Co.     v. 

Coombs 279 

Manchester  Ry.  Co.  v.  Concord  Ry. 

Co 500,  503 

Manchester    Ship     Canal    Co.    v. 

Pearson 448 

Manderbach  v.  Bethany  Orphans' 

Home 300 

Mandeville  v.  Welch 282 

Mandlebaum  v.  Gregovitch 402 

Manes  v.  Durant 394 

Maness  v.  Henry 820,  864 

Mangles  v.  Dixon 286 

Manhattan  Brass  Co.  v.  Keger . .  .  704 
Manhattan  Co.  v.  Ironwood 137 

v.  Thompson 892 

Manhattan  Ice  Co.,  Re 363 

Manhattan  Medicine  Co.  v.  Wood.   419 

Manikee  v.  Boyd 395 

Manistee,  The 402 


TABLE    OF    CASES. 


XCV11 


PAGE. 

Mann  v.  Farnum 11 

v.  Merchants'  Trust  Co 285 

v.  Richardson 120 

v.  Russey 749 

v.  Stephens 304 

Mannakee  v.  McCloskey 211 

Manning  v.  Albee 690,  691 

v.  Columbian    Lodge 441 

v.  Johnson 68 

v.  Maroney 864 

v.  Pippen 177,  789 

v.  Riley 792,  794 

Manny  v.  Frasier 257 

Mansfield  v.  Gordon 63,     66 

v.  Hodgdon 28,  309 

v.  Lynch 579,  581 

v.  Mansfield,  Be  Cuno 95 

v.  Mayor  of  New  York 277 

».  N.  Y.  Central  R.  R.  Co.340,  551 

v.  Trigg 653 

v.  Watson 101 

Manter  v.  Churchill 213 

Manton  v.  Gammon 346 

Manuel  v.  Campbell 880 

Manufacturers'  Bank  v.  Follett . .   864 

v.  Iron  Co 389 

Manufacturing  Co.  v.  Burrows.  .  .   257 

Maple  v.  Railroad  Co 116 

Marble  V.  Grant 380 

v.  Standard  Oil  Co 49 

Marble  Bank  v.  Mesarvey 265 

Marcett  v.  Wilson 253 

March  v.  Pike 262 

v.  Railroad   Co 135,  879 

Marchantfl.  Morton,  Down  &  Co.  .   279 
Marcy  v.  Crawford 495 

v.  Dunlap 847,  851 

v.  Marcy 177,  789 

Marden  v.  Dorthy 585,  589 

v.  Phillips 491,  498 

Margrett,  Ex  parte,  Be  Soltykoff . .     80 

Marie  v.  Garrison 470 

Marienthal  v.  Mosler 77S 

Marigny  v.  Remy 257 

Marines  v.  Goblet 791 

Markel  v.  W.  U.  Tel.  Co 249,  254 

Marking  v.  Needy 205 

Markley  v.  Mineral  City 142 

Markowitz  v.  Greenwall  Co 361 

Marks  v.  Davis 789 

v.  Schram 443,  856 

v.  Taylor 636 

v.  Van  Eghen 360 

Marksbury  v.  Taylor 413 

Marlett  v.  Jackman 106 

v.  Wilson 249 

Marquand  v.  N.  Y.  Mfg.  Co 595 

Marqueze  r.  Caldwell 180 

Marr  v.  Hanna 282 

v.  Hobson 849,  850 

Marriot  v.  Hampton 731 

vii 


PAGE. 

Marseilles  v.  Kenton 878 

Marsh  v.  Fulton 135 

v.  Garney 284,  285 

v.  Gold 205,  495 

v.  Low 607 

v.  Rainsford 200 

v.  Russell 470 

v.  Whitmore 387,  390 

Marsh  and  Earl  Granville 671 

Marshall   v.  Baltimore  and  Ohio 

Railroad  Co 125,  434 

V.  Berridge 573 

v.  Bullard 211,  841 

v.  Caldwell 664,  668 

v.  Carson 387 

v.  Collett 509 

v.  Craig 549,  557 

v.  Ferguson 173 

v.  Gilman 715 

v.  Green 173 

v.  Lynn 823,  824 

v.  Mackintosh 353 

v.  Marshall 41o 

v.  Means 456 

v.  Button 89 

v.  Sherman 432 

i\  Thompson 630 

v.  Thurston 407 

v.  Westrope 577 

Marshalltown    Stone    Co.    v.    Des 

Moines  Brick  Co 470 

Marstin  v.  Hall 809 

Marston  •('.  Bigelow.  .248,  249,  253,  622 

v.  Marston 844 

v.  Simpson 722 

r.  Swett 194 

Marten  v.  Burns  Wine  Co 709 

Martendale  v.  Follett 870 

Martin  v.  Adams 380 

v.  ^Etna  Ins.  Co 268 

v.  Black 171 

v.  Buffalo 855 

v.  Chapman 353 

p.  Clarke 450,  451 

v.  Frantz 212 

v.  Gale 80 

v.  Hodge 499 

v.  Jennings 777 

v.  Kunzmuller 280 

v.  L.  C.  &  D.  Ry.  Co 226 

v.  McCormick 616 

v.  Marlow 459 

v.  Martin 387,  768 

v.  Meles 187,  361 

v.  Merritt 666 

v.  Moulton 388 

v.  Northwestern  Fuel  Co .  . .     43 

v.  Pycroft 310,  635 

v.  Quinn 841 

v.  Railroad  Co 577 

v.  Richardson 499 


XCV111 


TABLE    OF    CASES. 


PAGE. 

Martin  v.  Smith  584 

v.  Smylee 585 

r.  Thomas 857 

— —  d.  Tradesmen's  Jns.  Co.. 852,  853 

800 

v.  Wade 438,  439 

v.  Wharton 688 

Martin's  Claim 798 

Martin-Alexander  Co.  v.  Johnson.   831 

Martindale  v.  Smith 335 

Marvel  v.  Phillips 543 

Marvin  v.  Bennett 612 

i:  Treat 23 

Marx  v.  Luling  Assoc 864 

•  v.  McGlynn 736,  746 

Marysville  Co.  r.  Johnson 226 

Mashburn  v.  Donnenberg  Co 717 

Mason  v.  Campbell 199 

r.  Crosby 694,  701 

v.  Decker 181 

i:  Frick 145 

v.  Hall 256 

v.  Harris 897 

r.  Jordan 88 

v.  Lawing 344 

v.  Martin 387 

v.  Payne 408 

c.  Pewabic  Mining  Co 135 

r.  Ring 740 

Mason  &  Hamlin  Co.  v.  Bancroft.   384 
Maspons  y  Hermano  e.  Mildred.  .    109 

114 

Mass  v.  Bromberg 175 

Mass.  Mut.  L.  I.  Co.  r.  Robinson.   241 
Massey  v.  Davies 391 

i>.  Wallace 411 

Massie  v.  Byrd 431 

Master  v.  Miller 852,  8G6 

Masterson  v.  Masterson 92 

Masury  v.  Southworth.  .  .298,  299,  304 

Materne  v.  Horwitz 376,  419,  486 

Mather  r.  Day 880 

v.  Lord  Maidstone 213 

Mathers  r.  Carter 256 

Mathesius  v.  Railroad  Co 786 

Matheson  v.  Ross 798 

Mathews  v.  Cowan 83 

Mathias   r.  Leathers 853 

Matlack's  Appeal 815 

Matlock  v.  Todd 695 

r.  Wheeler 856 

Matteson  v.  Ellsworth 869 

r.  Holt 608 

v.  Scofield 45 

Matthewman's  Case 892 

Matthews  v.  Baxter 103 

v.  Bliss 697 

r.  Coalter 873 

r.  Fitch 35 

r.  Houghton 282 

r.  Light 387 

r.  McStea 428,  429 


PAGE. 

Matthews  v.  Matthews 361 

v.  Poythress 291 

• v.  Wallwyn 300 

Matthewson,   Case   of 845 

v.  Clarke 595 

v.  Fitch 22 

v.  Phcenix  Iron  Foundry.  .  .  158 

Matthiessen,  etc.,  Co.  v.  McMahon's 

Adm 100,  102,  106 

Maunsell  r.  Hedges  White.  .  .916,  918 

Mavor  v.  Pyne 337 

Maw  p.  Topham 668 

Mawson  r.  Fletcher 665 

Maxfield  v.   Burton 2S4 

r.  Schwartz 257,  267,  272 

Maxim  Nordenfelt  Co.  v.  Norden- 

felt 476,  477 

Maxon  r.  Scott 890 

Maxwell  v.  Griswold 731 

Mar  r.  Hewitt 110 

— L  r.  King 817 

■  v.  O'Neill 479 

r.  Piatt 601,  634,  637,  644 

v.  Williams 171 

Mayd  v.   Field 889,  890 

Mayer  v.  Adrian 179,  182 

v.  Chattahoochee  Bank.. 239,  245 

v.  Dean 701 

v.  McCreery 49 

v.  Mayor,  etc.,  of  N.  Y 575 

v.  Soyster 893 

Mayfield  v.  Nale 802 

Mayger  v.  Cruse 217 

Mayhew  v.  Cooze 820 

v.  Crickett 386 

Maynard  r.  Eaton 711 

v.  Hill 685 

v.  Insurance    Co 130 

Mayne's   Case 353,  356 

Mayo  v.  Knowlton 388,  603 

Mayor  v.  Bailey 257 

1».  Lever 392 

the   (of  Nashville)   v.  Ray..    146 

147 

v.  Wetumka  Wharf.  Co 146 

Mays  p.  Carrington 757 

v.  Joseph 495 

Maze  v.  Owingsville  Banking  Co .  .  654 

Meacham    v.    Dow 438,  439 

v.  Meacham      175 

Mead  v.   Bunn 695 

v.  Insurance   Co 639 

v.  Norfolk  R.   Co 577 

v.  Phenix  Ins.   Co 599 

Mead   v.   Young 569 

Meaher  v.   Cox 449 

Meares,  In  re 99 

Mearing  v.    Hellings 503 

Mears   v.    Wapples 716 

Mease   v.   Wagner 169 

Meason  v.  Kaine 174 


TABLE    OF    CASES. 


XC1X 


PAGE. 

Mechanics'  Savings  Bank  v.  Goff.  262 

Mecorney   r.    Stanley 213 

Medbury    v.   Hopkins 780 

v.    Watrous    67 

Medlin    r.    Commonwealth 558 

r.  Platte  Co 853 

v.  Steele    175 

Medlock    v.    Merritt 98 

Medsker    r.    Richardson    257 

Meech  <>.  Ensign   261 

Meek  i\  Perry    736,  737 

Meeker    v.    Johnson    342 

v.   Winthrop   Iron   Co 389 

Meeker   Co.   Bank  v.   Young    ....  299 

Meeks   v.    Dewberry    451 

v.    Stillwell    643 

Megaw   v,  Molloy 620 

Megher    v.    Stewart    269 

Megrath    v.   Gray    384 

MeGuire  i\  Corwine 436,  438 

Meier   v.   Hess    281,285 

Meigs  v.  Dexter   6,  55 

Meiley  v.  Butler   88 

Meinke   v.  Nelson    ; 173 

Meister   r.  Moore 158 

Meiswinkel   v.   St.  Paul  Ins.  Co..  640 

v.   Jung    515 

Melbourne    Banking    Corporation 

v.    Brougham    147 

Melcher   v.   Insurance   Co 214 

Melchert   v.   Telegraph   Co 406 

Melchoir   v.   McCarty.  .   399,   400,  809 
Melhado  e.  Porto  Alegre  Ry.  Co. 

235.  243 

Melledge   v.   Boston  Iron  Co 110 

Mellen  o.  Whipple 259,  260 

Melvin    v.    Bullard     844 

Memphis,   City   of,   c.    Brown     .  .  493 

Mendall  v.   Davis    816 

Mendenhall    v.    Treadway    720 

Menier     v.     Hooper's     Telegraph 

Works    897 

Menifee  v.   Clark    384 

Menke   v.   Gerbracht    384 

Mente  v.   Townsend    864 

Mentz   v.   Newwitter    179 

Mercantile    Bank    of    London    r. 

Evans    279 

Mercantile  Co.  v.  Corcoran 282 

Mercantile    Trust    Co.     v.    Balti- 
more, etc.,  R.  R.  Co 246,  259 

Mercer  v.   Mercer's   Adm 249 

Mercer  County  v.  Hackett.  .    145,  288 

Merchant  r.  O'Rourke . . .  170,  782,  785 
Merchant  Banking  Co.  of  London 
v.   Phoenix   Bessemer   Steel   Co. 

289,  293 

Merchants'    Bank    v.    Armstrong.  704 

v.   State   Bank 130,  137 

Merchants'    Ins.    Co.   v.    Prince..  389 


PAGE. 

Merchants  of  the  Staple  v.  Bank 

of    England     147 

Meredith    c.    Crawford 67 

v.   Ladd    438 

Meriden  Co.    r.   Zingsen    170 

Merriam  v.  Cunningham..  77,  79,  82 

v.  Johnson    743 

r.  Lapsley 43 

v.    Miles     264 

v.    Railroad   Co 88 

v.    Wolcott    654 

Merrick  v.   Boury   869 

t\  Giddings    210,  274 

v.   Wiltse    608 

Merrick's    Estate    10!) 

Merrill  v.   Carr    441 

r.    Green    258,  266 

v.   Mbnticello    146 

v.    Peaslee     444 

Merrills   i .   Swift    56 

Merriman,   Re    199 

Merriman  v.  Knox 402 

r.  McManus    .  .■ 170 

r.   Moore    250,   262,  205 

r.  Social  Mfg.  Co 258,  267 

Merritt  v.  Boyden   866 

17.  Clason  180 

v.  Dufur    693 

r.  Duncan 292 

r.  Lambert   452 

v.   Merritt    106,  878 

i\  Millard 498 

v.    Swimley    462 

Merriweather  v.  Nixon   495 

Merriweather  v,  Lowndes  Co 528 

Jlerryman   ij.   Euler   736 

Mersereau   r.  Lewis    170 

Mersey    Steel    and    Iron    Co.    v. 

Baylor    328,    330,  340 

Mersman  v.  Werges   863 

Merz  Capsule  Co.  v.   Capsule  Co.  469 

Mess  r.  Duffus   323,  355 

Metcalf  r.  Kent 816 

v.    Putnam    639 

r.    Williams    Ill 

Metcalfes's  Trusts    768 

Meth.  Ep.  Church  v.  Jacques....  891 

Methudy    r.   Ross    47 

Methven  v.  S.  I.  Light  Co 281 

Metropolitan   Bank    r.    St.    Louis 

Dispatch  Co    774 

Metropolitan  Coal  Consumers'  As- 
sociation, Re 226,  676 

Metropolitan  Ins.  Co.  r.  Fuller.  .  452 
Metropolitan    Trust    Co.    v.    New 

York,   etc..   Ry.   Co 258 

Metz  v.  Todd   264 

Metzgar   v.  Metzgar   280 

Mexican  Banking  Co.  v.  Lichten- 

stein        499 

Mover  r.  Ester 886 


TABLE    OF    CASES. 


PAGE. 

Meyer  v.  Haas  583,  584 

■  v.    Hanchett 388 

v.    Hartman    170,  270 

v.   Huneke   852,  870 

i-.    Lowell    257 

v.  Meyer    876 

v.  Richards    607,  654 

v.  Roberts 176 

v.   Shamp    257 

Meyer's  Appeal  387 

Meyerhoff  v.  Daniels   701 

v.  Froohch 777 

Meyers  v.  Bank  383 

■  v.  Markham 323,  354 

■  v.  Schemp   173 

Miamisburg   Twine   Co.    v.   Wohl- 

huter  620 

Michael  v.  Bacon 486 

v.  Morey  231 

Michaell's  Case 846 

Michel  v.  Hallheimer 335 

Michener  v.  Payson 720 

Michigan  Bank  v.  Eldred 867 

Michigan  Bolt  Works  v.  Steel 197 

Michigan  Leather  Co.  v.  Foyer .  . .   839 
Michigan  Trust  Co.  v.  Chapin   .  .   444 

Michoud  v.  Girod 387 

Mickey  v.  Stratton 160 

Middle   Division   Elevator    Co.    v. 

Vandeventer 332 

Middleborough  v.  Rochester  98 

Middlebury  College  r.  Chandler..     79 

Middleditch  v.  Ellis 344 

■  r.  Williams 746 

Middleton  v.  Brown 762 

Midgley  v.  Midgley 776 

Midland   G.    W.   Ry.    Co.   of   Ire- 
land v.  Johnson  163,  572 

Midland  Ry.  Co.  v.  Ontario  Roll- 
ing Mills 341 

v.  Pye 93 

Milberry  v.  Stover 866 

Miles  v.  Dover  Iron  Co 749 

v.  Mcllwraith 113 

v.   N.   Z.   Alford  Estate   Co. 

213    214 

v.  Schmidt  446^  449 

Milford  v.  Commonwealth 12 

v.  Water  Co 121 

Miliani  v.  Tognini  258 

Milks  v.  Rich  171 

Mill  v.  Hawker   132 

Mill  Dam  Foundry  v.  Hovey 160 

553,  558 

Millar  r.  Craig 626 

— —  i\  Cuddy   50 

Millard  v.  Baldwin 276 

Miller  r.  Ammon    402 

v.  Ballard   186 

V.  Benjamin    326 

v.  Billingsly   249 


PAGE. 

Miller  v.  Board,  etc.,  of  Dearborn 

Co 140 

v.  Bomberger   286 

v.  Brenham  780 

v.  Brigham 595 

v.  Coates   211 

v.  Cook 759 

v.  Davis  630 

v.  Eagle,  etc.,  Ins.  Co 406 

v.  Finley 102,  863 

v.   Fox    813 

r.  Gilleland 861 

v.  Heller   624 

v.  Hemphill 827 

v.  Hirschberg 495 

v.   Hughes    273 

v.  Insurance  Co 614,  658 

v,  Junction  Canal  Co 879 

v.  Kennedy 262,  264 

v.  Larson 496 

v.  Lea  108,  114,  115 

v.  Leo    197 

v.  lord  572 

r.  MeGlann    175 

v.  McKenzie    22,  35 

v.  McManis    10 

v.  McGuire     487 

v.  Manwaring    846 

v.  Marx     892 

— —  r.  Miller    444,  728 

— —  v.  Minor    Co 727 

r.  Morris    640 

v.  Phillips    342 

v.  Pierce    822 

v.  Post    402 

v.  Railroad   Co 180 

■  v.  Ratterman    375 

v.  Rhodes   495 

v.  Ruble    182 

v.  Rutledge    104 

v.  Savage     643 

v.  Simonds 735,  768,  769 

v.  Sims   64 

r.  Slade    854 

v.  Smith    68 

i\  Stem    662 

v.  Stewart     382 

e.  Sullivan  332 

v.  Teeter    778 

r.  Thompson 260,  263,  275 

v.  Voorheis   692 

r.  Weinstein   387 

v.  Wilson   782,  784 

v.  Winchell  269 

v.  Zufall    173 

Miller's  Case 227 

Miller's  Ex.  r.  Sullivan 1J5 

Miller  &  Aldworth  r.  Sharp 790 

Millican  v.  Millican 738,  744 

Milligan    r.    Lallance,    etc.,    Mfg. 

Co 194 


TABLE    OF    CASES. 


CI 


Milliken  t".  Loring 284 

v.  JMarlih    866 

v.  Pratt 397,  886 

c.  Skillings  608 

v.  W.  U.  Telegraph  Co 112 

Millington  v.  Hill 252,  275 

Million  v.  Ohnsorg 451 

v.  Taylor 745,  750 

Mills  v.  Brown 171 

v.  Central  Railroad  ...    135,  713 

v.  City    721 

v.  Dunham 375,  477,  479 

v.  Fowkes    770 

v.  Fox    919 

v.  Hunt   108,  109 

v.  Larrance    217,  812 

r.  Mills    436 

v.  O'Daniel    215 

r.  Osawatomie    346 

v.  Scott   232 

v.  Wyman    , 199 

Millward  v.  Littlewood.  120,  376,  396 

495 

Milne's  Appeal 778 

Milner,  Ex  parte 378,  380 

Milner  v.  Patton 486 

Miltenberger  v.  Cooke 490 

i:  Morrison  470 

Milwaukee  Assoc,  v.  Niezerowski.   469 

Minah  Min.  Co.  v.  Briscoe 61 

Minard  v.  Mead 110 

Miner  v.  Belle  Isle  Co 389 

v.  Bradley    343 

v.  Hess    640 

v.  Hoyt     295 

Miners  Ditch  Co.  v.  Zellerbach..    137 

140 
Mineral     Water     Bottle     Co.     -v. 

Booth    473 

Mingus  v.  Dougherty 386 

Minick  v.  Huff 171 

Minneapolis  Land   Co.   v.  McMil- 
lan      729 

Minneapolis,  etc.,  Ry.   Co.  v.  Co- 
lumbus Rolling  Mills 30 

Minnesota  Lumber  Co.  v.  White- 
breast  Coal  Co 197 

Minnesota  Oil  Co.  v.  Collier  Lead 

Co 30,     40 

Minn.  Threshing  Co.  v.  Wolfram.   608 

Minnetonka,  The 53 

Minnock  v.  Eureka  F.  &  M.  Ins. 

Co 248,  259 

Minock  v.  Shortridge 64 

Minor  v.  Beveridge 408 

v.  Sharon    673 

Minturn  v.  Main 109 

Minzesheimer   v.   Doolittle..   492,  508 

512 
Mirams,  Be  440 


■  PAGE. 

Miskey's    Appeal 735,  739 

Misner  v.  Knapp 405 

Misselhorn  v.  Mutual  Assoc 614 

Mission  Ridge  Co.  v.  Nixon . .  66,  69 
Mississippi  R.  R.  Co.  v.  Southern 

Assoc 276 

Mississippi,  etc.,  S.  S.  Co.  v.  Swift.  46 
Missouri  Pae.  Ry.  Co.  v.  Smith ...  452 
Missouri  Valley  Land  Co.  v.  Bush- 

nell     141 

Mitchel  v.  Reynolds 471,  473,  475 

Mitchell  v.  Abbott 23 

v.  Allen    175 

v.  Colby    453 

r.  Cooley   274 

v.  Culver    867 

v.  Doggett    515 

r.  Gile    346 

P.  Hawley    837 

v.  Homfray    770 

r.  Lancashire  and  Yorkshire 

Ry.  Co 570 

Mitchell  v.  Lapage   591,  592 

v.  Mitchell    644 

r.  Railton    22 

v.  Raymond    891 

v.  Reed    390 

v.  Ryan    50 

r.  Taylor    595 

v.  Tomlinson   585 

Mitchell's    Claim 777 

Mittelholzer  v.  Fullarton 535 

Mittenthal  v.  Mascagni 446,  508 

Mitterwaller  v.  Supreme  Lodge .  .   839 

Mix  v.  People 558 

Mize  v.  Barnes 241 

Mizell  v.  Burnett 30,  173,  180 

Mizner  v.  Kussell 681 

Mnazek  v.  Libera 706 

Mobile,    etc.,   R.    R.    Co.    v.   Dis- 

mukes 495 

Mobile,  etc.,  R.  R.  Co.  v.  Owen. .  .  816 

v.  Owen 816 

Mobile  R.  Co.  v.  Postal  Tel.  Co. . .  468 

469 

Mockler  v.  St.  Vincent's  Inst 871 

Mody  v.  Gregson 620,  653 

Moelle  v.  Sherwood 850,  861 

Moffett  v.  Parker 285 

v.  Rochester 606,  641 

Mogul     SS.     Co.     v.     McGregor, 

Gow  &  Co 372,  377,  426,  473 

Mohlis  v.  Trauffler 855 

Mohr  v.  Miesen 407 

Moley  v.  Brine 63 

Moline  Iron  Co.  v.  York  Iron  Co. .  108 

Moline  Plow  Co.  v.  Carson 6S1 

Moline  Scale  Co.  v.  Beed 349 

Molk  v.  Daviess  County  Assoc. . .  .  405 

Moller  v.  Tuska 708 


(11 


TABLE    OF    CASES. 


PAGE. 

Mollett  v.  Robinson 388 

Molony  v.  Kernan 742,  746,  768 

Molton  v.  Camroux 100,  101,  103 

Monarch  v.  Board  of  School  Fund.  337 
Monarch     Cycle     Co.     v.     Royer 

Wheel    Co 332,  340 

Mondel  v.  Steel 655 

Mondorfs  Will,   Re 735 

Monkman  v.  Shepherdson 210 

Monmelf  (•.  Monelf  49 

v.  Potts 541 

Monongah  Coal  Co.  v.  Fleming.  . .    180 
Monongahela  Nav.  Co.  v.  Fenlon. .   448 

Monopolies,  Case  of 472 

Monroe  v.  Barclay 735 

Montagu  v.  Forwood 115 

Montague  r.  Garnett 177 

r.  Smith 276 

r.  Weil 47 

Montauk  Assoc,  v.  Daly.  . . ,    180,  181 
Montclair  Academy  v.  North  Jer- 
sey Ry.  Co 437  j 

Montgomery  v.  American  Central 
Ins.  Co 815,  821 

r.  Crossthwait 856,  860 

v.  Downey     200 

r.  Perkins 770 

v.  Rief 250,  254 

r.  United  States 427  j 

v.  Water   Works 10  | 

Montgomery  R.  Co.  v.  Hurst.  854,  863 
Montpelier    Seminary    v.    Smith's 

Estate 187 

Montreal  Gas  Co.  t\  Vasey. 49 

Moody  v.  Aiken 174 

v.  Blake 592,  718 

v.  Smith 787 

Mooers  r.  Gooderham 608 

Moon  v.  Foster 430 

v.  Martin  215 

Mooney  v.  Byrne 630,  631 

r.  Miller 691 

Moor  v.  .Salter 846 

Moore  v.  Adams 488 

r.  Allen 495,  792 

v.  Appleton    .  .  .  , 495 

v.  Bank  294 

v.  Barr   343 

v.  Bennett 469 

v.  Bonnell 508 

r.  Booker 262,  263 

■  v.  Campbell   823 

v.  Church   508 

v.  Crawford  786 

r.  Darton   244 

r.  Detroit  Locomotive  Works  204 

v.  Elmer   200 

v.  Granby  Mining,  etc.,  Co..  110 

r.  Harrison 793 


PAGE. 

Moore  v.  Hart  180 

v.  Haviland   704 

•  v.  Hegeman   397 

v.  Hershey   102 

v.  Hill 565 

v.  House   276 

v.  Ivers    853 

r.  Johnson    81 

v.  Kerr    174 

r.  McKenney   214 

v.  Macon   Bank 864 

r.  Mandlebaum   392 

r.  Moore 219,  387,  581,  750 

774,  798 

r.  Mountcastle    180 

v.  Paine   383,  384 

r.  Parker    673 

v.  Pierson  39 

r.  Potter  336 

v.  Quirk   798 

v.  Redding  206 

v.  Ryder   272 

f.  Stovall 258,  262 

!•.  Sun  Printing  Assoc. .  108,  534 

v.  Thompson    180 

i\  Wade    631 

r.  Waldron 846 

Moore,  etc.,  Co.  v.  Towers  Co.  .  .  .  125 

Moore  and  De  la  Torre's   Case..  675 

707 
Moorehouse  v.  Crangle 169 

v.  Colvin 50 

Moors  i.  Bigelow 610 

Moran  v.  Commissioners 137 

r.  Moran 101 

*.  Peace    204 

v.  Pitt 183 

Mordecai  v.  Boylan 914 

r.  Dawkins  486 

More  v.  Bennett 425 

•  v.  Bonnet 483,  484 

Morehead  v.  Horner 569 

r.  Hunt 684 

v.  Parkersburg  Bank 867 

v.  Wriston   .  .' 259 

v.  Comstock  652 

Morehouse  r.  Second  Nat.  Bank.  .   834 

Moreland  v.  Atchison 689 

Morgan  v.  Bain 323 

•  V.  Beaumont   405,  501 

v.  Elam  845 

v.  Griffith....    173,  313,  533,  921 

v.  Groff 501 

v.  Malleson 219 

v.  Overman   256,  267 

v.  People     604 

v.  Perhamus 890 

v.  Randolph-Clowes    Co 259 

260,  262,  267 


TABLE    OF    CASKS. 


cm 


PAGE. 

Morgan  v.  Eavey 10 

v.  Richardson    40 

v.  Rowlands  778 

v.  Skiddy  697,  702,  704 

v.  Smith  385 

v.  South  Milwaukee  Co 262 

v.  Stell  106 

v.  Thompson    384 

v.  Yarborough 172 

Morison  v.  Thompson 390 

Morley  v.  Loughnan 737,  747 

v.  Railroad    157 

Moroney  v.  Roughan  341 

Morphett  v.  Jones 791 

Morrell  v.  Cowan 889 

v.  Morrell     914 

v .  Quarles     23,  205 

Morrill  v.  Aden 82 

v.  Allen   257,  259 

v.  Blackman    679 

v.  Colehour     174 

v.  Nightingale    729 

v.  Palmer    120,  158 

V.  Tehama  Co 40 

Morris  v.   Creach 878 

v.  Globe  Refining  Co 353 

v.  Hunt     805,  806 

v.  Keil    160 

i:  McCoy    633 

v.  Mix    265 

v.  Morris   685 

v.  Munroe    214,  578 

v.  Norton   9,  199,  491 

v.  State  Mut.  L.  Assur.  Co..   376 

v.  Stoker   736 

v.  Talcott    579 

v.  Vanderen    859 

Morris  Co.  v.  Van  Vorst 211 

Morris  Run  Coal   Co.  v.  Barclay 

Coal  Co 468 

Morrison  v.  Bennett 500 

v.  Deadrick    456 

v.  Garth    857 

v.  Herrick    791 

v.  Huggins   869 

v.  Rogers    464 

V.  Sehlesinger     378 

v.  Universal  Marine  Ins.  Co.  656 

657,  713,  724,  797 

v.  Welty   861,  869,  870 

v.  Wilson    88 

Morrow  v.  Bright 286 

v.  Moore     175,  180,  343 

v.   Southern  Ex.  Co 197 

v.   Turner  779 

Morse  v.  Bellows 35 

v.  Ely    68 

v.  Moore    653 

v.  Royal    769,  770  , 

v.  Tappan    157  ! 


PAGE. 

Morse  v.  Union  Stock  Yard  Co . . 

.    653 

r.  Wheeler     

.      69 

.   873 

Mortara   v.   Hall 

Mortimer  v.   Bell 

.   6S4 

.   753 

v.  Shortall     

.  638 

Mortlock  r.  Buller 

664 

v.  Williams    

839 

386 

322 

739 

v.  Rutherford    

515 

80 

Morville  v.  Amer.  Tract  Soc. .  . . 

503 

855 

C  Wall    

634 

279 

451 

v.  Clerk    

261 

657 

v.  Katzenberger   379 

693 

827 

54 

692 

573 

Mosley  v.  Stone 

14 

Mosman  v.  Bender 

257 

Mosness  v.  German-American  Ins 

Co 

448 

Moss  v.  Atkinson 

180 

144 

v.  Exchange  Bank 

408 

685 

v.  Riddle    

662 

140 

522 

Mostyn  v.  Mostyn    804, 

805 

v.  West    Mostyn    Coal    and 

Iron  Co 620, 

673 

691 

689 

453 

571 

Motz  v.  Mitchell 

731 

Mouflet  v.  Cole 

480 

Moult  v.  Halliday 

315 

579 

19 

v.  Trask   

550 

486 

Mount  v.  Van  Ness 

265 

Mount  joy  v.  Metzger 

361 

Mountstephen  v.  Lakeman    . .  . 

169 

Mowatt  v.  Londeaborough 

876 

Mowrey  v.  Railroad  Co 

135 

v.  Walsh     

567 

Mowry  v.  Kirk 

816 

30 

CIV 


TABIjK    Of    CASKS. 


PAGE. 

Moxon  v.  Payne 746,  769 

Moyoe  v.  Newington 717 

Moye  v.  Herndon 859 

Moyer  v.  Cantieny 434 

Mozley  v.  Tinkler 35 

Mudd  v.  Dillon 643 

Mudge  v.  Oliver   591 

Mudsill  Min.  Co.  v.  Watrous 681 

692,  722 
Mueller  v.  Dobschuetz 385 

v.  Wiebracht   785 

Mugan  v.  Regan 332,  342 

Muhlenberg  v.  Henning 541,  612 

Muhlig  v.  Fiske Zl 0 

Muir  v.  Sehenk 281 

Muldon  v.  Whitlock 116 

Mulholland  v.  Bartlett 215 

Mulkey  r.  Long 856,  871,  873 

Mullaly  r.  Greenwood 49 

Mullen  v.  Hawkins 193 

v.  Keetzleb  388 

v.  Kerr   402 

Muller  v.  Eno 608,  842 

v.  Kelly    451 

v.  Trafford   299 

Mulliken  v.  Millar 679 

Mullin  v.  Bloomer 345 

Mulliner  v.  Midland  By.  Co 138 

Mulock  v.  Mulock 643 

Mulvane  v.  O'Brien 391 

Mulvey  r.  King 663 

Mumford  r.  Gething 478 

Mumper  v.  Kelley 257 

Munday  v.  Whissenhurst 452 

Mundy  v.  Stevens 384,  857 

v.  Whittemore   728 

Munford  v.  Railroad  Co 383 

Municipal     Building     Society     v. 

Kent    447 

Munro,  Ex  parte 806 

v.  Bowles   56 

Munroe  r.  Perkins 836 

v.  Philadelphia     Warehouse 

Co 302 

Munsey  v.  Butterfield 338 

Munson  v.  Carter, 733 

v.  Magee  389 

v.  Railroad   Co 226 

-  v.  Straits  of  Dover  SS.  Co. .   446 

v.  Wasliband   79 

Murchie  v.   Cornell 652 

Murdoch  v.  Finney 281 

Murdoek  r.  Caldwell 363 

r.  Lantz    666 

Murphin  r.  Seovell 663 

Murphy  v.  Arkansas  Co 295 

i\  Boese    182 

v.  Christian  Press,  etc.,  Co.  298 

v.  De  France 470 


PAGE. 

Murphy  v.  De  Haahn 789 

v.  Forget 538 

v.  Kastner   211 

v.  Murphy   2i4 

c.  Rooney   633 

v.  Sloan    387 

r.  Webber 785 

Murphy's  Will,  Ee 736 

Murray  v.  Albertson 673 

v.  Barlee   888 

v.  Carrothers    112,  120 

v.  E.  India  Co 144 

v.  Emery 261 

r.  Flavell    234 

i:  Insurance  Co 289 

v.  Klinzing 865 

v.  Lardner    291 

r.  Marshall    264 

v.  Mayo 364 

i\  Murray   393,  395 

r.  Parker   637 

v.  Peterson 853 

v.  Pinkett 284 

v.  Tolman 692 

Murrell  r.  Seott 386 

Murry  v.  Ocheltree 409 

Muscatine  Co.  v.  Lumber  Co 161 

Musick  v.  Dodson 200 

Musselman  v.  Cravens 101 

Mussen  r.  Price 346 

Musser  v.  Johnson 160 

Musson  v.  Fales *95 

Mustard  r.  Wohlford 63,  66,  68 

Muston  r.   Blake 341 

Mutual  Assoc,  v.  Taylor 361 

367,  368 
Mutual  Ins.  Co.  v.  Alvord 448 

v.  Newton    876 

v.  Pearson    658 

Mutual  L.  I.  Co.  v.  Phinney 688 

Mutual    Reserve   Assn.    v.   Cleve- 
land Woolen  Mills 446 

Muzzarelli  v.  Hulshizer 302 

Myer  r.  Wegener 443 

v.  Wheeler   332 

Myers  v.  Davis 286 

■  v.  Hazzard    292 

v.  Jenkins   446,  449 

v.  League   628 

v.  Meinrath   496 

■ v.  Sari 313,  314 

v.  Watson 919 

Mygatt  v.  Coe 300 

Myles  i).  Myles 176 

Myrick  v.  Slason 345 

Nachtrieb  v.  The  Harmony  Settle- 
ment     747 


TABLE    OF    CASES. 


CV 


PAGE. 

Naden,  Ex  parte 413 

Naff  v.  Crawford 431 

Nance  v.  Lary 586 

Nantes  v.  Corrock 888 

Nash  v.  Armstrong 826,  830,  836 

v.  Commonwealth    238,  248 

v.  Hodgson  776 

v.  Minnesota  Title  Co.  .  683,  691 

r.  Towne    108,  334 

Nashville  Trust  Co.  p.  Smythe ...   292 

Nason  v.  Cockroft 116 

Nassoiy  v.  Tomlinson...  211,  834,  839 

Natchez  v.  Minor   854 

Nathan  v.  Dierssen 175 

National    Bank    r.    Chicago,    etc., 

R.  Co 718 

v.  Fidelity  Co 661 

v.  Fink    439 

v.  Grand  Lodge  250,  259 

p.  Hall    30 

v.  Hancock 456 

v.  Illinois  Lumber  Co 720 

v.  Matthews  403 

v.  Nickell   . .    872 

v.  Petrie    499 

v.  Sprague    470 

v.  Wheelock    61,  728 

v.  Whitney  403 

Nat.  Bank  of  Augusta  v.  Cunning- 
ham   407 

National  Co.  v.  Haberman 468 

p.  Hudson  River  Co 448 

v.  Union  Hospital  Co 426 

National  Distilling  Co.  v.  Cream 

City  Importing  Co 402,  490 

Nat.  Feather  Duster  Co.  v.  Hib- 

bard 88 

National  Furnace  Co.  v.  Keystone 

Mfg.  Co 197 

National  Harrow  Co.  p.  Hench . . .   468 

v.  Quick    468 

National  Lead  Co.  v.  S.  E.  Grote 

Co 490 

Nat.  Loan  Co.  p.  Rockland  Co.  . . .    144 
National  Machine  Co.  p.  Standard 

Machinery    Co 326 

Nat.  Mechanics'  Banking  Assn.  p. 

Conkling    383,  624 

Nat.     Park     Bank     p.     German- 
American  Co 142 

National  Provincial  Bank  of  Eng- 
land, Ex  parte 638 

National  Provincial  Bank  of  Eng- 
land v.  Jackson 588 

Nat.  Trust  Co.  v.  Miller 142,  143 

National  Water  Works  P.  School 

District 573 

National  Works  v.  Oconto  Water 
Co 121 


PAGE. 

Naugle  P.  Yerkes 343 

Naumberg  p.  Young 173,  673 

Nave  p.  Wilson 499 

Navigation  Co.  v.  Wilcox 550 

Neagle  p.  Kelly 170 

Neal  v.  Boggan 336 

p.  First   Bank 443 

v.  Read  575 

r.  Sheffield  813 

Neale  u.  Turton 14 

Neally  p.  Greenough 729 

Nealon  P.  Henry 706.  722 

Nebecker  v.  Cutsinger 585 

Neblett  p.   Macfarland  .    . 714 

Nebraska   Bank  v.  Nebraska   Hy- 
draulic'  Co 238,  259 

Nebraska  Trust  Co.  P.  Ignowski .  .   639 

Necker  v.  Koehn 66 

Nedby  p.  Nedby 735 

Needles'  Exs.  v.  Needles 459 

Needy  v.  German  Ins.  Co 446,  449 

Neely  r.  Jones 841 

v.  Thompson    839 

Neff  v.  Horner 853 

v.  Landis    83 

Negley  v.  Hagerstown  Co 675 

v.  Jeffers    825 

Neidefer  v.  Chastian 691 

Neill  v.  D.  of  Devonshire 318 

v.  Shamburg    683 

Neilson,  Ex  parte 400 

Neininger  p.   State 634,  640 

Nelson  v.  Bank 25 

v.  Brown  261,  264 

v.  Evans  451 

r.  Hanson   338,  342 

v.  Insurance  Co 55 

v.  McDonald    586 

p.  Munch    386 

f.  Pickwick  Associated  Co..   204 

p.  Rogers    265 

- v.  Shelby  Mfg.  Co 786 

r.  Stocker 86 

v.  Von    Bonnhorst 52 

Nelson's  Will,  Re 733 

Nelson  Distilling  Co.  p.  Loe 257 

Nelthorp  v.  Dorrington 846 

Nerac,  Est.  of 104 

Nesbit  p.  Riverside  Dist 137 

Nesbitt  v.  Berridge 758 

v.  Turner    855,  874 

Ness  p.  Minn.  &  Col.  Co 204 

Nester  p.  Continental  Brewing  Co.  468 
Nettleton  r.  Billings 623 

1:  Land   Co 386 

p.  Sikes    173 

Nevada  Co.  p.  Farnsworth .  . .    10,     12 

Neves  v.  Scott 231 

Nevill  p.  Snelling. .   760,  761,  762,  763 


evi 


TABLE    OF    CASES. 


PAGE. 

Nevin,  Re 462 

Nevius  r.  Dunlap 639 

New  v.  Wambach 639 

New  Bedford  Copper  Co.  v.  South- 
ard     629 

New  Brunswick,  etc.,  Co.  v.  Cony- 

beare    695,  702 

New  Brunswick,  etc.,  Co.  v.  Mug- 

geridge     675 

New  Buffalo  r.  Iron  Co 13i 

New  England,  The 53 

New  England  Co.  i.  Rockport  Co.     10 
New  England,  etc.,  Co.  r.  Union, 

etc.,   Co 147 

New  England  Iron  Co.  v.  Railroad 

Co 595 

New  England  Trust  Co.  v.  Abbott.     52 

753 

New  Haven  v.  Railroad 277,  437 

New  Haven  Trust  Co.  v.  Nelson .  .   720 

New  Home  Co.  i .  Simon 662 

New   Jersey   Steam    Nav.    Co.    r. 

Bank   54 

New  Jersey  Works  v.  Ackerman. .    446 
New  Orleans   St.   Joseph's  Assoc. 

r.  Magnier  ...  ._ 255,  277 

New   Sombrero  Phosphate   Co.   r. 

Erlanger    389,  676 

New  York  Bank  Note  Co.  v.  Ham- 
ilton, etc.,  Co 298 

New  York  Bg.  Co.  v.  Fisher 82 

N.  Y.  &  C.  Ssteamship  Co.  v.  Har- 
bison     120,  122 

New  York  Co.  v.  Schuyler 282 

N.  Y.  Guaranty,  etc.,  Co.  v.  Mem- 
phis Water  Co '.  .  .   279 

New  York,   etc.,   Ins.    Co.   v.  Me- 

Master 584 

New  York  L.  I.  Co.  r.  Aitkin 261 

V.  Hamlin    259 

New  York  Life   Ins.   Co.   v.  Sta- 

tham   429 

New  York,  etc.,  R.  Co.  v.  McHenry.  877 

New  York  Rock  Co.  v.  Brown 469 

New    Zealand    Banking    Corpora- 
tion, Ex  parte 288 

New  Zealand  Land  Co.  v.  Watson.  109 

Newark  v.   Stout 661 

Newbegin  v.  Newton  Bank 598 

Newbigging  r.  Adam 681,  712 

Newberry  r.  Creedon 11 

v.  Ruffin    335 

Newberry  Land  Co.  v.  Newberry.   250 

277 

Newburgh  r.  Newburgh 914 

Newby  r.  Rogers 180 

Newcastle    Mfg.    Co.   v.    Railroad 

Co 109 

Newcomb  v.  Brooks 387 


PAGE. 

Newcomb  v.  De  R003 886 

v.  Ramer    173 

Newcombe  v.  Leavitt 781 

Newcome  r.  Ewing 696 

Newell  v.  Cochran 174 

v.  Higgins    3/8 

v.  Mayberry   848,  858 

v.  New  Holstein  Canning  Co.  539 

v.  Radford  179 

r.  Randall    681 

Newhall  r,  Vargas 571 

Newington  v.  Levy 814,  833 

Newlin  v.  Hoyt 181 

Newman   v.  Freitas 444 

v.  Kimbrough  397 

i\  King  871 

-. r,  Morris    892 

r.  Schwerin    722 

v.  Streator 22 

— —  *.  Sylvester    120 

Newport   News   Co.   v.   McDonald 

Brick  Co.'s  Assignee 525 

Newry  and  Enniskillen  Ry.  Co.  v. 

Coombe    67,     73 

Newsom  ?-.  Bufferlow 634 

Newton  r.  Bronson 174 

■  v.  Carson    213 

r.  Chicago,  etc.,  Ry.  Co 210 

r.  Newton 285,  395,  467 

■  v.  Tolles    600 

v.  Wooley 632 

Niagara  Ins.  Co.  v.  Miller 659 

Nibert  v.   Baghurst ,.  .  .   791 

Niblo  r.  Binsse 538 

Nical  v.  Fitch 528 

Nichol  r.  Godts 310 

v.  Lytle    175 

v.  Steger 77 

v.  Thomas    101,  102 

Nicholls  v.  Granger 46 

v.  MoShane    708 

Nichols  v.  Haywood 846 

v.  Hooper   285 

v.  Johnson   179,  180,  852 

853,  859 

v.  Marsland    536 

v.  Mudgett  438 

v.  Palmer   415 

r.  Pinner    679 

v.  Poulson  515,  802 

v.  Raynbred  202 

— —  v.  Rogers    725 

v.  Rosenfeld  854 

v.  Ruggles    376 

t?.  Scranton,  etc.,  Co 361 

362,  550 

v.  Weaver    178 

Nichols,  etc.,  Co.  i\  Snyder 68 

Nicholson  v.  Bradfield  Union 164 


TABLE  OF  CASES. 


CV11 


PAGE. 
Nicholson  v.  Combs 863 

v.  Wilborn    78 

Nickalls  v.  Merry 316 

Nickels  v.  Kane's  Adm 451 

Nickelson  v.  Wilson 441 

Nickerson  v.  Bridgeport  Hydrau- 
lic Co 254 

v.  Mass.  Title  Ins.  Co 683 

v.  Railroad  Co 573 

v.  Russell   544 

r.  Swett 853,  857 

Nickoll  v.  Ashton 369,  538 

Nicol  v.  Fitch 337 

v.  Nieol 417 

Nicoll  v.  Burke 108 

Nicolls  ads.  Rogers 780 

Niedermeyer  v.  Curators 22 

Niell  v.  Morley 100 

Niemeyer  v.  Wright 402 

Nilson  v.  Morse 366 

Nims  v.  Ford 248,  252 

v.  Mt.  Hermon  School 130 

Nineveh,  The 880 

Nisbett  v.  Galbraith 25 

Nix  v.  Wiswell 259 

Nixon  v.  Halley 88 

Noakes  &  Co.  v.  Rice 630 

Noble  v.  Bushwell 608 

v.  Harris    878 

v.  Moses 735 

v.  Thompson  Oil  Co 285 

v.  Ward 311,  794,  799,  823 

Noel  v.  Drake 376,  439 

v.  Kinney    88,  893 

Noice  v.  Brown 120,  444,  515 

Nolan  v.  Bank  of  New  York 821 

Noland  v.  Bull 52 

Nolin  v.  Blackwell 776 

Noll  v.  Smith 865 

Norcross  v.  James 301,  304 

Norcum  v.  Shehan 63 

Nordenfelt   v.    Maxim-Nordenfelt, 

etc.,    Co 467,  476,  479,  480 

Nordyke  v.  Kehlor 582,  612 

Norfleet  v.  Cromwell 299,  300 

Norfolk  Hosiery  Co.  v.  Arnold.  ..   721 

Norfolk  Ry.  v.  McNamara 877 

Norman  v.  Norman 397 

v.  Wells    299 

Norrington  v.  Wright 321,  330 

331,  629 
Norris  v.  Blethen 579 

v.  Doniphan  430 

v.  Harris    332 

v.  Vance   82 

v.  Wait  83 

North  r.  Henneberry. . .   845,  851,  860 

v.  Mallory  337,  550 

v.  Mendel  182 


PAGE. 

North  v.  Mudge 876 

r.  Percival    44,  47 

V.  Robinson    170 

North    Ala.    Development    Co.    v. 

Short    256,  268 

North  Bank  v.  Brown 877 

North    British    Insurance    Co.    v. 

Lloyd   660,  661 

North  Chicago  R.  R.  Co.  v.  Ack- 

ley   451 

North   River    Co.    v.    Shrewsbury 

Church    874 

Northampton,  Marquess  of  v.  Pol- 
lock     630 

Northampton,     etc.,    Ins.    Co.    v. 

Tuttle   39 

Northeastern  Ry.  Co.  v.  Hastings.  310 

Northern  v.  State 173. 

Northern  Bank  v.  Hoopes 12 

Northern,  etc.,  R.  R.  v.  Eslow. .  .  187 

!  Northern  Ry.  v.  Commonwealth.  .  131 

!  Northern  Trust  Co.  v.  Snyder 299 

Northfield  v.  Plymouth 158 

Northington,  Ex  parte 99 

Northrop  v.  Mercantile  Trust  Co.  363 

Northrup  v.  Buffington   499 

v.  Graves    579 

[ r.  Phillips    500 

Northumberland     Avenue     Hotel 

Co.,  Re 121 

Northwestern  Bank  v.  Great  Falls 

Opera  House 210,  816 

N.  W.  Iron  Co.  v.  Meade 43 

Norton  v.  Blinn 498 

v.  Marden 580 

v.  Nichols    88 

v.  Norton 505 

r.  Relly 747 

v.  Tuttle 456 

Norwich,  Chandlers  of,  Re 471 

Norwich,    Mayor    of    r.    Norfolk 

Ry.  Co 139,  374,  515 

Norwich  Bank   v.   Hyde 867 

Norwich  Lock  Mfg.  Co.  v.  Hocka- 

day 135 

Norwood  v.  De  Hart 265 

v.  Lathrop    345 

v.  Read   224 

Note  Holders  v.  Funding  Board.  .  859 

866 

Nothe  v.  Nomer 343 

Nottidge  v.  Prince 746 

Nottingham  Brick  Co.  v.  Butler..  305 

671 

Nounnan  v.  Sutter  County  Co ... .  69 1 

Nourse,  Re 466 

v.  Henshaw    892 

Nouvion  v.  Freeman 877 

Nowack  v.  Berger 231,  792 


CV111 


TABLE    OF    CASES. 


PAGE. 

Nowlin  v.  Pyne 35,  577 

Noyes  v.  Landon 387,  391 

v.  Loring 119 

v.  Marsh 376 

v.  Pugin  337 

Nugent  v.  Delhomme 864 

v.  Smith 536 

v.  Supervisors   135 

v.  Wolfe   171 

Nunez  r.  Dautel 52 

Nunn  v.  Fabian 790 

Nunn  v.  Givhan 889 

Nunnery  v.  Cotton 859,  866 

Nute  r.  Insurance  Co 445,  446 

Nutt  v.  Easton  769 

i!.  Humphreys   112 

Nuttall  r.  Bracewell 304 

Nutter  v.   Stover 292 

Nye  v.  Hoyle 301 

v.  Storer  725 

Nyulasy  v.  Rowan 3,     27 

0. 

0.  &  C.  R.  R.  Co.  v.  Potter 215 

Oak  v.  Dustin 729 

Oakdale  Mfg.  Co.  v.  Garst 469 

Oakden  r.  Pike 628 

Oakeley  v.  Pasheller 384,  385 

Oakes  v.  Cattaraugus  Co 226 

i:  Turquand    562,  602 

706,  719,  723 
Oakland  Ins.  Co.  r.  Bank  of  Com- 
merce    271 

Oakley  v.  Port  of  Portsmouth  and 

Ryde  Steam  Packet  Co 535 

. r.  Shelley    103,  630 

Oaks  v.  Weller 22 

Oaten  r.  Stanley 340 

Oates  v.  Lilly 776 

O'Bear  v.  First  Bank 780 

Obert  v.  Landa 729,  748 

O'Brien  r.  Boland 28,  753 

v.  Brietenbach    488 

i:  Hilburn    88 

v.  Miller  573 

c.  Young 157 

O'Bryan  v.  Fitzpatrick 499 

v.  Kinney 54 

Occum  v.  Sprague  Mfg.  Co 141 

Ocean  City  Assoc,  v.  Headley.  .  .  .  306 

Ockendon  v.  Barnes 725 

Ockerson  r.  Crittenden 502 

O'Connell  v.  Hotel  Co 550 

O'Conner  r.  Hurley 12 

v.  O'Conner   258 

v.  Ward    505 

O'Dea  v.  Winona 51 

Odell  v.  Buck 104 

v.  Montroes 630 


PAGE. 

Odessa  Tramways  Co.  v.  Mendel .  .   483 

Odlin  v.   Insurance  Co 428 

O'Donald  v.  Constant 708 

O'Donnell  v.  Clinton.  .  .  5,  32,  312  583 

i.  Leeman 182 

O'Donnell  Brewing  Co.  v.  Farrar.  692 

Oelricks  v.  Ford 109 

Ofenstein  v.  Bryan..  443,  856,  866,  872 

Offord  v.  Davies 34 

Ogden  v.  Maxwell 731 

v.  Ogden     172 

v.  Raymond 120 

Ogilvie  v.  Insurance  Co 709 

Ogilvie  t.  Jeaffreson 588 

Ogle,  Ex  parte 566 

Ogle  i.  Vane 824 

Oglesby  v.  Williams 179 

Oglesby  v.  Yglesias Ill 

Oglesby  Coal  Co.  v.  Pasco 88 

O'Hara  v.  Carpenter 434 

Ohio  v.  Board  of  Education 482 

r.  Standard  Oil  Co 125 

Ohio,  etc.,  College  v.  Love's  Ex..    187 
Ohio  Ins.   Co.  v.   Merchants'   Ins. 

Co 404 

Old  Colony  Trust  Co.  v.  Dubuque 

Light  Co 690 

Old  Saucelito  Co.   v.  Commercial 

Ass.   Co 448 

Oldershaw  v.  King 213 

l'.  Knowles     408 

Oldfield's    Case 875 

Oldham  v.  Mt.  Sterling  Imp.  Co.  226 

Oliphant  v.  Markham 486 

Oliver  Ex  parte 379 

Oliver  v.  Bank  of  England. ..  119,  654 

Oliver  r.  Bragg 841 

l".  Gilmore 468 

v.  Goetz 342 

r.  Hunting 182 

r.  Insurance  Co 576 

v.  McClellan 83 

v.  Morawetz 119 

Olley  v.  Fisher 638 

Ollive  v.  Booker 655 

Olmstead  v.  Brush 252 

v.  Latimer 206 

Olsen  f.  Hunter-Benn 655 

Olson  v.  Lamb 453,  470 

v.  Lovell 668 

v.  Orton 695 

Oltman  v.  Moak 69 

Omaha  Bank  c.  Kraus 28 

r.  Simerall     775 

O'Malley  v.  Twenty-five  Associates.  673 

Omerod   v.  Hardman 311 

O'Neal,   Matter   of 462 

v.  Kelly      382 

c.  Phillips 616 


TABLE    OF    CASES. 


C1X 


PAGE. 

O'Neal  v.  Seixas  568 

Oneale  v.  Long 862 

Oneida  Bank  v.  Ontario  Bank ....   503 

O'Neil  v.  Railroad  Co 782 

O'Neill  v.  Capelle 631 

v.  Clark 272,  879 

v.  Supreme  Council . . .    361,  363 

Onondaga  Bank  v.  United  States.   575 
Ontario   Fruit  Assoc,   v.   Cutting 

Packing  Co 539 

Ontario  Lantern  Co.  v.  Hamilton 

Mfg.  Co 360 

Onward  Building  Society  v.  Smith- 
son 300,  586,  589 

Opera  House   Co.  v.  M.   B.   &  L. 

Assoc 142 

Oppenheimer   v.   Collins 444 

Opper  v.  Hirsch 251 

Optenburg  v.  Skelton 608 

Orchardson  v.  Cofield 747 

Orcutt  v.  Butler 879 

v.  Nelson    591 

Ordway  v.  Downey 262 

O'Regan  v.  Cunard  S.   S.  Co 53 

55,  508 

Oregon  Pac.  R.  Co.  v.  Forrest 728 

Oregon  Ry.   Co.  v.  Oregonian  R. 

Co 143 

Oregon  S.  N.  Co.  v.  Winsor 483 

Organ  v.  Allison 861,  874 

Orient  Ins.  Co.  v.  Daggs 125 

Oriental  Financial  Corporation  v. 

Overend,  Gurney  &  Co 384 

Orland  v.  Finnell 176 

Orlando  v.  Gooding 853 

Orman  v.  North  Alabama  Co ...  .   260 

271 

Ormerod  v.  Dearman 441 

Ormes  v.  Beadel '709,  748 

Ormes  v.  Dauchy 375,  507 

Ormsbee  v.  Howe 292 

Ormsby  v.  Rhoades 68 

Orne  v.   Friedenberg 306 

O'Rorke  v.   Bolingbroke 759,  760 

764 
O'Rourke   v.   John    Hancock   Ins. 

Co 66,  68,  74,     83  I 

v.  Wahl    292  I 

Orr  v.  Equitable  Mortgage  Co. .  .    101 

v.  Goodloe 689  | 

v.  Lacey 142  j 

Orrick  v.  Colston 861,  867 

Ort  v.  Fowler 585 

Ortman  v.  Weaver 29,     30 

Orton  v.  Scofleld 388 

Osborn  v.  Andrees 854 

v.  Bank 161  I 

v.  Farr 63  [ 

V.  Hall 854 


PAGE. 

Osborn  v.  Low  383 

v.  McClelland 294 

v.  Nicholson 420,  421,  510 

525,  531.  539 

v.  Phelps 633,  034 

v.  Robbins 729,  730 

Osborne  v.  Bradley 301 

v.  Cabell   263,  265,  272 

v.  Francis 51 

v.  Henderson 244 

v.  Kerr   112 

v.  O'Reilly 204 

r.  Rogers 12 

— —  v.  Williams 439,  505 

Oscanyan  v.  Arms  Co 377,  436 

507,  508 

Osgood  v.  Bander 482 

v.  Franklin 753 

v.  Lewis 653 

v.  Miller 383 

v.  Stevenson 852 

O'Shea  v.  Collier,  etc.,  Co 378 

Osier  v.  Hobbs 11 

Oskamp  v.  Southern  Express  Co.  592 

Osment  v.  McElrath 176 

Ostrander  v.  Scott 211,  214,  839 

O'Sullivan  v.  Overton 179 

v.  Thomas 501 

Oswald  v.  Godbold ,. .  .  346 

v.  McGehee 694 

v.  Mayor      of      Berwick-on- 

Tweed 382 

Oswego  v.  Kellogg 856 

Oswego    Starch    Factory    v.    Len- 

drum 679,  716 

Otis  v.  Adams 332  . 

v.  Cullum 654 

v.  Browning 856 

v.  Gardner 294 

v.  Payne 39 

Ott  r.  Garland 788 

Otto  v.  Haeff 854,  869 

Outen  v .  Rodes 438 

Outoun  v.  Dulin 854 

Overseers  v.  Sear 127 

Overton  v.   Banister 85 

v.  Matthews 866,  867 

Owen  v.   Davies 100 

— — ■  v.  Davis 499 

v.  Evans 285 

v.  Hall .  869 

v.  Homan 519,  683 

v.  Thomas 180 

Owens  v .  Dickenson 888 

v.  Lewis 783,  784 

v.  Mynatt 729 

v.  Sturges 607 

Owing's  Case 252 

Owings  v.  Owings 249 


ex 


TABLE  OF  CASES. 


PAQE.  I 

Oxford  v.  Rodney 260 

Oxford   (Mayor  of)   v.  Crow 165 

Oxford  Iron  Co.  v.  Spradley 144 

486 
Ozark    Lumber    Co.    v.    Chicago 

Lumber  Co 336 

Ozley  v,  Ikelheimer 891 


Pabst  Brewing  Co.  v.  Liston.  501,  502 

Pace  v.  Bartles 631 

Pace  v.  Pace's  Adm 386 

Pacific  Co.  v.  Adler 468 

v.  Anglin 698 

Pacific  Express  Co.  v.  Shearer .  .  .   592 
Pacific    Guano   Co.   v.    Mullen . .  .   402 

483,  608 
Pacific   Rolling  Mill   Co  v.   Kail- 

way   Co 44 

Packer  v.  Benton 169 

v.  Hinckley    Locomotive 

Works 106 

Packet  Co.  v.  Sickles 177 

Padden  v.  Taylor 716 

Paddock  v.  Robinson 120,  444 

495,  517 

Padfield  v.  Padfield 395 

Paducah  Lumber  Co.  v.  Paducah 

Water  Supply  Co 247,  249,  254 

Page  v.  Becker 257,  261 

v.  Cook 52 

v.  Cowasjee  Eduljee 335 

v.  Cox   234 

v.  Higgins 599,  600 

-  v.  Horn 735 

v.  Krekey 382 

v.  Morse 63 

v.  Norfolk 47 

r.  Parker 690 

Paget  v.  Marshall 601 

Paice  v.  Walker 108,  111 

Paige  v.  Chapman 292 

— — •  v.  Fullerton  Woolen  Co ...  .     48 

v.  Hieronymus 441 

■ v.  Sherman 610 

■ v.  Stone 116 

Paine  v.  Drew 780 

v.  Harrison 708 

v.  Insurance  Co 42 

v.  Jones 264,  382 

v.  Loeb 123 

v.  Pacific  Ins.  Co 612 

v.  Paine 880 

v.  Schenectady  Ins.  Co 877 

r.  Strand  Union 164 

v.  Upton 610 

Painter  v.  Polk  County 579 

Pakenham's  Case 300 


PAGE. 

Palfrey   v.   Portland,   etc.,   R.   R. 

Co 215 

Palliser  v.  Gurney 890 

Palm  v.  Ohio,  etc.,  R.  Co 352 

Palmer  v.  Andrews 677 

v.  Bell   693 

v.  Blaine 170 

v.  Bosley 830 

v.  Breen 332 

v.  Courtney 654 

p.  Harris    419 

v.  Hartford  Ins.  Co 29 

v.  Johnson 666,  673 

v.  Largent 864 

v.  Locke 466 

v.  Lorillard 428 

v.  Marston 420 

v.  Meriden  Britannia  Co.  .  .  327 

v.  Neave 395 

v.  Palmer 444 

■  v.  Stebbins 481 

Palmer  Bank  v.  Insurance  Co .  .  .  241 

248 

Palmeter  v.  Carey 262 

Palo  Alto,  The 31,  32,     42 

Palo  Pinto  County  v.  Gano 595 

Palyart  v.  Leekie 503 

Pana  v.  Bowler 137 

Panama  and  S.  Pacific  Telegraph 

Co.  v.  India  Rubber  Co 342,  392 

Pancake  v.  Cauffman 631 

Pangborn   v.   Saxton 258 

v.  Westlake 402,  404 

Panmure,  Ex  parte 119 

Panton  v.  Duluth  Water  Co 731 

Pape  v.  Wright  493 

Paquin  v.  Milliken 708 

Paradine  v.  Jane 530,  532,  533 

Pardee  v.  Kanady 323,  355 

v.  Piatt 283 

v.  Treat 266 

Pardey  v,  American  Windlass  Co.     79 

Parfitt  v.  Lawless 736 

Parham  v.  Randolph 698 

Paris  v.  Strong 178 

Paris  Skating  Rink  Co.,  Re 456 

Parish  v.  Wheeler 141,  142 

Park  v.  Glover 859,  873 

■ v,  Johnson 635 

v.  National  Assoc 469 

v.  Whitney 30 

Parke  Co.  v.  White  River  Lumber 

Co 850,  870 

Parker  v.  Butcher 761 

v.  Cowan 200 

v.  Donaldson 108,  114 

v.  Dorsey 880 

v.  G.  W.  Ry.  Co 731 

v.  Jeffery 54,  256 


TABLE    OF    CASES. 


CXI 


PAGE. 

Parker  v.  Kane    850 

v.  Lambert 89 

v.  Lancaster 729 

v.  McKenna 390,  725 

v.  Maeomber 548 

v.  Marks 890 

v.  Moore 409 

v.  Nightingale  301 

r.  Oakley 63 

v.  Otis 408 

v.  Pettit 361 

v.  Scott 528 

v.  S.  E.  Ry.  Co 54 

v.  Tainter 787 

v.  Thomas   688,  695 

Parker's  Adm.  v.  Parker's  Adm.  .  738 

Parker's  Case   54 

Parker  Vein  Coal  Co.  v.  O'Hern.  549 

Parkersburg  v.  Brown 142,  503 

Parkes   f.    Smith 878 

v.  White 888 

Parkhurst  i:  Hosforil ,.  750 

Parkin  v.  Thorold 627,  628,  630 

Parkinson  v.  City  of  Parker 100 

v.  Sherman   261,  275 

Parks  v.  Barrowman 88 

v.  Francis 177,  789 

v.  Hazelrigg 182 

v.  Ross 112 

Parmalee  v.  Thompson 204,  206 

Parmelee  v.  Cameron 749,  757 

Parmlee  r„  Adolph 692 

Parmly  v.   Buckley 284 

Parr  v.  Oreenbush 877 

Parry  v.  Liverpool  Malt  Co 447 

v.  Nicholson 864 

Parry  Mfg.  Co.  v.  Tobin 608 

Parsell  v.  Stryker 467 

Parsons  v.  Alexander 912 

v.  Clark 778 

v.  Ely 459 

v.  Keys 77,  80 

v.  Parsons 444 

v.  Sexton 342 

v.  Tacoma  Co 389 

v.  Trask    481 

Partington  v.  Atty.-Gen 90 

Partredge  v.  Hood  442 

V.  Messer 378 

v.  Strange    458 

Pass  v.   Grenada  County 579 

Pasteur  Vaccine  Co.  v.  Burkey. .  490 

Patek   v.  Waples 311 

Paterson  v.  Higgins 853 

Patman    v.    Harland 301 

Patmore  v.   Colburn 816 

Patrick  v.  Bowman 31,  32,  122 

v.  Littell 891 

v.  Milner 628 


I  PAGE. 

Patrick  v.  Putnam 548 

Patten  r.  Hicks 177 

Patterson  v.  Ackerson 531 

v.  Boehm 378 

■  v.  Clark 502 

v.  Donner 445 

v.  Fagan 873 

| v.  Gibson 729 

v.  Lawrence 88 

v.  National     Premium  ,  Ins. 

Co 376 

Patterson  v.  Neuer   778,  779 

v.  Patterson 335 

•  v.  Rabb 285 

•  v.  Robinson 161 

v.  Wright 689 

v.  Yeaton 849 

Patterson's  Appeal    500 

Pattle  v.   Hornibrook 312 

Patton  v.  Adkins 261 

v.  Allison 734 

v.  Mills 171 

v.  Taft      377 

v.  Thompson 387 

v.  Wilson 285 

Patton's  Ex.  v.  Hassinger 22 

Pattridge  v.  Gildermeister 342 

Patty  v.  City  Bank 500 

Paul  r.  Kunz 88 

r.  Leeper    873 

:  v.  Meservey 816 

:  v.  Smith 79 

v.  Virginia 125 

Pauling  v.  L.  &  N.  W.  Ry.  Co 163 

Pawle's  Case 711 

Paxton  v.  Rich 775 

v.  Smith 573 

Payler  v.  Homersham 815 

Payne  v.  Cave lg 

v.  Eden 380 

v.  Long 856,  866 

r.  Pomeroy 334,  354 

■  v.  Pusey 776 

v.  Thomason 893 

Payne's  Appeal 11,  120 

Payne's  Case   686 

Payson  v.  Burnham 30 1 

Peabody  v.   Flint 125 

v.  Peabody 844 

v.  Rice 879 

v.  Speyers 180 

Peacock  v.  Evans 749,  756 

v.  Monk 887 

v.  Penson 920 

v.  State 558 

v.  Williams 259 

Peake  v.  La  Baw 892 

Pearce  v.  Brooks . . .  485,  486,  487,  488 

V.  Gardner 182 


CXll 


TABLE    OF    CASKS. 


PAGE.  ' 
Pearce  v.  Langfit   41 

v.  Railroad  Co 136,  142 

«.  Smith 108 

v.  Spalding 19 

v.  Watts 48 

v.  Wilson 442,  483  ; 

v.  McDowell 99 

Pears  v.  Laing 779  | 

Pearsoll  v.  Chapin 61 

Pearson    c.   Bailey 277 

v.  Thompson    211 

Pease  v.  Gloahee 717  j 

v.  Pease 110  ; 

-  v.  Smith 565  i 

Peaslee  v.  Bobbins 103 

Pechell  v.  Watson 450 

Peek  v.  Brighton 629 

r.  Conway 301 

v.  Henrich 451 

v.  Ledwidge 531 

v.  List   ' 684 

v.  Requa 204 

Peck  Colorado  Co.  r.  Stratton .  .  9,  343 

Peeke  v.  Redman 202 

Peeot  v.  Armelian 174 

Peddicord  v.  Hill 813 

v.  Gurney 681,  683,  704 

v.  Peek 395,  505,  791,  792 

Peel  v.  Peel 242,  243 

v.  Shepherd 115 

Peeler  v.  Levy 666 

Peelman  v.  Peelman 210 

Peerless     Glass     Co.     v.     Pacific 

Crockery  Co 605 

Peeters   v.   Opie 626 

Peevey  v.  Haughton 181 

Pegram  v.  Railroad  Co 387 

Peirce   r.    Corf 182 

Pellcat  v.  Angell 432,  433 

Pelletier    r.    Couture 63 

Pellman  v.  Hart 284,  285 

Pelton  v.  Prescott 856 

v.  San  Jacinto  Co 87 1 

Pelton  Bros.  v.  Harrison 96 

Peltz  v.  Eichele 483 

Pemberton  v.  Hoosier 204 

Pence  v.  Arbuckle 586 

v.  Langdon 722 

Pender  v.  Lushington 897 

Pendery  v.  Allen 262 

Pendleton  v.  Asbury   470 

Pendleton   County  v.   Amy 147 

Penn  v.  Bornman 399 

v.  Whitehead 63,  892 

Penn  Ins.  Co.  v.  Crane 697 

v.  Mechanics'  Bank   657 

Penn  Plate  Glass  Co.  v.     Spring 

Garden  Ins.  Co 449 

Pennegar  v.  State 397 


PAGE. 

Penniman  r.  Hartshorn 180 

Pennington  v.  Howland 51 

Pennington    (Doe  d.)   v.  Taniere.  166 

Pennock's  Appeal   684 

Pennsylvania  Co.   v.  Dolan 176 

v.  Lombardo 452 

v.  Railroad 143 

v.  Wentz 53,  399,  482 

Penrose  v.   Curren 84 

Pentz  v.  Stanton 110 

People   v.   Aldridge 349 

v.  Bartlett 557,  558 

v.  Call 862 

v.  Chicago  Gas  Co 468 

v.  Fallon 405 

v.  Foster 581 

v.  Fromme 798 

v.  Gates 798 

v.  Insurance  Co 534,  548 

v.  Kneeland 857,  858,  871 

v.  Manning 557 

a:.  Mercein 418 

v.  Milk    Exch 425 

■  i\  North   River   Sugar   Rfg. 

Co 468 

v.  O.  B.  of  S.  B.  B.  Co.  387,  743 

v.  Organ 855 

■  v.  Peekens 692 

r.  Pullman  Palace  Car  Co.  140 

v.  Railroad  Co 131 

v.  San  Francisco 688 

v.  Sheldon 425 

r.  Speir   12 

v.  Stephens 470,  709 

-  v.  Tompkins 382 

v.  Tubbs 557 

v.  Tyroler 53 

v.  Vilas 383 

r.  White  Lead   Works 130 

People's  Bank  v.  Alabama  R.  Co.  402 

People's  Bank  r.   Collins 275 

People's  Savings  Bank  v.  Gifford.  407 

Peoria  Savings  Co.  v.  Elder 876 

Pepper   Telegraph  Co 604 

Percival  v.  Dunn 280 

Perdew  v.  Tillma 834 

Pereau  r.  Frederick 851,  867 

Perin  v.  Parker 408 

Perkins,  Re 815 

Perkins  r.  Clay 177,  193,  789 

v.  Eaton 501 

v.  Frazer 361 

v.  Gilman 833 

r.  Guy 781 

v.  Hadley 839 

r.  Hadsell 22,     35 

v.  Hinsdale 170 

v.  Hyde 502 


TABLE    OF    CASES. 


CX1H 


PAGE. 

Perkins  v.  Lane 483 

• v.  Littlefield 170 

v.  Lougee 689 

v.  Rogers 427,  430 

v.  Savage 49  !i 

v.  Scott 750 

Perkins      Windmill    Co.    v.   Till- 
man   853,  856 

Perley   v.   Balch 608 

Perls  v.  Saalfeld 477 

Perrett's  Case 602 

Perrin   r.  Wilson 77 

Perrine  v.  Dunn 461 

Perry  v.  Barnett 499 

i:  Dicken 451 

v.  Mt.   Hope  Iron   Co..    40,     41 

605,  886 

v.  Tuscaloosa   Co 392 

Person  v.  Stoll   337 

Persse  v.  Persse 460 

Peruvian  Rys.  Co.,  Re 145 

Peter   v.   Compton 177 

Peters  v.  Davenport *  .   438 

v.  Fleming 76 

v.   Grim    501 

v.  Railroad  Co 73-1,  732 

17.  Westborough 177 

Peters  Co.  17.  Lesh 718 

Peterson  v.  Breitag 215 

v.  Laik 63 

v.  Mayor     , 161 

v.  Seagraves 802 

Petesch  v.   Hambaeh 634 

Petillon  p.  Hippie 501 

Petit   v.    Woodlief 839 

Petrie  v.  Torrent 174 

Pettee  17.  Peppard 260 

Pettigrew  v.   Chellis 681 

Pettit  v.  Braden 170 

Pettit's    Adm.     v.    Pettit's    Dis- 
tributees   483 

Petty  v.  Petty 395 

v.  Trustees 187 

Peugh  v.  Davis 630,  631 

Pew   v.  Laughlin 853 

Peyin  v.  SociSt&  St.  Jean  Baptiste.  449 

Peyto's  Case   829 

Piaff  v.  Golden 299 

Pfeuffer  v.  Maltby 500 

Pflugar  v.  Pultz 467 

Phalen  v.  Clark 499 

Pharmaceutical  Soc.  v.  London  & 

Provincial  Supply  Assoc 131 

Phelan  v.  Moss 292,  865 

Phelps  v.   Borland 384 

17.  Dennett    199 

v.  Dolan 879 

17.  Holderness 407 

17.  Johnson 813 

viii 


PAGE. 

Phelps  v.  Lyle 236 

17.  Mayor 579 

■  17.  Samson 717 

v.  Seely 822,  827 

17.  Stone 170 

v.  Sullivan 855 

■  v.  Walther 91 

c.  Worcester 79 

17.  Zuschlag 730 

Phenix  Bessemer  Steel  Co.,  Re.  .■  323 

Phenix  Ins.  Co.  17.  Raddin 658 

Phenix  Iron  Foundry  v.  Lockwood.  271 

Phettiplace  i\  Railway  Co 17 

Phibbs    17.    Buckman 693 

Phillip  17.  Gallant 572 

Phillips  r.  Alhambra  Palace  Co.  544 

v.  Bistolli    599,  622 

•  v.  Blatchford 296 

r.  Caldcleugh....    611,   663,  665 

v.  Clagett 626 

v.  Columbus  Assoc 809 

17.  Foxall 385 

i'.  Gifford   406 

r.  Graves   891 

17.  Hatch   427 

v.  Henry 748 

17.  Herndon 345 

17.  Homfray    670 

17.  Hull     Alhambra     Palace 

Co 223 

v.  Lloyd    79 

v.  McConica  581 

17.  Meyers    415,  444 

v.  Miller   668 

17.  Moor   45 

v.  Mullings 737 

17.  O'Neal    616 

v.  Phillips   567,  568 

v.  Probyn   413 

v.  Pullen    749 

17.  South  Park  Ins.  Co 451 

17.  Thorp   444 

Phillips's   Est. 281 

Phillips  Co.  17.  Seymour 332,  342 

Phillpotts  17.   Evans 338,  353 

359,  369 

Philpot  17.  Gruninger 9 

Philpott  17.  Elliott 634 

17.  Jones    807 

Phippen  17.   Stickney 470 

Phipps  17.  Jones 42 

v.  Lovegrove   283,  286 

Phoenix  Assur.  Co.  17.  Davenport .  .    125 
Phcenix    Bridge    Co.     17.     United 

States    52^ 

Phoenix,  etc.,  Co..  In  re 340,  354 

Phcenix  Co.  v.  McEvony 717 

Phcenix    Insurance    Co.    v.    Con- 
tinental Insurance  Co 302 


cxiv 


TABLE  OF  CASES. 


PAGE. 
Phoenix  Insurance  Co.  v.  McKer- 

nan   852,  854 

Phoenix  Insurance  Co.  v.  Trenton 

Water  Co 249,  251,  254 

Phoenix  Insurance  Co.  r.  Zlotky.  449 
Phosphate  of  Lime  Co.  v.  Green.  .  901 
Piatt  v.  Hubbell 175 

v.  Longworth's    Devisees. .  .  .   387 

Picard   c.  Hine 888,  890 

r.  McCormick    692 

v.  Sears 649 

Picker     r.     London     and     County 

Banking  Co 294 

Pickering  v.  Ilfracombe  Rv.  Co .  .   2S5 

483 
•  r.  Pickering   878 

v.  Stephenson    896 

Pickering's  Claim 110 

Pickett  v.  Gore 11 

v.  Leonard    778 

v.  Wadlow    631 

Pickle  Marble  Co.  v.  McClay.  249,  254 

Pickslay  r.  Starr 914 

Picot  v.   Sanderson 844 

Pidcock  x.  Bishop 661 

Pieratt   v.   Young 683 

Pierce  i .  Chace 88 

v.  Goldsberry  206 

■ r.  Parker    814 

• v.  Payne   177 

v.  Pierce 483,  484,  735 

v.  Robinson  630,  631 

i".  Seymour   774 

v.  Tennessee,  etc.,  R.  R.  Co.   360 

363 

r.  Walton  199 

v.  Wilson    709 

Piercy  r.  Young 447 

Piercy's  Heirs  v.  Piercy's  Exs.  .  .  .   844 

861 

Pieronnet  r.  Lull 408 

Pierrepont  r.  Barnard 784 

Pierson  v.  Morch 23 

v.  Spaulding    346 

Pietsch  r>.  Krause 676 

Piggott  v.  Stratton 791,  919 

Pigot's  Case.  .  .  482,  845,  846,  850,  859 

Pigott  r.  Thompson 232,  241 

Pike  v.  Colvin 566 

v.  Fitzgibbon    893 

r.  Ongley   Ill 

Pike   Electric    Co.    v.   Richardson 

Drug   Co 538 

Pilcher  v.  Rawlins 567 

Pilie  v.  New  Orleans 23,  205 

Pilkington  v.   Scott 481 

Pillans  v.  Van  Mierop 198 

Pince  v.  Beattie 452 

Pinch  v.  Willard 631 


PAGE. 

Pinchon's  Case 154,  224 

Pinckney  v.  Dambmann 361 

Pinger   r.  Pinger 335 

Pingry  v.  Washburn 437 

Pinkett  r.  Wright 284 

Pinkham   v.  Libbey 536 

Pinkston  v.   Brown 505 

Pinnel's  Case 211 

Pinney  v.  Hall 388 

Pintard  v.  Martin 709 

Pioneer  Mfg.  Co.  v.  Phoenix  Ass. 

Co 448 

Pioneer    Savings    Co.     r.    Nonne- 

macher    821 

Piper  v.  Fosher 177,  789 

■  v.  Hoard   231 

Pipes  v.  Buckner 175 

Pipp  r.  Reynolds 259 

Pippen  v.  Insurance  Co 67 

-  17.  Wesson  892 

Pironi  v.  Corrigan 335,  740,  746 

Pisini  i .  A.-G.  for  Gibraltar 741 

Pistel  v.  Imperial  Ins.  Co 52 

Pitcher  v.  Hennessey 577 

r.  Wilson   .  .  .'. 178 

Pitkin  r.  Noyes 215 

Pitt  v.  Gentle 187 

Pittam  v.   Foster 90 

Pittman   ('.  Pittman 361 

Pittsburgh     B.     S.     Rail    Co.     v. 

Hinckley   550 

Pittsburg  Carbon  Co.  v.  McMillin.  498 
P.  C.  C.  &  St.  L.  Ry.  Co.  v.  Vol- 

kert   451 

Pittsburgh   Iron   Co   r.   Lake   Su- 
perior Iron  Co 175 

Pittsburg  Mining  Co.  v.  Spooner.  676 
Pittsfield  Cottonwear  Co.  v.  Pitts- 
field  Shoe  Co 254 

Pixley  v.  Boynton 409 

Place  v.  Hayward 505,  736,  741 

Planch?  v.   Colburn 337 

Plank  v.  Jackson 486,  487 

Piano  Mfg.  Co.  v.  Burrows 271 

Plant  v.  Bourne 179 

r.  Condit    608 

c.  Gunn    441 

v.  Gunton   729 

Plant  Seed  Co.  v.  Hall 43 

Planter's  Bank  v.  Union  Bank .  .  .  498 

Plating  Co.  v.  Farquharson 460 

Piatt  v.  Brand 361 

■  v.  Bromage 579 

Piatt  v.  Broderick 51 

v.  Railroad  Co 533 

Playford  v.  United  Kingdom  Elec- 
tric Telegraph  Co 233 

Pledge  v.  Buss 386,  660,  661 

Plevins  t.  Downing 823 


TABLE    OF    CASES. 


CXV 


PAGE. 

Plews  v.  Baker ■ 446 

Plimpton  v.  Curtiss 176 

Plumb  v.  Campbell 34,  35,  406 

Plumer  c  Lord 892 

r.  Smith   487 

Plummer  v.  Bueknam 786 

r.  People 729 

Plunkett  r,  Davis  Co 382 

v.  Hanseka   798 

Plyler  i:  Elliott 870 

Plympton  v.  Dunn 709,  723 

Poch6  v.  New  Orleans  Co 343 

Poeoek  r.  Lafayette  Bldg.  Assoc.    142 

Poe  v.  Dixon   269,  271 

Poillon  t\  Martin    741,  768 

v.  Poillon 415 

Poindexter   r.   Davis 409 

Poirier  it.  Gravel 361 

Poland  v.  Brownell 692 

Poland  Paper  Co.  v.  Foote 204 

Polhemus    r.   Heiman 608 

Polhill  i:  Walter 684 

Police  Jury  v.   Britton 146,  147 

Pollard,  Ex  parte   323,  355 

v.  Eeardon 303 

v.  Scears 776 

v.  Vinton 302 

Pollman  Coal  Co.  v.  St.  Louis...   211 

839 
Pollock  v.  Agner 501 

v.  Cohen 121 

v.  Smith 721 

t\  Sullivan   120,  495 

Poison   v.   Stewart 444 

Pomeroy   v.    Slade 204 

Pond  v.  Smith 430  , 

Ponder  v.  Jerome  Hill  Cotton  Co.  407 

Ponsford  v.  Johnson 397 

Pool  v.  Boston 205 

e.  Gott   462 

v.  Horner 200 

v.  Pratt 65,     80 

Poole   v.   Hintrager 257 

v.  Kelsey 841 

v.  Mass."  Plush  Co 310 

Pope  v.   Allis    653 

r.  Branch    County    Bank .  .  .    867 

v.  Chafee 853 

v.  Garrard 531 

r.  Hanke   407,   508,  512 

v.  Hartwig 291 

v.  Hooper 640 

v.  Meadow  Spring  Distilling 

Co 110 

v.  Porter   275,  331 

Pope  Iron  Co.  v.  Best 52 

Popham    v.    Brooke 742 

Poplett  v.  Stoekdale 376 

Popplein  v.  Foley 634 

Poidage  v.  Cole   322 

Porell  v.  Cavanaugh 716 


PAGE. 

Porritt  !'.  Baker   91U 

Port  v.  Russell    389 

Port  Huron  Co.  v.  Sherman 853 

Port  of  London  Co.'s  Case 899 

Porter   v.   American   Legion.    361,  363 

r.  Arrowhead  Reservoir  Co.  342 

352 

c.   Blood    778 

r.  Chicago,  etc.,  Ry.  Co....   841 

r.  Cook  839 

r.    Day    405 

v.  Doby   861 

f.   Dunn    337 

c.  Fletcher   695 

■  e.  Hardy   585,  867 

v.   Hill    175 

v.    Hodenpuyl    384 

v.   Jackson    252 

■  «'.  Merrill   108 

■  v.   Perkins    •  175 

r.   Railroad   Co 160 

v.    Scott    879 

■  v.  Sherman  County  Banking 

Co 498 

v.  Woodruff   388,  389 

r.   Woods    257 

Porter's  Case   494 

Porterfield  v.  Butler   200 

Portland  Trust  Co.  v.  Nunn 265 

Portner  v.  Kirschner 441 

Posey  t\  Bank  25 

Poska  v.  Stearns   697,  699 

Posner  v.  Seder  337 

Post  r.  Dart   275 

v.  Davis    47 

v.  Losey    861 

v.    Mason    734 

Postal  Tel.  Co.  v.  Schaefer 604 

Postelle    v.    Rivers 486 

Poston  !'.  Balch    505 

Potomac  Coal  Co.  v.  Railroad  Co.  731 

Potter  v.  Adams 849 

c.  Ajax  Mining  Co 452 

v.   Carpenter    11 

v.   Douglass    839 

v.    Fidelity   Co 395,  739 

v.   Jacobs    791 

v.    Potter    640 

v.   Sanders    884 

v.   Stransky    775 

v.    Taggart    343,  710 

Potts  v.  Bell   427 

v.  First  Nat.  Bank 256 

V.  Polk  Co 215 

v.  Rose  Valley  Mills 548 

v.  Whitehead 29,  39,  43 

Poulton  v.   Lattimore    342 

Pound   v.   Williams    607 

Pounds  v.  Chatham   245 

Poussard  v.  Spiers  and  Pond ....  545 

Powder  River  Co.  v.  Lamb 176 


CXV1 


TABLE    OF    CASES. 


PAGE. 

Powell  v.  Banks   851 

r.   Bradlee    679 

p.  Divett   852 

v.  Elliot 665 

r.    Flanary    441 

v.  Morisey 643 

r.   Newell    545 

v.  Pearlstine   850,  851,  861 

v.   Powell    98,  735,  745 

-  v.    Rich     173 

r.  Sammons   342 

-  r.   Smith    572 

v.  Thomas 791 

r.    Banks    127 

Power  r.  Wells 335,  336 

Power's    Appeal     459,  814 

Powers  p.  Benedict  708,  716 

r.  Clarkson 173 

r.  Hale    753 

r.   Insurance  Co 658 

v.   Skinner  436 

Powers  Dry  Goods  Co.  v.  Harlin.  .  378 

Prall   v.   Tilt    294 

Prarie  v.  Jenkins   383 

Prater  v.  Campbell   173,  298 

Prather   c.   Burgess    393 

v.   Zulauf    864 

Pratt  p.  Baptist  Soc 42,  187 

v.  Barker 746 

r.  Bates      170 

i.  Bowman 664 

p.  Conway      261 

i.  Humphrey 170 

v.  Oshkosh  Match  Co 228 

v.  Philbrook 709 

i.  S.  Freeman  &  Sons  Mfg. 

Co 336 

r.  Short   141 

Pratt's  Appeal   281 

Pray  r.  Burbank 402 

Preble  v.  Bottom 332,  342 

Precious  Blood  Soc.  v.  Elsythe.  . .  715 

Press  v.  Coke 751 

Prendergast  v.  Lee 340 

Prentice  v.  Brimhall .  248,  249,  253,  260 

v.  London 447 

Prentiss  v.  Paisley 87 

Presbury   p.   Fisher 482 

Presby  v.  Parker 701 

Prescott  r.  Battersby 402 

r.  Jones 10,  29,  32,  650 

r.  Norris    82 

President  r.  Green 565 

Pressly  v.  Kemp 738 

Prest  )\  Cole 832 

Preston  r.  Dania 556,  632 

r.  Luck       572 

v.  Missouri,  etc.,  Lead  Co. .  .  144 

161 

v.  Morris 292 

v.  Smith 408 


PAGE. 

Prettyman  v.  Goodrich 855 

Price  c.  Berrington 102 

r.  Cannon 204 

v.  Dyer 311 

• v.  Easton   233,  234,  244 

r.  First  Nat.  Bank 215 

r.  Furman 67,  68 

p.  Greene 483 

r.  Hewett 83 

p.  Ley 635 

v.  Macaulay 694 

p.  Mitchell     206 

v.  Pepper 536 

v.  Price 120 

v.  Sanders 80 

r.  Summers 442 

v.  Tallman 865 

v.  Trusdell 238,  258 

Price's  Appeal  769 

Price  Co.  Bank  r.  McKenzie 386 

Prichard  r.  Budd 112 

Pride  r.  Bubb 887,  890 

Prideaux  r.  Lonsdale.  .  .  393,  394,  739 

Priest  r.  White    703 

Priestley  r.  Fernie 110 

Prim  v.  Hammel 859,  861,  867 

Primrose   !'.   Western  Union   Tel. 

Co 54 

Prince  r.  Griffin 628 

r.  McRae 802 

p.  Oriental   Bank 853 

Prince's     Mfg.     Co.     v.     Prince's 

Paint  Co 419 

Prince    of    Wales    Assce.    Co.    v. 

Harding 900 

Pringle   r.   Pringle 395 

Printing    and    Numerical    Regis- 
tering Co.  r.  Sampson....  426,  478 

Printup  r.  Mitchell 873 

Pritchard   p.  Merchants'  Life  In- 
surance  Society    614 

Pritchard  v.  Norton 781 

Proctor  r.  Cole 461 

v.  Keith       204 

Produce   Exchange   Trust    Co.    v. 

Bieberbnck   854,  862 

Prole  r.  Soady  917 

Prosser   v.  Edmonds...    449,  453,  456 

457 

Proudfoot  v.  Montefiore 657 

Prout  p.  Pittsfield  Fire  District.  214 

Prouty  v.  Wilson 850 

Providence  Coal  Co.  r.  Coxe 331 

Providence  Tool  Co.  v.  Norris ....  436 

Pruden   p.   Williams    263 

Prugnell  p.  Gosse 475 

Pryse   p.   Pryse    458 

Pugh  v.  Barnes   273 

Pulbrook  v.  Lawes   787 

Pullman   Palace   Car   Co.  v.   Cen- 
tral Transportation  Co 495 


TABLE    OF    CASES. 


CXV1] 


PAGE. 

Pulsford  v.  Richards  707 

Pulver  v.  Skinner 258 

Purcell  v.  McNamara  749 

l.'urcell   (W.  H.)   r.  Sage 197 

Purdy  v.  Rome,  etc.,  R.  Co 818 

Purner  v.  Piercy 173 

Pursley  v.  Hays   68 

Purvines  c,  Harrison  644 

Putnam  r.  Dike    780 

v.    Field    257 

r.   Glidden    336 

v.    Tennyson    199 

v.   Woodbury    210 

Putnam  Bank  v.  Snow 25 

Putney    v.    Farnham 245,  259 

Pybus  r.  Gibb  382 

Pyke,  Ex  parte 409 

Pyle  i\   Cravens        66 

Pym  v.  Campbell    312 

Pyne  v.  Wood   79 

Pyott  v.  Pyott    98 

Q. 

Quarrier  p.  Colston   511 

Queen  v.  Bernardo    461 

Queen  Ins.  Co.  v.  Texas   469 

Queen-Empress    v.    Narottam-das 

Motiram    407 

Quick  v.   Wheeler    25,  27 

Quimby   v.   Insurance   Co 446 

v.   Melvin    879 

v.  Vanderbilt  53 

Quincey  v.   Sharpe   777 

Quinlan  v.  Myers   791 

Quinn  v.  Brown   589 

v.  Leathern   225,  377 

— —  v.  Roath   628 

v.  South  Carolina  R.  Co 130 

Quinn's  Estate    893 

Quirk  v.  Muller 445 

R. 

Raabe  v.   Squier   332 

Raatz,    Re    707 

Rabberman  r.  Niskamp    256 

Rabe  v.   Dunlap    135 

Rackeman  v.  Riverbank  Imp.  Co. 

173,   701,  721 

Radcliffe  v.  Varner  136 

Radenhurst  v.  Bates   235 

Radford  v.  Carwile  891 

Radloff  v.  Haase  633 

Rae  v.  Hulbert  157 

Raffles  v.  Wiehelhaus 599 

Rafolovitz   v.    American    Tobacco 

Co 197 

Raggett  v.  Bishop    808 

v.  Musgrave  808 

Raguet  v.   Roll    440,  488 

Rahilly  v.  St.  Paul,  etc.,  Co 53 

Rahter  r.   Bank   402 


PAGE. 

Raife  v.  Gorell   200 

Railroad   Co.   t:   Anderson 695 

v.  Arnold    132 

i .  Babcock   753 

■  r.  Barrett ' 54 

r.  Bartlett 27,     28 

i:  Beckett 17 

r.   Blocher    130 

r.   Bowler    389 

r.  Boyd  54 

i:    Brownlee     54 

r.    Burke    130 

■  p.  C.  V.  &  W.  Coal  Co 731 

•  v.  Campbell   53 

— —  v.   Cary   446 

— — ■  v.  Casey   385 

v.   Chatham   147 

v.  Christy  121 

v.   Commonwealth    ....    130,  131 

v.   Commrs.  of  Miami  Co. .   749 

— ■ —  v.    Continental    Trust    Co.  .     61 

v.  Cox 53 

v.    Croswell     135 

v.  Dalby    17,  130 

v.    Dane    30,  197 

r.    Dow    142 

v.   Dunn    130 

r.   Elliott    67 

v.  Fifth  Baptist  Church 130 

r.   Franklin   Bank    701 

v.    Gow    385 

v.   Harris    135 

v.  Hine   780 

v.  Howard   144,  147,  288 

v.  Jackson   605 

f.    Jones    170 

v.  Kerr 716 

i .    Kindred     390 

■  v.  King  431 

■  V.    Ling    ,   385,  661 

v.  Live  Stock  Bank 302 

v.  Loewenthal    292 

— ■ — ■  v.    Manufacturing    Co 54 

v.   Mathers    437,  488 

v.  Mitchell   197 

v.  Morgenstern   160 

v.    Norwich,    etc.,    Society.  .    137 

144 

v.   Orton    141 

r.  Pattison   388,  731 

v.    Poor    389 

v.    Power    301 

v.   Quigley    130 

v.  Ragsdale   791 

v.  Ralston 437 

v.  Reeves 301 

v.    Reichert    523 

v.   Reynolds    54 

v.  Rhodes  286 

v.  Richardson 119,   120,  654 

v.  Rinard    17 


CXV111 


TABLE    OF    CASES. 


PAGE. 

Railroad  Co.  v.  Rodebaugh 53 

v,    Rogers    17,  130 

v.    Row    709 

r.    Ryan    437 

p.   Sehimick   583 

r.  Schuyler 137,  701 

v.  Seeley   437 

■ v.  Shay 584 

!-.  South   17 

v.  Spear 622,  637 

v.  State  131 

• r.  Steinfeld 639,  706 

r.  Taylor   437,  483 

c   Tipton    147 

■ v.   Transportation    Co 142 

v.  Trimble 573,  775 

v.  Trust  Co   142 

v.  Turner 53 

v.  Union  Steamboat  Co ...  .  140 

Railton  v.  Mathews 659,  661 

Railway  Co.  v.  Avery 54 

v.  Birney   17 

v.  Carter        54 

r.  Clark 204 

r.  Commonwealth    131 

p.  Conder    565 

r.  Danforth    549 

c.  Deloney 53 

r.  Dewey    389 

r.  Ellis 125 

r.  Gaflfney     10 

r.  Gilmer   301 

i .  Green 577,  584 

v.  Harris    130 

v.  Hennesey    91 

r.  Herr 101 

v.  Holmes 53 

r.  Hooper    140,  528 

v.  Hoyt 528 

v.  James 125 

v.  Jurey 54 

v.  Keokuk  Bridge  Co 161 

r.  Louisville  Trust  Co 125 

v.  Lynde   144 

r.  Newman 53 

i\  Simon     54 

r.  Steiner    731 

r.  Wood    177 

v.  Wright     54 

Rainwater    r.    Durham 79 

Raisin  v.   Clark 388,  389 

Rajah    Mokham    Singh   v.    Rajah 

Rup    Singh    762 

Rake's  Adms.  r.  Pope 177,  789 

Raleigh,  etc.,  R.  Co.  v.  Lowe 302 

Raley  r.  Victor  Co 545 

Ralphsnyder  r.   Shaw 470 

Ralston  r.  Boady 487 

r.  Turpin 742 

Ram    Coomar    Coondoo   v.    Chun- 

der  Canto  Mooker jee 460 


PAGE. 

Rambousek  v.  Supreme  Council..   873 

Ramboz    v.    Stowell 88 

Ramloll   Thaekoorseydass   v.   Soo- 

jumnell  Dhondmull    422 

Ramsay  v.  Joyce 394 

v.  Warner 776 

Ramsdale  v.  Horton 258,  259 

Ramsden   v.   Brearley 94 

v.  Dyson   791 

v.  Railroad    Co 130 

Ramsey  v.   Smith 486,  639 

v.  Thompson  Mfg.  Co 675 

Ramsey's  Est.   v.  Whitbeck 483 

Ramsgate  Hotel  Co.  v.  Goldsmid.      30 

p.  Montefiore 30 

Ranchau  r.  Railroad  Co 53 

Rand  v.   Columbia  Bank 598 

Randall   v.    Brodhead 211 

v.  Dudley   125 

v.  Ghent 643 

v.  Kelsey 170 

r.  Morgan 784 

v.  Phoenix  Ins.  Co 448 

v.  Randall 415,  444 

i.  Sanders 630 

v.  Sweet    80 

r.  Tuell 402 

p.  Turner    176 

r.  Van  Vechten  161 

Randegger   r.   Holmes 446 

Randall  v.  Trimen 120 

Randell,      Saunders      &      Co.      v. 

Thompson 447 

Randolph  Iron  Co.  v.  Elliott 592 

Rangley  v.  Spring SS 

Ranger  r.  Cary 295 

Ranken  v.  Patton 768,  769 

Rankin  p.  Potter 545 

Rann  p.  Hughes 198 

Ransier  v.  Vanorsdol 845,  850 

Paper   r.  Birbeck 853 

Raphael  v.  Bank  of  England....   291 

Rapid,    The    427 

Rapp    v.    Giddings 839 

Rapp,   Estate  of,  v.   Phcenix  Ins. 

Co 385 

Rappleye  v.  Racine  Seeder  Co...   323 

355,  595 

Rashdall  v.  Eord 688 

Rasmussen  v.  State  Bank 199 

Ratcliff  v.  Planters'  Bank 856 

Ratcliffe  v.  Smith 488 

Rath  v.  Vanderlyn 743 

Rathbone  v.  Tucker 116 

Ratzer   v.   Burlington,  etc.,   Rail- 
way Co 303 

Rau  p.  Von  Zedlitz 747,  770 

Raubitchek  v.  Blank 181 

Raven  v.   Smith 877 

Rawdon  v.  Rawdon 98 

Rawley  v.  Rawley 70 


TABLE    OF    CASES. 


CX1X 


PAGfc. 

Rawlins  v.  Wickham 680,  682,  683 

707 
Rawson  v.  Clark 537 

v.  Copeland 270 

i\  Davidson 861 

v.  Railroad  Co 53 

Ray  v .  Haines 67 

v.  Jones 833 

r.  Mackin 470 

e.  Tubbs 84 

Raymond  v.  Leavitt 372 

p.  Minton 551 

v.  Royal  Baking  Powder  Co.   419 

r.  Vaughan 103 

Rayner    r.   Grote 118,  123 

Raysor  v.  Berkley  Co 10 

Rea  v.  Bishop . .  ." 101 

Read  r.  Anderson 499 

I?.  Hall 88 

v.  Johnson  778 

v.  Legard   99 

v.  Smith   500 

v.  State  Ins.  Co 448 

Reade  17.  Lambe 783 

v.  Livingston   794 

Ready  v.  Noakes 753 

Reager  17.  Kendall 679 

Real  Est.  Sav.  Inst.  v.  Linder 579 

Reando  v.  Misplay 99 

Reciprocity  Bank,  in  the  matter 

of  the 892 

Rector  v.  Bernaschina 310 

v.  Collins    577 

v.  Higgins    270 

v.  Teed   185,  241,  249 

Rector,  etc.,  of  St.  Bartholomew 

v.  Wood 147 

Redding  v.  Hall 531 

Redelsheimer  v.  Miller 257 

Redfearn  v.  Craig 258 

Redfern  v.  Bryning 317 

Redgrave  v.  Hurd 681,  694 

RedhefteV  v.  Leathe 595 

Redlands  Assoc,  v.  Gorman 629 

Redlieh  v.  Doll 867 

Redmond  v.  Dickerson 132 

v.  Wynne   289 

Reece  v.  Kyle 426 

Reed  r.  Bank 130 

v.  Bartlett  838 

v.  Beazley 415 

- —  v.  Bond 488 

17.  Brewer 486 

v.  Culp   864 

r.  Deere 799 

».  Gold 177,  789 

— : —  v.  Kemp 859 

v.  McGrew 715 

17.  McKee 440 


PAGE. 

Reed  v.  Marble 282 

17.  Marshall 776 

17.  Morton   856 

17.  Nevins 283 

v.  Paul    270 

17.  Peterson 750 

v.  Reed 630,  631 

17.  Root 577 

v.  Tarbell S14 

f.  Warner 387 

Reeder  17.  Gorsuch 631 

—  17.  Reeder 335 

Rees  17.  Berrington 386 

v.  De  Bernardy   454,  764 

17.  Lowry 299 

17.  Overbaugh 853 

17.  Rees 844 

v.  Williams   806,  912 

Reese  17.  United  States 382,  857 

Reese  River  Silver  Mining  Co.  17. 

Smith 675,  682,  710 

Reeve  17.  Dennett 631,  703 

Reeves  17,  Corning 691 

17.  Hearn 826,  830 

R.  17.  Ashwell 5S0 

v.  Aspinwall 377 

r.  Commissioners  of  Sewers 

for  Essex 535 

17.  Cumberland  (Justices  of).   165 

166 

17.  Demers 196 

17.  Doutre   805 

17.  G.  N.  of  Eng.  Ry.  Co.  129,  130 

i!.  Holmes 886 

17.  Lord 62 

17.  Mayor  of   Stamford 165 

r.  McDonald 72 

v.  Middleton 590 

17.  Prince 565 

1?.  Ramsey  and  Foote 420 

v.  Rowlands 376 

17.  Warburton 377 

Regina  17.  Hardey 878 

Reichel  17.  Jeffrey 836 

Reichenbach  v.  Sage 528 

Reid  17.  Alaska  Packing  Co 522 

17.  Bird 717 

17.  Bradley 584 

17.  Diamond  Glass  Co 17S 

17.  Hibbard 837 

r.  Hoskins 345,  360,  524 

17.  Reid 95 

Reidpath's  Case 884 

Reif  17.  Page 22,  205 

Reilly  17.  Gautschi 599 

17.  Otto 306 

17.  Smith 666 

Reimensnyder  v.  Gans 187 

Reinhard  17.  City 503,  730 


cxx 


TABLE    OF    CASES. 


PAGE. 

Reinheimer  r.  Carter 177,  789 

Reinskopf  i.  Rogge 100 

Reis  v.  Lawrence 88 

Reiser  i .  Mears 349 

Remelee  v.  Hall 363 

Remington  c.  Palmer 173 

v.  Wright   729 

Remington  S.  M.  Co.  v.  Kezertee.  681 

Remy  r.  Olds 361 

Renals  v.  Cowlishaw 301,  305 

Renard  v.  Sampson 816,  875 

Rennick  v.  Butterfield 388 

Renz,  Re 99 

Republic  Ins.  Co.  v.  Swigert 719 

Respass  v.  Jones 850 

Resseter  v.  Waterman 171 

Rettinghouse  v.  Ashland 211 

Reuss  r.  Picksley 181 

Reuter  v.  Electric  Telegraph  Co.  .  163 

— —  v.  Sala   329,  330,  629 

Revel  v.  Revel 89 

Reybold  r.  Voorhees 33"2 

Reymond  v.  Neweomb 778 

Reynard  r.  Arnold 533 

Reynell  v.  Sprye.  .  .   450,  451,  453,  493 

505,  681,  694 

Reynolds  v.  Bank 141 

V.  Caldwell 448 

v.  Crawfordsville      National 

Bank 403 

v.  Excelsior   Co 725 

f.  Hall 382 

v.  Harrell 443 

!'.  Lawton 258 

v.  Nugent      210 

■  v.  Reynolds 211,  353,  685 

813,  879 

v.  Robinson    312 

r.  Trustees 160 

Rhea  v.  Renner 91 

Rheel  v.  Hicks 612 

Rhoades  v.  Chesapeake,  etc.,  R.  Co.  816 

i\  Leach 857,  858;  863 

Rhoads  v.   Armstrong  County.  . . .  876 

v.   Jones '.  .  •  875 

Rhoda  v.  Annis 701 

Rhodes,    Re 11,  99 

Rhodes  v.  Bate 740,  745,  771 

v.  Hardy 880 

r.  Haynes 285 

v.  Matthews 257 

r.  Neal     441 

v.  Rhodes   790 

c.  Summerhill  427 

v.  Swithenbank 75 

Rhymney  Ry.  Co.  t\  Brecon,  etc., 

Ry.  Co 340 

Ricard  v.  Sanderson 261 

Ricardo  V.   Garcias 877 


*.  PAGE. 

Rice  v.  Boyer  66,     82 

v.  Butler  79 

v.  Carter 170 

v.  Dwight  Mfg.  Co 612 

r.  Fidelity  Co 658 

r.  Gist 406 

i .  Gordon 622,  749 

v.  Insurance  Co 658 

t*.  London  Co 211 

v.  Manly 786 

r.  Maxwell   380 

v.  Partello    337 

v.  Sanders 260 

r.  Waddill    395 

v.  Weber   539 

r.  Wood  377,  388 

Rich  v.  Black 388 

v.  Doane  631 

v.  Lord    815 

Richard  v.  Brehm 158 

Richards  i:  Daily 295 

v.  Delbridge  219 

r.  Doyle 666 

c.  Fisher  813 

p.  Green    66 

r.  Grinnell   174 

p.  Home  Assurance  Assoc ...     37 

Richardson  r.  Brix 402 

r.  Buhl    468 

/'.  CoflFman   51 

■ r.  Comstock  215 

v.  Crandall  425 

r.  Denegre    701 

r.  Fellner 865,  874 

r.  Gosser 216 

e.  Hickman    566 

v.  Mather   866 

r.  New  Orleans  Co 701 

v.  Olivier 701 

v.  Pate    69 

r.  Pierce 176,  385 

v.  Richards 876 

v.  Richardson    219 

!•.  Rowland 452,  513 

— —  r,  Rowntree    53,     54 

r.  Scott's   Bluff  County 436 

r.  Strong 99 

r.  Thomas 77S 

v.  Tobey   300 

v.  Tolliver 88 

v.  Williamson    119 

Richardson  Co.  v.  Hampton 215 

Riche  v.  Ashbury  Ry.  Carriage  Co.  139 

900 
Richelieu    Hotel    Co.    i:    Interna- 
tional Co 187 

Richeson  v.  Mead 52 

Richmond  v.  Aiken   775 

v.  'Foss 402 

v.  McGirr  146 

Richmond,  Adm.,  Petitioner 776 


TABLE    OF    CASES. 


CXX1 


PAGE. 

Rick  v.  Hoffman 261,  264 

Biekards  v.  Cunningham 786 

Rickerson  v.  Insurance  Co 572 

Ricketts   t>.   Harvey. 441 

v.  Scothorn 650 

Riekman  v.  Miller 245,  261 

Ricord  v.  Railroad  Co 130 

Riddell   v.   Johnson 734 

Riddle  v.  Backus 176 

r.  Hall , 440 

v.  Perry    502 

— —  v.  Stevens  867 

Ridgely  v.  Conswago  Iron  Co ...  .   541 

v.  Robertson     264 

Ridgeway  r.  Herbert 69 

Ridgway  v.  Ingram 182 

v.  Sneyd 541 

v.  Wharton    47 

Riegel  v.  American  Ins.  Co. .  .612,  615 

Rielly  c.  Brown 750 

Ries  v.  Rowland 876 

Riesz's  Appeal 666 

Rifener  v.  Bowman 845 

Rigby  v.  Connol 808 

Rigdon  v.  Walcott 715 

Riggan  r.  Green 101,  102 

v.  Sledge  699 

Riggles   v.   Erney 790 

Riggs  v.  Cage 106 

v.  Protective  Assoc 211 

v.  St.  Clair 865 

Righter  v.  Roller 608 

Rigney  r.  Plaster 101 

Riley  v.  Carter 101 

r.  Jordan    487 

r.  Mallory 67 

v.  Minor   174 

r.  Riley   837,  874 

v.  Starr 631 

1?.  Walker 353 

Rineer   v.  Collins 179 

Ring  v.  Jamison 69 

Ringo  v.  Binns 387 

v.  Wing 256 

Rintoul  v.  White 172 

Riordan  v.  Dotv 408 

v.  First  Church    276 

Rioux  v.  Ryegate  Brick  Co 332 

Ripley  v.  Mtna,  Ins.  Co 818 

v.  Case 654 

I;.  M'Clure   351,  353,  359 

v.  Wightman 531 

Risch  v.  Von  Lilienthal 695 

Riser  v.  Snoddy 776 

v.  Walton 701 

Rison  r.  Moon 879 

Ritcher  v.  Laycock 63 

Ritchie  v.  Boynton 402 

V.  Smith 402 

Ritenour  v.  Mathews 210,  841 

Rittenhouse  v.  Levering 857 


PAGE. 

Ritter  v.  Mutual  Life  Ins.  Co .  .  .  376 

548 

v.  Phillips    275 

v.  Railroad  Co 392 

Ritter's  Appeal 776 

Rivaz  v.  Gerussi 656 

River     Wear     Commissioners     r. 

Adamson 398 

Rivers  v.  Gregg 78 

p.  Moss'  Assignee 431 

c.  Rivers'  Exs ■. 467 

Roach  v.  Karr 584 

Robb  v.  Mudge 276 

v.  Shephard 88 

Robbins  v.  Ayres 257 

v.  Eaton   69 

v.  Martin 664 

r.  Roscoe 56 

v.  Webb  .    .  . ; 300,  301 

Roberts  v.  Bank 204 

v.  Berry 627 

i-.  Blair 409 

V.  Brett 323 

v.  Bury  Commissioners .  550,  551 

r.  Carter 286 

-  v.  Cobb 249,  255 

v.  Donovan 385 

v.  Ely 238 

— —  v.  Fitzallen 261,  268 

v.  Griswold 199 

v.  Insurance  Co 281 

v.  Plaisted 695 

v.  Scull  302 

v.  Security  Co 7,  46,     55 

v.  Smith 49,     50 

Roberts,  Edw.,  Heirs  of  v.  Love- 
joy  664 

Robertson  v.  Blewett 452 

r.  Breedlove 295 

v.  Broadfoot 495 

v.  Cloud 106 

v.  Coleman   592 

r.  Frank  Bros.  Co 731 

v.  Hay    853,  859 

v.  Lonsdale 244 

v.  Moline,  etc.,  Co 631 

v.  Reed   258,  259,  266 

•  v.  Roberts 566 

v.  Robinson    438 

v.  Stuhlmiller   268 

Robinson  r.  Barrows   515 

v.  Beall   452 

v.    Berryman    859,  871 

V,   Bird    565 

r.    Bland    507,  511 

t>.  Boyd   185 

v.   Braiden    640 

v.  Buck   393 

v.  Davenport 323 


CXX11 


TABLE    OF    CASES. 


PAGE. 
Robinson  v.  Davison ....  223,  544,  593 

v.  Ezzell    731 

v.  Georges  Ins.  Co 449 

v.   Glass    5S4 

v.  Gould   729 

v.  Holmes 261,  276 

v.  Hoskins    68 

v.  Hurst 199 

v.   Jewett    210,  390 

•  v.    Leir    716 

v.  L'Engle    531 

•  v.   Lyman    295 

■  v.   McFaul    818 

v.   Mandell    466 

v.   Mollett    389 

— —  v.  Myers   874 

v.   Ommanney    460 

v.  Page   311 

-  v.  Peyton    780 

t\   Perry    295 

v.  Phoenix  Ins.  Co 850 

v.  Pickering 888,  890 

v.  Reed 858,  861 

v.   Reynolds    89 

v.    State    590 

V.    Turrentine    892 

■ — — ■  v.  Weeks 66,     67 

r.    Weller    43 

v.    Willoughby    630 

Robinson  &  Co.,  Ltd.,  v.  Heuer..   479 
Robinson,  King  &  Co.  v.  Lynes ...     96 

Robison   v.   MeCracken    377,  500 

Robson   v.    Bohn    331,  342 

p.    Dodds     897 

v.  Drummond   223,  227,  592 

v.  Mississippi  Logging  Co. .  .   528 

559 

Roby  v.  West 399,  515 

Rocco  v.   Frapoli    432,  495 

Rochefoucauld    v.    Boustead.   723,  784 
Rochester  (:.  Levering   743 

v.    Whitehouse    832 

Rochester    Lantern    Co.    v.    Stiles 

Co 595 

Rock  v.  Matthews    492 

Rockafellow  v.  Newcomb    735 

Rockville  Bank  v.  Holt 384,  385 

Rockwell  v.  Blair  Bank 261 

Rockwood  v.  Brown  283 

Roddam  v.  Morley 774,  779 

Rodemer    v.    Hazlehurst 337 

Rodenbarger  v.   Bramblett.  .   269,  271 

Rodes  D.  Patillo 431 

Rodgers   v.    Bass 429,  431 

v.    Comptoir    D'Escomte.  .  .   717 

Rodliff  v.  Dallinger 113,  123,  592 

Rodman   v.   Devlin 876 

V.  Thalheimer 679 

Rodriguez  r.   Bienvenu 420 

Roe  v.  Barker 266 

v.  Town  Ins.  Co 867 


PAGE. 

Roe  v.  Tranmarr 625 

v.  York 840 

Roebling  v.  Lock  Stitch  Pence  Co..  331 

349 
Roehm  v,  Horst 358,  360,  366,  367 

369 

Roger  v.  Raines 508 

Rogers   v.   Atkinson 633 

— —  v.    Blackwell 101 

v.  Castle   272 

v.    Edwards 631 

v.    Galloway   College 187 

249,  255 

v.  Gosnell 238,  257,  269 

273,  276 

v.  Hadley   313 

v.  Hanson  608 

r.  Herron   261 

v.    Higgins    709,  769 

v.  Hill 441 

v.  Hosegood 300,  301 

302,  305 
■  r.  Huie  565 

v.  Ingham   < 578,  581 

v.  Kimball   820 

— — -  v.   Lockett    387 

v.  Maddocks  479 

— —  v.   March    109 

v.  Marriott   407,  409 

-  v.  Marshall 453,  735,  742 

v.  Parry    474 

■  v.  Pattie   610 

c.  Pavne 826 

v.   Phillips    88 

v.  Place  584 

v.  Rogers   .  .  .   204,  415,  776,  850 

-  t\    Shaw    858 

v.  Skipworth 565 

v.  Union  Stone  Co 257,  259 

-  v.  Walker   101 

Rogers      Locomotive      Works     v. 

Kelley   239 

Rohman  v.  Gaiser 249,  254 

Rohrbough  v.  Leopold 718 

Rohrer  v.  Muller 180 

Rohroff  v.  Schultze 695 

Roland  v.  Gundy 567 

Rolfe  v.  Flower 227 

v.  Wooster 295 

Roll  n.  Raguet 440,  488 

V.  Roll 415 

Roller  v.  Ott 469 

Rolling  Stock  Co.  v.  Railroad  Co.   389 
Rollins  v.  Lashus 730 

v.  Marsh   204,  815 

n.  Townsend  879 

Roman  v.  Mali 505,  736 

v.  Peters  382 

Romberg  v.  McCormick 292 

Romford  v.  Canal  Co 898 


TABLE    OF    CASES. 


CXX111 


PAGE. 

Rommel  v.  Wingate 604 

Rooke  v.  Lord  Kensington. . .   624,  641 
Roosevelt  v.  Doherty 108 

r.  Mark 778 

Eoot  v.  Pinney 515 

v.  Wright 261,  266,  275 

Roper  v.  Doncaster 889,  890 

r.  Holland    810 

v.  Johnson   350,  360,  369 

v.  Trustees  661 

Roscorla  v.  Thomas 199 

Rose  v.  Gould 776 

v.  Hayden 174,  387 

v.  Kimberly  Co 508 

v.  Mitchell    486 

r.  Wollenberg    171 

Roselle  v.  Beckemeier 498 

v.  McAuliffe 500 

Rosenbaum  v.  Hayes 488 

v.  U.  S.  Credit  Co. . . .   372,  432 

495,  548,  580 

Rosenberg  v.  Jett 874 

Rosenfield  v.  Fortier 839 

Rosenheim  v.  Insurance  Co 656 

Rosenthal  v.  Mayhugh 88,  91,  459 

v.  Weir 571 

Rosewarne  v.  Billing 407 

Rosher  v.  Williams 203,  752 

Ross  v.  Allen 180 

v.  Conway 746,  769 

v.  Doland 585,  867 

v.  Drenkard's  Adm 689" 

v.  Green 406 

v.  Kennison 261 

v.  Milne 250 

v.  Singleton 88 

Boss's  Appeal 394 

Rosser  v.  Darden 114 

Rossiter  v.  Cooper 51 

v.  Miller 47,  179 

v.  Walsh 746 

Rossman  v.  McFarland 399 

Roszell  v.  Roszell 639 

Roth  v.  Taysen 350,  360,  369 

Rotherham    Alum    and   Chemical 

Co.  Be 235,  243 

Rothermel  v.  Bell  &  Zoller  Co. . .   257 

271 

Rothmiller  v.  Stein 654 

Rothwell  v.  Skinker 257,  277 

Rottman  v.  Wasson 174  ; 

Roundtree  v.  Baker 421,  510 

v.  Smith 407  ! 

Rountree  r.  Lane 175 

Rouse  v.   Bartholomew 271 

v.  Bradford  Banking  Co.  ...   385  i 

v.  Meier " 878  i 

Rousillon  I?.  Rousillon . .  .  479,  480,  508  ! 
Routledge  v.  Hislop 346  '< 


PAGE. 

Rovegno  v.  Deffarari 605 

Rowan  v.  Sharp's  Rifle  Mfg.  Co . .  382 

Rowe  r.  Bowman 865 

v.  Rand      814 

v.  Raper 80 

v.  Stevens 388 

v.  Williams    879 

Rowell  v.  Rowell 414 

Rowland  v.  Boozer 174 

t>.  Miller  302 

v.  New  York,  etc.,  R.  Co. .  599 

605 

v.  Rorke  171 

Rowley  v.  Bigelow 571,  716 

v.  Rowley  93 

Rownson,  Re 776,  787 

Royal  v.  Lindsay 206 

Royal  British  Bank  v.  Turquand.    162 

898,  900 
Royal    Exchange    Assurance   Cor- 
poration     v.       Sjorforsakrings 

Aktiebolaget  Vega 483 

Royal  Ins.  Co.  v.  Beatty 10 

Royalton  v.  Cushing 841 

Royer  Wheel  Co.  v.  Miller.. 639 

Royse  v.  State  Bank 863 

Royston  v.   Miller , 589 

Rubidoex  v.  Parks 743 

Ruble  v.   Massey 549 

Ruby  v.  Talbott 857 

Rucker  v.  Donovan 571 

v.  Harrington    823 

Ruckman  v.  Alwood 631 

v.  Bergholz   388,  402 

v.  Bryan  487 

v.  Pitcher  502 

Rudd  v.  Lascelles 666 

Ruddell  v.  Dillman 585 

Rudesill  v.  County  Court 864 

Rudge  v.  Bowman 613,  618 

Rudolph  r.  Hewitt 199 

Rudulph  v.  Brewer 863 

Rudy  v.  Ulrich 735 

Rue  v.  Meirs 249 

Rued  v.  Cooper 408 

Ruff  v.  Jarrett 697 

Ruffier  v.  Womack 631 

Ruffles  v.  Alston 418 

Ruffner  v.  Love 22 

Rugan  v.  Sabin 721 

Rugg  v.  Moore 332 

Ruggles  v.  Brock 720 

r.  Insurance  Co 657 

Ruhling  v.  Hackett 261 

Ruiz  r.  Norton 112,  115 

v.  Renauld    25 

Rumball  v.  Metropolitan  Bank. . .   293 

Rummington  v.  Kelley 342 

Rumsey  v.  Berry 406,  409 


cxxiy 


TABLE    OF    CASES. 


PAGE. 

Rundle  v.  Spencer 68 

Runnamaker  v.  Cordray 876 

Rupley   v.   Daggett 599,  605 

Rupp  r.  Sampson 388 

Rural  Homestead  Co.  v.  Wildes .  .  720 

Rush  v.  Dilks 262 

Rusk  v.  Fenton 88,  102 

Russ  Lumber   Co.  v.   Muscupiabe 

Co 324 

Russell  v.  American  Tel.  Co 294 

v.  Branham   688 

i:  Critehfield   654 

v.  Da  Bandeira 551 

-  i:  Daniels 215 

v.  Davis    779 

v.  Durham    748 

v.  Falls  Mfg.  Co 30 

v.  Langstaffe 867 

v.  Longmoor 854 

v.  Lytle 832 

v.  Reed    850,  851 

v.  Russell   447,  735,  792 

r.  Shoolbred 386 

i:.  Southard 630,  631 

r.  Stewart    14 

p.  Thornton   35 

v.  Wakefield        Waterworks 

Co 897 

v.  Western  Union  Tel.   Co..  271 

r.  Wiggin  25 

v.  Young 573 

Russell's  Appeal 739 

Russell's  Application,  Matter  of. .  205 

Rust  v.  Larue 452 

Rutenberg  v.  Main 174 

Ruth  v.  Katterman 500 

Rutherford  r.  Mclvor 575 

Ruthven  v.  Clarke 285 

Rutland     Electric    Light     Co    v. 

Bates    ".   391,  392 

Rutland  R.  R.  Co.  v.  Cole 258 

Rutledge  v.  Greenwood 10 

Ruzicka  v.  Hotovy 178 

Ryall  v.  Rowles 440,  458 

Ryan  v.  Ashton 736 

r.  Dayton    339,  548 

v.  First  Bank 859,  863 

v.  Growney 85 

k.  Hamilton  468 

%.  Martin    451 

v.  Railway  Co 389 

v.  Smith 79 

v.  Ulmer  652 

v.  United   States 179,  182 

Ryder  v.  Hulse 89 

v.  Loomis   179 

v.  Ryder   685 

r.  Wombwell   76,  77,     78 

Ryer  v.  Stoekwell 14,     23 


S. 


S.  Jarvis  Adams  Co.  p.  Knapp.  . .  468 
Saekville-West     v.      V.  i  s  c  o  u  n  t 

Holmesdale    643 

Sacramento      Co.      v.      Southern 

Pacific  Co 147 

Saddlery  Mfg.  Co.  v.  Hillsborough 

Mills    469 

Safford  v.  Grout 697 

Sagadahoc  Co.  v.  Ewing 723 

Sage  v.  Fargo  Township 147 

v.  Truslow   270 

Saint  v.  Wheeler,  etc.,  Co 661 

St.  Alban  v.  Harding 758 

St.  Andrew  r.  Manchong.  .......   280 

.St.  Andrew's  Church's  Appeal .  .  .  302 
St.   Anthony  Falls   Co.   r.   Merri- 

man     640 

St.  George  v.  Wake 393,  394 

St.  John  v.  St.  John 415 

St.  John's  Mfg.  Co.  v.  Munger .  .  .   226 

St  John's  v.  Charles 282 

St.  Joseph  r.  Rogers 137 

St.  Joseph's    Orphan    Asylum    v. 

Wolpert 11 

St.  Leonard's,  Shoreditch  (Guard- 
ians of)   v.  Franklin 131 

St.   Louis   v.    St.   Louis   Gaslight 

Co 446,  879 

St.  Louis  v.  Von  Phul.  .   249,  251,  253 
St.  Louis   Brewing  Assoc,  v.  Mc- 
Enroe     608 

I  St.    Louis    Gas    Light   Co.   v.    St. 

Louis 573 

St.     Louis    Hay    Co.     v.    United 

States 177 

St.  Louis,  etc.,  Ry.  Co.  v.  Johns- 
ton     701 

!  St.      Louis,      etc.,     Ry.      Co.      v. 

Phillips 750 

St.  Louis,  etc.,  Ry.  Co.  r.  Postal 

Tel.  Co 469 

J  St  Louis,  etc.,  Ry.  Co.   v.  T.   H, 

etc.,  Ry.  Co 141,  488 

1  St.  Mary's  Church,  Case  of 160 

St.  Paul  Co.  v.  Dayton 161 

St.  Paul,  etc.,  Ry.  Co.   i.   Black- 
mar  573 

St.  Philip's  Church  e.  Zion  Church.  160 

Salbadore  r.  Insurance  Co 23 

Salem    i-.   Anson 633 

Salesbury   r.   Shirley 299 

Salinas  r.   Stillman 43S 

Salinas    p.   Wright 52 

i  Salisbury  v.    Barton 699 

Salley  v.  Terrill 58" 

Salmon    t,\    Brown 25! 

ii.  Hopkins       Ill* 

Salmon  Falls  Mfg.  Co.  i>.  Goddard.  17« 


TABLE    OF    CASES. 


cxxv 


PAGE. 

Salsbury  v.  Ware 391 

Salt  Lake  City  v.  Hollister 130 

Salter  v.  Bradshaw 758 

Salton  v.  New  Beeston.  Cycle  Co.  106 

Saltus    v.    Belford    Co 194 

Salyers   r.   Smith 363 

Sammons   t'.   Halloway 798 

Sample  v.  Barnes 492 

t\  Cochran 386 

r.  Hale 249,  251,  254 

Sampson  r.  Camperdown  Mills .  . .  409 

i\  Mudge    577 

l\  Shaw   497,  501 

c.  Townsend  486 

Sams  v.  Stockton 79 

Samuel  r.   Cheney 718 

v.  Fairgrieve   199 

Samuels  v.  Oliver 407 

San  Antonio  v.  Lewis 161 

c  Mehaffy    137 

San  Diego  R.  Co.  v.  Pacific  Beach 

Co 389 

San  Francisco  Bridge  Co.  v.  Dum- 
barton Co 342 

San  Juan  P.  St.  Johns  Gas  Co . .  .  206 

Sanforn  v.  Fireman's  Ins.  Co....  178 

r.  Flagler    179 

v.  Little    286 

r.  Maxwell   877 

r.  Neal    120 

Sanders  v.  Clason 257 

v.  Coleman   547 

v.  Munson    573 

■  v.  Pottlitzer  Co 48 

v.  St.  Neotfs  Union 164 

Sanderson  17.   Aston 382,  385 

v.  Graves.'.  ..  789,  799,  824,  825 

i\  Morgan   104,  439 

v.  Symonds 859 

Sands    v.    Church 275 

v.  Insurance  Co 429 

Sandwick  Mfg.   Co.  v.  Krake 439 

Sanford  v.  Emory's  Adm 345 

v.  Gregg   136 

v.  Kane 299 

v.  Sornborger 729 

Sanger  v.  Dun 589 

v.  Hibbard   67 

Sanson  v.  Rumsey 847 

Santa  Clara  Co.  v.  Hayes .  . .  468,  482 

Santos  v.  Illidge..   507,  509,  510,  512 

912 

Sapp  v.  Faircloth 169 

Sargeant  v.  Solberg 56 

Sargent  v.  Baldwin 739 

v.  French    891 

v.  Southgate 295 

v.  Sturjn 716 

Sarles  v.  Sharlow 176 

Sarter  v.  Gordon 753 


PAGE. 

Sartwell  u.  Sowles 878 

Sasportas   v.    Jennings 728 

"  Satanita  "  (The)    26 

Satterfield   v.   Malone 631 

Satterthwaite   v.   Emley 794 

Sattler  v.  Halloek 573 

Saufley  v.  Jackson 744 

Saulet  v.  Trepagnier 386 

Saunders  v.   Blythe 812 

r.  Griggs's  Adm 876 

v.  Hatterman     692 

p.  McClintock 261,  272 

v.   Phelps   Co 408 

v.  Saunders    14 

v.   Stewart    631 

v.  Whitcomb 206,  311 

Savage  v.  Blanchard 836,  837 

v.   Canning   337,  346 

v.  Gregg 285 

v.  Mason   300,  301 

v.   Savage    854,  869 

-  v.  Tyers    317 

Savannah  Co.  v.  Collins   659 

Savannah    Ice    Co.    v.     American 

Refrigerator   Co 197,  332 

Savannah,  etc.,  Ry.  Co.  v.  Atkin- 
son    ' 335 

Savery  v.  King 740,  744,  769 

Saville  u.  Saville   753 

Savin  v.  Hoylake  Ry.  Co 410 

Savings  Bank  v.  Burns    403 

v.  National  Bank 488 

Savings  Soc.  v.  Davidson 630 

Sawtells  V.  Howard 879 

Sawyer,  Re 380 

Sawyer  v.  Brossart 43 

v.  Campbell 864 

v.  Hovey 572,  639 

v.  Lufkin 99 

v.  Macaulay 780 

v.  Peters 849 

P.  Prickett 292,  689,  692 

v.  Sawyer 786 

v.  Senn 384 

v.  Smith 402 

v.  Taggart 408,  409,  493 

Sax  p.  Detroit  Ry.  Co 51,     52 

Saxon  Life  Assurance  Society,  Re.  578 

Saxton  v.  Seiberling 470 

Sayers  v.  Collyer 306 

Sayles  v.  Sayles 444 

Sayre  v.  King 383 

Sayward  v.  Dexter 250 

Scales  p.  Ashbrook 577 

Scaltock  v.  Harston 299 

Scanlan  t.  Cobb 101,  102 

v  Grimmer 261,  275 

Scanlon  r.  Oliver 49 

v.  Warren 409 

Scarlett  v.  Stein 628 

Scarpellini  v.  Atcheson 774 


CIXV1 


TABLE    OF    CASES. 


PAGE. 

Scarritt,  Matter  of 461 

Sceva  v.  True 11,  12,     99 

Schaferman  v.  O'Brien 876 

Schaps  v.  Lehner 102 

Scharf  v.  Moore 820 

Schawhan  r.  Van  Nest 336 

Scheftel  v.  Hays 721,  723 

Schenectady    Stove    Co.    t\    Hol- 

brook 19,  27,     43 

Schenks  v.  Strong 84 

Seherer  v.  Scherer 415 

Schermerhorn  r.  Talman 503 

(>.  Vanderheyde 249 

Scheuer  v.  Monash 177 

Schierman  v.  Beckett 788 

Schiffer  v.  Dietz 715 

Schilling  v.  Mullen 284 

Schimmelpennich  v.  Bayard 25 

Schintz  v.  McManamy 586,  856 

Schlageck  v.  Widhalm 853 

Schlapback  v.  Long 893 

Schlee  v.  Guckenheimer 408 

Schlegel  r.  Herbein 573 

Schleicher    v.   Montgomery   Light 

Co 52 

Sehlicher  v.  Keeler 56 

Schliess  v.  Grand  Rapids.  .  . .  528,  530 

Schloss  r.  Feltus 717 

■  v.  Hewlett 439 

Schlottman  v.   HoflFman 914 

Schmaltz  v.  Avery 123 

Schmelz  v.  Rix 856 

Schmid  r.  N.  Y.,  etc.,  Railway.  .  .   258 
Schmidt  v.  Glade 256 

v.  Quinzel 852 

■ v.  Reed 628 

Schmitheimer  v.  Eiseman 82 

Schmitt  v.  Sehnell 361 

Schmucker  r.  Sibert 241,  261 

Schneider  r.  Henschenheimer 204 

r.  Turner 408 

v.  Vogler 175 

r.  White 258 

Sehnell  r.  Nell 193 

Schoen  r.  Houghton 812 

Schoenberg  v.  Adler 409 

Schofield  i:  Bank 140 

Scholefield  v.  Templer 721,  723 

Scholey    r.    Central    Ry.    Co.    of 

Venezuela      709 

r.  Mumford 731 

Scholfield     v.     Earl     of     Londes- 

borough 868 

t'.  Eichelberger 427 

Seholtz  v.  Northwestern  Ins.  Co.  .     49 

Schommer  v.  Farwell 730 

Schomp   v.   Schenck 452 

School  Directors  v.  Boomhour.  .  .  .   678 
School  District  i'.  Hayne 342 

r.  Howard 552 

r.  Livers 273 


PAGE. 

School  District  No.  1  v.  Dauchy.  .   528 

536 

Schoolfield  v.  Hirsh 285 

Schoonover  v.  Dougherty. .  .  .  539,  643 

v.  Osborne 595 

v.  Voochow 789 

Schotsmans     v.     Lancashire     and 

Yorkshire  Ry.  Co 570 

Schott,  In  the  Goods  of 914 

Schreyer  v.  Turner  Mills  Co 226 

Schroeder  r.  Fink 215 

v.  Kinney 264 

Schryver  v.  Hawkes 864 

Schuchart  v.   Schuchart 158 

Schuff  v.  Ransom 101 

Schuler   v.   Israel 876 

Schuler  v.  Myton 210 

Schulte  v.  Hennessy 549 

Schultz  v.  Catlin 729 

v.  Culbertson 729 

v.  Insurance  Co 39 

v.  Johnson's  Adm 543,  595 

Schuster  v.   Kas.   City.,   etc.,   Ry. 

Co 257 

Schutt  r.  Missionary  Soc 467 

Schuyler   v.  Hoyle 89 

Schuylkill  County  v.  Copley 584 

Schwalm  v.  Holmes 469 

v.  Mclntyre 852 

Schwartz  v.  McCloskey 716 

r.  Saunders 537 

v.  Wilmer..  .  .  860,  861,  866,  867 

Schwarz  v.  Oppold 872 

Schwarzenbaeh  v.  Odorless   Exca- 
vating Co 579 

Schwass  v.  Hershey 633,  63" 

Schweizer  r.  Tracy 716 

Schwenk  v.  Naylor 696 

Scofield  r.  Ford 865 

v.  Tomkins 633 

Scofield,  etc.,  Co.  v.  State 701 

Scolfield  v.  Penna.  Co 53 

Scollans  v.  Flynn 409 

Scotland  Bank  v.  O'Connel.  .  .  867,  868 

Scotson   p.  Pegg 207 

Scott  v.  Armstrong 286 

v.  Avery 448 

v.  Barnes 879 

v.  Bibo^ 856 

r.  Buchanan 63 

v.  Corp.  of  Liverpool 448 

•  v.  Deweese 675 

v,  Duffy 511 

v.  Duncan 642 

v.  Ebury  (Lord) 121 

v.  Fields 628 

v.  Freeland 387 

v.  Gillmore 807 

p.  Kittanning  Coal  Cp 332 

v.  Lane 795 

v.  Lewis 790 


TABLE    OF    CASES. 


CXXV11 


PAGE. 
Scott  v.  Littledale 601 

v.  Pilkington 24 

v.  Sanders'  Heirs   876 

o.  Sebright 677,  727 

r.  Tyler 466 

Scott's  Adm.  v.  Gill 261 

Scott's  Heirs  v.  Scott 335 

Scotten  v.  State 503 

Scottish    Am.    Mortgage    Co.    v. 

Davis 41 

Scottish  Ins.  Co.  v.  Clancy 448 

Scottish  Petroleum  Co.,  Re.. .  676,  711 

920 
Scovill  r.  Barney 750 

v.  McMahon 524,  526 

v.  Thayer 710 

Scribner  v.  Collar 388 

».  Flagg  Mfg.  Co 177 

Scully  v.  Kirkpatrick 557 

Sea  Ins.  Co.  !7.  Johnston 39 

Seager,  Re 84 

v.  Aston 775 

Seaman  v.  Hasbrouck 258,  274 

Searing  v.  Benton 261,  271 

v.  Searing 89 

Sears  v.  Grand  Lodge.  .  .  215,  578,  615 

v.  Leland 613 

v.  Railroad  Co 10 

v.  Shafer 745,  70S 

Seaton  v.  Grant 897 

v.  Heath 656,  660,  662 

!7.  Henson 846 

r.  Seaton 81 

v.  Tohill 66 

Seattle  Board  17.  Hayden 893 

Seaver  v.  Phelps 101,  102 

Seavey  v.  Potter 708 

Sebastian  Mav  Co.  v.  Codd 654 

Secor  v.  Lord 258 

Security  Trust  Co.  v.  Dodd 508 

Seddon  v.  Rosenbaum 176 

Sedgwick  v.  Stanton 450 

Seear  v.  Lawson 453,  456 

Seeberger  v.  McCormick 119 

Seegar  v.  Edwards 392 

Seehorn  v.  Hale 3*91 

Seeley  r.  Welles 51 

Seemuller  v.  Fuchs 109 

Segars  v.  Segars 787 

Seibel  v.  Vaughan 865 

Seiber  V.  Price 730 

Seiffert  Lumber  Co.  v.  Hartwell . .   274 

Seig  v.  Acord's  Ex 776 

Seisman  r.  Hoffaeker.  .  .  257,  259,  276 
Seiler  v.  Economic  Life  Assoc. .  . .   376 

Seipel  v.  Insurance  Co 548,  550 

Selby  v.  Case 217 

Selden  v.  Myers 584 

Self  v.  Cordell 177 

Seligman  v.  Le  Boutillier 446 

Sellers  r.  Stevenson '. . .   652 


PAGE. 

Selma  t;.  Mullen 161 

Selsey  (Lord)   v.  Rhoades 746 

Semmes  f.  Insurance  Co 525 

v.  Worthington 791 

Sennott  v.  Mallin 537 

Serapis,  The 119 

Service  v.  Heermance 725 

Serviss  v.  McDonnell 258,  266 

Sessons  v.  Sessons 623 

Seton  v.  Slade 628 

Setter  v.  Alvey 488 

Seward  v.  Rochester 448 

Sewell  v.  Burdick 303 

v.  Richmond 402 

v.    Royal    Exchange   Assur- 
ance Co 494 

Sewers  (Commis.  of)  Q.  Reg 536 

Sext  v.  Geise 170 

Sevbolt  v.  New  York,  etc.,  R.  R. 

Co 210 

Seymour  v.  Armstrong 19,  43 

r.  Bailey 430 

v.  Bridge 499 

v.  Butler 815 

v.  Cushway 174,  179 

— — ■  y.  Delancy 753 

i'.  Detroit,  etc.,  Mills 377 

v.  Mackay 630 

■  v.  Mickey ■ 854 

v.  Mintum  818,  821 

Shaber  v.  St.  Paul  Water  Co 299 

300 

Shackamaxom  Bank  v.  Yard 383 

Shackleford  v.  Hamilton 547 

Shadburne  v.  Daly 213 

Shaddle  17.  Disbrough 753 

Shade  v.   Creviston 691 

Shadwell  v.  Shadwell 207 

Shaeffer  v.   Sleade 715 

Shafer  v.  Insurance  Co 10S 

Shaffer  v.  McKee 292 

Shaffner  v.   Killian 341 

Shafher  v.  State 64 

Shahan  v.  Swan 177,  790 

Shaklett  v.  Polk 427 

Shamp  v.  Meyer 257,  267 

Shand  v.  Du  Buisson 894 

Shank  v.  Mingle 411 

Shannon  p.  Bruner 439 

v.  Marmaduke 387 

Shapley  v.  Abbott 779 

Shardlow  v.  Cotterell 179 

Share  v.  Anderson 875 

Sharington  v.  Strotton 191 

Sharkey  v.  McDermott 790 

Sharman  v.  Brandt 123,  388 

Sharon  v.  Gager 747 

v.  Sharon 158 

Sharp  v.  Blankenship 175 

v.  Leach 745 

v.  Ropes 301 


CXXV111 


TABLE    OF    CASES. 


PAGE. 

Sharp  v.    Stalker 492 

v.  Taylor 433,  494,  500 

v.  Teese 380 

Sharpe  v.  Bellis 87 1 

v.  Foy 79.3 

v.  Orme 845 

Sharpies  v.  Adams 284 

Sharpless  v.  Gummey 699,  703 

Sharpley  v.  South  and  East  Coast 

Rv.  Co 709 

Shattock  i\  Shattock 888,  894 

Shattuck  v.  Gay 639 

v.  Insurance  Co 886 

Shaub  v.  Lancaster 24 

Shaw  v.  Carpenter 484 

v.  Coffin 84 

v.  Foster 231 

v.  Gilbert 692,  697 

v.  Jeffery 381 

v.  Lady  Ensley,  etc.,  Coal  Co.  570 

v.  Pratt 820 

v.  Railroad  Co 302 

v.  Reed 440 

v.  Republic  L.  I.  Co 361 

v.  Silloway 774 

V.  Spooner 440 

u.  State 879 

v.  Thompson 99 

V.  Walbridge 630 

v.  Woodcock 731,  7S6 

Shaw's  Claim 410 

Shawmut  Bank   r.  Boston 532 

Sheahan  v.  Barry 361,  365,  677 

Shealy  v.  Toole 199 

Shear  v.  Wright 559 

Shears  v.  Westover 643 

Shedeinsky  v.  Budweiser  Brewing 

Co 375 

Sheehan  r.  Allen 101 

v.  Davis 160 

v.  Sullivan 735 

Sheeny  v.  Adarene 177,  789 

V.  Shinn 408 

Sheer  v.  Austin 812 

Sheeran  v.  Moses 324 

Sheers  v.  Stein 463 

Sheets  r,  Selden 112,  533 

Sheffield  v.  Ladue 119 

Sheffield     (Earl    of)     v.    London 

Joint  Stock  Bank 294 

Sheffield  Nickel  Co.  v.  Unwin 715 

Shelby  v.  Guy 781 

Sheldon  v.  Butler 171 

v.  Capron 599 

v .  Davidson 689 

v.  Fairfax 161 

v.  Haxtun 809 

Shell  v,  Stephens 109 

Shelly  v.  Mikkelson 324 

Shelton  r.  Deering 850 

v.  Ellis 606 


PAGE. 

Shelton  v.   Healy 692 

r.  Jackson 211 

n.  Johnson 801 

Shepard  v.  Carpenter 49 

v.  Mills 337 

v.  Rhodes 193,  199 

•  v.  Rinks 174 

v.  Whetstone     .' .  858 

Shepard,  etc.,  Co.  f.  Burroughs..  717 

Shepardson  r.  Stevens 335 

Shephard  v.  Newhall 570 

Shepherd  p.  Bevin 753 

v.  Lewis 832 

v.  May 264 

v.  Thompson 206,  777 

Sheppard  v.  Oxenford 500 

Shepperd    !'.    Sawyer 406 

Sherburne  v.  Shaw 179 

Sheridan  v.   Carpenter 860 

Sherfy  r.  Argenbright 431 

Sherley  r.  Peehl 28,  30 

v.  Riggs 461 

Sherman  v.  American  Stove  Co.  675 

v.  Sherman   v.  Kitzmiller,.  .  49 

v.  Sherman 844 

Sherman  County  v.  Howard 525 

v.  Simons 137 

Sherraden  r.  Parker 386 

Sherry  v.  Picken 173 

Sherwin  v.  Brigham 210 

r.  Fletcher     186 

r.  Nat.  Cash  Register  Co...  .  31 

v.  Rutland,  etc.,  JR.   Co ... .  827 

■  v.  Sanders 200 

Sherwood  v.  Merritt 854 

— —  v.  Salmon 691 

v.  Sherwood 914 

v.  Walker 606,  612 

Shethar  v.  Gregory 414 

Shewalter  v.  Pirner 141 

Shewen  v.  Vanderhorst 786 

Shields  v.  Titus 302 

Shillito  v.  Hobson 218 

Shillito  Co.  v.  Richardson 780 

Shingleur  v.  Western  Union  Tel. 

Co 604 

Ship's  Case   602 

Shipley  v.  Bunn   67 

r.  Carrol 587 

■ ■  v.  Patton 17S 

Shipman  v  Bank 292 

• v.  Furniss 735,  737 

v.  Horton 67 

v.  Seymour 679 

Shipp  v.  MeKee 69 

v.  Suggett 862,  863 

Shirk  v.  Schultz 63 

Shirley  v.  Harris     216 

f.  Swafford 854 


TABLE    OF    CASES. 


CXX1X 


PAGE. 

Shirts  v.  Over  John 585 

Shisler  v.  Vandike 443 

Shively  v.  Semi-Tropic,  etc.,  Co . .  324 

354 

Shively  v.  Welch 640 

Shivers   i\   Simmons 88 

Shober,  etc.,  Lithographing  Co.  v. 

Kerting 256 

Shoecraft  v.  Beard 775 

Shook  v.  People 557 

Shoolbred  v.  Roberts 501 

Short  v.  Price 217 

v.  Stone 358,  359,  365 

v.  Stotts 172 

Shorter  v.  Cobb 420 

Shortle  v.  Terre  Haute,  etc.,  R.  R. 

Co 210 

Shotwell  v.  Hamblin 495 

Shoulters  v  Allen 102 

Shreve  r.   Brereton 633 

Shreves  e.  Allen 291 

Shrewsbury   (Earl  of)   v.  N.  Staf- 
fordshire Ry.  Co 437 

Shropshire  v.  Burns 66 

Shuey  v.  United  States 23,  25 

Shufeldt  v.  Pease 717 

Shulter's  Case    583 

Shupe  v.  Galbraith 213 

Shurtleff  v.  Millard 67 

v.  Dorr 176,  177 

v.  Heath     468 

v.  Hennessy  .  .  .  ,. 332 

Shuttler  v.  Brandfass   689 

Sibley  v.  Alba   452 

Sibley  v.  Felton 46,  47 

Sidall  v.  Clark   484 

Sidenham  v.  Worlington 200 

Siebert  v.  Leonard 836 

Siebold  v.  Davis 39 

Siegel  v.  Eaton  &  Prince  Co 538 

Siegert  v.  Abbott 419 

Sieveking  v.  Litzler 691 

Sigourney   v.   Sibley 813 

Silber  Light  Co.  v.  Silber 897 

Silberman   v.   Munroe 699 

Siler   v.   Gray 543 

Sill  v.  Reese   854 

Sillem  v.  Thornton 659 

Silliman  v.  Gillespie 664 

v.  Railroad  Co 136 

v.  United  States   728 

Silsbee  v.  Webber 747 

Silsby  Mfg.  Co.  v.  Chico 51 

Silverthom  v.  Wiley 200 

Simar  v.  Canaday 692 

Simonds,  Ex  parte 580 

Simmons  v    Atkinson 867,  868 

v.  Clark 834 

v.  Headlee 790 

ix 


v. 

V. 


PAGE. 

Simmons  v.  More   1 19 

v .  Simmons 677 

Simmons  Creek  Co.  v.  Doran ....   639 

640 
Simmons   Medicine   Co.   v.   Mans- 
field Drug  Co 419 

Simms  v.  Hervey 855 

v.  McClure 102 

Simon  v.  Goodyear  Co 708,  709 

Simonds  v.  Heard 108 

Simons  v.  G.  W.  Ry.  Co 587 

v.  Patchett 119 

Simons  v.  Vulc.  Oil  Co 389,  676 

Simpkins  v.  Windsor 873 

Simpson  v.  Crippin 328,  329 

v.  Denison 896 

v,  Eggington  .  •. 593,  841 

v.  Evans 206 

-  -  v.  Garland 119 

Hall 295,  786 

Lamb 453,  455 

V.  Lord  Howden 412,  437 

v.  Nance 171 

i?.  Prudential  Ins.  Co. .  .  .  67,  68 

v.  Roberts 443 

v.  Sheley 870 

v.  Simpson 415 

v.  United  States 528 

Simrell  v.  Miller 779 

Sims  v.  Alabama  Brewing  Co.  .  .  .  482 

v.  Bond 114 

v.  Everhardt 69,  82 

v.  Perrill 689 

v.  Hutchins 78-6 

v.  Landray 182 

v.  Sims 98 

Simson  v.  Brown 256 

Sinard  v.  Patterson 827 

Sinclair  v.  Bradley 169 

v.  Healey 716 

v.  Richardson 170 

Singer  v.  Schilling 708 

Singer  Mfg.  Co.  v.  Draper .  .   402,  496 

v.  Rawson 747 

v.  Sammons 716 

Singerly  v.  Thayer 51 

Singleton  v.  Bank  of  Monticello.  .  408 

486 

v.  Bremar 411 

v.  McQuerry 862,  863,  871 

Singleton's  Adm.   v.  Kennedy.  ...   681 
Sinsheimer  v.  Garment  Workers .  .   490 

Sioux  City  Co.  v.  Trust  Co 142 

Sioux    City    Stock    Yards    Co.    v. 

Sioux  City  Packing  Co 835 

Sirrine  v.  Briggs 873 

Simsey  v.  Eley 412 

Sissung  v.  Sissung 685 

Skaaraas  v.  Finnegan 120 


txxx 


TABLE    OF    CASES. 


PAGE,  j 

Skeate  v.  Beale 728 

Skeet  v.  Lindsay 777  ! 

Skidmore  v.  Bradford 917  l 

v.  Jett 889 

Skiff  v.    Johnson 486 

v.  Stoddard         389,  408 

Skilbeck  v.  Hilton 626,  715 

Skillen  v.  Water  Works  Co.  .  531,  533 

Skillett  v.  Fletcher 383 

Skilling  v.  Bollmau 302,  717 

Skillings  v.  Coolidge 879 

Skillman  Hardware  Co.  v.  Davis..  341 

Skinn  v.  Reutter 298 

r.  Gold  Mine  Co 201 

v.  Harker     261 

r.  Henderson 502 

t.  Maxwell 66 

v.  Tirrell 12 

v.  Wood  Co 194 

Skobis  v.  Ferge 280,  282 

Skottowe  v.  Williams 723 

Skrainka  v.  Allen 719 

Skyring  v.  Greenwood 579 

Slade  v.  Mutrie 844 

Slade's  Case    156 

Slagle  v.  Goodnow 679 

Slater  v.  Jones 814,  833 

v.  Smith     180 

Slator  v.  Brady 62,  87 

v.  Trimble 67 

Slattery  v.   Schwannecke 108 

r.  Slattery      845 

Slaughter  v.  Bernards 850 

Slaughter's  Adm.  v.  Gerson 693 

Slayton  v.  Barry 82 

■  r.  McDonald 346  j 

Sleeper  v.  Davis 708,  717  j 

Slingerland  v.  Slingerland 791 

Sloan  v.  Becker 631  i 

v.  Sommers 282 

v.  Williams 595 

v.  Wolf    Co 608  i 

Sloeum  v.  Woolev 436 

Slocumb  v.   Small 798 

Sloman  v.   Cox 869 

v.  Walter 632 

Slutz  v.  Desenberg 631 

Small  v.  Boudinot 725 

v.  Railroad  Co 452 

Small  v.  Schaefer 257,  259 

v.  Small •.  395 

Smalley  v.  Greene 177,  595,  789 

Smart  r.  Smart 170,  462 

v.  Tetherly 240 

r.  West  Ham  Union 165 

v.  White 503 

Smethurst   r.   Mitchell 116 

Smiley  v.  Barker 824,  825 

v.  Bell 279 


PAOE. 

Smith,  Matter  of  Will  of 734,  736 

Smith  v.  Adms.  of  Smith 787 

Smith  v.  Allen 640 

v.  Anderson         910 

v.  Applegate 437 

v.  Arnold 402 

•  v.  Atwood 729 

v.  Bank 679 

v.  Bartholomew 204,  821 

r.  Bateman 28 

v.  Beatty 683 

v.  Becker 91 

v.  Blackley 501,  503 

v.  Bond 892 

v.  Bromley 504 

p.  Brown 691,  836 

v.  Bryan 173 

v.  Burnham 174 

v.  Cartwright 165 

v.    Chadwick     692,  697 

v.   Clarke    684 

v.  Collins   387 

v.  Countryman    683 

■  v.   Crooker    864 

v.  Crosby    631 

v.    Cross    265,  266 

v.   Cuff    504 

v.  Delaney   171 

v.  Doak  662 

v.    Eggington     298 

v.    Elrod    834 

v.    Evans    68 

v.     Farmers'     Mutual     Ins. 

Assoc 855 

v.  Felter    108,  112 

v.    Flack    274 

v.  Georgia  Loan  Co 350 

v.  Godfrey   508 

v.  Gowdy    19 

v.   Greely    634 

v.    Green     794 

v.   Greenlee    470 

v.  Hale   608 

v.  Harrison   299 

v.  Hartford  Water  Works..    121 

v.   Holcomb    880 

v.    Holzhauer     868 

v.  Hughes..  .  .   309,  582,  618,  650 

696 

v.  Iliffe  643 

v.    Jewett     253 

v.  Jones    180 

v.   Jordan    636,  639 

v.    Josselyn    661 

v.    Kay     ....693,  697,  733,  734, 

745,  748 

v.  Keating   239 

v.  Keith  Coal  Co 331 

v.   Kelly    810 

v.  Kerr   827 


TABLE    OF    CASES. 


CXXX1 


PAGE. 

Smith  v.  King 71 

('.  Kitchens 558 

v.  Land  and  House  Property 

Corporation    669 

r.  Ledyard   25 

v.    Lewis     827 

r.    Lindo    404,  909 

v.    Livingston    291 

v.  Loomis   824 

v.  Los  Angeles,  etc.,  Ry.  Co.   256 

v .  Lucas 65,  317 

v.  McLean    531 

v,  MeLeod    386 

v.  McNair 654 

i\  Mace 870 

v.  Mapleback    813,  836 

v.  Marrable   673 

v.  Mawhood    402,  403 

v.  Mechanics'  Bank   292 

r.  Moore 23 

v.  Morse 197 

v.  Neale 176,  181 

v.  Nicolls   877 

v.  Ostermeyer    261 

v.  Owens 378 

v.  Penn 578 

v.  Peoria  Co 383 

v.  Phillips 204 

v.  Pierce 467 

v.  Pleasant     Plains     School 

District 552 

r.  Putnam    174 

v.  Railroad  Co 446,  550 

v.  Robson  52 

v.  Sayward 171 

v.   Sheeley    141 

v.  Sherman    547 

v.  Silence   91 

v.  Smith 247,  249,  269,  395 

406,  584,  679,  685,  864,  870 

u.  Sorby   392 

v.  Steele 384 

v.  Steely 440 

v.  Sterritt    285 

v.  Sweeney 743 

v.  Thompson    456 

v.  Tramel   443 

v.  Tyler 204 

v.  Ullman 470 

v.  United  States 860 

v.   Walton    913 

v.  Webster   44 

v.  Wetmore    362. 

v.  Wheatcroft 591 

v.  Whildin   205 

v.  White  487 

v.  Williams   298 

v.  Wilson   313 

v.  Wyatt 211 

Smith's  Appeal   483 


PAGE. 

Smith's  Case.  .  675,  683,  698,  703,  796 

Smith's  Ex.  v.  Railroad  Co 775 

Smith,    Kline    &    French    Co.    v. 

Smith    690 

Smith  Typewriter  Co.  v.  Stidger .  .   592 

Smithers  v.  Junker 49,  50,     52 

Smock  v.  Smock 173 

v.  Tandy 175 

Smoot's  Case 354 

Smout  v.  Ilbery   106 

Smull  v.  Jones 470 

Smurthwaite   v.    Wilkins 303 

Smutzer  v.  Stimson 444 

Smyth  ('.  Ames 125 

v.    Field    40S 

v.  Griffin 412 

v.  Munroe 88 

Snavely  v.  Pickle 631 

Snead  v.  Deal   390 

Sneed  v.  Sabinal  Co 859 

Snell  v.  Dwight 500 

v.   Insurance  Co 576 

v.  Ives  256 

Snelling's  Will,  Re, 736 

Snevily  x.  Read    199 

Snider  v.  Adams  Express  Co.. 265,  269 

v.  Willey 440,  483 

Snook  v.  Georgia  Imp.  Co 135 

Snow  v.  Alley 343,  713 

v.  Church 377 

v.  Hix 120 

v.  Hutchins 88 

v.    Insurance    Co 657 

Snowhill  v.  Snowhill 89 

Snowman  v.  Harford 627 

Snyder  v.  Laubach 102 

v.  Pharo 842 

v.  Reno 654 

v.  Summers 269 

v.  Wolfred   174 

Snyder's  Adm.  v.  McComb's  Ex..  .   877 

Soaps    v.    Eichberg 854,863 

Society  v.  Brumfield 34 

Society  of  Friends  v.  Haines.  .  .  .   262 
Society  of  Practical  Knokledge  v. 

Abbott    125,  132 

Sohier    v.    Loring 383,  385 

Solary  v.  Stultz 204 

Sole   v.    Hines 346 

Solinger  v.   Earle 380,  504 

v.  Jewett   610 

Solomon  'v.   Dreschler 402 

Solomon's  Lodge  v.  Montmollin.  .  .  160 

Solon  v.  Williamsburgh  Bank.867,  868 

Soltau  v.  Gerdau    719 

Soltykoff,  Re,  Ex  parte  Margrett.  80 

Sommersett's  Case 481,  510 

Sondheimu.  Gilbert. 408,  409,  486,  511 

Sonstiby  v.  Keeley 257 

Sooltan  Chund  v.  Schiller 347 


CXXX11 


TABLE    OF    CASES. 


PAGE. 

Sooy  ads.  State 660,  661 

Soper  v.  Arnold 672 

• •  v.  Baum 777 

r.  Gabe   324 

v.  Peck   585 

Soper  Lumber  Co.  v.  Halsted  Co.  .   713 

Sornberger  v.   Lee 778 

Sortwell  v.  Hughes 486 

Sottomayor  o.  De  Barros 396,  397 

South  African  Trust  Co.,  Re 350 

360,  369 
South  Baltimore  Co.  v.  Mullbach.174 
South  Bapt.  Society  v.  Clapp.  .  .  .  160 
South     Gardner     Lumber    Co.    v. 

Bradstreet    361 

South  Hetton  Coal  Co.  v.  Haswell 

Coal    Co 45 

South   Hetton   Coal   Co.  v.  N.  E. 

News    Association 130 

South   of  Ireland  Colliery  Co.  v. 

Waddle    162 

South  Side  Planing  Mill  Assoc,  v. 

Cutter,   etc.,    Co 257,  271,  277 

South  Yorkshire,  etc.,  Co.  v.  G.  N. 

Ry.    Co 896 

Southall  v.  Eigg 580,  759 

Southampton    (Lord)    v.  Brown.  .    109 

232 

Southard  v.  Boyd 436 

•  v.    Curley 640 

Southern  Bldg.  Assoc,  v.  Price .  .  .  337 
Southern  B.  &  L.  Assoc,   v.  Casa 

Granda  Co 142 

Southern  Cotton  Oil  Co.  v.  Heflin.  349 
Southern     Development     Co.     v. 

Silva 687,  691 

Southern  Ex.  Co.  v.  Platten 130 

Southern  Ins.  Co.  v.  Turnley 448 

Southern  Pac.  Co.  v.  Denton 440 

v.  Prosser 778 

Southern  Ry.  Co.  v.  Harrison ....   495 

Southey   r.    Sherwood 419 

Southwell   v.   Bowditch Ill 

Southwell  v.  Breezley 605 

Southworth   i>.   Flanders 120 

Sovereign  v.  Ortman 787 

Sowards   v.   Moss 180 

Sowers  v.  Parker      690 

Spackman  v.  Evans 901 

Spader  v.  Mural  Decoration  Co. .  .   548 

Spafford  r.  Warren 88 

Spaids  v.  Barrett ' 728 

Spalding  r.  Archibald 784 

v.  Ewing       434,  436 

r.  Irish 880 

— —  v.  Rosa 543,  545 

Spangler   r.  Danforth 180 

v.  Dukes 850 

Spann    v.    Cocltran    258,  267 

Sparenburgh  v.  Bannatyne 430 

Sparks  v.  Despatch  Transfer  Co.  .    110 


PAGE. 

Sparks's  Will,  Be,   736 

Sparling  v.  Brereton 800 

r.  Marks 607,  608 

Sparman   v.   Keim 63 

Spaulding  v.  Crawford 729 

r.  Davis        275 

Speake  v.  United  States 856 

Spear  r.  Bank 171 

v.  Griffith 199 

Spear   i .   Orendorf 790 

Spears  r.  Hartly 775 

Specialty  Glass  Co.  v.  Daley 211 

Speck  r.  Dausman 444 

Spedding   r.   Nevell 119 

Speed  r.   Hollingworth 695 

('.  May 285 

Spiers  r.  Union  Forge  Co.  .  .   350,  363 

Spelts  v.  Ward 584 

Spenee  r.  Chodwick 530 

r.  Healey 836 

i .  Steadman 631 

i'.  Wilmington  Cotton  Mills.  103 

Spencer    v.   Harding 13,     18 

r.  Morris 440 

r.  St.  Clair 343 

r.  Sandusky 663 

■  v.  Spencer 11,  393 

Spencer's  Appeal 387 

Spencer's    Case 298 

Spieer  r.  Earl 68 

v.  Martin 301,  305 

Spier   v.   Hyde 815,  834 

Spiller  v.  Paris  Skating  Rink  Co.  121 
Spink  i".  Co-operative  Ins.  Co ...  .   448 

Spinks   f.   Davis 377 

Spinney   v.   Downey 4'6 

r.  Hill 789 

v.  Miller 275 

Spitler  (..  James 867 

Splidt  r.  Bowles 298 

Spofford   r.   Spofford 880 

Sporrer  v.  Eifler 798 

Sprague   r.  Edwards 622 

i'.  Foster 173 

('.  Rooney   486 

r.  Tyson   891 

Sprankle   v.    Truelove 595 

Spring  Co.  i\  Knowlton 502 

Springer   v.  Kleinsorge 684 

■  r.  Toothaker 380 

Sprott  r.  United  States 431,  489 

Sprye  r.  Porter 450,  453,  454,  455 

Spurgeon  v.  McElwain 486 

Spurr  .f.  Benedict 663,  672 

-  i>.  Cass 124,  235 

Spurrier   v.   La   Cloche 448 

Squire   v.   Tod 334 

v.  Whitton 224,  661 

Squires   r.  Hydliff 68 

■  v.  Squires   415 

Staats  v.  Bergen 387 


TABLE    OF    CASES. 


CXXX111 


PAGE. 

Stacey  r.  Foss 501 

Stacy  v.  State  Bank 205 

Stafford  v.  Bacon 199 

■  i\  Staunton   577 

Stafford  (Mayor  of)  v.  Till 166 

Stahelin  v.  Sowle 342 

Stahl  v.  Berger 867 

v.  Van  Vleck 35 

Stahlschmidt  v.  Lett 776 

Staines  v.  Shore 684 

Stainton  v.  Brown 52 

Stakes  v.   Baars 332 

Stamey  r.  Western  Union  Tel.  Co.     54 
Stamper   r.   Hayes 813 

v.  Temple 3,  205 

Standard  Cable  Co.  v.  Stone .  862,  872 

Standard  Co.  v.  St.  Louis  Co 469 

Standard    Furniture    Co.    v.    Van 

Alstine 486 

Standifer  v.   Bush 876 

Stanford  v.  MeGill 361,  365,  367 

v.  .Treadwell 880 

Stangler  v.   Temple 14 

Stanley  v.  Dowdeswell 44 

c.  Epperson 845 

•  i\  Jones   453 

v.  Southwood 880 

Stanley  Co.   v.  Bailey 194 

Stans   v.   Bartley 158 

Stanton  v.  Eager   571 

v.  Haskin   451 

1  v.  Kenrick 261,  271 

■  v.  Tattersall 611,  669 

Staples  v.   Gould 408 

v.    Sehmid 565 

Star  Fire  Insurance  Co.  v.  Bank.  292 

Star  Glass  Co.  v.  Langley 605 

Star  Publishing  Co.  v.  Associated 

Press 469 

Starbird    r.    Cranston 256,261 

273,  276 

Starin  v.  Kraft   827,  836 

Stark  v.   Duvall 361 

-  v.  Raney 495 

Stark's  Adm.  v.  Thompson's  Exs.   842 

Starr  v.  Bennett 688 

■  v.  Blatner    863 

'  v.  Lashmutt 737 

State  v.  Adams 558 

v.  Allen 558 

v.  Berg 853 

v.  Bittick 158 

■  v.  Brown 509 

v.  Butler 199 

v.  Carver 442 

v.  Chitty 461 

v.  Churchill  .  856,  857,  871,  872 

v.  Cincinnati  Fertilizer  Co.   129 

131 

v.  Cobb 866 

v.  Collier   438 


State  v.  Craig 858,  860,  871,  872 

■  v.  Davenport 204 

■  v.  Dean 863,  867 

v.  Ducker   590 

v.  Elting 438 

c.  Findley 8o7,  860 

— —  r.  Frank   640 

>  v.  Gherkin 866 

r.  Griswold 860,  872 

r.  Groves 886 

r.  Hastings 294,  440 

v.  Hearn 285 

v.  Horn 557 

r.  Hughes 886 

— — ■  v.  Jefferson  Tump.  Co 675 

— —  v.  Jenning    284 

r.  Johnson    434 

r.  Kennedy       397 

v.  Loomis 2*9,  253 

v.  Lowell 64 

r.  McGonigle   858 

r.  Matthews    586 

- — ■  f.  Miller   864 

v.  Murfreesboro 131 

v.  Nebraska  Distilling  Co .  .   468 

— — -  c.  Nelson    728 

c.  Passaic  Soc 131 

v.  Portland 130 

r.  Purdy 438 

v.  Railroad  Co.  .  .   129,  130.  131 

v.  Richmond 61 

v.  Robinson    590 

v.  Ross    509 

i\  Rousseau 69 

v.  St.    Louis    &    S.    F.    Ry. 

Co 256,  257,  267 

v.  Shattuck   397 

v.  Shinn    172 

v.  Smith 857,  861 

v.  Swinney 383 

-  v.  Towle 464,  465 

v.  Tripp 855,  856 

v.  Tutty 397 

v.  Van  Pelt 857 

v.  Welbes 662 

!'.  Williamson   431) 

v.  Wilson 153 

v.  Worthingham 158 

v.  Worthington 552,  553 

v.  Young 856 

State  Bank  v.  Buhl 575 

v.  Hutchinson 729 

v.  Shaffer    869 

State  Board  v.  Railroad  Co 142 

State  Trust  Co.  v.  Turner 720 

Statham  v.  Ferguson 743 

v.  Insurance  Co 428,  429 

Stayner  v.  Joyoe 874 

Steaey  v.  Railroad  Co 720 

Stead  'V.  Dawber 823 

Steam  Nav.  Co.  r.  Weed 142 


cxxxiv 


TABLE    OF    CASES. 


PAGE. 

Steamship  Co.  v.  Burckhardt . .  .  .  716 

Stearns   v.   Cope 879 

b.  Felker 451,  452 

r.  Reidy 452 

v.  Wiborg 877 

Stebbins  v.  Bruce 284 

v.  Crawford 191) 

v.  Morris 92,  415 

v.  Niles 813 

v.  Palmer   547 

v.  Union  Pac.  R.  R.  Co.   ...  284 

Stedman  r.   Hart 99 

Stedwell  v.  Anderson 577 

Steed  r.  Calley 745 

r.  Steeds 827,  836 

Steele  v.  Biggs 628 

r.  Branch   627 

i\  Clark 256 

v.  Curie 48(5 

v.  Frierson    459 

v.  Harmer    145 

v.  McElroy 110 

v.  Spencer    866 

v.  Steele 196,  216 

v.  Williams        731 

r.  Worthington 749 

Steele-Smith  Co.    v.  Potthast 116 

Steeley's  Creditors  v.  Steeley....  798 

849,  864 

Steene  v.  Aylesworth 259,  269 

Steere  v.  Brownell 879 

Steers  D.  Steamship  Co 53 

Stees  v.  Leonard 528,  827 

Steffiam  v.  Milmo  Bank 586 

Steman  v.  Harrison 25 

Stensgaard  !'.   Smith '35 

Stenton  v.  Jerome 408 

Stephen    r.    Beall 891 

■  v.  Alabama  Co 691 

• •  17.  Davis 865 

v.  Follett   598 

r.  Graham   866 

v.  Muir   275 

v.  Ozbourne   749 

r.  Southern  Pac.  Ry.  Co.   .  .  514 

v.  Venables 286 

Stephenson  r.  Arnold 789 

•  v.  Ewing       402 

v.  Piscataqua  Ins.  Co 449 

Sterling  r.  Baldwin 174 

r.  Sinnickson 465 

Sterling  Remedy  Co.  v.  Wyckoff.  .  421 

Stern  v.  La  Compagnie  Generale.  780 

Sternberg  v.  Bowman 378 

Sternberger  v.  McGovern 666 

Sterne  r.  Bank 9 

-  v.  McKinney 386 

Sterry  r,  Clifton 438 

Stetson  r.  Insurance  Co 659 

Steuben  Co.  Bank  v.  Mathewson.  .  441 

Stevens  v.  Benning 223,  596 


PAGE. 

Stevens  v.  Biller  114 

v.  Brennan 717 

— — ■  v.  Coon   524 

• ■  v.  Cushing 341 

v.  Flannagan 249,  252 

v.  Gidding 663 

13.  Gourley 403 

v.  Hewitt 777 

r.  Holman 634 

1  p.  Moore   725 

— —  v.  Philadelphia  Ball  Club..    145 
— —  t>.  Railroad  Co 135 

f.  Stevens 285 

Stevens'  Est.,  Re 589 

Stevens  Inst.  v.  Sheridan 272 

Stevenson   v.   Gray    397,  509 

v.  MacLean  ....  27,  31,  34,     35 

c.  Newnham 716,  717 

.  r.  Pettis 120,  495 

v.  Polk   343 

Stewart,  Re 99 

Stewart  v.  Alliston   601 

■  r.  Bradford 215 

v.  Casey 200 

■  !'.   Conrad's   Adm 91 

.  v.  Eddowes 181,  621 

v.  Emerson 679 

— —  v.  Erie,  etc.,  Transportation 

Co 135 

v.  First  Nat.  Bank   856 

v.  Gordon 639,  640,  641 

1?.  H.  &  T.  C.  Ry.  Co 452 

v.  Hidden 844 

■  r.  Hopkins   798 

v.  James  River  &  Kanawha 

Co 258 

v.  Kennedv     573 

-  t>.  Keteicas 204,  549 

r.  Loring 552 

17.  McFarland    778 

v.  Marvel   50 

v.  Mather 388 

r.  Parker   383 

17.  Schall   407 

v.  Stewart 395,  578,  615 

■  r.  Stone 536,  539 

17.  Thayer   483 

v.  Waterloo  Turn  Verein...   131 

-  v.  Welch 452 

•  17.  Wyoming  Ranene  Co.  .  .  .   681 

Stewart's     Case     (Agriculturists' 

Cattle  Ins.  Co.)   901 

Stewarts     Case      (Russian     Vyk- 

sounsky  Ironworks 602 

Sthreshly  v.  Broadwell 879 

Sticken  v.    Schmidt 890 

Stickler   v.    Giles 206 

Stikeman  r.  Dawson 82,     85 

Stiles  v.  Laurel  Fork  Co 778 

v.  Probst 857 

r.  Willis   640 


TABLE    OF    CASES. 


cxxxv 


PAGE. 

Stilk   v.  Myrick 204 

Still   i\  Buzzell 377,  488 

IStillings   v.   Turner 377 

Stillman  v.   Wickham 382 

Stilhvell  v.  Glasscock 470 

r.  Patton    873 

Stilson  v.  Stilson 444 

Stilwell  v.  Aaron 383 

V.  Wilkins 749 

Stimpson  v.  Bishop ii9!) 

v.  Maiden 566 

Stines  r.  Dorman 302 

Stites  i:  Thompson 262,  277 

Stitt  v.  Huidekopers 27 

btivers  v.  Tucker 88 

Stockbridge  r.  Damon 295 

Stockbridge    Iron    Co.    t'.    Hudson 

Iron  Co 634 

Stockdale   v.   Onwhyn 419 

Stocker  v.  Insurance  Co 656 

Stocks  r.  Dobson 283 

btocksdale    v.    Schuyler 346 

Stockton   Saving  &  Loan  Soc.  v. 

Harold 262 

Stoddard   v.    Doane 778 

v.  Ham 5,  592 

v.  McAuliffe 501 

■  r.  Penniman    859 

Stoddart  v.  Smith 664 

Stogdon   v.   Lee 96,  888 

Stokes  v.  Anderson 444 

v .  Baar    323 

v.  Burns 708 

v.  Detrick    263 

v.  Goodykoontz    581 

v.  McKay   361 

Stollenwerck   v.    Thacher 202 

Stone  v.  Bellows 634 

v.  City  and  County  Bank.  .  .   719 

v.  Clarke     573 

v.  Clay    405 

v.  Deiinison 68,  789 

v.  Godfrey    578 

v.  Hackett    218 

v.  Hale    636 

v.  Nichols     346 

v.  Tyree    791 

v.  White 863 

Stoneburner  v.  Motley 201 

Stoner  v.   Ellis 873 

v.  Weiser   392 

Stoney  v.  Insurance  Co 144 

Stoney  Creek  Woolen  Co.  v.  Smal- 

ley    392,  690,  691 

Stong  v.  Lane 599 

btoner's  Trusts   95 

Storck  v.  Mesker 204 

Storey  v.  Logan 25 

v.  Waddle    620,  645,  726 

Storrs  v.  St.  Luke's  Hospital 456 

Story  v.  Saloman 406 


PAGE. 

Story  v.  Springer 631 

v.  Story    176 

Storz  v.   Finklestein 486 

Stoudenmeier  v.  Williamson 204 

Stough  v.  Ogden 874 

Stout  v.  Ennis 785 

v.  Folger    270 

Stoutenburgh    v.    Konkle 708 

v.  Lybrand   444 

Stovall  v.  McCutchen 469 

Stover  v.  Bounds 630 

v.  Eyclesheimer 459 

■■;.  Mitchell   578 

Stover's  Adm.  v.  Wood 690 

Stow  v.  Russell 816 

v.  Steel 622 

Stowe  v.  Flagg 140 

Stowell  t'.  Eldred 108,  110,  112 

v.  Grider     891 

v.  Hazlett     786 

v.  Eobinson    823 

Stowers  v.  Hollis 176 

Strand  v.  Griffith 695 

Strange  v.   Brennan 452,  454 

v.  Houston,  etc.,  By.  Co.  282,  294 

Stratford  Gas  Co.  v.  Stratford.522,  523 
Straughan  v.  Indianapolis,  etc.,  R. 

R.     Co 176 

Strauss  v.   Insurance   Co 140 

v.  Meertief 350,  363 

v.   United  Telegram  Co....  145 

v.   Wessel 302 

Strawbridge  v.  Railroad  Co 383 

Stray  v.  Russell 524 

Street    v.    Blay 334,342,598 

v.  Goodale    257 

v.  Rigby    446,  879 

Stribley  v.  Imperial  Marine  Insur- 
ance   Co 656,  657 

Strickland   v.   MeCulloch 336 

v.  Turner 614 

Stringfellow    v.    Somerville 462 

Stringfield  v.  Heiskell 596 

Strobridge  Lith.  Co.  v.  Randall .  19,      47 

Strohauer   v.    Voltez 270 

Strohecker  v.   Grant. 249,  258,  259,  276 

Strohn  v.  Railroad  Co 54 

Strong  v.   Darling 402 

v.  Foote    79 

v.  Kamm 258,  269 

v.  Marcy 249,  253 

v.   Menzies    393 

v,    Sheffield 49,50,213 

v.    Strong 282,  631 

Stroud  v.  Smith 438 

Strouse  v.  Elting 182 

Struble    v.   Hake 256 

Struthers  v.  Kendall 864 

Stryker  v.  Vanderbilt 206 

Stuart  v.   Baker 68,  175 


CXXXV1 


TABLE    OP    CASES. 


PAGE. 
Stuart  r.  Blum   378 

v.  Diplock     480 

v.   Landers 157 

v.   Sears    575 

Stubbings  v.  Evanston 531 

Stubbs  v.  Holywell  Ry.  Co 548 

Studds  v.  Watson ..." 182 

Studley  v.  Ballard 205 

Studwell  v.  Shapter 82,  83 

Stuht  r.  Sweesv 200 

Stump    v.    Gaby 769 

Stumpf  v.  Stumpf 689 

Sturge  v.   Starr 698 

v.    Sturge 750 

Sturgis  v.  Preston 581 

Sturlyn  v.  Albany 193 

Sturm  v.  Boker 28,  688 

Sturtevant    v.    State 462 

Stuts  v.  Strayer 382 

Stutz  v.  Han'dley 589 

Sfruyvesant  v.  Western  Mtge.  Co.  .   261 

273 

Styles  v.   Long  Co 254,  276 

Swan  v.  Caffe 893 

Suber    v.    Pullin 340 

v.  Richard 778 

Suffell  v.  Bank  of  England .  .  865,  866 
Suggett's  Adm.  v.  Cason's  Adm.  .    177 

Suit  v.  Suit 815 

Sullivan    v.    Boley 346 

v.  California  Realty  Co.  .  .  .   854 

v.  Horgan  483 

v.  McMillan  361 

v.  Murphy    257 

v.  Rudisill 862,  863 

v.    Shailor    112 

v.    Sullivan 219,  249,  251 

Suman  r.  Springate 88 

Summerall   v.   Graham 343 

Summers  v.  Griffiths 740 

v.  Hibbard 523,  528,  539 

v.  Hutson 281 

i>.  Vaughn    199 

Sumner  v.   Seaton 791 

o.    Sumner 440 

v.  Williams     624 

Sumpter    v.    Hedges 327,345 

Sun  Ins.  Office  v.  Varable 531,  532 

Sun  Mutual  Ins.  Co.  o.  Ocean  Ins. 

Co 657 

Sun  Publishing  Co.  v.  Moore....  632 
Superior  Land  Co.  v.  Bickford.  ...    187 

Supervisors    v.    Schenk 144 

Supple  v.  Iowa  State  Ins.  Co ...  .  345 
Supreme  Assembly  v.  Campbell..  744 
Supreme  Council  v.  Forsinger .  .  .   449 

)'.    Garrigus 449 

Supreme  Lodge  v.  McLaughlin.  .  .   658 

Rurcome  v.  Pinniger 792 

Surles  v.  Pipkin. 99 


PAOE. 

Surman  v.   Wharton 97 

Susquehanna,  etc.,  Co.  v.  People.  .    131 
Sussex   Peerage   Case... 397,   398,  40O 

Sutch's  Est 199,  200 

Sutherland  v.  Reeve 281 

v.    Wyer 363 

Sutphen  v.  Sutphen 176 

i'.    Crozer 501 

Sutter  v.  Rose 721 

Sutton    v.    Dudley 215 

v.   Grey 171 

v.  Hayden     467 

v.  Head     469 

v.  Tyrell    549,  878 

v.  Warren     509- 

Sutton's  Hospital  Case..  126,  133,  141 

Suydam  v.  Jackson 531 

■  v.    Vance    385 

Swafford  v.  Ferguson 66- 

Swain  v.  Seamans.  . 821,  823 

Swisland   v.   Dearsley 667 

Swan,   Ex  parte 295 

v.  Benson   816 

v.   Chorpenning 370* 

i.  Mathre 692 

c.  North    British    Australa- 
sian Co 291,  580 

r.  Railroad  Co 17 

r.  Swan 399,  509 

v.    Scott 492 

Swansea  Friendly  Society 129 

Swanston  -v.  Morning  Star  Mining 

Co 451 

Swanzey  v.  Moore 789 

Swarm  v.  Boggs 630,  631 

Swartz  v.  Ballou 855,  856 

Swasey  v.  Vanderheyden 81 

Swazey  v.  Choate  Mfg.  Co 345 

Sweatman  v.  Parker 257 

Sweeney  v.  McLeod 436 

Sweet   v.    Brackley 78Q,  876 

v.  Desha  Lumber  Co 176 

v.  Kimball .   730 

v .   Lee 780 

v.   Parker 631 

v.  Sweet 415,  417 

Sweitzer  v.  Heasly 215 

Swenk  v.  Wykoff 439- 

Swett  v.  Stark 292 

Swift  v.  Bank 292 

v.  Bennett    80 

v.  Jewsbury 701 

v.  Kelly    685 

i'.  Rounds     690 

v.   Swift. 176,  462 

i.  Tyson 291 

i'.  Winterbotham    703 

Swift  Co.  v.  United  States.  .  .731,  732 

Swigert  v.,  Tilden 468 

Swim   v.  Wilson 565 


TABLE    OF    CASES. 


CXXXV11 


PAGE. 
Swindon.  Waterworks  Co^  v.  Wilts 

and  Berks  Canal.  Navigation  Co.  138 

Swiney  v.  Barry 853 

Swing  p.  Munson 402 

Swire  v.  Francis 700 

Switzer  r.  Sidles 387,  470 

Swobe    p.    New    Omaha    Electric 

Light 327 

Sword  v.  Keith 176 

v.  Young 592 

Sydney  &  Co.  p.  Bird 676 

Sykes  p.  Beadon 500,  910 

p.  Chadwick 194 

Sylvius   p.  KLosek 640 

Symes  p.  Hughes 503 

Symmes  p.  Frazier 14 

Synge  v.  Synge 360,  467 

T. 

Tabor  v..  Cerro  Gordo,  The 876 

V.  Cilley , 577 

Taddiken  v.  Cantj-ell ' 856 

Taddy  v.  Sterious 298 

Taft  v.  Sergeant 69 

Tague  v.  Hayward 790 

Taintor  P.  Prendergast 109 

Tait  v.  Insurance  Co 428 

Taite  v.  Goslin 300 

Talbot  P.  Bowen .  174 

p.  Pettigrew 19 

p.  Staniforth 744 

p.  Wilkins 256 

Talbot's  Devisees  v.  Hooser. 749 

Talbott  v.  English 839 

P.  Luckett 392 

p.  Stemmons'  Ex 195 

Talcott  v.  Henderson 679 

Taliaferro  v.  Day 250,  253 

Talley  v.  Robinson's  Assignee. . . .  753 

798 

Tallman  v.  Coffin 298 

Talpey  v.  Wright 704 

Tamp'lin  v.  James 601,  602,  605 

606,  753 

Tanere  v.  Pullman 740 

Tancred  v.  Delagoa  Bay  and  East 

Africa  Railway  Co 279 

Tanner  v.  Merrill 211 

Tapley  v.  Tapley 729 

Tappan  v.  Aylsworth 743 

Tappenden  v.  Randall' 502 

Tarbell  v.  Bowman 610 

Tarbox  v.   Gotzian 197 

Tardy  v.  Creasy 304 

Tarleton  v.  Baker 501 

-  p.  Bank 430 

Tamer  v.  Walker 23 

Tarr  p.  Smith 716 

Tartt  v.  Negus 158 

Tasker  v.  Bartlett 558 

17.  Shepherd 544 


PAGE. 

Tasker  v.  Small 226 

Tatam  v.  Reeve 407,  409,  499,  912 

'  Tate  v.  Fletcher 870 

v.  Foshee 174,  175 

v.  Hawkins 775 

v.  Jones 79 1 

v.  Pegues 498 

p.  Security  Trust  Co 717 

p.  Williamson 734,  742,  746 

Taussig  v.  Hart 388,  389 

Tayloe  p.  Merchants'  Fire  Insur- 
ance Co 31,  39,  40,  885 

Taylor,  Ex  parte 69 

v.  Acorn 863 

— —  v.  Ashton 682 

v.  Atwood 750 

v.  Bell  Soap  Co 490,  500 

v.  Bemiss 452 

v.  Bowers 502,  503 

p.  Brewer 49 

r.  Caldwell 530,  53'2 

536,  544,  548,  556,  558,  559 

P.  Castle 296 

p.  Chester 497 

v..  Chichester   and   Midhurst 

Ry.  Co 139,  515 

p.  Cottrell    729 

p.  Crowland  Gas  Co 4Q3 

p.  Deseve 177 

— —  p.  Deverell 634 

p.  Drake 172 

v.  Gilman 452,  625 

p.  Gould 776 

v.  G.  E.  Ry.  Co 782,  783 

v.  Hassett 18 

v.  Hinton 451 

v.  Hollard 778' 

v.  Hunt 775 

p.  Hutchins 429 

v.  Jaqnes 440 

v.  Johnson 862 

i t>;  Johnston 61,  745 

v.  Jones 886 

v.  Levy 487 

v.  Lincumfelter 11 

v.  Longworth 62.7,  628' 

v.  Manners 195 

v.  Mayhew 421 

v.  Meads 88T 

v.  Miss.  Mills  679 

v.  Nostrand 119 

v.  Owen 304 

v.  Page 292 

p.  Parry 226 

- —  P.  Pells 498 

v.  Portington 48 

-  v.  Pugh 393,  394 

12.  Rennie 29 

v..  St.    Helens    (Corporation 

of) 318 

v.  Short 709 


CXXXV111 


TABLE    OF    CASES. 


PAGE. 
Taylor  c.  Smith 178 

v.  Taintor 557 

r.  Taylor 735,  861 

v.  Weeks 215 

v.  Whitmore 260 

Taylor's  Estate 408 

Taymon  v.  Mitchell 608 

Teass  r.  St.  Albans 175 

Tecumseh  Nat.  Bank  v.  Best 257 

Tedriek  v.  Hiner 402 

Tegler  v.  Shipman 886 

Teipel  v.  Meyer 197 

Telegraph  Co.  v.  Barnes 385 

Tell  City  Co.  v.  Nees 52 

Temple  v.  Johnson 79-1 

Temple  Bank  r.  Warner 631 

Tenant  v.  Elliott 498 

Ten  Eyck  r.  Manning 66 

v.  Whitbeck 744 

v.  Fawcett 50 

Tennent  r.  City  of  Glasgow  Bank .    720 

v.  Tennents 749 

Tennent-Stribling     Shoe     Co.     t>. 

Rudy 257 

Tenney  v.  Lumber  Co 160,  623 

Tepoel  v.  Saunders  County  Bank.   725 

Tercese  r.  Geray 847 

Terrett  t\  Taylor 127 

Terrill  v.  Auehauer 61 

Terry  v.  Birmingham  Bank 389 

r.   Brightman 248,  249 

i>.  Durant  Land  Co 260 

v.  Hazlewood     864 

v.  Hopkins 393 

r.  Tuttle 588,  593 

Terry  &  White's  Contracts,  Be.  .  .   665 

Tesson  v.  Insurance  Co 636 

Tete  ii.  Lanaivx 544 

Teter  r.  Teter 158 

"  Teutonia."  The  543 

Texas  v.  White 431 

Texas  Cotton  Press  &  Mfg.  Co.  v. 

Mechanics'  Fire  Co 205 

Texas  Oil  Co.  v.  Adoue 469 

Texas  Printing  Co.  v.  Smith 860 

Thacker  v.  Hardv 406,  407 

r.  Key  .  .  '.  466 

Thackrah  v.  Haas 713 

Thallhimer  r.  Brinkerhoff 461 

Thames  Haven,  etc.,  Co.  v.  Hall. .  .    165 
Thatcher  v.  England 23 

r.  Morris 507 

Thayer  r.  Burchard 197 

v.  Daniels 281,  285 

r.  Knote 614,  618 

-  r.  Luce..  .  108,  112,  175,  181,  182 

v.  Marsh 261 

r.  Star  Mining  Co 629 

• r.  Thayer        395 

Theiss  r.  Weiss 3 

Theobald  r.  Burleigh 524 


PAGE. 

Thepold  v.  Deike 865 

Theuss    v.    Dugger 893 

Thibodeau  r.  Hildreth 468 

v.  Levasseur 780 

Thiedemann  v.  Goldschmidt 292 

Thiis  v.  Byers 527 

Third  Bank  v.  Hastings 384 

v.  Owen 661 

Thomas,  Be,  Jaques  v.  Thomas .  .  .  454 

v.  Armstrong 176 

i\  Atkinson 115 

v.  Barnes 35,  204 

v.  Beals 706 

v.  Brewer 778 

v.  Brown 92,  415,  786 

v.  Casey 778 

v.  Caulkett 445 

v.  Coultas 710 

■  v.  Cronise 488 

— —  v.  Davis 625 

v.  Knowles 536 

v.  McCue' 346 

v.  Kailroad  Co 142,  143,  573 

v.  Richmond 503 

v.  Stewart 332 

v.  Sweet 391 

v.  Thomas 9,  186,  192,  595 

v.  Thomasville  Club 11 

v.  Turner's  Adm 741 

Thomas  Mfg.  Co.  v.  Prather .  .  256,  267 

277 
Thompson  r.  Adams 795 

i\  Bertram 261 

v.  Cheesman 262 

v.  Conn.  Mut.  L.  I.  Co 841 

v.  Conover 336 

v.  Cummings 496 

v.  Davies 470 

v.  Dearborn 261 

v.  Dulles 628 

v.  Elliott 816 

v.  Gaffev 550 

v.  Gordon 250,  252,  273 

v.  Harvey 608 

v.  Hawkes 746 

r.  Hudgins 199 

v.  Hudson 632 

— — •  v.  Insurance  Co 688 

v.  James     883 

v.  Kelly 109 

v.  Lambert 140,  142 

v.  Lee 770 

v.  Libby 709 

v.  Marshall 460 

v.  Milligan 402 

v.  New  England  Co 101 

v.  Pereivial 211 

v.  Powles 430 

v.  Reed 780 

v.  Reynolds 450 


TABLE    OF    CASES. 


CXXX1X 


PAGE. 

Thompson  v.  Robinson 204 

v.  Rose 298,  679,  710 

i\  Stevens 50 

v.  Thompson 262,  823,  849 

r.  Universal   Salvage  Co . .  .  145 

r.  Westbrook 335 

v.  Wharton 434,  436 

v.  Whitmore 641,  643 

v.  Williams 488,  857 

Thompson  Mfg.  Co.  v.  Hawes. ...  11 

Thomson  v.  Davenport 107 

v.  Eastwood 725 

i\  Kyle 361 

v.  Miles 359 

v.  Poor 174 

v.  Weems 658 

Thorington  v.  Smith 431 

Thorn  v.  Mayor  of  London 529 

v.  Pinkham 441,  747 

Thornborow  v.   Whitaere 521 

Thornhill  v.  O'Rear 501 

Thornley  v.  United  States 308 

Thornton  v.  Appleton 854 

v.  Bank 141 

v.  Guiee 169 

r.  Kelly 180 

v.  Kempster 604 

v.  Missouri,  etc.,  Ry.  Co.  .  .  205 

v.  Ogden 745,  750 

v.  Wynn 607 

Thoron  v.  The  Mississippi 659 

Thoroughgood  v.  Walker 633 

Thoroughgood's  Case 583,  588 

Thorp  v.  Keokuk  Coal  Co 261 

v.  Smith 392 

v.  Stewart 170 

v.  Thorp 397 

Thrall  v.  Wright 79 

Thresher  v.  Stonington  Bank ....  334 

345 

Thrupp  v.  Fielder 69 

Thummel  v.  Holden 855 

Thurman  v.  Wild 841 

Thursby  v.  Plant 298 

Thurstan   v.  Nottingham   Perma- 
nent Benefit  Building  Soc . .  72,     74 
Thurston  v.  James 813 

V.  Percival 450 

Thwaites  v.  Coulthwaite 494,  500 

Thweatt  v.  Bank 141 

v.  McLeod 709 

Tibbetts  v.  Flanders 786 

v.  West  &  South  Ry.  Co. .  . .    174 

Tice  v.  Freeman 182 

Tichener,  Re 280 

Tiedemann,   Re 107 

Tiemeyer  i\   Turnquist 890 

Tier  v.  Lampson 106 

Tiernan  r.  Roland 627 


PAGE. 

Tierney  v.  McGarity 285 

Tiffany  v.  Boatman's  Institution.    142 

Tiffin  Glass  Co.  v.  Stoehr 548 

Tift  v.  Quaker  City  Bank 22C 

Tiger    v.   Lincoln 812 

Tighe  v.  Morrison 171 

Tildon  v.  Stilson 299 

Tileston  v.  Newell 125 

Tilley  v.  Thomas 627 

Tillinghast  v.  Boothby 468 

! v.  Lumber  Co 886 

Tillman  v.  Searcy 460 

!  Tilton  v.  Alcott 832 

Timken  Carriage  Co.  v.  Smith . .  .   608 

Timlin  v.   Brown 541 

Tingle  v.  Fisher .   281 

Tingley  v.  Bellingham  Co 180 

Tinken   v.   Tallmadge 119 

Tinker  v.  Hurst 380 

Tinkler  v.   Swaynie 269 

Tinn  p.  Hoffman 5,  29,     30 

Tirrell  v.  Freeman 378,  380 

Tischler  v.  Kurtz 827 

Tisdale  v.  Bailey 394 

Tison  v.   Howard 302 

Titcomb  r.  United  States 10 

v.  Wood     716 

Titus   r.    Poole 692 

v.  Rochester  Ins.  Co 689 

Tobey  v.  County  of  Bristol. .  446,  879 

v.  Robinson 496 

v.  Wood 64 

Tobin  v.  Central  Vt.  Ry.  Co 110 

Toby  v.  Brown 876 

Todd  v.  Grove 737,  745 

v.  Kentucky  Land  Co 144 

v.  Leach 344 

r.  Lee 890 

v.  McLaughlin 344 

t\  Meyers 801 

v.  Rafferty's  Adm 500 

v.  Railroad  Co 88 

v.  Weber.  .   22,  35,  249,  251,  253 

Tode  v.  Gross 468,  4G9 

Toker  v.  Toker 738 

Tolhurst    v.    Associated    Portland 

Cement  Manufacturers ....  223,  594 

Tolman  v.  American  Bank 592 

Tolmie  v.  Dean 50,  204 

Tomblin  v.  Cullen 409 

Tome  v.  Railroad  Co 701 

Tomlin  v.  Hilyard 174 

Tompkins  v.  Dudley 528 

Tomson  r.  Judge 770 

Tone  v.  Columbus 88 

Toner  v.  Wagner 864 

Toof  v.  Brewer 893 

Toomer  r.  Rutland 870 

Toomey  v.  Nichols 879 


cxl 


TABLE  OF  CASES. 


PAGE. 

Topham  v.  Morecraft 809 

Topliff  v.  Topliff 573 

Toplitz  v.  Bauer 20G 

Toppin  v.  Lomas 822 

Tornado,  The 53G 

Torrance  v.  Bolton 611,  665,  669 

Torre  v.  Torre 643 

Torrence  v.  Shedd 452 

Torrence  r.  Campbell . .   258,  259,  266 
Tottenham  v.  Emmett 756 

v.  Green 762,  763,  709 

Totterdell  v.  Fareham  Brick  Co.  .   898 
Touche  v.  Metropolitan  By.  Ware- 
housing Co 235,  243 

Tourville  v.  Wabash  R.  Co 876 

Towers  v.  Barrett 334 

Towle  v.  Dresser 67 

v.  Leavitt 684 

Town  v.  Rice 292 

Towne  v.  Thompson 673 

v.  Wiley 84 

Towner  v.  McClelland ?92 

Townsend  v.   Cowles 689 

v.  Coxe 503 

v .  Cowdy 575 

v.  Felthousen 690 

v.  Gowey 296 

v.  Hargraves 782 

v.  Jemison 780 

v.  Long 258,  259,  266 

V.  Minford 178 

— —  v.  Rackham 249,  250,  252 

v.  Tyndale      775 

v.  Vanderwerker 790 

Townsend's  Case 884 

Townshend  v.  Stangroom. .  . .  634,  639 

Towsley  v.  Moore 789 

Townson  v.  Moore 735,  744 

Tracy  v.  Keith 87 

v.  Kerr 877 

v.  Sackett 750 

v.  Talmage 486,  503,  504 

Trader  v.  Lowe 69 

Traders  Bank  v.  Steere 488 

Traders'  Nat.  Bank  v.  Parker...   214 

Traer  v.  Clews 456 

Trafford  r.  Hall 295 

Traflet  v.  Empire  Life  Ins.  Co. .  .  .   877 

Traill  v.  Baring 697,  699,  920 

Train  v.  Gold 35,  193,  495 

Train  v.  Kendall 508 

Trainer   v.   Trumbuli 77,     80 

Trainor  v.  Phoenix  Fire  Ass.  Co.  .   448 
Trammell  v.  Ashworth 693 

v.  Vaughan 361,  365,  547 

Transportation  Co.  v.  Dater 54 

Tranter  v.  Hibbard 859,  860 

Traphagen's  Ex.  v.  Voorhees. ...   193 

828 


PAGE. 

Traub  v.  Milliken 114 

Travelers'    Ins.    Co.    v.    Johnson 
City 11 

v.  Redfield 344 

Travers  v.  Crane 106 

v.  Dorr 264 

Travis  v.  Ins.  Co 27 

Traylor  v.  Cabannfi 180 

Treadwell  v.  State 699 

Treat  v.  Hiles 363 

v.  Smith 384 

v.  Stanton 241 

Trecy  v.  Jefts 618 

Tremper  v.   Hemphill 864 

Trenery  v.  Goudie 501,  502 

Trentman  v.  Wahrenberg 469 

Trenton  Co.  v.  Clay  Co 639 

Trenton  v.  Pothen 108 

Treswaller  v.  Keyne 817 

Trevor  v.  Wood 39,     40 

Trigg  v.  Read 576 

v.  Taylor 866 

Trigge  v.  Lavallee 215 

Trimble  v.   Elkin 873 

v.  Hill 406,  501,  912 

v.  Reid 682 

- — -  v.  Strother 272,  274 

Trimyer  v.  Pollard 776 

Trinkle  v.  Reeves 335 

Tripler  v.  Campbell 630,  631 

Tripp  v.  Hasceig 640 

Trist  v.  Child 435,  436 

Tritt's  Adm.  v.  Colwell's  Adm ...   283 
Trotter  v.  Erwin 775 

v.  Heckscher 332,  340 

v.  Hughes 262,  265 

v.  Strong 383 

Trounstine  v.  Sellers 30,     37 

Troup  v.  Horbach 720 

v.  Lucas 306 

i\  Goodman 634 

Trovinger  v.  McBurney 413 

Trowbridge  v.  Wetherbee 174 

Troy  Fertilizer  Co.  v.  Logan 180 

True  v.  Ranney 98,  509 

Trueblood  v.   Trueblood 66 

Trueman  v.  Loder 106 

Truesdell  v.  Lehman 577 

Truett  v.  Wainwright 861 

Trull  v.  Eastman 459 

v.  Skinner 630,  849 

Trumbull  v.  Brock 204 

v.  O'Hara 607 

V.  Tilton 378 

Trumpu  v.  Trumpu 390 

Trundle  v.   Riley 205 

Trust  Co.  %.  Bear  Valley  Co 488 

Trustees  v.  Anderson 275 

v.  Bennett 528 


TABLE    OP    CASES. 


cxli 


PAGE. 

Trustees  v.  Brooklyn  Fire  Ins.  Co.  176 

v.  Fleming 187 

v.  Galatian _  495 

v.  Garvey 186 

v.  Haskell 187 

v.  Insurance  Co 177 

v.  Lynch 302 

v.  McKechnie 160 

r.  Mulford 161 

v.  Nelson 187 

v.  Thacher 306 

v.  Walrath 633 

v.  Wheeler 282 

Tyron  v.  Hart 815 

Tuck  v.  Downing 690,  692,  693 

Tucker  v.  Andrews 393 

v.  Bennett 642 

v.  Billings 332 

v.  Linger 316 

v.  Madden 640 

v.  Magee 595 

v.  Moreland 63,     68 

v.  Ronk 215 

— — ■  v.  Vowles 305 

v.  West 809 

v.  White 691 

Tuffree  v.  Polhemus 174 

Tufts  v.  Brace 174 

v.  Larned 640 

v.  Lawrence 349 

v.  Weinfeld 349 

Tuggles  v.  Callison 816 

Tulane  v.  Clifton 828 

Tulare  County  Bank  v.  Madden..  261 

262 

Tulk  v.     Moxhay 304 

Tullett  v.  Armstrong 888 

Tullis  v.  Jacson 289,  426 

Tunison  v.  Bradford 217 

Tupper  v.  Cadwell 74,  77,  79 

Turnbull    v.    Strohecker 776 

Turner   v.   Baker 175 

v.  Beggarly 295 

v.  Billagram 854 

v.  Collins 644,  735,  769 

v.  Gaither 69,  79 

v.  Goldsmith 538 

■  v.  Green 651 

v.  Harvey 618 

v.  Haupt 695 

v.  Insurance  Co 720 

v.  Kerr 631 

v.  Lorillard 179 

v.  Lucas 108 

v.  McCarty 259 

v.  Reynall 802 

v.  Sawyer 390 

v.  Turner 815 

v.  Webster 605,  606 


PAGE. 

Turnock   v.   Sartoris 447 

Turnpike  Co.  v.  McNamara 798 

v.  State 131 

Tuson  v.  Crosby 827 

Tuthill  v.  Wilson 110,  116 

Tutt  v.  Hobbs 112 

v.  Ide 731 

v.  Thornton 864 

Tuttle  v.  Armstead 170 

v.  Burgett 173 

'».  Holland 486,  886 

'  v.  Railroad  Co 135 

v.  Swett 178 

Tuxbury  v.  Miller 380 

Tweddell  v.  Tweddell 260,  744 

Tweddle  v.  Atkinson 233,  243,  244 

Tweeddale  v.  Tweeddale.  250,  273,  274 
Tweedie  Trading  Co.  v.  James  P. 

Macdonald  Co 530 

Twenty-third   St.   Church  v.   Cor- 
nell   42,  187 

Twenty-sixth      Ward      Bank      v. 

Stearns 662 

Twistleton  v.   Griffith 756 

Two  Sicilies  (King  of)  v.  Wilcox.  131 

Twopenny  v.  Young 875 

Tyars  v.  Alsop 770 

Tyers  v.  Rosedale  Co 825 

Tyler  v .  Ames 51 

v.  Carlisle 486,  487 

v.  Freeman 109 

v.  Sanborn 387 

v.  Tyler 395 

v.  Yates 759,  760 

Tyrell  r.  Painton 734 

Tyson  v.  Doe 346 

v.  Dorr 812,  814 

v.  Tyson's  Exs 736 

U. 

Ubben  v.  Binnian 408 

Udall  v.  Metcalf 499 

Udell  v.  Atherton 680 

Uhler  v.  Cowen 532 

v.  Semple 674 

Uhrig  v.  Williamsburg  Ins.  Co . . .  448 

Ullman  v.  Meyer 178 

v.  Thomas 786 

Ulmer  v.  Farnsworth . 11 

v.  Ryan 652 

Ulrich  v.  McCormick 106 

Underhill  r.  Horwood 749 

Underwood  v.  Barber 479 

v.  Barker 426 

v.  Hitchcox 753 

v.  Lovelace 841 

v.  Patrick 780 

v.  Underwood 212 

Unf ried  v.  Heberer 88 

Unger  v.  Smith 260 


cxlii 


TABLE  OP  CASES. 


PAGE. 

Ungley  v.  Ungley 707,  790 

Union  Bank  v.  Call 812 

b.  Cook 861 

v.  Geary 214 

v.  German  Ins.  Co 688 

Union  Banking  Co.  B.  Martin's  Es- 
tate    862 

Union  Ins.  Co.  v.  Berlin 390 

v.  Central  Trust  Co..  .  .  361,  362 

446 

Union  L.  &  E.  Co.  v.  Railway  Co..  507 

Union  Lock  Co.  v.  Towne 135 

Union  Mining  Co.  r.  Bank 160 

v.    Rocky    Mountain    Nat. 

Bank 404 

Union  Mut.  L.  I.  Co.  V.  Hanford .  .  264 

269 

Union  Nat.  Bank  v.  Carr 408 

■ •  v.  Grant 384 

v.  Roberts 853 

Union  Pac.  Co.  v.  Anderson '  448 

■  v.  Artist 624 

Union  Pacific  Ry.  Co.  r.  Baker.  .  .  877 
Union  Pac.  R.  Co.  v.  Chicago,  etc., 

R.  Co 140 

v.  Metcalf 257,  268 

Union  Ry.  Storage  Co.  r.  McDer- 

mott 257,  268 

Union  Stave  Co.  r.  Smith 496 

Union  Stove  Works  r,  Caswell .  .  .  264 

Union  Strawboard  Co.  v.  Bonfield.  468 
United  Press  i>.  New  York  Press 

Co 49 

United  States  v.  Addystone  Pipe 

Co 372 

■ r.  American  Bonding  Co.  ...  661 

r.  Barker 430 

v.  Behan 337,  550 

•  r.  Buford 278 

r.  Charles 612 

v.  Cheeseman 382 

v.  Coffin 736 

v.  Dalles  Military  Road  Co .  698 

;;.  Dietrich 514 

v.  Freel 382,  857 

v.  Gaussen 383 

v.  Gleason 528 

r.  Grossmayer 427 

V.  Hatch      853 

v.  Huckabee 728 

— —  v.  John  Kelso  Co 130 

i:  Joint  Traffic  Assoc 468 

p.  Knight  Co 425 

v.  Lyman 875 

r.  M'Intyre 384 

w.  Mallinckrodt  Works  468 

v.  National  Surety  Co 250 

r.  Nelson 855 

v.  Olney 406 

v.  Peck 363,  549,  550 

V.  Pond 40 


PAGE. 
United  States  v.  Quigley 427 

r.  Railroad  Co 375 

.  v.  Rodgers 509 

v.  Ryder 443 

v.  Sauvage 462 

v.  Simmons 443 

v.  Simons 14 

v.  Spalding 854 

v.  Trans-Missouri  Assoc.  .  .  .  426 

468 

v.  Union  Pac.  Ry.  Co 469 

v.  Van  Fossen  557 

v.  Vaughan 285 

v.  West 845 

United  States  Co.  v.  Provident  Co.  426 
United     States     Fidelity     Co.     v. 

Charles 440 

United  States  Glass  Co.   v.  West 

Virginia  Flint  Co 382,  852 

U.  S.  Mortgage  Co.  v.  Henderson.   215 
United  States  Raisin  Co.  v.  Griffin.  468 

Unity  Bank,  Ex  parte 86 

Universal  Life  Assurance  Co.,  Ex 

parte 289 

Universal  Stock  Exchange  v.  Stev- 
ens     408 

v.  Strachan 408,  502 

University  v.  Hayes 874 

Unruh  v.  Lukens 735 

Updegraft  r.  Edwards 292 

Updike  !\  Campbell 487 

v.  Ten  Broeck 176,  789 

p.  True 199 

Upington  b.  May 385 

Upper  San  Joaquin  Co.  v.  Roach..   813 

820 

Upperton  v.  Nickolson 629 

Upshaw  r.  Gibson 83 

Upton  o.  Archer 855 

r.  Englehart 675,  688  695 

701,  706,  720,  724 

p.  Jackson 709 

i:  Tribilcock 576,  589  675 

688,  723,  724 

Upton  Mfg.  Co.  r.  Huiske 608 

Urmston  v.  Whitelegg 468 

Urquhart  i.  Brayton 262 

v.  Maepherson 715 

Usher  p.  Waddingham 107 

Utah  Optical  Co.  v.  Keith 532 

Utley  v.  Donaldson 654 

V. 
Vace  Valley  Co.  v.  Mansfield.  586,  855 

Vacuum  Brake  Co.  B.  Prosser 341 

Vail  v.  Foster 262 

c.  Reynolds 706 

p.  Winterstein 892 

Valentine  v.  Bell 200,  204 

v.  Canali 72 


TABLE    OF    CASES. 


cxliii 


PAGE. 

Valentine  v.  Fish  275 

v.  Lunt 768 

v.  Stewart 441 

Vallanee   v.  Blagden •  413 

Vallandingham  v.  Johnson 63 

Vallens  v.  Tillman 332 

Vallette  v.  Tedens 390 

Valley  City  Milling  Co.  v.  Prange.   541 
Valley  Ey.  Co.  v.  Lake  Erie  Iron 

Co 579 

Valpey  r.  Bea 10 1 

Van  Arsdale  v.  Howard 660 

Vanasse  r.  Eeid 453 

Van  Auken  v.  Hornbeck 844,  859 

Van  Brocklen  v.  Smeallie 336 

Van  Brunt  r.  Mismer 875 

Vanbrunt  !'.  Singley 585 

Van  Buren  v.  Digges 551 

Vanbuskirk  v.  Hartford  Ins.  Co.. .  285 

Van  Buskirk  v.  Warren 285 

Vance,  v.  Anderson 631 

r.  Lowther 866 

v.  Eailroad  Co 130 

v.  Word 82 

Van  Cleve  v.  Berkey 720 

Van  Cott  v.  Van  Brunt 720 

Vandegrift  v.  Cowles  Engineering 

Co 323,  355,  361,  549,  595 

Vanderbeek  v.  Eochester 579 

v.  Vanderbeek 844 

Vanderbilt  v.  Schreyer 204,  210 

Vanderhaize  v.  Hugues 630 

Vanderheyden  v.  Mallory 893 

Van  Deusen  v.  Sweet 101 

Vandiver  v.  Hodge 775 

v.  Pollak 496 

Van  Duzor  v.  Allen 716 

Van  Dyke  v.  Wilder 839 

Van  Eman  v.  Stanchfield 241 

Van  Etta  v.  Evenson 855 

Van  Fleet  v.  Sledge 640 

Van  Horn  v.  Hann 99 

v.  Kitteltas  County 445 

Van  Home  v.  Dick 384 

v.  Watrous , 448 

Van  Houten  v.  Morse 677,  681 

Van  Keuren  v.  Corkins . .  .  ■. 282 

Vanmeters'  Ex.  v.  Vanmeters .  246,  258 

Van  Note  v.  Cook 448 

Vannoy  v.  Patton 402 

Van  Patten  v.  Beals 101 

Van  Pelt  v.  Corwine 67 

Van  Eiswick  v.  Goodhue 850 

Van  San'dt  v.  Weir 88 

Van  Santvoord  v.  Smith 821 

Van  Schaick  v.  Eailroad  Co.  226,  276 

Van  Shaack  v.  Bobbins 61 

Vansickle  v.  Wells,  Fargo  &  Co.  .  .   786 
Vansittart  v.  Vansittart . .  92,  415,  462 

Vanvactor  v.  State 466 

Van  Vechten  v.  Smith 691 


PAGE. 

Van  Vleck  v.  Van  Vleck 452 

Van  Voorhis  v.  Brintnall 397 

Van  Winkle  v.  Satterfield 375 

Van  Wyck  v.  Allen 653 

Varley  v.  Whipp 654 

Varner  v.  Carson 750 

Varney   v.   Brewster 878 

Vason  v.   Bell 231 

Vass  v.  Eiddiek 699 

Vassar  v.   Camp 39,  41 

Vassault  v.  Edwards 181 

Vasse  v.  Smith 82,  83 

Vaughan    v.    Fowler 861 

1),  Thomas 754 

v.  Vanderstegen    887 

Vaughn    v.    Herndon 878 

v.  Marable    460 

v.  Baker   109 

Veach  v.  Thompson 727 

Veazey  v.  Allen 436 

Veazie  v.  Williams 684,  701,  722 

Veitch  v.  Eussell 801,  803 

Venable  v.  Brown 786 

Vent  v.  Osgood 67 

Ventress  v.  Smith 567 

Verdin  v.  Eobertson 604 

Vereycken  v.  Vandenbrooks . .  206,  728 

Vermeule  v.   Vermeule 809 

Vermont  Marble  Co.  v.  Smith 699 

Vernon  v.  Keys 689,  691 

Ver  Planck  v.  Lee 262 

Verrier  v.  Guillou 776 

Very  v.  Levy 830,  832,  834 

Vickers    v.    Electrozone    Commer- 
cial   Co 353,  361 

v.  Vickers    879 

Vider  v.  Ferguson 341 

Viditz  v.  O'Hagan 65 

Viddard  v.  Cushman 857 

Viele  v.  Hoag 385 

i7.  Eailroad   Co 753 

Vierling   v.   Bender 547 

17.  Iroquois   Furnace   Co....   312 

Vigel   17.   Gatton 409 

Vigers  v.  Pike 715 

17.  Sanderson    603 

Vigniau  v.  Puffins   261 

Vilas  17.  Downer 802 

Viley  v.  Pettit 199 

Villa  17.  Eodriguez 630 

Villet  17.  Moler 692 

Vinal  17.  Continental  Co 612,  877 

Vinar  v.  Insurance  Co 130 

Vince,  Re 49 

Vincent  17.  Groom 442 

17.  Vieths    174 

v.  Watson    245,  259 

Vinet  17.   Bres 261 

Viney  17.  Bignold 448 

Vining  u.  Bricker 404 


cxliv 


TABLE    OF    CASES. 


PAGE. 

Violett  v.  Mangold 408 

Virden  v.  Murphy 487 

Virginia  Hot  Springs  Co.  v.  Har- 
rison      47 

Virginia  Land  Co.  v.  Haupt 675 

Viser  v.  Bertrand 200,  444 

Visher  v.  Webster 867 

Viterbo  v.  Friedlander 531,  534 

Vitty  v.  Eley 14 

Voeke   v.   Peters 452 

Vogel   v.   Melms 171 

v.  Pekoe 49,  197 

Vogle  v.  Ripper 869,  870 

Vogt  v.  Hecker 528,  538 

'  Voisey,  Ex  parte 401 

Volk  v.  Stowell 543 

Voltz  v.  National  Bank 404 

Vondal  v.  Vondal 685 

Von  Storch  v.  Griffin 677 

Von  Trotha  v.  Bamberger 174 

Vorhees  v.   Combs 204 

v.  Be    Myer 664 

v.  Earl    608 

v.  Reed    210 

Voris  v.  Star,  etc.,  Assoc 170 

Vorley  v.  Cooke 588 

Vosburgh  v.  Teator 175 

Vose  v.  Strong 176 

Voss  v.  Robertson 302 

Vosser  v.   Vosser 217 

Vreeland  v.  New  Jersey  Stone  Co.  675 

680 

v.  Turner   378 

v.  Van    Blarcom 391 

Vroman  v.  Darrow 827 

Vrooman  v.  Turner 250,  256,  265 

Vyne  v.  Glenn 728 

Vynior's  Case 357,  878 

W. 

W.  v.  B 505 

W.  B.  Steel  Works  v.  Atkinson.  .   780 
W.  &  H.  M.  Goulding  Co.  v.  Ham- 
mond          30 

W.  W.  Johnson  Co.  v.  Triplett. .  .   679 

Wabash  Ry.  v.  Brow 813 

Waberley  v.  Coekerell 843 

Wace  v.  Allen 312 

Wachsmuth  v.  Bank 130 

— —  v.  Martini 698,  699 

Waddell  v.  Blockey 714 

v.  Lanier 742 

Waddington  v.  Buzby 734 

Wade  v.  Kalbfleisch 547,  685 

v.  Pettibone 387 

v.  Pulsifer 722,  737,  770 

v.  Ringo   691 

Wadhams  v.  Gay 218 

Wadsworth    v.    Henderson 157 

Waeber  v.  Talbot 652 


PAGE. 

Wager  v.  Link 261,  262 

Wagg   v.   Gibbons 91 

Waggoner    v.    Millington 867 

Waggoner's  Est 55 

Wagner  v.   Breed 486 

■  v.  National  Ins.  Co.  . . .  283,  539 

693,  703 

Wagoner    v.    Watts 775 

Wahl   v.   Barnum 2].5 

Wailes  v.   Cooper 568 

Wain    v.    Bailey 847 

v,  Warlters    179 

Wainwright  v.  Bridges 420 

v.  Queens  County  Water  Co.  249 

254 

!'.  Straw 347 

Wait    v.    Pomeroy 865 

Waite  v.  Barry  880 

v.  Moreland   93 

■  v.  O'Neil    532 

Wake    v.    Harrop 312 

Wakefield  v.  Marvin 285 

v.  Newbon 731 

Wald  v.  Arnold    778 

Walden    v.    Skinner 636 

Waldo  v.  Railroad  Co 675,  701 

Waldoborough  v.  Railroad  Co....  135 

Waldorf  v.   Simpson   853 

Waldy  v.  Gray 568 

Walker  v.  Armstrong   636 

z\  Bamburger 28 

v.  Bank 119,  120 

v.  Beal    414 

v.  Brooks 279 

v.  Brown    201 

v.  Christian 112 

■  v.  Davis 83 

■  v.  Ebert 585 

v.  Farmers'  Bank 630 

v.  Gregory 411 

v.  Hill 170 

v.  Jeffries 487 

-  v.  McKay   286 

v.  Mayo 380 

v.  Metropolitan   Ins.   Co 176 

v.  Nevill   833 

v.  Nicrosi   769 

v.  Norton   169 

v.  Palmer 387 

v.  Parker  -   728 

v.  Perkins 412 

v.  Railway  Co 294 

v.  Smith   736 

v.  Swartwout    112 

v.  Tucker 536 

v.  Walker 395,  414,  415 

Walker's  Exs.  v.  United  States..  431 

489 

Walkley  v.  Clarke 857 

Wall  v.  Arrington 634 


TABLE  OF  CASES. 


cxlv 


PAGE. 

Wall  v.  County  of  Monroe 147 

v.  Meilke 636,  640,  688 

v.  Mining  Co 226 

v.  Muster's  Ex 587 

v.  Schneider 493 

Wall's  Appeal  50 

Wall's  Case 885 

Walla  Walla  Co.  v.  Ping.  .  .   855,  867 
Wallace  v.  Chicago,  etc.,  Ry.  Co. .  451 

589 
v.  Cravens   798 

v.  Gibson   172 

v.  Harmstad 847,  849 

v.  Jewell   854,  862 

■ v.  Johnstone 631 

v.  Lark 486 

v.  Long 789 

v.  Morss   83 

v.  Rappleye   411 

i*.  Stevens 174 

v.  Tice    854 

— — ■  v.  TWnsend 42 

v.  Wallace 744,  869 

Wallace's  Case 20 

Wallace  v.  Latham 69 

Waller  v.  Shannon 879 

v.  Staples   654 

Waller's  Adm.   v.  Marks 215 

Wallerstein    v.    Ervin 142 

Wallis   v.   Carpenter 633 

v.  Day 476,  481 

v.  Smith   319,  632 

Walls  v.  State 64 

Walsh    v.    Association 469 

v.  Barton 141,  179,  684 

v.  Bishop   of   Lincoln 911 

v.  Colclough    789 

v.  Colquitt 385 

v.  Dwight 469 

V.  Fisher 549 

v.  Hun    868 

v.  Jenvey  - 337 

v.  Mayer 780 

■  v.   Myers    350,   363,  368 

— ■ — ■  v.  St.  Louis  Exposition. ...     18 

Walter  v.  Everard    79,     80 

Walter  v.  James 843 

v.  Victor  G.  Bloede  Co 821 

823 

Walters   v.   Bredin    623 

v.  Hutchins    878 

v,  Swallow  384 

Walton    v.    Gaines 63 

■  v.   Horkan    285 

v.  Jordan   173 

v.   Lowrey    173 

v.  Ruggles    270 

Walton  Plow  Co.  v.  Campbell...  870 

Wampol  v.  Kountz   791 

Wann  v.  Coe   749 

v.   Kelly    500 

X 


PAGE. 

Wannell  v.  Kem 695 

Warburton  v.  Storr 878 

Ward  v.  Allen    443,  856 

v.  Bank  of  New  Zealand. .  .  386 

v.  Cheney   873 

v.    Cowdrey 260 

v.  De  Oca  265 

v.  Dulaney 98 

r.    Duncombe    281,  284 

v.   Hackett    858,  862 

868,  872 

v.  Hasbrouck  179 

v.  Hudson  River  Bg.  Co 528 

v.  Insurance  Co 132 

v.  Jack   778 

v.    Johnson    144 

v.    Lumley    848,851 

■  v.   Morrison    281,  285 

v.    Smith    429 

v.  Walton   821 

-  v.  Ward  394,  395 

-  v.    Warren    350 

v.   Wick    384 

v.  Yorba 639 

Wardell  v.  Railroad  Co 389 

Warden  r.  Jones 793,  795 

v.  Reser    584 

Warden    Coal    Washing    Co.     v. 

Meyer    197 

Warder  r.  Fisher 608 

Warder  Co.  p.  Whitish 584 

Warder,  etc.,  Co.  v.  Willyaru 870 

Wardrop  v.  Dublin,  etc.,  Co 337 

Ware  v.  Allen    170,  312 

.  v.   Brown    703 

■  v.    Curry ' 775 

v.   Jones    486 

v.  McCormack    654 

i?.    Morgan    120,  215 

Waring  v.  Smyth 845,  851 

Waring's  Case 230 

Warlow  v.  Harrison 17,  18,  20 

Warne  *.  Routledge 891 

Warner  v.  Beers 296 

v.  Grace 205 

v.  Landis 584 

v.  Southern  Pac.  R.  Co 130 

v.  Texas  and  Pacific  Ry. . .  .  176 

177 

v.  Willington 52 

v.  Wilson 550 

Warnick  v.  Grosholz 170 

Warpole  v.  Ellison 854,  858 

Warren  v.  Abbett 171,  172 

v.  Arctic  Ice  Co 652 

v.  Batchelder 240,  259,  271 

v.  Branch 660 

v.  Buekminster 336 

v.  Chapman 484 

v.  Fant 384,  856,  871 

v.  Farmer 257 


cxlvi 


TABLE    OF    CASES. 


PAGE. 

Warren   p.  Hewitt   407 

v.  Hodge 204 

i\  Layton 869,  873 

-  v.  Lyons 382 

v.  Mayer  Mfg.  Co.  .  821,  822,  823 

v.  Saxby 802 

v.  Skinner 211,  813,  834 

v.  Smith 170 

v.  Wagner 531 

p.  Whitney 199 

r.  Wilder 258 

v.  Williamson 215,  578 

Warrender  p.  Warrender 415 

Warrick  p.  Smith 634 

Warriner  v.  Rogers 219 

Warring  p.  Williams 857 

Warrington  v.  Early 864 

Warters  v.  Herring 338 

Warwick  p.  Bruce 61,  65 

v.  Cooper 64,  65 

v.  Richardson 377 

Wasatch  Mining  Co.  v.   Crescent 

Mining  Co 648 

Washburn  v.  Dosch 789 

r.  Fletcher 39 

v.  Interstate  Investment  Co .  253 

258 

Washington  p.  Ogden 663 

Washington     Irrigation     Co.      p. 

Krutz 436 

Wason  r.  Wareing 580 

Wassermann  r.  Sloss 501,  502 

Water  Commrs.  v.  Brown 46 

Water  Valley  Mfg.  Co.  v.  Seaman .  675 

697 

Waterbury  v.  Andrews 699 

Waterhouse  p.  Jamieson 719 

Waterman  r.  Banks 628 

v.  Dutton 634 

v.  Morgan 249,  252,  273 

-  v.  Vose     871 

Waters  p.  Bean 199 

v.  Reed    735 

Watford  and  Rickmansworth  Ry. 

Co.  r.  L.  &  N.  W.  Ry.  Co 447 

Watkins  v.  Baird 730 

e.  Brant 745 

v.  Eames 187 

p.   Rymill 54 

c.  Nash 312 

Watrous  v.  Morrison 175 

Watson,  Ex  parte 86 

■  v.  Allcock 196,  385 

v.  Atwood 695 

v.  Billings 82 

p.  Crandall 699 

p.  Cross 80 

r.  Dunlap 199 

v.  Earl  of  Charlemont 697 

r.  Fletcher 500 

p.  Ford 342 


PAGE. 

Watson  v.  Jacobs 170 

v.  Kendall 242 

v.  Mahan 746 

p.  Marston 633,  752,  753 

v.  Mid-Wales  Ry.  Co 286 

r.  Murray 500,  507 

— — •  v.  Rickard 120 

i\  Russell 39,     41 

v.  Silsby 679 

p.  Spratley 174 

Watson  Coal,  etc.,  Co.  v.  Casteel..   715 

Watteau  v.   Fenwick 113 

Watters  p.  McGuigan 174,  375 

Wattles  r.  South  Omaha  Co 531 

Watts  r.  French 204 

v.  Porter 285 

Waugh  v.  Beck 486,  487 

•  r.  Morris 494,  515 

Waul  r.  Kirkman 181 

Way  r.  Dunham 384 

r.  East 494 

v.  Hearn 662,  705 

i:  Langley 378 

r.  Ryther 690 

v.  t'nion  Ins.  Co 735 

v.  Wakefield 347 

r.  Wright 558 

Way's  Trusts  739 

Wayman  r.  Jones 261,  264 

Waymell  v.  Reed 432,  433 

Waymire  r.  Jetmore 98 

Wayne's  Coal  Co.  v.  Morewood .  .  .   332 

Weakly  v.  Hall 451 

Weare  v.   Gove 119 

Weart  v.  Hoagland's  Adm 344,  346 

Weatherbee  r.  Baker 720 

r.  Potter 173 

Weatherford  Co.  v.  Granger 121 

Weathersly  v.  Weathersly 630 

Weaver  r.  Bentley 335,  344 

•  v.  Burr 28 

r.  Childress 324 

v.  Harlan   501,  502 

v.  Shriver 708 

Webb,  Estate  of  218 

v.  Armstrong 452 

■  v.  City    Council   of   Alexan- 
dria     576 

v.  Corbin    585 

v.  Fulchire 499,  503 

v.  Heme    Bay    Commission- 
ers   147,  287,  290 

p.  Hewitt   384 

v.  Hoselton 292 

v.  Hughes 628 

p.  Jiggs 244,  252 

i .  Mullins 854 

p.  Robbins        301 

i).  Stephenson  324,  354 

p.  Whiffin 297 

Webber  v.  Donnelly 486,  886 


TABLE    OF    CASES. 


cxlvii 


PAGE. 
Webber  o.  Howe 515 

p.  St.  Paul  Ry.  Co 547 

Weber  v.  Barrett 747 

v.  Bridgman 106 

v.  Couch 212 

r.  Shay 434,  441 

Webster  <\  Cecil 605 

i\  Cook 760 

r.  De  Taste 463 

v.  Enfield 345 

v.  Fleming 261,  276 

v.  Sanborn 495 

v.  Zielly 173 

Webster's  Case 602 

Wedgwood  v.  Adams 754 

Weed.  v.  Beebe 69 

v.  Black 436 

v.  Oberreich 383 

Weedon  v.  Waterhouse 543 

Weeks  v.  Currier 682,  701,  713 

v.  Hill 444 

v.  Hunt 286 

v.  Lippencott 437 

v.  Little 551 

v.  Mays 547 

v.  Propert 119 

p.  Robie 345 

v.  Weeks 89 

Weggner  v.  Greenstine 448 

Wegner  v.  State 854 

Wehrman  v.  Conklin 726 

Weichardt  v.  Hook 878 

Weidman  v.  Symes 867 

Weidner   v.   Hoggett 112 

Weil,  Re 699 

Weill  v.  American  Metal  Co 353 

Weinreich  v.  Weinreich 249,  252 

269 

Weinwick  v.  Bender 284 

Weir  v.  Barnett 702 

v.  Bell 700,  702 

Weir  Plow  Co.  v.  Walmsley. .  382,  871 

Weis  v.  Devlin 528,  538 

Weiser  v.  Welch 729 

Weisiger    V.    Richmond    Machine 

Co 709 

Weitz  v.  Independent  District.  ...      18 
Welch  v.  Bunce 67 

V.  Mandeville 282 

v.  Miller 878 

v.  Saekett 56 

Weld  v.  Lancaster 470 

v.  Locke 725 

Weldon   v.   Winslow 95 

Welford  v.  Chancellor 387 

Weller's   Appeal 584 

Wellington  v.  Apthor 35,  467 

v.  Jackson 443 

v.  Kelly 445,  453,  842 


PAGE. 

Wells  v.  Calnan 536 

v.  Cook 704 

v.  Hardy 65,  80 

v.  Hargrave   778 

v.  Hartford  Co 361 

v.  Houston  104 

v.  Kingston-upon-Hull .    165,  173 

v.  McGeoch 501 

v.  Malbon   93 

v.  National  Life  Assoc 550 

v.  Seixas 69 

v.  Smith  628 

i .  Stout  414,  415 

e.  Thorman   891 

v.  Wood   769 

v.  Yates    639 

Wellston    Coal    Co.    v.    Pranklin 

Paper  Co 337 

Welman  v.  Welman 638 

Welsh  v.  Gossler 340,  342 

v.  Sage   291 

Welz  v.  Rhodius 176 

Wenlock  (Baroness)  v.  River  Dee 

Co 133,  134 

Wennall  v.  Adney 198,  199 

Wentworth  v.  Day 14,     23 

Wentz  v.  Dehaven 844 

r.  Meyersohn  834 

Wenzel  v.  Schultz 585 

Werdenbaugh  v.  Reed 786 

Werner  c.  Padula 531 

Wernli  r.   Collins 342,  528 

Wescott  v.  Waller 211 

Wessell  v.  Glenn 867 

West  r.  Bechtel 332,  340 

v.  Blakeway  828 

v.  Camden 376,  439 

v.  Carter    405 

v.  Holmes  501 

r.  Houghton 242 

v.  Mahaney   634 

i).  Morse  82 

v.  O'Hara  170 

v.  Raymond 453 

v.  Reed  630 

v.  Stanley    878 

V.  Steward    845,  848 

v.  Suda  636 

v.  W.  TJ.  Tel.  Co 257 

West    of    England    Ins.     Co.    v. 

Isaacs    533 

West  Feliciana  R.  Co.  v.  Thornton.  876 
West  Florida  Land  Co.  v.  Stude- 

baker  701 

West  London  Commercial  Bank  v. 

Kitson 122,  689 

W.  Va.  Transp.  Co.  v.  Pipe  Line 

Co i .   304,  469 

Westbrook  v.  Eager 173 


cxlviii 


TABLE    OF    CASES. 


PAGE. 

Westbrook  v.  Harbeson 634 

Westcott  v.  Mitchell 204 

Wester  v.  Bailey 856,  857 

Westerman  r.  Evans 108 

Western  i:.  Russell 754 

v.  Sharp 337 

Western  Ass.  Co.  v.  Hall 449 

Western  Bank  r.  National  Bank .  .   890 
Western  Bank  of  Scotland  v.  Ad- 
die  701,  703,  714 

Western  News  Co.  v.  Wilmarth..    130 

Western  R.  Co.  v.  Stoekdale 53 

Western    Ry.    Equipment    Co.    v. 

Missouri  Iron  Co 816 

Western  Seminary  e.  Blair 160 

Western    Suburban,    etc.,    Co.    v. 

Martin 447 

Western  Union  Co.  v.  Semmes . .  .  550 
W.  U.  Tel.  Co.  v.  A.  U.  Tel.  Co.  .   469 

v.  B.  &  S.  W.  Ry.  Co 469 

482,  483 

v.  Balto.,  etc.,  Tel.  Co 469 

v.  Dubois   254 

v.  Fenton    254 

v.  Flint  River  Co 604 

•  v.  Hope 254 

v.  Jones    254 

v.  Nat.  Tel.  Co 469 

v.  Shotter 604 

v.  U.  P.  Ry.   Co 392 

Western  Wagon  and  Property  Co. 

v.  West 280 

Westervelt  v.  Demarest 689 

Westlake  v.  Adams 193 

r.  St.  Louis 731  ; 

Westmeath  v.  Salisbury 414 

417,  418 
Westmeath,   Marquis   of   v.   Mar- 
chioness of  Westmeath...   415,  418 
Westmoreland   r.   Carson 180 

v.  Porter 816 

v.  Westmoreland 873 

Weston  v.  Clark 837 

v.  Hunt 127 

v.  Metropolitan  Asylum  Dis- 
trict     632 

v.  Mowlin 817 

Wetherbee  v.  Potter 174 

Wetmore  i.   Barrett 408 

Weybrich  v.  Harris 608 

Weygant  v.  Bartlett 850 

Whalen  v.  Brennan 470 

v.  Gordon  608 

Whaley  v.  Dawson 175 

Whallen  v.  Kauffman 624 

Wharton  v.  Duncan 386 

v.  Mackenzie   76 

v.  Stoutenburgh  48,  541 

v.  Winch 353 


PAGE. 

Whatman  v.  Gibson 304 

Wheadon  v.  Olds 610 

Wheat  v.  Cross 31,  39,  607 

Wheat  v.  Rice 158,  266,  272 

v.  Lane 278 

Wheatley  v.  Slade 668 

Wheeden  v.  Fiske 816 

Wheedon  v.  American  Trust  Co . .   633 
Wheeler  v.  Dunn 693 

r.  Harrison    452 

v.  Klaholt    10 

— -  v.  McNeil    706,  723 

v.  Pounds   451 

v.  Russell  402 

v.  Single  850 

v.  Smith  751 

v.  Spencer    501 

v.  State    558 

v.  Stewart    250 

Wheeler's  Exs.  v.  Wheeler 459 

Wheeler,  etc.,  Co.  v.  Boyce 130 

Wheeling,  etc.,  Co.  v.  Koontz 717 

Wheelock  v.  Freeman 865 

v.  Moulton   125 

v.  Pacific  Gas  Co 813 

Wheelton  v.  Hardisty 657,  699 

Wheelwright  v.  Depeyster 567 

Whelan  v.  Ansonia  Clock  Co 538 

v.  Cook    104,  430 

v.  Palmer   312 

t*.  Sullivan   49 

v.  Whelan 768 

Whelen  v.   Osgoodby 640 

Wheless  v.  Bank 130 

Whelpdale's  Case 727 

Whiehcote    o.    Lawrence 388 

Whilden  v.  Bank 25 

Whincup  v.  Hughes 548 

Whippen  v.   Whippen 397 

Whipple  v.  Barton 736 

17.  Blackington     778 

v.  Johnson   775 

v.  Parker    177 

Whitaker   v.  Eilenberg 839 

v.  Hawley 531,  532,  533 

v.  McCormick 652,  653 

Whitcher  v.   State 14 

Whitcomb  v.  Denio 706,  714,  721 

v.  Joslyn 82 

v.  Whitcomb 249,  251,  253 

v.  Whiting   779 

White  v.   Ashton 650 

v.  Atkins 324 

v.  Bank   502,  503 

17.  Beal    708 

17.  Beard    324 

17.  Beeton    327 

17.  Bigelow    792 

17.  Bluett    203,  820 


TABLE  OF  CASES. 


cxlix 


PAGE. 

White  v.  Boyce 108 

v.  Breen    182 

v.  Buss    399,  487 

v.  Cannon 841 

v.  Corlies 32,  34 

v.  Cuddon    666 

u;  Cuyler    876 

v.  Damon   754 

v.  Duggan    586 

v.  East  Saginaw 383 

v.  Equitable  Nuptial  Benefit 

Union    465 

v.  Garden    679,  716 

v.  Gilleland 501,  502 

v.  Goldsberg    88 

v.  Graves 698 

v.  Gray    830,  832 

v.  Hart     421 

v.  Hass   870 

17.  Hunter   413 

v.  Kuntz  378,  380 

17.  Lee    194 

v.  Life  Assoc,  of  America . .   385 

660 

v.  McGannon    753 

v.  Madison    119,  120 

v.  Mann    543 

v.  Middlesex  R.  Co 449 

v.  Miller 653 

v.  Molyneux    531 

v.  Mt.  Pleasant  Mills.  .  257,  259 

v.  Murtland  176,  177 

17.  New  Bedford,  etc.,  Co 68 

17.  Oakes    652 

v.  O'Bannon    794 

17.  Robinson    654 

17.  Sawyer ' 701 

v.  Solomonsky    170 

i\  Southend  Hotel  Co 299 

v.  Stelloh   607 

17.  Thielens   258,  259,  266 

(7.  Thompson     753 

v.  Walker    827 

v.  Warren   735 

v.  Western  Assur.  Co 375 

17.  Wheland   787 

v.  White  431,  645 

17.  Whitney    383 

17.  Wiley    281 

17.  Wilson's  Adm 409 

17.  Yarborough    409 

White  Co.  17.  Dakin  853 

White    Sewing    Machine    Co.    v. 

Saxon 853,  854,  865,  866 

Whitehead  v.  Anderson 571 

v.  Burgess  249,  255 

17.  Kennedy   736,  741 

v.  Tattersall   877,  878 

Whitehill  v.  Wilson  816 

Whiteley  v.  Edwards 94 


PAGE. 

Whiteley's  Case   676,  711 

Whitmore  v.  Cope 175 

Whiteside  v.  Tall   285 

Whitesides  v.  Hunt 406,  409 

i  Whitfield  v.  Levy 633 

| v.  Riddle    431 

!  Whithed  v.  J.  Walter  Thompson 

Co 508 

Whiting  17.  Daniel 864 

v.  Dugan    50 

Whitlock  v.  Heard 707 

v.  Manciet 853 

Whitman  v.  Citizens'  Bank 780 

17.  Ewin     439 

17.  Merrill    716 

Whitmarsh  v.  Hall 67 

r.  Walker    173 

Whitmer  v.  Frye ,  861,  872 

Whitmore  17.  Nickerson 872 

I v.  San  Francisco  Sav.  Union.  775 

Whitnall  v.  Bigham 786 

Whitney  17.  Am.  Ins.  Co 256,  267 

v.  Boardman    653 

17.  Clary    193 

v.  Cochran    452 

17.  Cook  - 834 

| v.  Dutch   66 

v.  Hay   467 

v.  Kirtland    452 

v.  Railroad  Co 301 

17.  Spencer   557 

17.  Whitney    415 

Whitney  Arms  Co.  v.  Barlow ....    142 

Whitsett  17.  Clayton   832 

Whittaker,  Ex  parte 679 

Whittaker  17.  Belvidere  Co 263 

v.  Kershaw   95,     97 

Whittemore  17.  Wentworth 170 

17.  Whittemore    667 

Whitten  r.  Fitzwater  679 

Whittenton  Mfg.  Co.  v.  Staples . .   300 

301,  302 

Whittington  17.  Wright 83 

Whitwell  v.  Carter 501 

Wickes  v.  Caulk 859,  866 

Wickham  17.  Hyde  Park  Assoc...   271 

17.  Winchester  33 

Wickiser  v.  Cook   736 

Wicks  v.  Mitchell 889 

Widdle  17.  Lynam 334 

Widgery  v.  Tepper 89 

Widoe  17.  Webb 483 

Wiebler  17.  Milwaukee  Ins.  Co 176 

Wiedemann  v.  Walpole 29 

Wieland  v.  Koebick 82 

Wier  17.  Batdorf   175 

Wiessner  v.  Ayer   824 

Wiest  v.  Garman   749 

Wigand  v.  Sichel 707 

Wiggin  17.  Bush  380 


el 


TABLE    OF    CASES. 


PAGE. 
Wiggin  v.  Tudor 815 

v.  Wiggin 253 

Wiggins  v.  Bisso  500 

r.  Day  716 

r.  Keizer   177,  199 

Wiggins  Ferry  Co.  v.  Railway  Co.  299 

Wigglesworth  v.  Dallison 316 

Wight  i:  Railroad  Co 695 

r.  Rindskopf   508 

Wightman  t>.  Wightman 98 

Wilbur  v.  Hough  389 

v.  How    470 

t .  Johnson    172 

c.  Stoepel   370 

F.  Wilbur     250 

Wilby  v.  Elgee 213,  215,  777 

Wilcox  r.  Arnold 200 

v.  Bates   631 

v.  Cline   27,     41 

c.  Jaekson    104 

v.  Stuart 847 

Wild  v.  Harris   120,  495 

v.  Howe  383 

Wilde  r.  Fort   334 

v.  Gibson  671,  672 

Wilder  v.  Adams   194 

i.  Aldrich    89 

v.  Beede    701 

v.  Cowles   108 

v.  Weakly's  Est 101 

Wildes  v.  Dudlow 171 

Wildey  v.  Bonneys 175 

c.  Collier   434,  436 

Wilding  i'.  Sanderson 573,  645 

Wildrick  v.  Swain 751 

Wiley  v.  Brown  778 

r.  Christ    850 

v.  Starbuck    141 

Wilfong  v.  Johnson   335 

Wilhelm  v.  Caylor 774 

•  v.  Fimple    335 

u.  Hardman 178 

v.  Voss    170 

Wilhite  v.  Wilhite  397 

Wilk  r.  Key 679 

Wilkerson  v.  Crescent  Ins.  Co. . .  .   660 

Wilkes  Co.  v.  Coler 147 

Wilkie  v.  Womble 787 

Wilkins  v.  Carter  22 

v.  Wilkinson    102 

Wilkins  Mfg.  Co.  v.  H.  M.  Loud 

Co 43 

Wilkinson  v.  Blount 345 

r.  Clements    326 

v.  Evans   180 

v.  Ferree 335 

r.  Flowers   775 

f.  Gibson    93 

v.  Jeffers   295 

v.  Johnson    853 


PAGE. 

Wilkinson  v.  Loudonsack 516 

v.  Stitt   405 

v.  Tousley   501 

Willan  v.  Willan   623 

Willard  v.  Eastham   892 

v.  Nelson    585 

v.  Stone    65 

v.  Taylor    28 

v.  Wood 263,  273,  276 

r.  Worsham   263,  275 

Willcox  v.  Hines    673 

Willemin  v.  Bateson 438,  452 

v.  Dunn    738 

:  Willes  c.  Carpenter  46 

j  Willesford  v.  Watson 446,  447 

Willey  v.  Hodge  643 

r.  National  Paper  Co 490 

William  Bagaley,  The   429 

Williams,  Ex  parte 401 

Williams,  In  re 880 

;  Williams  v.  Balfour  260 

I v.  Bank   430,  550 

: v.  Barkley    624 

v.  Bayley....   440,  441,  732,  747 

v.  Bemis    789 

' v.  Byrnes  26,  179 

, v.  Carle    393 

i v.  Carr    407 

| v.  Carwardine 13,     21 

v.  Cox    701 

v.  Crutcher    855 

v.  Englebrecht    488 

Williams   (Doe  d.)   v.  Evans.  458,  459 
Williams  v.  Flood 784 

v.  Fowler    270 

v.  Gait   56 

!-.  Given    716 

v.  Glenton    628 

v.  Hamilton    639 

- — -  v.  Hart    295 

v.  Hathaway  122 

v.  Hedley    504 

v.  Helme    286 

v.  Hugunin    892 

v.  Huntington   291 

v.  Ingersoll   281,  285 

v.  Insurance  Co 130 

v.  Jensen 193 

v   Jordan    179 

v.  King 891 

■  v.  Lilley   533 

■  v.  Lyman    385 

v.  Mabee    69 

v.  Merle 565 

■  v.  Moor  60 

v.  Morris    565 

v.  Naftzger   261,  262 

! .  v.   Nichol    252 

i ■  v .   Noisseux    335 

I v.  North  German  Ins.  Co.  .  642 


TABLE    OF    CASES. 


cli 


PAGE. 

Williams  v.  Oats   397 

v.   Owen    631 

v.  Paine    427 

v.   Powell    743 

1  v.   Protheroe    457 

v.  Robbins    110 

v.  Robinson   180 

■  v.  Rogers   170 

'  v.   Sapieha    101 

v.  Scott  390 

v.  Spurr    683 

v.   Urmston    889 

v.    Vanderbilt    543 

•  v.  Van  Tuyl   851 

17.   Wentworth    99 

v.  West  Chicago  Ry.  Co ... .  14 

Williams,  app.,  Wheeler,  resp . . .  784 

Williams  v.   Williams 728,  744 

Williams'  Case 686,  696 

Williamson  17.  Baley   486 

>  v.    Cline     889,  890 

v.  Gihon   469 

v.  Monroe   390 

v.  Railroad  Co...   437,  721,  724 

v.   Raney    698 

■  v.  Russell   716 

v.    Tyson 701 

p.  Yager   241 

Williamson-Stewart   Co.    it).    Sea- 
man        256,  267 

Williamsport  v.  Commonwealth. .  147 

Willing  17.  Peters 199 

Willingale  v.  Maitland 232 

Willis  v.  Compress  Co 439 

v.    Henderson    634 

v.  Hoover   501 

v.   Jenkins    914 

v.   Roberts    89 

17.    Thorp    913 

V.   Patteson    430 

Willmott   v.    Barber -. . .  791 

Willoughby  17.  Lawrence   301 

v.    Moulton    721 

Wills  v.  Carpenter 44 

17.    Wilson    857,  860 

Willson  v.   Binford    877 

•  17.  Love   632 

v.  Mayor  633 

v.    Owen    498,  500 

Wilmot  v.  Lyon    679 

Wilmoth  v.   Hensel    23 

Wilson  v.  Bevans 256 

V.  Bryant   270 

•  v.   Buell    876 

v.  Burke   344 

•  17.  Burr   200 

'  «.   Carpenter    697 

17.    Cline    28 

17.  Clonbroek  Co 196 

v.  Cox 664 

17.   Daniel    393 


PAGE. 

Wilson  17.  Drumrite 630 

r.  Ensworth  411 

('.  Finch-Hatton 673 

r.    First  Presbyterian  Church 

249,  255 

r.  Gerhardt  299 

v.    Giddings    631 

v.  Hart    301 

17.   Hayes    856,  873 

v.    Henderson     856 

v.  Hentges    171 

v.  Hill   659 

17.   Hundley 704,   706,  709 

=  17.   Insurance   Co 617 

r.  King   91 

17.  Lawrence   653 

— — ■  17.  Lewiston  Mill  Co 182 

-  v.  Lloyd 227,  384 

■  v,  Lunt   256 

v.  Miller  586 

— v.    Monticello    661 

17.  Powers    205,  206 

r.    Railroad    Co 53,  604 

p.   Randall    610 

v.    Rankin    489 

v.   Ray    176,  504 

r.   Stilwell..   269,   270,  274,  285 

r.   Stump    27 

v.  Tibbetts    384 

17.  Wall    470 

v.  West  Hartlepool  Ry.  Co.  147 

v.  Wilson 317,  391,  394 

395,    415,    416,    418,  623 

Wilson's    Appeal 734 

Wilson's  Gdn.  v.  Wilson 82 

Wilt   17.    Ogden    549 

-  r.  Welsh   84 

Wilton  v.  Chambers  800 

17.   Eaton    193,  194 

Wilton  &  Co.  17.  Osborn 764 

Wimar  17.  Overseers 210 

Winans   r.  Huston    833 

p.   Wilkie    260 

Winchester  17.  Glazier 573 

v.   Howard    113 

17.   Newton    332 

Winchester   Co.  17.  Veal    496 

Windhill  Local  Board  v.  Vint ...  440 

442 

Windle  17.  Hughes 262 

Windram  17.  French 700 

Windsor  r.  McVeigh 430 

Winfleld  !>.  Henning 301 

Winfield  Bank  17.  Croco 747 

Wingate   v.  Hamilton 666 

v.  King 721 

Winn  v.  Albert 794 

17.  Bull 47 

l\  Lippincott  Investment  Co.  257 

v.  Thomas 378 

Winne  V.  Reynolds. 664 


clii 


TAHLE    OF    CASES. 


PAGE. 

Winnebago  Mills  v.  Travis 22 

Winninghoff  v.  Witting 259 

Winnipisiogee  Paper   Co.   v.  New 

Hampshire  Land  Co 854 

Winpenny  t .  French 436 

Winslow  ;;.  Jones 855,  857 

Winsor  r.  German  Soc 448 

Winter  v.  Kansas  Citv  Ry.  Co . .  .  812 

813 

v.  Pool 868 

Wintermute,   Exs.   of,  v.   Exs.    of 

Snyder 749 

Winterport,  etc.,  Co.   v.  The  Jas- 
per     39 

Winters  v.  Hub  Mining  Co.  .  .121,  263 

Winward  v.  Lincoln. 407,  408,  508,  512 

Wirebach  v.  Bank 102 

Wise  v.  Fuller 263,  265,  272 

v.  Grant  716 

Wiseman  r.  Beake 757 

Wiser  p.  Lawler 389,  676 

r.  Lockwood   68 

Wiswall  t\  Hall 634 

v.  McGowan 628 

v.  Plank  Road  Co 135 

Withee  v.  Brooks 120 

Withers  v.   Atkinson 848,  851 

v.  Edwards 377 

v.  Ewing 210 

v.  Reynolds. . .  325,  328,  330,  339 

v.  Richardson 172 

Withersby  v.  Sleeper 28 

Witherwax  v.  Riddle 749 

Withrow  v.  Commonwealth 557 

Witt  v.  Corcoran 447 

Witters  v.  Sowles 892 

Witty  f.  Southern  Pacific  Co 205 

Witz  v.  Fite S75 

Wolcott  v.  Heath 40S 

v.  Mount    653,  654 

Wolf  v.  Goddard 161 

v.  Marsh 361 

r.  National   Bank 406,  408 

v.  Schlacks   342,  345 

v.  Wolf  175 

Wolfe  v.  Howes 548 

v.  McClure 405 

v.  Matthews 808 

Wolferman  v.  Bell 854,  874 

Wolff  v.  Liverpool  Ins.  Co 448 

v.  Pickering   334,  346 

Wolford  r.   Powers 193,  195 

Wolke  v.  Fleming 257 

Wollmer  r.  Lehman 679 

Wollums  r.  Horsley 753 

Wolverhampton  Banking  Co.,  Ex 

parte    443 

Wolverton  v.  Davis 171 

Wolz  v.  Parker 204 


PAGE. 

Womack  v.  Austin 737 

v.  Loran   434 

v.  MeQuarry  531,  532 

Wonderly  v.  Booth 121,  122 

Wonsettler  r.  Lee 789 

Wood  v.  Abrey 749,  751 

v.  Amory   725 

v.  Barker   379 

v.  Boynton   607 

r.  Calnan   41 

v.  Cincinnati  Co 585 

v.  Coman    622 

v.  Corcoran 170 

v.  Davis   180 

v.  Downes 453,  455,  460 

v.  Fenwiek 61,  74 

v.  Fleet 175 

v.  Gamble 877 

v.  Griffith  664 

v.  Lake   515 

r.  McCann    436 

v.  Manchester,  etc.,  Co 377 

v.  Mayor    286 

v.  Moriarty   258,  271,  274 

v.  Partridge  281 

r.  Boeder   688 

v.  Scarth    634 

v.  Sheldon 654 

v.  Steele   858,  861,  871 

v.  Tate   166 

v.  Terry   88 

v.  Wood   501 

Wood's  Appeal 294 

Wood's  Ex.  v.  Devers 734 

Wood  Machine  Co.  v.  Smith 51 

Woodbury  v.  Allegheny,  etc.,  Co.  856 

r.  Blair 122 

r.  Gardner  791 

v.  Luddy 666 

Woodbury,    etc.,    Co.    v.    Louden- 

slager 389 

Woodcock  v.  Bostic 259,  260,  263 

Wooden  v.  Perkins 891 

Woodfolk  v.  Blount 753 

Woodhull   r.  Longstreet 175 

Woodman  v.  Innes 377,  437 

Woodruff  v.  Berry 470 

v.  Dobbins    832 

v.  Graddy 607 

v.  Hinman   483 

v.  McGehee   112,  115 

v.  Saul    378 

v.  Wentworth  ....  376,  377,  439 

Woods  v.  Armstrong 399,  515 

v.  Elliott    776 

v.  Evans   50 

v.  Hall    684 

v.  Hilderbrand  . . .  845,  848,  850 


TABLE    OF    CASES. 


cliii 


PAGE. 

Woods  v.  Wilder 430 

Woodstock  Iron  Co.  v.  Richmond 
and  Dansville  Extension  Co. . . .   377 
389,  437 
Woodward  r.  Aston 846 

v.  Atwater   880 

r.  Barnes   87 

v.  Griffiths,  etc.,   Co 25 

v.  Roberts 798 

v.  Smith   197 

v.  Stearns 402 

Woodworth  v.  Anderson 870 

v.  Bank  of  America 864 

v.  Bennett 498,  500 

Wooldridge  v.  Stern 177 

Woolf  v.  Woolf 85 

Woolfe  r.  Home 109 

Woolf  oik  v.   Bank  of  America. .   864 

867 

Wooliscroft  v.  Norton 301 

Woolley  v.  Gaines 101 

Woolsey  v.  Funke 573 

Woonsocket   Rubber   Co.   v.   Loe- 

wenberg 717 

Wooton  v.  Hinkle 470 

Worcester  v.  Eaton 488 

Worcester  Mfg.  Co.  v.  Waterbury 

Brass  Co 607 

Woorden  v.  California  Fig  Syrup 

Co 419 

Worden  v.  Houston 834 

v.  Railroad  Co 595 

v.  Sharp   789 

Work  v.  Beach 52 

Workingmen's  Bkg.  Assn.  v.  Rau- 

tenberg   400 

Workman  v.  Campbell 856 

v.  Wright 443 

Works  v.  Hershey 52 

World  Pub.  Co.  v.  Hull 346 

Worley  v.  Tuggle 634 

Wormouth  v.  Hatch 261 

Worrall  v.  Gheen 868 

v.  Jacob   415 

v.  Munn  174 

Worrell  v.  Forsyth 827,  836 

Worth  v.  Case 56,  193 

Worthington,  Re 440 

Worthington  v.  Beeman 50 

v.  Cowles   654 

V.  Curtis    500,  910 

v.  Gwin   326,  332 

. v.  Insurance  Co 428 

Worthy  v.  Jones 176 

Wray  v.  Milestone 829 

Wrayton  v.  Naylor 334 

Wright  v.  Arnold 83,     88 

v.  Brown 679 


PAGE. 

Wright  v.  Buck   856 

v.  Cabot   115 

v.  Cain 461 

v.  Chard 895 

v.  Davenport   008 

r.  Evans   878 

v.  Fisher 104 

v.  Haskell    340 

v.  Inshaw   865 

v.  Kelley 850,  863 

v.  Leonard   87 

v.  McPike  584 

v.  Monarch      Investment 

Building  Society 447 

v.  Mutual  Benefit  Assoc ....   289 

v.  Pipe  Line  Co 142,  144 

v.  Proud  745 

v.  Puckett   791 

v.  Remington 729 

v.  Reusens   550 

v.  Rindskopf   440 

i".  Snowe 85 

v.  Terry   256 

v.  Tinaley 467 

v.  Vanderplank . .  .  722,  740,  769 

v.  Vermont  Life  Ins.  Co. . .   248 

252 

v.  Waller   101 

v.  Wright 786,  859 

v.  Young 666 

Wright's  Case 675,  698,  711 

Wright's  Est.,  Be 50 

Wrigley  v.  Swainson 393 

Wrisley  Co.  v.  Iowa  Soap  Co 419 

Wroten's  Assignee  v.  Armat 404 

Wulff  v.  Jay 386 

Wulschner  v.  Ward 608 

Wunderlich  v.  Sadler 262 

Wyatt  v.  Hertford 116 

Wyche  v.  Green 638 

Wyckoff  r.  Johnson 869 

Wycombe  Ry.  Co.  v.  Donnington 

Hospital   572 

Wylie  v.  Gamble 708 

v.  Missouri  Pac.  Ry.  Co 866 

Wylson  v.  Dunn 182 

Wyman  v.  Yoemans 861 

Wynn  v.    Shropshire  Union,  etc., 

Co 514 

Wynne's  Case 45 

Wyrick  v.  Missouri,  etc.,  Ry.  Co .  .  495 
Wythes  v.  Labouchere 589,  660 

X. 

Xenos  v.  Wickham   6,  55,  796 

Y. 

Yakima  Bank  v.  Knipe 874 

Yale    v.   Curtiss 10 


cliv 


TABLE    OF    CASES. 


PAGE. 
Yale  v.  Dederer 892 

v.   Edgerton    170 

Yale  Gas  Stove  Co.  v.  Wilcox...   380 

676 
Yarborough  r.  Bank  of  England. .   167 

Yard   v.   Yard    768 

Yates,  Ex  parte 862,  863 

Yates    v.    Robertson 436 

Yauger  c.  Skinner   102 

Yazoo,  etc.,  R.  Co.  v.  Fulton....   834 

Yeager  v.  Musgrave   853 

Yeagley  v.  Webb 585 

Yeamans    p.    James 453 

736,  741 

Yearly  v.  Long 253 

Yeaton  v.   Brown 879 

Yeiser   v.   United   States    Board 

Co   389 

Yelland's    Case    548 

Yellow     Poplar    Lumber     Co.     v. 

Daniel   392 

Yenner  v.   Hammond 633 

Yeoman  v.  Lasley 392,  691 

Yeomans  v.  Chatterton   380 

v.   Williams    795 

Yerkes  v.  Wilson   684 

Yerrington   v.    Green 543 

Yock  r.  Insurance  Co 583 

Yocum   v.   Smith 856,  866 

Yonge   v.    Hooper 736 

York  t\  Hinkle 729 

v.    Janes    860 

Yorke  v.  Conde  595 

Yost  r.  Dwelling-house  Ins.  Co..   449 

v.     Watertown     Steam    En- 
gine Co 864 

Youle   r.  Richards    630 

Young  v.  Arintze    721 

r.   Clark    753 

■!'.  Currier  860 

r.    Frost    753 

v.   Grote   868 

v.  Hawkins    256,  262,  271 

v.  Hopkins    696 

r.    Hughes    392 

v.   Jones    832 

v.  Kinney   879 


PAGE. 

Young  c.  Leary 536 

v.   Lehman    868 

r.  Mitchell    431 

v.  Paul   666 

v.  Power  816 

v.    Shriner    295 

— — ■  i\    Stevens    102 

v.    Trainor    388 

v.  Ward    867 

v.  Wright   854 

■  v.    Young    218,  219 

Young  &  Co.  v.  Mayor  of  Leam- 
ington      167 

Young  Men's  Assoc,  v.  Croft.  .  .  .  265 
Y.   M.    C.   A.    Gymnasium   Co.   v. 

Bank 295 

Youngblood  i:  Birmingham  Trust 

Co 399 

Youngs   i'.   Trustees 275 

Yundt  v.  Roberts   484 

Z. 

Zabriskie  r.  Railroad  Co 135 

v.  Smith   456 

Zaleski  v.  Clark  51 

Zalesky  v.  Home  Ins.  Co 448 

Zang  v.  Adams   690 

Zebley  v.  Sears   666 

Zeigler  v.  Hughes   736 

v.   Mize    452 

■  v.   Sprenkle    872 

Zeis   v.  Potter   695 

Zeph,    Re 91 

Ziechen  v.  Smith 354 

Zimmer  v.  Railroad  Co 54 

v.    Sennott    252 

-  v.   Settle    414 

Zimmerman   v.   Bitner 733,  745 

v.  Judah   857 

r,    Rote    865,  868 

Zinc  Carbonate  Co.  v.  Bank 130 

Zindorf  Co.  v.  Western  Co 448 

Zoebisch  v.  Von  Minden....   199,  215 

Zoeller  v.  Riley  716 

Zouch  v.  Parsons   62 

Zuck  v.  McClure  361,  367 


*PRINCIPLES  OF  CONTRACT.        H 


CHAPTEE  I. 

Agreement,  Proposal,  and  Acceptance. 

PAGE. 

PAGE. 

Nature  of  contract,                                1 

Other  kinds  of  general  proposal, 

24 

Definitions,                                               2 

Contract    by    indirect    communica 

,- 

Agreement:    nature  of   consent   re- 

tion, 

26 

quired,                                                    3 

Revocation  of  offer, 

27 

Obligation,                                             4 

Determination  of  offer, 

29 

Ways  of  declaring  consent,                 5 

Communication  of  revocation, 

30 

Promise,                                                     6 

Dickinson  v.  Dobbs  considered, 

32 

Contract,                                                   7 

Can  there  be  double  acceptance? 

33 

Void  agreements,                                    7 

Communication   of   acceptance, 

35 

Voidable  contracts,                                 8 

Contracts  by  correspondence, 

37 

Rules    as   to   proposal   and   accept- 

Artificial theories  on  the  subject, 

38 

ance,                                                       9 

State  of  English  authority, 

39 

Express    and    tacit    contracts,    and 

Effect  of  death  of  proposer, 

42 

quasi-contracts,                                    9 

Certainty  of  acceptance, 

43 

Proposals  to  unascertained  persons 

Agreements    in    terms    where    cor 

i- 

(contracts    by    offer    of    reward, 

sent  not  final, 

46 

&c),                                                  13 

Certainty  of  terms  of  agreement, 

48 

Discussion  of  cases,                              15 

Illusory  promises, 

49 

Difficulties  considered,                         19 

Construction  of  tacit  acceptances, 

52 

Theory    of    floating    obligation    in- 

Promises by  deed  may  bind  with 

.- 

admissible,                                          21 

out  acceptance, 

55 

The  law  of  Contract  may  be  described  as  the  endeavour  of  the  State, 
a  more  or  less  imperfect  one  by  the  nature  of  the  case,  to  establish  a 
positive  sanction  for  the  expectation  of  good  faith  which  has  grown 
up  in  the  mutual  dealings  of  men  of  average  right-mindedness. 
Accordingly  the  most  popular  description  of  a  contract  that  can  be 
given  is  also  the  most  exact  one,  namely  that  it  is  a  promise  or  set  of 
promises  which  the  law  will  enforce.  The  specific  mark  of  contract 
is  the  creation  of  a  right,  not  to  a  thing,  but  to  another  man's  conduct 
in  the  future.  He  who  has  given  the  promise  is  bound  to  him  who 
accepts  it,  not  merely  because  he  had  or  expressed  a  certain  intention, 
but  because  he  so  expressed  himself  as  to  entitle  the  other  party  to 
rely  on  his  acting  in  a  certain  way.  This  is  apt  to  be  obscured  in 
common  cases,  but  is  easily  seen  to  be  true.  Suppose  that  A.  agrees 
to  sell  to  B.  a  thing  of  which  not  he  but  C.  is  the  true  owner.  C.  gives 
the  thing  to  B.     Here,  though  B.  has  got  the  thing  he  wanted,  and 

[1] 


2  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

on  better  terms  than  he  expected,  A.  has  not  kept  his  promise;  and, 
if  the  other  requisites  of  a  lawful  contract  were  present  as  between 
himself  and  B.,  he  has  broken  his  contract.  The  primary  questions, 
then,  of  the  law  of  contract  are  first,  what  is  a  promise?  and  next, 
what  promises  are  enforceable? 

2]  *The  importance  and  difficulty  of  the  first  of  these  questions  de- 
pend on  the  fact  that  men  can  justly  rely  on  one  another's  intentions, 
and  courts  of  justice  hold  them  bound  to  their  fulfilment,  only  when 
they  have  been  expressed  in  a  manner  that  would  convey  to  an  indif- 
ferent person,  reasonable  and  reasonably  competent  in  the  matter  in 
hand,  the  sense  in  which  the  expression  is  relied  on  by  the  party 
claiming  satisfaction.  Judges  and  juries  stand  in  the  place  of  this 
supposed  indifferent  person,  and  have  to  be  convinced  that  the  deal- 
ings in  the  particular  case  contained  or  amounted  to  the  promise 
alleged  to  have  been  made  and  relied  upon. 

Our  first  business  must  therefore  be  to  separate  and  analyse  the 
elements  which,  generally  speaking,  must  concur  in  the  formation 
of  a  contract.  A  series  of  statements  in  the  form  of  definitions, 
though  necessarily  imperfect,  may  help  to  clear  the  way. 

1.  Contract.  Every  agreement  and  promise  enforceable  by  law  is  a 
contract. 

2.  Agreement.  An  agreement  is  an  act  in  the  law  whereby  two  or 
more  persons  declare  their  consent  as  to  any  act  or  thing  to  be  done 
or  forborne  by  some  or  one  of  those  persons  for  the  use  of  the  others 
or  other  of  them  (a). 

3.  Expression  of  consent.    Such  declaration  may  take  place  by 

(a)  the  concurrence  of  the  parties  in  a  spoken  or  written  form  of 

words  as  expressing  their  common  intention,  or 

(b)  an  offer  made  by  some  or  one  of  them,  and  accepted  by  the 

others  or  other  of  them. 

4.  Promise  and  offer.  The  declaration  of  any  party  to  an  agreement, 
so  far  as  relates  to  anything  to  be  done  or  forborne  on  his  part, 
3]  *is  called  a  promise.  The  expression  of  a  person's  willingness  to 
become,  according  to  the  terms  expressed,  a  party  to  an  agreement,  is 
called  an  offer  or  proposal. 

An  offer  may  become  a  promise  by  acceptance,  but  is  not  a  promise 
unless  and  until  it  is  accepted  (&). 

(a.)     This      statement      has      been  (6)  This  does  not  imply  that  every 

adopted   by   Kekewich   J.      Foster   v.  offer    is    revocable    until    acceptance. 

Wheeler    (1887)    36  Ch.  D.  695,  698,  How  far  that  is  so  is  a  question  not 

57  L.  J.  Ch.  149.  of  definition  but  of  substantive  law. 


CONSENT.  3 

5.  Void  agreement.  An  agreement  which  has  no  legal  effect  ia  said 
to  be  void.  An  agreement  which  ceases  to  have  legal  effect  is  said 
to  become  void  or  to  be  discharged. 

6.  Voidable  contracts.  An  agreement  is  said  to  be  a  voidable  contract 
if  it  is  enforceable  by  law  at  the  option  of  one  or  more  of  the  parties 
thereto  but  not  at  the  option  of  the  other  or  others. 

We  proceed  to  develop  and  explain  these  statements,  so  far  as 
appears  convenient  at  the  outset  of  the  work. 

1.  Definition  of  agreement  —  Nature  and  scope  of  consent.  The  first 
and  most  essential  element  of  an  agreement  is  the  consent  of  the  parties. 
There  must  be  the  meeting  of  two  minds  in  one  and  the  same  intention. 
But  in  order  that  their  consent  may  make  an  agreement  of  which  the 
law  can  take  notice,  other  conditions  must  be  fulfilled.  The  agree- 
ment must  be,  in  our  old  English  phrase,  an  act  in  the  law :  that  is, 
it  must  be  on  the  face  of  the  matter  capable  of  having  legal  effects. 
It  must  be  concerned  with  duties  and  rights  which  can  be  dealt  with 
by  a  court  of  justice.  And  it  must  be  the  intention  of  the  parties  that 
the  matter  in  hand  shall,  if  necessary,  be  so  dealt  with,  or  at  least 
they  must  not  have  the  contrary  intention.  An  appointment  between 
two  friends  to  go  out  for  a  walk  or  to  read  a.  book  together  is  not  an 
agreement  in  the  legal  sense :  for  it  is  not  meant  to  produce,  nor 
does  it  produce,  any  new  legal  *duty  or  right,  or  any  change  in  [4 
existing  ones  (c).1  Again,  there  must  not  only  be  an  act  in  the  law, 
but  an  act  which  determines  duties  and  rights  of  the  parties.    A  con- 

"  Offer  "  and  "  proposal "  are  synony-  not  legally  bound  to  have  meat  and 

mous    terms :     "  proposal  "    is    often  drink  ready  for  B.,  so  that  if  A.  had 

convenient    as    allowing    "  proposer  "  forgotten  his  invitation  and  gone  else- 

to    be    used    as    a    correlative    term  where  B.  should  have  a  right  of  ac- 

rather  than  the  legitimate  but  clumsy  tion  ?      Only    because    no    legal    bond 

"  offeror."  was    intended    by    the    parties.      It 

(c)  Nothing  but  the  absence  of  in-  might  possibly  be  said  that  these  are 

tention  seems   to   prevent   a  contract  really  cases  of  contract,  and  that  only 

from  arising  in   many   cases   of  this  social  usage  and  the  trifling  amount 

kind.     A.   asks   B.  to   dinner  and  B.  of   pecuniary   interest   involved   keep 

accepts.    Here  is  proposal  and  accept-  them  out  of  courts  of  justice.     But 

ance  of  something  to  be  done  by  B.  I  think  Savigny's  view,  which  is  here 

at   A.'s    request,    namely,    coming   to  adopted,  is  the  better  one.     There  is 

A.'s  house  at  the  appointed  time,  and  not    a    contract    which    it    would    be 

the  trouble  and  expense  of  doing  this  ridiculous   to    enforce,   but   the   orig- 

are  ample  consideration  for  A.'s  prom-  inal  proposal  is  not  the  proposal  of 

ise  to  provide  a  dinner.     Why  is  A.  a  contract. 

l  If  the  parties  intended  by  an  agreement  merely  a  joke  or  banter,  there 
wiJl  be  no  contract.  Keller  v.  Holderman,  11  Mich.  248;  McClurg  v.  Terry, 
21  N.  J.  Eq.  225;  Theiss  v.  Weiss,  166  Pa.  9;  Bruce  v.  Bishop,  43  Vt.  161; 
Nyulasy  v.  Rowan,  17  Vict.  L.  R.  5.  But  see  Armstrong  v.  McGhee,  Add. 
(Pa.)  261;  Stamper  v.  Temple,  6  Humph.  113. 


4  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

sent  or  declaration  of  several  persons  is  not  an  agreement  if  it  affects 
only  other  people's  rights,  or  even  if  it  affects  rights  or  duties  of  the 
persons  whose  consent  is  expressed  without  creating  any  obligation 
between  them.  The  verdict  of  a  jury  or  the  judgment  of  a  full  Court 
is  a  concurrent  declaration  of  several  persons  affecting  legal  rights; 
but  it  is  not  an  agreement,  since  the  rights  affected  are  not  those  of 
fhe  judges  or  jurymen.  If  a  fund  is  held  by  the  trustees  of  a  will  to 
be  paid  over  to  the  testator's  daughter  on  her  marriage  with  their 
consent,  and  they  give  their  consent  to  her  marrying  J.  S.,  this  dec- 
laration of  consent  affects  the  duties  of  the  trustees  themselves,  for  it 
is  one  of  the  elements  determining  their  duty  to  pay  over  the  fund. 
Still  it  is  not  an  agreement,  for  it  concerns  no  duty  to  be  performed 
by  any  one  of  the  trustees  towards  any  other  of  them.  There  is  a 
common  duty  to  the  beneficiary,  but  no  mutual  obligation. 

Obligation.  By  obligation  we  mean  the  relation  that  exists  between  two 
persons  of  whom  one  has  a  private  and  peculiar  right  (that  is,  not  a 
merely  public  or  official  right,  or  a  right  incident  to  ownership  or  a  per- 
manent family  relation)  to  control  the  other's  actions  by  calling  upon 
him  to  do  or  forbear  some  particular  thing  (d).  An  agreement 
5]  might  *be  defined,  indeed,  as  purporting  to  create  an  obligation; 
and  the  mark  which  distinguishes  an  obligation  so  created  from  any 
other  kind  of  obligation  is  that  its  contents  are  wholly  determined  by 
the  will  of  the  parties  (e).  But  for  the  purposes  of  English  law  we 
prefer  to  say  (what  is  in  effect  the  same)  that  an  agreement  contem- 
plates something  to  be  done  or  forborne  by  one  or  more  of  the  parties 
for  the  use  of  the  others  or  other.  The  word  use  (representing  the 
Latin  opus  through  an  Anglo-French  form  oeps,  not  usus)  is  familiar 
in  English  law-books  from  early  times  in  such  a  connexion  as  this. 

Proof  of  consent.  The  common  intention  of  the  parties  to  an  agree- 
ment is  a  fact,  or  inference  of  fact,  which,  like  any  other  fact,  has  to 
be  proved,  according  to  the  general  rules  of  evidence.  When  it  is  said, 
therefore,  that  the  true  intent  of  the  parties  must  govern  the  decision 
of  all  matters  of  contract,  this  means  such  an  intent  as  a  court  of 
justice  can  take  notice  of.  If  A.,  being  a  capable  person,  so  bears 
himself  towards  B.  that  a  reasonable  man  in  B.'s  place  would  natu- 
rally understand  A.  to  make  a  promise,  and  B.  does  take  A.'s  words 
or  conduct  as  a  promise,  no  further  question  can  be  made  about  what 

(d)  Savigny,  Syst.  i.  338-9;  Obi.  i.  pretation,  not  necessarily  a  will  com- 
4,  seq.  pletely  expressed  on  tbe  face  of  the 

(e)  That    is,    their    will    as    ascer-  transaction, 
tained  by  the  proper  rules  of  inter- 


EXPRESSION    OF    COXSENT.  5 

was  passing  in  A.'s  mind.  "  Mental  acts  or  acts  of  the  will,"  it  has 
been  well  said,  "  are  not  the  materials  out  of  which  promises  are 
made"  (/).2  Under  such  circumstances,  as  well  as  in  certain  other 
more  special  cases,  the  law  does  not  allow  a  party  to  show  that  his 
intention  was  not  in  truth  such  as  he  made  or  suffered  it  to  appear. 
But  in  the  common  and  regular  course  of  things  the  consent  to  which 
the  law  gives  effect  is  real  as  well  as  apparent. 

2.  Ways  of  declaring  consent  —  Proposal  and  acceptance.  Two  distinct 
modes  of  the  formation  of  an  agreement  are  here  specified.  It  is 
*possible,  however,  to  analyse  and  define  agreement  as  constituted  [6 
in  every  case  by  the  acceptance  of  a  proposal.  In  fact  this  is  done  in 
the  Indian  Contract  Act.  And  it  is  appropriate  to  most  of  the  con- 
tracts which  occur  in  daily  life,  buying  and  selling,  letting  and  hir- 
ing, in  short  all  transactions  which  involve  striking  a  bargain.  One 
party  proposes  his  terms;  the  other  accepts,  rejects,  or  meets  them 
with  a  counter-proposal:  and  thus  they  go  on  till  there  is  a  final  re- 
fusal and  breaking  off,  or  till  one  of  them  names  terms  which  the 
other  can  accept  as  they  stand.  The  analysis  is  presented  in  a  strik- 
ing form  by  the  solemn  question  and  answer  of  the  Eoman  Stipulation, 
where  the  one  party  asked  (specifying  fully  the  matter  to  be  con- 
tracted for)  :  That  you  will  do  so  and  so,  do  you  covenant?  and 
the  other  answered  with  the  same  operative  word:  I  covenant  (g). 
Yet  the  importance  of  proposal  and  acceptance  as  elements  of  con- 
tract has,  until  of  late  years,  been  much  more  distinctly  brought  out 
in  the  Common  Law  than  by  writers  on  the  modern  civil  law. 

Is  the  analysis  universally  applicable?  It  seems  overstrained  to  apply 
this  analysis  to  a  case  in  which  the  consent  of  the  parties  is  declared 
in  a  set  form,  as  where  they  both  execute  a  deed  or  sign  a  written 
agreement.  Some  say  that,  although  there  is  no  proposal  or  accept- 
ance in  the  final  transaction,  the  terms  of  the  document  must  have 

(f)  Langdell,  Summary,  §  180.  to  have  a  kind  of  magical  effect.    But 

(g)  No  doubt  the  formula  Spondes f  it  was  necessary  that  the  stipulator 
spondeo,  originally  the  only  binding  should  hear  the  promisor's  answer, 
one  and  almost  certainly  of  religious  Cp.  Palgrave,  Commonwealth  of  Eng- 
origin,   was   in  early  times   supposed  land,  2,  cxxxvii.  cxli. 

2  Assent  in  the  sense  of  the  law  is  a  matter  of  overt  acts,  not  of  inward 
unanimity  of  motives,  design  or  the  interpretation  of  words.  O'Donnell  v. 
Clinton,  145  Mass.  461,  463.  See  also  Stoddard  r.  Ham,  129  Mass.  383,  and 
infra,  p.  *244. 

Even  overt  acts,  when  neither  communicated  nor  done  at  the  request  of 
the  other  party,  are  insufficient.  Therefore  cross-proposals  by  mail,  made 
by  each  of  the  proposers  in  ignorance  of  the  other's  act,  do  not  constitute  a 
contract.  Tinn  v.  Hoffman,  29  L.  T.  N.  S.  271.  See  also  Madden  v.  Boston 
177  Mass.  350. 


6  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

been  settled  by  a  process  reducible  to  the  acceptance  of  a  proposal; 
but  this  hardly  suffices :  for  the  formal  instrument  has  a  force  apart 
from  and  beyond  that  of  the  negotiation  which  fixed  its  terms.  And 
it  may  well  be,  and  sometimes  is  the  case,  that  the  parties  intend  not 
to  be  legally  bound  to  anything  until  their  consent  is  formally  de- 

7  ]  clared.  In  such  a  case  it  cannot  be  said  that  the  proposal  and  *ac- 
ceptanee  constitute  the  final  and  legal  agreement.  Take  the  com- 
mon case  of  a  lease.  There  is  generally  an  enforceable  agreement, 
constituted  by  letters  or  memorandum,  before  the  lease  is  executed. 
But  the  lease  itself  is  (besides  its  effect  as  a  transfer  of  property) 
a  new  contract  or  series  of  contracts.  In  this  who  is  the  proposer  and 
who  the  acceptor?  Are  we  to  say  that  the  lessor  is  the  proposer  be- 
cause in  the  common  course  he  executes  the  lease  before  the  lessee  exe- 
cutes the  counterpart?  Or  are  we  to  take  the  covenants  severally, 
and  say  that  in  each  one  the  party  with  whom  it  is  made  is  the  pro- 
poser, and  the  party  bound  is  the  acceptor?  What,  again,  if  two 
parties  are  discussing  the  terms  of  a  contract  and  cannot  agree,  and 
a  third  indifferent  person  suggests  terms  which  they  both  accept? 
Shall  we  say  that  he  who  accepts  them  first  thereby  proposes  them  to 
the  other  ?  And  what  if  they  accept  at  the  same  moment  ?  The  case 
of  competitors  in  a  race  who,  by  accepting  rules  laid  down  by  the 
managing  committee,  become  bound  to  one  another  to  observe  those 
rules  (7i),  is  even  stronger.  The  truth  is,  as  I  venture  to  think,  that 
the  exclusive  pursuit  of  the  analytical  method  in  dealing  with  legal 
conceptions  always  leads  into  some  strait  of  this  kind,  and  if  the 
pursuit  be  obstinate,  lands  us  in  sheer  fictions. 

3.  Promise  —  Effect  of  deed  in  making  simple  promise  operative.  Except 
in  the  case  of  simultaneous  declaration  just  mentioned,  a  promise  is 
regularly  either  the  acceptance  of  an  offer  or  an  offer  accepted.  Where 
the  promise  is  embodied  in  a  deed,  there  is  an  apparent  anomaly; 
for  the  deed  is  irrevocable  and  binding  on  the  promisor  from  the 
moment  of  its  execution  by  him,  even  before  any  acceptance  by  the 
8]   promisee  (i).a     But  this  ^depends  on  the  peculiar  nature  of  a 

(h)    Clarke   v.    Earl    of   Dunraven  a  proposer  as  regards  every  one  who 

[1897]  A.  C.  59,  66  L.  J.  P.  1.     Here  comes  in  later. 

we  are  driven  to  say  that  every  party  (i)     Xenos    v.     Wickham     (1886) 

is   an  acceptor  as  regards  every  one  L.  R.  2  H.  L.  296,  323";  Doe  d.  Gar- 

who  has  sent  in  his  name  earlier,  and  nous  v.  Knight  (1826)  5  B.  &  C.  671, 

3  Many  of  the  American  cases  hold  acceptance  by  the  promisee  or  grantee  a 
prerequisite  to  the  validity  of  a  deed.  Most  of  the  numerous  decisions  relate 
to  conveyances  of  land.  See  Meigs  v.  Dexter,  172  Mass.  217;  Gray's  Cases  on 
Property,  III,  633-735;  Devlin  on  Deeds.  §  26(1.  The  English  case  of  Xenos 
r.  Wickham  is  sharply  criticised  in  Holland.  Jurisprudence  (9th  ed.),  265,  n.  1. 


PROMISE.  7 

deed  in  our  law.  The  party  who  sets  his  hand  and  seal  to  a  deed 
witnessing  his  promise  does  not,  strictly  speaking,  thereby  create  an 
obligation,  but  rather  declares  himself  actually  bound,  under  normal 
conditions.  In  fact  it  is  only  in  modern  times  that  special  defences, 
on  the  ground  of  fraud  and  the  like,  have  been  allowed  to  avail  a 
man  against  his  own  deed.  Thus  the  questions  of  consent  and  ac- 
ceptance are  not  open,  as  ordinary  questions  of  fact,  to  any  discussion. 
The  party  has  recorded  his  own  promise  in  solemn  form,  and  cannot 
require  proof  that  any  other  positive  condition  was  satisfied.  As 
matter  of  history,  the  very  object  of  the  Anglo- Norman  writing  under 
seal  was  to  dispense  with  any  other  kind  of  proof,  and  to  substitute 
the  authenticated  will  of  the  parties  themselves  for  an  appeal  to  the 
hazards  of  oath,  ordeal,  or  judicial  combat.  It  is  not  that  an  anoma- 
lous liability  is  created;  the  contracting  party  is  estopped  (special  and 
exceptional  causes  excepted)  from  disputing  that  he  is  liable.  Not 
the  promise,  but  the  deed  itself,  is  irrevocable  and  operative  without 
need  of  external  confirmation.  Whether  it  is  convenient,  on  the 
whole,  for  the  purposes  of  modern  law  to  retain  the  deed  with  its 
ancient  qualities  is  a  question  beyond  our  present  limits  (/). 

4.  Definition  of  contract  —  Restriction  of  contract  to  enforceable  agree- 
ments. The  term  contract  is  here  confined  to  agreements  enforceable 
by  law.  This  restriction,  suggested  perhaps  by  the  Eoman  distinction 
between  contractus  and  pactum,  is  believed  to  have  been  first  intro- 
duced in  English  by  the  Indian  Contract  Act.  It  seems  a  manifest 
improvement,  and  free  from  the  usual  drawbacks  of  innovations  in 
terminology,  as  it  makes  the  legal  meaning  of  the  words  more  precise 
without  any  violent  interference  with  their  accustomed  use. 

*  *5.  Void  agreements  —  Void  agreement;  distinction  of  void  and  void-  [9 
able.  The  distinction  between  void  and  voidable  transactions  is  a  fund- 
amental one,  though  it  is  often  obscured  by  carelessness  of  language. 
An  agreement  or  other  act  which  is  void  has  from  the  beginning  no 
legal  effect  at  all,  save  in  so  far  as  any  party  to  it  incurs  penal  conse- 
quences, as  may  happen  where  a  special  prohibitive  law  both  makes 
the  act  void  and  imposes  a  penalty.  Otherwise  no  person's  rights, 
whether  he  be  a  party  or  a  stranger,  are  affected.  A  voidable  act, 
on  the  contrary,  takes  its  full  and  proper  legal  effect  unless  and 
until  it  is  disputed  and  set  aside  by  some  person  entitled  so  to  do. 

29   E.   E.    355,    and   see   Pref.   to   29  (/)  The  old  law  has  been  altered  in 

E.  E.  v — ix.  [Eoberts  v.  Security  various  ways  in  many  American 
Co.  [1897]  1  Q.  B.  111].  States. 


8  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

The  definitions  of  the  Indian  Contract  Act  on  this  head  are  simpler 
in  form  than  those  given  above :  but  certain  peculiarities  of  English 
law  prevent  us  from  adopting  the  whole  of  them  as  they  stand.  It  is 
not  correct  as  an  universal  proposition  in  England  that  "  an  agree- 
ment not  enforceable  by  law  is  said  to  be  void,"  for  we  have  agree- 
ments that  cannot  be  sued  upon,  and  yet  are  recognized  by  law  for 
other  purposes  and  have  legal  effect  in  other  ways  (k). 

6.  Voidable  contracts.  The  definition  here  given  is  from  the  Indian 
Contract  Act.  The  idea  is  not  an  easy  one  to  express  in  terms  free 
from  objection.  Perhaps  it  would  be  better  to  say  that  a  voidable 
contract  is  an  agreement  such  that  one  of  the  parties  is  entitled  at 
his  option  to  treat  it  as  never  having  been  binding  on  him.  The 
Anglo-Indian  definition  certainly  covers  rather  more  than  the  ordi- 
nary use  of  the  terms.  Cases  occur  in  English  law  where,  by  the  effect 
of  peculiar  enactments,  there  is  a  contract  enforceable  by  one  party 
alone,  and  yet  we  should  not  naturally  call  it  a  voidable  contract. 
An  example  is  an  agreement  required  by  the  Statute  of  Frauds  to  be 
in  writing,  which  has  been  signed  by  one  party  and  not  by  the  other. 
10]  Here  the  party  who  has  signed  is  bound  and  *the  other  is  free. 
"  Voidable  contract "  seems  not  exactly  the  appropriate  name  for 
such  a  state  of  things.  And  it  may  even  be  said  that  a  contract  which 
has  been  completely  performed  on  one  side  is  literally  "  enforceable  by 
law  at  the  option  of  one  of  the  parties  "  only.  But  the  definition  as 
it  stands  cannot  practically  mislead  (I). 

Consideration.  Consideration  is  sometimes  treated  as  if  it  were 
among  the  necessary  elements  of  an  agreement  (to).  But  the  con- 
ception, in  the  generality  with  which  we  use  it,  combined  with  its 
restriction  within  the  limits  of  exchangeable  value  of  some  kind,  is 
peculiar  to  the  Common  Law.  It  does  not  exist  in  the  jurisprudence 
of  the  Continent  or  of  Scotland.  In  our  law  we  require,  for  the 
validity  of  an  informal  contract,  not  merely  agreement  or  deliberate 
intention,  but  bargain ;  a  gratuitous  promise  is  not  enforceable  unless 
included  in  the  higher  obligation  of  a  deed.  The  rules  as  to  pro- 
posal and  acceptance  cannot  be  fully  understood  without  bearing  this 

(7c)  See  Ch.  XIII,  below.  rather     than     of     completed     effect. 

{I)   There  is  a  similar  but  slighter  Hence  in  the  fifth  definition   I  have 

difficulty  about  the  use  of  the  word  introduced  the  word  discharged  as  an 

void.      A   contract   when   it   is   fully  alternative. 

performed  ceases  to  have  legal  effect;  (m)Thus  it  is  denned  in  the  inter- 
it   is  discharged,  but  there  is   some-  pretation   clause  of  the   Indian  Con- 
thing  harsh  in  saying  that  it  becomes  tract  Act. 
void,  a  term  suggestive  of  ineffieacy 


EXPRESS  OR  TACIT  PROPOSAL.  9 

in  mind;  still  the  requirement  of  consideration  is  a  condition  imposed 
by  positive  law  and  has  nothing  universal  or  necessary  about  it. 

Hereafter  a  fuller  discussion  will  be  given:  for  the  present  it  may 
serve  to  describe  consideration  as  an  act  or  forbearance,  or  the  promise 
thereof,  which  is  offered  by  one  party  to  an  agreement,  and  accepted 
by  the  other,  as  an  inducement  to  that  other's  act  or  promise.4 

Special  rules  governing  proposal  and  acceptance.  Proposal  and  accept- 
ance, though  not  strictly  necessary  parts  of  the  general  conception  of 
Contract,  are  in  practice  the  normal  and  most  important  element?. 
When  agreement  has  reached  the  stage  of  being  embodied  in  a  form 
of  *words  adopted  by  both  parties,  the  contents  of  the  document  [11 
and  the  consent  of  the  parties  are  generally  simple  and  easily  proved 
facts:  and  the  only  remaining  question  (assuming  the  other  require- 
ments of  a  valid  contract  to  be  satisfied)  is  what  the  words  mean. 
The  acceptance  of  a  proposal  might  seem  at  first  sight  an  equally 
simple  fact.  But  the  complexity  of  human  affairs,  the  looseness  of 
common  speech,  the  mutability  of  circumstances  and  of  men's  inten- 
tions, and  the  exchange  of  communications  between  parties  at  a 
distance,  raise  questions  which  have  to  be  provided  for  in  detail. 

We  may  have  to  consider  separately  whether  the  offer  of  a  contract 
was  made;  what  the  terms  of  that  offer  were;  whether  there  was  any 
acceptance  of  it;  and  whether  the  acceptor  was  a  person  to  whom 
the  offer  was  made. 

Communications  in  general. 

Proposal  and  acceptance  —  Express  or  tacit.  The  proposal  or  acceptance 
of  an  agreement  may  be  communicated  by  words  or  by  conduct,  or 
partly  by  the  one  and  partly  by  the  other.  In  so  far  as  a  proposal  or 
acceptance  is  conveyed  by  words,  it  is  said  to  be  express.  In  so  far 
as  it  is  conveyed  by  conduct,  it  is  said  to  be  tacit. 

It  would  be  as  difficult  as  it  is  needless  to  adduce  distinct  authority 
for  this  statement.  Cases  are  of  constant  occurrence,  and  naturally 
in  small  matters  rather  than  in  great  ones,  where  the  proposal,  or  the 

4  There  is  a  distinction  between  consideration  and  motive ;  the  motive  for 
making  a  promise  may  be  something  entirely  different  from  the  act,  or  forbear- 
ance, or  promise  thereof,  which  is  offered  and  accepted  in  exchange  for  the 
promise.  "  Nothing  is  consideration  that  is  not  regarded  as  such  by  both 
parties."  Philpot  v.  Gruninger,  14  Wall.  570,  577 ;  Thomas  v.  Thomas,  2  Q.  B. 
859,  per  Patterson,  J.;  Fire  Ins.  Assoc,  r.  Wickham,  141  U.  S.  564,  579; 
Morris  v.  Norton,  75  Fed.  Rep.  912,  926;  Peck  Colorado  Co.  v.  Stratton.  95 
Fed.  Rep.  741.  744;  Levy,  etc.,  Co.  v.  Kauffman.  114  Fed.  Rep.  170,  174; 
Sterne  v.  Bank,  70  Ind.  549,  551;  Devecmon  r.  Shaw,  69  Md.  199;  Ellis  v. 
Clark,  110  Mass.  389;  cp.  Holmes  on  the  Common  Law,  293-295. 


10  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

acceptance,  or  both,  are  signified  not  by  words  but  by  acts.5  For 
example,  the  passenger  who  steps  into  a  ferry-boat  thereby  requests 
the  ferryman  to  take  him  over  for  the  usual  fare,  and  the  ferryman 
accepts  this  proposal  by  putting  off.  In  the  case  of  obtaining  a  chattel 
from  an  automatic  machine  (where  putting  in  our  coin  is  the  accept- 
ance of  a  standing  offer  made  by  the  owner  of  the  machine)  there  is 
no  possibility  of  accepting  in  words. 

12]  *Distinction  of  tacit  from  fictitious  promises.  A  promise  made  in  this 
way  is  often  said  to  be  implied :  but  this  tends  to  obscure  the  distinc- 
tion of  the  real  though  tacit  promise  in  these  cases  from  the  fictitious 
promise  "  implied  by  law,"  as  we  shall  immediately  see,  in  certain 
cases  where  there  is  no  real  contract  at  all,  but  an  obligation  quasi  ex 
contractu,  and  in  others  where  definite  duties  are  annexed  by  rules 
of  law  to  special  kinds  of  contracts  or  to  relations  arising  out  of 
them.6  Sometimes  it  may  be  difficult  to  draw  the  line.  "  Where  a 
relation  exists  between  two  parties  which  involves  the  performance 
of  certain  duties  by  one  of  them,  and  the  payment  of  reward  to  him 
by  the  other,  the  law  will  imply  [fictitious  contract]  or  the  jury  may 
infer  [true  contract]  a  promise  by  each  party  to  do  what  is  to  be  done 
by  him"  («)-7  It  was  held  in  the  case  cited  that  an  innkeeper 
promises  in  this  sense  to  keep  his  guests'  goods  safely.  The  case  of  a 
carrier  is  analogous.  So  where  A.  does  at  B.'s  request  something  not 
apparently  illegal  or  wrongful,  but  which  in  fact  exposes  A.  to  an 
action  at  the  suit  of  a  third  person,  it  seems  to  be  not  a  proposition 

(n)  Per  Cur.  Morgan  v.  Ravey  (1861)   6  H.  &  N.  265,  30  L.  J.  Ex.  131. 

5  "  Whenever  circumstances  arise  in  the  ordinary  business  of  life  in  which 
if  two  persons  were  ordinarily  honest  and  careful  the  one  of  them  would  make 
a  promise  to  the  other  it  may  properly  be  inferred  that  both  of  them  under- 
stood that  such  a  promise  was  given  and  accepted."  Ex  parle  Ford,  16  Q.  B.  D. 
305,  307.  Cases  discussing  or  involving  the  principles  of  tacit  proposal  or 
acceptance  are  Brogden  r.  Metropolitan  Rwy.  Co.,  2  App.  Ca.  666 ;  Titcomb  v. 
United  States,  14  Ct.  CI.  263;  Miller  v.  McManis,  57  111.  126;  Hobbs  v. 
Massassoit  Whip  Co.,  158  Mass.  194;  Wheeler  v.  Klaholt,  178  Mass.  141; 
Prescott  v.  Jones,  69  N.  H.  145;  Yale  v.  Curtiss,  151  N.  Y.  598;  Royal  Ins. 
Co.  ;;.  Beatty,  119  Pa.  6;  Indiana  Mfg.  Co.  r.  Hayes,  155  Pa.  160;  Haines  r. 
Dearborn,  199  Pa.  474;  Rutledge  v.  Greenwood,  2  Desaus.  389;  Raysor  v. 
Berkeley  Co.,  26  S.  C.  610.     See  also  cases  in  the  following  notes. 

e  Montgomery  v.  Water  Works,  77  Ala.  248;  Bixby  v.  Moore,  51  N.  H. 
402;  Railway  Co.  v.  Gaffney,  65  Ohio  St.  104,  114,  118.  "An  implied  promise 
does  not  differ  from  an  express  promise,  except  in  the  evidence'  by  which  it  is 
proved."    Chilcott  v.  Trimble,  13  Barb.  502. 

An  agreement  "  is  express  none  the  less  that  it  is  expressed  by  conduct  and 
not  by  words."    Gallagher  )'.  Hathaway,  etc..  Corp.,  172  Mass.  230,  232. 

1  Nevada  Co.  r.  Farnsworth,  89  Fed.'Rep.  164,  167. 


TACIT    PROMISES.  11 

of  law,  but  an  inference  of  fact  which  a  jury  may  reasonably  find, 
that  B.  must  be  taken  to  have  promised  to  indemnify  A.  (o). 

If  A.  with  B.'s  knowledge,  but  without  any  express  request,  does 
work  for  B.  such  as  people  as  a  rule  expect  to  be  paid  for,  if  B. 
accepts  the  work  or  its  result,  and  if  there  are  no  special  circum- 
stances to  show  that  A.  meant  to  do  the  work  for  nothing  or  that  B. 
honestly  believed  that  such  was  his  intention,  there  is  no  difficulty  in 
inferring  a  promise  by  B.  to  pay  what  A.'s  labour  is  worth.  And 
this  is  a  pure  inference  of  fact,  the  question  being  whether  B.'s  con- 
duct has  been  such  that  a  reasonable  man  in  A.'s  position  would 
understand  from  it  that  B.  meant  to  treat  the  work  as  if  done  to  his 
express  order.  The  *doing  of  the  work  with  B.'s  knowledge  is  [13 
the  proposal  of  a  contract,  and  B.'s  conduct  is  the  acceptance.8  The 
like  inference  cannot  be  made  if  the  work  is  done  without  B.'s  knowl- 
edge. For  by  the  hypothesis  the  doing  of  the  work  is  not  a  proposal, 
not  being  communicated  at  the  time :  B.  has  no  opportunity  of  ap- 
proving or  countermanding  it,  and  cannot  be  bound  to  pay  for  it 
when  he  becomes  aware  of  the  facts,  although  he  may  have  derived 
some  benefit  from  the  work;  it  may  be  impossible  to  restore  or  reject 
that  benefit  without  giving  up  his  own  property  (p).9     If  A.  of  his 

(o)  Dugdale    v.   hovering    (1875)  L.  J.  Ex.  at  p.  332.     The  effect  of  a 

L.  R.  10   C.   P.   196,   44   L.  J.   C.  P.  subsequent    express    promise    to    pay 

197.  for  work   already  done   comes   under 

(p)  Cp.  dicta  of  Pollock  C.  B.  25  the  doctrine  of  Consideration. 

8  See  McColley  r.  The  Brabo,  33  Fed.  Rep.  884;  Cincinnati  R.  Co.  v. 
Bensley,  51  Fed.  Rep.  738,  742;  Travelers'  Ins.  Co.  v.  Johnson  City,  99 
Fed.  Rep.  663;  Goodnow  v.  Moulton,  51  la.  555,  557;  Day  v.  Caton, 
119  Mass.  513;  Cooper  v.  Cooper,  147  Mass.  370;  Spencer  v.  Spencer, 
181  Mass.  471;  Cicotte  v.  Church  of  St.  Anne,  60  Mich.  552;  Holmes 
v.  Board  of  Trade,  81  Mo.  137;  Fogg  v.  Portsmouth  Athenaeum,  44  N.  H. 
115;  Ashley  v.  Henahan,  56  Ohio  St.  559,  574;  Kiser  v.  Holladay,  29 
Oreg.  338;  Hertzog  v.  Hertzog,  29  Pa.  465;  Curry  v.  Curry,  114  Pa.  367; 
Gross  v.  Caldwell,  4  Wash.  670.  Services  intended  to  be  gratuitous  at  the 
time  when  they  are  rendered  cannot  subsequently  be  used  to  raise  an  implied 
promise  to  pay  for  them.  Osier  v.  Hobbs,  33  Ark.  215;  Allen  v.  Bryson, 
67  la.  591;  Collins  v.  Martin,  43  Kan.  1S2 ;  Johnson  v.  Kimball,  172 
Mass.  398;  Potter  v.  Carpenter,  76  N.  Y.  157;  Taylor  v.  Lincumfelter,  1 
Lea,  83,  even  though  the  peTson  rendering  them  was  moved  so  to  do  by 
reason  of  a  state  of  facts  mistakenly  supposed  to  exist.  Coleman  v.  United 
States,  152  U.  S.  96;  Jones  County  v.  Norton,  91  la.  680;  St.  Joseph's  Orphan 
Asylum  v.  Wolpert,  80  Ky.  86;  Cole  v.  Clark,  85  Me.  336;  Newberry  r. 
Creedon,  146  Mass.  134;  Forster  v.  Green,  111  Mich.  264;  Boardman  v.  Ward, 
40  Minn.  399;  Albany  v.  McNamara,  117  N.  Y.  168.  But  see  contra,  Thomas 
v.  Thomasville  Club,  121  N.  C.  238.  See  further  Keener  on  Quasi  Contracts, 
317  and  Re  Rhodes,  44  Ch.  D.  94;  Payne's  Appeal,  65  Conn.  397 ;  Frailey's  Adm. 
V.  Thompson,  (Ky.)  49  S.  W.  Rep.  13;  Graham  v.  Stanton,  177  Mass.  321; 
Sceva  r.  True,  53  N.  H.  627;  Pickett  v.  Gore,  (Tenn.  Ch.)  58  S.  W.  Rep.  402. 
Cp.  Anderson  r.  Eggers,  61  N.  J.  Eq.  85. 

9  Thompson  Mfg.  Co.  v.  Hawes,  73  L.  T.  369 ;  Mann  r.  Farnum,  17  Col.  427 ; 
Davis  v.  School  District,  24  Me.  349,  351 ;  Ulmer  v.  Farnsworth,  80  Me.  500 ; 


12  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

own  motion  sends  goods  to  B.  on  approval,  this  is  an  offer  -which  B. 
accepts  by  dealing  with  the  goods  as  owner.  If  he  does  not  choose  to 
take  them,  he  is  not  bound  to  return  them;  nor  indeed  is  he  bound 
to  take  any  active  care  of  them  till  A.  reclaims  them  (q). 

Duties  quasi  ex  contractu  in  English  law.  But  it  does  not  follow  that 
because  there  is  no  true  contract,  there  may  not  be  cases  falling  within 
this  general  description  in  which  it  is  just  and  expedient  that  an  obli- 
gation analogous  to  contract  should  be  imposed  upon  the  person  receiv- 
ing the  benefit.  In  fact  there  are  such  cases  :10  and  as  the  forms 
of  our  common  law  did  not  recognize  obligations  quasi  ex  contractu 
in  any  distinct  manner,  these  cases  were  dealt  with  by  the  fiction  of 
an  implied  previous  request,  which  often  had  to  be  supplemented 
(as  in  the  action  for  money  had  and  received)  by  an  equally  fictitious 
promise.  The  promise,  actual  or  fictitious,  was  then  supposed  to 
relate  back  to  the  fictitious  request,  so  that  the  transaction  which  was 
the  real  foundation  of  the  matter  was  treated  as  forming  the  considera- 
tion in  a  fictitious  contract  of  the  regular  type.  Here,  as  in  many 
other  instances,  the  law  was  content  to  rest  in  a  compromise  between 
14]  the  forms  of  pleading  and  the  convenience  *of  mankind.  These 
fictions  have  long  ceased  to  appear  on  the  face  of  our  pleadings,  but 
they  have  become  so  established  in  legal  language  that  it  is  still  neces- 
sary to  understand  them  (r). 

Under  Indian  Contract  Act.  The  Indian  Act  provides  for  matters  of 
this  kind  more  simply  in  form  and  more  comprehensively  in  sub- 
stance than  our  present  law,  by  a  separate  chapter,  entitled  "  Of  cer- 
tain Relations  resembling  those  created  by  Contract"  (ss.  68 — 72,  cp. 
s.  73).  The  term  constructive  contract  might  properly  be  applied  to 
these  obligations ;  it  would  be  exactly  analogous  to  "  constructive  pos- 

{q)  It  is  prudent,  however,  to  in-  (r)  For  details  see  notes  to  Lamp- 
form  the  sender  that  the  goods  sent  leigh  v.  Brathwait  in  1  Sm.  L.  C. 
without  request  are  at  his  disposal  and  Osborne  v.  Rogers,  1  Wins. 
and  risk.  Saund.  357. 

O'Conner  v.  Hurley,  147  Mass.  145;  Holmes  v.  Board  of  Trade,  81  Mo.  137; 
Bartholomew  v.  Jackson,  20  Johns.  28 ;  Hart  v.  Norton,  1  McCord,  22 ;  and  see 
Limer  r.  Traders  Co.,  44  W.  Va.  175.  Contra,  is  Chase  r.  Corcoran,  106  Mass. 
286;  with  which  cp.  Earle  v.  Coburn,  130  Mass.  596;  Skinner  r.  Tirrell,  159 
Mass.  474. 

10  See  Louisiana  r.  Mayor,  109  U.  S.  285 ;  Nevada  Co.  v.  Farnsworth,  89  Fed. 
Rep.  164;  Northern  Bank  v.  Hoopes,  98  Fed.  Rep.  935,  938;  Sceva  v.  True, 
53  N.  H.  627;  People  v.  Speir,  77  N.  Y.  144,  150;  Columbus,  &c,  Ry.  Co.  r. 
Gaffney,  65  Ohio  St.  104,  113;  Hertzog  v.  Hertzog,  29  Pa.  465,  467.  Cp.  Mil- 
ford  v.  Commonwealth,  144  Mass.  64. 


ACTING    UPON    REQUEST.  13 

session  "  and  "  constructive  notice."  But  it  has  never  come  into 
use.  The  term  Quasi-contract  is  now  current  in  America  and  recog- 
nized in  England. 

Performance  of  conditions,  &c,  as  acceptance.  A  corollary  from  the  gen- 
eral principle  of  tacit  acceptance,  which  in  some  classes  of  cases  is  of 
considerable  importance,  is  thus  expressed  by  the  Indian  Contract 
Act  (s.  8):  — 

"  Performance  of  the  conditions  of  a  proposal,  or  the  ac- 
ceptance of  any  consideration  for  a  reciprocal  promise  which 
may  be  offered  with  a  proposal,  is  an  acceptance  of  the  pro- 
posal." u 

Offers  by  advertisement.  This  rule  contains  the  true  legal  theory  of 
offers  of  reward  made  by  public  advertisement  for  the  procuring  of 
information,  the  restoration  of  lost  property,  and  the  like.  On  such 
offers  actions  have  many  times  been  brought  with  success  by  persons 
who  had  done  the  things  required  as  the  condition  of  obtaining  the 
reward. 

It  appears  to  have  been  once  held  that  even  after  performance  an 
offer  thus  made  did  not  become  a  binding  promise,  because  "  it  was 
not  averred  nor  declared  to  whom  the  promise  was  made  "  (s).  But 
the  established  modern  doctrine  is  that  there  is  a  contract  with  any 
person  who  *performs  the  condition  mentioned  in  the  advertise-  [15 
ment  (t).  That  is,  the  advertisement  is  a  proposal  which  is  ac- 
cepted by  performance  of  the  conditions.  It  is  an  offer  to  become 
liable  to  any  person  who  happens  to  fulfil  the  contract  of  which  it  is 
the  offer  (u).12     Until  some  person  has  done  this,  it  is  a  proposal 

(s)  Nov,  11;  1  Rolle  Ab.  6  M.  pi.  1.  too    Garlill   v.    Carbolic    Smoke   Ball 

(t)  Williams  v.  Carwardine  (1833)  Co.    [1893]    1  Q.  B.  256,  per  Lindley 

4  B.  &  Ad.  621,  38  R.  R.  328.  L.J.  at  p.  262,  per  Bowen  L.J.  at  p. 

(u)  PeT  Willes  J.  Spencer  v.  Hard-  268,  62  L.  J.  Ch.  257. 

ing    (1870)    L.  R.  5  C.  P.  563.     See 

U  As  to  the  distinction  between  unilateral  and  bilateral  contracts  in  the 
matter  of  acceptance,  see  post,  p.  22,  n.  21. 

12  The  performance  of  an  act,  for  the  doing  of  which  a  reward  is  offered, 
gives  rise  to  a  unilateral  contract. 

The  promise  of  a  reward  "  was  but  an  offer  until  its  terms  were  complied 
with.  When  that  was  done  it  thenceforth  became  a  binding  contract,  which 
the  offerer  was  bound  to  perform  his  share  of."  Cummings  v.  Gann,  52  Pa. 
St.  484,  490. 

"  Until  something  is  done  in  pursuance  of  it,  it  is  a  mere  offer  and  may  be 
revoked.  But  if,  before  it  is  retracted,  one  so  far  complies  with  it  as  to  perform 
the  labor,  for  which  the  reward  is  stipulated,  it  is  the  ordinary  case  of  labor 
done  on  request,  and  becomes  a  contract  to  pay  the  stipulated  compensation." 


14  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

and  no  more.  It  ripens  into  a  promise  only  when  its  conditions  are 
fully  satisfied.  As  Sir  W.  Anson  has  well  put  it,  "  an  offer  need  not 
be  made  to  an  ascertained  person,  but  no  contract  can  arise  until  it 
has  been  accepted  by  an  ascertained  person"  (a;).13 

In  the  same  manner  each  bidding  at  a  sale  by  auction  is  a  proposal ; 
and  when  a  particular  bid  is  accepted  by  the  fall  of  the  hammer  (but 

(x)   Principles  of  the  English  Law  or    invitation   to    all   men   to   whose 

of  Contract,  p.  39,  9th  ed.     We  have  knowledge    it   comes.      The    Germans 

no  special  term  of  art  for  a  proposal  call  it  Auslobung. 
thus  made  by  way  of  general  request 

Wentworth  v.  Day,  3  Met.  352,  354;  Furman  v.  Parke,  21  N.  J.  L.  310;  Gil- 
more  v.  Lewis,  12  Ohio,  281;  Ryer  v.  Stockwell,  14  Cal.  134;  Janvrin  v.  Exeter, 
48  N.  H.  83;  Alvord  v.  Smith,  63  Ind.  58,  62;  Harson  v.  Pike,  16  Ind.  140. 

To  entitle  one  to  the  reward,  he  must  show  that  the  terms  of  the  offer  have 
been  complied  with.  Williams  r.  West  Chicago  Ry.  Co.,  191  111.  610;  Cor- 
nelson  r.  Insurance  Co.,  7  La.  Ann.  345;  Furman  v.  Parke,  21  N.  J.  L.  310; 
Jones  v.  Bank,  8  N.  Y.  228;  Fitch  v.  Snedaker,  38  N.  Y.  248;  Clanton  v. 
Young,  11  Rich.  L.  546;  Blain  v.  Pacific  Exp.  Co.,  69  Tex.  74.  Cp.  Mosley 
v.  Stone,  108  Ky.  492. 

The  decisions  in  Symmes  v.  Frazier,  6  Mass.  344,  and  Hawk  v.  Marion 
County,  48  la.  472,  that  where  a  reward  is  offered  for  the  recovery  of  a  sum 
of  money  lost,  the  finder  of  a  part  is  entitled  to  a  pro  rata  portion  of  the  re- 
ward offered,  cannot,  it  is  believed,  be  sustained.  And  see  contra,  Blain  v. 
Pacific  Ex.  Co.,  69  Tex.  74. 

Where  several  persons  successively  give  the  information  requested  by  the 
offer  the  first  one  only  can  recover  the  reward.  Lancaster  v.  Walsh,  4  M.  & 
W.  16;  United  States  v.  Simons,  7  Fed.  Rep.  709.  As  to  the  rights  of  parties 
where  the  consideration  requested  has  been  performed  by  the  combined  efforts 
of  several  persons,  see  Janvrin  i.  Exeter,  48  N.  H.  83 ;  Whitcher  v.  State,  68 
N".  H.  605 ;  Fargo  v.  Arthur,  43  How.  Pr.  193. 

It  has  been  held  in  several  cases  that  it  is  not  necessary  that  the  person  who 
does  the  act,  for  doing  which  the  reward  is  offered,  should  have  had  any  knowl- 
edge of  the  offer,  in  order  to  entitle  him  to  the  reward.  Gibbons  v.  Proctor, 
64  L.  T.  N.  S.  594;  Burke  r.  Wells  Fargo,  50  Cal.  218;  Eagle  v.  Smith,  4  Houst. 
293;  Dawkins  v.  Sappington,  26  Ind.  199;  Auditor  v.  Ballard,  9  Bush,  572; 
Coffey  v.  Commonwealth  (Ky.),  37  S.  W.  Rep.  575;  Russell  c.  Stewart,  44  Vt. 
170.     See  also  Drummond  v.  United  States,  35  Ct.  Claims,  356. 

But  this  is  utterly  inconsistent  with  the  idea  that  the  obligation  to  pay  the 
reward  arises  out  of  contract.  "  Where  a  contract  is  proposed  to  all  the  world, 
in  the  form  of  a  proposition,  any  party  may  assent  to  it,  and  it  is  binding, 
but  he  cannot  assent  without  knowledge  of  the  proposition."  Howland  v. 
Lounds,  51  N.  Y.  604,  609;  Chicago,  &c,  R.  R.  Co.  v.  Sebring,  16  111.  App.  181; 
Ensminger  v.  Horn,  70  111.  App.  605 ;  Williams  v.  West  Chicago  St.  Ry.  Co., 
191  111.  610;  Lee  i.  Flemingsburg,  7  Dana,  28  (overruled)  ;  Ball  r.  Newton,  7 
Cush.  599;  Mayor  of  Hoboken  r.  Bailey,  36  N.  J.  L.  490;  Fitch  v.  Snedaker, 
38  N.  Y.  248 ;  Stangler  r.  Temple,  6  Humph.  115.  See  also  City  Bank  r.  Bangs, 
2  Edw.  Ch.  95 ;  Brecknock  School  District  v.  Frankheuser,  58  Pa.  380. 

That  the  act  must  be  done  not  only  with  knowledge  of,  but  with  the  inten- 
tion of  accepting  the  offer,  see  Hewitt  v.  Anderson,  56  Cal.  476;  Vitty  v.  Eley, 
51  N.  Y.  App.  Div.  44;  infra,  p.  21.  See  further  on  rewards,  54  Cent.  L.  J. 
184. 

13  A  covenant  "  with  such  person  as  may  be  the  wife  of  A,  at  his  decease  " 
to  pay  her  a  sum  of  money  is  invalid.  It  does  not  purport  to  create  a  present 
agreement,  nor  to  be  a  continuing  offer,  it  is  "  an  attempt  to  create  a  covenant 
to  arise  wholly  in  the  future  between  a  defendant  and  a  party  who  at  the 
time  was  unascertained,  and  from  whom  no  consideration  was  to  move." 
Saunders  v.  Saunders,  154  Mass.  337. 


INVITATION    OF    OFFERS.  15 

not  before),  there  is  a  complete  contract  with  the  particular  bidder  to 
whom  the  lot  is  knocked  down  (y).1* 

Difficulties  in  application.  The  principle  is  sufficiently  clear,  but  its 
application  is  not  wholly  free  from  difficulties.  The^e  are  partly  re- 
ducible to  questions  of  fact  or  of  interpretation,  but  partly  arise  from 
decisions  which  appear  to  give  some  countenance  to  a  fallacious  theory. 

Distinction  between  offer  and  invitation  of  offers.  First,  we  have  to  con- 
sider in  particular  cases  whether  some  act  or  announcement  of  one 
of  the  parties  is  really  the  proposal  of  a  contract,  or  only  an  invita- 
tion to  other  persons  to  make  proposals  for  his  consideration  (z). 
This  depends  on  the  intention  of  the  parties  as  collected  from  their 
language  and  the  nature  of  the  transaction,  and  the  question  is  one 
either  of  pure  fact  or  of  construction.  *Evidently  it  may  be  [16 
an  important  one,  but  due  weight  has  not  always  been  given  to  it. 

The  proposal  of  a  definite  service  to  be  done  for  reward,  which  is 
in  fact  a  request  (in  the  sense  of  the  ordinary  English  law  of  con- 
tract) for  that  particular  service,  though  not  addressed  to  any  one 
individually,  is  quite  different  in  its  nature  from  a  declaration  to  all 
whom  it  may  concern  that  one  is  willing  to  do  business  with  them  in 
a  particular  manner.  The  person  who  publishes  such  an  invitation 
does  indeed  contemplate  that  people  who  choose  to  act  on  it  will  do 
whatever  is  necessary  to  put  themselves  in  a  position  to  avail  them- 
selves of  it.  But  acts  so  done  are  merely  incidental  to  the  real  ob- 
ject; they  are  not  elements  of  a  contract  but  preliminaries.  It  does 
not  seem  reasonable  to  construe  such  preliminaries  into  the  considera- 
tion for  a  contract  which  the  parties  had  no  intention  of  making, 
Yet  there  are  some  modern  decisions  which  seem  to  disregard  the 
distinction  between  mere  invitations  or  declarations  of  intention 
and  binding  contracts  (a).     We  shall  now  examine  these  cases. 

Examination  of  cases:  In  Denton  v.  G.  N.  Railway  Co.  (6),  the  facts 
were  shortly  these:     The  plaintiff  had  come  from  London  to  Peter- 

(y)   Payne  v.  Gave   (1789)   3  T,  E.  rung    zu    Antrdgen    as    opposed    to 

148,    1    R.    R.    679.      Prof.    Langdell  Anirag. 

(Summary,  §  19)  thinks  it  .would  (a)  Compare  the  judgments  in 
have  been  betteT  to  hold  that  every  Harris  v.  Nicherson  (1873)  L.  R.  8 
bid  constitutes  "  an  actual  sale,  sub-  Q.  B.  286,  42  L.  J.  Q.  B.  171. 
ject  to  the  condition  that  no  one  else  (6)  (1856)  5  E.  &  B.  860,  and  bet- 
shall  bid  higher."  ter  in  25  L.  J.  Q.  B.  129,  where  the 
(»)    In   German   this   is   Aufforde-  case  stated  is  given  at  length. 

14  Sale  of  Goods  Act,  §  58  (2)  ;  Blossom  v.  Railroad  Co.,  3  Wall.  96;  Groten- 
kemper  v.  Achtermyer,  11  Bush,  222;  Head  v.  Clark,  88  Ky.  362,  364;  Fisher  v. 
Seltzer,  23  Pa.  308.  It  is  so  provided  also  in  the  German  Burgerliches  Gesetz- 
buch,  §  156. 


16  AGBEEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

borough,  had  done  his  business  there,  and  wanted  to  go  on  to  Hull  the 
same  night.  He  had  made  his  arrangements  on  the  faith  of  the 
company's  current  time-tables,  and  presented  himself  in  due  time  at 
the  Peterborough  station,  applied  for  a  ticket  to  Hull  by  a  train 
advertised  in  those  tables  as  running  to  Hull  at  7.20  p.m.,  and  offered 
to  pay  the  proper  fare.  The  defendant  company's  clerk  refused  to 
issue  such  a  ticket,  for  the  reason  that  the  7.20  train  no  longer  went 
to  Hull.  The  fact  was  that  beyond  Milford  Junction  the  line  to  Hull 
belonged  to  the  North  Eastern  Eailway  Company,  who  formerly 
17]  ran  a  *train  corresponding  with  the  Great  Northern  train,  for 
which  the  Great  Northern  Eailway  Company  issued  through  tickets 
by  arrangement  between  the  two  companies.  This  corresponding 
train  had  now  been  taken  off  by  the  N.  B.  E.  Co.,  but  the  G.  N.  E. 
time-table  had  not  been  altered.  The  plaintiff  was  unable  to  go  fur- 
ther than  Milford  Junction  that  night,  and  so  missed  an  appoint- 
ment at  Hull  and  sustained  damage.  The  cause  was  removed  from  a 
County  Court  into  the  Queen's  Bench,  and  the  question  was  whether 
on  the  facts  as  stated  in  a  case  for  the  opinion  of  the  Court  the 
plaintiff  could  recover    (c). 

It  was  held  by  Lord  Campbell  C.J.  and  Wightman  J.  that  when 
anyone  offered  to  take  a  ticket  to  any  of  the  places  to  which  the  train 
was  advertised  to  carry  passengers  the  company  contracted  with  him 
to  receive  him  as  a  passenger  to  that  place  according  to  the  adver- 
tisement. Lord  Campbell  treated  the  statement  in  the  time-table  as 
a  conditional  promise  which  on  the  condition  being  performed  became 
absolute.  This  proposition,  reduced  to  exact  language,  amounts  to 
saying  that  the  time-table  is  a  proposal,  or  part  of  a  proposal,  ad- 
dressed to  all  intending  passengers  and  sufficiently  accepted  by  tender 
of  the  fare  at  the  station  in  time  for  the  advertised  train.15     Cromp- 

(c)  As  to  the  measure  of  damages,  ticket  having  been   taken  there  was 

which  here  was   not  in  dispute,   see  an    unquestionable    contract).      [See 

Hamlin  v.  0.  N.  R.  Co.   (1856)    1  H.  36  Cent.  L.  Jl.  390]. 
&  N.  408,  26  L.  J.  Ex.  20    (where  a 

IB  In  Gordon  t>.  Railroad  Co.,  52  N.  H.  596,  it  was  held  that  the  company 
would  not  be  liable  for  failure  to  transport  the  plaintiff  (who  was  the  holder 
of  a  season  ticket  over  its  road)  in  accordance  with  its  published  time-table, 
if  it  "  had  done  all  that  due  care  and  skill  could  do "  to  transport  him 
punctually. 

"  The  publication  of  a  time-table,  in  common  form,  imposes  upon  a  railroad 
company  the  obligation  to  use  due  care  and  skill  to  have  the  trains  arrive 
and  depart  at  the  precise  moments  indicated  in  the  table ;  but  it  does  not 
import  an  absolute  and  unconditional  engagement  for  such  arrival  and  de- 
parture, and  does  not  make  the  company  liable  for  want  of  punctuality  which 
is  not  attributable  to  their  negligence."  Cp.  Sears  v.  Railroad  Co.,  14  Allen, 
433.  In  Crocker  r.  Railroad  Co.,  24  Conn.  249,  the  defendants  had  established, 
and  given  public  notice  of,  a  regulation  that  the  fare  on  their  line  from  N.  to 


PROMISES    BY    ADVERTISEMENT.  17 

ton  J.  (d)  did  not  accept  this  view,  nor  was  it  necessary  to  the  actual 
decision:  for  the  Court  had  only  to  say  whether  on  the  given  facts 
the  plaintiff  could  succeed  in  any  form  of  action,  and  they  were 
unanimously  of  opinion  that  there  was  a  good  cause  of  action  in  tort 
for  a  false  representation;16  an  opinion  itself  questionable,  but  not 
in  this  place  (e). 

Wailow  v.  Harrison.  In  Warlow  v.  Harrison  (f)  a  sale  by  auction 
was  *announced  as  without  reserve,  the  name  of  the  owner  not  [18 
being  disclosed.  The  lot  was  put  up,  but  in  fact  bought  in  by  the 
owner.  The  plaintiff,  who  was  the  highest  real  bidder,  sued  the 
auctioneer  as  on  a  contract  to  complete  the  sale  as  the  owner's  agent. 
The  Court  of  Queen's  Bench  held  that  this  was  wrong;  the  Court  of 
Exchequer  Chamber  affirmed  the  judgment  on  the  pleadings  as  they 
stood,  but  thought  the  facts  did  show  another  cause  of  action.  Wat- 
son and  Martin  BB.  and  Byles  J.  considered  that  the  auctioneer  con- 

(d)  The  fuller  report  of  his  judg-  (f)     (1858-9)    1    E.   &   E.   295,   28 
ment  is  that  in  5  E.  &  B.  L.  J.  Q.  B.  18,  in  Ex.  Ch.  1  E.  &  E. 

(e)  See  Pollock  on  Torts,  6th  ed.  309,  29  L.  J.  Q.  B.  14. 
290,  518. 

N.  L.  would  be  fifty  cents  to  passengers  purchasing  tickets  before  entering  their 
cars,  and  to  others  fifty-five  cents.  Plaintiff  took  a  seat  in  the  train  at  N., 
and  after  it  had  started,  being  called  upon  by  the  conductor,  offered  to  pay 
fifty  cents,  and  refused  to  pay  more  for  his  fare  from  N.  to  N.  L.,  and  was 
thereupon  removed  from  the  train  by  defendants'  servants.  An  action  of  tres- 
pass having  been  brought  by  him  for  having  been  wrongfully  removed  from 
the  train,  it  appeared  that  plaintiff,  on  going  a  reasonable  time. before  the  time 
of  departure  of  the  train  to  defendants'  office  where  tickets  were  usually  sold, 
found  it  closed,  and  was  unable  then,  or  afterward  at  any  time  before  the  train 
left,  to  procure  a  ticket,  of  which  facts  he  informed  the  conductor  when  the 
latter  demanded  his  fare.  The  regulation  of  defendants  was  admitted  to  be 
lawful  and  reasonable.  Held:  "  1.  That  as  common  carriers  the  defendants 
were  under  no  legal  obligation  to  furnish  tickets,  or  carry  passengers  from  N. 
to  N.  L.  for  less  than  fifty-five  cents  each.  2.  That  the  plaintiff's  claim  to 
such  a  passage  for  fifty  cents  rested  entirely  on  the  assumed  engagement  of  the 
defendants  to  furnish  tickets,  and  the  plaintiff's  endeavor  to  procure  one,  de- 
feated by  the  defendants.  3.  That  said  regulation  of  the  defendants  was  not 
a  contract,  creating  a  legal  debt  or  duty,  but  a  mere  proposal,  which  might 
be  suspended  or  withdrawn,  by  closing  the  defendants'  office,  and  the  retire- 
ment of  their  agent  therefrom.  4.  That  the  proposal  being  withdrawn,  the 
parties  were  in  the  same  condition  as  before  it  was  made;  the  defendants  con- 
tinuing common  carriers  were  bound  to  carry  the  plaintiff  for  fifty-five  cent1?, 
but  not  otherwise.  5.  That  the  plaintiff  refusing  said  sum,  the  conductor  had 
a  right  to  remove  him  from  the  cars,  using  no  unnecessary  force  for  that  pur- 
pose, and  that  for  such  removal  the  defendants  were  not  liable  in  an  action  for 
trespass."  Cp.  Johnston  r.  Georgia  Co.,  108  Ga.  496;  Railroad  Co.  v.  Dalby, 
19  111.  353;  Railroad  Co.  v.  South,  43  111.  176;  Railway  Co.  v.  Birney,  71  111. 
391;  Railroad  Co.  v.  Rogers,  28  Ind.  1;  38  Ind.  116;  Railroad  Co.  v.  Rinard, 
46  Ind.  293;  Railroad  Co.  V.  Beckett,  11  Ind.  App.  547;  Du  Larans  r.  Railroad 
Co.,  15  Minn.  49;  Swan  r.  Railroad  Co.,  132  Mass.  116;  Hansley  v.  Railway 
Co.,  117  N.  C.  565;  Hall  v.  Railroad  Co.,  28  S.  C.-261;  Phettiplace  v.  Railway 
Co.,  84  Wis.  412. 

iSHeirn  v.  McCaughan,  32  Miss.  17. 

2 


18  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

tracted  with  the  highest  bona  fide  bidder  that  the  sale  should  be 
without  reserve.  They  said  they  could  not  distinguish  the  ease 
from  that  of  a  reward  offered  by  advertisement,  or  of  a  statement  in 
a  time-table,  thus  holding  in  effect  (contrary  to  the  general  rule  as 
to  sales  by  auction)  that  where  the  sale  is  without  reserve  the  con- 
tract is  completed  not  by  the  acceptance  of  a  bidding,  but  by  the 
bidding  itself,  subject  to  the  condition  that  no  higher  bona  fide  bidder 
appears.  In  other  words,  every  bid  is  in  such  a  case  not  a  mere 
proposal  but  a  conditional  acceptance.  Willes  J.  and  Bramwell  B. 
preferred  to  say  that  the  auctioneer  by  his  announcement  warranted 
that  he  had  authority  to  sell  without  reserve,  and  might  be  sued  for 
a  breach  of  such  warranty.  The  result  was  that  leave  was  given  to 
the  plaintiff  to  amend  and  proceed  to  a  new  trial,  which  however  was 
not  done  (g). 

Doctrine  of  Warlow  v.  Harrison  doubted.  The  opinions  expressed  by 
the  judges,  therefore,  are  not  equivalent  to  the  actual  judgment  of 
a  Court  of  Error,  and  have  been  in  fact  regarded  with  some  doubt 
in  a  later  case  where  the  Court  of  Queen's  Bench  decided  that  at  all 
events  an  auctioneer  whose  principal  is  disclosed  by  the  conditions 
of  sale  does  not  contract  personally  that  the  sale  shall  be  without 
19]  reserve  {It).  Later,  again,  the  same  Court  held  that  when  *an 
auctioneer  in  good  faith  advertises  a  sale  of  certain  goods,  he  does 
not  by  that  advertisement  alone  enter  into  any  contract  or  warranty 
with  those  who  attend  the  sale  that  the  goods  shall  be  actually  sold(t). 
In  an  analogous  case  (fc)  it  was  decided  that  a  simple  offer  of  stock 
in  trade  for  sale  by  tender  does  not  amount  to  a  contract  to  sell  to 
the  person  who  makes  the  highest  tender.17 

(g)    The  parties   agreed  to   a   stct  distinct    from   the    contract   of    sale. 

processus;    see    note    in    the    L.    J.  The  plaintiff  failed  on  another  point, 

report.  »  [See  Taylor  v.  Hassett,  55  N.  Y.  Supp. 

(h)    Mainprice  v.   Westley    (1865)  988]. 

6  B.  &.  S.  420,   34  L.  J.  Q.  B.  229.  (i)  Harris  v.  Nicker  son  (1873)  L.  R. 

But  in  Johnston  v.  Boyes    [1899]    2  3  Q,  B.  286,  42  L.  J.  B.   171.     [See 

Ch.    73,    68    L.    J.    Ch.    425.    Cozens-  Fare  v.  John,  23  la.  286]. 

Hardy     J.     was     prepared     to     hold  (k)  Spencer  v.  Harding  (1870)  L.  R. 

on     the     authority     of     Warlow     v.  5  C.  P.  56 1,  39  L.  J.  C.  P.  332.     In 

Harrison    that    there    is    a    contract  each  of  these  cases  we  have  the  unani- 

by    the    vendors    with    the    highest  mous  decision  of  a  strong  Court, 
bidder  that  he  shall  be  the  purchaser, 

17  So  the  lowest  bidder  for  a  public  contract,  in  the  absence  of  statute,  has 
no  enforceable  right.  Even  where  the  bid  had  been  accepted  by  formal  vote,  but 
the  written  contract  which  was  to  be  executed  had  not  been  signed,  there  was 
held  to  be  no  contract  in  Edge  Moor  Bridge  Works  v.  Bristol,  170  Mass.  528. 
See  also  Weitz  v.  Independent  District,  79  la.  423 ;  Walsh  v.  St.  Louis  Exposi- 
tion, 16  Mo.  App.  502,  90  Mo.  459 ;  Anderson  v.  Board  of  Public  Schools,  122 
Mo.  61 ;  Leskie  v.  Haseltine,  155  Pa.  98. 


PROMISES    BY    ADVERTISEMENT.  19 

Difficulties  of  decisions.  The  doctrine  of  these  cases,  though  capable, 
as  we  have  seen,  of  being  expressed  in  a  manner  conformable  to  the 
normal  analysis  of  contract,  goes  to  the  utmost  limit  warranted  by 
sound  principle,  and  is  not  likely  to  be  extended.  If  a  man  adver- 
tises that  he  has  goods  to  sell  at  .a  certain  price,  does  he  contract  with 
any  one  who  comes  and  offers  to  buy  those  goods  that  until  further 
notice  communicated  to  the  intending  buyer  he  will  sell  them  at 
the  advertised  price?  (l)1&  Again,  does  the  manager  of  a  theatre 
contract  with  every  one  who  comes  to  the  theatre  and  is  ready  to  pay 
for  a  place  that  the  piece  announced  shall  be  performed?19  or  do 
directors  or  committee-men  who  summon  a  meeting  contract  with 
all  who  come  that  the  meeting  shall  be  held  ?  Offers  to  negotiate,  in 
other  words  expressions  of  willingness  to  consider  offers,  must  not 
be  confounded  with  offers  to  be  bound  (m). 

Canning  v.  Farquhar.  The  distinction  between  the  proposal  of  a  con- 
tract and  the  mere  preliminaries  is  clearly  brought  out  by  a  later 

(l)   See  per  Crompton  J.  in  Denton  {m)   See  per  Bowen  L.J.     Carlill  v. 

v.  G.  N.  R.  Co.  tupra.  '         Carbolic    Smoke   Ball    Co.    [1893]    1 

Q.  B.  256,  268. 

18  In  Moulton  v.  Kershaw,  59  Wis.  316,  the  defendants  wrote  to  the  plaintiff 
as  follows :  "  In  consequence  of  a  rupture  in  the  salt  trade,  we  are  authorized 
to  offer  Michigan  fine  salt  in  full  car-load  lots  of  eighty  to  ninety-five  bbls.  de- 
livered in  your  city  at  85c.  per  bbl.,  to  be  shipped  per  C.  &  N.  W.  R.  R.  Co. 
only.  At  this  price  it  is  a  bargain,  as  the  price  in  general  remains  unchanged. 
Shall  be  pleased  to  receive  your  order."  On  the  following  day  the  plaintiff 
telegraphed :  "  Your  letter  of  yesterday  received  and  noted.  You  may  ship 
me  2,000  bbls.  Michigan  fine  salt,  as  offered  in  your  letter.  Answer."  It  was 
held  that  the  letter  and  telegram  did  not  together  make  a  contract;  the  letter 
was  construed  as  being  in  the  nature  of  an  advertisement  that  the  writers  were 
in  a  condition  to  supply  salt  at  the  price  named,  and  requesting  the  person  to 
whom  it  was  addressed  to  deal  with  them,  but  not  an  offer  by  which,  if  ac- 
cepted, defendants  were  to  be  bound. 

In  Beaupre  v.  Pacific  &  Atlantic  Telegraph  Co.,  21  Minn.  155,  the  plaintiff 
wrote :  "  Have  you  any  more  northwestern  mess  pork  ?  also  extra  mess  ? 
Telegraph  price  on  receipt  of  this."  The  reply  was  telegraphed :  "  Letter  re- 
ceived. No  light  mess  here.  Extra  mess  $28.75."  The  plaintiffs  replied  by 
telegraph :  "  Despatch  received.  Will  take  two  hundred  extra  mess,  price 
named."    The  Court  held  there  was  no  contract. 

In  Johnston  v.  Rogers,  30  Ont.  150,  the  defendants  wrote  in  the  course  of  a 
letter  "  We  quote  you  "  specified  goods  at  specified  price,  "  car  lots  only."  The 
plaintiffs  telegraphed  "  We  will  take  two  cars  ...  at  your  offer  of  yes- 
terday;" it  was  held  that  no  offer  had  been  made  and  there  was  no  contract. 
See  also  Harvey  v.  Facey,  [1893]  A.  C.  552;  Strobridge  Lith.  Co.  v.  Randall, 
73  Fed.  Rep.  619;  Talbot  v.  Pettigrew,  3  Dak.  141;  Knight  v.  Cooley,  34 
la.  218;  Howard  v.  Industrial  School,  78  Me.  230;  Smith  ».  Gowdy,  8  Allen, 
566;  Ashcroft  v.  Butterworth,  136  Mass.  511;  Ahearn  v.  Ayres,  38  Mich.  692; 
Schenectady  Stove  Co.  v.  Holbrook,  101  N.  Y.  45;  Allen  v.  Kirwan,  159  Pa. 
612;  Kinghorne  v.  Montreal  Tel.  Co.,  U.  C.  18  Q.  B.  60. 

Cp.  Seymour  v.  Armstrong,  62  Kan.  720 ;  College  Mill  v.  Fidler,  [Tenn.]  58 
S.  W.  Rep.  382. 

18  See  Pearee  v.  Spalding,  12  Mo.  App.  141. 


20  AGEEEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

decision  of  the  Court  of  Appeal.  A  "  proposal "  in  the  usual  form 
was  made  to  a  life  assurance  society;  the  actuary  wrote  a  letter 
stating  that  the  proposal  had  been  accepted  at  a  certain  premium,  but 
20]  adding  this  "note:  "  No  *assurance  can  take  place  until  the  first 
premium  is  paid."  Afterwards,  and  before  the  time  limited  for  that 
payment,  an  accident  happened  to  the  assured  which  affected  his 
health,  and  the  society,  being  informed  of  this,  refused  the  premium 
when  tendered.  It  was  held  that  they  were  entitled  to  do  so.  The 
letter  of  acceptance  did  not  conclude  a  contract,  first,  because  the 
amount  of  premium  was  then  first  specified,  and  the  assured  had 
therefore  not  consented  to  that  material  term  of  the  agreement ;  next, 
because  of  the  express  declaration  of  contrary  intention  (n). 

Another  matter  for  remark  is  the  effect  of  notice  of  revocation. 
Suppose  the  traveller  had  seen  and  read  a  new  and  correct  edition 
of  the  time-table  in  the  booking-office  immediately  before  he  offered 
to  take  his  ticket.  This  would  clearly  have  been  a  revocation  of  the 
proposal  of  the  company  held  out  in  the  incorrect  time-table,  and 
accordingly  no  contract  could  arise.  Similarly  if  on  putting  up  a 
particular  lot  the  auctioneer  expressly  retracted  as  to  that  lot  the 
statement  of  the  sale  being  without  reserve,  there  could  be  no  such 
contract  with  the  highest  bona  fide  bidder  as  supposed  in  Warlow  v. 
Harrison  (o)  :  yet  the  traveller's  or  bidder's  grievance  would  be  the 
same. 

Difficulty  of  fixing  the  supposed  contract.  There  is  also  difficulty  in  de- 
termining what  are  the  contents  and  consideration  of  the  contract 
supposed  to  be  made.  In  the  case  of  the  time-table,  for  example, 
it  is  not  sufficient  to  say  that  the  statements  of  the  table  are  a 
ierm  in  the  company's  ordinary  contract  to  carry  the  passenger. 
They  may  well  be  so  after  he  has  taken  his  ticket.     But  here  we 

21  ]  have  a  contract  said  to  be  concluded  by  the  *mere  demand  of 
a  ticket  and  tender  of  the  fare,  which,  therefore,  cannot  be  the 
ordinary  contract  to  carry.  So  in  the  case  of  the  auction  we  have 
a  contract  alleged  to  be  complete  not  on  the  acceptance  but  on  the 
making  of  a  bid.     The  anomalous  character  of  these  contracts  may 

(n)  Canning  v.  Far quhar  (1886)  16  the  revocation  must  be  so  communi- 

Q.  B.  Div.  727,  55  L.  J.  Q.  B.  225 ;  cated  as  to  amount  to  reasonable  no- 

cp.  Wallace's  case  [1900]   2  Ch.  671,  tice  is  not  admissible  in  our  law:  see 

09    L.    J.    Ch.    777     (application    for  note  to  Frost  v.  Knight   (1870)  L.  R. 

shares  under  an  amalgamation  agree-  5  Ex.  at  p.  337,  and  pp.  26,  27,  below, 

ment    by    a    shareholder    in    the    old  As   to  the   somewhat  analogous   sug- 

company ) .  gestion  made  in  that  case,  see  s.  c. 

(o)  The   Continental   doctrine  that  in  Ex.  Ch.  L.  R.  7  Ex.  at  p.  117. 


PROMISES    BY    ADVERTISEMENT.  21 

further  be  illustrated  by  considering  whether  it  would  be  possible  to 
maintain  a  remedy  ex  contractu  in  the  case  of  a  merely  capricious 
refusal  to  issue  tickets  or  hold  the  sale,  as  the  case  might  be.  On  the 
whole  it  seems  that  at  least  some  of  the  dicta  in  tltis  class  of  cases 
cannot  be  supported. 

Must  there  be  a  real  acceptance?  Another  difficulty  (though  for  Eng- 
lish lawyers  hardly  a  serious  one)  is  raised  by  the  suggestion  that  in 
these  cases  the  first  offer  or  announcement  is  not  a  mere  proposal,  but 
constitutes  at  once  a  kind  of  floating  contract  with  the  unascertained 
person,  if  any,  who  shall  fulfil  the  prescribed  condition.  Savigny 
quite  justly  held  that  on  this  theory  the  right  of  action  could  not  be 
supported:  there  cannot  be  a  vinculum  iuris  with  one  end  loose;  but 
he  strangely  missed  the  true  explanation  (p).  To  a  certain  extent, 
however,  this  notion  of  a  floating  obligation  is  countenanced  by  the 
language  of  the  judges  in  the  cases  above  discussed,  and  also  in  the 
much  earlier  case  of  Williams  v.  Carwardine  (q).  There  a  reward 
had  been  offered  by  the  defendant  for  information  which  should  lead 
to  the  discovery  of  a  murder.  A  statement  which  had  that  effect  was 
made  by  the  plaintiff,  but  not  (as  the  jury  found)  vnth  a  view  to 
obtaining  the  reward;  it  does  not  appear  to  whom  it  was  made,  or 
whether  with  any  knowledge  that  a  reward  had  been  offered.  The 
Court  held,  nevertheless,  that  the  plaintiff  had  a  good  cause  of  action, 
because  "there  was  a  contract  with  any  person  who  performed  the 
condition  mentioned  in  the  advertisement,"  and  the  motive  with 
which  the  information  was  given  was  immaterial:  but  on  *this  [22 
it  must  be  observed  that  the  question  is  not  of  motive  but  of  inten- 
tion. The  decision  seems  to  set  up  a  contract  without  any  privity 
between  the  parties.  Such  a  doctrine  cannot  now  be  received  (r),20 
though  the  decision  may  have  been  right  on  the  facts.  There  cannot 
be  an  acceptance  constituting  a  contract  without  any  communication 
of  the  proposal  to  the  acceptor,  or  of  the  acceptance  to  the  proposer.21 

(p)  Obi.  2,  90.     Yet  within  a  few  can   authorities   collected  in  28   Am. 

pages  he  does  gives  the  true  analysis  Law   Reg.   2d   S.    116.     The   solitary 

for  the  not  dissimilar  case  of  a  sale  modern   case   of   Gibbons  v.    Proctor 

by  auction.  (1891)   64  L.  T.  594,  would  no  doubt 

(q)    (1833)  4  B.  &  Ad.  621,  s.  c.  at  support  or  even  extend  Williams  v. 

N.  P.  5  C.  &  P.  56C,  38  R.  R.  328.  Carwardine  if  it  could  be  relied  on. 

(r)Cf.   Langdell,   §   3,   and  Ameri-  But  it  cannot  be  law  as  reported. 

20  See  ante,  p.  13.  n.  12. 

21  Although  communication  of  the  proposal  to  the  acceptor  is,  communi- 
cation of  the  acceptance  to  the  proposer  is  here  not  necessary.    Carlill  v.  Car- 


22  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

The  question  may  arise  whether  the  part}-  claiming  the  reward  has 
in  fact  performed  the  required  condition  according  to  the  terms  of 

bolic  Smoke  Ball  Co.,  [1892]  2  Q.  B.  484,  [1893]  1  Q.  B.  256,  269,  per  Bowen,  J., 
p.  262,  per  Lindley,  J.;  Matthewson  v.  Fitch,  22  Col.  86;  Perkins  v.  Hadsell, 
50  111.  216;  Hanson  !'.  Pike,  16  Ind.  140;  Hayden  c.  Souger,  56  Ind.  42; 'First 
Nat.  Bank  v.  Watkins,  154  Mass.  385;  Bishop  i.  Eaton,  161  Mass.  496;  Nied- 
ermeyer  v.  Curators,  61  Mo.  App.  654;  Todd  v.  Weber,  95  N.  Y.  181,  191; 
Miller  v.  McKenzie,  95  N.  Y.  575;  Fry  v.  Insurance  Co.,  40  Ohio  St.  108; 
Cooper  r.  Altimus,  02  Pa.  486;  Patton's  Ex.  o.  Hassinger,  69  Pa.  311;  Beif  v. 
Page,  55  Wis.  496.  As  stated,  supra,  p.  13,  n.  12,  the  performance  of  an  act 
for  the  doing  of  which  a  reward  is  offered  gives  rise  to  a  unilateral  contract, 
and  unless  by  the  terms  of  the  offer  proposing  a  unilateral  contract  communi- 
cation of  its  acceptance  is  expressly  or  impliedly  required  as  part  of  the  con- 
sideration to  be  performed,  it  need  not  be  made.  In  a  bilateral  contract  com- 
munication of  acceptance  of  the  proposal  is  always  necessary.  A  bilateral 
differs  from  a  unilateral  contract  in  this  respect,  for  the  reason  that  the  con- 
sideration of  a  unilateral  contract  is  something  done,  while  the  consideration 
of  a  bilateral  contract  is  on  each  side  a  promise.  In  a  bilateral  contract  the 
promise  made  in  the  proposal  remains  without  consideration  until  there  is  an 
acceptance  by  means  of  a  counter  promise,  and  this  counter  promise  has  no 
existence  until  it  is  communicated,  while  the  consideration  of  a  unilateral 
contract  is  furnished  by  performance  of  the  act  or  acts  requested  to  be  done, 
and  for  doing  which  compensation  is  promised.  An  offer  proposing  a,  uni- 
lateral contract,  therefore,  becomes  a  binding  promise  immediately  upon  the 
performance  of  the  act  or  acts  requested  to  be  done  so  that  unless  communi- 
cation to  the  proposer  is  one  of  the  things  requested  it  is  not  necessary. 
That  notice  is  not  necessary  for  the  validity  of  a  unilateral  contract  seems 
clearly  recognized  except  in  the  case  of  offers  of  guaranty  conditional  upon 
giving  credit  to  a  third  person.  In  such  cases  the  weight  of  American  au- 
thority (though  there  are  many  contrary  decisions)  holds  that  the  offerer 
cannot  be  held  unless  notice  is  given  by  the  acceptor  that  he  has  given  credit 
as  requested.  The  numerous  cases  are  exhaustively  collected  in  Ames's  Cases 
on  Suretyship,  pp.  225-237.  See  also  Parsons  on  Contracts,  Vol.  II,  p.  *13, 
n.  1.  It  is  often  supposed  that  the  reason  of  this  requirement  is  that  notice 
of  acceptance  is  always  an  essential  element  to  the  formation  of  a  contract. 
Davis  v.  Wells,  104  U.  S.  159;  Barnes  Co.  v.  Reed,  84  Fed.  Eep.  603;  Newman 
v.  Streator,  19  111.  App.  594;  Ruffner  v.  Love,  33  111.  App.  601;  Kincheloe  v. 
Holmes,  7  B.  Mon.  5 ;  Lachman  v.  Block,  47  La.  Ann.  505 ;  Howe  v.  Nickels, 
22  Me.  175 ;  Winnebago  Mills  v.  Travis,  56  Minn.  480 ;  Mitchell  r.  Railton, 
45  Mo.  App.  273;  Kay  r.  Allen.  9  Pa.  320;  Kellogg  v.  Stockton,  29  Pa.  460; 
Wilkins  v.   Carter,  84  Tex.  438. 

The  better  reason  of  the  rule  is  well  expressed  by  Knowlton,  J.,  in  Bishop 
r.  Eaton.  161  Mass.  496.  The  offer  to  guarantee  "was  an  offer  to  be  bound 
in  consideration  of  an  act  to  be  done,  and  in  such  a  case  the  doing  of  the 
act  constitutes  the  acceptance  of  the  offer  and  furnishes  the  consideration. 
Ordinarily  there  is  no  occasion  to  notify  the  offerer  of  the  acceptance  of  such 
an  offeT,  for  the  doing  of  the  act  is  a  sufficient  acceptance,  and  the  promisor 
knows  that  he  is  bound  when  he  sees  that  action  has  been  taken  on  the  faith 
of  his  offer.  But  if  the  act  is  of  such  a  kind  that  knowledge  of  it  will  not 
quickly  come  to  the  promisor,  the  promisee  is  bound  to  give  him  notice  of 
his  acceptance  within  a  reasonable  time  after  doing  that  which  constitutes  the 
acceptance.  In  such  a  case  it  is  implied  in  the  offer  that,  to  complete  the 
contract,  notice  shall  be  given  with  due  diligence,  so  that  the  promisor  may 
know  that  a  contract  has  been  made.  But  where  the  promise  is  in  considera- 
tion of  an  act  to  be  done,  it  becomes  binding  upon  the  doing  of  the  act  so  far 
that  the  promisee  cannot  be  affected  by  a  subsequent  withdrawal  of  it,  if 
within  a  reasonable  time  afterward  he  notifies  the  promisor."  See  also  Oaks 
v.  Weller,  13  Vt.  106. 


PROMISES    BY   ADVERTISEMENT.  23 

the  advertisement.22  In  Carlill  v.  Carbolic  Smoke  Ball  Co.  (s)  it 
arose  in  a  curious  manner.  The  advertisement  of  a  remedy  for 
influenza  and  similar  diseases  offered  a  sum  of  money  to  any  one  who 
should  contract  such  disease  "  after  using "  the  remedy  according  to 
the  .directions  supplied  with  it,  and  for  a  certain  time.  A  buyer  who 
used  the  remedy  as  directed,  and  caught  influenza  while  still  using  it, 
was  held  entitled  to  the  sum  offered,  notwithstanding  the  argument 
strenuously  urged  for  the  defendant  that  the  offer  was  too  vague  to 
be  taken  seriously,  and  the  performance  could  not  be  verified. 

Revocation  of  offer  by  advertisement.  The  Supreme  Court  of  the 
United  States  has  held  that  a  general  proposal  made  by  public 
announcement  may  be  effectually  revoked  by  an  announcement  of 
equal  publicity,  such  as  an  advertisement  in  the  same  newspaper, 
even  as  against  a  person  who  afterwards  acts  on  the  proposal  not 
knowing  that  it  has  been  revoked.  For  "  he  should  have  known," 
it  is  said,  "that  it  could  be  revoked  in  the  manner  in  which  it  was 
made"  (t).  In  other  words,  the  proposal  is  treated  as  subject  to  a 
tacit  condition  that  it  may  be  revoked  by  an  announcement  made  by 
the  same  means.  *This  may  be  a  convenient  rule,  and  may  per-  [23 
haps  be  supported  as  a  fair  inference  of  fact  from  the  habits  of  the 
newspaper-reading  part  of  mankind :  yet  it  seems  a  rather  strong  piece 
of  judicial  legislation.23 

(s)    [1893]    1   Q.  B.  256,   62  L.  J.  (t)  Shvy  v.  United  States  (1875) 

Q.  B.  257,  C.  A.  92  U.  S.  73. 

22  Cases  which  involve  this  question  are :  Lancaster  v.  Walsh,  4  M.  &  W.  16 ; 
Smith  v.  Moore,  1  C.  B.  438;  Thatcher  v.  England,  3  C.  B.  254,  15  L.  J.  C.  P. 
241 ;  Tamer  v.  Walker,  L.  R.  1  Q.  B.  641,  2  Q.  B.  301 ;  England  v.  Davidson, 
11  A.  &  E.  856;  Shuey  v.  TJ.  S.,  92  U.  S.  73;  Morrell  v.  Quarles,  35  Ala.  544; 
Central,  &c,  R.  Co.  v.  Cheatham,  85  Ala.  292;  Ryer  r.  Stockwell,  14  Cal.  134; 
Burke  r.  Wells,  Fargo  &  Co.,  50  Cal.  221 ;  Marvin  v.  Treat,  37  Conn.  96 ;  Matter 
of  Kelly,  39  Conn.  159 ;  Bank  V.  Hart,  55  111.  62 ;  Loring  v.  Boston,  7  Met.  409 ; 
Crawshaw  v.  Roxbury,  7  Gray,  374;  Jenkins  v.  Kebren,  12  Gray,  330;  Besse 
v.  Dyer,  9  Allen,  151;  Kineaid.  t\  Eaton,  98  Mass.  139;  Pilie  v.  New  Orleans, 
19  La.  Ann.  274;  Salbadore  v.  Insurance  Co.,  22  La.  Ann.  338;  Haskell  v. 
Davidson,  91  Me.  488;  Goldsborough  r.  Cradie,  28  Md.  477;  Brown  v.  Bradlee, 
156  Mass.  28;  Bank  v.  Bangs,  2  Edw.  Ch.  95;  Pierson  v.  Moreh,  82  N.  Y.  503; 
Wilmoth  r.  Hensel,  151  Pa.  200;  Kasling  v.  Morris,  71  Tex.  584. 

One  finding  lost  property  for  the  restoration  of  which  a  reward  is  offered, 
has  a,  lien  upon  it  so  that  he  need  not  deliver  it  until  the  reward  is  paid. 
Everman  v.  Hyman,  3  Ind.  App.  459;  Wentworth  v.  Day,  3  Met.  352; 
Cummings  v.  Gann,  52  Pa.  St.  484. 

23  An  offer  of  reward  expires  after  lapse  of  a  reasonable  time.  In  Drum- 
mond  v.  United  States,  35  Ct.  CI.  356,  it  was  held  that  a  right  to  a  reward 
offered  for  the  arrest  of  a,  criminal  was  gained  by  making  the  arrest  ten 
years  after  the  offer  was  made,  the  criminal  being  still  a  fugitive  from 
justice. 

In  Mitchell  v.  Abbott,  8C  Me.  338,  it  was  held  that  a  lapse  of  twelve  years 


24  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

Other  general  proposals.— Other  kinds  of  general  proposals  have  also 
been  dealt  with  as  capable  of  acceptance  by  any  one  to  whose  hands 
they  might  come. 

Ex  parte  Asiatic  Banking  Corporation. — In  Ex  parte  Asiatic  Banking 
Corporation  (u),  the  following  letter  of  credit  had  been  given  by  Agra 
and  Masterman's  Bank  to  Dickson,  Tatham  and  Co. 

"  No.  394.  You  are  hereby  authorized  to  draw  upon  this  bank  at  six 
months'  sight,  to  the  extent  of  £  15,000  sterling,  and  such  drafts  I  undertake 
duly  to  honour  on  presentation.  This  credit  will  remain  in  force  for  twelve 
months  from  this  date,  and  parties  negotiating  bills  under  it  are  requested 
to  indorse  particulars  on  the  back  hereof.  The  bills  must  specify  that  they 
are  drawn  under  credit  No.  394,  of  the  31st  of  October,  1865." 

The  Asiatic  Banking  Corporation  held  for  value  bills  drawn  on 
the  Agra  and  Masterman's  Bank  under  this  letter;  the  Bank  stopped 
payment  before  the  bills  were  presented  for  acceptance,  and  Dickson, 
Tatham  and  Co.  were  indebted  to  the  Bank  in  an  amount  exceed- 
ing what  was  due  on  the  bills :  but  the  Corporation  claimed  neverthe- 
less to  prove  in  the  winding-up  for  the  amount,  one  of  the  grounds 
being  "  that  the  letter  shown  to  the  person  advancing  money  con- 
stituted, when  money  was  advanced  on  the  faith  of  it,  a  contract  by 
the  Bank  to  accept  the  bills."  Cairns  L.J.  adopted  this  view,  hold- 
ing that  the  letter  did  amount  to  "  a  general  invitation "  to  take 
bills  drawn  by  Dickson,  Tatham  and  Co.  on  the  Agra  and  Master- 
man's  Bank,  on  the  assurance  that  the  Agra  and  Masterman's  Bank 
would  accept  such  bills  on  presentation;  and  that  the  acceptance  of 
the  offer  in  this  letter  by  the  Asiatic  Banking  Corporation  con- 
24]  stituted  a  binding  legal  contract  *against  the  Agra  and  Master- 
man's  Bank   (x).      The  difficulties  above  discussed  do  not  seem  to 

(«)     (1867)    L.   R.   2   Ch.   391.   36  preme  Court  of  New  York  on  a  very 

L.    J.    Ch.    222.      Cp.    Bhugwandass  similar    state    of    facts.       [Scott    v. 

v.  Netherlands,  &c.  Insce.  Go.   (1888)  Pilkington,    15   Abb.   Pr.   280.]      The 

14  App.   Ca.    (J.   C.)    83,  decided  on  decision   of  the   English   Courts  was 

the   ground   that   the    "  open   cover "  that  the  law   applicable  to  the  case 

was    a     proposal     of     insurance    ad-  was  the  law  of  New  York,  and  that 

dressed  to  any  one  having  insurable  the  judgment  having  been  given  by 

interest  in  the  cargo.  a  court  of  competent  jurisdiction  in 

(as)   In  Scott  v.  Pilkington   (1862)  a  case  to  which   the   local   law  was 

2  B.  &  S.   11,  31  L.  J.  Q.  B.  81,  on  properly    applicable,    there    was    no 

the     other     hand,     an     action     was  room   to   question   its   correctness   in 

brought   on   a    judgment   of   the    Su-  an    English    court.      So   far    as    any 

between  the  time  when  the  reward  was  offered  and  the  time  of  performance 
was  more  than  a  reasonable  time. 

In  The  Matter  of  Keily,  39  Conn.  159,  it  was  held  that  an  offer  of  reward 
for  a  particular  crime  would  not  lapse  until  the  Statute  of  Limitations 
barred  conviction  for  the  crime.  See  also  Loring  r.  Boston,  7  Met.  409; 
Shaub  v.  Lancaster,   156  Pa.  362;  Langdell   Sum.  Cont.,   §    155. 


PROMISES    BY    GENERAL    OFFER.  25 

exist  in  this  case.  From  an  open  letter  of  credit  (containing  too  in 
this  instance  an  express  request  to  persons  negotiating  bills  under 
it  to  indorse  particulars)  there  may  be  inferred  without  any  violence 
either  to  law  or  to  common  reason  a  proposal  or  request  by  the 
author  of  the  letter  to  the  mercantile  public  to  advance  money  on 
the  faith  of  the  undertaking  expressed  in  the  letter.  This  under- 
taking must  then  be  treated  as  addressed  to  any  one  who  shall  so 
advance  money:  the  thing  to  be  performed  by  way  of  consideration 
for  the  undertaking  is  definite  and  substantial,  and  is  in  fact  the 
main  object  of  the  transaction.24  If  any  question  arose  as  to  a  revo- 
cation of  the  proposal,  it  would  be  decided  by  the  rules  which  apply 
to  the  revocation  of  proposals  made  by  letter  in  general  (y). 

Statute  of  Frauds.  The  bearing  of  the  Statute  of  Frauds  on  these 
contracts  made  by  advertisements  or  general  offers  was  discussed 
incidentally  in  a  case  brought  before  the  Judicial  Committee  of  the 
Privy  Council  on  appeal  from  the  Supreme  Court  of  New  South 

opinion  was  expressed  by  the  Court  and  as  a  concession  to  the  defend- 
as  to  what  should  have  been  the  de-  ants,  and  is  therefore  no  positive 
cision   on   the   same   facts   in   a   case  authority. 

governed  by  the  law  of   England,   it  (y)    See  however  Shuey  v.   United 

was   against   any   right  of   action   at  States,  p.  *22,  above.     [Also  Bank  r. 

law  being  acquired  by  the  bill-hold-  Clark,  61  Md.  400;  Quick  v.  Wheeler, 

ers.     This  however  was  by  the  way,  78  N.  Y.  300.] 

24  "A  letter  written  within  a  reasonable  time  before  or  after  the  date  of  a 
bill  of  exchange,  describing  it  in  terms  not  to  be  mistaken,  and  promising  to 
accept  it,  is,  if  shown  to  the  person  who  afterwards  takes  the  bill  on  the 
credit  of  the  letter,  a  virtual  acceptance,  binding  the  person  who  makes  the 
promise."  Coolidge  v.  Payson,  2  Wheat.  66,  75;  Sehimmelpennich  v.  Bayard, 
1  Pet.  264;  Boyce  v.  Edwards,  4  Pet.  Ill;  Bayard  v.  Lathy,  2  McLean,  462; 
Lafargue  v.  Harrison,  70  Cal.  380;  Brown  v.  Ambler,  66  Md.  391;  Storey  v. 
Logan,  9  Mass.  55 ;  Bank  v.  Bice,  98  Mass.  288 ;  Bank  v.  Richards,  109  Mass. 
413;  Woodward  V.  Griffiths,  &c,  Co.,  43  Minn.  260;  Greele  v.  Parker,  5  Wend. 
414;  Goodrich  v.  Gordon,  15  Johns.  6;  Steman  r.  Harrison,  42  Pa.  49. 

See  II.  Ames'  Cas.  B.  &  N.  787,  788:  "An  absolute  authority  to  draw  is 
equivalent  to  an  unconditional  promise  to  pay  a  bill  of  exchange."  Ruiz  v. 
Renauld,  100  N.  Y.  256. 

Further,  it  is  well  settled  that  if  A.  give  to  B.  a.  letter  (which,  though  ad- 
dressed to  B.,  is  designed  to  be  shown  to  and  acted  upon  by  others ) ,  promising 
to  pay  .any  bills  which  B.  may  draw,  or  to  stand  as  surety  for  any  indebtedness 
which  he  may  incur,  an  action  will  lie  against  A.  in  favor  of  any  person  who 
gives  value  to  B.  on  the  faith  of  and  within  the  terms  of  the  letter.  Lawrason 
i\  Mason.  3  Cr.  492;  Russell  v.  Wiggin,  2  Story,  213;  Cassell  v.  Dows,  1 
Blatchf.  335;  Smith  v.  Ledyard,  49  Ala.  279;  Whilden  v.  Bank,  64  Ala.  1 ; 
Nelson  v.  Bank,  48  111.  36;  Nisbett  v.  Galbraith,  3  La.  Ann.  690;  Bank  v. 
Lynch,  52  Md.  270 ;  Barney  v.  Newcomb,  9  Cush.  46 ;  Bissell  v.  Lewis,  4  Mich. 
450;  Bank  v.  Coster's  Ex.,  3  N.  Y.  203;  Johannessen  v.  Munroe,  158  N.  Y.  641 ; 
Lonsdale  v.  Bank,  18  Ohio,  126;  Dorland  v.  Mulhollan,  10  Ohio  St.  192; 
Lowry  v.  Adams,  22  Vt.  160;  McNaughton  v.  Conkling,  9  Wis.  316.  Cn.  Posey 
v.  Bank,  7  Col.  App.  108;  Bank  v.  Luce,  139  Mass.  488;  Putnam  Bank  v. 
Snow,  172  Mass.  569 ;  Bank  v.  Kaufman,  93  N.  Y.  273. 


26  AGREEMENT.    PROPOSAL,    AND   ACCEPTANCE. 

Wales  (2).  It  is  settled  that  the  requirements  of  the  statute  in  the 
cases  where  it  applies  are  generally  not  satisfied  unless  the  written 
evidence  of  the  contract  shows  who  both  the  contracting  parties 
are.  But  it  was  suggested  in  the  Colonial  Court  that  in  the  case  of  a 
25]  proposal  made  by  advertisement,  where  the  ^nature  of  the  con- 
tract (e.g.  a  guaranty)  was  such  as  to  bring  it  within  the  statute, 
the  advertisement  itself  might  be  a  sufficient  memorandum,  the 
other  party  being  indicated  as  far  as  the  nature  of  the  transaction 
would  admit  (a).  The  Judicial  Committee,  however,  showed  a  strong 
inclination  to  think  that  this  view  is  not  tenable,  and  that  in  such  a 
case  the  evidence  required  by  the  statute  would  not  be  complete 
without  some  further  writing  to  show  who  in  particular  had  accepted 
the  proposal.25  It  was  observed  that  as  a  matter  of  fact  the  cases 
on  advertisements  had  been  of  such  a  kind  that  the  statute  did 
not  apply  to  them,  and  it  was  a  mere  circumstance  that  the  adver- 
tisement was  in  writing  (6).  We  are  not  aware  of  the  point  having 
arisen  in  any  later  case. 

Formation  of  contract  by  indirect  communication.  It  is  possible  for  a 
contract  to  be  formed  without  any  direct  communication  between  the 
parties  or  any  persons  who  in  an  ordinary  sense  are  their  agents. 
Where  competitors  enter  for  a  club  race  under  express  rules  pre- 
scribed or  adopted  by  the  managing  committee,  and  those  rules 
declare  that  any  competitor  breaking  them  shall  be  liable  for  dam- 
ages arising  therefrom,  this  is  sufficient  to  create  a  mutual  contract 
between  the  competitors  to  be  liable  for  and  discharge  any  such 
damages  (c).  Here  the  secretary  of  the  club  who  receives  the  entries 
may  be  regarded  as  an  agent  to  receive,  as  between  the  competitors, 
the  offer  of  every  competitor  to  be  bound  by  the  rules,  and  the 
acceptance  of  every  other  competitor;  and  his  authority  to  do  so  is 
implied  in  the  nature  of  the  transaction.  There  may  be  cases  of  this 
kind  in  which  it  would  be  hard,  if  the  question  were  raised,  to  de- 

(s)    Williams  v.  Byrnes    (1863)    1  the    Statute    of    Frauds    is    not   ap- 

Moo.  P.  C.  N.  S.  154.  plicable    to    contracts    made    in   this 

(a)    Per  Stephen  C.J.   at  pp.   167,  manner. 

184.  (c)     Clarke    v.    Earl    of    Dunraven 

(6)    See  at  p.   198.     The  language  (The  "  Ratanita")    [1897]   A.  C.  59, 

of  the  headnote  is  misleading;  there  66   L.    J.    P.    1.      The   only   question 

is  no  suggestion  in  the  judgment  of  seriously   argued    in   the   H.   L.   was 

any  such  proposition  of  law  as  that  on  the  construction  of  the  rules. 

25  This  objection  was  raised  by  counsel,  but  did  not  prevail,  in  Bank  v. 
Coster's  Ex'rs,  3  N.  Y.  203,  and  Griffin  v.  Rembert,  2  S.  C.  410.  See  also 
Board  of  Marion  Co.  v,  Shipley,  77  Ind.  553. 


REVOCATION.  27 

termine  whether  the  parties  intended  to  create  a  legal  or  a  merely 
honorary  obligation. 

*Revocation.  [26 

Revocation  of  offer.  An  offer  may  be  revoked  at  any  time  before 
acceptance  but  not  afterwards. 

Cooke  v.  Oxley  —  Dickinson  v.  Dodds.  For  before  acceptance  there  is 
no  agreement,  and  therefore  the  proposer  cannot  be  hound  to  any- 
thing (d).2e  So  that  even  if  he  purports  to  give  a  definite  time  for 
acceptance,  he  is  free  to  withdraw  his  proposal  before  that  time  has 
elapsed.27  He  is  not  bound  to  keep  it  open  unless  there  is  a  distinct 
contract  to  that  effect,  founded  on  a  distinct  consideration.  If  in 
the  morning  A.  offers  goods  to  B.  for  sale  at  a  certain  price,  and 
gives  B.  till  four  o'clock  in  the  afternoon  to  make  up  his  mind, 
yet  A.  may  sell  the  goods  to  C.  at  any  time  before  four  o'clock,  so 
long  as  B.  has  not  accepted  his  offer  (e).    But  if  B.  were  to  say  to 

{d)    The   same   rule   applies    to   a  49  L.  J.   Q.   B.  701.     But  the  action 

proposal   to  vary  an  existing   agree-  was  for  not  delivering  goods,  as  on  a 

ment :    Gilkes   v.    Leonino    ( 1858 )    4  complete  bargain  and  sale ;   and  this 

C.  B.  N.  S.  485.  was   insisted  upon   in  the  argument. 

(e)    Admitted    in    Cooke   v.    Oxley  The   Court   may   possibly    have    sup- 

(1790)    1   R.   R.   783,   3    T.   R.   653;  posed    that    acceptance    of    an    offer 

affd.  in  Ex.  Ch.,  see  note;  Finch  Sel.  made    any    appreciable    time    before 

Ca.  2nd  ed.  85.   The  decision  goes  far-  was    not    complete    without    a    fresh 

ther,    and   has    been    the    subject    of  sign    of   consent   from   the   proposer, 

much   criticism.     For  the  conflicting  Cp.   Kennedy  v.   Lee    (1817)    3  Mer. 

views  see  Benjamin  on  Sale,  69   (4th  441,   17  R.  R.  110.     [The  decision  in 

ed. )   and  Langdell's  Summary,  §  182.  Cooke   v.    Oxley    has    been    generally 

I  now  agree  with  Mr.  Langdell  that  condemned    in    this    country.      "  The 

it  cannot  be  supported  in  any  sense.  criticisms     which     have    been     made 

If  the  defendant's  offer  had  been  re-  upon  the  case  are  sufficient  to  destroy 

voked    before    the    plaintiff's    accept-  its   authority,"  2   Kent    477   n.    (d). 

ance,    it   was    for    the    defendant    to  "  It  can  not  be  considered  as  of  any 

plead    and     prove     it.       [Wilson     v.  authoritv,"  Railroad  Co.  r.  Bartlett, 

Stump,   103   Cal.  255,   258;    Quick  v.  3  Cush.  224,  228;  and  see  Metcalf  on 

Wheeler,    78    N.    Y.    300].      The    de-  Contracts,   19-23;    1   Duer  on  Insur- 

cision  would  have  been  right  if  the  ance,   118;   2  Amer.  Jurist  N.  S.   17 

action  had  been  on  »  promise  to  keep  seq.      Also    the    Australian    case    of 

the   offer   open,   as  seems  to  be   sup-  Nyulasy   v.    Rowan,    17    Vict.    L.    R. 

posed   by    Lush    J.    in    Stevenson    v.  663.] 
McLean   (1880)   5  Q.  B.  D.  at  p.  351, 

28Stitt  v.  Huidekopers,  17  Wall.  384;  Travis  v.  Ins.  Co.,  104  Fed.  Rep.  486; 
McDonald  r.  Huff,  77  Cal.  279;  Crocker  r.  Railroad  Co.,  24  Conn.  249,  261; 
Harding  v.  Gibbs,  125  111.  85;  Gross  v.  Arnold,  177  111.  575;  Burton  v.  Shot- 
well,  13  Bush,  271;  Bryant's  Pond  Co.  v.  Felt,  87  Me.  234;  Railroad  Co.  v. 
Bartlett,  3  Cush.  224;  Craig  v.  Harper,  3  Cush.  158;  Foster  v.  Boston,  22 
Pick.  33;  Hudson  Co.  v.  Tower,  156  Mass.  82;  McDonald  v.  Bewick,  51  Mich. 
79;  Wilcox  v.  Cline,  70  Mich.  517;  Brown  v.  Rice,  29  Mo.  322;  Houghwout 
v.  Boisaubin,  18  N.  J.  Eq.  315;.  Schenectady  Stove  Co.  v.  Holbrook,  101 
N.  Y.  45;  Engine  Co.  v.  Green,  143  Pa.  269;  Cady  v.  Straus,  97  Va.  701; 
Johnson  v.  Filkington,  39  Wis.  62. 

27  Brown  v.  Savings  Union,  134  Cal.  448;  Bosshardt  Co.  v.  Crescent  Oil  Co., 


28  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

A.  :  "At  present  I  do  not  know,  but  the  refusal  of  your  offer  for  a 
definite  time  is  worth  something  to  me;  I  will  give  you  so  much  to 
keep  it  open  till  four  o'clock,"  and  A.  were  to  agree  to  this,  then 
A.  would  be  bound  to  keep  his  offer  open,  not  by  the  offer  itself,  but 
by  the  subsequent  independent  contract  (/).28  If  A.  on  Wednesday 
27]  hands  to  *B.  a  memorandum  offering  to  sell  a  house  at  a  certain 
price,  with  a  postscript  stating  that  the  offer  is  to  be  "  left  over  " 
till  nine  o'clock  on  Friday  morning,  A.  may  nevertheless  sell  the 
house  to  C.  at  any  time  before  the  offer  is  accepted  by  B.  If  B.,  with 
notice  of  A.'s  dealing  with  C,  tenders  a  formal  acceptance  to  A.,  this 
is  inoperative  (g).  It  is  different  in  modern  Boman  law.  There  a 
promise  to  keep  a  proposal  open  for  a  definite  time  is  treated  as  bind- 
ing, as  indeed  there  appears  no  reason  why  it  should  not  be  in  a 
system  to  which  the  doctrine  of  consideration  is  foreign :  nay,  there 
is  held  in  effect  to  be  in  every  proposal  an  implied  promise  to  keep 
it  open  for  a  reasonable  time  (h).  In  our  own  law  the  effect  of 
naming  a  definite  time  in  the  proposal  is  simply  negative  and  for  the 
proposer's  benefit  f9  that  is,  it  operates  as  a  warning  that  an  accept- 

(f)   We  find  something  like  this  in  (g)    Dickinson  v.  Dodds    (1876)   2 

early  Germanic  law,  where  earnest  on  Ch.  Div.  463,  45  L.  J.  Ch.  777.     The 

a  sale  was  not  payment  on  account  case   suggests,    but   does    not   decide, 

of  a  completed  contract,  but  the  price  another  question,  which  will  be  pres- 

of  the  seller's  forbearance  to  sell  to  ently    considered.      Contra    Langdell, 

any  other  person  for  a  limited  time.  Summary,   p.   244;   and  on  principle 

Heusler,   Inst,   des  D.  P.   R.   ii.   256,  perhaps  rightly. 
cp.  Glanv.  x.   14,  showing  the  law  to  (h)   See  L.  R.  5  Ex.  337,  n. 

be  then  still  doubtful  in  England. 

171  Pa.  109;  Weaver  v.  Burr,  31  W.  Va.  736.  Where,  on  a  treaty  for  a  sale, 
an  article  is  taken  on  trial,  with  an  option  to  purchase  if  liked,  there  is  no 
contract,  but  only  an  offer  until  the  option  is  determined;  Sturm  v.  Boker,  150 
U.  S.  312;  Davis,  &c,  Works  o.  McHugh,  115  la.  415;  Hunt  v.  Wyman,  100 
Mass  198 ;  Omaha  Bank  v.  Kraus,  62  Neb.  77.  But  where  the  article  is  taken 
with  an  option  to  return  if  not  liked,  there  is  a  contract  in  the  first  place,  sub- 
ject to  a  right  of  rescission;  Foley  v.  Felrath,  98  Ala.  176;  Withersby  v. 
Sleeper,  101  Mass.  138.     See  further,  9  Harv.  L.  Rev.  110. 

28  So  an  option  or  offer  under  seal  is  irrevocable  during  the  time  which  it 
specifies.  Willard  v.  Taylor,  8  Wall.  557;  Johnston  r.  Trippe,  33  Fed.  Rep. 
530;  Mansfield  v.  Hodgdon,  147  Mass.  304,  307;  O'Brien  v.  Boland,  166  Mass. 
481;  Walker  v.  Bamberger,  17  Utah,  239. 

29  When  an  offer  is  in  terms  made  to  remain  open  until  a  fixed  time,  the 
proposal  so  limited  comes  to  an  end  of  itself  at  the  end  of  that  time,  but  a 
willingness  to  contract  on  the  part  of  the  party  making  the  offer  on  the  terms 
named  in  it,  is  presumed  to  continue  during  the  time  limited.  Henthorn  v. 
Fraser  [1892],  2  Ch.  31;  Haldane  v.  United  States,  69  Fed.  Rep.  819;  Smith 
v,  Bateman,  8  Col.  App.  336;  Larmon  v.  Jordan,  56  111.  204;  Galena,  &c.  R.  v. 
Ennor,  116  111.  55;  Crandall  v.  Willig,  166  111.  233;  Coleman  v.  Apple- 
garth,  68  Md.  21;  Railroad  Co.  r.  Bartlett,  3  Cush.  224,  227;  Wilson  v.  Cline, 
70  Mich.  517;  Mactier's  Adm'rs  r.  Frith,  6  Wend.  103,  122;  Cheney  v.  Cook, 
7  Wis.  413;  Sherley  v.  Peehl,  84  Wis.  46. 


REVOCATION.  29 

ance  will  not  be  received  after  the  lapse  of  the  time  named,  not  as 
an  undertaking  that  if  given  sooner  it  shall  be.  In  fact,  the  proposal 
so  limited  comes  to  an  end  of  itself  at  the  end  of  that  time,  and  there 
is  nothing  for  the  other  party  to  accept.30  This  leads  us  to  the  next 
rule,  namely: — 

Conditions  of  offer. 

Determination  of  offer  by  lapse  of  time.  The  proposer  may  prescribe 
a  certain  time  within  which  the  proposal  is  to  be  accepted,  and 
the  manner  and  form  in  which  it  is  to  be  accepted.31  If  no  time 
is  prescribed,  the  acceptance  must  be  communicated  to  him  within 
a  reasonable  time.  In  neither  case  is  the  acceptor  answerable  for 
any  delay  which  is  the  consequence  of  the  proposer's  own  default.  If 
no  manner  or  form  is  prescribed,  the  acceptance  may  be  communi- 
cated in  any  reasonable  or  usual  manner  or  form. 

This  is  almost  self-evident,  standing  alone;  we  shall  see  *the  [28 
importance  of  not  losing  sight  of  it  in  dealing  with  the  difficulties 
to  be  presently  considered.  Note,  however,  that  though  the  proposer 
may  prescribe  a  form  or  time  of  acceptance,  he  cannot  prescribe  a 
form  or  time  of  refusal,  so  as  to  fix  a  contract  on  the  other  party  if 
he  does  not  refuse  in  some  particular  way  or  within  some  particular 
time  (t).32 

Among  other  conditions,  the  proposal  may  prescribe  a  particular 
place  for  acceptance,  and  if  it  does  so,  an  acceptance  elsewhere  will 
not  do  (k).  The  question  in  cases  of  this  kind  is  whether  the  condi- 
tion as  to  time,  place,  or  manner  of  acceptance  was  in  fact  part  of  the 
terms  of  the  proposal. 

There  is  direct  authority  for  the  statement  that  the  proposal  must 

(i)  Felthouse  v.  Bindley  (1862)  11  (k)     Eliason'  v.    Henshaw    (1819) 

C.  B.  N.  S.  869,  875,  31  L.  J.  C.  P.        (Sup.  Ct.  U.  S.)  4  Wheat.  225.  Lang- 
204.  dell,  Sel.  Ca.  on  Cont.  48,  Finch  Se'I. 

Ca.  56. 

SOLarmon  v,  Jordan,  56  111.  204;  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  59; 
Longworth  v.  Mitchell,  26  Ohio  St.  334,  342.  See  also  Haldane  v.  United 
States,  69  Fed.  Rep.  819,  and  cases  cited  in  the  preceding  note. 

31  Where  the  proposal  stipulated  for  an  acceptance  by  return  mail,  and  the 
acceptance  was  not  posted  until  two  days  after  the  receipt  of  the  proposal,  it 
was  held  that  the  promisor  was  not  bound.  Maclay  v.  Harvey,  90  111.  525. 
See  further  as  to  the  effect  of  these  words,  Tinn  r.  Hoffman,  29  L.  T.  N.  S.  271 ; 
Carr  v.  Duval,  14  Pet.  77,  82;  Ortman  v.  Weaver,  11  Fed.  Rep.  358,  362; 
Bernard  t\  Torrance,  5  G.  &  J.  383;  Taylor  v.  Rennie,  35  Barb.  272;  Palmer 
v.  Insurance  Co.,  84  N.  Y.  69;  Howells  v.  Stroock,  50  N.  Y.  App.  Div.  344. 

32  Barton  v.  London  &  N.  W.  Ry.  Co.,  24  Q.  B.  D.  77;  Wiedemann  v.  Wal- 
pole  [1891],  2  Q.  B.  534;  Re  Lloyd  Edwards.  61  L.  J.  Ch.  23;  Grice  v.  Noble, 
59  Mich.  515,  523;  Prescott  v.  Jones,  69  N.  H.  305. 


30  AGKKliMEXT,    PROPOSAL,    AND    ACCEPTANCE. 

at  all  events  be  taken  as  limited  to  a  reasonable  time  (I)  ;33  nor  has 
it  ever  been  openly  disputed.  The  rule  is  obviously  required  by  con- 
venience and  justice.  It  may  be  that  the  proposer  has  no  means  of 
making  a  revocation  known  (e.  g.,  if  the  other  party  changes  his 
address  without  notice  to  him,  or  goes  on  a  long  journey),  and  he 
cannot  be  expected  to  wait  for  an  unlimited  time.  Words  of  present 
obligation  (but  not  capable  of  operating  to  that  effect)  have  been 
held  to -constitute  an  offer  with  limit  of  time  (m). 


Limits  of  Revocation. 

Revocation  must  be  communicated  before  acceptance.-  A  proposal  is  re- 
voked by  communication  to  the  other  party  of  the  proposer's  inten- 
tion to  revoke  it,  and  the  revocation  can  take  effect  only  when  that 
communication  is  made  before  acceptance. 

29  ]  *The  communication  may  be  either  express  or  tacit,  and  notice 
received  in  fact,  whether  from  the  proposer  or  from  any  one  in  his 
behalf  or  otherwise,  is  a  sufficient  communication. 

A  person  who  has  made  an  offer  must  he  considered  as  continu- 
ously making  it  until  he  has  brought  to  the  knowledge  of  the  per- 
son to  whom  it  was  made  that  it  is  withdrawn  (;;).  But  that  person's 
refusal  or  counter-offer  puts  an  end  to  the  original  offer  (nn).3i 

Revocation  after  acceptance  too  late.  The  first  point  under  this  head 
is  that  an  express  revocation  communicated  after  acceptance,  though 

(l)    Baihfs   case    (1868)    L.    R.    5  («)    Lord   Herschell,    Henthom  v. 

Eq.  428,  L.  R.  3  Ch.  592,  37  L.  J.  Ch.  Fraser   [1892]   2  Ch.  27,  31,  61  L.  J. 

255 ;    Ramsgate  Hotel   Co.  v.   Monte-  Ch.  373,  66  L.  T.  439. 
fiore;  same   Co.  v.   Goldsmid    (1866)  (rot)    Hyde   v.    Wrench    (1840)    3 

L.  R.  1  Ex.   109,  35  L.  J.  Ex.  90.  Beav.   334.   52   R.   R.    144.      [Tinn  v. 

(m)    Hindley's    case    [1896]    2    Ch.  Hoffman,  29  L.  T.  N.  S.  271.] 
121,  65  L.  J.  Ch.  591,  C.  A. 

33  Minnesota  Oil  Co.  t.  Collier  Lead  Co.,  4  Dillon,  431 ;  De  Witt  r.  Railway 
Co.,  41  Fed.  Rep.  484;  Hargadine  r.  McKittriek  Co.,  64  Fed.  Rep.  560;  Averill 
v.  Hedge,  12  Conn.  424;  Ferrier  r.  Storer,  63  la.  484;  Trounstine  v.  Sellers,  25 
Kans.  447;  Moxley  v.  Moxley,  2  Met.  (Ky.)  309;  Loring  v.  Boston,  7  Met.  457; 
Fark  i\  Whitney,  148  Mass.  278;  Railroad  Co.  v.  Dane,  43  N.  Y.  240;  Mizell 
r.  Burnett,  4  Jones  L.  240;    Sherley  i.  Peehl,  84  Wis.  46. 

34  A  counter-offer  rejects  the  original  offer.  National  Bank  v.  Hall,  101  U. 
S.  43,  50;  Minneapolis,  &c,  Ry.  Co.  «.  Columbus  Rolling  Mills,  119  U.  S.  149; 
Ortman  v.  Weaver,  11  Fed.  Rep.  358;  Arthur  v.  Gordon,  37  Fed.  Rep.  558; 
W.  &  H.  M.  Goulding  Co.  r.  Hammond,  54  Fed.  Rep.  639  (C.  C.  A.)  ;  James 
ii.  Darby,  100  Fed.  Rep.  224;  Anglo-American  Co.  r.  Prentiss,  157  111.  506; 
Grenier  r.  Cota,  92  Mich.  23 ;  Baker  v.  Johnson  Co.,  37  la.  186,  189 ;  Cartmel 
1\  Newton,  79  Ind.  1,  8 ;  Fox  v.  Turner,  1  111.  App.  153 ;  Egger  r.  Nesbitt,  122 
Mo.  667 ;  Harris  v.  Scott,  67  N.  H.  437 ;  Russell  v.  Falls  Mfg.  Co.,  106  Wis.  329. 


COMMUNICATION    OF    REVOCATION.  31 

determined  upon  before  the  date  of  the  acceptance,  is  too  late.^5 
This  was  decided  so  lately  as  in  1880  in  two  distinct  cases  (o).  It 
will  suffice  to  give  shortly  the  facts  of  the  earlier  one  (p).  The 
defendants  at  Cardiff  wrote  to  the  plaintiffs  at  New  York  on  the 
1st  of  October,  1879,  offering  for  sale  1000  boxes  of  tinplates  on 
certain  terms.  Their  letter  was  received  on  the  11th,  and  on  the 
same  day  the  plaintiffs  accepted  the  offer  by  telegraph,  confirming 
this  by  a  letter  sent  on  the  15th.  Meanwhile  the  defendants  on 
the  8th  of  October  had  posted  a  letter  withdrawing  their  offer  of 
the  1st:  this  reached  the  plaintiffs  on  the  20th.  The  plaintiffs 
insisted  on  completion  of  the  contract;  the  defendants  maintained 
that  there  was  no  contract,  the  offer  having  been,  in  their  view, 
withdrawn  before  the  acceptance  was  either  received  or  despatched. 
Lindley  J.  stated  as  follows  the  questions  to  be  considered:  "1. 
Whether  a  withdrawal  of  an  offer  has  any  effect  until  it  is  com- 
municated to  the  person  to  whom  the  offer  has  been  sent?  2. 
Whether  posting  a  letter  of  withdrawal  is  a  communication  to 
the  person  to  whom  the  letter  is  sent?  "  The  *first  he  answered  [30 
in  the  negative,  on  the  principle  "  that  a  state  of  mind  not  notified 
cannot  be  regarded  in  dealings  between  man  and  man,  and  that  an 
uncommunicated  revocation  is  for  all  practical  purposes  and  in  point 
of  law  no  revocation  at  all."  3S     The  second  he  likewise  answered  in 

(o)     (1880)    Byrne    v.    Van    Tien-  [1892]    2  Ch.   27,   61   L.   J.   Ch.   373, 

hoven,  5  C.  P.  D.  344,  49  L.  J.  C.  P.  fully  confirms  these  decisions. 

316,   Finch   Sel.    Ca.    104;    Stevenson  (p)    Byrne  v.   Van  Tienhoven,  last 

v.  McLean  (1880)   5  Q.  B.  D.  346,  49  note. 
L.  J.  Q.  B.  701;  Henthorn  v.  Fraser 

38  Revocation  is  ineffectual  until  received  by  the  offeree:  Re  London  &  North- 
ern Bank,  [1900]  1  Ch.  220;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390; 
Patrick  v.  Bowman,  149  U.  S.  411,  424;  The  Palo  Altp,  2  Ware,  343;  Kempner 
v.  Cohn,  47  Ark.  519;  Sherwin  v.  Nat.  Cash  Register  Co.,  5  Col.  App.  162; 
Wheat  v.  Cross,  31  Md.  99;  Brauer  v.  Shaw,  168  Mass.  198.  The  contrary 
implications  in  Cooke  v.  Oxley,  3  T.  R.  653 ;  Adams  v.  Lindsell,  1  B.  &  Aid. 
681;  Head  r.  Diggon,  3  Man.  &  R.  97;  Hebb's  Case,  L.  R.  4  Eq.  9,  must  be 
regarded  as  overruled. 

In  Patrick  v.  Bowman,  149  TJ.  S.  411,  the  Court,  after  holding  that  a  revoca- 
tion of  an  offer  not  received  before  acceptance  was  ineffectual,  said  (at  p.  424)  : 
"  There  is  indeed,  in  a  case  of  this  kind,  some  reason  for  urging  that  the 
party  making  the  revocation  should  be  estopped  to  claim  that  his  attempted 
withdrawal  was  not  binding  upon  himself;  but  this  could  not  be  done  without 
infringing  upon  the  inexorable  rule  that  one  party  to  a  contract  cannot  be 
bound  unless  the  other  be  also,  notwithstanding  that  the  principle  of  mutuality 
thus  applied  may  enable  a  party  to  take  advantage  of  the  invalidity  of  his 
own  act." 

36  The  principle  that  the  law  takes  no  notice  of  mere  mental  operations 
apart  from  a  physical  expression  of  them,  was  quaintly  stated  by  Brian,  C  J., 
17  Edw.  IV,  T.  Pasch.,  case  2,  who  said,  as  quoted  by  Lord  Blackburn,  in 
Brogden  v.  Metropolitan  Rwy.  Co.,  2  App.  Cas.  666,  692,  "  it  is  trite  law  that 


32  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

the  negative,  on  grounds  of  both  principle  and  convenience,  and 
notwithstanding  an  apparent,  but  only  apparent,  inconsistency  with 
the  rule  as  to  acceptances  by  letter  which  will  be  presently  considered. 
This  doctrine  has  been  accepted  by  the  Supreme  Court  of  the  United 
States  (q). 

Tacit  revocation.  It  seems  impossible  to  find  any  reason  in  principle 
why  the  necessity  for  communication  should  be  less  in  the  case  of  a 
revocation  which  is  made  not  by  words  but  by  conduct,  as  by  disposing 
to  6ome  one  else  of  a  thing  offered  for  sale.  Nor  does  it  seem  practica- 
ble in  the  face  of  the  decisions  just  cited,  though  they  do  not  actually 
cover  such  a  case,  to  say  that  any  such  difference  is  recognized  by 
the  law  of  England.  The  authority  most  in  point,  Dickinson  v. 
Dodds  (r),  is  not  of  itself  decisive.  The  facts  were  these.  A.  offered 
in  writing  to  sell  certain  houses  to  B.,  adding  a  statement  that  the 
offer  was  to  be  "  left  over  "  until  a  time  named ;  which  statement,  as 
we  have  already  seen,  could  have  no  legal  effect  unless  to  warn  B. 
that  an  acceptance  would  not  be  received  at  any  later  time.  B. 
made  up  his  mind  the  next  morning  to  accept,  but  delayed  communi- 
cating his  acceptance  to  A.  In  the  course  of  the  day  he  heard  from 
a  person  who  was  acting  as  his  agent  in  the  matter  that  A.  had 
meanwhile  offered  or  agreed  to  sell  the  property  to  C.  Early  on  the 
following  day  (and  within  the  time  limited  by  A.'s  memorandum) 
B.  sought  out  A.  and  handed  a  formal  acceptance  to  him;  but  A. 
answered,  "  You  are  too  late.  I  have  sold  the  property."  It  was 
held  in  the  first  instance  by  Bacon  V.C.  that  A.  had  made  to  B. 
31  ]  an  offer  which  up  to  the  time  of  acceptance  he  had  *not  re- 
voked, and  that  consequently  there  was  a  binding  contract  between 
A.  and  B.  But  in  the  Court  of  Appeal  it  was  said  that,  although 
no  "  express  and  actual  withdrawal  of  the  offer "  had  reached  B., 
yet  by  his  own  showing  B.,  when  he  tendered  his  acceptance  to  A., 
well  knew  that  A.  had  done  what  was  inconsistent  with  a  continued 
intention  of  contracting  with  B.  Knowing  this,  B.  could  not  by 
a  formal  acceptance  force  a  contract  on  A.  (s).     It  does  not  appear 

(q)  Patrick  v.  Bowman  (1893)  149  (s)    The  headnote   9ays:   "Semite, 

U.  S.  411,  424.  that   the   sale   of   the   property   to   a 

(r)    (1876)  2  Ch.  Div.  463,  45  L.J.  third  person  would  of  itself  amount 

Ch.  777.     One  or  two  immaterial  de-  to   a   withdrawal   of   the   offer,   even 

tails  are  omitted  in  stating  the  facts.  although    the    person    to    whom    the 

the  thought  of  man  is  not  triable,  for  even  the  devil  does  not  know  what  the 
thought  of  man  is."  See  also  Bowman  r.  Patrick,  36  Fed.  Rep.  138,  144; 
The  Palo  Alto,  Davies,  343,  357;  O'Donnell  v.  Clinton,  145  Mass.  461,  463; 
Prescott  r.  Jones,  69  N.  H.  305,  307 ;  White  v.  Corlies,  46  N.  Y.  467,  469. 


COMMUNICATION    OF    REVOCATION.  33 

that  the  knowledge  which  B.  in  fact  bad  was  conveyed  to  him  or  his 
agent  by  or  through  A.,  or  any  one  intending  to  communicate  it  on 
A.'s  behalf.  Yet  the  Court  held  that  knowledge  in  point  of  fact 
of  the  proposer's  changed  intention,  however  it  reaches  the  other 
party,  will  make  the  proposer's  conduct  a  sufficient  revocation.37 
But  what  if  B.  had  communicated  his  acceptance  to  A.  without 
knowing  anything  of  A.'s  dealings  with  C?  This  question  remains 
open,  and  must  be  considered  on  principle. 

Possibility  of  double  acceptance.  Suppose  that  A.  offers  to  sell  one 
hundred  tons  of  iron  to  B.,  not  designating  any  specific  lot  of  iron, 
and  that  B.  desires  time  to  consider,  and  A.  assents.  Then  A.  meets 
with  C,  they  talk  of  the  price  of  iron,  and  C.  offers  A.  a  better  price 
than  he  has  asked  from  B.,  and  they  strike  a  bargain  for  a  hundred 
tons.  Then  B.  returns,  and  in  ignorance  of  A.'s  dealings  with  C. 
accepts  A.'s  offer  formerly  made  to  him.  Here  are  manifestly  two 
good  contracts.  A.  is  bound  to  deliver  100  tons  of  iron  to  B.  at 
one  price,  and  100  tons  to  C.  at  another.  And  if  A.  has  in  fact 
only  100  tons,  and  was  thinking  only  of  those  hundred  tons,  it 
makes  no  difference.  He  would  be  equally  bound  to  B.  and  C.  if  he 
had  none.  He  must  deliver  them  iron  of  the  quantity  and  quality 
contracted  *for,  or  pay  damages.  How  then  will  the  case  stand  [32 
if,  other  circumstances  being  the  same,  the  dealing  is  for  specific 
goods,  or  for  a  house?38  Here  it  is  impossible  that  A.  should  per- 
form his  agreement  with  both  B.  and  C,  and  therefore  they  cannot 
both  make  him  perform  it;  but  that  is  no  reason  why  he  should 
not  be  answerable  to  both  of  them.  The  one  who  does  not  get  per- 
formance may  have  damages.  It  remains  to  ask  which  of  them 
shall  have  the  option  of  claiming  performance,  if  the  contract  is 
otherwise  such  that  its  performance  can  be  specifically  enforced. 
The  most  convenient  solution  would  seem  to  be  that  he  whose  ac- 
ceptance is  first  in  point  of  time  should  have  the  priority:  for  the 
preference  must  be  given  to  some  one,  and  the  first  acceptance 
makes  the  first  complete  contract.  There  is  no  reason  for  making 
the  contract  relate  back  for  this  purpose  to  the  date  of  the  proposal. 
This    is    consistent    with    everything   that   was    really    decided    in 

offer  was   first  made  had  no  knowl-  and   of  Mellish   L.J.   at  p.   475,   and 

edge  of   the  sale."      But   this    seems  per     Lord     Herschell,     Henthorn     v. 

unwarranted  by  the  judgments.     See  Fraser  [1892]   2  Ch.  at  p.  33-. 
the  remarks  of  James  L.J.  at  p.  472, 

37McCauley  v.  Coe,  150  111.  311,  319;  Coleman  v.  Applegarth,  68  Md.  21, 
ace.    Cp.  Wickham  v.  Winchester,  75  la.  327;  Brauer  v.  Shaw,  168  Mass.  198. 
38  See  Ahern  v.  Baker,  34  Minn.  98. 
3 


34  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

Dickinson  v.  Dodds  (t).    The  reasons  given  for  that  decision  cannot, 
it  is  submitted,  be  relied  on. 

It  is  right  to  add  that  Cooke  v.  Oxley  (u)  may  be  so  read  as  to  sup- 
port the  opinion  that  a  tacit  revocation  need  not  be  communicated  at 
all.  But  the  apparent  inference  to  this  effect  is  expressly  rejected  in 
Stevenson  v.  McLean  (x).  If  Cooke  v.  Oxley  be  still  authority  for 
anything,  it  is  not  authority  for  that.39 

(t)  2  Ch.  Div.  463,  45  L.  J.  Ch.  damages,  but  apparently  nothing  was 
777.      Note    that    the    suit    was    for       said  about  it. 

specific    performance,    and   cp.    Lang-  fii)    (1790)    1   R.  R.  783,  3  T.  R. 

dell,    Summary,    245-6,    and    Anson,       653. 

33-35.     There"  was  also  a  claim  for  (a;)    (1880)    5  Q.  B.  D.  at  p.  351, 

49  L.  J.  Q.  E.  701. 

39  One  of  the  most  troublesome  questions  in  regard  to  revocation  relates  to 
the  right  of  an  offerer  to  revoke  an  offer  to  make  a  unilateral  contract  after 
the  consideration  has  been  partly  performed  but  before  it  has  been  completely 
performed.  On  principle  it  is  hard  to  see  why  the  offerer  may  n6t  thus 
revoke  his  offer.  He  cannot  be  said  to  have  already  contracted,  because  by 
the  terms  of  his  offer  he  was  only  to  be  bound  if  something  was  done,  and  it 
has  not  as  yet  been  done,  though  it  has  been  begun.  Moreover,  it  may  never 
be  done,  for  the  promisee  has  made  no  promise  to  complete  the  act  and  may 
cease  performance  at  his  pleasure.  ■  To  deny  the  offerer  the  right  to  revoke  is, 
therefore,  in  effect  to  hold  the  promise  of  one  contracting  party  binding, 
though  the  other  party  is  neither  bound  to  perform  nor  has  actually  per- 
formed the  requested  consideration.  The  practical  hardship  of  allowing  revo- 
cation under  such  circumstances  is  all  that  can  make  the  decision  of  the 
question  doubtful.  The  only  reference  to  the  matter  in  the  English  books  is 
in  Offord  v.  Davies,  12  C.  B.  N.  S.  748,  where  in  the  course  of  the  argument 
Williams,  J.,  asked :  "  Suppose  I  guarantee  the  price  of  a  carriage  to  be 
built  for  a  third  party  who,  before  the  carriage  is  finished,  and  consequently 
before  I  am  bound  to  pay  for  it,  becomes  insolvent,  may  I  recall  my  guar- 
anty?" The  counsel  replied:  "Not  after  the  coach  builder 'has  commenced 
the  carriage,"  and  Erie,  C.  J.,  added:  "Before  it  ripens  into  a  contract, 
either  party  may  withdraw,  and  so  put  an  end  to  the  matter.  But  the  moment 
the  coach  builder  has  prepared  the  materials  he  would  probably  be  found  by 
the  jury  to  have  contracted."  A  somewhat  similar  suggestion  is  made  by 
the  Illinois  Supreme  Court  in  Plumb  v.  Campbell,  129  111.  101,  107 :  Appellant 
(the  offerer)  could  be  bound  in  three  ways:  "First  by  appellee  engaging 
within  a  reasonable  time  to  perform  the  contract  on  his  part;  second,  by 
beginning  such  performance  in  a,  way  which  would  bind  him  to  complete  it, 
and  third,  by  actual  performance."  See  also  Blumenthal  r.  Goodall,  89  Cal. 
251;  Los  Angeles  Traction  Co.  v.  Wilshire,  135  Cal.  654,  658;  Society  v. 
Brumfield,  102  Ind.  146. 

The  difficulty  with  these  solutions  of  the  problem  is  that  they  fail  to  take 
into  account  the  offerer's  right  to  impose  such  conditions  as  he  chooses  in  his 
offer.  An  offer  conditional  on  the  performance  of  an  act  does  not  become  a 
contract  by  the  doing  of  anything  else,  such  as  part  performance  or  giving 
the  offerer  a  promise  to  do  the  act.  See  White  v.  Corlies,  46  N.  Y.  467.  Nor 
can  it  be  admitted  that  beginning  performance  by  one  to  whom  an  offer  of 
a  unilateral  contract  has  been  made  imports  any  promise  on  his  part  to  com- 
plete the-  performance.  The  decision  in  Biggers  r.  Owen,  79  Ga.  658,  there- 
fore, seems  sound,  although  the  result  is  harsh.  In  that  case  it  was  held  that 
an  offer  of  reward  might  be  withdrawn,  after  the  plaintiff  had  nearly  com- 
pleted the  performance  requested.  See  also  Cook  v.  Casler,  87  N.  Y.  App. 
Div.  8. 

By  express  provision  of  the  codes  in  many  European  countries,  an  offer  is 


COMMUNICATION.  35 

Limits  of  Acceptance  or  of  its  Revocation. 

Communication  of  acceptance.  There  is  a  material  distinction,  though 
it  is  not  fully  recognized  in  the  language  of  our  authorities,  between 
the  acceptance  of  an  offer  which  asks  for  a  promise,  and  of  an  offer 
which  asks  for  an  act,  as  the  condition  of  the  offer  becoming  a 
promise.40  Where  the  acceptance  is  to  consist  of  a  *promise,  it  [33 
must  be  communicated  to  the  proposer  (y).  But  where  the  accept- 
ance is  to  consist  of  an  act  —  as  despatching  goods  ordered  by  post  — 
it  seems  that  no  fttffher  communication  of  the  acceptance  is  necessary 
than  the  performance  of  the  proposed  act,  or  at  any  rate  the  proposer 

(V)   Mozley  v.  Tinkler  (1835)    1  C.       804,    29    L.    J.    Ex.    9;    Hebb's    case 
M.  &  R.  692,  40  R.  R.  675;  Russell  v.        (1867)  L.  R.  4  Eq.  9. 
Thornton  (1859)   4  H.  &  N.  788,  798, 

irrevocable  until  the  person  addressed  has  had  a  reasonable  time  to  answer  it. 
See  Valery,  Contrats  par  Correspondanee,  p.  167.  In  the  absence  of  such 
legislation  the  weight  of  opinion  in  the  civil  law  is  that  an  offer  may  be 
revoked,  ibid.  There  has  been  much  difference  of  opinion,  however,  as  to 
the  liability  of  an  offerer  who  revokes  his  offer  for  such  damage  as  the  person 
addressed  may  have  incurred  by  acting  in  reliance  on  the  offer.  The  theory 
of  the  offerer's  liability  was  first  elaborated  by  von  Ihering,  Jahrbiieher  fur 
Dogmatik,  IV,  p.  1  seq.,  under  the  heading  of  culpa  in  contrahendo.  For  the 
varying  views  of  other  writers,  see  Windscheid,  Lehrbuch  des  Pandektenrechts, 
II.  §  307,  n.  8   (8th  ed.)  ;  Valery,  §  185. 

40  When  the  consideration  on  each  side  is  a  promise,  the  contract  is  bilateral ; 
a  binding  promise,  the  consideration  of  which  is  anything  else  than  a  promise, 
is  a  unilateral  contract;  see  Langdell,  Summary,  §  183.  In  a  bilateral  con- 
tract, both  parties  must  be  bound  at  the  same  time,  or  neither  is  bound.  In 
a  unilateral  contract  the  offeree  is  not  bound  to  perform  at  all,  nor  until  per- 
formance by  him  is  the  offerer  bound,  but  upon  performance  by  the  offeree  the 
proposal  of  the  offerer  is  converted  into  a  binding  promise.  "  Thus  if  A. 
promises  B.  to  pay  him  a  sum  of  money  if  he  will  do  a  particular  act,  and  B. 
does  the  act,  the  promise  thereupon  becomes  binding,  although  B.  at  the  time 
of  the  promise  does  not  engage  to  do  the  act;"  Train  v.  Gold,  5  Pick. 
380,  385;  Matthews  v.  Fitch,  22  Cal.  86;  Perkins  v.  Hadsell,  50  111.  216; 
Plumb  v.  Campbell,  129  111.  101;  Cottage  Street  Church  v.  Kendall,  121 
Mass.  528,  530;  Wellington  v.  Apthorp,  145  Mass.  69;  McMillan  v.  Ames,  33 
Minn.  257;  Stensgaard  r.  Smith,  43  Minn.  11;  Barnes  v.  Perrine,  9  Barb.  202; 
L'Amoureux  v.  Gould,  7  N.  Y.  349;  Todd  V.  Weber,  95  N.  Y.  181,  191-192; 
Miller  v.  McKenzie,  95  N.  Y.  575 ;  Beckwith  v.  Brackett,  97  N.  Y.  52 ;  Morse 
v.  Bellows,  7  N.  H.  549;  Gurin  v.  Cromartie,  11  Ired.  174;  Stahl  v.  Van  Vleck, 
53  Ohio  St.  136,  148. 

The  distinction  between  unilateral  and  bilateral  contracts  was  fully  recog- 
nized three  hundred  years  ago,  but  lack  of  appropriate  names  caused  the  im- 
portance of  the  distinction  to  be  frequently  overlooked.  The  earliest  use  of 
the  words  bilateral  or  unilateral  in  our  law  seems  to  have  been  by  Judge 
Dillon,  in  Barrett  v.  Dean,  21  la.  423.  The  terms  were  popularised  by  Pro- 
fessor Langdell,  and  are  now  in  common  use  in  the  reports.  See,  e.  p.,  Steven- 
son v.  McLean,  5  Q.  B.  D.  346,  351;  Davis  v.  Wells,  104  U.  S.  159,  166;  Har- 
mon v.  Adams,  120  U.  S.  363,  365 ;  Los  Angeles  Traction  Co.  v.  Wilshire,  135 
Cal.  654,  658;  Nowlin  v.  Pyne,  40  la.  166;  Coleman  v.  Applegarth,  68  Md.  21, 
25,  27;  First  Bank  v.  Watkins,  154  Mass.  385,  387;  Thomas  v.  Barnes,  156 
Mass.  581;  McMillan  v.  Ames,  33  Minn.  257;  Stensgaard  v.  Smith,  43  Minn. 
11,  15;  Barrow  S.  S.  Co.  r.  Mexican  Cent.  Ry.  Co.,  134  N.  Y.  15,  24. 


36  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

may  dispense  with  express  communication,  and  an  intention  to  dis- 
pense with  it  may  be  somewhat  readily  inferred  from  the  nature  of 
the  transaction  (z). 

Means  authorized  by  proposer.  Further,  even  when  the  acceptance  con- 
sists of  a  promise,  and  therefore  must  be  communicated,  any  reason- 
able means  of  communication  prescribed  or  contemplated  by  the 
proposer  are  deemed  sufficient  as  between  the  acceptor  and  himself. 

Post  or  telegraph.  If  an  acceptance  by  means  wholly  or  partly  be- 
yond the'sender's  control,  such  as  the  public  post  or  telegraph  (a),  is 
contemplated  by  the  parties,  then  an  acceptance  so  despatched  is  com- 
plete as  against  the  proposer  from  the  time  of  its  despatch  out  of  the 
senders  control;  and,  what  is  more,  is  effectual  notwithstanding  any 
miscarriage  or  delay  in  its  transmission  happening  after  such 
despatch. 

The  parties  are  presumed  to  contemplate  acceptance  by  post  or 
telegraph  whenever  the  circumstances  are  such  as  to  make  such 
acceptance  reasonable  in  the  usual  course  of  business  (&). 

General  rule  of  communication.  It  should  seem  obvious  that  an  un- 
communicated  mental  assent,  since  it  is  neither  the  communication 
of  a  promise  nor  an  overt  act  of  performance,  cannot  make  a  contract 
in  any  class  of  cases ;  though  so  lately  as  1877  it  was  found  needful  to 
34]  reassert  this  principle  in  the  House  of  Lords  (c).  *At  the  same 
time  a  proposer  who  prescribes  a  particular  manner  of  communication 
may  preclude  himself  from  afterwards  showing  that  it  was  not  in 
fact  sufficient.  In  Lord  Blackburn's  words,  "  when  an  offer  is  made 
to  another  party,  and  in  that  offer  there  is  a  request  express  or  im- 
plied that  he  must  signify  his  acceptance  by  doing  some  particular 
thing,  then  as  soon  as  he  does  that  thing  there  is  a  complete  contract." 
The  most  important  application  of  this  exception  will  come  before  us 
immediately.  But  it  is  not  true  "  that  a  simple  acceptance  in  your 
own  mind,  without  any  intimation  to  the  other  party,  and  expressed 

(z)   Carlill  v.  Carbolic  Smoke  Ball  (f>)    Henthorn  v.  Fraser   [1892]   2 

Co.   [1893]    1   Q.  B.  256,  per  Lindley  Ch.  27,  61  L.  J.  Ch.  373. 

L.J.  at  pp.  262-3,  Bowen  L.J.  at  p.  (c)    Brogden  v.   Metropolitan   Ry. 

269.      [See  ante,  p.  21,  n.  21.]  Co.     (1877)     2    App.    Ca.    at    p.    688 

(a)   As  to  the  telegraph  being  on  (Lord    Selborne),    at    p.    691     (Lord 

the    same     footing     as     letter     post,  Blackburn),    and    at    p.    697     (Lord 

Coican  v.  O'Connor  (1888)    20  Q.  B.  Gordon).       The     judgments     in     the 

D.  640,  57  L.  J.  Q.  B.  401.  Court  below  which  gave  rise  to  these 

remarks  are  not  reported. 


CONTRACTS  BY   CORRESPONDENCE.  37 

by  a  mere  private  act,  such  as  putting  a  letter  into  a  drawer,"  will, 
as  a  rule,  serve  to  conclude  a  contract  (d).41 

Contracts  by  correspondence.  We  now  come  to  the  special  rules  which, 
after  much  uncertainty,  have  been  settled  by  our  Courts  as  to  contracts 
entered  into  by  correspondence  between  persons  at  a  distance.  Before 
dealing  with  authorities  it  may  be  useful  to  show  the  general  nature 
of  the  difficulties  that  arise.  We  start  with  the  principle  that  the 
proposer  is  bound  from  the  date  of  acceptance.  Then  we  have  to  con- 
sider what  is  for  this  purpose  the  date  of  acceptance,  a  question  of 
some  perplexity,  and  much  vexed  in  the  books.  It  appears  just  and 
expedient,  as  concerning  the  accepting  party's  rights,  that  the  ac- 
ceptance should  date  from  the  time  when  he  has  done  all  he  can  to 
accept,  by  putting  his  affirmative  answer  in  a  determinate  course  of 
transmission  to  the  proposer.  Prom  that  time  he  must  be  free  to 
act  on  the  contract  as  valid,  and  disregard  any  revocation  that 
*reaches  him  afterwards.  Hence  the  conclusion  is  suggested  that  [35 
at  this  point  the  contract  is  irrevocable  and  absolute.  But  are  we  to 
hold  it  absolute  for  all  purposes?  Shall  the  proposer  be  bound, 
though,  without  any  default  of  his  own,  the  acceptance  never  reach 
him  ?  Shall  the  acceptor  remain  bound,  though  he  should  afterwards 
despatch  a  revocation  which  arrives  with  or  even  before  the  accept- 
ance ?  The  first  question  is  answered  by  our  Courts  in  the  affirmative ; 
the  second  is  still  open.  On  principle  a  negative  answer  to  both  would 
seem  the  more  reasonable.  The  proposer  cannot,  at  all  events,  act  on 
the  contract  before  the  acceptance  is  communicated  to  him ;  as  against 
him,  therefore,  a  revocation  should  be  in  time  if  it  reaches  him  to- 
gether with  or  before  the  original  acceptance,  whatever  the  relative 
times  of  their  despatch.  On  the  other  hand,  it  seems  not  reasonable 
that  he  should  be  bound  by  an  acceptance  that  he  never  receives.  He 
has  no  means  of  making  sure  whether  or  when  his  proposal  has  been 
received  (e),  or  whether  it  is  accepted  or  not,  for  the  other  party 

(d)  As  to  a  different  rule  formerly  company  for  which  the  shares  are  a 

supposed  to  have  been  introduced  in  necessary    qualification,    is    enough, 

the  case  of  agreements  to  take  shares  This  of  course  is  quite  in  accordance 

under  the  Companies  Act,   1862,  see  with  general  principles.     Richards  v. 

Gunn's  case    (1867)   L.  R.  3  Ch.  40,  Home  Assurance  Association   (1871) 

37  L.  J.  Ch.  40.     There  need  not  be  L.  R.  6  C.  P.  591,  40  L.  J.  C.  P.  290. 

formal    notice    of    allotment;    acting  [See  Coffin  v.  Portland,  43  Fed.  Rep. 

towards  the  applicant  on  the  footing  411,  413.] 

that  he  has  got  the  shares,  e.  g.  ap-  (e)    It    is    possible    to    obtain    an 

pointing  him  to  an  office  under  the  official    acknowledgment   of   the    due 

41  Trounstine  v.  Sellers,  25  Kan.  447.  See  McClure  v.  Times  Pub.  Co.,  169 
Pa.  213;  ante,  p.  14,  n.  12. 


38  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

need  not  answer  at  all.    The  acceptor  might  more  reasonably  be  left 
to  take  the  more  avoidable  risk  of  his  acceptance  miscarrying. 

Theories  proposed  in  English  cases.  In  the  judicial  treatment  of  these 
questions,  however,  considerations  of  a  different  kind  have  prevailed. 
It  has  been  assumed  that  there  must  be  some  one  moment  at  which 
the  consent  of  the  parties  is  to  be  deemed  complete,  and  the  contract 
absolute  as  against  both  of  them  and  for  all  purposes ;  and  further,  a 
peculiar  character  has  been  attributed  to  the  post-office  as  a  medium 
of  communication.  In  some  of  the  cases  it  is  said  that  the  acceptance 
of  a  proposal  by  post  completes  the  contract  as  soon  as  the  letter  is 
despatched,  because  the  post-office  is  the  common  agent  of  both  parties. 
36]  This  may  be  so  as  regards  the  *property  in  the  letter,  but  the 
promise  expressed  by  the  words  written  on  the  paper  is  not  a  subject 
of  bailment.  But  the  reason  has  been  put  in  a  different  way ;  namely, 
that  a  man  who  requests  or  authorizes  an  acceptance  of  his  offer  to  be 
sent  in  a  particular  way  must  take  the  risks  of  the  mode  of  trans- 
mission which  he  has  authorized,  and  that  in  the  common  course  of 
affairs  the  sending  of  a  written  offer  by  post  amounts  to  an  authority 
to  send  the  answer  in  the  same  manner;  and  still  more  lately  (/)  it 
has  been  put  on  the  broader  ground  that  persons  who  are  not  in  im- 
mediate neighbourhood  contemplate  the  post-office  as  the  ordinary 
and  reasonable  means  of  communication.  But  if  the  proposer  of  a 
contract  by  letter  does  not  really  choose  the  post  as  a  means  of  com- 
munication any  more  than  the  acceptor,  it  is  not  easy  to  see  why  the 
risk  of  miscarriage  should  be  thrown  on  him  by  preference. 

Revocation  arriving  before  acceptance.  Much  of  the  language  that  has 
been  used  suggests,  though  it  only  suggests,  the  consequence  that  even 
a  revocation  despatched  after  the  acceptance  and  arriving  before  it 
would  be  inoperative.  If  the  contract  is  absolutely  bound  by  posting 
a  letter  of  acceptance,  a  telegram  revoking  it  would  be  too  late;  and 
this  even  if  the  letter  never  arrived  at  all,  so  that  the  revocation  were 
the  only  notice  received  by  the  proposer  that  there  ever  had  been  an 
acceptance. 

This  is  a  startling  consequence  at  first  sight,  but  the  hardship  is 
less  than  it  seems,  for  a  party  wishing  to  reserve  his  freedom  of  action 
as  long  as  possible  will  still  have  two  ways  of  doing  so :  he  may  make 
his  acceptance  in  writing  expressly  subject  to  revocation  by  telegraph, 

delivery  of   a   registered   letter;    but  (f)   Henthom  v.  Fraser,  [1892]  2 

this  does  not  prove  that  the  contents        Ch.  27,  61  L.  J.  Ch.  373. 
have  actually  come  to  the  knowledge 
of  the  addressee. 


CONTRACTS   BY   CORRESPONDENCE.  39 

or  he  may  abstain  from  answering  by  letter  at  all,  and  only  telegraph 
his  final  decision.  English  Courts  may  now  be  bound  to  hold  that  an 
unqualified  acceptance,  once  posted,  cannot  be  revoked  even  by  a 
telegram  or  special  messenger  outstripping  its  arrival. 

*  Earlier  cases  on  contracts  by  correspondence.     Turning  to  the  au-  [37 

thorities,  we  need  not  dwell  much  on  the  earlier  cases,  of  which  an  ac- 
count is  given  in  the  Appendix  (g).  They  established  that  an  accept- 
ance by  post,  despatched  in  due  time  as  far  as  the  acceptor  is  concerned, 
concludes  the  contract  notwithstanding  delay  in  the  despatch  by  the 
proposer's  fault  (as  if  the  offer  is  misdirected),  or  accidental  delay  in 
the  delivery;  and  that  the  contract,  as  against  the  proposer,  dates 
from  the  posting,  so  that  he  cannot  revoke  his  offer  after  the  accept- 
ance is  despatched.42    Until  1879  it  was  uncertain  whether  a  letter  of 

(g)  See  Note  B.  For  recent  Con-  fur  biirgerl.  Reeht,  March,  1889: 
tinental  opinions  see  Prof.  J.  Kohler,  Val6ry,  Des  Contrats  par  Correspond- 
Vertrag  unter  Abwesenden,  in  Archiv       ance,  Paris,  1895. 

• 
42  The  same  rule  applies  in  the  United  States  and  Canada:  Tayloe  r.  Mer- 
chants' F.  Ins.  Co.,  9  How.  390;  Patrick  v.  Bowman,  149  U.  S.  411;  Winter- 
port,  &c.,  Co.  v.  The  Jasper,  1  Holmes,  99;  Re  Dodge,  9  Ben.  482;  Darlington 
Iron  Co.  I?.  Foote,  16  Fed.  Rep.  646;  Sea  Ins.  Co.  v.  Johnston,  105  Fed.  Rep. 
286,  291,  (C.  C.  A.)  ;  Levisohn  v.  Waganer,  76  Ala.  412;  Linn  v.  McLean,  80 
Ala.  360;  Kempner  v.  Cohn,  47  Ark.  519;  Levy  v.  Cohen,  4  Ga.  1;  Bryant  r. 
Booze,  55  Ga.  438;  Haas  r.  Myers,  111  111.  421;  Chytraus  v.  Smith,  141  111. 
231,  257 ;  Kentucky  Mut.  Ins.  Co.  v.  Jenks,  5  Ind.  96 ;  Moore  v.  Pierson,  6  la. 
279;  Ferrier  v.  Storer,  63  la.  484;  Siebold  v.  Davis,  67  la.  560;  Hunt  v. 
Higman,  70  la.  406;  Gipps  Brewing  Co.  c.  De  France,  91  la.  108,  112;  Chiles 
t;.  Nelson,  7  Dana,  281;  Bailey  v.  Hope  Ins.  Co.,  56  Me.  474;  Wheat  v.  Cross, 
31  Md.  99;  Lungstrass  v.  German  Ins.  Co.,  48  Mo.  201;  Lancaster  r.  Elliot, 
42  Mo.  App.  503;  Egger  v.  Nesbitt,  122  Mo.  667,  674;  Horton  v.  New  York 
Life  Ins.  Co.,  151  Mo.  604;  Abbott  v.  Shepard,  48  N.  H.  14;  Davis  v.  iEtna 
Mut.  F.  I.  Co.,  67  N  H.  218;  Hallock  v.  Commercial  Ins.  Co.,  26  N.  J.  L.  268; 
Commercial  Ins.  Co.  v.  Hallock,  27  N.  J.  L.  645;  Northampton,  &c,  Ins.  Co.  v. 
Tuttle,  40  N.  J.  L.  476;  Mactier  v.  Frith,  6  Wend.  103;  Vassar  v.  Camp,  11 
N.  Y.  441 ;  Trevor  v.  Wood,  36  N.  Y.  307 ;  Watson  v.  Russell,  149  N.  Y.  388, 
391;  Hacheny  v.  Leary,  12  Ore.  40;  Hamilton  v.  Lycoming  M.  I.  Co.,  5  Pa. 
St.  339;  McClintock  v.  South  Penn.  Oil  Co.,  146  Pa.  144,  161;  Otis  v.  Payne, 
86  Tenn.  663;  Blake  v.  Hamburg-Bremen  F.  I.  Co.,  67  Tex.  160;  Haarstick  v. 
Fox,  9  Utah,  110;  Durkee  v.  Vermont  Central  R.  R.  Co.,  29  Vt.  127;  Hart- 
ford Ins.  Co.  v.  Lasher  Stocking  Co.,  66  Vt.  439;  Washburn  v.  Fletcher,  42 
Wis.  152 ;  McGiverin  v.  James,  33  U.  C.  Q.  B.  203.  The  only  contrary  decision 
not  overruled  seems  to  be  McCulloch  v.  Eagle  Ins.  Co.,  1  Pick.  278.  Whether 
this  case  would  now  be  followed  in  Massachusetts  may  be  doubted.  See 
Brauer  v.  Shaw,  168  Mass.  198;  Insurance  Co.  v.  Knabe  Co.,  171  Mass.  26.3. 
The  letter  must  be  properly  directed  and  stamped.     Potts  v.  Whitehead,  5  C. 

E.  Green,  55;  Britton  v.  Phillips,  24  How.  Pr.  Ill ;  Blake  v.  Hamburg-Bremen 

F.  I.  Co.,  67  Tex.  160.  But  see  Schultz  v.  Insurance  Co.,  77  Fed.  Rep.  395. 
In  the  Transvaal  decision  of  Bal  o.  Van  Staden,  20  S.  African  L.  Jl.  407,  it 
was  held  that  where  postal  communication  was  interrupted  by  war,  mailing  a 
letter  did  not  complete  the  contract. 

The  case  of  Ex  parte  Cote,  L.  R.  9  Ch.  27,  seems  to  indicate  that  the  Eng- 
lish doctrine  is  based  on  the  assumption  that  a  letter  when  mailed  is  no  longer 


40  AGREEMENT,   PROPOSAL,    AND   ACCEPTANCE. 

acceptance  that  miscarried  altogether  was  binding  on  the  proposer. 
In  that  year  the  point  came  before  the  Court  of  Appeal  (h).  An 
application  for  shares  in  the  plaintiff  company,  whose  office  was  in 
London,  was  handed  by  the  defendant  to  a  country  agent  for  the  com- 
pany. A  letter  of  allotment,  duly  addressed  to  the  defendant,  was 
posted  from  the  London  office,  but  never  reached  him.  The  company 
went  into  liquidation,  and  the  liquidator  sued  for  the  amount  due  on 
the  shares.  It  was  held  by  Thesiger  and  Baggallay  L. JJ.  that  "  if  an 
offer  is  made  by  letter,  which  expressly  or  impliedly  authorizes  the 
sending  of  an  acceptance  of  such  offer  by  post,  and  a  letter  of  accept- 
ance is  posted  in  due  time,  a  complete  contract  is  made  at  the  time 
when  the  letter  of  acceptance  is  posted,  though  there  may  be  delay  in 
its  delivery"  (i)  ;  that,  on  the  grounds  and  reasoning  of  the  authori- 
ties, this  extends  to  the  case  of  a  letter  wholly  failing  to  reach  its 
address ;  that  in  the  case  in  hand  the  defendant  must  under  the  cir- 
cumstances be  taken  to  have  authorized  the  sending  by  post  of  a  letter 
of  allotment;  and  that  in  the  result  he  was  bound.  They  were  dis- 
38]  posed  to  limit  the  rule  "  to  cases  in  *  which,  by  reason  of  general 
usage,  or  of  the  relations  between  the  parties  to  any  particular  trans- 
actions, or  of  the  terms  in  which  the  offer  is  made,  the  acceptance  of 
such  offer  by  a  letter  through  the  post  is  expressly  or  impliedly  au- 

(h)    Household  Fire  Insurance  Co.  (t)    Baggallay  L.J.   4  Ex.   Div.   at 

v.   Grant   (1879)    4  Ex.  Div.  216,  48       p.  224. 
L.  J.  Ex.  577,  Finch  Sel.  Ca.  133. 

within  the  control  of  the  sender,  and  that  where  as  in  France  the  sender  may 
reclaim  his  letter  the  contract  should  not  be  regarded  as  completed  by  the 
mailing  of  an  acceptance.  In  the  United  States,  by  complying  with  required 
formalities,  the  sender  of  a  letter  may  regain  it.  Postal  Regulations,  §§  531, 
533.  See  also  Crown  Point  Iron  Co.  v.  iEtna  Ins.  Co.,  127  N.  Y.  608,  619.  But 
in  McDonald  v.  Chemical  Nat.  Bank,  174  U.  S.  610,  620,  the  Court  says: 
"  Nor  can  it  be  conceded  that  except  on  some  extraordinary  occasion  and  on 
evidence  satisfactory  to  the  post-office  authorities,  a  letter  once  mailed  can 
be  withdrawn  by  the  party  who  mailed  it.  When  letters  are  placed  in  a  post- 
office,  they  are  within  the  legal  custody  of  the  officers  of  the  government,  and 
it  is  the  duty  of  postmasters  to  deliver  them  to  the  parties  to  whom  they  are 
addressed.  United  States  v.  Pond,  2  Curtis,  C.  C.  265;  Buell  r.  Chapin,  99 
Mass.  594;  Morgan  v.  Richardson,  13  Allen,  410;  Tayloe  v.  Merchants'  Fire 
Ins.  Co.,  9  How.  390."  In  Canterbury  v.  Sparta,  91  Wis.  53,  a  letter  was 
mailed  in  acceptance  of  an  offer,  containing  a  draft  payable  to  the  offerer. 
The  sender  induced  the  post-office  officials  to  return  the  letter  to  him,  but 
the  court  held  him  liable  to  the  offerer  for  the  amount  of  the  draft. 

If  the  use  of  the  telegraph  is  authorized  expressly  or  impliedly,  the  delivery 
of  the  acceptance  to  the  telegraph  office  is  held  to  complete  the  contract. 
Minnesota  Oil  Co.  v.  Collier  Lead  Co.,  4  Dill.  431 ;  Garretson  v.  North  Atchison 
Bank,  47  Fed.  Rep.  867;  Andrews  v.  Schreiber,  93  Fed.  Rep.  369;  Haas  r. 
Myers,  111  111.  421,  427;  Cobb  v.  Foree,  38  111.  App.  255;  Trevor  v  Wood,  36 
N.  Y.  307;  Perry  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380.  Contra  is  Beaubien 
Produce  Co.  v.  Robertson,  Rap.  Jud.  Quebec,  18  C.  S.  429. 


CONTRACTS  BY   CORRESPONDENCE.  41 

thorized"(fc).  Cases  outside  these  limits,  however,  are  not  likely  to 
be  frequent;  and  now,  in  HentMorn  v.  Fraser  (I),  it  is  decided  that 
an  offer  delivered  by  hand  may  authorize,  or,  in  the  terms  preferred 
by  the  Court,  contemplate,  an  acceptance  by  post  (m).43  In  Grant's 
case  Bramwell  L.J.  delivered  a  vigorous  dissenting  judgment,  in  which 
he  pointed  out  among  other  things  the  absurdity  of  treating  a  revoca- 
tion which  overtakes  the  acceptance  as  ineffectual,  but  relied  mainly 
on  the  broad  ground  that  a  letter  not  delivered  at  all  is  not  a  com- 
munication (n).  In  Henthorn  v.  Fraser  Kay  L.J.  did  not  conceal 
his  dissatisfaction  with  the  reasoning  of  the  authorities  by  which  the 
Court  was  bound.  It  may  perhaps  not  be  too  presumptuous,  but  it 
6eems  useless,  to  regret  that  these  views  could  not  prevail.  It  will  be 
seen  by  reference  to  the  Appendix  that  the  decisions  of  the  Court  of 
Appeal  confirm  that  sense  in  which  a  previous  decision  of  the  House 
of  Lords  was  generally  understood.  The  practical  conclusion  seems 
to  be  that  every  prudent  man  who  makes  an  offer  of  any  importance 
by  letter  should  expressly  make  it  conditional  on  his  actual  receipt  of 
an  acceptance  within  some  definite  time.  It  would  be  impossible  to 
contend  that  a  man  so  doing  could  be  bound  by  an  acceptance  which 
either  wholly  miscarried  or  arrived  later  than  the  specified 
time  (o). 

*  Acceptance  does  not  relate  back.  We  have  seen  that  in  general  the  [39 
contract  dates  from  the  acceptance;  and  though  the  acceptance  be  in 
form  an  acknowledgment  of  an  existing  agreement,  yet  this  will  not 

(k)   Baggallay  L.J.  4  Ex.  Div.  at  Mich.   402,   411;    Greenwich  Bank  v. 

p.    228;    the    same   limitation    seems  De   Groot,   7    Hun,    210;    Watson   v. 

admitted  by  Thesiger  L.J.  at  p.  218.  Russell,  149  N.  Y.  388,  391.] 

(I)    [1892]   2  Ch.  27,  61   L.  J.  Ch.  (n)  4  Ex.  Div.  at  p.  234. 

373.  (o)    See  per   Thesiger  L.J.   4   Ex. 

(to)   Delivery  to  a  postman  who  is  Div.    at    p.    223,    and    per    Bramwell 

not  authorized  to  receive  letters  for  L.J.  at  p.  238.     Held  ace.  in  Massa- 

the  post  is  not  equivalent  to  posting:  chusetts  (where,  however,  the  general 

Re  London  and  N  orthem  Bank  [1900]  doctrine  that  an   acceptance  by  post 

1  Ch.  220,  69  L.  J.  Ch.  24.     [But  In  concludes  the  contract  from  the  date 

the  United  States  letter  carriers  are  of  posting  is  not  received)  ;  Lewis  v. 

authorized  to  receive  letters  and  con-  Browning     (1880)      130     Mass.     173. 

sequently    handing    to    a    carrier    is  [Dicta  to  the  same  effect  are  in  Haas 

equivalent    to     posting.       Pearce     v.  v.    MyeTs,    111    111.    421;    Vassar    v. 

Langfit,   101   Pa.   507,   511.     Deposit-  Camp,   11   N.  Y.  441,   451.     See  also 

ing    in    a    street    letter    box    is,    of  Haldane   v.    United    States,    69    Fed. 

course,  posting.     Wood  v.  Calnan,  61  Rep.  819.] 

43  The  use  of  the  telegraph  was  held  to  be  impliedly  authorized  under  some- 
what similar  circumstances  in  Perry  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380.  See 
also  Wilcox  v.  Cline,  70  Mich.  517;  but  see  Scottish  Am.  Mortgage  Co.  v. 
Davis,  (Tex.)   74  S   W.  Rep.  17. 


4.2  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

make  the  contract  relate  back  to  the  date  of  the  proposal,  at  all  events 
not  so  as  to  affect  the  rights  of  third  persons  (p). 

Death    of    proposer,    a    revocation    though    not    known    to    other    party. 

There  is  believed  to  be  one  positive  exception  in  our  law  to 
the  rule  chat  the  revocation  of  a  proposal  takes  effect  only  when 
it  is  communicated  to  the  other  party.  This  exception  is  in  the 
case  of  the  proposer  dying  before  the  proposal  is  accepted.  This  event 
is  in  itself  a  revocation,  as  it  makes  the  proposed  agreement  impossible 
by  removing  one  of  the  persons  whose  consent  would  make  it  (g).44 
There  is  no  distinct  authority  to  show  whether  notice  to  the  other 
party  is  material  or  not;45  but  in  the  analogous  case  of  agency  the 
death  of  the  principal  in  our  law,  though  not  in  Koman  law,  puts  an 
end  ipso  facto  to  the  agent's  authority,  without  regard  to  the  time 
when  it  becomes  known  either  to  the  agent  or  to  third  parties  (?•).  It 
would  probably  be  impossible  not  to  follow  the  analogy  of  this  doctrine. 
The  Indian  Contract  Act  makes  the  knowledge  of  the  other  party 
before  acceptance  a  condition  of  the  proposal  being  revoked  by  the 
proposers  death. 

Insanity  no  revocation.  As  for  insanity,  which  is  treated  in  the  same  way 
by  the  Indian  Act,  that  would  not  in  general  operate  as  a  revocation 
by  the  law  of  England,46  for  we  shall  see  that  the  contract  of  a  lunatic 
(not  so  found  by  inquisition)  is  only  voidable  even  if  his  state  of 
mind  is  known  to  the  other  party.     But  it  has  been  said  that  "  if  a 

(p)  Feltlwusev.  Bindley  (1862)   11  C.    167,   32  R.   R.   620;    Campanari  v. 

C.  B.  N.  S.  869,  31  L.  J.  C.  P.  204.  Woodbum    (1854)    15   C.   B.   400,  24 

(q)   Per  Mellish  L.J.  in  Dickinson  L.  J.  C.  P.  13,  2  Kent  Coram.  646,  D. 

v.  Dodds  (1876)  2  Ch.  Div.  at  p.  475,  46,   3,   de  solut.  et  liberat.   32.     The 

45  L.  J.  Ch.  777.  Indian    Contract   Act,   s.    208,   illust. 

(r)   Blades  v.  Free  (1829)   9  B.  &  (e),  adopts  the  Roman  rule. 

«The  Palo  Alto,  2  Ware,  343,  359;  Paine  v.  Insurance  Co.,  51  Fed.  Rep. 
689;  Grand  Lodge  v.  Farnham,  70  Cal.  158;  Pratt  v.  Baptist  Soc,  93  111.  475; 
Beach  r.  First  Church,  96  111.  179;  Aitken  v.  Lang's  Adm.,  106  Ky.  652; 
Twenty-third  St.  Church  i\  Cornell,  117  N.  Y.  601;  Wallace  v.  Townsend, 
43  Ohio  St.  537;  Phipps  v.  Jones,  20  Pa.  260;  Helfenstein's  Est.,  77  Pa.  328; 
Foust  r.  Board  of  Publication,  8  Lea,  555.  See  also  Jordan  v.  Dobbins,  122 
Mass.  168 ;  Browne  r.  McDonald,  129  Mass.  66.  This  rule  is  the  same  in  the 
civil  law.  Valery,  Contrats  par  Correspondance,  §  204 ;  Windscheid,  Pandek- 
tenrecht,  §  307  ( 2 ) .  The  Biirgerliches  Gesetzbuch,  however,  has  changed  the 
rule  in  Germany.  It  provides,  §  153,  "  A  contract  is  not  prevented  from  com- 
ing into  existence  by  the  death  or  incapacity  of  the  offerer  before  acceptance, 
unless  the  offerer  has  expressed  »  contrary  intention." 

«  Held  immaterial  in  Wallace  v.  Townsend,  43  Ohio  St.  537. 

46  That  insanity  of  the  proposer  before  acceptance  will  operate  as  a  revoca- 
tion of  the  offer,  see  Beach  v.  First  Church,  96  111.  177;  The  Palo  Alto, 
Davies,  343. 


CERTAINTY  OF  ACCEPTANCE.  43 

man  becomes  so  far  *insane  as  to  have  no  mind,  perhaps  he  ought  [40 
to  be  deemed  dead  for  the  purpose  of  contracting"  (s). 

Certainty  of  Acceptance. 

Acceptance  must  be  unqualified.  The  next  rule  is  in  principle  an  ex- 
ceedingly simple  one.    It  is  that 

"  In  order  to  convert  a  proposal  into  a  promise  the  acceptance  must 
be  absolute  and  unqualified"  (i).47 

For  unless  and  until  there  is  such  an  acceptance  on  the  one  part  of 
terms  proposed  on  the  other  part,  there  is  no  expression  of  one  and 
the  same  common  intention  of  the  parties,  but  at  most  expressions  of 
the  more  or  less  different  intentions  of  each  party  separately  —  in 
other  words,  proposals  and  counter-proposals.  Simple  and  obvious  as 
the  rule  is  in  itself,  the  application  to  a  given  set  of  facts  is  not 
always  obvious,  inasmuch  as  contracting  parties  often  use  loose  and 
inexact  language,  even  when  their  communications  are  in  writing  and 
on  important  matters.  It  will  be  seen  that  the  question  whether  the 
language  used  on  a  particular  occasion  does  or  does  not  amount  to  an 
acceptance  is  wholly  a  question  of  construction,  and  generally  though 
not  necessarily  the  construction  of  a  written  instrument.  The  cases  in 
which  such  questions  have  been  decided  are  numerous  («),  and  we 

(s)    Bramwell  L.J.  Drew  v.  Nunn  (t)     Indian    Contract    Act,    s.     7, 

(1879)    4   Q.    B.   Div.   at   p.   669,   48       sub-s.  1. 

L.  J.  Q.  B.  591.     [See  Dexter  v.  Hall,  (u)    For   collected   authorities,   see 

15  Wall,  9,  20.]  (inter  alia)  Fry  on  Specific  Perform- 

ance, c.  2. 

4TEliason  v.  Henshaw,  4  Wheat.  225,  228;  Deshon  v.  Fosdick,  1  Woods, 
286;  Merriam  v.  Lapsley,  2  McCrary,  606;  Martin  v.  Northwestern  Fuel 
Co.,  22  Fed.  Rep.  596;  Hamblet  v.  Insurance  Co.,  36  Fed.  Rep.  118;  Robin- 
son v.  Weller,  81  Ga.  704;  Sawyer  v.  Brossart,  67  la.  678;  Gilbert  v.  Baxter, 
71  la.  327;  Plant  Seed  Co.  v.  Hall,  14  Kan.  553;  Seymour  v.  Armstrong,  62 
Kan.  720;  Hutcheson  v.  Blakeman,  3  Met.  (Ky.)  80;  Barrow  v.  Ker,  10  La. 
Ann.  120 ;  Jenness  v.  Mt.  Hope  Iron  Co.,  53  Me.  20 ;  Harlow  v.  Curtis,  121 
Mass.  320 ;  Johnson  v.  Stephenson,  26  Mich.  63 ;  Eggleston  v.  Wagner,  46  Mich. 
610;  Wilkins  Mfg.  Co.  v.  H.  M.  Loud  Co.,  94  Mich.  158;  Bruner  v.  Wheaton, 
46  Mo.  363;  Falls  Wire  Mfg.  Co.  v.  Broderick,  12  Mo.  App.  378;  Egger  v. 
Nesbitt,  122  Mo.  667;  Potts  v.  Whitehead,  23  N.  J.  Eq.  512;  Hough  r.  Brown, 
19  N.  Y.  Ill,  115;  M'Cotter  v.  Mayor,  37  N.  Y.  325;  Schenectady  Stove  Co.  v. 
Holbrook,  101  N.  Y.  45;  Barrow  S.  S.  Co.  v.  Mexican  Central  Co.,  134  N.  Y.  15; 
N.  W.  Iron  Co.  v.  Meade,  21  Wis.  474;  Baker  r.  Holt,  56  Wis.  100;  Clark  r. 
Burr,  85  Wis.  649.  "Acceptance  upon  terms  varying  from  those  offered  is  a  re- 
jection of  the  offer,"  Bank  v.  Hall,  101  U.  S.  43,  50 ;  Baker  v.  Johnson  Co.,  37 
la.  186,  189;  Cartmell  v.  Newton,  79  Ind.  1,  8.  It  is  in  effect  a  counter  offer 
and  as  such  terminates  the  original  offer.  See  ante,  p.  30.  Where  parties  are 
dealing  orally  face  to  face,  if  the  acceptance  varies  from  the  offer,  a  jury  may 
infer  the  offerer's  assent  to  the  variation  from  his  silence.  Earle  v.  Angell, 
157  Mass.  294. 


44  AGREEMENT,    PROPOSAL,   AND   ACCEPTANCE. 

shall  here  give  by  way  of  illustration  only  a  selection  of  modern 
ones  (x). 

In  Eoneyman  v.  Marry  at  ( y ) ,  before  the  House  of  Lords,  a  proposal  for  a 
sale  was  accepted  "  subject  to  the  terms  of  a  contract  being  arranged  "  be- 
41]  tween  the  vendor's  and  purchaser's  solicitors:  this  was  clearly  no  'contract. 
Compare  with  this  Eussey  v.  Home-Payne  (a),  from  which  it  seems  that  an 
acceptance  of  an  offer  to  sell  land  "  subject  to  the.  title  being  approved  by 
our  solicitors  "  is  not  a  qualified  or  conditional  acceptance,  but  means  only 
that  the  title  must  be  investigated  in  the  usual  way;  in  other  words,  it 
expresses  the  conditions  annexed  by  law  to  contracts  of  this  class,  that  a  good 
title  shall  be  shown  by  the  vendor. 

In  Appleby  v.  Johnson  (a),  the  plaintiff  wrote  to  the  defendant,  a  calico- 
printer,  and  offered  his  services  as  salesman  on  certain  terms,  among  which 
was  this :  "  a  list  of  the  merchants  to  be  regularly  called  on  by  me  to  be 
made."  The  defendant  wrote  in  answer :  "  Yours  of  yesterday  embodies 
the  substance  of  our  conversation  and  terms.  If  we  can  define  some  of  the 
terms  a  little  clearer,  it  might  prevent  mistakes ;  but  I  think  we  are  quite 
agreed  on  all.  We  shall  therefore  expect  you  on  Monday.  (Signed)  — J. 
Appleby. —  F.S. —  I  have  made  a  list  of  customers  which  we  can  consider  to- 
gether." It  was -held  that  on  the  whole,  and  especially  having  regard  to  the 
postscript,  which  left  an  important  term  open  to  discussion,  there  was  no 
complete  contract. 

In  Crossley  v.  Haycock  ( 0 ) ,  an  offer  to  buy  certain  land  was  accepted,  but 
with  reference  to  special  conditions  of  sale  not  before  known  to  the  intending 
purchaser.     Held  only  a  conditional  acceptance. 

In  Lloyd  v.  Noivell  (c),  an  agreement  "subject  to  the  preparation  by  my 
solicitor  and  completion  of  a  formal  contract"  was  held  (1)  to  exclude  the 
formation  of  a  binding  agreement;  (2)  not  to  be  a  condition  which  the 
vendor  could  waive  as  being  only  for  his  benefit.  But  in  North  v.  Percival 
{d) ,  the  words  "heads  of  agreement  .     .     subject  to  approval  of  condi- 

tions and  form  of  agreement  by  purchaser's  solicitor  "  were  held  by  Kekewich 
J.  consistent  with  a  complete  contract. 

In  Filby  v.  Hounsell,  [1896]  2  Ch.  737,  65  L.  J.  Ch.  852,  an  acceptance  by 
a  purchaser  "  subject  to  contract  as  agreed,"  i.e.  a  form  set  out  on  the  vendor's 
own  conditions  of  sale,  was  held  without  difficulty  to  be  absolute. 

In  Stanley  v.  Dowdeswell  (e),  an  answer  in  this  form:  "I  have  decided  or 
taking  No.  22,  Belgrave  Road,  and  have  spoken  to  my  agent,  Mr.  C,  who 
will  arrange  matters  with  you,"  was  held  insufficient  to  make  a  contract,  as 
not  being  complete  and  unqualified,  assuming  (which  was  doubtful)  that  the 
letter  of  which  it  was  part  did  otherwise  sufficiently  refer  to  the  terms  of 
the  proposal. 
42]  *In  AddinelVs  case  (f)  and  Jackson  v.  Turquand  (<?),  a  bank  issued  a  cir- 

(x)  Cp.  also  the  French  case  in  the  (6)     (1874)    L.  R.    18   Eq.   180,  43 

Court   of   Cassation   given    in   Lang-  L.  J.   Ch.   379,   followed  in  Jones  v. 

dell's  Select  Cases  on  Contract,   155.  Daniel  [1894]  2  Ch.  332,  63  L.  J.  Ch. 

(y)    (1857)  6  H.  L.  C.  112,  26  L.J.  562. 

Ch.  619,  by  Lord  Wensleydale.     The  lc)    [1895]  2  Ch.  744,  64  L.  J.  Ch. 

case  was  not  argued,  no  one  appear-  744. 

ing  for  the  appellant.  (d)    [1898]  2  Ch.  128,  67  L.  J.  Ch. 

(z)  (1879)  4  App.  Ca.  311,  322,  48  321. 
L.  J.  Ch.  846.  [See  also  James  P.  (e)  (1874)  L  R.  10  C.  F.  102. 
Darby,  100  Fed.  Rep.  224  (C.  C.  A.)  ;  Compare  Smith  v.  Webster  (1876)  3 
Pacific  Rolling  Mill  Co.  v.  Railway  Ch.  Div.  49,  45  L.  J.  Ch.  528.  [Hack- 
Co.,  90  Cal.  627;  Corcoran  v.  White,  ley  r.  Ockford,  98  Fed.  Rep.  781; 
117  111.  118.]  Wills  v.  Carpenter,  62  Mich.  50.] 

(a)    (1874)    L.  R.  9  C.  P.   158.  43  (f)    (1865)  L  R.  1  Eq.  225. 

L.  J.  C.  P.  146.     [See  also  Bowen  v.  (g)    (1869)   L.  R.  4  H.  L.  305,  39 

Hart,   101    Fed.   Rep.   376;    Krum   v.  L.  J.  Ch.  11. 
Chamberlain,  57  Neb.  220.] 


CEKTAINTY  OF  ACCEPTANCE.  45 

cular  offering  new  shares  to  existing  shareholders  in  proportion  to  their 
interests,  and  also  asking  them  to  say  if  in  the  event  of  any  shares  remaining 
they  should  wish  to  have  any  more.  Certain  shareholders  wrote  in  answer, 
accepting  their  proportion  of  shares,  and  also  desiring  to  have  a  certain  num- 
ber of  additional  shares,  if  they  could,  on  the  terms  stated  in  the  circular.  In 
reply  to  this  the  directors  sent  them  notices  that  the  additional  shares  had 
been  allotted  to  them,  and  the  amount  must  be  paid  to  the  bank  by  a  day 
named,  or  the  shares  would  be  forfeited.  It  was  held  by  Kindersley  V.-C.  and 
confirmed  by  the  House  of  Lords,  that  as  to  the  first  or  proportional  set  of 
shares  the  shareholder's  letter  was  an  acceptance  constituting  a  contract,  but 
as  to  the  extra  shares  it  was  only  a  proposal;  and  that  as  the  directors' 
answers  introduced  a  material  new  term  (as  to  forfeiture  of  the  shares  if  not 
paid  for  within  a  certain  time),  there  was  no  binding  contract  as  to  these. 

In  Wynne's  case  (h)  two  companies  agreed  to  amalgamate.  The  agreement 
was  engrossed  in  two  parts,  and  contained  a  covenant  by  the  purchasing 
company  to  pay  the  debts  of  the  other.  But  the  purchasing  company  (which 
was  unlimited)  before  executing  its  own  part  inserted  a  proviso  limiting  the 
liability  of  its  members  under  this  covenant  to  the  amount  unpaid  on  their 
shares.  This  being  a  material  new  term,  the  variance  between  the  two  parts 
as  executed  made  the  agreement  void.  In  this,  and  later  in  Beck's  case  (i) , 
in  the  same  winding-up,  a,  shareholder  in  the  absorbed  company  applied  for 
shares  in  the  purchasing  company  credited  with  a  certain  sum  according  to 
the  agreement,  and  received  in  answer  a  letter  allotting  him  shares  to  be 
credited  with  a  "  proportionate  amount  of  the  net  assets "  of  his  former 
company.  It  was  held  that,  apart  from  the  question  whether  the  allotment 
was  conditional  on  the  amalgamation  being  valid,  there  was  no  contract  to 
take  the  shares. 

A.  telegraphs  to  B. .  "  Will  you  sell  us  Whiteacre  ?  Telegraph  lowest  cash 
price,  answer  paid."  B.  telegraphs  in  reply:  "Lowest  price  for  Whiteacre, 
9001."  This  has  been  held  not  to  amount  to  an  offer  to  sell,  so  that  a  tele- 
gram from  A.  purporting  to  agree  to  the  purchase  at  0001.  is  itself  only  an 
offer    (fc). 

Where  a  seller  undertook  to  accept  the  highest  net  money  tender  made  by 
either  of  two  competitors  for  the  purchase,  and  one  of  them  offered  such  sum 
as  would  exceed  by  200Z.  the  sum  (unknown)  which  might  be  offered  by  the 
other :  this  was  held  no  acceptance  of  the  seller's  terms,  and  incapable  of  con- 
stituting a  contract  (I). 

Instances  of  sufficient  acceptance.  On  the  other  hand,  the  following  in- 
stances will  show  that  the  rule  *must  be  cautiously  applied.  An  accept-  [43 
anee  may  be  complete  though  it  expresses  dissatisfaction  at  some  of  the  terms, 
if  the  dissatisfaction  stops  short  of  dissent,  so  that  the  whole  thing  may  be 
described  as  a  "grumbling  assent"   (m). 

Again,  an  acceptance  is  of  course  not  made  conditional  by  adding  words 
that  in  truth  make  no  difference ;  as  where  the  addition  is  simply  immaterial 
(ra)48,   or   a   mere   formal   memorandum   is   enclosed   for   signature,   but   not 

(h)    (1873)  L.  R.  8  Ch.  1002.  (m)     Joyce    v.    Swann    (1864)     17 

i)     (1874)    L.   It.   9   Ch.   392,   43  C.    B.   N.    S.    84;    cp.    per    Lord    St. 

L  J   Ch.  531.  Leonards,  6  H.  L.  C.  277-8   (in  a  dis- 

'  (fc)   Harvey  v.Facey  (J.  CO  [1893]  senting  judgment). 
A.  C.  552,  62  L.  J.  P.  C.  127.  («)    Clive  v.   Beaumont    (1847)    1 

'  (1)   South  Hetton  Coal  Go.  v.  Eos-  De  G.  &  S.  397. 
well,  &c.  Coal  Co.  [1898]   1  Ch.  465, 
67  L.  J.  Ch.  238,  C.  A. 

48  See  McFadden  v.  Henderson,  128  Ala.  221;  Phillips  v.  Moor,  71  Me.  78; 
De  Jonee  v.  Hunt,  103  Mich.  94;  King  v.  Dahl,  82  Minn.  240;  Bruner  v. 
Wheaton  46  Mo  363;  Egger  v.  Nesbitt,  122  Mo.  667;  Clark  v.  Dales,  20  Barb. 
42;  Brisban  v.  Boyd,  4  Paige,  17;  Pitzhugh  v.  Jones,  6  Munf.  83;  Matteson 
v.  Scofield,  27  Wis.  671. 


•46  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

shown  to  contain  any  new  term  (o).  And  further,  if  the  person  answering 
an  unambiguous  proposal  accepts  it  with  the  addition  of  ambiguous  -words, 
which  are  capable  of  being  construed  consistently  with  the  rest  of  the  docu- 
ment and  so  as  to  leave  the  acceptance  absolute,  they  will  if  possible  be  so 
construed   ( p ) . 

Again,  the  unconditional  acceptance  of  a  proposal  is  not  deprived  of  its 
effect  by  the  existence  of  a,  misunderstanding  between  the  parties  in  the  con- 
struction of  collateral  terms  which  are  not  part  of  the  agreement  itself   (?). 

An  acceptance  on  condition  is  absolute  if  expressed  in  a  manner  which  estops 
the  acceptor  from  denying  that  the  condition  has  been  performed,  or  that  he 
has  waived  its  performance    (r). 

Parties  may  postpone  conclusion  of  contract,  till  the  terms  are  embodied 
in  a  formal  instrument.  One  further  caution  is  needed.  All  rules  about 
the  formation  and  interpretation  of  contracts  are  subject  to  the  im- 
plied proviso,  "  unless  a  contrary  intention  of  the  parties  appears." 
And  it  may  happen  that  though  the  parties  are  in  fact  agreed  upon 
the  terms  —  in  other  words,  though  there  has  been  a  proposal  suf- 
ficiently accepted  to  satisfy  the  general  rule  —  yet  they  do  not  mean 
the  agreement  to  he  binding  in  law  till  it  is  put  into  writing  or  into 
a  formal  writing.  If  such  be  the  understanding  between  them,  they 
are  not  to  be  sooner  bound  against  both  their  wills.  "  If  to  a  proposal 
or  offer  an  assent  be  given  subject  to  a  provision  as  to  a  contract,  then 
the  stipulation  as  to  the  contract  is  a  term  of  the  assent,  and  there  is 
44]  no  agree*ment  independent  of  that  stipulation"  (s).49    Whether 

(o)    Qibbins  v.  A.  E.  Metrop.  Asy-  C.  B.  X.  S.   657,  28  L.  J.  C.  P.  338. 

him  District   (1847)    11  Beav.  1.  The  facts  unfortunately  do  not  admit 

(p)     English    and    Foreign    Credit  of  abridgment. 
Co.  v.  Arduin    (1870-1)   L.  R.  5  H.  L.  (r)   Roberts  v.  Security  Co.   [1897] 

64,  per  Lord  Westbury,  at  p.  70,  40  1  Q.  B.  Ill,  66  L.  J.  Q.  B.  119,  C.  A. 
L.  J.  Ex.   108.  is)     Chinnoclc    v.    Marchioness    of 

(q)    Baines   v.    Woodfall    (1859)    6  Ely   (I860)   4  D.  J.  S.  638,  646. 

49  In  the  following  cases  it  was  held  that  no  contract  existed  until  the  execu- 
tion of  a  written  contract,  the  signing  of  which  was  one  of  the  terms  of  a 
previous  agreement.  Spinney  r.  Downing,  108  Cal.  666 ;  Fredericks  v.  Fas- 
nacht,  30  La.  Ann.  117:  Ferre  Canal  Co.  v.  Burgin,  106  La.  309;  Mississippi, 
&c.  S.  S.  Co.  r.  Swift,  86  Me.  248 ;  Willes  r.  Carpenter,  75  Md.  80 ;  Lyman  v. 
Robinson,  14  Allen,  242;  Sibley  v.  Felton,  156  Mass.  273;  Edge  Moor  Bridge 
Works  r.  Bristol,  170  Mass.  528;  Eads  r.  Carondelet,  42  Mo.  113;  Bourne  r. 
Shapleigh,  9  Mo.  App.  64;  Morrill  r.  Tehama  Co.,  10  Xev.  125;  Water  Com- 
missioners r.  Brown,  32  N.  J.  L.  504;  Donnelly  r.  Currie  Hardware  Co.,  66 
N.  .1.  L.  388;  Brown  r.  X.  Y.  Central  R.  R.  Co.,  44  X.  Y.  79;  Commercial, 
Tel.  Co.  r.  Smith.  47  Hun.  494:  Xicholls  r.  Granger,  7  X.  Y.  .\r>p.  Div.  113; 
Arnold  v.  Rothschild's  Sons  Co.,  37  X.  Y.  App.  Div.  564,  aff'd  164  N.  Y.  562; 
Franke  r.  Hewitt.  56  X.  Y.  App.  Div.  497;  Congdon  v.  Darcy,  46  Vt.  478; 
Boisseau  r.  Fuller,  96  Va.  45. 

In  Mississippi,  &c.  S.  S.  Co.  v.  Swift,  86  Me.  248,  258,  the  Court  say: 
"  From  these  expressions  of  courts  and  jurists,  it  is  quite  clear  that,  after 
all,  the  question  is  mainly  one  of  intention.  If  the  party  sought  to  be  charged 
intended  to  close  a  contract  prior  to  the  formal  signing  of  a  written  draft, 
or  if  he  signified  such  an  intention  to  the  other  party,  he  will  be  bound  by 
the  contract  actually  made,  though  the  signing  of  the  written  draft  be  omitted. 
If,  on  the  other  hand,  such  party  neither  had  nor  signified  such  an  intention 


FINALITY    OF    ACCEPTANCE.  47 

such  is  in  truth  the  understanding  is  a  question  which  depends  on  the 
circumstances  of  each  particular  case;  if  the  evidence  of  an  agree- 
ment consists  of  written  documents,  it  is  a  question  of  construction 
(not  subject  to  any  fixed  rule  of  presumption)  whether  the  expressed 
agreement  is  final  (t).  For  this  purpose  the  whole  of  a  continuous 
correspondence  must  be  looked  at,  although  part  of  it,  standing  alone, 
might  appear  to  constitute  a  complete  contract  («).so 

It  is  not  to  be  supposed,  "  because  persons  wish  to  have  a  formal 
agreement  drawn  up,  that  therefore  they  cannot  be  bound  by  a  previ- 
ous agreement,  if  it  is  clear  that  such  an  agreement  has  been  made; 
but  the  circumstance  that  the  parties  do  intend  a  subsequent  agree- 
ment to  be  made  is  strong  evidence  to  show  that  they  did  not  intend 
the  previous  negotiations  to  amount  to  an  agreement"  (.r).51  Still 
more  is  this  the  case  if  the  first  record  of  the  terms  agreed  upon  is  in  sc 
many  words  expressed  to  be  "  subject  to  the  preparation  and  approval 
of  a  formal  contract"  (y)  :52  or  where  a  certain  act,  such  as  payment 
of  the  first  premium  of  insurance,  is  expressly  mentioned  to  fix  the 
commencement  of  the  contract  (z).  But  again:  "it  is  settled  law 
that  a  contract  may  be  made  by  letters,  and  that  the  mere  reference  in 
them  to  a  future  formal  contract  will  not  prevent  their  constituting  a 
binding  bargain  "  (a).53  And  in  Brogden  v.  Metropolitan  By.  Co.  (&), 

(t)    Rossiter    v.    Miller    (1878)     3  (z)    Canninq   v.   Farquhar    (1886) 

App.  Ca.  1124,  1152,  48  L.  J.  Ch.  10.  16  Q.  B.  Div.  727,  55  L.  J.  Q.  B.  225. 

(u)  Hussey  v.  Borne-Payne  (1879)  (a)    James    L.J.    in    Bonnewell   v. 

4  App.  Ca.  311,  48  L.  J.  Ch.  846.  Jenkins    (1878)    8    Ch.    Div.   70,    73, 

(x)  Ridgway  v.  Wharton  (1856-7)  47  L.  J.  Ch.  758;  Bolton  v.  Lambert 

6   H.   L.   C.   238,   264,   268,  per  Lord  (1889)    41   Ch.   Div.   295,   305.      [See 

Cranworth     C,     and     see    per     Lord  also  Filby  i:  Hounsell    [1896]   2  Ch. 

Wensleydale   at  pp.   305-6,   27   L   J.  737;  North  v.  Percival   [1898]   2  Ch. 

Ch.  46.  128.] 

(y)   Winn  v.  Bull   (1877)   7  Ch.  D.  (b)     (1877)    2   App.    Ca.    666:    see 

29.  Lord  Cairns'  opinion. 

to  close  the  contract  until  it  was  fully  expressed  in  »  written  instrument  and 
attested  by  signatures,  then  he  will  not  be  bound  until  the  signatures  are 
affixed.  The  expression  of  the  idea  may  be  attempted  in  other  words:  if 
the  written  draft  is  viewed  by  the  parties  merely  as  a  convenient  memorial, 
or  record  of  their  previous  contract,  its  absence  does  not  affect  the  binding 
force  of  the  contract;  if,  however,  it  is  viewed  as  the  consummation  of  the 
negotiation,  there  is  no  contract  until  the  written  draft  is  finally  signed." 
so  Strobridge  Co.  v.  Randall,  73  Fed.  Rep.  619. 

51  Lyman  v.  Robinson,  14  Allen,  242,  254 ;  Allen  v.  Chouteau,  102  Mo.  309 : 
Methudy  v.  Ross,  10  Mo.  App.  101,  106;  Brown  v.  Railroad  Co.,  44  N.  Y.  79. 
86  ■  Virginia  Hot  Springs  Co.  v.  Harrison,  93  Va.  569. 

52  Lloyd  r.  Nowell,  [1895]  2  Ch.  744;  Page  v.  Norfolk,  70  L.  T.  N.  S.,  781  j 
Sibley  v.  Felton,  156  Mass.  273. 

53  in  the  following  cases  it  was  held  that  there  was  a  contract,  though  it 
was  agreed  that  a  written  contract  should  be  subsequently  prepared.  Post  v. 
Davis,' 7  Kan.  App.  217;  Bell  v.  Offutt,  10  Bush  632;  Montague  r.  Weil,  30 
La.  Ann.  50;  Cheney  v.  Eastern  Transportation  Line,  59  Md.  557;   Allen  v. 


48  AGREEMENT,    PROPOSAL,   AND   ACCEPTANCE. 

it  was  held  by  the  House  of  Lords  that  the  conduct  of  the  parties,  who 
45]  m  fact  *dealt  for  some  time  on  the  terms  of  a  draft  agreement 
which  had  never  been  formally  executed,  was  inexplicable  on  any  other 
supposition  than  that  of  an  actual  though  informal  consent  to  a 
contract  upon  those  terms. 

The  tendency  of  recent  authorities  is  to  discourage  all  attempts  to 
lay  down  any  fixed  rule  or  canon  as  governing  these  cases.  The  ques- 
tion may  however  be  made  clearer  by  putting  it  in  this  way  —  whether 
there  is  in  the  particular  case  a  final  consent  of  the  parties  such  that 
no  new  term  or  variation  can  be  introduced  in  the  formal  document 
to  be  prepared  (c). 

Certainty  of  Terms. 

Agreement  must  be  certain.  An  agreement  is  not  a  contract  unless  its 
terms  are  certain  or  capable  of  being  made  certain. 

For  the  Court  cannot  enforce  an  agreement  without  knowing  what 
the  agreement  is.  Such  knowledge  can  be  derived  only  from  the 
manner  in  which  the  parties  have  expressed  their  intention.  It  is 
their  business  to  find  such  expressions  as  will  convey  their  meaning 
with  reasonable  certainty  to  a  reasonable  man  conversant  with  affairs 
of  the  kind  in  which  the  contract  is  made.  The  question  then  is 
whether  such  certainty  be  present  in  the  particular  case.  One  or  two 
instances  will  serve  as  well  as  many.  A  promise  by  the  buyer  of  a 
horse  that  if  the  horse  is  lucky  to  him,  he  will  give  51.  more,  or  the 
buying  of  another  horse,  is  "  much  too  loose  and  vague  to  be  con- 
sidered in  a  court  of  law.''"  "  The  buying  of  another  horse  "  is  a  term 
to  which  the  Court  cannot  assign  any  definite  meaning  (d).  An 
agreement  to  sell  an  estate,  reserving  "  the  necessary  land  for  making 
a  railway,"  is  too  vague  (e).  An  agreement  to  take  a  house  "if  put 
46]  into  ^thorough  repair,"  and  if  the  drawing-rooms  were  " band- 
somely  decorated  according  to  the  present  style,"  has  been  dismissed 
as  too  uncertain  to  be  specifically  enforced  (/).  A  statement  by  a 
parent  to  his  daughter's  future  husband  that  she  will  have  "  a  share  " 

(c)  Lord  Blackburn,  3  App.  Ca.  at  (e)  Pearce  v.  Watts  (1875)  L.  R. 
p.  1151.     In  addition  to  cases  already        20  Eq.  492,  44  L.  J.  Ch.  492. 

cited   see   Lewis   v.   Brass    (1877)    3  (/)   Taylor  v.  Partington    (1855)   7 

Q.  B.  Div.  667.    '  D.  M.  &  6.  328.     This  of  course  did 

(d)  Onthing  v.  Lynn  (1831)  2  B.  not  decide  that  an  action  for  dam- 
&  Ad.  232.  ages  would  not  lie. 

Chouteau,  102  Mo.  309;  Green  v.  Cole  (Mo.),  24  S.  W.  Rep.  1058;  Wharton  v. 
Stoutenbourgh,  35  N.  J.  Eq.  266;  Sanders  v.  Pottlitzer  Co.,  144  N.  Y.  209; 
Blaney  r.  Hoke.  14  Ohio  St.  292;  Mackey  v.  Mackey's  Adm.,  29  Gratt.  158; 
Paige  v.  FuP.erton  Woollen  Co.,  27  Vt.  485 ;  Lawrence  r.  Milwaukee,  &c.  Ry 
Co.,  84  Wis    427  ;   Cohn  r.  Plumer,  88  Wis.  622. 


CEETAINTY    OF    TEEMS.  49 

of  his  property  cannot  be  construed  as  a  promisa  of  an  equal 
share  (g)-64  On  the  other  hand  an  agreement  to  execute  a  deed  of 
separation  containing  "  usual  covenants "  is  not  too  vague  to  be 
enforced  (7i).55 

Illusory  promises.  To  this  head  those  cases  are  perhaps  best  re- 
ferred in  which  the  promise  is  illusory,  being  dependent  on  a  con- 
dition which  in  fact  reserves  an  unlimited  option  to  the  promisor. 
"  Xulla  promissio  potest  consistere,  quae  ex  voluntate  promittentis 
statum  capit"  (t).56  Thus  where  a  committee  had  resolved  that  for 
certain  services  "  such  remuneration  be  made  as  shall  be  deemed 
right,"  this  gave  no  right  of  action  to  the  person  who  had  performed 
the  services;  for  the  committee  alone  were  to  judge  whether  any  or 
what  recompense  was  right  (k).  Moreover  a  promise  of  this  kind, 
though  it  creates  no  enforceable  contract,  is  so  far  effectual  as  to  ex- 
clude the  promisee  from  falling  back  on  any  contract  to  pay  a  reason- 
able remuneration  which  would  be  inferred  from  the  transaction  if 
there  were  no  express  agreement  at  all.     In  Roberts  v.  Smith  (I) 

{g)    Re  Fichus    [1900]    1   Ch.   331,  (ft)   Taylor  v.  Brewer   (1813)   1  M. 

69  L.  J.  Ch.  161.  &  S.  290,  2±  R.  R.  831. 

(h)  Hart  v.  Hart  (1881)   18  Ch.  D.  (71    (1S59)  4  H.  &  N.  315,  28  L.  J. 

670,  684,  50  L.  J.  Ch.  697.  Ex.  164. 

(t)D.  45,  1.  de  verb.  obi.  108,  §  1. 

54  An  agreement  between  parties  "  that  they  will  in  the  future  make  such 
contract  as  they  may  then  agree  upon  amounts  to  nothing."     Shepard  r.  Car- 
penter, 54  Minn.  153.    An  agreement  by  the  plaintiffs  to  work  defendant's  mi* 
at  a  certain  rate  based  on  the  ore  produced  "  as  long  as  they  could  w' 
pay  "  imposes  no  obligation  for  the  future.     Davie  v.  Lumbermen's  Mi" 

93  Mich.  491.     An  agreement  to  give  a  lease  of  premises  to  be  ' 

according  to  plans  "  to  be  mutually  agreed  upon  "  is  unenfor 

McCreery,   119  N.  Y.  434.     As  is  an  agreement  to  renew 

term.     Baurman  v.  Binzen,  16  N.  Y.  Supp.  342,  and  ?• 

out "  the  plaintiff.     Blakistone  v.  Bank,  87  Md.  302. 

[1892]  2  Q.  B.  478;  Erwin  v.  Erwin.  25  Ala.  236; 

272;  Whelan  v.  Sullivan,  102  Mass.  204;  Marble  r 

553;    Hall   v.   First  Bank,   173   Mass.    16;    Curr 

Long   v.    Battle   Creek,    39   Mich.    323;    Bumr 

Buckmaster    v.    Consumers'    lee    Co.,    5    Da" 

York  Press   Co.,   164  N.  Y.  406;   Monnett 

Sherman  v.  Kitzmiller,  17  S.  &  R.  45. 

55  J^or  an  agreement  to  give  a  lease  in  t' 
premises  are  situated.     Scholtz  v.  North 
(C.  C.  A.). 

56  See  Montreal  Gas  Co.  v.  Vasey,  [  1 
41  Fed.  Rep.  41;  Lee's  Appeal,  53  Com 
Fairplay  v.  O'Neal,  127  Ind.  95 ;  Hunt  - 
v.  Lumberman's  Mining  Co.,  93  Micl 
538;  Mullaly  v.  Greenwood,  127  Mo. 
Strong  v.  Sheffield,  144  N.  Y.  392;  ( 
Civ.  App.  57. 

4 


50  AGREEMENT,    PKOPOSAL,    AND    ACCEPTANCE. 

there  was  an  agreement  between  A.  and  B.  that  B.  should  perform 
certain  services,  and  that  in  one  event  A.  should  pay  B.  a  certain 
salary,  but  that  in  another  event  A.  should  pay  B.  whatever  A.  might 
think  reasonable.  That  other  event  having  happened,  the  Court  held 
47]  there  was  no  contract  which  B.  could  enforce.  Services  *had 
indeed  been  rendered,  and  of  the  sort  for  which  people  usually  are 
paid  and  expect  to  be  paid;  so  that  in  the  absence  of  express  agreement 
there  would  have  been  a  good  cause  of  action  for  reasonable  reward. 
But  here  B.  had  expressly  assented  to  take  whatever  A.  should  think 
reasonable  (which  might  be  nothing),  and  had  thus  precluded  him- 
self from  claiming  to  have  whatever  a  jury  should  think  reasonable. 
It  would  not  be  safe,  however,  to  infer  from  this  case  that  under  no 
circumstances  whatever  can  a  promise  to  give  what  the  promisor  shall 
think  reasonable  amount  to  a  promise  to  give  a  reasonable  reward,  or 
at  all  events  something  which  can  be  found  as  a  fact  not  to  be  illusory. 
The  circumstances  of  each  case  (or  in  a  written  instrument  the  con- 
text) must  be  looked  to  for  the  real  meaning  of  the  parties;  and  "I 
leave  it  to  you"  may  well  mean  in  particular  circumstances  (as  in 
various  small  matters  it  notoriously  does),  "  I  expect  what  is  reason- 
able and  usual,  and  I  leave  it  to  you  to  find  out  what  that  is,"  or, 
"  I  expect  what  lV  reasonable,  and  am  content  to  take  your  estimate 
(assuming  that  it  will  be  made  in  good  faith  and  not  illusory)  as  that 
of  a  reasonable  man"  (m).57 

Another  somewhat  curious  case  of   an  illusory  promise    (though 

~aixed  up  to   some  extent  with   other  doctrines)    is   Moorhouse   v. 

'i  (n).BB     There  a  testator,  having  made  a  will  by  which  he  left 

-able  legacy  to  his  daughter,  wrote  a  letter  in  which  he  said, 

~>%  her  other  expectations,  "this  is  not  all:  she  is  and 

"  it  can  be  sup-  was    for   the   jury   to   ascertain   how 

on  it  in  Rob-  much  the'  defendant,  acting  bona  fide, 

*  v.  Flight  would  or  ought  to  have  awarded, 
here  the  («.)    (1851)   15  Beav.  341,  348,  affd. 

lhat   It  by  L.JJ.  ib.  350,  n. 

",o.,  [1901]  2  Ch.  37;  Henderson  Bridge  Co.  v. 

hington  v.  Beeman,  91  Fed.  Rep.  232;  Millar 

Winona  Mill  Co.,  28  Minn.  205 ;  Stewart  v. 

Dugan,   (Tex.)   39  S.  W.  Rep.  148;  Tolmie 

v.  Fawcett,   (Tex.)   55  S.  W.  Rep.  611. 

1  1  Ch.  331 ;  Smithers  v.  Junker,  41  Fed. 

86 ;  Davie  v.  Lumberman's  Co.,  93  Mich. 

Thompsons.  Stevens,  71  Pa.  161;  Wall's 

155  Pa.  64 ;  Gulf,  &c.  Ry.  Co.  v.  Winton, 

dispense  with  performance  of  an  act  so 

no  consideration  for  a  counter-promise. 

;  Strong  v.  Sheffield,  144  N-  Y.  392. 


CERTAINTY    OF    TEEMS.  51 

shall  be  noticed  in  my  will,  but  to  what  further  amount  I  cannot  pre- 
cisely say."  The  legacy  was  afterwards  revoked.  It  was  contended  on 
behalf  of  the  daughter's  husband,  *to  whom  the  letter  had  with  [48 
the  testator's  authority  been  communicated  before  the  marriage,  that 
there  was  a  contract  binding  the  testator's  estate  to  the  extent  of  the 
legacy  given  by  the  will  as  it  stood  at  the  date  of  the  letter.  But  it 
was  held  that  the  testator's  language  expressed  nothing  more  than  a 
vague  intention,  although  it  would  have  been  binding  had  it  referred 
to  the  specific  sum  then  standing  in  the  will,  so  as  to  fix  that  sum  as 
a  minimum  to  be  expected  at  all  events. 

Promise  to  make  contract  with  third  person.  A  promise  to  enter  into  a 
certain  kind  of  agreement  with  a  third  person  is  obviously  dependent 
for  its  performance  on  the  will  of  that  person,  but  is  not  thereby 
rendered  so  uncertain  as  not  to  afford  a  cause  of  action  as  between  the 
parties  to  it.  The  consent  of  a  third  person  is  not  more  uncertain 
than  many  other  things  which  parties  may  and  do  take  on  themselves 
to  warrant  (o).59 

(o)   Foster  v.  Wheeler   (1888)   38  Ch.  Div.  130,  57  L.  J.  Ch.  149,  871. 

E9  Where  by  the  terms  of  the  agreement  an  article  is  to  be  furnished  which 
shall  be  satisfactory  to  the  defendant,  if  he  is  genuinely,  though  unreasonably 
dissatisfied  therewith,  neither  the  contract  price  nor  reasonable  remunera- 
tion can  be  recovered.  Andrews  v.  Belfield,  2  C.  B.  N.  S.  779 ;  Silsby  Mfg.  Co. 
v.  Chico.  24  Fed.  Rep.  893 ;  Campbell  Printing.  Press  Co.  r.  Thorp,  36  Fed.  Rep. 
414:  Giles  v.  Paxson,  40  Fed.  Rep.  283;  Allen  v.  Mut.  Compress  Co.,  101  Ala. 
574;  Hallidie  r.  Sutter  St.  Ry.  Co.,  63  Cal.  575;  Bush  ('.  Koll,  2  Col.  App. 
48;  Zaleski  v.  Clark,  44  Conn.  218;  Goodrich  r.  Nortwick,  43  111.  445;  Buckley 
v.  Meidroth,  93  111.  App.  460;  McCarren  r.  McNulty,  7  Gray,  139;  Brown  r. 
Foster,  113  Mass.  136;  Lockwood  Co.  v.  Mason  Co.,  183  Mass.  25;  Gibson  v. 
Cranage,  39  Mich.  49  ;  Wood  Machine  Co.  v.  Smith,  50  Mich.  565  ;  Sax  r.  Detroit 
Ry.  Co.,  125  Mich.  252;  Piatt  v.  Broderick,  70  Mich.  577;  Fire  Alarm  Co.  v.  Big 
Rapids,  78  Mich.  67;  Honsding  v.  Solomon.  127  Mich.  654;  McCormick  Ma- 
chinery Co.  r.  Chesrown,  33  Minn.  32 ;  O'Dea  r.  Winona,  41  Minn.  424 :  Magee 
v.  Scott  Lumber  Co.,  78  Minn.  11;  Gwynne  v.  Hitchner,  65  N.  J.  L.  67;  Hoff- 
man v.  Gallaher,  6  Dalv,  42 ;  Tyler  i\  Ames,  6  Lans.  280 ;  Gray  v.  Central  R. 
R  Co.,  11  Hun,  534;  Haven  r.  Russell,  34  N.  Y.  Supp.  292;  Singerly  v.  Thayer, 
108  Pa.  291 ;  Seelev  r.  Welles,  120  Pa.  69 ;  Howard  v.  Smedley,  140  Pa.  81  ; 
Adams  Radiator  Works  v.  Schnader,  155  Pa.  394;  Pennington  v.  Howland, 
21  R.  I.  65;  Rossiter  r.  Cooper,  23  Vt.  522;  McClure  v.  Briggs,  58  Vt.  82; 
Osborne  V.  Francis,  38  W.  Va.  312;  Exhaust  Ventilator  Co.  v.  Chicago,  &c. 
Rv.  Co.,  66  Wis.  218,  69  Wis.  454.     Cp.  Daggett  v.  Johnson,  49  Vt.  345. 

"  Such  agreements  usually  are  construed,  not  as  making  the  defendant's 
declaration  of  dissatisfaction  conclusive,  in  which  case  it  would  be  difficult  to 
say  that  they  amounted  to  contracts,  but  as  requiring  an  honest  expression." 
Hawkins  r.  Graham,  149  Mass.  284 ;  Richardson  v.  Coffman,  87  la.  121 ;  Mc- 
Cormick Co.  v.  Ockerstrom,  114  la.  260;  Lockwood  Mfg.  Co.  v.  Mason  Co.,  183 
Mass.  25;   Frary  r.  American  Rubber  Co.,  52  Minn.  264. 

As  a  matter  of  construction  "  when  the  consideration  furnished  is  of  such  a 
nature  that  its  value  will  be  lost,  either  wholly  or  in  great  part,  unless  paid 
for,  a  just  hesitation  must  be  felt,  and  clear  language  required,  before  deciding 
that  payment  is  left  to  the  will,  or  even  to  the  idiosyncrasies,  of  the  interested 


52  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

Acceptance  by  Conduct. 

Tacit  acceptance  must  be  unambiguous.  Conduct  which  is  relied  on  as 
constituting  the  acceptance  of  a  contract  must  (no  less  than  words 
relied  on  for  the  same  purpose)  be  unambiguous  and  uncon- 
ditional (p). 

Where  the  proposal  itself  is  not  express,  then  it  must  also  be  shown 
that  the  conduct  relied  on  as  conveying  the  proposal  was  such  as  to 
amount  to  a  communication  to  the  other  party  of  the  proposer's 
intention. 

(p)    Warner  v.  Willington    (1856)  3  Drew.  523,  533,  25  L.  J.  Ch.  662. 

party.  In  doubtful  cases,  courts  have  been  inclined  to  construe  agreements  of 
this  class  as  agreements  to  do  the  thing  in  such  a  way  as  reasonably  ought  to 
satisfy  the  defendant."     Hawkins  v.  Graham,  149  Mass.  284. 

In  New  York  the  courts  go  so  far  as  always  to  construe  a  contract 
which  does  not  involve  from  its  nature  a  question  of  taste  as  requiring 
only  such  performance  as  would  be  satisfactory  to  a  reasonable  man,  al- 
though personal  satisfaction  is  expressly  stipulated  for.  Duplex  Co.  v. 
Garden,  101  N.  Y.  387;  Doll  r.  Noble,  116  N.  Y.  230;  Hummel  *>.  Stern, 
164  N.  Y.  603 ;  and  a  few  other  States  have  followed  the  New  York  rule. 
Keeler  v.  Clifford,  165  111.  544;  Boyd  v.  Hallowell,  60  Minn.  225;  Pope 
Iron  Co.  r.  Best,  14  Mo.  App.  502;  Barnett  r.  Sweringen,  77  Mo.  App.  64; 
Richeson  r.  Mead,  US.  Dak.  639.  See  also  Schleicher  r.  Montgomery  Light 
Co.,  114  Ala.  228;  Baltimore,  &c  R.  Co.  v.  Brydon,  60  Md.  404;  J.  I.  Case 
Works  r.  Marr,  33  Neb.  215.  This  rule  makes  necessary  a  distinction,  often 
troublesome,  between  contracts  involving  taste  and  those  which  do  not.  See 
Smith  v.  Robson,  148  N.  Y.  252;  Crawford  v.  Mail  &  Express  Co.,  163  N.  Y. 
404.     Cp.  Sax  v.  Detroit  Ry.  Co.,  125  Mich.  252. 

A  promise  made  by  a  stockholder  on  receiving  stock  to  offer  it,  on  a  certain 
contingency,  to  the  corporation  at  a  valuation  then  to  be  made  by  the  latter  is 
binding.     New  England  Trust  Co.  v.  Abbott,  162  Mass.   148. 

Where  one  executed  a  written  instrument  under  seal,  acknowledging  an  in- 
debtedness to  another,  and  promising  to  pay  the  same  whenever  in  his  opinion 
his  circumstances  should  enable  him  to  do  so.  such  instrument  was  held  to  im- 
pose no  legal  obligation  enforceable  by  action.  Nelson  v.  Von  Bonnhorst,  29 
Pa.  352.  But  see  Smithers  v.  Junker,  41  Fed.  Rep.  101 ;  Pistel  v.  Imperial  Ins. 
Co.,  88  Md.  552;  Page  r.  Cook,  164  Mass.  116;  I^wis  r.  Tipton,  10  Ohio  St. 
88.  A  promise  to  pay  when  able  is  generally  held  to  imposp  an  obligation  to 
that  exact  extent.  Cole  v.  Saxby,  3  Esp.  159 ;  Davies  r.  Smith,  4  Esp.  36 ; 
Tell  City  Co.  v.  Nees,  63  Ind.  245;  Stainton  r.  Brown,  6  Dana,  249;  Eckler 
!'.  Galbraith,  12  Bush,  71;  Denney  v.  Wheelwright,  60  Miss.  733;  Work  v. 
Beach,  13  N.  Y.  Supp.  678;  Re  Knab,  78  N.  Y.  Supp.  292;  Salinas  v.  Wright, 
11  Tex.  572.  In  Work  r.  Beach,  it  was  held  that  the  defendant  several  years 
after  making  a  promise  to  pay  about  $14,000  on  such  a  promise  was  not 
liable  though  he  had  been  continuously  in  receipt  of  a  salary  of  $15,000  » 
year,  as  he  saved  nothing  therefrom. 

In  some  cases,  however,  it  has  been  held  that  one  who  makes  such  a  promise 
is  bound  to  pay  within  a  reasonable  time.  Nunez  v.  Dautel,  19  Wall.  562; 
Works  v.  Hersbey,  35  la,  340;  De  Wolf  v.  French,  51  Me.  420;  Crooker  l'. 
Holmes,  65  Me.  195;  Lewis  r.  Tipton,  10  Ohio  St.  8»;  Noland  v.  Bull,  24  Oreg. 
479,  and  in  Kincaid  v.  Higgins,  1  Bibb,  396,  the  promisor  was  held  bound  to 
pay  at  once. 

If  the  promisor  has  once  become  able  to  pay  a  right  of  action  vests,  which 
is  not  divested  by  supervening  inability.  Denney  v.  Wheelwright,  60  Miss. 
■733,  744. 


TACIT    ACCEPTANCE.  53 

Cases  of  special  conditions  on  tickets.  Difficult  questions  may  arise  on 
this  point,  and  in  particular  have  arisen  in  cases  where  public  com- 
panies entering  into  contracts  for  the  carriage  or  custody  of  goods 
have  sought  to  limit  their  liability  by  special  conditions  printed  on  a 
ticket  delivered  to  the  passenger  or  depositor  at  the  time  of  making 
the  contract.  The  tendency  of  the  earlier  cases  on  the  subject  is  to 
hold  that  (apart  from  the  statutory  restrictions  of  the  Eailway  and 
Canal  Traffic  Act,  *1854,  which  do  not  apply  to  contracts  with  [49 
steamship  companies,  nor  to  contracts  with  railway  companies  for  the 
mere  custody  as  distinguished  from  the  carriage  of  goods)  such  con- 
ditions are  binding.  A  strong  opposite  tendency  is  shown  in  Hen- 
derson v.  Stevenson  (q),  where  the  House  of  Lords  decided  that  in 
the  case  of  a  passenger  traveling  by  sea  with  his  luggage  an  indorse- 
ment on  his  ticket 60  stating  that  the  shipowners  will  not  be  liable  for 
loss  does  not  prevent  him  from  recovering  for  loss  caused  by  their 
negligence,  unless  it  appears  either  that  he  knew  and  assented  to  the 
special  terms,  or  at  any  rate  that  he  knew  there  were  some  special 
terms  and  was  content  to  accept  them  without  examination  (r).61 

(7)     (1875)    L.  R.  2  Sc.  &  T>.  470.  tion  of  the  special  terms  would  have 

Lord  Chelmsford's  and  Lord  Hather-  to   be    shown.      But    the   later    cases 

ley's  dicta   (pp.  477,  479)   go  farther,  have  not  adopted  this  view, 
and  suggest  that  the  contract  is  com-  (r)    Followed  in  Richardson  &  Go. 

plete  before  the  ticket  is  delivered  at  v.    Rowntree    [1894]    A.    C.    217,    63 

all,   so   that   some  other  communica-  L.  J.  Q.  B.  283. 

60  The  ticket  as  such  is  a  mere  token  or  voucher  that  the  holder  has  paid 
his  fare,  not  the  contract  between  the  parties.  Erie  R.  Co.  v.  Winter's  Adm., 
143  U.  S.  60;  Scolfield  r.  Penna.  Co.,  112  Fed.  Rep.  855;  The  Minnetonka,  132 
Fed.  Rep.  52;  Burnham  v.  Railroad  Co.,  63  Me.  298;  Quimby  v.  Vanderbilt, 
17  N.  Y.  306;  Rawson  r.  Railroad  Co.,  48  N.  Y.  212;  Elmore  r.  Sands,  54 
N.  Y.  512,  515;  Railroad  Co.  v.  Campbell,  36  Ohio  St.  647,  658;  Pennsylvania 
Co.  v.  Wentz,  37  Ohio  St.  333;  Frank  v.  Ingalls,  41  Ohio  St.  560;  Wilson  v. 
Railroad  Co.,  21  Gratt.  654.  Also  an  article  on  tickets  by  Professor  J.  H. 
Beale,  1  Harv.  L.  Rev.  17.  But  see  Western  R.  Co.  v.  Stockdale,  83  Md.  245; 
Rahilly  t'.  St.  Paul,  &c.  Co.,  66  Minn.  153;  People  r.  Tyroler,  157  N.  Y. 
116,  123. 

61  See  The  Majestic,  166  U.  S.  375;  The  Kensington,  183  TJ.  S.  263; 'The 
New  England,  lib  Fed.  Rep.  415;  The  Minnetonka,  132  Fed.  Rep.  52;  Railway 
Co.  v.  Deloney,  65  Ark.  177;  Railroad  Co.  r.  Cox,  29  Ind.  360;  Railroad  Co. 
v.  Rodebaugh,  38  Kan.  45;  Malone  v.  Railroad  Co.,  12  Gray,  388;  Brown  v. 
Railroad  Co.,  11  Cush.  97;  Railway  Co.  r.  Holmes,  75  Miss.  371;  Madan  r. 
Sherard,  73  N.  Y.  329;  Blossom  v.  Dodd,  43  N.  Y.  264;  Rawson  v.  Railroad 
Co.,  48  N.  Y.  212;  Railroad  Co.  v.  Campbell,  36  Ohio  St.  647;  Railroad  Co. 
v.  Turner,  100  Tenn.  213;  Railway  Co.  r.  Newman;  17  Tex.  Civ.  App.  606; 
Ranchau  r.  Railroad  Co.,  71  Vt.  142;  Wilson  v.  Railroad  Co.,  21  Gratt.  654; 
cp.  Fonseca  r.  Cunard  S.  S.  Co.,  153  Mass.  553 ;  O'Regan  v.  Cunard  S.  S.  Co., 
160  Mass.  356;  Steers  v.  Steamship  Co.,  57  N.  Y.  1. 

Common  carriers,  it  is  to  be  remembered,  are  bound  to  serve  every  one  who 
applies  to  them,  and  to  their  calling  certain  duties  and  liabilities  are,  by  law, 
attached ;  it  requires  no  contract  to  create  these ;  it  does  require  one  to  divest 
them.  It  is  well  settled  that  a  mere  notice  is  not  enough  to  relieve  the  carrier 
from  his   common  law  liability  without  proof   of  its  having  been   not  only 


54  AGREEMENT,    PROPOSAL,    AND   ACCEPTANCE. 

Since  this  there  have  been  reported  cases  arising  out  of  the  deposit  of 
goods,  for  safe  custody  or  otherwise,  in  exchange  for  a  ticket  on  which 
were  endorsed  conditions  limiting  the  amount  of  the  receiver's  lia- 
bility (s).  The  result,  as  it  stands  at  present,  appears  to  be  that  it  is 
a  question  of  fact  whether  the  notice  given  in  each  case  was  reasonably 
sufficient  to  inform  the  party  receiving  it  at  the  time  of  making  the 
contract  that  the  party  giving  it  intended  to  contract  only  on  special 
50]   terms.     A  person  who,  knowing  this  (I),  enters  *into  the  con- 

(«)   Harris  v.  G.  TV.  R.  Co.   (1876)  v.'JS.  E.  7?.  Co.    (1879)   5  C.  P.  D.  1, 

1  Q.  B.  D.  515,  45  L.  J.  Q.  B.   729;  49  L.  J.  C.  P.  107. 
Parker  v.  8.  E.  R.  Co.  (1876)  ;  G-aoell  (t)      Knowledge     that     there     are 

v.  8.  E.  R.  Co.    (1877)    2  C.  P.  Div.  special  conditions  must  be  found  as 

416,  46  L.  J.  C.  P.  768,  reversing  in  a    fact.      It    may    be    inferred    from 

Parker's    case    the    judgment   of    the  reasonable   means    of   knowledge;    in 

C.  P.  Div.   1   C.  P.  D.  618,  46  L.  J.  deciding   whether   the   means    offered 

C.  P.  768;  Watkins  v.  Rymill  (1883)  are  reasonable  all  the  circumstances, 

10  Q.  B.  D.  178,  52  L.  J.  Q.  B.   121,  such  as  the  class  of  persons  to  whom 

where  the1  former  cases  are  fully  re-  the  notice  is  addressed,  are  properly 

viewed  by  Stephen  J.      Compare  Burke  taken    into    account :     Richardson    & 

actually  seen,  but  also  assented  to  by  the  other  party.  When  goods  are 
delivered  to  a  carrier  under  a  notice,  if  any  implication  is  to  be  indulged  in, 
"  it  is  as  strong  that  the  owner  intended  to  insist  upon  his  rights  as  it  is 
that  he  assented  to  their  qualification."  New  Jersey  Steam  Nav.  Co.  P.  Bank, 
6  How.  344,  383;  Railroad  Co.  i.  Manufacturing  Co.,  16  Wall.  318;  Judson  .v. 
Railroad  Co.,  6  Allen,  486,  491;  Moses  v.  Railroad  Co.,  24  N.  H.  71;  Same  v. 
Same,  32  N.  H.  523;  Hollister  v.  Xowlen,  19  Wend.  234;  Jones  v.  Voorhees, 
10  Ohio,  145;  Railroad  Co.  v.  Barrett,  36  Ohio  St.  448,  453;  Brown  v. 
Express  Co.,  15  W.  Va.  812. 

When  concurrently  with  his  delivery  of  the  goods  to  the  carrier,  a  bill  of 
lading  containing  restrictive  conditions  is  given  to  the  shipper  and  retained 
by  him,  it  is  held  in  some  States  that  he  is  estopped  to  deny  that  he  assented 
to  its  terms,  and  that  evidence  to  show  that  he  never  read  it  is  inadmissible. 
Railroad  Co.  r.  Brownlee,  14  Bush,  590 ;  Grace  v.  Adams,  100  Mass.  505 ;  Cox 
v.  Railroad  Co.,  170  Mass.  129;  McMillan  i.  Railroad  Co.,  16  Mich.  80; 
O'Bryan  r.  Khmer,  74  Mo.  125;  Insurance  Co.  r.  Railroad  Co.,  72  N.  Y.  90; 
Hill't-.  Railroad  Co.,  73  N.  Y.  351;  Zimmer  t.  Railroad  Co.,  137  N.  Y.  460. 
See  also  The  Kensington,  183  U.  S.  263 ;  Lawson,  Contracts  of  Carriers,  §  102. 
But  compare  on  the  other  hand,  Railroad  Co.  v.  Manufacturing  Co.,  16  Wall. 
318;  Express  Co.  r.  Haynes,  42  111.  89;  Express  Co.  v.  Stettaners,  61  111.  184; 
Transportation  Co.  v.  Dater,  91  111.  195;  Railway  Co.  v.  Simon,  160  111.  648; 
Express  Co.  P.  Moon,  39  Miss.  822. 

As  to  similar  questions  arising  in  contracts  with  telegraph  companies,  see 
Primrose  r.  Western  Union  Tel.  Co.,  154  U.  S.  1 ;  Stamey  v.  Western  Union 
Tel.  Co.,  92  Ga.  613. 

Where  goods  are  delivered  to  a  carrier  under  a  verbal  contract,  not  limiting 
the  carrier's  liability,  and  afterwards  a  bill  of  lading  containing  restrictive 
conditions  is  given  to  the  shipper,  it  requires  for  the  release  of  the  carrier 
from  his  common  law  liability  not  only  the  express  assent  of  the  shipper 
(Railway  Co.  r.  Jurey,  111  U.  S.  594;  Railroad  Co.  v.  Boyd,  91  111.  268;  Gott 
r.  Dinsmore,  Ill  Mass.  45;  Bostwick  v.  Railroad  Co.,  45  N.  Y.  712;  Gaines  v. 
Transportation  Co.,  28  Ohio  St.  418)  ;  but  also,  it  is  submitted,  a  new  consider- 
ation. Railroad  Co.  r.  Reynolds,  17  Kan.  251:  Hendrick  v.  Railroad  Co.,  170 
Mass.  44,  47 ;  Railway  Co.  r.  Carter,  9  Tex.  Civ.  App.  677 ;  Railway  Co.  i>. 
Avery,  19  Tex.  Civ.  App.  235;  Railway  Co.  v.  Wright,  20  Tex.  Civ.  App.  136; 
Strohn  v.  Railroad  Co.,  21  Wis.  562.     See  5  C.  L.  J.  134. 


PROMISES   IN   DEEDS.  55 

tract,  is  then  deemed  to  assent  to  the  special  terms;  but  this,  again, 
is  probably  subject  to  an  implied  condition  that  the  terms  are  relevant 
and  reasonable.  It  cannot  be  said  that  the  subject  is  yet  free  from 
doubt. 

Promises  expressed  in  deeds.  It  has  already  been  pointed  out  that  the 
ordinary  rules  of  proposal  and  acceptance  do  not  apply  to  promises 
embodied  in  a  deed.  It  is  established  by  a  series  of  authorities  which 
appear  to  be  confirmed  by  the  ratio  decidendi  of  Xenos  v.  Wick- 
ham  (u),  in  the  House  of  Lords,  that  a  promise  so  made  is  at  once 
operative  without  any  question  of  acceptance;62  and  this  because  it 
derives  its  force  not  from  anything  passing  between  the  parties,  but 
from  the  promisor's  —  or,  in  the  regular  language  of  conveyancing, 
covenantor's  —  solemn  admission  that  he  is  bound.  Thus  an  obligation 
is  created  which  whenever  it  comes  to  the  other  party's  knowledge 

Co.  v.  Roumtree  [1894]  A.  C.  217,  63  Palmer  [1895]  1  Q.  B.  862,  64  L.  J. 
L.  J.  Q.  B.  283.  [Cp.  with  this  case  Q.  B.  316,  where  the  point  whether 
O'Regan  v.  Cunard  S.  S.  Co.,  160  there  was  sufficient  notice  of  the  con- 
Mass.  356.]  Compare  Ulpian's  re-  dition  was  not  open, 
marks  on  a  fairly  analogous  case,  D.  («)  (1886)  L.  R.  2  H.  L.  296. 
14,  3,  de  inst.  act.  11,  §  2,  3.  De  The  previous  cases  were  Doe  d.  Gar- 
quo  palam  proscription  fuerit,  ne  nons  v.  Knight  (1826)  5  B.  &  C.  671, 
cum    eo    contrahatur,    is    praepositi  29   R.   R.   355    (a  mortgage)  ;   Exton 

loco  non  habetur Proscribere  v.  Scott   (1833)    6  Sim.  31,  38  R.  R. 

palam  sic  accipimus:    Claris   litteris,  72  (the  like)  ;  Hall  v.  Palmer  (1844) 

unde  de  piano  recte  legi  possit,  ante  13  L.  J.  Ch.  352   (bond  to  secure  an- 

tabernam     scilicet,     vel     ante     eum  nuity  after  obligor's  death)  ;  Fletcher 

locum,    in    quo    negotiatio    exercetur,  v.  Fletcher    (1845)    14  L.   J.   Ch.   66 

non  in   loco   remoto,   sed   in  evidenti  (covenant  for  settlement  to  be  made 

....   Certe  si  quis   dicat  ignorasse  by   executors).      Xenos   v.    Wickham 

se   litteras,   vel  non  observasse   quod  might    have    been     decided     on     the 

propositum  erat,  cum  multi  legerent,  ground  that  the  company's  execution 

cumque  palam  esset  propositum,  non  of  the  policy  was  the  acceptance   of 

audietur.     Before  the  recent  cases  on  the     plaintiffs'     proposal,     and     the 

the  subject  the  conditions  printed  by  plaintiffs'  broker  was  their  agent  to 

railway   companies    on  their  tickets,  receive  communication  of  the  accept- 

and    the    corresponding    notices    ex-  ance.     But  that  ground  is  distinctly 

hibited  by  them,  were  not  often,  they  not   relied   upon    in   the   opinions    of 

are  still  not  always,  "  Claris  litteris,  the  Lords :   see  L.  R.  2  H.  L.  at  pp. 

unde  de  piano  recte  legi  possit,"  or  320,   323.      [Xenos   v.   Wickham  was 

"  in  loco  evidenti."     As  to  conditions  followed   in  Roberts  v.   Security  Co. 

on   passenger    tickets    see   per    Wills  [1897]  1  Q.  B.  111.     See  also  Malott 

and  Wright  JJ.  in  G.  N.  B.  Co.  v.  v.  Wilson  [1903]  2  Ch.  494.] 

62  See  also  Crawford  v.  Insurance  Co.,  125  Cal.  609 ;  Dibble  v.  Insurance 
Co.,  70  Mich.  1 ;  McMillan  v.  Ames,  33  Minn.  257 ;  Waggoner's  Est.,  174  Pa. 
558.  But  in  Meigs  v.  Dexter,  172  Mass.  217,  it  was  said:  "  It  is  well  settled 
in  this  Commonwealth  that  the  delivery  of  a  deed  is  not  complete  and  effectual 
without  an  acceptance  by  the  grantee,  or  by  some  one  authorized  to  represent 
him,  and  whose  act  of  acceptance  is  afterwards  ratified."  See  also  Nelson  v. 
Insurance  Co.,  120  N.  C.  302.  Almost  all  of  the  cases  on  the  essentials  of  de- 
livery of  a  deed  have  arisen  in  regard  to  conveyances,  and  the  subject  is 
generally  treated  in  connection  with  the  law  of  real  property.  Devlin  on 
Deeds,  §  260   et  seq.;  Gray's  Cases  on  Property,  Vol.  Ill,  pp.  633-735. 


56  AGREEMENT,    PROPOSAL,    AND    ACCEPTANCE. 

affords  a  cause  of  action  without  any  other  signification  of  his  assent, 
and  in  the  meanwhile  is  irrevocable.63  But  if  the  promisee  refuses 
his  assent  when  the  promise  comes  to  his  knowledge  the  contract  is 
avoided. 

51  ]  *"  If  A  makes  an  obligation  to  B.,  and  deliver  it  to  C.  to  the  use 
of  B.,  this  is  the  deed  of  A.  presently;  but  if  C.  offers  it  to  B.,  then  B. 
may  refuse  it  in  pais  "  (i.e.  without  formality)  "  and  thereby  the 
obligation  will  lose  its  force."  (a;).64 

(as)   Butler  and  Baker's  case,  3  Co.  means  the  special  form  of  deed  other- 
Rep.  26,  quoted  by  Blackburn  J.  L.  R.  wise,   and   now  exclusively,   called   a 
2    H.    L.    at    p.    312.      "Obligation"  bond, 
here,   as   always   in  our   older   books, 

63  That  a  promissory  note  also  differs  from  a  simple  contract  in  this  respect, 
namely,  that,  if  delivered,  a  payee  may  recover  upon  it,  though  not  aware  of 
its  existence  until  after  the  maker's  death,  see  Dean  v.  Carruth,  108  Mass. 
242 ;  Worth  v.  Case,  42  N.  Y.  362 ;  2  Ames,  Cas.  on  Bills  and  Notes,  878,  s.  v. 
Specialty,  §  18.  As  to  an  indorsee,  see  Lysaght  -v.  Bryant,  9  C.  B.  46 ;  Williams 
v.  Gait,  95  111.  172. 

64  See  in  accord  Merrills  v.  Swift,  18  Conn.  257  (a  mortgage);  Ensworth 
v.  King,  50  Mo.  477  (the  like),  and  the  following  cases  of  simple  conveyances: 
Munro  r.  Bowles,  187  111.  346;  Schlicher  r.  Keeler,  61  N.  J.  Eq.  394;  Bobbins 
v.  Raseoe,  120  N.  C.  79;  Mitchell  v.  "Ryan,  3  Ohio  St.  377,  382.  But  see 
contra,  Bell  v.  Bank,  11  Bush,  34  (a  mortgage)  ;  Welch  v.  Sackett,  12  Wis. 
270  (the  like,  cp.  Sargeant  v.  Solberg,  22  Wis.  132)  ;  Knox  v.  Clark,  15  Coi. 
App.  356   (a  deed).     See  also  49  Am.  L.  Reg.   (0.  S.)    116. 


CAPACITY    OF    PARTIES. 


57 


*CHAPTEK  II. 
Capacity  of  Parties. 


[52 


Variations  in  personal  capac- 
ity, 58 

Artificial   persons,  59 

Limitations  of  capacity,  59 

1.  Infants.  General  statement,  59 
Contracts  voidable,  not  void,  59 
Supposed    distinction   between 

void   and   voidable  now   ex- 
ploded, 60 
Special     classes    of    contracts 

considered  on  this  point,  61 
Avoidance  of  infant's  con- 
tract, 66 
Infant's  Relief  Act,  1874,  69 
Liability  on  obligations  inci- 
dent to  property,  73 
On  beneficial  contract,  74 
For  necessaries,  76 
Sale  of  Goods  Act,  1893,  s.  2,  76 
What  are  necessaries,  78 
Certain    contracts    of    infants 

binding  by  custom,  81 

By  statute,  81 

Liability  of  infants  on  wrongs 

collateral  to  contract,  82 

In  equity,   on   representations 

of  full  age,  84 

Subsequent  contract  after  full 
age  prevails,  86 

2.  Harried    Women.      Can    con- 

tract only  as  to  separate 
property,  87 

Ius  mariti  and  survivorship,         89 

Cannot  revive  barred  debt  by 
acknowledgment,  90 

Exceptions  at  common  law,         90 

Custom  of  London  as  to  mar- 
ried woman  trading  alone,         91 

Agreements  for  separation  be- 
tween husband  and  wife 
alone,  92 

Statutory  exceptions:  judicial 
separation,  &c,  93 

Equitable  doctrine  of  separate 
estate,  94 

Married  Women's  Property 
Act,   1882,  94 

3.  Lunatics  and  Drunken  Persons. 

Old  law,  98 

Modern  law:  contract  not 
void  but  voidable,  100 

4.  Convicts,  &c,  104 

Extension  of  capacity,  105 


PAGE. 

1.  Agency,  105 
Authority  of  agent,  105 
Contracts        by        authorized 

agents,  107 

When  agent  known  to  be  such, 
there  is  contract  with  prin- 
cipal, 107 

If  principal  named,  prima 
facie  no  contract  with  agent,  107 

If  principal  not  named,  prima 
facie  there  is  contract  with 
agent,  _    108 

These  rules  subject  to  evi- 
dence of  contrary  intention,  111 

When  agent  not  known  to  be 
such,  there  is  generally  con- 
tract with  undisclosed  prin- 
cipal, 112 

Exceptions  to  and  limits  of 
the  rule,  113 

Eights  of  other  contracting 
party,  115 

Professed  agent  not  having  au- 
thority cannot  sue  on  the 
contract  if  a  responsible 
principal  has  been  named,       117 

Nor  be  sued  on  it,  119 

But  may  be  sued  on  implied 
warranty  of  authority,  119 

Where  no  principal  named,  or 
one  who  could  not  be  respon- 
sible, professed  agent  is 
treated  as  principal,  123 

2.  Artificial  Persons,  124 
Nature  of  artificial  persons,  124 
Corporations :      common      law 

doctrine,  126 

Capacities   of  corporations   in 

themselves,  128 

As  limited  by  positive  rules,       133 
As  determined  by  purposes  of 

incorporation,  133 

Application      of     partnership 

law,  134 

Public  policy  and  interests  of 

the  public,  138 

Corporations  cannot  bind 
themselves  by  negotiable  in- 
struments :  explanations  of 
this,  143 

Exceptions,  146 

Conflicting  theories  in  U.  S.,     146 
Corporations  bound  by  estop- 
pel, &c,  147 


58  CAPACITY    OF    PARTIES. 

Variations  in  personal  capacity.  All  statements  about  legal  capacities 
and  duties  are  taken,  unless  the  contrary  be  expressed,  to  be  made 
with  reference  to  "  lawful  men,"  citizens,  that  is,  who  are  not  in  any 
manner  unqualified  or  disqualified  for  the  full  exercise  of  a  citizen's 
normal  rights.  There  are  several  ways  in  which  persons  may  be  or 
become  incapable,  wholly  or  partially,  of  doing  acts  in  the  law,  and 
among  other  things  of  becoming  parties  to  a  binding  contract. 

Infancy.  All  persons  must  attain  a  certain  age  before  they  are  ad- 
mitted to  full  freedom  of  action  and  disposition  of  their  property. 
This  is  but  a  necessary  recognition  of  the  actual  conditions  of  man's 
life.  The  age  of  majority,  however,  has  to  be  fixed  at  some  point  of 
time  by  positive  law.  By  English  law  it  is  fixed  at  twenty-one  years ; 
and  every  one  under  that  age  is  called  an  infant  (Co.  Litt.  171  b). 

Coverture.  Every  woman  who  marries  has  to  sustain,  as  incident  to 
her  new  status,  technically  called  coverture,  a  loss  of  legal  capacity  in 
various  respects ;  a  loss  expressed,  and  once  supposed  to  be  sufficiently 
explained,  by  the  fiction  that  husband  and  wife  are  one  person. 

Insanity,  &c.  Both  men  and  women  may  lose  their  legal  capacity, 
permanently  or  for  a  time,  by  an  actual  loss  of  reason.  This  we  call 
insanity  when  it  is  the  result  of  established  mental  disease,  intoxica- 
tion when  it  is  the  transient  effect  of  drink  or  narcotics.  Similar  con- 
sequences, again,  may  be  attached  by  provisions  of  positive  law  to 
53]  conviction  for  *criminal  offences.  Deprivation  of  civil  rights 
also  may  be,  and  has  been  in  England  in  some  particular  cases,  a 
substantive  penalty;  but  it  is  not  thus  used  in  any  part  of  our  law 
now  in  practical  operation.1 

Extension  of  natural  capacity:  agency.  On  the  other  hand,  the  capacity 
of  the  "  lawful  man "  receives  a  vast  extension  in  its  application, 
while  it  remains  unaltered  in  kind,  by  the  institution  of  agency.  One 
man  may  empower  another  to  perform  acts  in  the  law  for  him  and 
acquire  rights  and  duties  on  his  behalf.  By  agency  the  individual's 
legal  personalty  is  mutiplied  in  space,  as  by  succession  it  is  con- 
tinued in  time.  The  thing  is  now  so  familiar  that  it  is  not  easy  to 
realize  its  importance,  or  the  magnitude  of  the  step  taken  by  legal 
theory  and  practice  in  its  full  recognition.  We  may  be  helped  to  this 
if  we  remember  that  in  the  Boman  system  there  is  no  law  of  agency 

i  The  system  of  slavery  which  formerly  existed  in  this  country  involved 
the  incapacity  of  slaves  to  contract.  "  It  was  an  inflexible  rule  of  the  law  of 
African  slavery,  wherever  it  existed,  that  the  slave  was  incapable  of  entering 
into  any  contract,  not  excepting  that  of  marriage."  Hall  v.  United  States,  92 
V.  S.  27.  30. 


CONTRACTS    OP    INFANTS.  59 

as  we  understand  it.  The  slave,  who  did  much  of  what  is  now  done 
by  free  servants  and  agents,  was  regarded  as  a  mere  instrument  of 
acquisition  for  his  owner,  except  in  the  special  classes  of  cases  in 
which  either  slaves  or  freemen  might  be  in  a  position  analogous,  but 
not  fully  equivalent,  to  that  of  a  modern  agent.  As  between  the 
principal  and  his  agent,  agency  is  a  special  kind  of  contract.  But  it 
differs  from  other  kinds  of  contract  in  that  its  legal  consequences  are 
not  exhausted  by  performance.  Its  object  is  not  merely  the  doing  of 
specified  things,  but  the  creation  of  new  and  active  legal  relations 
between  the  principal  and  third  persons.  Hence  it  may  fitly  have  its 
place  among  the  conditions  of  contract  in  general,  though  the  mutual 
duties  of  principal  and  agent  belong  rather  to  the  treatment  of  agency 
as  a  species  of  contract. 

Artificial  persons.  While  the  individual  citizen's  powers  are  thus  ex- 
tended by  agency,  a  great  increase  of  legal  scope  and  safety  is  given  to 
the  conjoint  action  of  many  by  their  association  in  a  corporate  body 
or  artificial  person.  The  development  of  corporate  action  presupposes 
a  developed  law  of  agency,  *since  a  corporation  can  execute  its  [54 
intentions  only  through  natural  persons  generally  or  specially  author- 
ized to  act  on  its  behalf.  And  as  a  corporation,  in  virtue  of  its  per- 
petual succession  and  freedom  from  all  or  most  of  the  disabilities 
which  may  in  fact  or  in  law  affect  natural  persons,  has  powers  exceed- 
ing those  of  a  natural  person,  so  those  powers  have  to  be  defined  and 
limited  by  sundry  rules  of  law,  partly  for  the  protection  of  the  indi- 
vidual members  of  the  corporation,  partly  in  the  interest  of  the  public. 

We  proceed  to  deal  with  these  topics  in  the  order  indicated:  and 
first  of  the  exceptions  to  the  capacity  of  natural  persons  to  bind  them- 
selves by  contract. 

PART  I. 

I.   Infants. 

General  statement  of  the  law.  An  infant  is  not  absolutely  incapable 
of  binding  himself,  but  is,  generally  speaking,  incapable  of  absolute!}' 
binding  himself  by  contract  (a).  His  acts  and  contracts  are  void- 
able at  his  option,  subject  to  certain  statutory  and  other  exceptions. 

By  the  common  law  a  contract  made  by  an  infant  is  generally  void- 
able at  the  infant's  option,  such  option  to  be  exercised  either  before  (5) 
his  attaining  his  majority  or  within  a  reasonable  time  afterwards. 

Where  the  obligation  is  incident  to  an  interest  (or  at  all  events  to  a 

(a)   Stated  in  this  form  by  Hayes  (6)  As  to  this  see  p.  *61,  below. 

«T.  14  Ir.  C.  L.  Eep.  at  p.  356. 


60  CAPACITY    OF    PAKTIES. 

beneficial  interest)  in  property,  it  cannot  be  avoided  while  that  in- 
terest is  retained. 

Some  agreements  are,  exceptionally,  not  voidable  but  void. 

By  the  Infants'  Relief  Act,  1874,  loans  of  money  to  infants,  con- 
tracts for  the  sale  to  them  of  goods  other  than  necessaries,  and  ac- 
55  ]  counts  stated  with  them  are  absolutely  *void ;  and  no  action  can 
be  brought  on  a  ratification  of  any  contract  made  during  infancy. 

(When  the  agreement  of  an  infant  is  such  that  it  cannot  be.  for  his 
benefit,  it  has  been  said  to  be  absolutely  void  at  common  law;  but 
this  distinction  is  believed  to  be  exploded  by  modern  authorities.) 

On  the  other  hand  an  infant  is  bound  to  pay  a  reasonable  price  for 
necessaries  sold  and  delivered  to  him ;  where  "  necessaries  "  mean 
goods  suitable  to  his  condition  in  life  and  his  actual  requirements  at 
the  time  (c). 

An  infant's  express  contract  may  be  valid  if  it  appears  to  the  Court 
to  be  beneficial  to  the  infant.2 

In  certain  other  cases  infants  are  enabled  to  make  binding  contracts 
hx  custom  or  statute. 

An  infant  is  not  liable  for  a  wrong  arising  out  of  or  immediately 
connected  with  his  contract,  such  as  a  fraudulent  representation  at 
the  time  of  making  the  contract  that  he  is  of  full  age.  But  an  infant 
who  has  represented  himself  as  of  full  age  is  bound  by  payments  made 
and  acts  clone  at  his  request  and  on  the  faith  of  such  representations, 
and  is  liable  to  restore  any  advantage  he  has  obtained  by  such  repre- 
sentations to  the  person  from  whom  he  has  obtained  it. 

1.  Of  the  contracts  of  infants  in  general  at  common  law,  and  as 
effected  by  the  Act  of  1874. 

Supposed  rule  distinction  that  some  contracts  of  infants  are  wholly  void. 
It  was  once  commonly  said  that  an  agreement  made  by  an  infant,  if 
such  that  it  cannot  be  for  his  benefit,  is  not  merely  voidable,  but  abso- 
lutely void;  though  in  general  his  contracts  are  only  voidable  at  his 
56]  option  (d).  *But  this  distinction  is  in  itself  unreasonable,  and 
is  really  unsupported  by  authority,  while  there  -is  considerable  au- 

(c)    Sale  of  Goods  Act,   1893,  s.  2.  voidable,  Litt.  s.  259,  but  it  is  said 

This  confirms  the  opinion  that  an  in-  that  if  it  is  not  such  as  to  take  effect 

fant's    obligation    to    pay    for    necee-  "  by  the  delivery  of  his  own  hand," 

saries    is    not   created    by   agreement  it   is  void,   Perk.    12,    Shepp.   Touch, 

but  imposed  by  law;   in  other  words,  232-3,    Co.    Litt.    51    b,    n.,    3    Burr, 

that  there  is  not  a  true  contract  but  1805,  2  Dr.  &  W.  340.     It  is  assumed 

a,  quasi-contract.  in   modern   practice   that   an   infant's 

{d)    An  infant's   deed  is  generally  sale  or  gift  of  personal  chattels  with 

2  Clements  v.  London,  &c.  Ry.  Co.   [1894],  2  Q.  B.  482. 


CONTRACTS    OP    INFANTS.  61 

thority  against  it.  The  use  of  the  word  void  proves  nothing,  for  it  is 
to  be  found  in  cases  where  there  has  never  been  any  doubt  that  the 
contract  is  only  voidable.  And  as  applied  to  other  subject  matters  it 
has  been  held  to  mean  only  voidable  in  formal  instruments  (e)  and 
even  in  Acts  of  Parliament  (/).3 

Rule  unsupported  by  authority.  Actual  decision  is  the  only  safe  guide ; 
and  as  early  as  1813  it  was  clearly  laid  down  in  the  Exchequer 
Chamber,  as  the  general  rule  of  law,  that  the  contract  of  an  infant 
may  be  avoided  or  not  at  his  own  option.  The  Court  refused  to  recog- 
nize any  variation  of  the  rule  as  generally  applicable  to  trading 
contracts  (g). 

There  is  nothing  to  set  against  this  in  any  reported  case  of  co-ordi- 
nate authority.  Dicta  in  cases  of  inferior  authority  to  the  effect  that 
trade  contracts  of  infants  are  void  (as  distinct  from  voidable)  could 
not  prevail  against  a  decision  of  the  Exchequer  Chamber  even  if  they 
were  necessary  to  the  judgments  in  which  they  occur.  Examination 
shows  that  they  were  superfluous  in  every  case  cited  for  the  formerly 
current  doctrine;  but  it  seems  needless  to  repeat  what  was  said  in 
earlier  editions,  as  that  doctrine  is  now,  I  believe,  abandoned  every- 
where. 

Contract  of  service.  In  a  modern  case,  indeed,  the  following  opinion 
was  given  by  the  Court  of  Queen's  Bench  on  the  conviction  of  *a  [57 
servant  for  unlawfully  absenting  himself  from  his  master's  employ- 
ment : — 

"Among  many  objections  one  appears  to  us  clearly  fatal.  He  was  an  in- 
fant at  the  time  of  entering  into  the  agreement,  which  authorizes  the  master 
to  stop  his  wages  when  the  steam  engine  is  stopped  working  for  any  cause. 
An  agreement  to  serve  for  wages  may  be  for  the  infant's  benefit  (ft.)  ;  but  a» 

actual  delivery  is  good:  Taylor  v.  8,  with  Governors  of  Magdalen  Eos- 
Johnston  (1880)  19  Ch.  D.  603,  608.  pital  v.  Knotts  (1879)  4  App.  Ca. 
According  to  the  old  books  it  would  324,  48  L.  J.  Ch.  579,  in  which 
seem  to  be  voidable.  case  this  latitude  has  at  last  been 
(e)    Lincoln  College's  case    (1595)  restrained. 

3  Co.  Rep.  59  o;  Doe  d.  Bryan  v.  (17)  Warxoick  v.  Bruce,  6  Taunt. 
Bancks  (1821)  4  B.  &  Aid.  401,  23  118,  affg.  s.c.  M.  &  S.  205,  14  R.  R. 
R.  R.  318;  Malins  v.  Freeman  (1838)  638. 

4  Bing.  N.  C.  395,  44  R.  R.  737.  (h)  It  seems  that  prima  facie  it  is 
-(f)     Compare    Davenport    v.    Reg.       so,  even  if  it  contains  clauses  impos- 

(1877)  (J.  C.  from  Queensland)  3  ing  penalties,  or  giving  a  power  of 
App.   Ca.   at   p.   128,   47   L.  J.   P.   C.       dismissal,  in  certain  events :  Wood  v. 

3  See  remarks  of  Bell,  J.,  in  State  v.  Richmond,  26  N.  H.  232.  See  also 
Re  Brail,  [1893]  2  Q.  B.  381;  Ewell  v.  Daggs,  108  U.  S.  143;  Minah  Min.  Co. 
v.  Briscoe,  47  Fed.  Rep.  276;  Railroad  Co.  v.  Continental  Trust  Co.,  95  Fed. 
Rep.  497,  525;  Van  Shaack  r.  Robbing,  36  la.  201;  Allis  v.  Billings,  6  Met. 
415;  Terrill  v.  Auchauer,  14  Ohio  St.  80,  85;  National  Bank  v.  Wheelock, 
52  Ohio  St.  534;  Pearsoll  r.  Chapin,  44  Pa.  9. 


62  CAPACITY    OF    PARTIES. 

agreement  which  compels  him  to  serve  at  all  times  during  the  term  but  leaves 
the  master  free  to  stop  his  work  and  his  wages  whenever  he  chooses  to  do  so 
cannot  be  considered  as  beneficial  to  the  servant.  It  is  inequitable  and  wholly 
void.     The  conviction  must  be  quashed  "(i). 

But  this  is  mere  laxity  of  language.  Court  decided  only  that  the 
agreement  was  not  enforceable  against  the  infant.  It  cannot  have 
meant  to  say  that  if  the  master  had  arbitrarily  refused  to  pay  wages 
for  the  work  actually  done  the  infant  could  not  have  sued  him  on 
the  agreement. 

Leases.  Again,  it  is  said  that  a  lease  made  by  an  infant,  without 
reservation  of  any  rent  (or  even  not  reserving  the  best  rent),  is  abso- 
lutely void.  But  this  opinion  was  disapproved  by  Lord  Mansfield, 
whose  judgment  Lord  St.  Leonards  adopted  as  good  law,  though  the 
actual  decision  was  not  on  this  particular  point  in  either  case  (;'). 
And  in  a  modern  Irish  case  (k)  it  was  expressly  decided  that  at  all 
58]  events  *a  lease  made  by  an  infant  reserving  a  substantial  rent, 
whether  the  best  rent  or  not,  is  not  void  but  voidable;  and  further 
that  it  is  not  well  avoided  by  the  infant  granting  another  lease  of  the 
same  property  to  another  person  after  attaining  his  full  age.  There 
is  good  English  authority  for  the  proposition  that  if  a  lease  made  by 
an  infant  is  beneficial  to  him  he  cannot  avoid  it  at  all  (I). 

Sale,  &c,  of  land.  It  appears  to  be  agreed  that  the  sale,  purchase  (m), 
or  exchange  (w)  of  land  by  an  infant  is  both  as  to  the  contract  and 
as  to  the  conveyance  only  voidable  at  his  option.4 

Fenwick    (1842)     10   M.    &   W.    195;  C.   L.   Rep.   61.     The   Court   inclined 

Leslie  v.  Fitzpairich    (1877)   3  Q.  B.  to  think  that  some  act  of  notoriety 

D.   229,   47    L.   J.   M.   C.   22,   distin-  by  the  lessor  would  be  required,  such 

guishing  Reg.  v.  Lord   (next  note).  as    entering,    bringing   ejectment,    or 

(i)    Reg.  v.  Lord   (1848)    12  Q.  B.  demanding   possession    (note    that   a 

757,   17   L.   J.  M.   C.   181,  where  the  freehold    estate    for   the    life   of    the 

headnote  rightly  says  "  void  against  lessor  or  twenty-one  years  had  passed 

the  infant."     [See  also  Corn  v.  Mat-  by  the  original  lease)  ;  however  there 

thews,  [1893]   1  Q.  B.  310.]  was  another  reason,  namely,  that  the 

(/)   Zouch    v.    Parsons     (1765)     3  second   lease   might  be   construed   as 

Burr.   1794    (where  the  decision  was  only    creating    a    future    interest    to 

that    the    reconveyance    of    a.    mort-  take   effect  on   the   determination   of 

gagee's     infant    heir,    the    mortgage  the  first. 

being    properly    paid    off,    could    not  (I)     Haddon   v.    White    (1787)     2 

be   avoided  by  his   entry  before   full  T.  R.  159,  1  R.  R.  453. 
age)  ;  Allen  v.  Allen   (1842)   2  Dr.  &  (m)  Co.  Lit.  2  6,  Bac.  Ab.  Infancy, 

W.  307,  340;  and  see  Bac.  Ab.  4,  361.  I.  3  (4,  360). 

(fc)   Slator  v.  Brady   (1863)    14  Ir.  (n)  Co.  Lit.  51  5. 

■*  If  an  infant  make  a  feoffment  of  land,  since  he  must  be  in  possession  to 
make  it,  he  must  again  re-enter,  in  order  to  avoid  it;  and  hence  his  mere 
deed  to  another,  without  »  re-entry,  is  not  a  disaffirmance  of  the  feoffment 


CONTRACTS    OF    INFANTS.  63 

Partnership  and  shareholding.  Again,  there  is  no  doubt  that  an  infant 
may  be  a  partner5  or  shareholder  (though  in  the  latter  case  the  com- 
pany may  refuse  to  accept  him)  (o) ;  and  though  he  cannot  be  made 
liable  for  partnership  debts  during  his  infancy,  he  is  bound  by  the 
partnership  accounts  as  between  himself  and  his  partners  and  cannot 
claim  to  share  profits  without  contributing  to  losses.6  And  if  on 
coming  of  age  he  does  not  expressly  disaffirm  the  partnership  he  is 
considered  to  affirm  it,  or  at  any  rate  to  hold  himself  out  as  a  partner, 

(o)    But  the  company  cannot  dis-   Gooch's  case   (1872)   L.  R.  8  Ch.  266, 
pute  the  validity  of  a  transfer  to  an  42  L.  J.  Ch.  381.     And  see  Lindley, 
infant    after    the    infant    has    trans-  82-84. 
f erred    over   to    a    person    sui   iuris: 

first  made.  But  in  this  country  conveyance  by  bargain  and  sale,  and  not  by 
feoffment,  is  the  mode  generally  adopted,  and  hence  a  re-entry  by  the  infant  is 
not  usually  necessary.  Where  the  infant  remains  in  possession  of  the  land 
granted  by  him,  his  deed  to  another,  on  arriving  at  majority,  is  a  complete 
disaffirmance;  where  the  grantee  of  the  infant  goes  into  possession,  there  is  a, 
subsequent  deed  of  the  grantor  will,  or  will  not  be  effectual  as  a  disaffirmance, 
according  as  the  law  of  the  State  where  the  land  lies,  is,  or  is  not,  that  one  out 
of  possession  of  land  can  make  a  good  deed  of  it  without  re-entry.  Tucker  v. 
Moreland,  10  Pet.  58;  Bagley  v.  Fletcher,  44  Ark.  153;  Harris  v.  Cannon,  6 
Ga.  382 ;  Ritcher  v.  Laycock,  7  Ind.  398 ;  Vallandingham  v.  Johnson,  85  Ky. 
288;  Dawson  v.  Helmes,  30  Minn.  107;  Norcum  v.  Shehan,  21  Mo.  25;  Peter- 
son v.  Laik,  24  Mo.  541;  Jackson  v.  Carpenter,  11  Johns.  539;  Jackson  v. 
Burchin,  14  Johns.  124;  Bool  v.  Mix,  17  Wend.  119;  Hoyle  v.  Stowe,  2 
Dev.  &  Bat.  L.  320;  Cresinger  v.  Welch,  15  Ohio,  156;  Scott  v.  Buchanan,  11 
Humph.  468,  473,  474;  Mustard  v.  Wohlford,  15  Gratt.  329. 

In  Biggs  v.  Fisk,  64  Ind.  100,  it  was  held  that  although  a  conveyance,  made 
by  a  grantor  on  attaining  the  age  of  twenty-one  years,  of  lands  adversely  held 
by  one  claiming  title  thereto,  under  a  conveyance  made  by  the  same  grantor 
during  his  infancy,  is  void  as  against  the  adverse  holder,  yet  it  operates  as  a 
disaffirmance  of  the  first  deed,  and  authorizes  the  grantee  thereunder  to  sue 
the  adverse  holder  in  the  name  of  the  grantor  for  the  recovery  of  such  lands. 

In  order  that  a  later  deed  should  operate  as  a  disaffirmance  of  an  earlier, 
the  two  must  be  so  inconsistent  that  both  cannot  stand  together.  Leitens- 
dorfer  v.  Hempstead,  18  Mo.  269;  Buchanan  v.  Griggs,  18  Neb.  121;  Eagle 
Fire  Co.  v.  Lent,  6  Paige,  635;  McGann  v.  Marshall,  7  Humph.  121. 

Heirs  of  a  dead  minor  may  disaffirm  his  deed.  Walton  v.  Gaines,  94  Tenn. 
420.     Cp.  Mansfield  v.  Gordon,  144  Mass.  168. 

5  Bush  v.  Linthicum,  59  Md.  344 ;  Dana  v.  Stearns,  3  Cush.  372 ;  Dunton  v. 
Brown,  31  Mich.  182;  Osborn  v.  Farr,  42  Mich.  134;  Bank  v.  Strauss,  137 
N.  Y.  148;  Parker  v.  Oakley,  (Tenn.)  57  S.  W.  Rep.  426;  Penn  v.  Whitehead, 
17  Gratt.  503. 

6  In  Moley  v.  Brine,  120  Mass.  324,  the  members  of  a  partnership,  one  of 
whom  was  an  infant,  contributed  to  the  common  stock  in  unequal  propor- 
tions, with  an  agreement  that  the  profits  should  be  equally  divided  between 
them.  The  firm  dissolved;  the  assets  remaining  at  the  time  of  the  dissolution 
being  insufficient  to  pay  back  the  contributions  of  the  several  members  in 
full,  it  was  held  that  the  loss  of  capital  must  fall  upon  the  partners  in  equal 
proportions,  and  that  the  infant  could  not  throw  upon  his  co-partners  the 
obligation  of  making  up  the  deficiency.  Moley  v.  Brine  was  followed  in  Page 
r.  Morse,  128  Mass.  99.  See  also  Conary  i\  Sawyer,  92  Me.  463;  Pelletier 
v.  Couture.  148  Mass.  269 ;  Sparman  v.  Keim,  83  N.  Y.  245 ;  Shirk  v.  Schultz, 
113  Ind.  571,  27  Am.  L.  Reg.  520,  and  note. 


64  CAPACITY    OF   PARTIES. 

and  is  thereby  liable  for  the  debts  of  the  firm  contracted  since  his 
majority  (p).7 

The  liability  of  an  infant  shareholder  who  does  not  repudiate  his 
shares  to  pay  calls  on  them  rests,  as  far  as  existing  authorities  go,  on 
a  somewhat  different  form  of  the  same  principle  (of  which  after- 
wards). As  to  contribution  in  the  winding  up  of  a  company,  Lord 
Lindley  (q)  "is  not  aware  of  any  case  in  which  an  infant  has  been 
59  ]  put  on  the  list  of  contributories.  Upon  principle,  however,  *there 
does  not  appear  to  be  any  reason  why  he  should  not,  if  it  be  for  his 
benefit;  and  this,  if  there  are  surplus  assets,  might  be  the  case,-' 
Otherwise  he  cannot  be  deprived  of  his  right  to  repudiate  the  shares, 
unless  perhaps  by  fraud ;  but  in  any  case  if  he  "  does  not  repudiate  his 
shares,  either  while  he  is  an  infant  or  within  a  reasonable  time  after 
he  attains  twenty-one,  he  will  be  a  contributory,"  and  still  more  so  if 
after  that  time  he  does  anything  showing  an  election  to  keep  the 
shares.  On  the  whole  it  is  clear  on  the  authorities  (notwithstanding 
a  few  expressions  to  the  contrary),  that  both  the  transfer  of  shares  to 
an  infant  and  the  obligations  incident  to  his  holding  the  shares  are 
not  void  but  only  voidable  (r). 

Marriage.  Marriage  is  on  a  different  footing  from  ordinary  con- 
tracts (s),  and  it  is  hardly  needful  to  say  that  the  possibility  of  a 
minor  contracting  a  valid  marriage  has  never  been  doubted  in  our 
Courts.  Even  if  either  or  both  of  the  parties  be  under  the  age  of 
consent  (fourteen  for  the  man,  twelve  for  the  woman)  the  marriage 
is  not  absolutely  void,  but  remains  good  if  when  they  are  both  of  the 
age  of  consent  they  agree  to  it  (t).s    But  the  Marriage  Act,  -1  Geo.  4, 

(p)   Lindley  on  Companies,  5th  ed.  (s)  Continental  writers  have  wasted 

811,   828;    (loode  v.   Harrison    (1821)  much     ingenuity     in     debating    with 

5  B.  &  Aid.  147,  24  R.  R.  307.  which  class  of  contracts  it  should  be 

(q)    On  Companies,  809.  reckoned.     Saw  Syst.  §  141   (3.  317)  ; 

(r)    Lumsden's   case    (1868)    L.   R.  Ortolan  on  Inst.  2.  10. 
4  Ch.  31;  Gooch's  case,  last  page;  cp.  (t)   Bacon,  Abr.  4.  336. 

T>.  *65,  infra. 

7  In  Miller  r.  Sims,  2  Hill  (S.  C),  479,  where  an  infant  partner  after  at- 
taining full  age,  transacted  the  business  of  the  firm,  received  its  moneys  and 
paid  its  debts,  it  was  held  that  these  acts  unexplained  amounted  to  a  confirma- 
tion of  the  partnership,  and  made  him  liable  for  a  debt  of  the  firm  contracted 
during  his  infancy,  although  he  was  ignorant  of  the  existence  of  the  debt  at  the 
time  of  such  confirmation,  and  had,  on  being  informed  of  it,  refused  to  pay  it. 
But  see  Crabtree  v.  May,  1  B.  lion.  289;  Tobey  v.  Wood,  123  Mass.  88;  Miriock 
r.  Shortridge,  21  Mich"  304. 

8  Goodwin  v.  Thompson,  2  Greene  (la),  329;  State  r.  Lowell,  78  Minn.  166; 
Koonce  r.  Wallace,  7  Jones  L.  194;  Warwick  v.  Cooper,  5  Sneed,  659. 
Cp.  Beggs  r.  State,  55  Ala.  108;  Walls  v.  State,  32  Ark.  565  with  Shafher  r. 
State,  20  Ohio,  1. 


CONTRACTS    OF   INFANTS.  65 

e.  76  (ss.  8,  22),  makes  it  very  difficult,  though  not  impossible,  for  a 
minor  to  contract  a  valid  marriage  without  the  consent  of  parents  or 
guardians  («). 

Promises  to  marry.  As  to  promises  to  marry  and  marriage  settle- 
ments, it  *has  long  been  familiar  law  that  just  as  in  the  case  of  [60 
his  other  voidable  contracts  an  infant  may  sue  for  a  breach  of  promise 
of  marriage,  though  not  liable  to  be  sued  (a;).9 

Marriage  settlements.  An  infant's  marriage  settlement  is  not  binding 
on  the  infant  unless  made  under  the  statute  (see  post,  pp.  *73,  *75), 
and  the  Court  of  Chancery  has  no  power  to  make  it  binding  in  the 
case  of  a  ward  (y).  A  settlement  of  a  female  infant's  general  per- 
sonal property,  the  intended  husband  being  of  full  age  and  a  party, 
can  indeed  be  enforced,  but  as  the  contract  not  of  the  wife  but  of  the 
husband ;  the  wife's  personal  property  passing  to  him  by  the  marriage, 
he  is  bound  to  deal  with  it  according  to  his  contract  (z).  And  par- 
ticular covenants  in  an  infant's  settlement  may  be  valid  (a).  In  any 
case  the  settlement  is  not  void  but  only  voidable ;  it  may  be  confirmed 
by  the  subsequent  conduct  of  the  party  when  of  full  age  and  sui 
iuris  (&),  and  can  be  repudiated  only  within  a  reasonable  time  after 
attaining  full  age  (c). 

(m)  In  most  Continental  countries  point  by  Edwards  v.  Carter  [1893] 
the  earliest  age  of  legal  marriage  is  A.  C.  360,  63  L.  J.  Ch.  100. 
fixed:  In  France  it  is  eighteen  for  (b)  Dairies  v.  Davies  (1870)  L.  R. 
the  man,  fifteen  for  the  woman,  and  9  Eq.  468,  39  L.  J.  Ch.  343.  This  is 
consent  of  parents  or  lineal  ancestors  not  affected  by  the  Infants'  Relief 
is  required  up  to  the  ages  of  twenty-  Act,  1874:  Duncan  v.  Dixon  (1890) 
five  and  twenty-one  respectively :  Code  44  Ch.  D.  211,  59  L.  J.  Ch.  437.  A 
Civ.  144  sqq.  But  this  consent  may  woman  married  under  age  is  not  dis- 
be  dispensed  with  in  various  ways  by  abled  by  the  coverture  from  confirm- 
matter  subsequent  or  lapse  of  time:  ing  an  ante-nuptial  settlement  after 
see  art.  182,  183,  185.  The  marriage  she  is  of  age:  Re  Hodsdn's  Settle- 
law  of  other  states  (except  a  very  ment  [1894]  2  Ch.  421,  63  L.  J.  Ch. 
few  where  the  canon   law  may   still  609. 

prevail)    appears    to   differ    little  on  (c)   Without  regard  to  the  date  at 

the  average  from  the  law  of  France  which  any  particular  interest  affected 

in  this  particular.  may   fall    into   possession :     Edwards 

(a)    Bacon,  Abr.  Infancy  and  Age,  v.  Carter  [1893]  A.  C.  360,  63  L.  J. 

1.   4    (4.    370).     Per  Lord   Ellenbor-  Ch.  100,  with  which  Re  Jones  [1893] 

ough,  Warwick  y.  Bruce   (1813)   2  M.  2    Ch.    461.    62   L.   J.    Ch.    996,    does 

&  S.  205,  14  R.  R.  634.  not  seem  reconcilable.     And  election 

(y)  Field  v.  Moore  (1855)  7  D.  M.  must  be  made  once  for  all,  not  sep- 

&  G.  691,  710,  25  L.  J.  Ch.  66.  arate  elections  for  each  acquisition  — 

(z)   Davidson,  Conv.  3,  pt.  2,  728.  see  Viditz  v.  O'Hagan  [1899]   2  Ch. 

(a)     Smith    v.    Lucas     (1881)     18  pp.  569,  576. 
Ch.    D.    531,    not    overruled    on    this 

9  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  76 ;  Hunt  r.  Peake,  5  Cow.  475 ;  Willard 
v.  Stone,  7   Cow.  22;   Bush  !'.  Wick,  31  Ohio  St.  521;   Warwick  v.  Cooper,  5 
Sneed,  659;  Wells  v.  Hardy,  21  Tex.  Civ.  App.  648;  Pool  v.  Pratt,  1  Chip.  252. 
5 


66  CAPACITY    OF    PARTIES. 

Negotiable  instruments.  Again  an  infant's  contract  on  a  bill  of  ex- 
change or  promissory  note  was  once  supposed  to  be  wholly  void,  but 
is  now  treated  as  only  voidable  (d).10 

Accounts  stated.      The  same  holds  of  an  account  stated  (e).11 

Infant  cannot  have  specific  performance.  There  is  one  exception  to 
the  rule  that  an  infant  may  enforce  his  voidable  contracts  against  the 
61  ]  other  party  *during  his  infancy/2  or  rather  there  is  one  way  in 
which  he  cannot  enforce  them.  Specific  performance  is  not  allowed 
at  the  suit  of  an  infant,  because  the  remedy  is  not  mutual,  the  infant 
not  being  bound  (/)  .13 

When  infant  may  avoid  his  contracts.  An  infant  may  avoid  his  voidable 
contracts   (with  practically  few  or  no  exceptions)    either  before  or 

(d)   Undisputed  in  Harris  v.  Wall  (e)    Williams   v.   Moor    (1843)    11 

(1847)    1  Ex.  122,  16  L.  J.  Ex.  270,       M.  &  W.  256,  264,  266,  12  L.  J.  Ex. 
foil.    In  re  Hodson's  Settlement  [1894]        253. 

2  Ch.  421,  63  L.  J.  Ch.  609.  (f)    Flight    v.    Bolland    (1828)     4 

Russ.  298,  28  R.  R.  101. 

lo  Heady  v.  Boden,  4  Ind.  App.  475 ;  Insurance  Co.  v.  Hilliard,  63  Ohio  St. 
478;  Mission  Ridge  Co.  v.  Nixon,  (Tenn.)  48  S.  W.  Rep.  405;  Daniel  on 
Neg.  Inst.  §  223  seq;   1  Ames,  Cas.  on  Bills  and  Notes,  463,  note. 

ii  "  The  numerous  decisions  which  have  been  had  in  this  country  justify 
the  settlement  of  the  following  definite  rule,  as  one  that  is  subject  to  no 
exceptions.  The  only  contract  binding  on  an  infant  is  the  implied  contract 
for  necessaries ;  the  only  act  which  he  is  under  a  legal  incapacity  to  perform 
is  the  appointment  of  an  attorney ;  all  other  acts  and  contracts,  executed  or 
executory,  are  voidable  or  confirmable  by  him  at  his  election;"  1  Am.  L.  C. 
300;  Shropshire  r.  Burns,  46  Ala.  108;  Hyer  v.  Hyatt,  3  Cr.  C.  C.  276;  Boze- 
man  r.  Browning,  31  Ark.  364,  373;  Cole  v.  Pennoyer,  14  111.  158;  Fetrow  r. 
Wiseman,  40  Ind.  148  ;  Rice  r.  Boyer,  108  Ind.  472 ;  Mansfield  v.  Gordon,  144 
Mass.  168,  169;  McDonald  v.  Sargent,  171  Mass.  492;  Baker  P.  Kennett,  54 
Mo.  82,  88;  Necker  v.  Koehn,  21  Neb.  559;  Englebert  r.  Troxell;  40  Neb.  195; 
Beardsley  r.  Hotchkiss,  96  N.  Y.  201;  Bank  r.  Strauss,  137  N.  Y.  148,  152; 
Skinner  r.  Maxwell,  66  N.  C.  45,  47 ;  Harner  r.  Dipple,  31  Ohio  St.  72;  Lemmon 
r.  Beeman,  45  Ohio  St.  505,  509;  Insurance  Co.  v.  Hilliard,  63  Ohio  St.  478, 
491;  Mustard  v.  Wohlford,   15  Gratt.  329. 

However,  there  are  even  some  recent  cases  approving  the  threefold  division 
into  binding,  voidable  and  void  promises.  See  Green  v.  Wilding,  59  la.  679; 
Robinson  r.  Weeks,  56  Me.  102;  Dunton  v.  Brown,  31  Mich.  182;  Swafford  v. 
Ferguson,  3  Lea,  292. 

A  power  of  attorney  or  agent's  appointment  was  held  void  in  Trueblood  i". 
Trueblood,  8  Ind.  195;  Pyle  v.  Cravens,  4  Litt.  17;  Lawrence  v.  McArter,  10 
Ohio,  37.  But  voidable  only  in  Hastings  v.  Dollarhide,  24  Cal.  195 ;  Hardy 
r.  Waters,  38  Me.  450;  Whitney  r.  Dutch,  14  Mass.  457,  461;  Coursolle  v. 
Weyerhauser,  69  Minn.  328. 

12  The  other  party  cannot  refuse  to  perform  a  contract  because  of  the  in- 
fant's inability  to  bind  himself  conclusively.  Holt  v.  Ward  Clarencieux,  2 
Strange,  937;  Insurance  Co.  r.  Hilliard,  63  Ohio  St.  478,  491;  O'Rourke  v. 
John  Hancock  Ins.  Co.,  23  R.  I.  457,  462.  See  also  Atwell  r.  Jenkins,  163 
Mass.   362. 

13  Richards  v.  Green,  23  N.  J.  Eq.  536,  538;  Ten  Evck  r.  Manning,  52  N.  J. 
Eq.  47,  51.     But  see  Seaton  v.  Tohill,  11  Col.  App.  211. 


CONTRACTS    OF    INFANTS.  67 

within  a  reasonable  time  after  coming  of  age :  the  rule  is  that  "  mat- 
ters in  fait  [i.e.,  not  of  record]  he  shall  avoid  either  within  age  or  at 
full  age,"'  but  matters  of  record  only  within  age  (Co.  Lit.  380  b)  (g). 
Subject  to  the  general  rule,  established  for  the  benefit  of  innocent 
third  persons,  that  voidable  transactions  are  not  invalid  until  ratified 
but  valid  until  rescinded  (h),  an  infant  cannot  deprive  himself  of  the 
right  to  elect  at  full  age,  and  only  then  can  his  election  be  conclu- 
sively determined  (i).14 

(g)    See  per  Parke  B.     Newry  and  in  a  Court  of  Record,  see  Y.  B.  20  & 

Enniskillen  Ry.  Co.  v.  Coombe  (1849)  21  Ed.  I.  p.  320. 

3  Ex.  565,  18  L.  J.  Ex.  325;  per  Cur.  (h)    Per   Lord    Colonsay,   L.   R.    2 

L.  &  X.  W.  It.  v.  M' Michael   (1850)  H.  L.  375. 

5  Ex.   114,   20  L.  J.  Ex.   97.     As  to  (i)   L.  &   N.   W.  R.  v.   M'Michael, 

an  infant  being  bound  when  he  comes  supra,  note    (g)  ;   Slator  v.    Trimble 

of  age  by  an   acknowledgment  made  (1861)    14  Ir.  C.  L.  Rep.  342. 

14  In  Edgerton  v.  Wolf,  6  Gray,  453,  it  was  decided  that  an  infant  having 
during  his  minority  rescinded  a  contract  for  the  sale  of  a  horse,  this  was  final, 
and  precluded  his  afterwards  avoiding  the  rescission.  So  in  Pippen  v.  Insur- 
ance Co.,  130  N.  C.  23,  it  was  held  that  an  infant's  surrender  of  a  policy  for 
its  cash  value  was  conclusive.  Cp.  Lansing  v.  -Michigan  Central  R.  Co.,  126 
Mich.  663.  As  to  real  estate,  the  rule  in  this  country  generally  is  that 
an  infant  cannot  avoid  his  deed  until  his  majority.  Hastings  v.  Dollarhide, 
24  Cal.  195;  Chapman  v.  Chapman,  13  Ind.  396;  Welch  v.  Bunce,  83  Ind.  382; 
Baker  r.  Kennett,  54  Mo.  82,  88;  Shipley  r.  Bunn,  125  Mo.  445;  Emmons  v. 
Murray,  16  N.  H.  385;  Bool  v.  Mix,  17  Wend.  119;  McCormick  t\  Leggett, 
8  Jones  L.  425.  Rescission  after  majority  is  a  final  election.  McCarty  v. 
Woodstock  Iron  Co.,  92  Ala.  463.  Contracts  of  a  personal  kind,  or  relating 
to  personal  estate,  he  may  avoid  during  infancy.  Shipman  v.  Horton,  17  Conn. 
481;  Riley  r.  Mallory,  33  Conn.  201;  Carpenter  v.  Carpenter,  45  Ind.  142; 
Childs  v.  Dobbins,  55*Ia.  205;  Bailey  v.  Bamberger,  11  B.  Mon.  113;  Towle  v.. 
Dresser,  73  Me.  252;  Adams  v.  Beall,  67  Md.  53;  Gillis  v.  Goodwin,  180  Mass. 
140;  Simpson  v.  Prudential  Ins.  Co.,  184  Mass.  348;  Cogley  v.  Cushman,  IS 
Minn.  397;  Heath  r.  West,  26  N.  H.  191;  Carr  r.  Clough,  26  N.  H.  280; 
Chapin  i'.  Shafer,  49  N.  Y.  407;  Pippen  v.  Insurance  Co.,  130  N.  C.  23;  Price 
v.  Purman,  27  Vt.  268;  Hoyt  r.  Wilkinson,  57  Vt.  404.  Contra,  Dunton  v. 
Brown,  31  Mich.  182;  Armitage  v.  Widoe,  36  Mich.  124;  Lansing  v.  Michigan 
Central  R.  Co.,  126  Mich.  663.  Any  attempted  affirmance  during  infancy  is 
ineffectual.     Sanger    v.    Hibbard,    104   Fed.    Rep.    445     (c.   c.   A.). 

Money  paid  by  a  minor  under  a  contract  which  has  not  yet  been  performed 
by  the  other  party  mav  be  recovered  back.  Robinson  i>.  Weeks,  56  Me.  102; 
Medbury  v.  Watrous,  7  Hill,  110;  Shurtleff  v.  Millard,  12  R.  I.  272. 

An  infant  may  avoid  an  express  contract  of  hiring  and  service,  and  recover 
upon  quantum  meruit  the  value  of  the  services  he  has  rendered  under  it.  Ray 
v.  Haines,  52  111.  485;  Van  Pelt  v.  Corwine,  6  Ind.  363;  Meredith  v.  Craw- 
ford, 34  Ind.  399;  Derocher  v.  Continental  Mills,  58  Me.  217;  Vent  v.  Osgood, 
19  Pick.  572;  Gaffney  v.  Hayden,  110  Mass.  137;  Dube  v.  Beaudry,  150  Mass. 
448 ;  Lowe  v.  Slnklear,  27  Mo.  308 ;  Lupkin  v.  Mayall,  25  N.  H.  82 ;  Whitmarsh 
v.  Hall,  3  Denio,  375;  Medbury  r.  Watrous,  7  Hill,  110;  Dearden  v.  Adams, 
19  R.  I.  217;  Railroad  Co.  v.  Elliott,  1  Cold.  611;  Hoxie  v.  Lincoln,  25  Vt.  206- 

Some  of  the  cases  cited  hold  that  the  infant  can  recover  only  the  value  of 
his  services,  less  the  damage  suffered  by  his  employer  by  reason  of  the  breach 
of  his  contract.  But  this  makes  the  engagement  of  the  infant  a  contract  bind- 
ing on  him  to  the  extent  of  holding  him  liable  for  a  breach  of  it,  leaving  it 
voidable  prospectively  only,  and  not  ab  initio,  and  seems  clearly  wrong  on 


68  CAPACITY    OF    PAETIES. 

Money  paid  under  avoided  contract,  when  not  recoverable.  If  an  infant 
pays  a  sum  of  money  under  a  contract,  in  consideration  of  which  the 
contract  is  wholly  or  partly  performed  by  the  other  party,  he  can  ac- 
quire no  right  to  recover  the  money  back  by  rescinding  the  contract 
when  he  comes  of  age.      Such  is  the  case  of  a  premium  paid  for  a 

principle.  Cp.  McCarthy  v.  Henderson,  138  Mass.  310;  O'Rourke  r.  John  Han- 
cock Ins.  Co.,  23  R.  I.  457. 

An  infant's  agreement  to  labor,  in  consideration  of  being  furnished  board, 
clothing,  etc.,  may  amount  to  a  contract  for  necessaries,  and  if  it  is  reasonable 
and  has  been  executed  will  be  binding.  James  r.  Gillen,  3  Ind.  App.  472; 
Stone  c.  Dennison,  13  Pick.  1;  Squires  v.  Hydliff,  9  Mich.  274;  Ormsby  r. 
Rhoades,  59  Vt.  505.  Cp.  Breed  v.  Judd,  1  Gray,  455;  Spicer  v.  Earl,  41  Mich. 
191.     See  Genereaux  r.  Sibley,  18  R.  I.  42. 

Where  a  contract  is  executory  on  the  part  of  the  infant,  and  has  been  per- 
formed on  the  part  of  the  other  party,  if  the  infant  avoids  the  contract,  he 
thereby  divests  himself  of  all  right  to  what  he  may  have  received  under  it,  if 
then  still  possessed  by  him  in  specie,  and  the  other  party  may  repossess  him- 
self thereof  in  whatever  condition  it  may  then  be,  but  if  the  infant  have  al- 
lowed it  to  deteriorate,  or  wasted  or  consumed  it,  the  other  party  has  no 
remedy  therefor.  Brandon  r.  Brown,  106  111.  519,  527;  Badger  r.  Phinney,  15 
Mass.  359;  Miller  v.  Smith,  26  Minn.  248;  Nichols,  Ac,  Co.  v.  Snyder,  78 
Minn.  502;  Brantley  v.  Wolf,  60  Miss.  420;  Kitchen  v.  Lee,  11  Paige,  107; 
Mustard  v.  Wohlford,  15  Gratt.  329;  Bedinger  i\  Wharton,  27  Gratt.  857. 

And  in  the  case  of  an  executed  contract  of  sale,  or  exchange,  if  the  infant 
no  longer  possesses  the  consideration  received  by  him,  having  consumed  or 
disposed  of  it  during  infancy,  he  may  avoid  the  contract  without  putting  the 
other  party  in  statu  quo.  Tucker  v.  Moreland,  10  Pet.  58,  73,  74;  Manning 
v.  Johnson,  26  Ala.  446;  Eureka  Co.  r.  Edwards,  71  Ala.  248;  Carpenter  r. 
Carpenter,  45  Ind.  142;  Dill  v.  Bowen,  54  Ind.  204;  Chandler  r.  Simmons, 
97  Mass.  508;  Morse  V.  Ely,  154  Mass.  458;  White  r.  New  Bedford,  &c,  Co., 
178  Mass.  665;  Gillis  r.  Goodwin,  180  Mass.  140;  Simpson  r.  Prudential  Ins. 
Co.,  184  Mass.  348;  Brantley  v.  Wolf,  60  Miss.  420;  Harvey  r.  Briggs,  68  Miss. 
60;  Craig  v.  Van  Bebber,  100  Mo.  584;  Clark  v.  Tate,  7  Mont.  171;  Bloomer 
r.  Nolan,  36  Neb.  51;  Englebert  r.  Troxell,  10  Neb.  195;  Green  r.  Green,  69 
N.  Y.  553;  Cresinger  r,  Welch,  15  Ohio,  156;  Lemmon  u.  Beeman,  45  Ohio  St. 
505;  Bullock  r.  Sprowls,  93  Tex.  188;  Price  i\  Furman,  27  Vt.  268;  Wiser  v. 
Lockwood,  42  Vt.  720.  But  see,  on  the  other  hand,  Bozeman  v.  Browning,  31 
Ark.  364;  Bailey  v.  Bamberger,  11  B.  Mon.  113;  Johnson  v.  Insurance  Co., 
56  Minn.  365;  Kerr  v.  Bell,  44  Mo.  120;  Bartlett  t'.  Bailey,  59  N.  H.  354; 
Hall  v,  Butterfield,  59  N.  H.  408;  Smith  v.  Evans,  5  Humph.  70;  Lane  v. 
Dayton,  &c,  Co.,  101  Tenn.  581;  Stuart  v.  Baker,  17  Tex.  417;  Folty  v.  Fergu- 
son. 77  Tex.  301. 

In  Lane  r.  Dayton,  &c,  Co.,  101  Tenn.  581,  it  was  held  that  an  infant  could 
not  avoid  an  accord  and  satisfaction  without  returning  the  consideration  he 
had  received,  if  he  still  had  it. 

In  McGreall  v.  Taylor,  167  U.  S.  688,  an  infant  made  a  trust  deed  to  secure 
money  borrowed  to  pay  off  incumbrances  and  make  improvements  on  the 
infant's  land,  and  the  money  was  so  used.  The  deed  having  been  disaffirmed, 
the  lender  was  held  subrogated  to  the  rights  of  the  incumbrancers  who  had 
been  paid,  and  the  money  spent  on  improvements  was  considered  still  in  the 
infant's  hands.  Somewhat  similarly  an  infant  grantor  of  land  was  held  liable 
to  the  grantee  for  improvements  made  by  the  latter.  Bundle  v.  Spencer,  67 
Mich.  189. 

If  the  infant,  after  reaching  majority,  sell,  or,  for  an  unreasonable  time, 
retain  what  he  has  received  under  the  contract,  this  will  be  treated  as  an 
affirmance,  and  will  preclude  him  from  subsequently  avoiding  it.  McCarthy  r. 
Nicrosi,  72  Ala.  332;  Pursley  f.  Hays,  17  la.  310;  Robinson  r.  Hoskins,  14 
Bush,  393;  Boody  r.  McKenny,  23  Me.  517;  Hilton  v.  Shepherd,  92  Me.  160; 


CONTRACTS    OF    INFANTS.  69 

lease  (Tc),  or  of  the  price  of  goods  (not  being  necessaries)  sold  and 
delivered  to  an  infant  and  paid  for  by  him :  and  so  if  an  infant  enters 
into  a  partnership  and  pays  a  premium,  he  cannot  either  before  or 
after  his  full  age  recover  it  back,15  nor  therefore  prove  for  it  in  the 
bankruptcy  of  his  partners  (I). 

*  Infants'  Relief  Act,  1874.  We  must  now  consider  the  Act  of  1874  [62 
(37  &  38  Vict.  c.  62),  which  enacts  as  follows:  — 

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 

(k)     Holmes    v.    Blogg     (1817)     8  has  received  no  consideration  at  all  he 

Taunt.  35,  508,  S.  C.  1  Moore,  466,  2  can  recover:     Hamilton  v.   Vaughan- 

Moore,  552,  19  R.  R.  445.  Shcrrin,  do.  Co.  [1894]  3  Ch.  589,  63 

(I)    Ex  parte  Taylor    (1856)    8  D.  L.  J.  Ch.  795. 
M.  &  G.  254,  258.     But  if  the  infant 

Boyden  v.  Boyden,  9  Met.  519;  Robbins  v.  Eaton,  10  N.  H.  561;  Williams  v. 
Ma  bee,  3  Halst.  Ch.  500;  State  v.  Rousseau,  94  N.  C.  355;  Mission  Ridge  Co. 
r.  Nixon,  (Tenn.)  48  S.  W.  Rep.  405.  Contra,  as  to  lumber  built  into  a  house. 
Bloomer  v.  Nolan.  36  Neb.  51. 

But  mere  acquiescence  for  any  length  of  time  short  of  the  statutory  period 
of  limitation  will  not  operate  as  an  affirmance  of  an  infant's  deed  of  land, 
in  the  absence  of  other  circumstances  sufficient  to  raise  an  equitable  estoppel. 
Irvine  v.  Irvine,  9  Wall.  617,  627;  Sims  v.  Everhardt,  102  TJ.  S.  300,  312; 
Kountz  v.  Davis,  34  Ark.  590;  Wells  v.  Seixas,  24  Fed.  Rep.  82;  Richardson 
r.  Pate,  93  Ind.  423 ;  Davis  r,  Dudley,  70  Me.  236 ;  Prout  v.  Wiley,  28  Mich. 
164;  Donovan  v.  Ward,  100  Mich.  601;  Wallace  v.  Latham,  52  Miss.  291,  297; 
Shipp  v.  McKee,  80  Miss.  741;  Cresinger  v.  Welch,  15  Ohio  156;  Gillespie  v. 
Bailey,  12  W.  Va.  70.  Contra,  Hastings  v.  Dollarhide,  24  Cal.  195;  Bentley 
r.  Greer,  100  Ga.  35;  Goodnow  ;;.  Empire  Lumber  Co.,  31  Minn.  468,  and 
cases  cited. 

Where  a  person  of  full  age  promises  to  perform  a  contract  entered  into 
during  his  minority,  he  thereby  ratifies  the  contract,  although  he  does  not 
know  at  the  time  of  the  promise,  that  by  reason  of  his  minority  at  the  time 
of  the  contract  he  is  not  legally  liable  thereon.  American  Mtge.  Co.  v. 
Wright,  101  Ala.  658;  Bestor  v.  Hiekey,  71  Conn.  181;  Clark  v.  Van  Court, 
100  Ind.  113;  Morse  v.  Wheeler,  4  Allen,  570;  Taft  v.  Sergeant,  18  Barb.  320; 
Ring  v.  Jamison,  66  Mo.  424;  Anderson  v.  Soward,  40  Ohio  St.  325.  Contra, 
Trader  v.  Lowe,  45  Md.  1 ;  Turner  v.  Gaither,  83  N.  C.  357 ;  Hinely  v.  Mar- 
garitz,  3  Pa.  St.  428;  Hatch  v.  Hatch's  Est.,  60  Vt.  160. 

Ratification  in  ignorance  of  the  fact  that  the  party  ratifying  was  an  infant 
at  the  time  of  the  original  transaction  is  not  binding.  Ridgeway  v.  Herbert, 
150  Mo.  606,  614. 

When  an  infant  purchases  property,  and  in  pursuance  of  the  contract  gives 
a  purchase-money  mortgage  upon  it,  he  cannot  avoid  the  mortgage  without 
also  avoiding  the  purchase  and  restoring  the  property;  and  in  such  case,  if 
the  infant  sells  the  mortgaged  property,  his  purchaser  takes  it  subject  to  the 
mortgage.  Cogley  v.  Cushman,  16  Minn.  397;  Oltman  v.  Moak,  3  Sandf.  Ch. 
431;  Curtis  V.  McDougal,  26  Ohio  St.  66;  Knaggs  v.  Green,  48  Wis.  601.  And 
see,  Weed  v.  Beebe,  21  Vt.  495. 

Acknowledgment  or  part  payment  of  a,  debt  incurred  during  minority  does 
not  amount  to  a  ratification.  Thrupp  v.  Fielder,  2  Esp.  628;  Kendrick  v. 
Neisz,  17  Col.  506;  Catlin  v.  Haddox,  49  Conn.  492;  Ford  v.  Phillips,  1  Pick. 
202;  Hale  v.  Gerrish,  8  N.  H.  374;  Baker  r.  Kennett,  54  Mo.  82;  Goodsell  v. 
Myers,  3  Wend.  479.  Contra,  American  Mtge.  Co.  v.  Wright,  101  Ala.  658. 
Nor  is  a  promise  to  a  third  party  sufficient.     Bigelow  v.  Grannis,  2  Hill,  120. 

15  Adams  v.  Beall.  67  Md.  53. 


70  CAPACITY    OF    PARTIES. 

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  enactment  shall  not  invalidate  any  contract  into  which  an  infant 
may  by  any  existing  or  future  statute  or  by  the  rules  of  common  law  or  equity 
enter,  except  such  as  now.  by  law  are  voidable. 

2.  No  action  shall  be  brought  whereby  to  charge  any  person  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. 

3.  This  Act  may  be  cited  as  The  Infants'  Relief  Act,  1874. 

Ratification  still  operative  for  some  purposes.  The  2nd  section  (m)  for- 
bids an  action  to  be  brought  on  any  promise  or  ratification  of  a  con- 
tract made  during  infancy,  and  it  applies  to  a  ratification  since  the 
Act  of  a  promise  made  in  infancy  before  the  passing  of  the  Act  (n), 
whether  the  agreement  is  or  is  not  one  of  those  included  in  s.  1  (o). 
It  probably  also  prevents  the  ratification  from  being  available  by 
way  of  set-off  (p).  This,  however,  is  a  different  thing  from  depriv- 
ing the  ratification  of  all  effect.  For  it  may  have  other  effects  than 
giving  a  right  of  action  or  set-off,  and  these  are  not  touched.  While 
the  matter  was  governed  by  Lord  Tenterden's  Act  (m)  there  were 
many  cases  where  a  contract  made  during  infancy  might  be  adopted 
or  confirmed  without  any  ratification  in  writing  so  as  to  produce  im- 
portant results.  Thus  in  the  case  of  a  marriage  settlement  the  mar- 
63]  ried  persons  are  bound  not  so  *much  by  liability  to  be  sued 
(though  in  some  cases  and  for  some  purposes  the  husband's  covenants 
are  of  importance)  as  by  inability  to  interfere  with  the  disposition 
of  the  property  once  made  and,  the  execution  of  the  trusts  once  con- 
stituted :  and  so  far  as  concerns  this  an  infant's  marriage  settlement 
may,  as  we  have  seen,  be  sufficiently  confirmed  by  his  or  her  conduct 
after  full  age  (q).  Again  an  infant  partner  who  does  not  avoid  the 
partnership  at  his  full  age  is,  as  between  himself  and  his  partners, 

(m)    It  supersedes  the  5th  section  ise:     Ditcham    v.    Worrall    (1880)    5 

of  Lord  Tenterden's  Act  (9th  Geo.  4,  C.  P.  D.  410,  49  L.  J.  C.  P.  688,  by 

c.    14),   by  which   no   ratification   of  Lindley  and  Denman  JJ.  diss.   Lord 

such  a  contract  could  be  sued  upon  Coleridge  C.J. 

unless  in  writing  and  signed  by  the  (p)    Rawley  v.   Rawley    (1876)    1 

party  to  be  charged,  since  expressly  Q.  B.  Div.  460,  45  L.  J.  Q.  B.  675. 
repealed  by  the  Statute.  Law  Revision  (q)   Davies  v.  Davies   (1870)  L   R. 

Act,  1875    (38  &  39  Vict.  c.  00).  9   Eq.   468,   39  L.  J.   Ch.'  343,  supra, 

(n)   Ex  parte  Kibble  (1875)   L.  R.  p.  *60.     In  Duncan  v.  Dixon   (1890) 

10  Ch.  373,  44  L.  J.  Bk.  63.  44  Ch.  D.  211,  59  L.  J.  Ch.  437,  an 

(o)  Coxhead  v.  Mullis  (1878)  3  C.  attempt  was  made  to  bring  an  in- 
P.  D.  439,  47  L.  J.  C.  P.  761.  It  is  fant's  marriage  settlement  within 
held,  however,  that  in  a  case  which  s.  1,  pn  the  ground  that  it  must  be 
would  before  the  Act  have  been  one  read  as  including  all  contracts  what- 
of  ratification  it  may  be  left  to  the  ever.  The  Act  is  not  quite  so  ill- 
jury  to  say  whether  the  conduct  of  drawn  as  to  admit  this  construction, 
the  parties  amounts  to  a,  new  prom- 


infants'  relief  act.  71 

completely  bound  by  the  terms  on  which  he  entered  it  without  any 
formal  ratification ;  and  in  taking  the  partnership  accounts  the  Court 
would  apply  the  same  rule  to  the  time  of  his  minority  as  to  the  time 
after  his  full  age.  Again  an  infant  shareholder  who  does  not  dis- 
claim may  after  his  full  age,  at  any  rate,  be  made  liable  for  calls 
without  any  express  ratification ;  on  the  contrary,  the  burden  of  proof 
is  on  him  to  show  that  he  repudiated  the  shares  within  a  reasonable 
time  (r). 

And  as  Lord  Tenterden's  Act  did  not  formerly  stand  in  the  way  of 
these  consequences  of  the  affirmation  or  non-repudiation  of  an  infant's 
contract,  so  the  Act  of  1874  will  not  stand  in  the  way  of  the  same  or 
like  consequences  in  the  future.  In  fact  the  operation  of  the  present 
Act  seems  to  be  to  reduce  all  voidable  contracts  of  infants  ratified 
at  full  age,  whether  the  ratification  be  formal  or  not,  to  the  position 
of  agreements  of  imperfect  obligation,  that  is,  which  cannot  be  directly 
enforced  but  are  valid  for  all  other  purposes.  Other  examples  of  such 
agreements  and  of  their  legal  effect  will  be  found  in  the  chapter 
specially  assigned  to  that  subject. 

Specific  performance.  A  collateral  result  of  this  enactment  appears  to 
be  that  one  who  has  made  a  contract  during  his  infancy  is  not 
*now  able  to  obtain  specific  performance  of  it  after  his  full  age,  [64 
for  the  same  reason  that  he  cannot  and  formerly  could  not  do  so 
sooner  (s). 

Proviso  as  to  new  consideration.-  The  proviso  as  to  new  consideration 
meets  such  cases  as  that  of  an  attempt  to  set  up  as  a  new  contract  the 
compromise  of  an  action  brought  on  the  original  promise  (t).  It  is 
reinforced  by  s.  5  of  the  Betting  and  Loans  (Infants)  Act,  1892, 
which  absolutely  avoids  all  agreements  and  instruments  (even  nego- 
tiable ones),  made  for  the  payment  of  money  representing  or  con- 
nected with  a  loan  advanced  during  infancy  (u) . 

Section  i,  making  certain  contracts  void.  In  the  first  section  of  the 
principal  Act,  the  words  concerning  the  purchase  of  goods  are  not 
free  from  obscurity.  If  we  might  construe  the  Act  as  if  it  said  "  for 
payment  for  goods  supplied,"  &c,  it  would  be  clear  enough:  but  it 
is  not  so  clear  what  is  the  precise  operation  of  an  enactment  that 
contracts  "  for  goods  supplied  or  to  be  supplied,"  <5ther  than  neces- 
saries, shall  be  void.      It  seems  to  follow  that  no  property  will  pass 

(r)  See  pp.  *58,  *66.  (t)   Smith  v.  King  [1892]   2  Q.  B. 

(s)    Flight   v.    Bollcmd    (1828)     4       543,  67  L.  T.  420. 
Kuss.  298,  28  R.  R.  101,  p.  *61,  supra.  («)   55  Vict.  c.  4.     The  rest  of  the 

Act  is  criminal. 


72  CAPACITY  W    PARTIES. 

to  the  infant  by  the  attempted  contract  of  sale,  and  that  if  he  pays 
the  price  or  any  part  of  it  before  delivery  of  the  goods  he  may  recover 
it  back;  as  indeed  he  might  have  done  before  the  Act,  for  the  con- 
tract was  voidable,  and  he  was  free  to  rescind  it  within  reasonable 
time.  But  it  does  not  follow  that  if  the  goods  are  delivered  no  prop- 
erty passes  or  that  if  they  are  paid  for  the  money  may  be  recovered 
back.  At  all  events  an  infant  who  has  paid  for  goods  and  received 
and  used  them  cannot  recover  the  money  back  (x).  The  contrary  con- 
struction would  be  unreasonable,  and  is  not  required  by  the  policy  of 
the  statute,  which  is  to  protect  infants  from  running  into  debt,  not  to 
disable  them  from  making  purchases  for  ready  money.  It  is  certain 
that  when  a  particular  class  of  contracts  is  simply  declared  to  be  un- 
65]  lawful-,  this  does  not  prevent  property  from  passing  by  an  *act 
competent  of  itself  to  pass  it,  though  done  in  pursuance  or  execution 
of  the  forbidden  contract  (y).  Moreover  it  has  been  held  that  an  in- 
fant may  be  guilty  of  larceny  as  a  bailee  though  the  goods  were  deliv- 
ered to  him  on  an  agreement  void  under  the  Act  (z).  On  the  whole 
it  seems  that  the  contract  is  voidable,  but  that  goods  actually  delivered 
can  be  returned,  and  the  price  recovered  back,  only  so  far  and  so  long 
as  complete  restitution  is  possible. 

It  has  been  suggested  that  the  exception  of  "  contracts  for  neces- 
saries "  may  include  loans  of  money  advanced  and  in  fact  used  for 
the  purpose  of  buying  necessaries.  The  point  is  not  known  to  have 
been  judicially  considered. 

It  is  doubtful  whether  a  bond,  bill  of  exchange,  or  note  given  by  a 
man  of  full  age,  for  which  the  consideration  was  in  fact  the  supply  of 
goods  not  necessaries  during  his  infancy,  would  be  void  under  s.  1  (a). 
But  s.  2  (which  indeed  seems  altogether  more  useful  than  s.  1)  would 
no  doubt  effectually  prevent  it  from  being  enforced  as  between  the 
immediate  parties,  though  perhaps  the  words  are  not  the  most  apt  for 
that  purpose. 

The  Building  Societies  Act,  1874,  enables  an  infant  to  be  a  member, 
but  this  does  not  imply  any  exemption  from  the  disability  to  mort- 
gage his  real  estate  created  by  the  Infants'  Belief  Act :  for  that  is  not 
the  sole  purpose  or  a  necessary  purpose  of  membership  (aa). 

(x)    Valentin!  v..  Canali   (1889)    24  (a)    Cp.  Flight   v.   Reed    (1863)    1 

Q.  B.  Div.  16G,  59  L.  J.  Q.  B.  74.  H.  &  C.  703,  32  L.  J.  Ex.  265. 

(y)     Ayers    v.     South    Australian  {aa)    Thurston  v.   'Nottingham,  &c. 

Ranking    Co.    (1871)    L.    R.    3    P.    C.  Building  Soc.  [1902]  1  Ch.  1,  71  L.J. 

548,  559,  40  L.  J.  C.  P.  22.  Ch.  83,  C.  A. 

(z)    R.    v.    McDonald     (1885)     15 
Q.  B.  D.  323,  52  L.  T.  583. 


infants:    liability  as  owner.  73 

2.  Of  the  liability  of  infants  on  obligations  incident  to  interests  in 
permanent  property. 

Liability  on  obligations  incident  to  property.  In  an  old  case  reported 
under  various  names  in  various  books  (&),  it  was  decided  that  an  in- 
fant lessee  who  continues  .to  occupy  till  he  conies  of  full  age  is  [66 
after  his  full  age  liable  for  arrears  of  rent  incurred  during  his  infancy. 
In  like  manner  a  copyholder  who  was  admitted  during  his  minority 
and  has  not  disclaimed  is  bound  to  pay  the  fine  (c).  The  same  prin- 
ciple is  applied  to  the  case  of  infant  shareholders  in  railway  com- 
panies. An  infant  is  not  incapable  of  being  a  shareholder  (d),  and 
as  such  is  prima  facie  liable  when  he  comes  of  age  to  be  sued  for  calls 
on  his  shares.  He  can  avoid  the  liability  (which,  though  regulated 
by  statute,  has  the  general  incidents  of  contract)  only  by  showing 
that  he  repudiated  the  shares  either  before  attaining  his  full  age  ( e ) , 
or  in  a  reasonable  time  afterwards  (f).  A  railway  shareholder  is  not 
a  mere  contractor,  but  a  purchaser  of  an  interest  in  a  subject  of  a 
permanent  nature  with  certain  obligations  attached  to  it ;  and  those 
obligations  he  is  bound  to  discharge,  though  they  arose  while  he  was 
a  minor,  unless  he  has  renounced  the  interest.  A  mere  absence  of 
ratification  is  no  sufficient  defence,  even  if  coupled  with  the  allegation 
that  the  defendant  has  derived  no  profit  from  the  shares.  For  if 
the  property  is  unprofitable  or  burdensome,  it  is  the  holder's  business 
to  disclaim  it  on  attaining  his  full  age,  if  not  before;  and  perhaps 
he  could  not  exonerate  himself  even  during  his  minority  by  showing 
that  the  interest  was  not  at  the  time  beneficial,  unless  he  actually 
disclaimed  it  (g).  Comparing  the  analogous  case  of  a  lease,  [67 
the  Court  said  —  "  We  think  the  more  reasonable  view  of  the  case  is 

(6)    Kettle  v.   Eliot    (1614)    Rolle  infant    shareholder    was    made    abso- 

Ab.  1,  731,  K.,  Cro.  Jac.  320,  Brown-  lutely  liable  by  the  general  form  of 

low,  120,  2  Bulst.  69.     See  the  judg-  the     enactment     in     the     Companies 

ment   of  the  Court   of   Exchequer   in  Clauses    Consolidation    Act    defining 

L.   &    N.    W.   Ry.    Co.   v.    M'Michael  the    liability    of    shareholders.      See 

(1850)  5  Ex.  114,  20  L.  J.  Ex.  97.  per  Lord  Denman  C.J.  and  Patteson 

(c)  Evelyn  v.  Chichester  (1765)  3  J.  in  Cork  &  Bandon  Ry.  Co.  v. 
Burr.  1717.  Cazenove    (1847)    10  Q.  B.  935.     This 

(d)  He  can  subscribe  a  memoran-  view  was  afterwards  abandoned  as 
dum  of  association:  Luxon  &  Co.  inconsistent  with  the  established  rule 
(No.  2)    (1891)   40  W.  R.  621.  that   general    words    in   statutes   are 

(e)  Newry  &  Enniskillen  Ry.  Co.  not  to  be  construed  so  as  to  deprive 
v.  Coombe  ( 1849 )  3  Ex.  565,  18  L.  J.  infants,  lunatics,  &c,  of  the  protec- 
Ex.  325.  ti°n  given  to   them   by  the  common 

(f)  A    plea   which    merely   alleged  law. 

repudiation  after  full  age  was  there-  (g)    It   is   submitted  that  in  such 

fore  held  bad  in  Dublin  &   Wicklow  a  case  the  disclaimer  if  made  would 

Ry.  Co.  v.  Black    (1852)    8   Ex.   181,  conclusively    determine    his    interest 

22  L.  J.  Ex.  94.    At  one  time  it  seems  and  not  merely  suspend  it. 
to  have   been   thought   that  even   an 


74  CAPACITY   OF    PARTIES. 

that  the  infant,  even  in  the  case  of  a  lease  which  is  disadvantageous 
to  him,  cannot  protect  himself  if  he  has  taken  possession,  and  if  he  has 
not  disclaimed,  at  all  events  unless  he  still  be  a  minor  "(h).  Simi- 
larly an  infant  member  of  a  building  society  who  has  purchased  land 
by  means  of  an  advance  from  the  society  cannot  claim  to  hold  the 
property  free  from  the  society's  charge  for  the  money  advanced  (i). 
In  all  the  decided  cases  the  party  appears  to  have  been  of  full  age  at 
the  time  of  the  action  being  brought,  but  there  is  nothing  to  show 
that  (except  possibly  in  the  case  of  a  disadvantageous  contract)  he 
might  not  as  well  be  sued  during  his  minority. 

The  same  results,  except  as  to  suing  the  shareholder  while  still  a 
minor,  would  follow  from  the  general  principles  of  the  law  of  part- 
nership even  if  the  company  in  which  the  shares  were  held  had  not 
any  permanent  property. 

3.  Of  the  liability  of  an  infant  when  the  contract  is  for  his  benefit, 
and  especially  for  necessaries. 

Liability  on  beneficial  contract  It  has  been  laid  down  in  general 
terms  that  if  an  agreement  be  for  the  benefit  of  an  infant  at  the 
time,  it  shall  bind  him  (;'),  or  even  that  the  contract  is  binding  unless 
manifestly  to  the  infant's  prejudice  (Jc).16  An  infant's  contract  of 
apprenticeship  (I),  or  an  ordinary  contract  to  work  for  wages,  will, 
if  it  be  reasonable,  be  considered  binding  on  the  infant,  so  that  he 
may  no  less  than  an  adult  incur  the  statutory  penalties  for  unlawfully 
68]  absenting  *himself  from  his  master's  employment  (m).  An 
infant  entered  the  service  of  a  railway  company  and,  as  a  condition 
of  the  service,  became  a  member  of  an  insurance  society  established 
by  the  company ;  the  funds  were  augmented  by  the  company  to  the 
extent  of  five-sixths  of  the  premiums  payable  by  the  members.      The 

(h)       L.    &    N.    W.    Ry.    Co.    v.  (Z)     Wood   v.   Fenwick    (1842)     10 

M'Michael  (1850)  5  Ex.  114,  20  L.  J.  M.  &  W.  195. 
Ex.  97,  101.  (m)  In  Leslie  v.  Fitzpatrick  (1877) 

(i)    Thurston  v.   Nottingham  Per-  3  Q.  B.  D.  229,  47  L.  J.  M.  C.  22,  a 

man-ent  Benefit  Building  Soc.   [1901]  case   of   summary   proceedings   under 

1    Ch.    88 ;     affirmed    on    this    point  the    Employers    and    Workmen    Act, 

T1902]   1  Ch.  1,  71  L.  J.  Ch.  83.  1875,    it   may   be   collected   that   the 

(;')     Maddon    v.    White    (1787)     2  facts  were  of  the  same  kind,  though 

T.  R.  159,  1  R.  R.  453.  the  employer's   plaint   was   in  terms 

(7c)    Cooper  v.  Simmons    (1862)    7  for  a  breach  of  contract.     As  to  in- 

H.  &  N.  707,  721 ;  per  Wilde  B.    Not  fant  apprentices  in  London  see  p.*74, 

so  strongly  put  in  the  L.  J.  report,  below. 

31  L.  J.  M.  C.  138,  144. 

16  Contracts  for  necessaries  are  alone  binding  in  this  country.  Henderson 
r.  Fox,  5  I  lid.  489;   Tupper  v.  Cadwell,   12  Met.  550;   Insurance  Co.   v.  Noyes, 

32  N.  H.  345;  O'Rourke  c.  John  Hancock  Ins.  Co.,  23  R.  I.  457,  462;  supra, 
p.  66,  note  11. 


INFANTS  :     BENEFICIAL   CONTRACTS.  75 

rules  provided  for  compensation  in  all  cases  of  accident  not  due  to 
the  member's  own  wilful  act  or  gross  negligence,  and  bound  the  mem- 
bers to  accept  the  benefits  of  the  society  in  lieu  of  any  claims  under 
the  Employers'  Liability  Act.  The  Court  of  Appeal  held  that  the 
infant  was  bound  by  this  agreement  as  being  on  the  whole  for  his 
benefit  (n).  But  an  action  will  not  lie  against  an  infant  on  a  cove- 
nant in  apprenticeship  indentures  (o)  ;  and  if  the  terms  are  not  rea- 
sonable the  agreement  is  void  for  all  purposes,  so  that  an  action  will 
not  lie  against  a  stranger  for  enticing  away  the  apprentice  (p). 
Again  there  are  many  conceivable  cases  in  which  it  might  be  for  an 
infant's  benefit,  or  at  least  not  manifestly  to  his  prejudice,  to  enter 
into  trading  contracts,  or  to  buy  goods  other  than  necessaries :  one  can 
hardly  say  for  example  that  it  would  be  manifestly  to  the  disadvantage 
of  a  minor  of  years  of  discretion  to  buy  goods  on  credit  for  re-sale 
in  a  rising  market;  yet  there  is  *no  doubt  whatever  that  such  a  [69 
contract  would  at  common  law  be  voidable  at  his  option.  A  contract 
whereby  an  infant  agrees  with  a  railway  company,  in  consideration  of 
being  allowed  to  make  a  certain  habitual  journey  to  and  fro  on  special 
terms,  to  waive  all  claims  for  accident  to  himself  or  his  property,  is 
detrimental  to  the  infant  and  not  binding  on  him  (q).  Nor  has  it 
ever  been  suggested  that  an  infant  partner  or  shareholder  is  at  liberty 
to  disclaim  at  full  age  only  in  case  the  adventure  has  been  unprofit- 
able or  is  obviously  likely  to  become  so.  However,  inasmuch  as  since 
the  Infants'  Eelief  Act,  1874,  an  infant's  contract,  if  not  binding 
on  him  from  the  first,  can  never  be  enforced  against  him  at  all,  it 
seems  quite  possible  that  the  Courts  may  in  future  be  disposed  to 
extend  rather  than  to  narrow  the  description  of  contracts  which  are 
considered  binding  because  for  the  infant's  benefit  (r). 

(»)  Clements  v.  L.  &  IS.  W.  Ry.  to  the  master's  own  act,  say  a,  lock- 
Co.  [1894]  2  Q.  B.  482,  63  L.  J.  Q.  B.  out,  is  not  reasonable:  Corn  v.  Mat- 
837.  It  seems,  though  it  was  not  thews  [1893]  1  Q.  B.  310,  62  L.  J. 
necessary  to  decide  the  point,  that  M.  C.  61,  C.  A.,  dist.  Green  v.  Thomp- 
the  principle  of  an  infant's  contract  son  [1899]  2  Q.  B.  1,  68  L.  J.  Q.  B. 
being  valid  when  the  Court  is  satis-  719,  where  the  exception  was  of  days 
fied  that  it  was  for  his  benefit  is  not  when  the  business  should  be  at  a 
confined  ( as  was  argued  for  the  plain-  standstill  by  accidents  beyond  the 
tiff)  to  contracts  of  apprenticeship  or  control  of  the  master, 
labour-  see  especially  the  judgment  (q)  Flower  v.  L.  &  N.  W.  Ry.  Co. 
of  Kay  L.J.  [1894]  2  Q.  B.  65,  63  L.  J.  Q.  B.  547, 

(o)      De     Francesco     v.     Barnum  C.  A. 

(No.    1)     (1889)    43   Ch.   D.    165,   59  (r)    In    an   action   brought   by   an 

L    J.  Ch.   151.  infant,  an  undertaking  given  by  the 

(p)      De     Francesco     v.     Barnum  infant's  next  friend  is  not  binding  if 

(No.    2)     (1890)    45   Ch.   D.   430,    63  the   circumstances    are   such   that    it 

L.    T.    438.      A    clause   enabling   the  cannot   be    for    the    infant's    benefit: 

master    to    suspend    the   apprentice's  Rhodes    v.    Simtheribank     (1889)     22 

wages  in  an  event  which  may  be  due  Q.  B.  Div.  577,  58  L.  J.  Q.  B.  287. 


76  CAPACITY    OF    PARTIES. 

3a.  Contracts  for  necessaries. 

Liability  for  necessaries.      By  the  Sale  of  Goods  Act,  1893,  s.  2  — 

..."  Where  necessaries  are  sold  and  delivered  to  an  infant  .  .  . 
or  to  a  person  who  by  reason  of  mental  incapacity  or  drunkenness  is 
incompetent  to  contract,  he  must  pay  a  reasonable  price  therefor. 

"  '  Necessaries  '  in  this  section  mean  goods  suitable  to  the  condition 
in  life  of  such  infant  .  .  or  other  person,  and  to  his  actual  require- 
ments at  the  time  of  the  sale  and  delivery." 

This  enactment  is  a  legislative  declaration  of  the  law  as  settled  by 
a  series  of  authorities,  of  which  the  judgment  of  the  Exchequer  Cham- 
ber in  Ryder  v.  Wombwell  is  the  chief : — 

"  The  general  rule  of  law  is  clearly  established,  and  is  that  an  infant  is 
70]  'generally  incapable  of  binding  himself  by  a  contract.  To  this  rule  there 
is  an  exception  introduced,  not  for  the  benefit  of  the  tradesman  who  may  trust 
the  infant,  but  for  that  of  the  infant  himself.  This  exception  is  that  he  may 
make  a  contract  for  necessaries,  and  is  accurately  stated  by  Parke  B.  in 
Peters  v.  Fleming  (s) .  '  From  the  earliest  time  down  to  the  present  the  word 
necessaries  is  not  confined  in  its  strict  sense  to  such  articles  as  were  neces- 
sary to  the  support  of  life,  but  extended  to  articles  fit  to  maintain  the  par- 
ticular person  in  the  state,  degree  and  station  in  life  in  which  he  is ;  and 
therefore  we  must  not  take  the  word  necessaries  in  its  unqualified  sense,  but 
with  the  qualification  above  pointed  out'" (t). 

What  are  necessaries.  What  in  any  particular  case  may  fairly  be 
called  necessary  in  this  extended  sense,  is  what  is  called  a  question  of 
mixed  fact  and  law :  that  is,  a,  question  for  a  jury,  subject  to  the 
Court  being  of  opinion  that  there  is  evidence  on  which  the  jury  may 
not  reasonably  find  for  the  plaintiff. 

The  station  and  circumstances  of  the  defendant  and  the  particulars 
of  the  claim  being  first  ascertained,  it  is  then  for  the  Court  to  say 
whether  the  things  supplied  are  prima  facie  such  as  a  jury  may  rea- 
sonably find  to  be  necessaries  for  a  person  in  the  defendant's  circum- 
stances, or  "  whether  the  case  is  such  as  to  cast  on  the  plaintiff  the 
onus  of  proving  that  the  articles  are  within  the  exception  [i.e.,  are 
necessaries],  and  then  whether  there  is  any  sufficient  evidence  to 
satisfy  that  onus.''  In  the  latter  case  the  plaintiff  must  show  that 
although  the  articles  would  generally  not  be  necessary  for  a  person 
in  the  defendant's  position,  yet  there  exist  in  the  case  before  the 
Court  special  circumstances  that  make  them  necessary.  Thus  articles 
of  diet  which  are  prima  facie  mere  luxuries  may  become  necessaries 
if  prescribed  by  medical  advice  («).      It  is  said  that  in  general  the 

(s)    (1840)    6   M.   &   W.   at   p.   46.  (u)     See    Wharton    v.     Mackenzie 

{t)     (1868)    L.    R.    4    Ex.    32,    38;  (1844)    5   Q.   B.   606,   13   L.   J.   Q.  B. 

in  the  Court  below  L.  R.   3  Ex.  90,  130,  and  per  Bramwell  B.  L.  R.  3  Ex. 

38  L.  J.  Ex.  8.  at  p.  96. 


INFANTS  :      NECESSARIES.  77 

test  of  necessity  is  usefulness,  and  that  nothing  can  be  a  necessary 
which  cannot  possibly  be  *useful:  but  the  converse  does  not  [71 
hold,  for  a  useful  thing  may  be  of  unreasonably  costly  fashion  or 
material.  It  is  to  be  borne  in  mind  that  the  question  is  not  whether 
the  things  are  such  that  a  person  of  the  defendant's  means  may  rea- 
sonably buy  and  pay  for  them,  but  whether  they  can  be  reasonably 
said  to  be  so  necessary  for  him  that,  though  an  infant,  he  must  obtain 
them  on  credit  rather  than  go  without.  For  the  purpose  of  deciding 
this  question  the  Court  will  take  judicial  notice  of  the  ordinary  cus- 
toms and  usages  of  society   (x). 

If  the  Court  does  not  hold  that  there  is  no  evidence  on  which  the 
supplies  in  question  may  reasonably  be  treated  as  necessaries,  then  it 
is  for  the  jury  to  say  whether  they  were  in  fact  necessaries  for  the 
defendant  under  all  the  circumstances  of  the  case.17 

Supply  from  other  sources.  The  Act  has  laid  down,  in  accordance 
with  the  weight  of  authority  (y),  that  the  buyer's  actual  require- 
ments must  be  considered.  If  the  goods  supplied  are  necessary,  the 
tradesman  will  not  be  the  less  entitled  to  recover  because  he  made 
no  inquiries  as  to  the  infant's  existing  supplies;  but  if  the  infant  is 
already  so  well  supplied  that  these  goods  are  in  truth  not  necessary, 
the  tradesman's  ignorance  of  that  fact  will  not  make  them  necessary, 
and  he  cannot  recover.     There  is  no  rule  of  law  casting  on  him  a  posi- 

(x)   L.  R.  4  Ex.  at  p.  40.  open  in  Ex.  Ch.,  L.  R.  4  Ex.  42)  ;  but 

\y)   Brayshaw  v.  Eaton    (1839)    5  this  was  dissented  from  in  Barnes  v. 

Bing.  N.  C.  231,  7  Scott,  183,  50  R.  R.  Toye    (1884)     13   Q.    B.   D.   410,   and 

773;  Foster  v.  Redgrave  (1866)  L.  R.  (by  members  of  the  C.  A.  sitting  as 

4  Ex.  35,  n. ;  to  the  contrary,  Ryder  a    Divisional     Court)     Johnstone    v. 

v.  Wombwell   (1868)   L.  R.  3  Ex.  90,  Marks    (1887)    19   Q.   B.   D.   509,  57 

38  L.  J.  Ex.  8;    (the  point  was  left  L.  J.  Q.  B.  6. 

"McKanna  v.  Merry,  61  111.  177;  Beeler  v.  Young,  1  Bibb,  519;  Tupper  v. 
Cadwell,  12  Met.  559,  563;  Merriam  v.  Cunningham,  11  Cush.  40;  Decell  v. 
Lewenthal,   57   Miss.   331;    Englebert  v.  Troxell,   40  Neb.    195. 

If  the  infant  is  already  supplied,  he  cannot  bind  himself  even  for  articles 
of  a  necessary  kind.  Conboy  v.  Howe,  59  Conn.  112;  Davis  v.  Caldwell,  12 
Cush.  512;  Trainer  r.  Trumbull,  141  Mass.  527;  Perrin  v.  Wilson,  10  Mo.  451; 
Jones  v.  Colvin,  1  McMull.  L.  14;  Kraker  v.  Byrum,  13  Rich.  L.  163;  Elrod 
v.  Meyers,  2  Head,  33;   Parsons  v.  Keys,  43  Tex.  557. 

Ignorance  on  the  part  of  the  seller  that  the  infant  was  already  partially  cr 
wholly  supplied  makes  no  difference;  he  contracts  with  the  infant  at  his 
peril.  Kline  v.  L'Amoureux,  2  Paige,  419;  Nichol  v.  Steger,  2  Tenn.  Ch.  328; 
affd.,  6  Lea,  393. 

Where  one  sells  to  an  infant  articles,  necessaries  in  kind,  but  in  inordinate 
quantity,  a  recovery  can  be  had  for  such  quantity  only  as  was  actually  neces- 
sary.   Johnson  v.  Lines,  6  W.  &  S.  80, 


78  CAPACITY    OF    PAKTIES. 

tive  duty  to  make  inquiries,  but  he  omits  to  do  so  at  his  peril.18  But 
the  defendant  having  an  income  out  of  which  he  might  keep  himself 
supplied  with  necessaries  for  ready  money  is  not  equivalent  to  his 
being  actually  supplied,  and  does  not  prevent  him  from  contracting 
for  necessaries  on  credit  (z).19 

72]  *Apparent  means  of  buyer  not  material.  It  would  be  natural  for 
juries,  if  not  warned  against  it,  to  fall  into  a  way  of  testing  the  neces- 
sary character  of  supplies,  not  so  much  by  what  the  means  and  position 
of  the  buyer  actually  were,  as  by  what  they  appeared  to  be  to  the  seller, 
and  such  a  view  was  not  altogether  without  countenance  from  author- 
ity (a).  It  is  conceived,  however,  that  the  knowledge  or  belief  of 
the  tradesman  has  nothing  to  do  with  the  question  whether  the  goods 
are  necessary  or  not.  It  may  be  said  that  the  question  for  the  Court 
will,  as  a  rule,  be  whether  articles  of  the  general  class  or  description 
were  prima  facie  necessaries  for  the  defendant,  and  the  question  for 
the  jury  will  be  whether,  being  of  a  general  class  or  description 
allowed  by  the  Court  as  necessary,  the  particular  items  were  of  a  kind 
and  quality  necessary  for  the  defendant,  having  regard  to  his  station 
and  circumstances.  For  instance,  it  would  be  for  the  Court  to  say 
whether  it  was  proper  for  the  defendant  to  buy  a  watch  on  credit,  and 
for  the  jury  to  say  whether  the  particular  watch  was  such  a  one  as 
he  could  reasonably  afford.  But  this  will  not  hold  in  extreme  cases. 
In  Ryder  v.  Wonibwell  (&)the  Court  of  Exchequer  Chamber  held, 
reversing  the  judgment  of  the  majority  below  on  this  point,  that  be- 
cause a  young  man  must  fasten  his  wrist-bands  somehow  it  does  not 
follow  that  a  jury  are  at  liberty  to  find  a  pair  of  jewelled  solitaires 
at  a  price  of  25L  to  be  necessaries  even  for  a  young  man  of  good 
fortune. 

What  the  term  "  necessaries  "  includes.  Hitherto  we  have  spoken  of  a 
tradesman  supplying  goods,  this  being  by  far  the  most  common  case. 

(z)   Burgliart  v.  Hall  (1839)   4  M.  Bing.  N.   C.   128,  50  R.  R.   758,  and 

&   W.    727,    51    R.    R.    788.      Contra  Preface;    7   Scott,    117,   much  weight 

Mortara  v.  Ball    (1834)    6  Sim.  465.  is   given   to   thei   apparent   rank   and 

The  doctrine  there  laid   down  seems  circumstances    of    the    party.      This 

superfluous,    for    the    supplies    there  amounts  to  supposing  that  an  infant 

claimed   for    (such   as    209    pairs    of  may  be  liable,  by  a  kind  of  holding 

gloves  in  half  a  year)  could  not  have  out,  for  goods  which  are  not  neces- 

been    reasonably   found   necessary    in  sary  in  fact, 
any  case.  (6)     (1868)    L.    R.    4    Ex.    32,    38 

(a)   In    Dalton   v.    Gib     (1839)     5  L.  J.  Ex.  8. 

18  The  plaintiff  does  not  have  to  prove  that  the  infant  had  no  parent  whose 
duty  it  was  to  provide  for  him.  The  burden  is  on  the  defendant  to  show  that 
he  had  such  a  parent.     Goodman  .v.  Alexander,   165    N.  Y.  289. 

19  See  Nicholson  i.  Wilborn,  13  Ga.  467;  Rivers  v.  Gregg,  5  Rich.  Eq.  274. 


infants:    necessaries.  79 

But  the  range  of  possible  contracts  for  "  necessaries "  is  a  much 
,:;wider  one.  "  It  is  clearly  agreed  by  all  the  books  that  speak  of  [73 
this  matter  that  an  infant  may  bind  himself  to  pay  for  his  necessary 
meat,  drink,  apparel,  physic  [including,  of  course,  fees  for  medical  at- 
tendance, &c,  as  well  as  the  mere  price  of  medicine20] ,  and  such  other 
necessaries  and  likewise  for  his  good  teaching  and  instruction,  whereby 
he  may  profit  himself  afterwards  "(c).  Thus  learning  a  trade  may 
be  necessarj,  and  on  that  principle  an  infant's  indenture  of  appren- 
ticeship has  been  said  to  be  binding  on  him  (d).21  The  preparation 
of  a  settlement  containing  proper  provisions  for  her  benefit  has  been 
held  a  necessary  for  which  a  minor  about  to  be  married  may  make  a 
valid  contract,  apart  from  any  question  as  to  the  validity  of  the 
settlement  itself  (e).'~ 

A  more  remarkable  extension  of  the  definition  of  necessaries  is  to 
be  found  in  the  case  of  Cliapple  v.  Cooper  (/),  where  an  infant  widow 
was  sued  for  her  husband's  funeral  expenses.  The  Court  held  that 
decent  burial  may  be  considered  a  necessary  for  every  man,  and  hus- 
band and  wife  being  in  law  the  same  person,  the  decent  burial  of  a 

(c)  Bac.  Abr.  Infancy  and  Age,  I.  Martin  B.  See,  however,  p.  63, 
(4.  335).    And  see  Chappie  v.  Cooper       supra. 

(1844)    13  M.  &  W.  252,  13  L.  J.  Ex.  (e)    Helps   v.    Clayton.    (1864)     17 

286.     As  to  instruction  in  trade,  &c,  C.  B.  N.  S.  553,  34  L.  J.  C.  P.  1,  see 

Walter   v.    Everard    [1891]    2    Q.    B.  the   pleadings,   and  the   judgment  of 

369,  60  L.  J.  Q.  B.  738,  C.  A.  the  Court  ad  fin. 

(d)  Cooper  v.  Simmons  (1862)  7  (f)  (1844)  13  M.  &  W.  252,  13 
H.  &  N.  707,  31  L.  J.  M.  C.  138,  per  L.  J.  Ex.  286. 

20  Strong  v.  Foote,  42  Conn.  203    (a  dentist's  bill  for  filling  teeth). 

21  See  Pardey  v.  American  Windlass  Co.,   19  R.  I.  461. 

A  common-school  education  is,  but  a  collegiate  or  professional  education  is 
not,  recognized  as  one  of  the  necessaries  for  an  infant.  Turner  v.  Gaither,  83 
N.  C.  357;  Bouehell  v.  Clary,  3  Brev.  194;  Middlebury  College  v.  Chandler, 
16  Vt.  683. 

22  A  "  wedding  suit "  has  been  held  to  be  a  necessary  for  an  infant  about 
to  be  married.  Sams  v.  Stockton,  14  B.  ilon.  232.  So  a  bridal  outfit.  Jordan 
r.  Coffield,  70  N.  C.  110. 

An  infant  is  liable  for  counsel  fees  for  services  rendered  in  a  criminal  or 
quasi-criminal  proceeding  against  him.  Barker  t\  Hibbard,  54  N.  H.  539 ; 
Askey  v.  Williams,  74  Tex.  294.  So  for  services  rendered  in  prosecuting  suit 
for  personal  injuries.  Hanion  r.  Wheeler,  45  S.  W.  Rep.  821  (Tex.  C.  A.). 
Cp.  Phelps  v.  Worcester,  11  N.  H.  51;  Thrall  v.  Wright,  38  Vt.  494. 

Timber  furnished  an  infant  to  enable  him  to  build  a  dwelling  on  his  land, 
Freeman  r.  Bridger,  4  Jones  L.  1,  repairs  upon  his  dwelling-house,  Tupper  v. 
Cadwell,  12  Met.  559 ;  Phillips  r.  Lloyd,  18  R.  I.  99,  insurance  of  his  property 
against  fire,  Insurance  Co.  v.  Noyes,  32  N.  H.  345,  a  bicycle,  Pyne  v.  Wood, 
145  Mass.  558;  Rice  V.  Butler,  160  N.  Y.  578,  a  buggy,  Howard  v.  Simpkins, 
70  Ga.  322,  a  wagon,  Paul  v.  Smith,  41  Mo.  App.  275,  have  been  held  not  to 
be  necessaries. 

Other  cases  deciding  what  are,  and  what  are  not,  necessaries,  are,  Munson 
i*.  Washband,  31  Conn.  303;  Darrell  v.  Hastings,  28  Ind.  478;  House  v. 
Alexander,  105  Ind.  109;  Beeler  v.  Young,  1  Bibb,  519;  Merriam  v.  Cunning- 
ham, 11  Cush.  40;  Ryan  v.  Smith,  165  Mass.  303;  Epperson  v.  Nugent,  57 
Miss'.  45 ;  Glover  v.  Ott,  1  McCord,  572 ;  Rainwater  v.  Durham,  2  Nott  &  M. 
524 ;  Aaron  v.  Harley,  6  Rich.  L.  26 ;  Grace  v.  Hale,  2  Humph.  27. 


80  CAPACITY    CI'    PARTIES. 

deceased  husband  is  therefore  a  necessary  for  his  widow.  It  would 
perhaps  have  been  better  to  adopt  the  broader  ground  that  a  contract 
entered  into  for  the  purpose  of  performing  a  moral  and  social,  if 
not  legal,  duty,  which  it  would  have  been  scandalous  to  omit,  is  of  as 
necessary  a  character  as  any  contract  for  personal  service  or  purchase 
of  goods  for  personal  use.28 

The  liability  is  on  simple  contract  only.  The  supply  of  necessaries  to 
an  infant  creates  only  a  liability  as  on  simple  contract,  and  it  cannot 
74]  be  made  the  *ground  of  any  different  kind  of  liability.24  Coke 
says :  "  If  he  bind  himself  in  an  obligation  or  other  writing  with  a 
penalty  for  the  payment  of  any  of  these,  that  obligation  shall  not 
bind  him  "{<?).  A  fortiori,  a  deed  given  by  an  infant  to  secure  the 
repayment  of  money  advanced  to  buy  necessaries  is  voidable  (h). 
But  in  these  and  similar  cases  the  infant's  liability  on  simple  con- 
tract, or  rather  g"uasvcontract,  is  not  affected  (i).  An  infant  is  not 
in  any  circumstances  liable  on  a  bill  of  exchange  or  promissory 
note(fc).25 

(g)  Co.  Lit.  172  a,  cp.  4  T.  R.  363.  (k)    Re   Soltykoff,   Ex  parte   Mar- 

(h)    Martin  v.   Gale    (1876)    4   Ch.        grett    [1891]    1    Q.    B.    413,    60   L.   J. 

D.  428,  46  L.  J.  Ch.  84.  Q.  B.  339,  C.A. 

(»)     Walter    v.    Everard    [1891]    2 

Q.  B.  369,  60  L.  J.  Q.  B.  738,  C.A. 

23  In  Rowe  v.  Raper,  23  Ind.  App.  27,  it  was  held  the  funeral  expenses  of 
a  deceased  infant  were  not  a  charge  upon  his  estate,  if  he  left  a  father  sur- 
viving and  able  to  pay  them.  See  remarks  upon  this  case  in  13  Harv.  L. 
Rev.  306. 

24  The  obligation  of  the  infant  for  necessaries  furnished  seems  rather  to 
be  quasi  ex  contractu  than  a  real  contract.  He  can  make  no  binding  executory 
contract  to  purchase  necessaries.  Gregory  r.  Lee,  64  Conn.  407 ;  Wells  v. 
Hardy,  21  Tex.  Civ.  App.  454;  Pool  v.  Pratt,  1  Chip.  252,  254. 

Where  necessaries  have  been  furnished  him,  the  law  creates  an  obligation 
to  pay  for  them,  though  the  infant  may  have  been  too  young  to  understand 
the  nature  of  a  contract.  Hyman  v.  Cain,  3  Jones  L.  111.  And  where  an 
express  promise  is  made,  the  price  stipulated  is  not  binding,  but  the  seller 
recovers  only  the  reasonable  value  of  the  article  furnished.  Hyer  v.  Hyatt,  3 
Cr.  C.  C.  276;  Gregory  r.  Lee,  64  Conn.  407;  Ayers  v.  Burns,  87  Ind.  245; 
Trainer  r.  Trumbull,  141  Mass.  527;  Locke  v.  Smith,  41  N.  H.  346;  Parsons 
v.  Key3,  43  Tex.  557 ;  and  see  also  the  cases  cited  in  note  25,  infra.  At  com- 
mon law  a  loan  of  money  could  not  be  deemed  equivalent  to  necessaries,  though 
actually  spent  on  necessaries:  Bac.  Abr.  4.  356.  But  though  not  liable  at 
law  for  money  loaned  him  with  which  to  purchase  necessaries,  an  infant  is 
liable  for  monev  paid  at  his  request  to  a  third  person  for  necessaries  fur- 
nished. Kilgore  v.  Rich,  83  Me.  305;  Swift  v.  Bennett,  10  Cush.  436;  Conn 
v.  Coburn,  7  N.  H.  368;  Randall  r.  Sweet,  1  Denio,  460;  Haines'  Adm'r  v. 
Tarrant,  2  Hill   (S.  C),  400;  Bradley  r.  Pratt,  23  Vt.  378. 

Where  one  lends  money  to  an  infant  with  which  to  purchase  necessaries, 
and  the  money  is  so  applied,  the  lender  may  recover  in  equity.  Price  v. 
Sanders,  60  Ind.  310;  Beeler  v.  Young,  1  Bibb,  519;  Watson  v.  Cross,  2  Duv. 
147,  149. 

25  In  some  States  it  is  held  that  no  action  lies  on  a  note  or  bond  given  by  an 
infant  for  necessaries.     Morton  v.   Steward,   5   111.   App.   533;    Henderson  V. 


infants:    statutory  powers.  ol 

What  contracts  an  infant  can  make  by  custom.  There  are  some  par- 
ticular contracts  of  infants  valid  by  custom.  By  custom  incident 
to  the  tenure  of  gavelkind  an  infant  may  sell  his  land  of  that  tenure 
at  the  age  of  fifteen,  but  the  conveyance  must  be  by  feoffment,  and 
is  subject  to  other  restrictions  (I).  This,  however,  is  not  really  a 
capacity  of  contracting,  for  there  is  no  reason  to  suppose  that  an 
action  could  be  brought  against  the  infant  for  a  breach  of  the  con- 
tract for  sale,  or  specific  performance  of  it  enforced. 

"  Also  by  the  custom  of  London  an  infant  unmarried  and  above 
the  age  of  fourteen,  though  under  twenty-one,  may  bind  himself  ap- 
prentice to  a  freeman  of  London  by  indenture  with  proper  cove- 
nants; which  covenants  by  the  custom  of  London  shall  be  as  binding 
as  if  he  were  of  full  age,"  and  may  be  sued  upon  in  the  superior 
courts  as  well  as  in  the  city  courts  (m). 

What  contracts  an  infant  can  make  by  statute.  Infants,  or  their  guard- 
ians in  their  names,  are  empowered  by  statute  (11  Geo.  4  &  1  Wm.  4, 
c.  65,  ss.  16,  17)  to  grant  renewals  of  leases,  and  make  leases  under 
the  direction  of  the  Court  of  Chancery,  and  in  like  manner  to  sur- 
render *leases  and  accept  new  leases  (s.  12)  («).  And  by  a  [75 
later  Act  (18  &  19  Vict.  c.  43)  (o),  infants  may  with  the  sanction 
of  the  Court  make  valid  marriage  settlements  of  both  real  and  per- 
sonal property. 

(I)  Robinson  on  Gavelkind,  194.  (o)  This  Act  does  not  affect  cover- 
(m)  Bacon,  Abr.  Infancy,  B.  4.  ture  or  any  disability  other  than 
340;  21  E.  IV.  6,  pi.  17.  infancy:  Sealon  v.  Meaton  (1888)  13 
(n)  See  Dan.  Ch.  Pr.  2.  1917;  Be  App.  Ca.  61,  57  L.  J.  Ch.  661.  And 
Clark  (1866)  L.  R.  1  Ch.  292,  35  qu.  whether  it  applies  to  post-nuptial 
L.  J.  Ch.  314;  Re  Letchford  (1876)  settlements.  It  does  apply  to  cove- 
2  Ch.  D.  719,  45  L.  J.  Ch.  530.  (The  nants  to  settle  after-acquired  prop- 
provisions  as  to  renewals  of  leases  erty:  Moore  v.  Johnson  [1891]  3  Ch. 
extend  also  to  married  women.)  48,  60  L.  J.  Ch.  499. 

Fox,  5  Ind.  489;  Ayers  v.  Burns,  87  Ind.  245;  Beeler  v.  Young,  1  Bibb,  519; 
McCrillis  v.  How,  3  N.  H.  348;  Fenton  v.  White,  1  South.  Ill;  Swasey  r. 
Vanderheyden,  10  Johns.  33;  Bouchell  v.  Clary,  3  Beav.  194;  McMinn  r.  Rich 
monds,  6  Yerg.  9. 

In  others,  that  the  infancy  of  the  promisor,  being  shown,  is  prima  facie  a 
bar  to  the  action,  but  that  it  is  competent  for  the  plaintiff  to  show  that  the 
note  was  given  for  the  price  of  necessaries,  in  which  event  he  will  recover  only 
so  much  of  the  note  as  shall  appear  to  have  been  given  for  necessaries  at 
their  fair  value,  without  regard  to  the  price  stipulated  to  be  paid  by  the 
minor.  Guthrie  v.  Morris,  22  Ark.  411;  Cooper  v.  State,  37  Ark.  421;  Earle 
v.  Reed,  10  Met.  387;  Dubose  v.  Wheddon,  4  McCord,  221;  Haines'  Adm'r  r. 
Tarrant,  2  Hill  (S.  O.),  400;  Askey  v.  Williams,  74  Tex.  294;  Bradley  v.  Pratt, 
23  Vt.  378. 


82  CAPACITY    OF    PARTIES. 

4.  Of  an  infant's  immunity  as  to  wrongs  connected  with  contract. 

Infant  not  liable  for  wrong  where  the  claim  is  in  substance  ex  contractu. 
An  infant  is  generally  no  less  liable  than  an  adult  for  wrongs  com- 
mitted by  him,  subject  only  to  his  being  in  fact  of  such  age  and  dis- 
cretion that  he  can  have  a  wrongful  intention,  where  such  intention  is 
material ;  but  he  cannot  be  sued  for  a  wrong,  when  the  cause  of  action 
is  in  substance  ex  contractu,  or  is  so  directly  connected  with  the  con- 
tract that  the  action  would  be  an  indirect  way  of  enforcing  the  con- 
tract—  which,  as  in  the  analogous  case  of  married  women  (p),  the 
law  does  not  allow.26  Thus  it  was  long  ago  held  that  an  infant  inn- 
keeper could  not  be  made  liable  in  an  action  on  the  case  for  the  loss  of 
his  guest's  goods  (q).  There  is  another  old  case  reported  in  divers 
books  (r),  where  it  was  decided  that  an  action  of  deceit  will  not  lie 
upon  an  assertion  by  a  minor  that  he  is  of  full  age.27  It  was  said 
that  if  such  actions  were  allowed  all  the  infants  in  England  would 

(p)   Seep.  *80,  infra.  Sm.   113,    16   L.   J.   Ch.   205;    and   see 

{q)     Rolle    Ab.    1.    2,    Action    sur  other   cases    collected  ib.    at   p.    110, 

Case,  D.  3.  where  "  the  case  mentioned  in  Keble  " 

(r)    Johnson   v.    Pie    (1665)     Sid.  is  that  which,  as  stated  in  the  text, 

258,    1    Lev.    169,    1    Keb.    913,    fully  occurs   in   his   report   of  Johnson  v. 

cited  by  Knight  Bruce  V.C.  in  Stike-  Pie. 

man  v.   Daicson    (1847)    1   Dc   G.   4 

26  Green  v.  Greenbank,  2  Marsh.  485;  Vasse  r.  Smith,  6  Cr.  226;  Brown  v. 
Durham,  1  Root,  272;  Caswell  r.  Parker,  96  Me.  39;  Prescott  v.  Norris,  32 
N.  H.  101;  Lowerv  v.  Gate,  108  Tenn.  54;  Gibson  v.  Spear,  38  Vt.  311;  Morrill 
v.  Aden,  19  Vt.  505;  West  r.  Morse,  14  Vt.  447.  See  also  Drude  v.  Curtis. 
183  Mass.  317;  contra,  Vance  r.  Word,  1  Nott  &  MeC.  197. 

27  Ace.  Slavton  v.  Barry,  175  Mass.  513;  Brown  v.  McCune,  5  Sandf.  224; 
Curtin  r.  Patton,  11  S.  &  P.  305,  309.  But  see  Piee  v.  Boyer,  108  Ind.  472; 
Fitts  v.  Hall,  9  N.  H.  441 ;  New  York  Bg.  Co.  v.  Fisher,  23  N.  Y.  App.  Div. 
363.     See  also  8  Yale  L.  J.  235. 

The  infant  was  held  not  liable  in  trover  for  obtaining  goods  by  representing 
himself  of  age  in  Slayton  v.  Barry,  175  Mass.  513. 

Nor  will  the  representation  estop  the  infant.  Burdett  v.  Williams,  30  Fed. 
Rep.  697;  McKamy  v.  Cooper,  81  6a.  679;  Carpenter  v.  Carpenter,  45  Ind. 
142;  Merriam  v.  Cunningham,  11  Cush.  40;  Conrad  v.  Lane,  26  Minn.  389; 
Alt  v.  Groff,  65  Minn.  191;  Burley  v.  Russell,  10  N.  H.  184;  Conroe  v.  Bird- 
sail,  1  Johns.  Cas.  127;  Studwell  v.  Shapter,  54  N.  Y.  249;  Carolina  Assoc. 
v.  Black,  119  N.  C.  323;  Norris  v.  Vance,  3  Rich.  L.  164;  Whitcomb  v.  Joslyn, 
51  Vt.  79.     Otherwise  by  statute  in  Iowa,  Code  of  1897,  §  3190. 

In  Schmitheimer  v.  Eiseman,  7  Bush,  29S,  it  was  held  that  "  a  deed  made  by 
an  infant  feme  covert  cannot  be  avoided  by  her  on  the  ground  of  her  infancy, 
when  to  induce  an  innocent  purchaser  to  make  the  purchase,  she  and  her  hus- 
band made  oath  before  a  notary  that  to  the  best  of  their  knowledge  and  infor- 
mation she  was  then  more  than  twenty-one  years  of  age."  And  see  Damron 
r  Comm,  22  Ky.  L.  Rep.  1717;  Ferguson  r.'Bobo,  54  Miss.  121;  Brantley  v. 
Wolf,  60  Miss.  420;  Kilgore  v.  Jordan,  17  Tex.  341. 

In  Sims  v.  Everhardt,  102  U.  S.  300,  on  the  contrary,  it  was  decided  that  the 
infant  was  not  estopped  by  any  declaration  which  at  the  time  of  executing  the 
deed  she  made  in  regard  to  her  age.  Ace.  McGreal  p.  Tavlor,  167  U.  S.  688, 
69S:  Watson  r.  Billings,  38  Ark.  278;  Wieland  r.  Koebick,  110  111.  16.  And 
see  Wilson's  Gdn.  v.  Wilson,  20  Ky.  L.  Rep.  1971;  Baker  v.  Stone,  136  Mass. 
405;  Alt  v.  Groff,  65  Minn.  191;  Charles  v.  Hastedt,  51  N.  J.  Eq.  171. 


infant's  immunity  for  weongs.  83 

be  ruined,  for  though  not  bound  by  their  contracts,  they  would  be 
made  liable  as  for  tort ;  and  it  appears  in  Keble's  report  that  an  infant 
had  *already  been  held  not  liable  for  representing  a  false  jewel  [76 
not  belonging  to  him  as  a  diamond  and  his  own.  The  modern  case 
usually  cited  for  this  rule  is  Jennings  v.  Bundall  (s),  where  it  was 
sought  to  recover  damages  from  an  infant  for  overriding  a  hired 
mare.28 

Infant  liable  for  wrong  apart  from  contract,  though  touching  the  subject- 
matter  of  a  contract.  But  if  an  infant's  wrongful  act,  though  con- 
cerned with  the  subject-matter  of  a  contract,  and  such  that  but  for 
the  contract  there  would  have  been  no  opportunity  of  committing  it, 
is  nevertheless  independent  of  the  contract  in  the  sense  of  not  being 
an  act  of  the  kind  contemplated  by  it,  then  the  infant  is  liable.29 
The  distinction  is  established  and  well  marked  by  a  modern  case 
where  an  infant  had  hired  a  horse  for  riding,  but  not  for  jumping, 
the  plaintiff  refusing  to  let  it  for  that  purpose ;  the  defendant  allowed 
his  companion  to  use  the  horse  for  jumping,  whereby  it  was  injured 
and  ultimately  died.  It  was  held  that  using  the  horse  in  this  manner, 
being  a  manner  positively  forbidden  by  the  contract,  was  a  mere  tres- 
pass, for  which  the  defendant  was  liable  (t).s0 

(s)    8  T.  R.  335,  4  R.  R.  680.     It  C.  B.  N.  S.  45,  32  L.  J.  C.  F.  189.    A 

is  also  recognized  in  Price  v.  Heioett  bailment  at  will  would  have  been  de- 

(1852)   8  Ex.  146   (not  a  decision  on  termined,  as  where  »  bailee  commits 

the  point).  theft   at   common   law  by   "breaking 

(t)   Burnard  v.  Haggis   (1863)    14  bulk." 

Although  there  are  numerous  dicta  to  the  contrary,  it  is  believed  that 
an  infant  may  be  bound  by  estoppel  by  conduct  in  a,  case  of  fraud  apart  from 
contract;  as  if  an  infant  owning  property,  and  of  sufficient  understanding 
to  comprehend  the  import  of  his  act  should,  concealing  his  own  title,  induce 
a  purchaser  to  buy  the  property  from  another.  Whittington  v.  Wright,  9  Ga. 
23;  Gilbert  v.  Carlan,  Ct.  App.  Ky.,  stated  in  Wright  v.  Arnold,  14  B.  Mon. 
at  p.  519;  Ferguson  v.  Bobo,  54  Miss.  121;  Hall  v.  Timmons,  2  Rich.  Eq.  120; 
Barham  v.  Turbeville,  1  Swan,  437.  But  cp.  Lackman  v.  Wood,  25  Cal.  147; 
Upshaw  v.  Gibson,  53  Miss.  341;  Norris  r.  Wait,  2  Rich.  L.  148.  Consult 
Bigelow  on  Estoppel,  p.  515. 

False  representations  as  to  his  age  by  an  infant  purchaser  were  held  ground 
for  rescission  by  the  seller.  Neff  v.  Landis,  110  Pa.  204.  Cp.  O'Rourke  v. 
John  Hancock  Ins.  Co.,  23  R.  I.  457,  where  it  was  held  that  a,  false  warranty 
by  an  infant  did  not  give  the  insurance  company  to  which  it  was  made  a 
defense  on  the  policy.     This  decision  is  criticised  in  15  Harv.  L.  Rev.  739. 

28  While  the  infant  would  not  be  liable  for  mere  unskillfulness  or  negli- 
gence, he  would  be  liable  for  positive  willful  acts  causing  injury  to  the  animal. 
Eaton  i'.  Hill,  50  N.  H.  235 ;  Campbell  v.  Stakes,  2  Wend.  137. 

29Vasse  v.  Smith,  6  Cr.  226;  Oliver  v.  McClellan,  2-1  Ala.  675;  Lewis  v. 
Littlefield,  15  Me.  233,  17  Me.  40;  Baxter  i\  Bush,  29  Vt.  465. 

An  infant  has  been  held  chargeable  by  action  for  a  tort  in  obtaining  goods 
fraudulently,  with  the  intention  of  not  paying  for  them.  Wallace  r.  Morss,  5 
Hill,  391;  Mathews  v.  Cowan,  59  111.  341;  dist.  Studwell  v.  Shapter,  54  N.  Y. 
249.     And  see  Walker  v.  Davis.  1  Gray,  506. 

30  So  an  infant  who  hires  a  horse  to  go  to  a  place  agreed  upon,  but  drives 
it  to  another  and  further  place  to  its  injury,  is  liable  in  tort.  Homer  v.  Thwing, 


84  CAPACITY    OF    PARTIES. 

Quaere,  whether  liable  on  contract  implied  in  law.  It  is  doubtful  whether 
an  infant  can  be  made  liable  quasi  ex  contractu  (as  for  money  re- 
ceived), when  the  real  cause  of  action  is  a  wrong  independent  of  con- 
tract; but  since  the  Judicature  Acts  have  abolished  the  old  forms  of 
action,  the  question  seems  of  little  importance  (u). 

5.  Liability  in  equity  on  representation  of  full  age. 

In  equity  liable,  if  he  represent  himself  as  of  full  age.  When  an  in- 
fant has  induced  persons  to  deal  with  him  by  falsely  representing  him- 
77]  self  as  of  full  age,  he  incurs  an  Obligation  in  equity,  which  how- 
ever in  the  case  of  a  contract  is  not  an  obligation  to  perform  the 
contract,  and  must  be  carefully  distinguished  from  it  (x).  Indeed 
it  is  not  a  contractual  obligation  at  all. 

Limitation.  It  is  limited  to  the  extent  we  have  stated  above  (p.  *55), 
and  the  principle  on  which  it  is  founded  is  often  expressed  in  the 
form :  "  An  infant  shall  not  take  advantage  of  his  own  fraud." 
A  review  of  the  principal  cases  will  clearly  show  the  correct  doctrine. 
In  Clarke  v.  Cobley  (y)  the  defendant  being  a  minor  had  given  his 
bond  to  the  plaintiff  for  the  amount  of  two  promissory  notes  made 
by  the  defendant's  wife  before  the  marriage,  which  notes  the  plaintiff 
delivered  up.  The  plaintiff,  on  discovering  the  truth,  and  after  the 
defendant  came  of  age,  filed  his  bill  praying  that  the  defendant  might 
either  execute  a  new  bond,  pay  the  money,  or  deliver  back  the  notes. 
The  Court  ordered  the  defendant  to  give  back  the  notes,  and  that  he 
should  not  plead  to  any  action  brought  on  them  the  Statute  of  Limita- 

(u)    The   liability    is    affirmed    by  Declaration  for  goods  sold,  &c.    Plea, 

Leake    (p.   470),    [ace.   Shaw   P.   Cof-  infancy.     Equitable   replication,  that 

fin,  58  Me.  254;  Elwell  v.  Martin,  32  the  contract  was  induced  by  defend- 

Vt.  217;   Cooley  on  Torts,  112.]   and  ant's   fraudulent  representation  that 

disputed   by  Mr.   Dicey    (on   Parties,  he  was  of  age.     The  replication  was 

284),  who  is  supported  by  a  dictum  held  bad,  as  not  meeting  the  defence, 

of  Willes   J.   assuming  that   infancy  but  only  showing  a  distinct  equitable 

would  be  a  good  plea  to  an  action  for  right  collateral  to  the  cause  of  action 

money  received,  though  substantially  sued  upon. 

founded  on  a  wrong.     Alton  v.  Mid-  (y)    (1789)   2  Cox,  173,  2  E.  R.  25. 

land  Ry.  Go.  (1865)   19  C.  B.  N.  S.  at  It  must  be  taken,   though   it  is  not 

p.  241,  34  L.  J.  C.  P.  at  p.  297.     [See  clear  by  the  report,  that  the  defend- 

Re  Seager,  60  L.  T.  B.  665.]  ant  falsely  represented  himself  as  of 

(as)   Ace.  Bartlett  v.  Wells   (1862)  full  age. 
1    B.   &   S.   836,   31    L.   J.   Q.   B.   57. 

3  Pick.  492;  Churchill  r.  White,  58  Neb.  22;  Freeman  v.  Boland,  14  R.  I.  39; 
Towne  v.  Wiley,  33  Vt.  355 ;  Eay  v.  Tubbs,  50  Vt.  688.  Contra,  Wilt  r.  Welsh, 
6  Watts,  9;  Penrose  v.  Curren,  3  Rawle,  351.  And  see  Schenks  v.  Strong,  1 
South.  87. 


INFANTS  :     FALSE   REPRESENTATIONS   OF   AGE.  85 

tion  or  any  other  plea  which  he  could  not  have  pleaded  when  the  bond 
was  given ;  but  refused  to  decree  payment  of  the  money,  holding  that 
it  could  do  no  more  than  take  care  that  the  parties  were  restored  to 
the  same  situation  in  which  they  were  at  the  date  of  the  bond.  In 
Lempriere  v.  Lange,  a  quite  recent  case,  it  was  held  that  an  infant 
who  had  obtained  the  lease  of  a  furnished  house  by  representing  him- 
self of  full  age  could  not  be  made  liable  for  use  and  occupation, 
although  the  lease  could  be  set  aside  and  the  infant  ordered  to  pay 
the  costs  of  the  action  (z).  Cory  *v.  Gertclcen  (a)  shows  that  [78 
when  an  infant  by  falsely  representing  himself  to  be  of  full  age  has 
induced  trustees  to  pay  over  a  fund  to  him,  neither  he  nor  his  repre- 
sentatives can  afterwards  charge  the  trustees  with  a  breach  of  trust 
and  make  them  pay  again.31  Overton  v.  Banister  (b)  confirms  this: 
it  was  there  held,  however,  that  the  release  of  an  infant  cestui  que 
trust  in  such  a  case  is  binding  on  him  only  to  the  extent  of  the  sum 
actually  received  by  him.  The  later  case  of  Wright  v.  Snowe  (c) 
seems  not  to  agree  with  this,  though  Overton  v.  Banister  was  cited, 
and  apparently  no  dissent  expressed.  There  a  legatee  had  given  a 
release  to  the  executrix,  representing  himself  to  her  solicitor  as  of 
full  age;  afterwards  he  sued  for  an  account,  alleging  that  he  was  an 
infant  at  the  date  of  the  release.  The  infancy  was  not  sufficiently 
proved,  and  the  Court  would  not  direct  an  inquiry,  considering  that 
in  any  event  the  release  could  not  be  disturbed.  This  appears  to  go 
the  length  of  holding  the  doctrine  of  estoppel  applicable  to  the  class 
of  representations  in  question,  and  if  that  be  the  effect  of  the  decision 
its  correctness  may  perhaps  be  doubted. 

There  must  be  a  positive  representation.  In  Siikeman  v.  Dawson  (d) 
the  subject  of  infant's  liability  for  wrongs  in  general  is  discussed 
in  an  interesting  judgment  by  Knight  Bruce  V.-C.  and  the  important 
point  is  decided  .that  in  order  to  establish  this  equitable  liability  it 
must  be  shown  that  the  infant  actually  represented  himself  to  be  of 
full  age;  it  is  not  enough  that  the  other  party  did  not  know  of  his 

(z)     (1879)    12   Ch.   D.   675.     Fol-  (6)    (1844)   3  Ha.  503. 

lowed  on  the  question  of  costs,  Woolf  (c)    (1848)  2  De  G.  &  Sm.  321. 

v    Woolf  [1899]   1  Ch.  343,  68  L.  J.  (d)    (1847)    1  De  G.  &  Sm.  90,  16 

Ch   82.  L.  J.  Ch.  205. 

(a)    (1816)    2  Madd.  40,  17  E.  E. 
180. 

31  Hayes  v.  Parker,  41  N.  J.  Eq.  630,  ace.    Cp.  Jones  v.  Parker,  67  Tex.  76. 

In  Evan  v.  Growney,  125  Mo.  474,  a  plaintiff  who  had  represented  himself 
to  be  of  ao-e  when  selling  property  was  denied  equitable  relief.  See  also 
Charles  1:  Hastedt,  51  N.  J.  Eq.  171. 


86  CAPACITY    OF    PARTIES. 

minority.  And  as  there  must  be  an  actual  false  representation, 
so  it  has  been  more  lately  held  that  no  claim  for  restitution  can  be 
sustained  unless  the  representation  actually  misled  the  person  to  whom 
it  was  made.  No  relief  can  be  given  if  the  party  was  not  in  fact 
deceived,  but  knew  the  truth  at  the  time ;  and  it  makes  no  difference 
79]  where  the  business  *was  actually  conducted  by  a  solicitor  or 
agent  who  did  not  know  (e). 

Proof  in  bankruptcy.  A  minor  cannot  be  adjudicated  a  bankrupt  in 
the  absence  of  an  express  representation  to  the  creditor  that  he  was 
of  full  age.  The  mere  fact  of  trading  cannot  be  taken  as  a  con- 
structive representation  (/) .  But  if  a  minor  has  held  himself  out  as 
an  adult,  and  so  traded  and  been  made  bankrupt,  he  cannot  have  the 
bankruptcy  anulled  on  the  ground  of  his  infancy  (g)  ;  and  a  loan  ob- 
tained on  the  faith  of  an  express  representation  that  lie  is  of  full  age 
is  a  claim  provable  in  bankruptcy  (h).32 

But  subsequent  valid  contract  after  full  age  prevails.  A  transaction  of 
this  kind  cannot  stand  in  the  way  of  a  subsequent  valid  contract  with 
another  person  made  by  the  infant  after  he  has  come  of  age;  and  the 
person  who  first  dealt  with  him  on  the  strength  of  his  representing 
himself  as  of  age  acquires  no  right  to  interfere  with  the  performance 
of  the  subsequent  contract  (i).  This  is  another  proof  that  the  in- 
fant's false  representation  gives  no  additional  force  to  the  transaction 
as  a  contract. 

It  was  also  held  in  the  case  referred  to  that,  assuming  the  first 
agreement  to  have  been  only  voidable,  it  was  clearly  avoided  by  the 
act  of  the  party  in  making  another  contract  inconsistent  with  it  after 
attaining  his  full  age.  But  it  has  been  decided  in  Ireland  (as  we 
have  seen)  that  this  is  not  so  in  the  case  of  a  lease  granted  by  an 
infant;  the  making  of  another  lease  of  the  same  property  to  another 
lessee  after  the  lessor  has  attained  full  age  is  not  enough  to  avoid 

(e)  Kelson  v.  Stocker  (1859)  4  Ves.  265;  Ex  parte  Bates  (1841)  2 
De  G.  &  J.  458,  28  L.  J.  Ch.  751.  Mont.  D.  &  D.  337. 

(f)  Ex  parte  Jones  (1881)  18  Ch.  (h)  Ex  parte  Unity  Bank  (1858)  3 
Div.  109,  50  L.  J.  Ch.  673,  overruling  De  G.  &  J.  63,  27  L.  J.  Bk.  33;  see 
Ex  parte  Lynch  (1876)  2  Ch.  D.  227,  observations  of  Jessel  M.R.  thereon, 
45  L.  J.  Bk.  48.  18  Ch.  D.  at  p.  121. 

(p)    Ex  parte   Watson    (1809)    16  (i)   Inman  v.  Inman   (1873)   L.  R. 

15  Eq.  260. 

32  If  an  infant  owes  debts  which  he  cannot  disaffirm,  he  is  within  the  scope 
of  the  Bankruptcy  Law.  Re  Brice,  93  Fed.  Rep.  942.  Cp.  Farris  r.  Richardson, 
6  Allen,  118.  Otherwise  not.  Re  Dunnigan,  95  Fed.  Rep.  428;  Re  Eidemiller, 
105  Fed.  Rep.  595. 


MARRIED    WOMEN  :      COMMON    LAW.  81' 

the  first  lease  (fc).  The  fact  that  an  *interest  in  property  and  [80 
a  right  of  possession  has  passed  by  the  first  lease,  though  voidable, 
explains  the  distinction. 

II.  Married  Women. 

Married  women  can  contract  only  as  to  separate  property.  A  married 
woman  is  capable  of  binding  herself  by  a  contract  only  "  in  respect  of 
and  to  the  extent  of  her  separate  property  "  (I).  This  limited  capac- 
ity is  created  by  a  statute  founded  on  the  practice  of  the  Court  of 
Chancery,  which  for  more  than  a  century  had  protected  married  wo- 
men's separate  interests  in  the  manner  to  be  presently  mentioned. 
Except  as  to  separate  property  the  old  common  law  rule  still  exists, 
though  with  greatly  diminished  importance.  That  rule  is  that  a 
married  woman  cannot  bind  herself  by  contract  at  all. 

If  she  attempts  to  do  so  "  it  is  altogether  void,  and  no  action  will 
lie  against  her  husband  or  herself  for  the  breach  of  it"  (m).33  And 
the  same  consequence  follows  as  in  the  case  of  infants,  namely,  that 
although  a  married  woman  is  answerable  for  wrongs  committed  by 
her  during  the  coverture,  including  frauds,  and  may  be  sued  for 
them  jointly  with  her  husband,  or  separately  if  she  survives  him, 
yet  she  cannot  be  sued  for  a  fraud  where  it  is  directly  connected  with 
a  contract  with  her,  and  is  the  means  of  effecting  it  and  parcel  of  the 
same  transaction,  e.  g.,  where  the  wife  has  obtained  advances  from 
the  plaintiff  for  a  third  party  by  means  of  her  guaranty,  falsely 
representing  herself  as  sole  (m)  ;  but  it  is  doubtful  whether  this  ex- 
tends to  all  cases  of  false  representation  by  which  credit  is  ob- 
tained (n).  For  the  same  reason  —  that  the  law  will  not  allow 
the  contract  to  be  indirectly  enforced  —  a  married  *woman  is  [81 
not  estopped  from  pleading  coverture  by  having  described  herself  as 
sui  iuris  ( o )  ,34 

The  fact  that  a  married  woman  is  living  and  trading  apart  from 

(k)   Slator  v.  Brady   (1863)    14  Ir.  (n)    Wright  v.  Leonard   (1861)    11 

C.  L.  Rep.  61,  supra,  p.  *57.  C.  B.  N.  S.  258,  30  L.  J.  C.  P.  365, 

(I)      Married     Women's     Property  where  the  Court  was  divided. 
Act,   1882,  45  &  46  Viet.  c.  75,  s.  1.  (o)    Cannam  v.  Farmer    (1849)    3 

(m)    Per  Cur.  Fairhurst  v.  Liver-  Ex.  698. 
pool  Adelphi  Loan  Association  (1854) 
9  Ex.  422,  429,  23  L.  J.  Ex.  164. 

33  Bank  v.  Partee,  99  U.  S.  325,  330;  Re  Comstock,  11  N.  B.  R.  169,  181; 
Prentiss  v.  Paisley,  25  Fla.  927 ;  Frazee  v.  Prazee,  79  Md.  27 ;  Tracy  v.  Keith, 
11  Allen,  214;  Flesh  v.  Lindsay,  115  Mo.  1,  13;  Keen  v.  Hartman,  48  Pa.  497; 
Woodward  v.  Barnes,  46  Vt.  332.  See  also  Earle  v.  Kingseote,  [1900]  1  Ch. 
203,  2  Ch.  585. 

34  Re  Comstock,  11  N.  B.  R.  169,  181;  Kilbourn  v.  Brown,  56  Conn.  149; 
Levering  v.  Shockey,  100  Ind.  558;  Coats  v.  Gordon,  144  Ind.  19:  Lowell  r. 
Daniels,  2  Gray,   161;   Keen   r.  Coleman,   39  Pa.  299;   Klein   v.   Caldwell,  91 


88  CAPACITY    OF    PARTIES. 

her  husband  does  not  enable  her  at  common  law  to  contract  so  as  to 
give  a  right  of  action  against  herself  alone  (p).36    Nor  does  it  make 

(p)  Clayton  v.  Adamis   (1796)   6  T.  R.  605. 

Pa.  140,  144;  Mason  v.  Jordan,  13  R.  I.  193.    See  also  Houseman  v.  Grossman, 
177  Pa.  453. 

Contra,  Reis  v.  Lawrence,  63  Cal.  129;  Hand  v.  Hand,  68  Cal.  135;  Patter- 
son v.  Lawrence,  90  111.  174;  as  to  the  rule  under  the  civil  law,  Henry  v. 
Gauthreaux,  32  La.  Ann.  1103. 

But  a  married  woman  may  be  bound  by  estoppel,  not  only  as  to  her  separate 
estate,  or  property  held  by  her  under  statutes  permitting  her  to  contract  as  a 
feme  sole,  Bean  v.  Heath,  6  How.  228 ;  Drake  r.'  Glover,  30  Ala.  382 ;  Lathrop 
r.  Soldiers'  L.  &  B.  Ass'n,  45  Ga.  483 ;  Hockett  v.  Bailey,  86  111.  74 ;  Nixon  v. 
Halley,  78  111.  611;  Anderson  v.  Armstead,  69  111.  452;  Spafford  v.  YVarren,  47 
la.  47;  Frazicr  v.  Gelston,  35  Md.  298;  Levy  v.  Gray,  56  Miss.  318;  Read  r. 
Hall,  57  N.  H.  482;  Bodine  v.  Kileen,  53  N.  Y.  93;  Smyth  v.  Munroe,  84  N.  Y. 
354;  Noel  v.  Kinney,  106  N.  Y.  74,  81;  Meiley  v.  Butler,  26  Ohio  St.  535;  Tone 
v.  Columbus,  39  Ohio  St.  281,  310;  Frver  v.  Rishell,  84  Pa.  521;  White  V. 
Goldsberg,  49  S.  C.  530 ;  Howell  v.  Hale,"  5  Lea,  405 ;  Cravens  r.  Booth,  8  Tex. 
243;  O'Brien  v.  Hilburn,  9  Tex.  297,  but  also  independently  thereof,  Nat. 
Feather  Duster  Co.  v.  Hibbard,  11  Biss.  76;  Ramboz  v.  Stowell,  103  Cal.  588; 
Birch  v.  Steppler,  11  Col.  400;  Patterson  v.  Lawrence,  90  111.  174;  Gatling  r. 
Rodman,  6  Ind.  289;  Wright  v.  Arnold,  14  B.  Mon.  513;  Rusk  v.  Fenton,  14 
Bush,  490;  Snow  v.  Hutchins,  160  Mass.  Ill;  Norton  v.  Nichols,  35  Mich. 
148;  Robb  v.  Shephard,  50  Mich.  189;  Dobbin  r.  Cordiner,  41  Minn.  165; 
Shivers  r.  Simmons,  54  Miss.  520;  Richardson  v.  Toliver,  71  Miss.  966;  Rosen- 
thal v.  Mayhugh,  33  Ohio  St.  155 ;  Cooley  v.  Steele,  2  Head,  605 ;  Galbraith  v. 
Lunsford,  87  Tenn.  89;  Godfrey  v.  Thornton,  46  Wis.  677,  690. 

That  a  declaration  by  a  wife  at  a  public  sale  of  her  husband's  realty  that 
she  will  not  claim  dower  therein  will  not  estop  her  is  decided  in  Kelso's  Ap- 
peal, 102  Pa.  St.  7 ;  that  it  will,  in  Connolly  v.  Branstler,  3  Bush,  702. 

Conduct  of  a  wife  in  the  presence  of  her  husband  will  not  ordinarily  estop 
her,  as  she  is  presumed  to  be  sub  potestate  viri.  Drake  v.  Glover,  30  Ala.  382, 
390;  Carpenter  r.  Carpenter's  Ex'rs,  27  N.  J.  Eq.  502;  Kinsey  r.  Feller,  64 
N.  J.  Eq.  367;  Clayton  v.  Rose,  87  N.  C.  106;  Paul  r.  Kunz,  188  Pa.  504.  But 
see  Davis  v.  Tingle,  8  B.  Mon.  539. 

The  preponderance  of  authority  is  to  the  effect  that  a.  married  woman  can- 
not, by  estoppel,  transfer  title  to  her  real  estate.  Drury  v.  Foster,  2  Wall.  24 ; 
Vansandt  v.  Weir,  109  Ala.  104;  Wood  v.  Terry,  30  Ark.  385;  Morrison  v. 
Wilson,  13  Cal.  495;  Ross  v.  Singleton,  1  Del.  Ch.  149;  Oglesby  Coal  Co.  r. 
Pasco,  79  111.  170;  Behler  v.  Weyburn,  59  Ind.  143;  Unfried  v.  Heberer,  63  Ind. 
67;  Suman  v.  Springate,  67  Ind.  115,  121;  Parks  v.  Barrowman,  83  Ind.  561; 
Rangley  P.  Spring,  21  Me.  130 ;  Lowell  v.  Daniels,  2  Gray,  161 ;  Pierce  v. 
Chace,  108  Mass.  254;  Todd  v.  Railroad  Co.,  19  Ohio  St.  514;  Innis  v.  Temple- 
ton,  95  Pa.  262 ;  Davidson's  Appeal,  95  Pa.  394 ;  Glidden  v.  Strupler,  52  Pa.  400  ; 
Stivers  v.  Tucker,  126  Pa.  74;  Mason  v.  Jordan,  13  R.  I.  193;  McLaurin  r. 
Wilson,  16  S.  C.  402;  Daniel  v.  Mason,  90  Tex.  240.  And  see  Merriam  v.  Rail- 
road Co.,  117  Mass.  241. 

The  principle  upon  which  these  cases  are  rested  is  that  the  greatest  force 
is  given  to  an  estoppel  when  it  is  made  equal  to  the  deed  of  the  person 
against  whom  it  is  invoked,  and  that  the  deed  of  a  married  woman  is  void. 
A  man,  it  is  true,  can  convey  his  land  only  by  deed;  but  its  execution  is  only 
a  formality,  his  having  complied  with  which  he  may  be  estopped  to  deny.  A 
married  woman  is  powerless  alone  to  convey  her  land ;  as  to  her  sole  deed 
there  is  a  question,  not  of  compliance  with  a  formality,  but  of  power ;  as  she 
can  in  no  way  alone  convey  her  land,  it  follows  that  she  can  in  no  way  estop 
herself  to  sav  that  she  has  not  conveyed  it.  See  Collins  v.  Goldsmith,  71  Fed. 
Rep.  580. 

35  High  v.  Worley,  33  Ala.  196;  Rogers  v.  Phillips,  8  Ark.  366;  Fuller  r. 
Bartlett,  41  Me.  241;  Bank  v.  Belli;.   10  Cush.  276;  Brown  c.  Killingsworth, 


-MARRIED    WOMEN  :      COMMON    LAW.  89 

any  difference  if  she  is  living  separate  from  her  husband  under  an 
express  agreement  for  separation,  as  no  agreement  between  husband 
and  wife  can  change  their  legal  capacities  and  characters  (<?).36 

But  may  acquire  contractual  rights.  But  "  a  married  woman,  though 
incapable  of  making  a  contract,  is  capable  of  having  a  chose  in  action 
conferred  upon  her,  which  will  survive  to  her  on  the  death  of  the 
husband,  unless  he  shall  have  interfered  by  doing  some  act  to  reduce 
it  into  possession " :  thus  she  might,  before  the  Married  Women's 
Property  Act,  buy  railway  stock,  and  become  entitled  to  sue  for 
dividends  jointly  with  her  husband  (r).37  When  a  third  person  as- 
sents to  hold  a  sum  of  money  at  the  wife's  disposal,  but  does  not  pay 
it  over,  this  is  conferring  on  her  a  chose  in  action  within  the  meaning 
of  the  rule  (s). 

During  the  joint  lives  of  the  husband  and  wife  the  husband  is 
entitled  iure  mariti  to  receive  any  sum  thus  due;  "but  if  the  wife 
dies  before  the  husband  has  received  it,  the  husband,  although  his 
beneficial  right  remains  the  same,  must  in  order  to  receive  the  money 
take  out  administration  to  his  wife;38  and  if  he  dies  without  having 
done  so,  it»is  necessary  that  letters  of  administration  should  be  taken 

(q)   Marshall  v.  Rutton   (1800)    8  see    Williams    on    Executors,    1.    734 

T.  R.  545,  5  R.  R.  448.  sqq.     (9th   ed.),    Widgery   v.    Tepper 

(r)    Per   Cur.    Dalton  v.    Midland  (1877)   5  Ch.  D.  516,  7  Ch.  Div.  423, 

Ry.  Co.   (1853)   13  C.  B.  474,  22  L.  J.  47  L.  J.  Ch.  550. 

C.  P.   177.     And  see  1   Wms.  Saund.  (s)   Fleet  v.  Perrins   (1869)    L.  R. 

222,     223.       On    the    question    what  3   Q.   B.   536,  4  Q.  B.   500,   38   L.   J. 

amounts  to  reduction  into  possession,  Q.  B.  257. 

4  McCord,  429;  Freer  v.  Walker,  1  Bailey,  184;  Harris  v.  Taylor,  3  Sneed,  536; 
Robinson  v.  Reynolds,  1  Aikens,  174;  cp.  infra,  p.  91,  note  (a). 

38  Parker  v.  Lambert,  31  Ala.  89. 

37Chappelle  v.  Olney,  1  Sawyer,  401;  Lenderman  r.  Talley,  1  Houst.  523; 
Bond  v.  Conway,  11  Md.  512;  Hayward  v.  Hayward,  20  Pick.  517;  Schuyler  v. 
Hoyle,  5  Johns.  Ch.  196;  Searing  v.  Searing,  9  Paige,  283;  Borst  v.  Spel- 
man,  4  N.  Y.  284,  288;  Snowhill  v.  Snowhill,  2  N.  J.  Eq.  30,  36;  Revel  v. 
Revel,  2  Dev.  &  Bat.  L.  272;  Weeks  v.  Weeks,  5  Ired.  Eq.  Ill;  Hoop  v.  Plum- 
mer,  14  Ohio  St.  448;  Wilder  v.  Aldrich,  2  R.  I.  518;  Johnson  v.  Lusk,  6 
Coldw.  113.     Contra,  Edwards  v.  Sheridan,  24  Conn.  165. 

38  Willis  v.  Roberts,  48  Me.  257 ;  Jenkins  v.  Freyer,  4  Paige,  47 ;  Dawson  v. 
Dawson,  2  Strobh.  Eq.  34;  Hardin  v.  Young,  (Tenn.)  41  S.  W.  Rep.  1080; 
Contra,  Greenleaf  v.  Hill,  31  Me.  562;  Goddard  v.  Johnson,  14  Pick.  352;  Ryder 
v.  Hulse,  24  N.  Y.  372. 

The  statutes  21  H.  VIII.;  22  and  23  Car.  II.,  cap.  10,  and  29  Car.  II.,  cap.  3, 
§  25,  together,  gave  the  husband  the  right  to  administer  upon  his  deceased 
wife's  estate,  and  to  take  for  his  own  benefit  her  chattels  real,  choses  in  action, 
trusts,  and  every  species  of  personal  property.  Judge  of  Probate  v.  Chamber- 
lain, 3  N.  H.  129.  In  many,  perhaps  in  most  of  the  United  States,  the  statutes 
prevailing  describe  a  different  rule.  Bishop  on  the  Law  of  Married  Women, 
§§  172-182. 


90  CAPACITY    OF    PARTIES. 

out  to  the  wife's  estate39  (for  such  is  still  the  legal  character  of  the 
82]  money),  but  the  wife's  administrator  is  *only  a  trustee  for  the 
representative  of  the  husband"  (t).  Accordingly  the  Court  of  Pro- 
bate cannot  dispense  with  the  double  administration,  even  where  the 
same  person  is  the  proper  representative  of  both  husband  and  wife, 
and  is  also  beneficially  entitled  (u). 

Cannot    during    coverture    renew   debt   barred   by   Statute   of    Limitation. 

Inasmuch  as  according  to  the  view  established  by  modern  decisions  a 
promise  to  pay  a  debt  barred  by  the  Statute  of  Limitation  operates 
not  by  way  of  post-dating  the  original  contract  so  as  to  "  draw  down 
the  promise  "  then  made,  but  as  a  new  contract  founded  on  the  sub- 
sisting consideration,  a  married  woman's  general  incapacity  to  con- 
tract prevents  such  a  promise,  if  made  by  her,  from  being  effectual; 
and  where  before  the  marriage  she  became  a  joint  debtor  with  another 
person,  that  person's  acknowledgment  after  the"  marriage  is  also  in- 
effectual, since  to  bind  one's  joint  debtor  an  acknowledgment  must  be 
such  as  would  have  bound  him  if  made  by  himself  (a;).40 

The  rules  of  law  concerning  a  wife's  power  to  bind  her  husband  by 
contract,  either  as  his  actual  or  ostensible  agent  or,  in  some  special 
circumstances,  by  a  peculiar  authority  independent  of  agency,  do  not 
fall  within  the  province  of  this  work.11 

Exceptions  at  common  law. 

Queen  consort.  The  wife  of  the  King  of  England  may  sue  and  be 
sued  as  a  feme  sole  (Co.  Litt.  133  a). 

Wife  of  person  civilly  dead.  The  wife  of  a  person  civilly  dead  may 
sue  and  be  sued  alone  (lb.  132  b,  133  a).  The  cases  dwelt  on  by  Coke 
are  such  as  practically  cannot  occur  at  this  day,  and  it  seems  that  the 
only  persons  who  can  now  be  regarded  as  civilly  dead  are  persons  con- 
83]    victed    of    felony,    and    not    lawfully    at    *large    under    any 

(t)    Per  Lord   Westbury,  Parting-  (x)    Pittam  v.  Foster   (1823)    1  B. 

ton  v.  Att.-Gen.  (1869)  L.  E.  4  H.  L.  &  C.  248,  25  E.  E.  385;  1  Wms. 
100,  119.  Saund.  172. 

(it)     In    the     Goods    of    Harding 
(1872)   L.  E.  2  P.  &  3D.  394. 

38Lockwood  v.  Stockholm,  11  Paige,  87,  91. 

40  Axson  v.  Blakely,  2  McCord,  6 ;  Farrar  v.  Bessey,  24  Vt.  89. 

41  As  to  the  liability  imposed  on  the  husband  irrespective  of  authority  given 
by  him,  see  Keener  on  Quasi  Contracts,  22;  Hatch  v.  Leonard,  165  N.  Y.  435, 
439. 


MARRIED   WOMEN  :      COMMON    LAW.  91 

license  (y ).42  An  alien  enemy,  though  disabled  from  suing,  is  not 
civilly  dead,  and  his  wife  cannot  sue  alone  on  a  contract  made  with 
her  either  before  or  during  coverture;  so  that  while  he  is  an  alien 
enemy  neither  of  them  can  maintain  an  action  on  the  contract.  The 
remedy  may  thus  be  irrecoverably  lost  by  the  operation  of  the  Statute 
of  Limitation,  but  this  inconvenience  does  not  take  the  case  out  of  the 
general  rule  (2).  This  decision  does  not  expressly  overrule  any  earlier 
authority  (and  there  is  such  authority)  (a)  for  the  proposition  that 
she  may  be  sued  alone.  But  it  is  conceived  that  such  must  be  the 
result. 

Wife  of  alien  not  resident  in  the  kingdom.  It  appears  to  be  the  result 
of  the  authorities  that  the  wife  of  an  alien  husband  who  has  never 
been  or  at  least  never  resided  in  England  may  bind  herself  by  contract 
if  she  purports  to  contract  as  a  feme  sole  (&).43 

Married  woman  trading  in  London.  "  By  the  custom  of  London,  if  a 
feme  covert,  the  wife  of  a  freeman,  trades  by  herself  in  a  trade  with 

(y)   Transportation  was  considered  Co.  Litt.   131  b) .     Bracton,  however, 

as  an  abjuration  of  the  realm,  which  speaks  of  outlawry  (426  6)  as  well  as 

could  be  determined  only  by  an  actual  religious  profession   (301  6)    as  mors 

return  after  the  sentence  had  expired :  civilis.    A  person  under  the  penalties 

Carrol  v.  Blencow   (1801)   4  Esp.  27.  of   praemunire,   which   include   being 

The  analogy  to  Coke's  "  Civil  Death "  put    out    of    the    King's    protection, 

is  discussed,  arg.  in  Ex  parte  Franks  would,    I    suppose,    be    in    the    same 

(1831)   7  Bing.  762.  plight    as    an    outlaw.      The    Roman 

(2)    Be  Wahl  v.  Braune   (1856)    1  mors  civilis  was  a.  pure  legal  fiction, 

H.  &  N.  178,  25  L.  J.  Ex.  343.     Per-  introduced  not  to  create  disabilities, 

haps     it    may    be     doubted    whether  but   to   obviate   the   inconvenient   re- 

"  civil  death  "  was  ever  really  appro-  suits  of  disabilities  otherwise  created, 

priate  as   a.  term   of   art  in  English  (Sav.  Syst.  2.  164.)     As  to  the  mort 

courts  except  "when  a  man  entereth  civile    of   modern    French   law    (now 

into  religion    [i.e.   a   religious    order  abolished  since  1854),  see  ib.  151  sag. 

in   England]    and   is   professed":    in  (a)   Berry  v.  Buchess  of  Mazarine 

that  case  he  could  make  a  will  and  (1697)    1  Ld.  Raym.  147. 

appoint    executors     (who    might    be  (b)   Barden  v.  Keverberg   (1836)   2 

sued  as  such  for  his  debts,  F.  N.  B.  M.  &  W.  61,  6  L.  J.  Ex.  66.    But  the 

121,  0.),  and  if  he  did  not,  his  goods  question  is  now  of  little  interest, 
could  be  administered    (Litt.  s.   200, 

42  Wilson  v.  King,  59  Ark.  32;  Smith  v.  Becker,  62  Kan.  541;  Avery  v. 
Everett,  110  N.  Y.  317;  Re  Zeph,  50  Hun,  523;  Frazer  v.  Fulcher,  17  Ohio, 
260;  Davis  v.  Laning,  85  Tex.  39;  Baltimore  v.  Chester,  53  Vt.  315. 

43  Where  the  husband  was  never  within  the  State,  or  has  gone  beyond  its 
ju  -isdiction  wholly  renouncing  his  marital  rights  and  duties  and  deserting  his 
wife  she  may  contract,  and  sue,  and  be  sued  in  her  own  name.  Rhea  v. 
Renner  1  Pet.  105;  Bank  v.  Partee,  99  IT.  S.  325,  330;  Blumenberg  v.  Adams, 
49  Cal.'308;  Clark  v.  Valentino,  41  Ga.  143;  Smith  v.  Silence,  4  la.  321;  Ayer 
v.  Warren,  47  Me.  217;  Gregory  v.  Pierce,  4  Met.  478;  Abbott  v.  Bayley,  6 
Pick  89;  Phelps  v.  Walther,  78  Mo.  320;  Rosenthal  v.  Mayhugh,  33  Ohio  St, 
155-Wa'gg  r.  Gibbons,  5  Ohio  St.  580;  Bean  v.  Morgan,  4  McCord,  148;  Rail- 
way Co.  r.  Hennesey,  20  Tex.  Civ.  App.  316;  Buford  v.  Adair,  43  W.  Va.  211, 
64  Am.  St.  Rep.  854.  Cp.  Stewart  v.  Conrad's  Admr.,  100  Va.  128.  See  26 
Am.  L.'  Reg.  745. 


92  CAPACITY    OF    PARTIES. 

which  her  husband  does  not  intermeddle,  she  may  sue  and  be  sued  as 
84]  a  feme  sole,  and  the  husband  shall  be  named  only  for  *con- 
formity ;  and  if  judgment  be  given  against  them,  she  only  'shall  be 
taken  in  execution."  (Bacon,  Abr.  Customs  of  London,  D.)  This 
custom  applies  only  to  the  city  courts  (c),  and  even  there  the  formal 
joinder  of  the  husband  is  indispensable.  But  if  acted  upon  in  those 
courts  it  may  be  pleaded  as  matter  of  defence  in  the  superior 
courts  (d),  though  they  do  not  otherwise  notice  the  custom  (e). 

Contracts  with  husband  as  to  separation,  &c,  may  be  good.  In  certain 
exceptional  cases  in  which  the  wife  has  an  adverse  interest  to  the 
husband  she  is  not  incapable  of  contracting  with  him.  Where  a 
wife  had  instituted  a  suit  for  divorce,  and  she  and  her  husband  had 
agreed  to  refer  the  matters  in  dispute  to  arbitration,  her  next  friend 
not  being  a  party  to  the  agreement,  the  House  of  Lords  held  that 
under  the  circumstances  of  the  case  she  might  be  regarded  as  a  feme 
sole,  that  the  agreement  was  not  invalid,  and  that  the  award  was 
therefore  binding  (/). 

The  real  object  of  the  reference  and  award  in  this  case  having  been 
to  fix  the  terms  of  a  separation,  it  was  later  held  that  the  Court 
would  not  refuse  to  enforce  an  agreement  to  execute  a  deed  of  sepa- 
ration merely  because  it  was  made  between  the  husband  and  wife 
without  the  intervention  of  a  trustee  (g).44  In  the  simpler  case  of  an 
agreement  to  live  apart,  with  incidental  provisions  for  maintenance, 
the  agreement  does  not  require  the  intervention  of  a  trustee,  and  the 
wife    (apart  from  the  Married  Women's  Property  Act,  which  does 

(c)  Caudellv.  Shaw  (1791)  4  T.  R.  (e)  Caudell  v.  Shaw,  4  T.  R.  361. 
361.  (f)    Bateman  v.   Countess  of  Boss 

(d)  Beard  v.  Webb    (1800)   2  Bos.        (1313)  1  Dow,  235,  14  R.  R.  55. 

&  P.  93.     Since  the  Act  of   1882  the  (g)  Vansittartv.  Vansittart  (1858) 

only    effect    of    the    custom,    if    any,  4  K.  &  J.  62,  27  L.  J.  Ch.  222;  but 

seems   to  be  that  a  married  woman  the    agreement    not    enforceable    for 

trading   in  the   City  of   London   may  other    reasons;     affirmed    on    appeal, 

be    subject   to    greater    personal    lia-  2  De  G.  &  J.  249,  27  L.  J.  Ch.  289; 

bility  than  elsewhere.  but  no  opinion  given  on  this  point. 

**  "A  parol  post  nuptial  agreement  between  husband  and  wife,  made  in  view 
of  a  voluntary  separation,  and  fully  executed  on  the  part  of  the  husband, 
whereby,  for  a  consideration  which,  in  the  light  of  all  the  circumstances  of  the 
parties  at  the  time  the  contract  is  made,  is  fair,  reasonable,  and  just,  the  wife 
relinquishes  all  claim  to  a  distributive  share  of  the  husband's  personal  estate 
in  case  she  survives  him,  will  be  upheld  and  enforced  in  equity,  and  the  inter- 
vention between  them  of  a  trustee  is  unnecessary."  Garver  v.  Miller,  16  Ohio 
St.  527 ;  and  see  Daniels  i:  Benedict,  97  Fed.  Rep.  367 ;  Dutton  r.  Dutton,  30 
Ind.  452 ;  King  v.  Mollohan,  61  Kan.  683 ;  Masterson  r.  Masterson,  22  Ky.  L. 
Rep.  1193;  Stebbins  r.  Morris,  19  Mont.  115;  Hendricks  v.  Isaacs,  117  N.  Y. 
411;  Thomas  v.  Brown,  10  Ohio  St.  247:  Lehr  v.  Beaver,  8  W.  &  S.  102;  Hut- 
ton  17.  Button's  Adm'r.  3  Pa.  St.  100;  Burkholder's  Appeal,  105  Pa.  31.  The 
agreement  must,  however,  be  fair.     Hungerford  v.  Hungerford,  161  N.  Y.  550. 


MARRIED    WOMEN  :     STATUTES.  93 

not  apply)  can  sue  the  husband  for  arrears  of  maintenance  due 
under  it  (h).  It  *does  not  follow  that  in  such  transactions  a  [85 
married  woman  has  all  the  powers  of  a  feme  sole.  She  has  only  those 
which  the  necessity  of  the  case  requires.  She  is  apparently  competent 
to  compromise  the  suit  with  her  husband  (i)  :  but  she  cannot,  as  a 
term  of  the  compromise,  bind  her  real  estate  (not  being  settled  to 
her  separate  use)  without  the  acknowledgment  required  by  the  Fines 
and  Eeeoveries  Act  (Tc). 

Statutory  exceptions  other  than  Married  Women's  Property  Act. 

Judicial  separations  and  protection  orders.  By  the  Act  constituting  the 
Court  for  Divorce  and  Matrimonial  Causes,  20  &  21  Vict.  c.  85,  a 
wife  judicially  separated  from  her  husband  is  to  be  considered  whilst 
so  separated  as  a  feme  sole  for  the  purposes  of  (inter  alia)  contract, 
and  suing  and  being  sued  in  any  civil  proceeding  (s.  26)  (I) ;  and  a 
wife  deserted  by  her  husband  who  has  obtained  a  protection  order  is 
in  the  same  position  while  the  desertion  continues  (s.  21).  This 
section  is  so  worded  as  when  taken  alone  to  countenance  the  sup- 
position that  the  protection  order  relates  back  to  the  date  of  desertion. 
It  has  been  decided,  however,  that  it  does  not  enable  the  wife  to 
maintain  an  action  commenced  by  her  alone  before  the  date  of  the 
order  (m).  Her  powers  of  disposing  and  contracting  apply  only  to 
property  acquired  after  the  decree  for  separation  or  the  desertion  (or 
protection  order?)  as  the  case  may  be  (n).  These  provisions  are 
extended  by  *an  amending  Act  in  certain  particulars  not  material  [86 
to  be  noticed  here  (21  &  22  Vict.  c.  108,  ss.  6-9) ;  and  third  parties 
are  indemnified  as  to  payments  to  the  wife,  and  acts  done  by  her 
with  their  permission,  under  an  order  or  decree  which  is  afterwards 
discharged  or  reversed  (s.  10).     The  words  as  to  "suing  and  being 

(h)  McGregor  v.  McGregor  (1888)  v.   Sturgeon    (1876)    2   Ch.  Div.   318, 

21  Q.  B.  Div.  424,  57  L.  J.  Q.  B.  591.  45  L.  J.  Ch.  633. 

(i)  Rowley  v.  Rowley  (1866)  L.  E.  (to)  Midland  Ry.  Co.  v.  Pye  (1861) 

2  Sc.  &  D.  63.  10  C.  B.  N.  S.  179,  30  L.  J.  C.  P.  314. 

Ik)   Cahill  v.  Cahill  (1883)   8  App.  (n)    Waite  v.   Morland    (1888)    38 

Ca.  420.  Ch.  Div.  135,  57  L.  J.  Ch.  655 ;  Hill 

\l)    The  same  consequences   follow  v.  Cooper  [1893]  2  Q.  B.  85,  62  L.  J. 

a  fortiori   on   a  dissolution  of   mar-  Q.  B.  423,  C.  A.     As  to  the  combined 

riage,  though  there  is  no  express  en-  effect   of   this    Act   and   s.    4    of   the 

actment  that  they   shall :    Wilkinson  Married  Women's  Property  Act,  1882, 

v.  Gibson  (1867)  L.  E.  4  Eq.  162,  36  in  making  property  subject  to  a  mar- 

L.   J.   Ch.   646 ;    see  also,   as   to  the  ried  woman's  disposing  power  assets 

divorced  wife's  rights,  Wells  v.  Mai-  for  the  payment  of  her  debts,  see  Re 

Ion  (1862)   31  Beav.  48,  31  L.  J.  Ch.  Hughes   [1898]    1   Ch.  529,  67   L.   J. 

344;   Fitzgerald  v.   Chapman    (1875)  Ch.  279,  C.  A. 
1  Ch.  D.  563,  45  L.  J.  Ch.  23;  Burton 


94  CAPACITY    OF    PARTIES. 

sued  "  in  this  section  are  not  confined  by  the  context  to  matters  of 
property  and  contract,  but  are  to  be  liberally  construed:  a  married 
woman  who  has  obtained  a  protection  order  may  sue  in  her  own  name 
for  a  libel  (o). 

Equitable  doctrine  of  separate  estate. 

In  the  eighteenth  century,  if  not  earlier,  the  Court  of  Chancery 
it  cognized  and  sanctioned  the  practice  of  settling  property  upon 
married  women  to  be  enjoyed  by  them  for  their  separate  use  and 
free  of  the  husband's  interference  or  control.  To  this  was  added, 
towards  the  end  of  that  century,  the  curious  and  anomalous  device 
of  settling  property  in  trust  for  a  married  woman  "  without  power  of 
anticipation,"  so  that  she  cannot  deal  in  any  way  with  the  income 
until  it  is  actually  payable.  During  the  nineteenth  century  a  doc- 
trine was  elaborated,  not  without  difficulty  and  hesitation,  under  which 
a  married  woman  having  separate  property  at  her  disposal  (not  sub- 
ject to  the  peculiar  restraint  just  mentioned)  might  bind  that 
property,  though  not  herself  personalty,  by  transactions  in  the  nature 
of  contract.  Some  account  of  this  doctrine  is  given  for  reference  in 
the  Appendix,  as  being  useful,  if  not  necessary,  for  the  full  under- 
standing of  the  modern  law. 

It  should  be  observed  that  restraint  on  anticipation,  being  allowed 
87]  only  for  the  purpose  of  protecting  the  fund  *as  capital,  does 
not  apply  to  income  of  the  fund  when  it  reaches  the  married  woman's 
hands,  or  the  hands  of  some  person  from  whom  she  can  immediately 
demand  it.  The  income  so  paid  or  payable  is  ordinary  separate 
property,  and  therefore  on  principle  not  exempt  from  the  subsequent 
claims,  equitable  or  statutory,  of  the  married  woman's  creditors  (p). 

The  Harried  Women's  Property  Act. 

45  &  46  Vict.,  c.  75.  The  provisions  of  the  Married  Women's  Property 
Act,  1882,  extended  by  an  amending  Act  of  1893,  are  so  much  wider 
that  they  may  be  described  as  a  new  body  of  law,  consolidating  and 
superseding  the  results  of  many  cases  in  equity  as  well  as  the  previous 

(0)  Ramsden  v.  Brearley  (1875)  Whiteley  v.  Edwards  [1896]  2  Q.  B. 
L.  R.  10  Q.  B.  147,  44  L.  J.  Q.  B.  46.  48,  65  L.  J.  Q.  B.  457,  C.  A.;  this 
She  can  give  a  valid  receipt  for  a  principle  seems  to  have  been  over- 
legacy  not  reduced  into  possession  looked  by  the  C.  A.  in  construing  the 
before  the  date  of  the  order:  Re  Act  of  1893  in  Barnett  v,  Howard 
Coward  &  Adam's  Purchase  (1875)  [1900]  2  Q.  B.  784,  69  L.  J.  Q.  B. 
L.  "R.  20  Eq.  179,  44  L.  J.  Ch.  384.  955.     See  Mr.  T.  Cyprian  Williams's 

(p)     See    Hood    Barrs    v.     Heriot  remarks  in  L.  Q.  B.  xvii.  4. 
[1896]  A.  C.  174,  65  L.  J,  Q.  B.  352: 


MARR1EI    WOMEN'S    PROPERTY    ACT.  95 

Acts  of  1870  and  1874,  whieh  this  Act  repealed.     The  law,  as  now 
declared,  is  to  this  effect : 

Separate  property  is 

(i)    Property  acquired  by  any  married  woman  after  January  1, 

1883,  including  earnings  (q)  : 
(ii)   Property   belonging   at   the   time   of   marriage  to    a   woman 

marrying  after  January  1,  1883  (r). 
Special  trusts  created  in  favour  of  a  married  woman  by  will,  set- 
tlement or  otherwise,  are  not  affected  by  the  Act  (s). 

Subject  to  any  settlement  (t),  a  married  woman  can  bind  herself 
by  contract  "in  respect  of  and  to  the  extent  *of  her  separate  [88 
property,"  and  can  sue  and  be  sued  alone  (w). 

Damages  and  costs,  if  recovered  by  her,  become  her  separate  prop- 
erty; if  against  her,  are  payable  out  of  her  separate  property  and  not 
otherwise  (x).     A  married  woman  trading  alone  can  be  made  bank- 
rupt in  respect  of  her  separate  property  (y). 
A  contract  made  by  a  married  woman 

(i)  Is  deemed  to  be  made  with  respect  to  and  to  bind  her  separate 
property  (z),  and,  if  made  since  5  Dec.  1893,  whether  or  not 
she  has  any  separate  property  at  the  date  of  the  contract  (a)  : 

(q)     Ss.    5,    25.      Property   falling  do  not  give  any  greater  power  of  dis- 

into  possession   since   the  Act  under  posal   than    is   given   by  the   specific 

a  title  acquired  before  it  is  not  in-  words  of  ss.  2  and  5,  with  which  s.  1 

eluded:     Reid  v.  Reid   (1886)   31  Ch.  must  be   read:      Re   Cuno,   Mansfield 

Div.  402,  55  L.  J.  Ch.  294.  v.  Mansfield    (1889)    43   Ch.  Div.   12, 

(r)    S.  2.  62  L.  T.  15. 

(s)    S.  19,     which     "prevents    the  (x)    S.  1,  sub-s.  2. 

previous  enactment  from   interfering  (y)   S.  1,  sub-s.  5.     An  unexecuted 

with    any    settlement    whieh    would  general  power  of  appointment  is  not 

have  bound  the  property  if  the  Act  "  separate  property,"   and   a  married 

had  not  passed  " :     Cotton  L.J.  Han-  woman   cannot  be  compelled  to   exe- 

cock  v.  Hancock    ( 1888 )    38  Ch.  Div.  cute  such  a  power  for  the  benefit  of 

78,  90,  57  L.  J.  Ch.  396.     This  pro-  her    creditors:      Ex    parte    Gilchrist 

vision  covers  both  s.  2  and  s.  5.     See  (1886)    17   Q.   B.  Div.  521,   55  L.   J. 

Buckland  v.  Buckland   [1900]    2   Ch.  Q.   B.   578.      S.    19   does  not  prevent 

534,  69  L.  J.  Ch.  648.  property    to    which    she    is    entitled 

(*)   See  Stonor's  Trusts   (1883)   24  under  a  settlement,  without  restraint 

Ch.  D.  195,  52  L.  J.  Ch.  776.  on  anticipation,  from  passing  to  the 

(u)    As  to  the  retrospective  opera-  trustee     in     bankruptcy:      Ex    parte 

tion  of  the  Act  with  regard  to  power  Boyd    (1888)    21   Q.   B.  Div.   264,  57 

to  sue  on  a  cause  independent  of  con-  L-  J-  Q-  B-  553- 

tract,  see  Weldon  v.  Winslow  (1884)  (z)    Formerly  there  was   no    such 

13  Q.'  B.  Div.  784,  53  L.  J.  Q.  B.  528.  presumption    unless    she    was    living 

As  to  liability  on  causes  independent  apart  from  her  husband.     See  Appen- 

of   contract,    Whittaker   v.    Kershaw  dix,  Note  C. 
(1890)    45    Ch.    Div.    320,   60    L.    J.  (a)  56  &  57  Vict.  c.  63. 

Ch.  9.    The  general  words  of  s.  1  (1) 


96  CAPACITY    OF    PARTIES. 

(ii)  If  so  made  and  binding,  binds  her  after-acquired  separate 
property  (&),  provided,  as  to  contracts  of  earlier  date  than 
5  Dec.  1893,  that  there  was  some  separate  property  at  the 
date  of  the  contract  (c). 

A  married  woman's  separate  property  is  liable  for  her  ante-nuptial 
debts  and  obligations  (d).  She  is  also  liable  at  common  law  for 
such  debts,  and  judgment  may  go  against  her  personally  (e).  She 
cannot  avoid  this  liability  by  settling  the  property  on  herself  without 
89]  power  of  anticipation  (/).  As  to  women  married  before  Jan- 
uary 1,  1883,  such  liability  applies  only  to  separate  property  acquired 
by  them  under  the  Act  (g). 

The  Act  contains  other  provisions  as  to  the  effect  of  the  execution 
of  general  powers  by  will  by  married  women  (h),  the  title  to  stocks 
and  other  investments  registered  in  a  married  woman's  name  either 
solely  or  jointly  (t),  the  effecting  of  life  assurances  by  a  married 
woman,  or  by  either  husband  or  wife  for  the  benefit  of  the  family  (;'), 
procedure  for  the  protection  of  separate  property  (h),  and  other 
matters  which  belong  more  to  the  law  of  Property  than  to  the  law 
of  Contract. 

It  is  not  expressly  stated  by  the  principal  Act  whether  on  the 
termination  of  the  coverture  by  the  death  of  the  husband,  or  by 
divorce,  a  married  woman's  debts  contracted  during  the  coverture 
with  respect  to  her  separate  property  do  or  not  become  her  personal 
debts;  but  it  has  been  assumed  that  they  do  (I),  and  the  Act  of  1893 
expressly  makes  this  the  rule  for  contracts  subsequent  to  its  date  (to)- 
If  not,  the  only  remedy  would  be  against  her  separate  property  which 
existed  as  such  during  the  coverture,  and  was  not  subject  to  restraint 
on  anticipation  («.),  so  far  as  it  could  still  be  identified  and  followed. 

The  Act  does  not  remove  the  effects  of  a  restraint  on  anticipation. 
A  married  woman's  creditor  is  not  enabled  to  have  execution  or  any 

(6)  56  &  57  Vict.  c.  63,  ss.  1,  4.  (h)   Re  Ann  [1894]   1  Ch.  549,  63 

(c)  Stogdon  v.  Lee  [1891]   1  Q.  B.  L.  J.  Ch.  334. 
661,  60  L.  J.  Q.  B.  669,  C.  A.  (i)    Ss.  6-10. 

(d)  S.  13.    This  liability  is  at  least  (;')    S.  11. 
doubtful  in  cases  not  under  the  Act:  (fc)    S.  12. 

see  Note  C.     As  to  the  Act  of  1870,  (I)    Harrison  v.   Harrison    (1888) 

Axford  v.  Reid   (1889)   22  Q.  B.  Div.  13    P.    Div.    180;    Leak    v.    Driffield 

548,  58  L.  J.  Q.  B.  230.  (1889)   24  Q.  B.  D.  98. 

(e)  Robinson,  King  &  Co.  v.  Lynes  (to)  56  &  57  Vict.  c.  63,  s.  1  (c). 
[1894]    2  Q.   B.   577,   63   L.  J.   Q.   B.            (n)      Pelton     Bros.     v.     Harrison 
759.  [1891]    2  Q.   B.  422,  60   L.  J.  Q.  B. 

(f)  S.  19.  74,  C.  A. 
(.(?)    See  note   {d),  last  page. 


MARRIED    WOMEN'S    PROPERTY   ACT.  97 

incidental  remedies  against  property  subject  to  such  restraint  (o)  ; 
though  this  affects  only  the  remedy,  not  the  cause  of  action  (p).  But 
the  Act  of  *1893  gives  power  to  order  costs  to  be  paid  out  of  such  [90 
property  (q)  in  any  action  or  proceeding  instituted  by  or  on  behalf 
of  a  married  woman  (r). 

It  was  settled  under  the  Act  of  1882,  after  some  difference  of 
judicial  opinions,  that  income  of  separate  property  subject  to  restraint 
on  anticipation  is,  when  paid  or  accrued  due,  "  free  money "  and 
liable  to  satisfy  a  judgment  not  of  prior  date  to  the  date  of  such 
income  becoming  payable  (s).  It  has  since  been  held  that  s.  1  of 
the  Act  of  1893  has  the  effect  of  abrogating  this  rule,  and  protecting 
the  income  actually  payable  from  separate  property  which  was  sub- 
ject to  restraint  on  anticipation  at  the  date  of  the  contract,  even 
if  the  restraint  on  the  capital  has  been  removed  by  the  cessation  of 
the  coverture  before  the  date  of  the  judgment:  but  the  soundness  of 
this  decision  appears  exceedingly  questionable  (£),  and  it  is  practically 
certain  that  the  result  is  in  any  case  foreign  to  the  intention  of  the 
Act. 

A  married  woman  cannot  free  herself  from  a  restraint  on  anticipa- 
tion attached  to  any  property  held  for  her  separate  use  by  any  act  of 
her  own,  whether  in  the  nature  of  admission,  estoppel,  or  otherwise  (w). 

Where  the  surviving  husband  of  a  married  woman  takes  her  separate 
estate  iure  mariti,  he  is  at  once  her  "  legal  personal  representative  " 
for  the  purposes  of  the  Act,  and  liable  to  her  creditors  to  the  extent 
of  that  separate  estate  (x). 

*On  the  other  hand  the  Act  does  not  exclude  such  equitable  [91 
rights  and  remedies  against  a  married  woman's  separate  estate  as  were 
previously  recognized.  Where  a  married  woman  carries  on  a  separate 
business,  her  husband  can  sue  her  for  advances  made  during  the 

(o)    Draycott   v.   Harrison    (1886)  or  other  steps  taken  in  a  cause  by  a 

17  Q.  B.  D.   147.     But  he  may  when  married  woman  who  is  a  defendant: 

the  restraint  is  removed  by  the  hus-  but  it  does  apply  to  a,  counterclaim 

band's  death-     Briggs  v.  Ryan  [1899]  by    her:     Hood    Barrs    v.     Cathcart 

2  Ch.  717,  68  L.  J.  Ch.  663  — at  any  [1895]  1  Q.  B.  873,  64  L.  J.  Q.  B. 
rate  a  trustee  in  bankruptcy  may :  ib.  520. 

(v)   Whit  taker  v.  Kershaw  (1890)  (s)    Hood  Barrs  v.   Heriot    [1896] 

45  Ch    Div.  320,  327,  60  L.  J.  Ch.  9.  A.  C.  174,  65  L.  J.  Q.  B.  352. 

(q)   56  &  57  Vict.  c.  63,  s.  2.     S.  1  (*)    Barnett  v.    Howard    [1900]    2 

does  not  make  such  property  liable  to  Q.   B.  784,   69   L.  J.   Q.   B.   955 ;   see 

satisfy  a  contract.     See  the  proviso.  p.  87,  above. 

(r)  Hood  Barrs  v.  Cathcart  [1894]  (u)    Bateman  v.    Faber    [1898]    1 

3  Ch.  376,  63  L.  J.  Ch.  793,  C.  A.  ap-  .Ch.  144,  67  L.  J.  Ch.  130,  C.  A. 
proved,  Hood  Barrs  v.  Heriot  [1897]  (x)    S.  23  of  the  principal  Act,  as 
A    C    177    66  L.  J.  Q.  B.  356.     This  applied  in  Surman  v.  Wharton  [1891] 
does  not  apply  to  motions,  appeals,  1  Q.  B.  491,  60  L.  J.  Q.  B.  233. 

7 


98  CAPACITY    OF    PARTIES. 

coverture  for  the  purposes  of  that  business  (y),  on  the  general  prin- 
ciple that  in  respect  of  her  separate  estate  she  is  treated  as  a  feme 
sole.  And  it  may  still  be  possible  in  some  cases  not  within  the  Act 
to  enforce  a  married  woman's  contract  by  means  of  the  equitable 
df.ctrine  of  imperfect  exercise  of  a  power  (z). 

With  regard  to  a  husband's  liability  for  his  wife's  ante-nuptial 
debts,  the  Court  of  Appeal  has  decided  in  a  considered  judgment  that 
it  is  distinct,  and  not  merely  a  joint  liability  with  the  wife's  separate 
estate;  but  that,  for  the  purposes  of  the  Statute  of  Limitation,  there 
is  not  a  distinct  cause  of  action  accruing  against  the  husband  at  the 
date  of  the  marriage  (a).45 

III.  Lunatics  and  Drunken  Persons. 

It  will  be  convenient  to  consider  these  causes  of  disability  together, 
since  in  our  modern  law  drunken  men  (so  far  as  their  capacity  of 
contracting  is  affected  at  all)  are  on  the  same  footing  as  lunatics. 

Old  law  as  to  lunatics.  The  old  law  as  to  a  lunatic's  acts  was  that  he 
could  not  be  admitted  to  avoid  them  himself,  though  in  certain  cases 
the  Crown,  and  in  other  cases  his  heir  could  (&).  Even  the  fact  of  a 
defendant  having  been  found  lunatic  by  inquisition  was  not  conclusive 
as  against  a  plaintiff  who  was  not  present  at  the  inquisition  (c).  A 
lunatic  who  has  lucid  intervals  has  apparently  always  been  held 
92]  capable  of  Contracting  (among  other  acts)  during  such  inter- 
vals (d).     The  marriage  of  a  lunatic  is  void,46  and  the  same  degree 

(y)    Butler   v.    Butler    (1885)     16  (S)    See  the  judgment  of  Fry  L.J. 

Q.  B.  Div.  374,  55  L.  J.  Q.  B.  55.  in  Imperial  Loan  Go.  v.  Stone  [1892] 

(2)    See   per    Fry   L.J.     Ex   parte  1  Q.  B.  at  p.  601. 

Gilchrist    (1886)     11    Q.    B.    Div.    at  (c)   Hall  v.  Warren  (1804)   9  Ves. 

p.  532.  605,  609,  7  R.  R.  at  p.  308. 

(a)  Beck  v.  Pierce  (1889)  23  Q.  B.  (d)    Beverley's  case    (1603)    4  Co. 

Div.  316,  58  L.  J.  Q.  B.  516.  Rep.  123  0;  Ball  v.  Warren,  last  note. 

45  In  the  various  States  of  America  statutes  have  been  passed  enlarging  the 
rights  of  a  married  woman  to  contract  and  to  acquire  property.  These  stat- 
utes are  summarized  in  1  Parsons  on  Contracts,  (9th  ed. )   417  et  seg. 

46Rawdon  v.  Rawdon,  28  Ala.  565;  Bell  v.  Bennett,  73  Ga.  784;  Medloek  «. 
Merritt,  102  Ga.  212;  Pyott  v.  Pyott,  191  111.  280;  Powell  r.  Powell,  18  Kan. 
371;  Jenkins  r.  Jenkins'  Heirs,  2  Dana,  102;  Middleborough  v.  Rochester,  12 
Mass.  363;  Ward  v.  Dulaney,  23  Miss.  410;  True  v.  Ranney,  21  N.  H.  52; 
Wightman  v.  Wightman,  4  Johns.  Ch.  343 ;  Johnson  v.  Kincade,  2  Ired.  Eq. 
470;  Crump  v.  Morgan,  3  Ired.  Eq.  91;  Sims  v.  Sims,  121  N.  C.  297;  Waymire 
v.  Jetmore,  22  Ohio  St.  271;  Clement  v.  Mattison,  3  Rich.  L.  93;  Foster  v. 
Means,  1  Speer's  Eq.  569. 

But  such  a  marriage  was  held  not  void  for  every  kind  of  insanity  in  Lewis 
r.  Lewis.  44  Minn.  124;  and  in  Cole  v.  Cole,  5  Sneed,  57,  it  was  decided  that  a 
lunatic,  on  regaining  his  senses,  may,  without  a  new  solemnization,  affirm  a 
marriage  celebrated  while  he  was  insane.  But  see  the  last  three  cases  above 
cited.     Consult  1  Bishop,  Mar.  &  Div.,  §  135,  sqq. 


LUNACY  AND  DRUNKENNESS.  99 

of  sanity  is  required  for  marriage  as  for  making  a  will  or  for  any 
other  purpose,  though  the  burden  of  proof  is  on  the  party  alleging 
insanity  (e).  Marriage,  however,  is  a  peculiar  transaction,  and 
the  exceptional  treatment  of  it  in  our  law,  though  perhaps  histori- 
cally due  to  the  influence,  in  ecclesiastical  Courts,  of  more  gen- 
eral rules  of  civil  or  canon  law,  may  well  be  justified  on  grounds 
of  convenience. 

Liability  for  necessaries,  &c.  It  is  equally  settled  that  a  lunatic  or  his 
estate  may  be  liable  quasi  ex  contractu  for  necessaries  supplied  to  him 
in  good  faith  (/)  ;47  and  this  applies  to  all  expenses  necessarily  incurred 
for  the  protection  of  his  person  or  estate,  such  as  the  cost  of  the  pro- 
ceedings in  lunacy  (g).4S  A  person  who  supplies  necessaries  to  a  luna- 
tic or  provides  money  to  be  expended  in  necessaries  knowing  him  to 
be  such  can  have  an  action  against  the  lunatic  if  he  incurred  the  ex- 
pense with  the  intention,  at  the  time,  that  it  should  be  repaid.  The 
circumstances  must  be  such  as  to  justify  the  Court  in  implying 
an  obligation  to  repay;  there  is  no  doubt  that  such  an  obligation 
may  exist  in  a  proper  case  (A).49  A  husband  is  liable  for  neces- 
saries supplied  to  his  wife  while  he  is  lunatic;  for  the  wife's 
authority  to  pledge  his  credit  for  necessaries  is  not  a  mere  agency, 
but  springs  from  the  relation  of  husband  and  wife  and  is  not  re- 
voked by  the  husband's  insanity  (t).B0  In  the  same  way  drunken- 
ness or  lunacy  would  be  no  answer  to  an  action  for  money  had  and 

(e)  Hancock  v.  Peaty  (1867)  L.  R.  614.  As  to  goods  sold  and  delivered, 
1   P.   &   D.   335,   341,   36  L.   J.   Mat.        Sale  of  Goods  Act,  1893,  s.  2. 

57;  with  which  Durham  v.  Durham  (g)  Williams  v.  Wentworth  (1842) 

(1885)    10  P.  D.  80  does  not  conflict  5  Beav.  325;  Stedmanv.  Hart  (1854) 

on  this  point.    The  statute  15  Geo.  2,  Kay,  607. 

e.  30,  is  rep.  by  the  Stat.   Law  Re-  (h)  Re  Rhodes  (1890)  44  Ch.  Div. 

vision  Act,  1873.  94,  59  L.  J.  Ch.  298. 

(f)  Bagster  v.  Earl  of  Portsmouth  (i)  Read  v.  Legard  (1851)  6  Ex. 
(1826)  5  B.  &  C.  170,  s.  c.  more  fully,  636,  20  L.  J.  Ex.  309. 

nom.  Baxter  v.  Earl  P.,  7  D.  &  B. 

47  Ex  parte  Northington,  37  Ala.  496;  Davis  v.  Tarver,  65  Ala.  98,  102; 
College  v.  Wilkinson,  108  Ind.  314,  320;  Coleman  v.  Prazer,  3  Bush,  300,  310; 
McKee's  Adm'r  v.  Purnell,  18  Ky.  L.  Rep.  879;  Sawyer  v.  Lufkin,  56  Me. 
30S;  Kendall  v.  May,  10  Allen,  59;  Reando  v.  Misplay,  90  Mo.  251;  Sceva  v. 
True,  53  N.  H.  627;  Van  Horn  v.  Hann,  39  N.  J.  L.  207;  Richardson  v.  Strong, 
13  Ired.  L.  106;  Surles  v.  Pipkin,  69  N.  C.  513;  Hosier  v.  Beard,  54  Ohio  St. 
398,  403;  La  Rue  v.  Gilkyson,  4  Pa.  St.  375. 

48  Hallett  v.  Oakes,  1  Cush.  296 ;  McCrillis  v.  Bartlett,  8  N.  H.  569 ;  Carter 
17.  Beckwith,  128  N.  Y.  312;  In  re  Meares,  10  Ch.  D.  552. 

49  See  Re  Renz,  79  Mich.  216. 

BO  Booth  v.  Cottingham,  126  Ind.  431 ;  Pearl  v.  McDowell,  3  J.  J.  Marsh. 
658  ■  Shaw  v.  Thompson,  16  Pick.  198.  Or  for  his  wife's  funeral  expenses. 
Re  Stewart,  14  N.  J.  L.  Jl.  244. 


100  CAPACITY    OF    PARTIES. 

received,  or  for  the  price  of  goods  furnished  to  a  drunken  or  insane 
93]  man  and  kept  by  him  after  he  had  recovered  his  ^reason:  in  this 
last  case,  however,  his  conduct  in  keeping  the  goods  would  be  evi- 
dence of  a  new  contract  to  pay  for  them  (k). 

There  is  also  express  authority  (which  one  would  think  hardly 
necessary)  to  show  that  contracts  made  by  a  man  of  sound  mind 
who  afterwards  becomes  lunatic  are  not  invalidated  by  the  lunacy  (I). 
It  seems  that  an  agency  is  determined  by  the  principal  becoming 
insane,  except  as  to  persons  who  deal  in  good  faith  with  the  agent 
in  ignorance  of  the  principal's  insanity  (m).51 

No  intelligible  reason  is  given  for  the  early  rule  that  a  lunatic 
(or  person  who  had  been  under  temporary  mental  incapacity)  should 
not  be  received  "to  disable  his  own  person,"  and  it  has  long  been 
discarded.  Suggestions,  but  only  suggestions,  may  be  found  in 
various  later  cases  to  the  effect  that,  on  the  contrary,  a  lunatic's 
acts  are  absolutely  void. 

Present  law:  Contract  voidable  if  the  lunacy,  &c,  known  to  other  party. 
The  modern  rule,  however,  as  to  the  contract  of  a  lunatic  or 
drunken  man  who  by  reason  of  lunacy  or  drunkenness  is  not  capable 
of  understanding  its  terms  or  forming  a  rational  judgment  of  its 
effect  on  his  interests  is  that  such  a  contract  is  voidable  at  his 
option,  but  only  if  his  state  is  known  to  the  other  party.  The  de- 
fendant who  sets  up  his  own  incapacity  as  a  defence  must  prove  not 
only  that  incapacity  but  the  plaintiff's  knowledge  of  it  at  the  date 
of  the  contract  (n).52 

(7c)  Gore  v.  Gibson  (1845)   13  M.  &  equity,  but  without  deciding  whether 

W.  623,  14  L.  J.  Ex.  151.  there  was  a  contract  at  law:     Niell 

(1)    Owen  v.  Dauies,  1  Ves.  Sr.  82.  v.    Morleij    (1804)    9    Ves.    478.     The 

(m)    See  Dreiv  v.   Nunn    (1879)    4  rule    is    apparently    peculiar    to    the 

Q.  B.  Div.  601,  48  L.  J.  Q.  B.  591.  Common  Law,  and  is  impugned  by  a 

(n)     Holton   v.    Camroux,    in    Ex.  learned    civilian    as    unjust    to    the 

Ch.    (1848)    2  Ex.   487,  4  Ex.   17,  18  lunatic:  Prof.  Goudy,  "Contracts  by 

L.  J.  Ex.  68,  356 ;  Imperial  Loan  Co.  Lunatics,"    L.    Q.    R.    xvii.    147.      See 

v.  Stone  [1892]   1  Q.  B.  599,  61  L.  J.  contra  Mr.  Rankine  Wilson,  "  Lunacy 

Q.  B.  449,  C.  A.     The  same  principle  in   relation    to    Contract,    Tort,    and 

had  long  before  been  acted  upon  in  Crime,"  L.  Q.  R.  xviii.  21. 

Bl  Davis  v.  Lane,  10  N.  H.  156;  Matthiessen,  etc.,  Co.  v.  McMahon's  Adm'r, 
38  N.  J.  L.  536;  Hill  v.  Day,  34  N.  J.  Eq.  150,  157. 

52  The  American  law  exhibits  considerable  conflicts  on  this  subject. 

I.  Some  decisions  hold  that  if  a  man  is  so  drunk,  idiotic,  or  insane  as  not  to 
know  what  he  is  about  his  contract  is  absolutely  void.  Edwards  v.  Davenport, 
4  McCrary,  34;  Caulkins  r.  Fry,  35  Conn.  170;  Reinskopf  v.  Rogge,  37  Ind. 
207;  Atw'ell  v.  Jenkins,  163  Mass.  362;  Burke  v.  Allen,  29  N.  H.  106;  Berkly 
v.  Cannon,  4  Rich.  L.  136;  Hunter  v.  Tolbard,  47  W.  Va.  258;  Bursinger  v. 
Bank  of  Watertown,  67  Wis.  75.  See  also  Chicago,  &c.  Ry.  v.  Lewis,  109 
111.   120. 

Similarly  a  lunatic's  power  of  attorney  has  been  held  absolutely  void.    Dex- 


LUNACY  AND  DRUNKENNESS.  101 

In  Motion  v.  Camroux  the  action  was  brought  by  *adminis-  [94 
trators  to  recover  the  money  paid  by  the  intestate  to  an  assurance 
and  annuity  society  as  the  price  of  two  annuities  determinable  with 
his  life.  The  intestate  was  of  unsound  mind  at  the  date  of  the 
purchase,  but  the  transactions  were  fair  and  in  the  ordinary  course 
of  business,  and  his  insanity  was  not  known  to  the  society.  It 
was  held  that  the  money  could  not  be  recovered;  the  rule  being 
laid  down  in  the  Exchequer  Chamber  in  these  terms :  "  The  modern 
cases  show  that  when  that  state  of  mind  was  unknown  to  the  other 
contracting  party,  and  no  advantage  was  taken  of  the  lunatic,  the 
defence  cannot  prevail,  especially  where  the  contract  is  not  merely 
executory  but  executed  in  the  whole  or  in  part,  and  the  parties 
cannot  be  restored  altogether  to  their  original  positions." 

ter  r.  Hall,  15  Wall.  9;  Rigney  t>.  Plaster,  88  Fed.  Rep.  686,  97  Fed.  Rep.  12; 
Elias  r.  Enterprise  Assoc,  46  S.  C.  188.  Contra,  Williams  v.  Sapieha,  94 
Tex.  430. 

Similarly  a  lunatic's  deed  also,  has  been  held  absolutely  void.  German 
Saving  Soc.  v.  Lashmutt,  67  Fed.  Rep.  399;  Thompson  v.  New  England  Co., 
110  Ala.  400;  Dougherty  v.  Powe,  127  Ala.  577;  Wilkins  v.  Wilkinson,  129 
Ala.  279;  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  Farley  v.  Parker,  6  Oreg.  105; 
Estate  of  Desilver,  5  Rawle,  111;  Rogers  v.  Walker,  6  Pa.  St.  371.  And  see 
Dexter  v.  Hall,  15  Wall.  9;  Edwards  v.  Davenport,  4  McCrary,  34;  Valpey 
v.  Rea,  130  Mass.  384;  Brigham  v.  Fayerweather,  144  Mass.  48. 

II.  The  weight  of  American  authority,  however,  does  not  go  so  far.  A  con- 
tract made  by  one  who  is  drunk  or  of  unsound  mind,  so  as  to  be  incapable  of 
understanding  its  effect,  is  generally  held  not  void,  but  voidable  at  his  option. 
Wright  v.  Waller,  127  Ala.  557;  Coburn  r.  Raymond,  76  Conn.  484;  Orr  v. 
Equitable  Mortgage  Co.,  107  Ga.  499;  Woolley  v.  Gaines,  114  Ga.  122;  Joest 
v.  Williams,  42  Ind.  565 ;  Musselman  v.  Cravens,  47  Ind.  1 ;  Railway  Co.  v. 
Herr,  135  Ind.  591;  Mansfield  v.  Watson,  2  la.  Ill;  Allen  v.  Berryhill,  27  la. 
534;  Van  Patten  v.  Beals,  46  la.  62;  Seaver  v.  Phelps,  11  Pick.  304;  Car- 
penter v.  Rodgers,  61  Mich.  384;  Broadwater  f.  Dame,  10  Mo.  277 ;  Ingra- 
ham  v.  Baldwin,  9  N.  Y.  45;  Bush  v.  Breinig,  113  Pa.  310.  Or  at  the  option 
of  his  administrator.  Bunn  v.  Postell,  107  Ga.  490.  The  deed  of  a  lunatic 
is  thus  generallv  held  not  void  but  only  voidable.  Luhrs  v.  Hancock,  181 
U.  S.  567,  574;"  Woolley  v.  Gaines,  114  Ga.  122;  Scanlan  v.  Cobb,  85  111. 
296;  Nichol  v.  Thomas,  53  Ind.  42;  Freed  v.  Brown,  55  Ind.  310;  Schuff  v. 
Ransom,  79  Ind.  458;  Boyer  v.  Berriman,  123  Ind.  451;  Harrison  v.  Otley,  101 
la.  652;  Gribben  v.  Maxwell,  34  Kan.  8;  Hovey  v.  Hobson,  53  Me.  451;  Allis 
v.  Billings,  6  Met.  415 ;  Riley  v.  Carter,  76  Md.  581 ;  Arnold  v.  Richmond  Iron 
Works,  1  Gray,  434;  Gibson  v.  Soper,  6  Gray,  279;  Howe  v.  Howe,  99  Mass. 
88,  98;  Rogers  v.  Blackwell,  49  Mich.  192  (semble)  ;  Moran  r.  Moran,  106 
Mich.  8;  Riggan  v.  Green,  80  N.  C.  236;  Elston  v.  Jasper,  45  Tex.  409.  See 
also  Hardy  v.  Dyas,  203  111.  211;  Sheehan  r.  Allen,  67  Kan.  712. 

It  was  held  in  Coburn  v.  Raymond,  76  Conn.  484,  and  Mckenzie  v.  Donnell, 
151  Mo.  431,  that  in  order  to  avoid  his  deed  a  lunatic  must  restore  the  con- 
sideration. But  see  contra,  Hovey  r.  Hobson,  53  Me.  451,  453 ;  Bates  v. 
Hyman,  (Miss.)  28  South.  Rep.  567.  and  (where  he  was  unable  to  do  so)  Gib- 
son r.  Soper,  6  Gray.  279;  Rea  r.  Bishop,  41  Neb.  202. 

III.  In  some  jurisdictions  where  a  person  drunk  or  insane  contracts  with 
one  who  is  ignorant  of  his  condition,  if  the  contract  be  fair  and  has  been  exe- 
cuted, or  so  far  executed  that  the  parties  cannot  be  replaced  in  statu  auo, 
it  will  be  treated  as  binding.  Brodrib  v.  Brodrib,  56  Cal.  563 ;  Wilder  v. 
Weakly's  Est.,  34  Ind.  181;  Fay  v.  Burditt,  81  Ind.  433;  Copenrath  v.  Kienby, 


102  CAPACITY    OF    PAETIES. 

The  context  shows  that  the  statement  was  considered  equally  ap- 
plicable to  lunacy  and  drunkenness,  and  the  law  thus  stated  in- 
volves though  it  does  not  expressly  enounce  the  proposition  that 
the  contract  of  a  lunatic  or  drunken  man  is  not  void  but  at  most 
voidable.  The  general  rules  as  to  the  rescission  of  a  voidable  con- 
tract are  then  applicable,  and  among  others  the  rule  that  it  must 
be  rescinded,  if  at  all,  before  it  has  been  executed,  so  that  the  for- 
mer state  of  things  cannot  be  restored:  which  is  the  point  actually 
decided.     The  decision  itself  was  fully  accepted  and  acted  on  (o), 

(o)  Beavan  v.  M'Donnell  (1854)  9  486,  495,  revg.  s.  c.  7  Ha.  394;  Elliot 
Ex.  309,  i3  L.  J.  Ex.  94;  Price  v.  v.  Ince  (1857)  7  D.  M.  G.  475,  488, 
Berrington    (1850-1)     3    Mae.    &    G.       26  L.  J.  821. 

83  Ind.  18;  Insurance  Co.  v.  Blankenship,  94  Ind.  535,  544;  Behrens  v. 
McKenzie,  23  la.  333;  Abbott  v.  Creal,  56  la.  175;  Bokemper  v.  Hazen,  96 
la.  221;  Gribben  v.  Maxwell,  34  Kan.  8;  Flach  v.  Gottschalk  Co.,  88  Md. 
368;  Shoulters  v.  Allen,  51  Mich.  529;  Sehaps  v.  Lehneiy  54  Minn.  208;  Mat- 
thiessen,  etc.,  Co.  r.  McMahon's  Adm'r,  38  N.  J.  L.  537;  Young  v.  Stevens,  48 
N.  H.  133;  Insurance  Co.  v.  Hunt,  79  K.  Y.  541;  Hosier  v.  Beard,  54  Ohio  St. 
398;  Beals  v.  See,  10  Pa.  56;  Kneedler's  Appeal,  92  Pa.  428;  Cooney  v. 
Lincoln,  21  R.  I.  246;  Simnis  i\  McClure,  8  Rich.  Eq.  286. 

And  this  principle  applies  to  the  case  of  a  deed  made  by  a  lunatic.  Ashcraft 
v.  De  Armond,  44  la.  229;  Rusk  r.  Fenton,  14  Bush,  490;  Yauger  r.  Skinner, 
14  N.  J.  Eq.  389 ;  Riggan  v.  Green,  80  N.  C.  236.  Contra,  Nichol  v.  Thomas, 
53  Ind.  42 ;  Hovey  v.  Hobson,  53  Me.  451,  55  Me.  256,  275 ;  Bates  v.  Hyman, 
(Miss.)  28  South.  Rep.  567;  Gilgallon  v.  Bishop,  46  N.  Y.  App.  Div.  350; 
Crawford  v.  Seovell,  94  Pa.  48. 

The  cases  last  cited,  in  which,  it  is  submitted,  the  question  did  not  fairly 
arise,  are  based  upon  Gibson  r.  Soper,  6  Gray,  279,  where  it  was  held  that 
"  an  insane  person  or  his  guardian  may  bring  an  action  to  recover  land  of 
which  a  deed  was  made  by  him  while  insane,  which  deed,  has  not  since  been 
ratified  or  affirmed,  without  first  restoring  the  consideration  to  the  grantee." 
But  it  does  not  appear  in  that  case  that  the  grantee  was  ignorant  of  the  grant- 
or's lunacy.  See  on  the  other  hand,  Scanlan  v.  Cobb,  85  111.  296 ;  Eaton  r. 
Eaton,  37  N.  J.  L.  108,  117,  118.  In  Seaver  r.  Phelps,  11  Pick.  304,  an  action 
of  trover  for  a  promissory  note  pledged  to  the  defendant  by  the  plaintiff 
while  insane,  it  was  held  not  to  be  a  defense  "  that  the  defendant  at  the  time 
when  he  took  the  pledge  was  not  apprised  of  the  plaintiff's  being  insane,  and 
had  no  reason  to  suspect  it,  and  did  not  overreach  him,  nor  practice  any  fraud 
or  unfairness."  But  the  report  does  not  disclose  the  nature  of  the  contract 
upon  which  the  pledge  was  made. 

Where  the  consideration  does  not  inure  to  the  benefit  of  the  lunatic,  the 
contract  has  been  held  voidable,  although  fair  in  all  respects,  and  executed  by 
the  other  party  in  ignorance  of  the  lunatic's  condition.  Insurance  Co.  r. 
Blankenship,  94  Ind.  535 ;  College  v.  Wilkinson,  108  Ind.  315.  But  see  Abbott 
v.  Creal,  56  la.  175;  Blount  i?.  Spratt,  113  Mo.  48;  Bank  v.  Sneed,  97 
Tenn.  120. 

So  negotiable  paper  executed  by  a  lunatic  is  binding  in  the  hands  of  an  inno- 
cent holder  for  value,  if  the  lunatic  received  a  proper  consideration  therefor. 
Bank  v.  Moore,  78  Pa.  St.  407 ;  Snyder  v.  Laubach,  ( S.  C.  Pa. )  7  W.  N.  C.  464, 
9  C.  L.  J.  496  (contra,  Hosier  v.  Beard,  54  Ohio  St.  398).  but  is  not  binding 
if  he  did  not;  McClain  v.  Davis,  77  Ind.  419;  Moore  v.  Hershey,  90  Pa.  St. 
196;  Wirebach  v.  Bank,  97  Pa.  543. 

Drunkenness  of  the  maker  was  held  no  defense  to  a  note  in  the  hands  of  a 
bona  fide  holder  in  Caulkins  v.  Fry,  35  Conn.  170 ;  Miller  v.  Finley,  26  Mich. 
249;  Bank  v.  McCoy,  69  Pa.  St.  204;  McSparran  , .  Neeley,,  91  Pa.  St.  17. 

Insanity  of  the  indorser  at  the  time  of  the  indorsement  has  been  held  to  be  a 


LUNACY  AND  DRUNKENNESS.  103 

though  the  merely  voluntary  acts  of  a  lunatic,  e.  g.,  a  voluntary 
disentailing  deed  (a  class  of  acts  with  which  we  are  not  here  con- 
cerned) remain  invalid  (p). 

Development  of  the  doctrine:  Matthews  v.  Baxter.  The  complete  ju- 
dicial interpretation  of  the  result  of  Molton  v.  Cwmroux  (q)  was  given 
in  Matthews  v.  Baxter  (r).  The  declaration  was  for  breach  of 
contract  in  not  completing  a  purchase:  plea,  that  at  the  time  of 
making  the  alleged  contract  the  defendant  was  so  drunk  as  to  be 
incapable  of  transacting  business  or  knowing  what  he  was  about,  [95 
as  the  plaintiff  well  knew :  replication,  that  after  the  defendant 
became  sober  and  able  to  transact  business  he  ratified  and  confirmed 
the  contract.  As  a  merely  void  agreement  cannot  be  ratified,53  this 
neatly  raised  the  question  whether  the  contract  were  void  or  only 
voidable:  the  Court  held  that  it  was  only  voidable,  and  the  replica- 
tion therefore  good.54 

Imperial  Loan  Co.  v.  Stone.  In  Imperial  Loan  Co.  v.  Stone  (s)  a 
defendant  sued  on  a  promissory  note  set  up  the  defence  of  insanity  at 
the  time  of  making  the  note.  The  jury  found  that  he  was  insane 
when  he  signed  the  note,  and  could  not  agree  whether  the  plaintiffs' 
agent,  then  present,  knew  of  his  insanity  or  not.  It  was  held  that 
this  could  not  be  taken  as  a  verdict  for  the  defendant,  but  there  must 
be  a  new  trial.  The  Court  was  unanimous,  and  the  decision  may  be 
taken  as  finally  settling  the  law  if  there  was  still  any  room  for  doubt. 
It  also  shows  that  a  distinction  formerly  suggested  between  executed 
and  executory  contracts  is  not  tenable. 

The  special  doctrine  of  our  Courts  with  regard  to  partnership 
(which  is  a  continuing  contract)  is  quite  in  accordance  with  this: 
it  has  long  been  established  that  the  insanity  of  a  partner  doe«  not 
of  itself  operate  as  a  dissolution  of  the  partnership,  but  is  only  a 
ground  for  dissolution  by  the  court.55 

(p)   Elliot  v.  Ince,  last  note.  Q.  B.  449,  C.  A.     It  does  not  appear 

(q)  Note  (n)  last  *page.  from  the  argument  as  reported  how 

(r)    (1873)    L.   R.    8    Ex.    132,   42  counsel  for  the  defendant  dealt  with 

L.  J.  Ex.  73.  Molton  v.  Camroux,  which  was  bind- 

(*')    [1892]    1   Q.  B.  599,  61  L.  J.  ing  on  the  Court. 

defense  to  the  maker  of  a  note  at  the  suit  of  the  indorsee.  Burke  v.  Allen,  29 
N.  H.  106;  Peaslee  v.  Bobbins,  3  Met.  164  (explained  in  Carrier  v.  Sears,  4 
Allen,  336)  ;   Hannahs  v.  Sheldon,  20  Mich.  278. 

53Spence  v.  Wilmington  Cotton  Mills,  115  N.  C..210. 

54  Oakley  v.  Shelley,  129  Ala.  467;  Hawley  v.  Howell,  60  la.  79;  Arnold 
V.  Richmond  Iron  Works,  1  Gray,  434;  Carpenter  v.  Rodgers,  61  Mich.  384. 

55  Raymond  v.  Vaughan,  128  III.  256.  But  it  was  held  in  Isler  r.  Baker,  6 
Humph.  85,  that  an  inquest  of  lunacy  found  against  one  partner  dissolved  the 
partnership  ipso  facto. 


104  CAPACITY    OF    PARTIES. 

Partial  delusions  compatible  with  capacity  for  contracting.      It    is    to    be 

noted  that  the  existence  of  partial  delusions  does  not  necessarily 
amount  to  insanity  for  the  purposes  of  this  rule.  The  judge  or 
jury,  as  the  case  may  be,  must  in  every  case  consider  the  practical 
question  whether  the  party  was  incompetent  to  manage  his  own 
affairs  in  the  matter  in  hand  (t).56 

96]  *YV.  Convicts,  etc. 

Disability  of  convicts.  At  common  law  convicted  felons  (as  also 
outlaws)  could  not  sue,  but  remained  liable  to  be  sued,  on  contracts 
made  by  them  during  outlawry  or  conviction  (u).  Since  the  Act 
to  abolish  forfeitures  for  treason  and  felony,  convicts  are  incapable 
of  suing  or  making  any  contract,  except  while  they  are  lawfully 
at  large  under  any  licence  (z).5T 

Alien  enemies.  Alien  enemies,  as  we  have  seen  above,  are  disabled 
from  suing  in  an  English  Court  even  if  the  cause  of  action  arose 
in  time  of  peace  (y),58  but  not  from  binding  themselves  by  contract 
during  war  between  their  country  and  England,  nor  from  enforcing 
such  a  contract  after  the  war  has  ceased  (z),59  unless  meanwhile 
the  right  of  action  has  been  barred  by  the  Statute  of  Limitation. 

(t)    Jenkins   v.   Morris    (1880)     14  (x)    33   &  34  Vict.  c.  23,  ss.  8,  30. 

Ch.    Div .   674;     compare    remark    of  (y)    Le  Bret  v.  Papillon    (1804)    4 

Bramwell    L.J.     in    Drew    v.     'Sunn,  East,  502,  7  R.  R.  618. 

(1879)    4   Q.    B.   Div.   at   p.    669,   48  (s)    De  Wahl  v.  Braune   (1856)    1 

L.  J.  Q.  B.  591.  H.  &  X.   178,  25  L.  J.  Ex.  343:   note 

(«)   Dicey  on  Parties,  4.  (z),  ante,  p.  *83. 

56  In  the  absence  of  fraud,  mere  drunkenness  or  lack  of  mental  capacity 
is  not  enough  to  make  the  transaction  voidable,  unless  it  be  so  great  as  to 
render  the  person  affected  incapable  of  understanding  the  effect  of  the 
transaction.  Bates  r.  Ball,  72  111.  108;  English  v.  Porter,  109  111.  285; 
Harbison  r.  Lemon,  3  Blackf.  51;  Jenners  v.  Howard,  6  Blackf.  240;  Wil- 
cox r.  Jackson,  51  la.  208;  Lassiter's  Adm.  v.  Lassiter's  Ex.,  23  Ky.  L. 
Rep.  481;  Hovey  v.  Hobson,  55  Me.  256;  Hovey  r.  Chase,  52  Me.  304; 
Johns  r.  Fritchey,  39  Md.  258;  Farnham  r.  Brooks,  9  Pick.  212,  220; 
Wright  r.  Fisher,  65  Mich.  275:  Dennett  r.  Dennett,  44  N.  II.  531;  Lozear 
r.  Shields,  23  N.  J.  Eq.  509;  Eaton  v.  Eaton,  37  N.  J.  L.  108,  113; 
Odell  r.  Buck,  21  Wend.  142;  Cooney  v.  Lincoln,  21  R.  I.  246;  Wells  v. 
Houston,  23  Tex.  Civ.  App.  629  ;  Miller  r.  Rutledge,  82  Va.  863. 

57  See  Est.  of  Nerac,  35  Cal.  392. 

sawhelan  r.  Cook.  29  Md.  1;  Sanderson  v.  Morgan,  39  N.  T.  231. 
68  Kershaw  v.  Kelsey,  100  Mass.  561;  Brown  v.  Gardner,  4  Lea,  145. 


AGENCY.  105 


PART  II. 


Extension  of  powers.  We  now  come  to  the  extensions  by  special  in- 
stitutions of  the  ordinary  power  of  making  contracts.  And  first  of 
agency. 

I.     Agency. 

Analysis  of  contracts  by  agent.  We  have  not  here  to  do  with  the  re- 
lations created  between  principal  and  agent  by  agency  regarded  as 
a  species  of  contract,  but  only  with  the  manner  in  which  rights 
and  duties  accrue  to  the  principal  through  the  dealings  of  the  agent. 
We  must  also  distinguish  cases  of  real  agency  from  those  where  the 
agency  is  apparent  only,  and  we  shall  further  notice,  for  the  sake 
of  completeness,  the  position  of  the  true  or  apparent  agent  as  regards 
third  persons. 

*A  person  who  contracts  or  professes  to  contract  on  behalf  of  a  [97 
principal  may  be  in  any  one  of  the  following  positions : 

1.  Agent  having  authority  (whether  at  the  time  or  by  subse- 
quent ratification)   to  bind  his  principal. 

(A)  known  to  be  an  agent 

(tt)  for  a  principal  named; 
(/?)   for  a  principal  not  named. 

(B)  not  known  to  be  an  agent  (a). 

2.  Holding  himself  out  as  agent,  but  not  having  authority  to 
bind  his  principal. 

(A)  where  a  principal  is  named 

(a)  who  might  be  bound,  but  does  not  in  fact  au- 
thorize or  ratify  the  contract; 
(p)   who  in  law  cannot  be  bound. 

(B)  where  the   alleged  principal  is  not  named. 

Authority  of  agent,  its  constitution  and  termination.  1.  As  a  rule  an 
agent  may  be  appointed  without  any  special  formality;  though 
an  agent  to  execute  a  deed  must  himself  be  appointed  by  deed, 
and  in  certain  cases  the  appointment  is  required  by  the  Statute 
of  Frauds  to  be  in  writing.  Bevocation  of  an  agent's  authority 
takes  place  either  by  the  principal's  actual  withdrawal  of  his 
will  to  be  represented  by  the  agent   (which  may  be  known  either 

(a)    Since   the   cases   of   Colder  v.  that   the   true  leading   distinction   is 

Dobell,  Fleet  v.  Murton,  and  Hutch-  whether  the  agent  is  known  to  be  an 

inson     v.      Tatham      (see     following  agent    or    not,    rather    than    whether 

notes),  it  may  perhaps  be  considered  the  principal  is  named  or  not. 


106  CAPACITY    OF    PARTIES. 

by  express  declaration  or  by  conduct  manifesting  the  same  inten- 
tion) or  by  his  dying  or  ceasing  to  be  sui  iuris,  and  thus  becoming 
incapable  of  continuing  it  (&).  In  these  last  cases  the  authority 
is  said  to  be  revoked  by  the  act  of  the  law.  "  The  termination  of 
the  authority  of  an  agent  does  not,  so  far  as  regards  the  agent,  take 
98]  effect  *before  it  becomes  known  to  him,  or,  so  far  as  regards 
third  persons,  before  it  becomes  known  to  them"  (c).60  It  is  held 
in  England,  but  anomalously,  that  this  rule  does  not  apply  to  revoca- 
tion by  the  death  of  the  principal  (d).61  It  does  apply  in  the  case 
of  the  principal  becoming  insane,62  and  it  may  perhaps  yet  be  de- 
cided that  in  the  case  of  death  the  principal's  estate  is  liable  to  the 
other  party  for  the  actual  loss  incurred  by  the  principal's  representa- 
tion—  which,  as  regards  him,  was  a  continuing  one  at  the  date  of 
the  contract— that  the  agent  was  authorized  (e). 

(6)    On  the   whole  subject  see  at  2008,  200D,  and  German  Civil  Code, 

large  Story  on  Agency,   §§  474,  sqq.  ss.  167  —  171;  and  see  Kent,  Comm. 

(c)  I.  C.  A.  208,  cp.  Story  on  2.  646.  The  dissolution  of  a  com- 
Agency,  §  470;  Trueman  v.  Loder  pany  has  the  same  effect  as  the  death 
(1840)    11  A.  &  E.  589,  52  R.  R.  451.  of  a  natural  person:     Salton  v.  New 

(d)  Blades  v.  Free  ■(  1829)  9  B.  &  Beeston  Cycle  Co.  [1900]  1  Ch.  43, 
C.  167,  32  R.  R.  620;  Smout  v.  llbery  69  L.  J.  Ch.  20. 

(1843)     10    M.    &    W.    11.      Contra,  (e)   Drew  v.  Nunn   (1879)   5  Q.  B. 

I.  C.  A.  s.  208   (Illust.  c),  Code  Nap.       Div.  661 ;  see  per  Brett  L.J.  at  p.  068. 

60  Hatch  v.  Coddington,  95  U.  S.  48 ;  Insurance  Co.  v.  McCain,  96  U.  S.  84 ; 
Johnson  v.  Christian,  128  U.  S.  374;  Fellows  r.  Steamboat  Co.,  38  Conn.  197; 
Diversy  v.  Kellogg,  44  111.114;  Ulrich  v.  McCormick,  66  Ind.  243;  Jones  v. 
Hodgkins,  61  Me.  480;  Packer  v.  Hinckley  Locomotive  Works,  122  Mass.  484; 
Robertson  v.  Cloud,  47  Miss.  208;  Beard  v.  Kirk,  11  N.  H.  379;  McNeilly  v. 
Insurance  Co.,  66  N.  Y.  23;  Barkley  t'.  Railroad  Co.,  71  N.  Y.  205;  Bras- 
well  r.  Insurance  Co.,  75  N.  C.  8;  Morgan  v.  Stell,  5  Binn.  305;  Tier  v.  Lamp- 
son,  35  Vt.  179. 

ei  Long  r.  Thayer,  150  .U.  S.  520;  Ferris  p.  Irving,  28  Cal.  645;  Travers  v. 
Crane,  15  Cal.  12;  Lewis  v.  Kerr,  17  la.  73;  Harper  v.  Little,  2  Me.  14; 
Marlett  v.  Jackman,  3  Allen,  287 ;  Clayton  v.  Merrett,  52  Miss.  353 ; 
Weber  v.  Bridgman,  113  N.  Y.  600;  Farmers'  Trust  Co.  v.  Wilson,  139  N.  Y. 
284;  Riggs  v.  Cage,  2  Humph.  350;  Cleveland  v.  Williams,  29  Tex.  204;  Davis 
v.  Bank,  46  Vt.  728.  It  has  been  held  in  Alabama,  however,  that  where  an 
offer  was  mailed  by  an  agent  before  his  principal's  death,  a  contract  was  made 
by  acceptance  of  the  offer  after  the  principal's  death,  the  death  being  unknown 
to  the  acceptor.  Garrett  v.  Trabue,  82  Ala.  227 ;  Davis  v.  Davis,  93  Ala. 
173.  And  more  generally  it  has  been  held  "  that  a  bona  fide  transaction  by 
an  agent,  not  necessarily  to  be  done  in  the  name  of  the  principal,  as  a 
deed,  etc.,  but  a  matter  in  pais  merely,  done  after  the  death  of  the  principal, 
but  in  ignorance  of  the  event,  and  within  the  scope  of  the  agency,  is  neverthe- 
less, valid  and  binding  on  the  representatives  of  the  principal."  Ish  v.  Crane, 
13  Ohio  St.  574;  S.  C,  8  Ohio  St.  520.  And  see  Dick  v.  Page,  17  Mo.  234; 
Deweese  v.  Muff,  57  Neb.  17;  Bank  v.  Vanderhorst,  32  N.  Y.  553;  Cassiday  ». 
McKenzie,  4  W.  &  S.  282.  Ish  r.  Crane  was,  however,  disapproved  in  Mc- 
Claskey  r.  Barr,  50  Fed.  Rep.  712,  714.  See  an  article  by  Joseph  Wilby,  Esq., 
19  A.  L.  Reg.  401. 

ea  Matthies.sen,  etc.,  Co.  v.  McMahon's  Adm'r,  38  N.  J.  L.  536 ;  Hill  v.  Day, 
34  N.  J.  Eq.  150.  157;  Davis  v.  Lane,  10  N.  H.  156;  Merritt  v.  Merritt,  43 
N.  Y.  App.  Div.  68. 


CONTRACTS   OF   AGENTS.  107 

Katification  must  in  every  case  be  within  a  reasonable  time,  and 
where  a  time  is  expressly  limited  within  which  an  act  must  be 
done,  and  an  unauthorized  person  purports  to  do  it  on  behalf  of  the 
principal  within  that  time,  a  ratification  after  the  time  has  expired 
will  not  serve  (/). 

Authority  conferred  by  ratification  relates  back,  as  against  the 
other  party  as  well  as  the  principal,  to  the  date  of  the  act  done  by 
the  agent  (g).63 

i.  Agent  for  existing  principal.  In  all  cases  where  there  is  an  au- 
thorized agent  dealing  on  behalf  of  a  real  principal,  the  intention 
of  the  parties  determines  whether  the  agent,  or  the  principal,  or 
both,  -are  to  be  liable  on  the  contract  and  entitled  to  enforce  it. 
The  question  is  to  whom  credit  was  really  given  ( h)  .**  And  *the  [99 
general  rules  laid  down  on  the  subject  furnish  only  provisional 
answers,  which  may  be  displaced  (subject  to  the  rules  as  to  admissi- 
bility of  evidence)  by  proof  of  a  contrary  intention. 

A.  .Known  to  be  an  agent:  contract  with  principal  ab  initio.  When  the 
agent  is  known  to  be  an  agent,  a  contract  is  made,  and  knowingly 
made,  by  the  other  party  with  the  principal,  on  which  the  principal 
is  the  proper  person  to  sue  and  be  sued.65 

a.  Principal  named:  agent  prima  facie  does  not  contract  in  person.      And 

when  the  principal  is  named  at  the  time,  then  there  is  prima  facie 
no  contract  with  the  agent:  but  when  the  principal  is  not  named, 
then  prima  facie  the  agent,  though  known  to  be  an  agent,  does 
bind  himself  personally,  the  other  party  not  being  presumed  to  give 
credit  exclusively  to  an  unknown  principal  (i).e6 

(f)    Dibbins   v.    Dibbins    [1896]    2  by   an   undisclosed   principal,    see    p. 

Ch.  348,  65  L.  J.  Ch.  724.  *103,  below. 

{g)    Bolton   Partners    v.    Lambert  (h)    Story  on  Agency,  §§  279  sqq. 

(1889)   41  Ch.  Div.  295,  58  L.  J.  Ch.  288.     Thomson  v.  Davenport    (1829) 

425    (see,   however,  the  note  on  this  9  B.  &  C.  78,  32  R.  R.  578;  Calder  v. 

case  in  Fry  on  Specific  Performance,  Dobell    (1871)    L.  R.  6  C.  P.  486,  40 

3rd  ed.)  ;  McClintoek  v.  8.  Penn.  Oil  L.  J.  C.  P.  224. 

Co.   [1892]  28  Am.  St.  Rep.  785;  Re  (i)    But    one   who   deals   with   an 

Tiedemann    [1899]    2    Q.    B.    66,    68  agent   known   to  be  such   cannot  set 

L.  J.   Q.  B.   852.     As  to  ratification  off   against   the    principal's    claim    a 

63  Gregg  v.  Wooliscroft,  52  111.  App.  214;  Baldwin  v.  Schiappacasse,  109 
Mich.  170;  Dodge  v.  Hopkins,  14  Wis.  630;  Atlee  v.  Bartholomew,  69  Wis. 
43  are  contrary  to  the  English  decision.  See  the  discussion  of  the  question 
by' Prof.  Wambaugh,  in  9  H.  L.  Rev.  60. 

64  Usher  r.  Waddingham,  62  Conn.  412;  Guest  v.  Burlington  Co.,  74  la.  457. 

65  Anderson   r.   Timberlake,   114  Ala.  377. 

66  Where  one  citizen  of  Massachusetts  sold  goods  in  that  State  to  another,  but 
at  the  same  time  disclosed  to  the  purchaser  the  fact  that  the  goods  belonged 
to  a  citizen  of  another  State,  without,  however,  disclosing  the  name  of  the 


108  CAPACITY  OF  PAETIES. 

/J.  Principal  not  named:  agent  prima  facie  does  contract  in  person.     But 

when  the  agent  would  not  prima  facie  be  a  contracting  party  in 
person  he  may  become  so  in  various  ways.  Thus  he  is  personally 
liable  if  he  expressly  undertakes  to  be  so  (k)  :67  such  an  undertak- 
ing may  be  inferred  from  the  general  construction  of  a  contract 
in  writing,  and  is  alwa3's  inferred  when  the  agent  contrapts  in  his 
own  name  without  qualification  (Z),68  though  the  principal  is  not 
the  less  also  liable,  whether  named  at  the  time  or  not  (m),m  or  if 

debt    due    to    him    from    the    agent.  361.      But   see   contra   Bank   v.   Ger- 

[Moline   Iron   Co.    v.   York   Iron   Co.,  man    Ins.    Co.,    71    Fed.    Rep.    473; 

83    Fed.   Rep.   66;    Miller   v   Lea,   35  Pearce  v.   Smith,   126  Ala.   116.     See 

Md.    396 ;    McLachlin    r.    Brett,    105  also  Trentor  r.  Pothen,  40  Minn.  298 ; 

N.   Y.   391;    Parker    v.   Donaldson,   2  Haines    v.    Starkey,    82    Minn.    230; 

W.  &  S.  9;  Evans  v.  Wain,  71  Pa.  St.  Slattery   v.   Schwannecke,    118   N.   Y. 

69.]     If  he  has  employed  an  agent  on  543;    Bank  r.   Pierce.   6   Wash.   491; 

his  own  part,  tha.  agent's  knowledge  Story  on  Agency,  §  140;  Mechem  on 

is    for    this    purpose   treated    as    the  Agency,   §    721;   Wade  on  Notice,   §§ 

employer's  own;  and  this  even  though  667,  688]. 

the   knowledge   was   not   acquired   in  (k)    Story     on     Agency,      §      269, 

the  course  of  the  particular  employ-  Smith,  Merc.  Law,   158. 
ment:     Dresser    v.    Norwood     (1863)  (I)    See   Fairlie  v.   Fenton    (1870) 

Ex.  Ch.,  17  C.  B.  N.  S.  466,  34  L.  J.  L.  R.  5  Ex.   169,   39  L.   J.  Ex.   107; 

C.   P.  48,  revg.  s.   c.   14  C.  B.  N.  S.  Paice  v.  Walker   (1870)    L.  R.  5  Ex. 

574,   32  L.   J.   C.  P.   201.     Contra  I.  173,   39   L.   J.    Ex.    109.     The  latter 

C.  A.  s.  229.     Qu.  by  design  or  acci-  ease,  however,  goes  too  far;  see  note 

dent?     [The  view  of  the  Ex.  Ch.  as  (s),  p.  *101. 

to  notice  was  approved  and  adopted  (m)    Higgins  v.   Senior    (1841)    8 

in    The    Distilled    Spirits,    11    Wall.  M.    &    W.    834:    the    law   there    laid 

356;    Bank    v.    Chase,    72    Me.    226;  down  goes  to  superadd  the  liability 

Bank    v.    Hollenbeck,    29    Me.    322;  of  the  agent,  not  to  take  away  that 

Brown  v.  Cranberry  Co.,  72  Fed.  Rep.  of    the    principal:    Calder   v.   Dooell 

96;    Westerman    v.    Evans.    1    Kan.  (1871)    L.  R.   6  C.  P.  486,  40  L.  J. 

App.    1;    Hart  v.   Bank,   33  Vt.   252,  C.   P.   224. 
270 ;  Shafer  v.  Insurance  Co.,  53  Wis. 

owner,  a  subsequent  discharge  of  the  purchaser  under  the  insolvent  laws  of 
Massachusetts  was  held  to  be  no  bar  to  an  action  by  the  owner  for  the  price 
of  the  goods.     Ilsley  r.  Merriam,  7  Cush.  242. 
«T  Wilder  r.  Cowles,   100  Mass.  487,  491. 

68  Nash  v.  Towne,  5  Wall.  689;  White  c.  Bovee,  21  Fed.  Rep.  228;  Bryan 
r.  Brazil,  52  la.  350 :  Simonds  v.  Heard,  23  Pick.  120 ;  Porter  v.  Merrill,  138 
Mo.  555;  Chandler  r.  Coe,  54  N.  H.  561;  Mills  r.  Hunt,  20  Wend.  431;  Babbett 
r.  Young,  51  N.  Y.  238;  Jarvis  v.  Schaefer,  105  N.  Y.  289;  Bulwinkle  c. 
Cramer,  27  S.  C.  376 ;  Cream  City  Co.  r.  Friedlander,  84  Wis.  53.  When  a 
broker  received  orders  from  various  principals  and  lumped  them  in  a  single 
contract  with  the  plaintiff  the  latter  was  held  not  entitled  to  sue  the  various 
principals.  Beckhuson  r.  Hamblet,  [1900]  2  Q.  B.  18.  The  converse  also  is 
true.     Roosevelt  r.  Doherty,  129  Mass.  301. 

69  Story  on  Agency,  §  160a. ;  Anderson  r.  Beard,  [1900]  2  Q,  B.  260;  Dar- 
row  r.  H.  R.  Home'  Co.,  57  Fed.  Rep.  463 ;  Moore  v.  Sun  Printing  Co.,  101 
Fed.  Rep.  591,  affd.,  183  U.  S.  642;  Butler  r.  Kaulback.  8  Kan.  668;  Bank 
r.  Stein,  24  Md.  447;  Byington  r.  Simpson,  134  Mass.  169;  Smith  v.  Felter, 
63  N.  J.  L.  30;  Dykers  V.  Townsend,  24  N.  Y.  57;  Nicoll  v.  Burke,  78  N.  Y. 
581;  Thayer  r.  Luce.  22  Ohio  St.  62,  78;  Turner  v.  Lucas,  13  Gratt.  705,  716; 
Stowell  v.  Eldred,  39  Wis.  614.  Chandler  r.  Coe,  54  N.  H.  561,  holds  other- 
wise in  case  the  principal  is  named. 


CONTRACTS    OF   AGENTS.  109 

he  himself  has  an  interest  in  the  subject-matter  of  *the  contract,  [100 
as  in  the  case  of  an  auctioneer  (ra).70  And  when  the  agent  is  deal- 
ing in  goods  for  a  merchant  resident  abroad,  it  is  held  on  the  ground 
of  mercantile  usage  and  convenience  that  without  evidence  of  ex- 
press authority  to  that  effect  the  commission  agent  cannot  pledge 
his  foreign  constituent's  credit,  and  therefore  contracts  in  per- 
son (o).71 

Technical  rule  as  to  deed  of  agent.  When  a  deed  is  executed  by  an 
agent  as  such  but  purports  to  be  the  deed  of  the  agent  and  not  of 
the  principal,  then  the  principal  cannot  sue  or  be  sued  upon  it  at 
law,  by  reason  of  the  technical  rule  that  those  persons  only  can 
sue  or  be  sued  upon  an  indenture  who  are  named  or  described  in  it 
as  parties  (p).72    And  it  is  also  held  that  a  party  who  takes  a  deed 

(n)    2   Sm.   L.  C.   399.     As  to  an  v.  Bulloch  (1873)   L.  R.  8  Q.  B.  331, 

auctioneer's     personal     liability     for  affirmed   in   Ex.    Ch.   L.   R.   9   Q.    B. 

non-delivery  to  a  purchaser  of  goods  572,   that   he   cajmot   be   sued:    Neiu 

bought    at    the    auction,    Woolfe    v.  Zealand  Land  Co.  v.  Watson   (1881) 

Home    (1877)     2    Q.    B.    D.    355,    46  7  Q.  B.  D.   374,  50  L.  J.  Q.  B.  433. 

L.  J.  Q.  B.  534;   New  Zealand  Land  In    Ma-spons   y   Hermano   v.    Mildred 

Co.  v.  Watson    (1881)    7   Q.  B.  Biv.  ( 18830    9  Q.  B.  Div.  530,  53  L.  J.  Q. 

374,   50   L.   J.   Q.   B.   433.      [Shell   v.  B.  33,  the  Court  of  Appeal  refused  to 

Stephens,  50  Mo.  375 ;  Mills  v.  Hunt,  extend  this  doctrine  to  a  case  where 

20  Wend.  431;  and  see  Bush  v.  Cole,  the  commission  agent  as  well  as  the 

28  N.  Y.  261   (sale  of  real  estate)].  principal   was    foreign;    the   decision 

(o)    Armstrong   v.    Stokes    (1872)  was    affirmed   in   H.    L.,    8   App.    Ca. 

L.  R.  7.  Q.  B.  598,  605,  Ace.  Elbinger  874,  but  this  point  not  discussed. 
Actien-Gesellschaft   v.    Claye    (1873)  (p)    Lord   Southampton   v.   Brown 

L.   R.   8    Q.   B.    313,   41    L.   J.   Q.   B.  (1827)    6  B.  &  C.  718,  30  R.  R.  511: 

253    (affirmed   on    another    point,    L.  Beckham  v.  Drake  (1841)   9  M.  &  W. 

R.  9  Q.  B.  473,  43  L.  J.  Q.  B.  211),  at  p.  95,  affirmed  sub  nom.  Drake  v. 

showing   that    the    foreign    principal  Beckham,    11    ib.    315,    12    L.   J.   Ex. 

cannot  sue  on  the  contract :    Button  486. 

TOBeller  v.  Block,  19  Ark.  566;  Flannegan  v.  Crull,  53  111.  352;  Seemuller 
v.  Fuchs,  64  Md.  217;  Tyler  v.  Freeman,  3  Cush.  261;  Hulse  v.  Young,  16 
Johns.  1;  Minturn  r.  Main,  7  N.  Y.  220. 

"An  auctioneer  employed  to  sell  real  estate  on  terms  which  contemplate  the 
payment  of  a  deposit  into  his  hands  by  the  buyer  at  the  time  of  the  auction, 
and  before  the  completion  of  the  sale  by  the  delivery  of  the  deed,  may  sue  for 
such  deposit  in  his  own  name  whenever  an  action  for  it,  separate  from  the 
other  purchase-money,  may  become  needful."  Thompson  v.  Kelly,  101  Mass. 
291;  Johnson  v.  Buck,  35  N.  J.  L.  338. 

71  The  rule  is  not  recognized  as  absolute  in  this  country ;  that  the  principal 
is  resident  in  a  foreign  country  is  only  one  circumstance  entering  into  the 
controlling  question,  "  to  whom  was  credit  in  fact  given  ?  "  It  is  doubtful  if 
the  different  States  of  the  Union  can  be  considered  as  foreign  to  each  other 
within  the  operation  of  the  rule.  Oelricks  v.  Ford,  23  How.  49;  Berwind  r. 
Schultz,  25  Fed.  Rep.  912 ;  Vawter  v.  Baker,  23  Ind.  63 ;  Newcastle  M'f'g  Co. 
v.  Railroad  Co.,  (La.)  1  Rob.  145;  Rogers  v.  March,  33  Me.  106;  Bray  v.  Ket- 
tell,  1  Allen,  80 ;  Barry  r.  Page,  10  Gray,  398 ;  McKenzie  v.  Nevins,  22  Mo.  138 ; 
Kirkpatrick  v.  Stainer,  22  Wend.  244;  Taintor  v.  Prendergast,  3  Hill,  72; 
Merrick's  Est.,  5  W.  &  S.  9.     See  13  Am.  L.  Rev.  663. 

72  Badger  Mining  Co.  v.  Drake,  88  Fed.  Rep.  48;  Hall  v.  Cockrell,  28  Ala. 
507;   Farmington  v.  Hobert,  74  Me.  416;  Huntington  v.  Knox,  7  Cush.  371, 


110  CAPACITY   OF    PARTIES. 

under  seal  from  an  agent  in  the  agent's  own  name  elects  to  charge 
the  agent  alone  (<?).73  A  similar  rule  has  been  supposed  to  exist 
as  to  negotiable  instruments:  but  modern  decisions  seem  to  show- 
that  when  an  agent  is  in  a  position  to  accept  bills  so  as  to  bind  his 
principal,  the  principal  is  liable  though  the  agent  signs  not  in  the 
principal's  name  but  in  his  own,  or,  it  would  appear,  in  any  other 
name.  It  is  the  same  as  if  the  principal' had  signed  a  wrong  name 
with  his  own  hand  (r).7i 

(q)  Pickering's  claim  (1871)  L.  B.  C.  B.  583,  17  L.  J.  C.  P.  123.  Cp. 
6  Ch.  525.  Edmunds  v.  Bushell    (1865)    L.  E.  1 

(r)    Lindus  v.  Bradwell    (1848)    5       Q.  B.  97,  35  L.  J.  Q.  B.  20. 

374;  New  England  Co.  v.  Eockport  Co..  149  Mass.  381;  Tobin  r.  Central  Vt. 
Ey.  Co.,  185  Mass.  337,  339;  Ferris  v.  Snow,  124  Mich.  559;  130  Mich.  254; 
Mahoney  v.  McLean,  26  Minn.  415;  Borcherling  V.  Katz,  37  N.  J.  Eq.  150; 
Briggs  e.  Partridge,  64  N.  Y.  357 ;  Tuthill  v.  Wilson,  90  N.  Y.  423 ;  Henricus 
v.  Englert,  137  N.  Y.  488;  Steele  v.  McElroy,  1  Sneed,  341;  Story  on  Agency, 
§  160;  cp.  Stowell  v.  Eldred,  39  Wis.  614;  Moore  v.  Granby  Mining,  etc.,  Co., 
80  Mo.  86. 

73  Cp.  Wharton  on  Agency,  §  283. 

74  See  May  v.  Hewitt,  33  Ala.  161;  Bank  v.  Joy,  41  Me.  568;  cp.  Minard 
i'.  Mead,  7  Wend.   68. 

In  this  country  the  rule  is  general  that  the  legal  liability  of  an  unnamed 
principal  to  be  sued  on  a  negotiable  instrument  cannot  be  shown  by  oral  evi- 
dence. Cragin  v.  Lovell,  109  U.  S.  194;  Fuller  v.  Hooper,  3  Gray,  334,  341; 
Williams  v.  Bobbins,  16  Gray,  77;  Brown  r.  Parker,  7  Allen,  337;  Sparks  v. 
Despatch  Transfer  Co.,  104  Mo.  531;  Chandler  v.  Coe,  54  N.  H.  561;  Pentz 
!>.  Stanton,  10  Wend.  271;  Anderton  v.  Shoup,  17  Ohio  St.  125;  Bank  v. 
Cook,  38  Ohio  St.  442.  This  rule,  however,  does  not  apply  to  warehouse 
receipts  made  negotiable  by  statute.    Anderson  v.  Portland  Mills,  37  Oreg.  483. 

Though  not  liable  on  the  instrument,  the  principal  may  be  liable  for  the 
value  of  the  consideration  where  that  inures  to  his  benefit.  Pope  v.  Meadow 
Spring  Distilling  Co.,  20  Fed.  Eep.  35;  Allen  v.  Coit,  6  Hill,  318;  Pentz  v. 
Stanton,  10  Wend.  271;  Kayton  v.  Barnett,  116  N.  Y.  625;  Harper  v.  Bank, 
54  Ohio  St.  425. 

A  person  may  become  a  party  to  a  negotiable  instrument  by  any  nlark  or 
designation  he  chooses  to  adopt  as  a  substitute  for  his  name ;  Brown  v.  Bank,  6 
Hill,  443;  DeWitt  v.  Walton,  9  N.  Y.  571;  hence  when  a  bill  or  note  is 
signed  with  a  name  under  which  the  defendant  has  chosen  to  do  business, 
that  may  be  shown  to  make  him  liable.  Pease  v.  Pease,  35  Conn.  131;  Sal 
mon  v.  Hopkins,  61  Conn.  47;  Chemical  Bank  v.  City  Bank,  156  111.  149 
Melledge  v.  Boston  Iron  Co.,  5  Cush.  158;  Fuller  v.  Hooper,  3  Gray,  334 
Chandler  r.  Coe,  54  N.  H.  561;  Bank  v.  Monteath,  1  Den.  402;  Froehlich  v. 
Froehlich  Trading  Co.,  120  N.  C.  39;  Abbott  r.  McKinley,  2  Miles,  220 
Devendorf  r.  W.  Va.  Oil,  etc.,  Co.,  17  W.  Va.   135. 

Where  this  is  also  the  name  of  the  agent  who  signs  the  note  "  it  requires 
very  clear  and  cogent  proof  to  show  that  it  was  not  designed  to  be  his  con- 
tract." Williams  v.  Bobbins,  16  Gray,  77,  82.  And  see  Pease  v.  Pease,  35 
Conn.  131,  148;  Devendorf  v.  W.  Va.  Oil,  etc.,  Co.,  17  W.  Va.  135. 

And  in  Heffron  r.  Pollard,  73  Tex.  96,  it  was  held  not  permissible  to  show 
by  parol  evidence  that  a  contract  signed  by  an  agent  in  his  principal's  name 
per  himself  as  agent,  was  meant  to  bind  the  agent  and  that  he  used  the 
principal's  name  as  his  own  business  name. 

Where  a  partnership  business  is  carried  on  in  the  individual  name  of  a 
member  of  the  firm,  the  authorities  differ  as  to  the  presumption  which  arises 
in  the  case  of  a  note  executed  in  the  name  of  such  member,  with  reference  to 
its    being   a   partnership   or   individual   obligation.      The   decided    weight   of 


CONTRACTS   OF  AGENTS.  Ill 

Evidence  of  contrary  intention.  Again,  an  agent  who  would  other- 
wise be  liable  on  the  *eontract  made  by  him  may  exempt  him-  [101 
self  from  liability  by  contracting  in  such  a  form  as  makes  it  ap- 
pear on  the  face  of  the  contract  that  he  is  contracting  as  agent  only 
and  not  for  himself  as  principal  (s)  :  but  even  then  he  may  be  treated 
as  a  contracting  party  and  personally  bound  as  well  as  his  principal 
by  the  custom  of  the  particular  trade  in. which  he  is  dealing  (t). 
Or  he  may  limit  his  ability  by  special  stipulations,  e.g.  when  a  char- 
ter-party is  executed  by  an  agent  for  an  unnamed  freighter,  and 
the  agent's  signature  is  unqualified,  but  the  charter-party  contains 
a  clause  providing  that  the  agent's  responsibility  shall  cease  as  soon 
as  the  cargo  is  shipped  («). 

(s)   Words  in  the  body  of  a  docu-  not   quite   overruled:    see   Hough   v. 

ment   which    amount    to    a   personal  Manzanos    (1879)    4   Ex.   D.    104,   48 

contract    by    the   agent   are   not   de-  L.  J.  Ex.  398. 

prived  of  their  effect  by  a  qualified  (*)   Humfrey  v.  Dale    (1857)    7  E. 

signature:        Lennard     v.     Robinson,  &  B.  266,  E.  B.  &  E.  1004,  26  L.  J. 

(1855)   5  E.  &  B.  125,  24  L.  J.  Q.  B.  Q.   B.   137;   Fleet  v.   Murton    (1871) 

275;   Hutcheson  v.  Eaton    (1884)    13  L.  R.  7   Q.  B.   126,   129,  41   L.  J.  Q. 

Q.  B.  Div.  861,  see  per  Brett  M.  R.  B.  49;  Hutchinson  v.  Tatham  (1873) 

at  p.  865;    [Metcalf  v.  Williams,  104  L.  R.  8  C.  P.  482,  42  L.  J.  C.  P.  260; 

U.  S.  93,  98];  and  the  description  of  Pike  v.  Ongley   (1887)    18  Q.  B.  Div. 

him  as  agent  in  the  body  of  the  docu-  708,  56  L.  J.  Q.  B.  373.     On  the  gen- 

ment     may     under     special     circum-  eral   question  of  the  construction  of 

stances  not  be  enough  to  make  him  contracts  made  by  brokers  for  their 

safe:   Paice  v.   Walker    (1870)- L.  R.  principals,  see  Southwell  v.  Bowditch 

5  Ex.  173,  39  L.  J.  Ex.  109;  see  the  (1876)     1    C.   P.   Div.    374,   45   L.   J. 

remarks    on    that    case    in    Gadd    v.  C.   P.   374,   630. 

Houghton    (1876)     1    Ex.    Div.    357,  (u)    Oglesoy  v.  Yglesias  (1858)   E. 

46  L.  J.  Ex.   71,  which  decides  that  B.  &  E.  930,  27  L.  J.  Q.  B.  356;  Carr 

a  contract  "on  account  of"  a  named  v.  Jackson    (1852)    7  Ex.  382,  21  L. 

principal  conclusively  discharges  the  J.  Ex.   137. 
agent.    Paice  v.  Walker  is  nearly  but 

authority  is,  that  the3e  facts  alone  appearing  are  insufficient  to  establish  the 

liability  of  the  partnership.     Yorkshire  Banking  Co.  v.  Beaston,  5   C.  P.  D. 

109;    United   States  r.   Binney,   5  Mason,   176;    Buckner  v.   Lee,   8   Ga.   285; 

Bank  v.   Winship,  5  Pick.   11;   Germon  v.  Hoyt,   90  N.  Y.   631;   Oliphant  v. 

Mathews,  16  Barb.  608;  Bank  v.  Ingraham,  58  Barb.  290;  Bank  v.  Monteath, 

1  Den.  402;  Miflin  v.  Smith,  17  S.  &  R.  165. 

In  Posdick  v.  Van  Horn,  40  Ohio  St.  459,  it  was  decided  that  "  if  there 

are  two  firms  of  the  same  name  in  the  same  community,  each  consisting  of 
the  same  persons,  but  each  engaged  in  different  kinds  of  business,  one  of  which 
contains  a  dormant  partner  and  the  other  does  not,  and  suit  is  brought  on  a 
promissory  note  for  borrowed  money  bearing  the  signature  of  the  common 
firm  name,  the  presumption  is  that  it  is  the  note  of  the  firm  not  containing 
the  dormant  partner.  The  plaintiff,  to  recover  against  the  dormant  partner, 
must  prove  either  that  the  money  for  which  the  note  was  given  was  borrowed 
on  the  credit  of  the  firm  in  which  the  dormant  partner  was  interested,  or  that, 
when  obtained,  it  was  used  in  the  business,  or  for  the  benefit  of  that  firm; 
and  the  fact  that  the  money  was  borrowed  on  the  credit  of  that  firm  may  be 
proVed  by  representations  to  that  effect  made  by  the  ostensible  partners  at 
the  time  of  the  transaction,  or  it  may  be  proved  by  circumstances."  See  also 
Baker  v.  Nappier,  19  Ga.  520;  Bank  v.  Hibbard,  48  Mich.  452;  Cushing  v. 
Smith,  43  Tex.  261. 


112  CAPACITY  OF  TARTIES. 

It  is  also  a  rule  that  an  agent  for  a  government  is  not  personally 
a  party  to  a  contract  made  by  him  on  behalf  of  that  government 
by  reason  merely  of  having  made  the  contract  in  his  own  name  (z).75 
In  some  cases  the  agent,  though  prima  facie  not  a  party  to  the  con- 
tract as  agent,  can  yet  sue  or  be  sued  as  principal  on  a  contract  which 
he  has  made  as  agent.  These  will  be  mentioned  under  another  head 
of  this  subject  (y). 

102]  *  Where  an  undertaking  is  given  in  general  terms,  no  promisee 
being  named,  to  a  person  who  obviously  cannot  be  a  principal  in  the 
matter,  it  may  be  inferred  as  a  fact  from  the  circumstances  that  some 
other  person  interested  is  the  real  unnamed  principal,  and  that  person 
may  recover  on  the  contract  (z). 

B.  Agent  not  known  to  be  an  agent.  When  a  party  contracts  with  an 
agent  whom  be  does  not  know  to  be  an  agent,  the  undisclosed  principal 
is  generally  bound  by  the  contract  and  entitled  to  enforce  it,  as  well 
as  the  agent  with  whom  the  contract  is  made  in  the  first  instance  (a)  .76 

(x)   Macbeath        v.         Haldimand  (a)    The    rule  is   not  excluded   by 

(1786)    1    T.   B.    172.   cp.   ib.   674,    1  the   contract   being   in   writing    (not 

E.  E.  177;  Gidl;y  v.  Lord  Palmerston  under  seal)    and  signed  by  the  agent 

(1822)    3   Brod.  &  B.   275,   24  E.  E.  in  his  own  name:  Beckham  v.  Drake 

668;   Story  on  Agency,   §   302,  sqq.  (1841)    9  M.  &  W.  at  p.  91.     See  p. 

(y)    Infra,  pp.   *109— »111.  *100,  supra. 

(z)   Weidner  v.  Hoggett    (1876)    1 
C.  P.  D.  533. 

75  Parks  r.  Boss,  11  How.  362;  Sheets  r.  Selden,  2  Wall.  177;  Belknap  v. 
Sehild,  161  U.  S.  10,  17;  Hodgson  v.  Dexter,  1  Cr.  345;  Murray  v.  Carrothers, 
1  Met.  (Ky.)  71;  De  Bebian  r.  Gola,  64  Md.  262;  Brown  v.  Austin,  1  Mass. 
208;  Dawes  r.  Jackson,  9  Mass.  490;  Ghent  v.  Adams,  2  Kelly,  214;  Copes  v. 
Matthews,  10  S.  &  M.  398;  Tutt  c.  Hobbs,  17  Mo.  486;  Knight  r.  Clark, 
48  N.  J.  L.  22;  Osborne  r.  Kerr,  12  Wend.  179;  Walker  v.  Swartwout,  12 
Johns.  444;  Hamarskold  v.  Bull,  11  Eich.  L.  493;  Enloe  v.  Hall,  1  Humph. 
303;  Walker  r.  Christian,  21  Gratt.  291.  Where  he  is  not  personally  bound 
he  cannot  sue  upon  the  contract.  Bainbridge  v.  Downie,  6  Mass.  253.  Nor 
is  he  subject  to  the  rule  that  an  agent  warrants  his  authority.  Dunn  r. 
McDonald,  [1897]  1  Q.  B.  401,  555,  post,  p.  *109. 

TO  Ford  r.  Williams,  21  How.  287 ;  Darrow  v.  H.  E.  Home  Co.,  57  Fed.  Eep. 
463;  Buchanan  r.  Cleveland  Oil  Co.,  91  Fed.  Eep.  88;  Bell  v.  Eeynolds,  78 
Ala.  511;  McFadden  r.  Henderson,  128  Ala.  221;  Euiz  v.  Norton,  4  Cal.  355; 
Sullivan  r.  Shailor,  70  Conn.  733;  Woodruff  r.  McGehee,  30  Ga.  158;  Nuit 
v.  Humphreys,  32  Kan.  100;  Edwards  r.  Gildermeister,  61  Kan.  141;  Cushing 
v.  Eice,  46 'Me.  303;  Balto.  Coal  Tar  &  Mfg.  Co.  v.  Fletcher,  61  Md.  288; 
Lerned  v.  Johns,  9  Allen,  419;  Foster  v.  Graham,  166  Mass.  202;  Chandler 
v.  Coe,  54  N.  H.  561 ;  Bryant  r.  Wells,  56  N.  H.  152:  Smith  v.  Felter.  63  N.  J. 
L.  30;  Briggs  r.  Partridge,  64  N.  Y.  357,  362;  Coleman  v.  Bank,  53  N.  Y.  388; 
Ludwig  v.  Gillespie,  105  N.  Y.  653;  Milliken  v.  W.  U.  Telegraph  Co.,  110  N.  Y. 
403,  410;  Brady  v.  Nally,  151  N.  Y.  258;  Thayer  v.  Luce,  22  Ohio  St.  62,  78; 
Hubbert  i>.  Borden,  6  Whart.  79 :  Hubbard  v.  Tenbrook,  124  Pa.  291 ;  Edwards 
r.  Golding,  20  Vt.  30;  Bank  v.  Nolting,  94  Va.  263;  Deitz  v.  Insurance  Co.,  31 
W.  Va.  851;   Stowell  v.  Eldred,  39  Wis.  614. 

Even  though  the  contract  stipulates  that  it  shall  not  be  assignable  without 
the  co-contractor's  consent.     Prichard  r.  Budd,  76  Fed.  Eep.  710. 


CONTRACTS   OF  AGENTS.  11  J 

Contract  with  the  undisclosed  principal.  It  has  been  held  that  an  un- 
disclosed principal  is  as  much  liable  as  a  known  one  for  contracts 
made  by  the  agent  within  the  general  apparent  authority  of  agents 
in  that  business  (2>).77 

Exceptions.  But  the  limitations  of  this  rule  are  important.  In  the 
first  place,  it  does  not  apply  where  an  agent  for  an  undisclosed  prin- 
cipal contracts  in  such  terms  as  import  that  he  is  the  real  and  only 
principal.  There  the  principal  cannot  afterwards  sue  on  the  con- 
tract (c).78  Much  less,  of  course,  could  he  do  so  if  the  nature  of 
the  contract  itsef  (for  instance,  partnership)  were  inconsistent  with 
a  principal  unknown  at  the  time  taking  the  place  of  the  apparent 
contracting  party.  Likewise,  "  if  the  principal  represents  the  agent 
as  principal  he  is  bound  by  that  representation.  So  if  he  stands  by 
and  allows  a  third  person  innocently  to  treat  with  the  agent  as  prin- 
cipal he  cannot  afterwards  turn  round  and  sue  him  in  his  own 
name  "  (d). 

It  was  long  undecided  whether  an  agent  for  an  undis*closed  [103 
principal  must  have  authority  at  the  time,  or  a  man  might  adopt 
as  principal  an  act  not  purporting  at  the  time  to  be  done  on  behalf 
of  any  principal,  and  not  then  authorized  by  him.  A  majority  of 
the  Court  of  Appeal  held  in  a  late  case  that  such  ratification  was 
possible,  but  this  was  reversed  by  the  House  of  Lords  as  contrary 
to  such  authority  as  there  was  (with  one  obscure  exception)  and  to 
the  general  reluctance  of  the  Common  Law  to  give  effect  to  alleged 
intentions  which  were  not  disclosed  or  recorded  at  the  time  when, 
if  at  all,  they  were  material  (e). 

(6)  Watteau  v.  Fenunck   [1893]   1  (e)   Durant     v.     Roberts     &     Co. 

Q.  B.  346;   sed  qu.,  see  L.  Q.  B..  ix.  [1900]    1   Q.   B.  629,  69   L.  J.   Q.   B. 

111.  382,   diss.   A.   L.    Smith  L.   J.,    revd. 

(c)  Humble  v.   Hunter    (1848)    12  nom.    Keighley,    Haxsted    &    Co.    v. 

Q.  B.  310,  17  L.  J.  Q.  B.  350.  Durant    [1901]    A.   C.   240,   70  L.   J. 

{d)  Ferrand       v.        Bischoffsheim  K.  B.  662. 
(1858)   4  C.  B.  N.  S.  710,  716,  27  L. 

J.   C.  P.   302. 

77  Cp.  Miles  v.-  Mcllwraith,  8  App.  Cas.  120. 

78  Winchester  v.  Howard,  97  Mass.  303;   Harner  v.  Fisher,  58  Pa.  453. 

The  rule  does  not  apply  to  a  contract  which  by  reason  of  its  personal  char- 
acter would  not  be  assignable.  King  r.  Batterson,  13  R.  I.  117.  But  the 
principal  may  be  sued  on  principles  of  quasi-contract  for  any  benefit  he  has 
received,  even  though  in  the  course  of  the  negotiation  the  plaintiff  expressly 
declared  that  he  would  not  sell  to  the  defendant,  and  the  agent  assured  him 
he  was  buying  for  himself.  Kayton  v.  Barnett,  116  N.  Y.  625;  cp.  Rodliff  r. 
Dallinger,  141  Mass.  1. 

Conversely  if  the  plaintiff  represents  himself  as  a  mere  agent  he  cannot 
sue  as  principal.     Fox  v.  Tabel,  66  Conn.  397. 

8 


114  CAPACITY    OF    PARTIES. 

Limitations  of  the  rule  when  it  applies.  Again,  in  the  cases  to  which 
the  rule  does  apply,  the  rights  of  both  the  undisclosed  principal  and 
the  other  contracting  party  are  qualified  as  follows: 

Rights  of  principal.  The  principal  "must  take  the  contract  subject 
to  all  equities  in  the  same  way  as  if  the  agent  were  the  sole  prin- 
cipal "  (/) .  Accordingly  if  the  principal  sues  on  the  contract  the 
other  party  may  avail  himself  of  any  defence  which  would  have  been 
good  against  the  agent  (g)  :79  thus  a  purchaser  of  goods  through  a 
factor  may  set  off  a'  claim  against  the  factor  in  an  action  by  the 
factor's  principal  for  the  price  of  the  goods  (h).ao     "Where  a  con- 

(f)  Story  on  Agency,  §  420;  per  (7i)  George  v.  Clagett  (1797)  7 
Parke  B.  Beckham  v.  Drake,  (1841)  T.  R.  359,  4  R.  R.  462;  Sims  v.  Bond 
9  M.  &  W.  at  p.  98.     P.  100,  supra.  (1833)   5  B.  &  Ad.  3S9,  393,  39  R.  R. 

(g)  If  the  agent  sues  in  his  own  511,  515.  Per  Cur.,  Isberg  v.  Bow- 
name  the  other  party  cannot  set  off  den,  8  Ex.  at  p.  859.  It  does  not 
a  debt  due  from  the  principal  whom  matter  whether  the  factor  is  or  is 
he  has  in  the  meantime  discovered,  not  actually  authorized  by  his  prin- 
there  being  no  mutual  debt  within  cipal  to  sell  in  his  own  name  without 
the  statute  of  set-off;  Isberg  v.  Bow-  disclosing  the  agency:  Ex  parte 
den  (1853)  8  Ex.  852.  22  L.  J.  Ex.  Dixon  (1876)  4  Ch.  Div.  133,  46  L. 
322.  Under  the  Judicature  Acts,  J.  Bk.  20 ;  nor  what  restrictions  may, 
however,  he  can  make  the  principal  as  between  himself  and  the  principal, 
a.  party  to  the  action  by  counter-  be  imposed  on  him  as  to  the  price 
claim  and  have  the  whole  matter  he  is  to  sell  at:  Stevens  v.  Biller 
disposed  of.  (1883)   25  Ch.  Div.  31. 

79  If  the  agent  sues  in  his  own  name,  any  defense  good  against  the  prin- 
cipal is  available  against  the  agent.  Holden  r.  Rutland  R.  R.,  73  Vt.  317. 
But  if  the  agent  is  sued  on  the  contract  he  cannot  by  way  of  set-off  avail 
himself  of  a  debt  due  to  his  principal  by  the  plaintiff.  Forney  v.  Shipp,  4 
Jones  L.  527. 

so  "  Where  a  principal  permits  an  agent  to  sell  as  apparent  principal,  and 
afterwards  intervenes,  the  buyer  is  entitled  to  be  placed  in  the  same  situ- 
ation at  the  time  of  the  disclosure  of  the  real  principal  as  if  the  agent  had 
been  the  real  contracting  party,  and  is  entitled  to  the  same  defense,  whether 
it  be  by  common  law  or  by  statute,  payment,  or  set-off,  as  he  was  entitled 
to  at  the  time  against  the  agent  — ■  the  apparent  principal."  Miller  v.  Lea, 
35  Md.  396 ;  Gardner  v.  Allen's  Exr.,  6  Ala.  187 ;  Huntsville  v.  Huntsville  Gas 
Light  Co.,  70  Ala.  190;  Rosser  v.  Darden,  82  Ga.  219;  Allison  v.  Sutlive,  99 
Ga.  151;  Koch  r.  Willi,  f>3  111.  147;  Eclipse  Windmill  Co.  v.  Thornton,  46 
la.  181;  Traub  b.  Milliken,  57  Me.  63;  Huntington  r.  Knox,  7  Cush.  371; 
Barrv  v.  Page,  10  Gray,  398;  Hogan  r.  Shorb,  24  Wend.  458;  Parker  r. 
Donaldson,  2  W.  &  S.  9 ;  Frame  r.  Coal  Co.,  97  Pa.  309;  Bulfield  v.  National 
Supply  Co.,  189  Pa.  189. 

But  this  does  not  apply  to  a  purchase  from  a  mere  broker,  who  has  not  the 
possession  or  is  not  intrusted  with  the  indicia  of  property  in  the  goods. 
Bernshouse  v.  Abbott,  45  N.  J.  L.  531. 

Of  course  it  does  not  apply  if  the  seller  was  known  to  be  an  agent.  Mas- 
pons  v.  Mildred,  9  Q.  B.  D.  530,  544;  Parker  r.  Donaldson,  2  W.  &  S.  9; 
Admr.  of  Conyers  v.  Magrath,  4  McCord,  392. 

Nor  where  after  an  executory  contract  to  sell  the  agent  before  delivery  under 
the  contract  advises  the  purchaser  that  the  property  belongs  to  a  third  person 
for  whom  the  seller  is  acting  as  agent.     McLachlin  r.  Brett,  105  N.  Y.  391. 

And  it  seems  that  the  same  result  follows  where,  without  actual  knowledge 


CONTEACTS    OF  AGENTS.  115 

tract  is  made  by  an  agent  for  an  undisclosed  principal,  the  principal 
may  enforce  performance  of  it,  subject  to  this  qualification,  *that  [  1 04 
the  person  who  deals  with  the  agent  shall  be  put  in  the  same 
position  as  if  he  had  been  dealing  with  the  real  principal,  and  con- 
sequently he  is  to  have  the  same  right  of  set-off  which  he  would  have 
against  the  agent"  (i)81  And  his  claim  to  be  allowed  such  set-off 
is  not  effectually  met  by  the  reply  that  when  he  dealt  with  the  agent 
he  had  the  means  of  knowing  that  he  was  only  an  agent.  The  ex- 
istence of  means  of  knowledge  is  not  material  except  as  evidence  of 
actual  knowledge  (k).82  On  the  other  hand  this  equity  against  an 
undisclosed  principal  depends  (so  the  House  of  Lords  has  held)  on 
the  third  person's  actual  belief  that  he  was  dealing  with  a  principal 
in  that  particular  transaction.  Mere  absence  of  knowledge  or  belief 
whether  the  agent  is  dealing  as  an  agent  or  on  his  own  account  is  not 
enough  (I). 

Eights  of  the  other  party.  It  has  been  said  that  conversely  the  right 
of  the  other  contracting  party  to  hold  the  principal  liable  is  subject 
to  the  qualification  that  the  state  of  the  account  between  the  prin- 
cipal and  the  agent  must  not  be  altered  to  the  prejudice  of  the 
principal.  But  this  doctrine  has  been  disapproved  by  the  Court  of 
Appeal  as  going  too  far.  The  principal  is  discharged  as  against 
the  other  party  by  payment  to  his  own  agent  only  if  that  party 
has  by  his  conduct  led  the  principal  to  believe  that  he  has  settled 
with  the  agent,  or,  perhaps,  if  the  principal  has  in  good  faith  paid 
the  agent  at  a  time  when  the  other  party  still  gave  credit  to  the 
agent  alone,  and  would  naturally,  from  some  peculiar  character  of 
the  business  or  otherwise,  be  supposed  by  the  principal  to  do 
so  (m).83    *  Again,  the  other  party  may  choose  to  give  credit  to  [105 

(i)   Per  Willes  J.  Dresser  v.  Nor-  (Jo)   Borries   v.   Imperial    Ottoman 

wood  (1863)    14  C.  B.  N.  S.  574,  589,  Bank    (1873)    L.   R.   9   C.   P.   38,   43 

32   L.   J.    C.    P.   201,    205.     The   re-  L.  J.  C.  P.  3. 

versal   of   this    case   in   the   Ex.    Ch.  (I)    Cooke    v.    Eshelby     (1887)     12 

17  C.  B.  N.  S.  466,  34  L.  J.  C.  P.  48,  App.   Ca.   271,   56   L.   J.    Q.   B.   505. 

does  not  affect  this  statement  of  the  It  is  useless  to  criticize  the  decision 

general  law.  The  principle  is  not  in  England ;  but  see  L.  Q.  R.  iii.  358. 
confined   to   the   sale   of   goods,    e.g.  (m)  Irvine  v.  Watson  (1880)  5  Q. 

Montagu  v.  Forwood  [1893]   2  Q.  B.  B.  Div.  414,  49  L.  J.  Q.  B.  531,  which 

350    C.  A.  seems   on   this    point   to    reduce    the 

of  the  agency,  the  circumstances  are  such  as  fairly  to  put  the  purchaser  on 
inquiry.  Miiler  v.  Lea,  35  Md.  396;  Baxter  v.  Sherman,  73  Minn.  434;  Wright 
v.  Cabot,  89  N.  Y.  570,  574;  cp.  Elwell  v.  Mersick,  50  Conn.  272. 

81  Ruiz  v.  Norton,  4  Cal.  355 ;  Peel  v.  Shepherd,  58  Ga.  365 ;  Woodruff  v. 
McGchee,  30  Ga.  158;  Balto.  Coal  Tar  &  Mfg.  Co.  v.  Fletcher,  61  Md.  288; 
Bank  v.  Plimpton,  17  Pick.  159;  Miller's  Ex.  v.  Sullivan,  39  Ohio  St.  79. 

82  But  see  supra,  note  80  ad  fin. 

83  Fradley  v.  Hyland,  37  Fed.  Rep.  49 ;  Thomas  v.  Atkinson,  38  Ind.  248. 


116  CAPACITY  OF  PARTIES. 

the  agent  exclusively  after  discovering  the  principal,  and  in  that 
case  he  cannot  afterwards  hold  the  principal  liable;  and  statements 
or  conduct  of  the  party  which  lead  the  principal  to  believe  that 
the  agent  only  will  be  held  liable,  and  on  the  faith  of  which  the 
principal  acts,  will  have  the  same  result  (n).84  And  though  the 
party  may  elect  to  sue  the  principal,  yet  he  must  make  such  election 
within  a  reasonable  time  after  discovering  him  (o).  When  it  is 
said  that  he  has  a  right  of  election,  this  means  that  he  may  sue  either 
the  principal  or  the  agent,  or  may  commence  proceedings  against 
both,  but  may  only  sue  one  of  them  to  judgment;  and  a  judgment 
obtained  against  one,  though  unsatisfied,  is  a  bar  to  an  action  against 
the  other.  Such  is  the  rule  as  to  principal  apd  agent  in  general,83 
and  there  is  no  exception  in  the  ease  of  a  shipowner  and  freighter,  (p). 
The  mere  commencement  of  proceedings  against  the  agent  or  his 
estate  after  the  principal  is  discovered,  although  it  may  possibly 
be  evidence  of  an  election  to  charge  the  agent  only,  does  not  amount 
to  an  election  in  point  of  law  (q).8e 

Professed  agent  not  having  authority.  2.  We  have  now  to  point  out 
the  results  which  follow  when  a  man  professes  to  make  a  contract 
as  agent,  but  is  in  truth  not  an  agent,  that  is,  has  no  responsible 
principal. 

1 06  ]     We  may  put  out  of  consideration  all  cases  in  which  the  *pro- 
fessed  agent  is  on    the  face  of  the  contract  personally  bound  as  well 

authority    of    Armstrong    v.    Stokes  don  v.  Whitlock,  1  Cow.  290;  Rath- 

(1872)    L.  R.  7   Q.  B.  598,  41   L.  J.  bone  v.  Tucker,  15  Wend.  498;  Davis 

Q.  B.  Div.  414,  49   L.  J.  Q.  B.  531,  r.  Allen,  3  N.  Y.   168;   cp.  Fitler  v. 

peculiar    facts.  Commonwealth,  31  Pa.  St.  406.] 
(n)    Story     on     Agency,     §§     279,  (o)    Smethurst  v.  Mitchell    (1859) 

288,     291 ;     llorsfall    v.     Fauntleroy  1  E.  &  E.  622.  28  L.  J.  Q.  B.  241. 
(1830)    70  B.  &  C.  755;  but  the  prin-  (p)    Priestley   v.   Fernie    (1865)    3 

cipal  is  not  discharged  unless  he  has  H.  &  C.  977,  983,  34  L.  J.  Ejc   173; 

actually  dealt  with  the  agent  on  the  cp.  L.  R.   6  C.  P.  499. 

faith  of  the  other  party's  conduct  so  (q)    Curtis   v.    Williamson    (1874) 

as  to  change  his  position:     Wyatt  v.  L.  R.  10  Q.  B.  57,  44  L.  J.  Q.  B.  27. 

Hertford   (1802)    3  East,   147.      [Mul- 

84  Berwind  v.  Schultz,  25  Fed.  Rep.  912 ;  Hyde  r.  Wolff,  4  La.  234 ;  Brown 
v.  Telegraph  Co.,  30  Md.  39;  French  r.  Price,  24  Pick.  13;  Paige  v.  Stone,  10 
Met.  160;  Cheever  r.  Smith,  15  Johns.  276. 

85  Kingsley  r.  Davis,  104  Mass.  178;  Jones  r.  Insurance  Co.,  14  Conn.  501; 
Tuthill  v.  Wilson,  90  N.  Y.  423. 

But  it  has  been  held,  and  there  is  much  reason  for  the  position,  that  where 
a  contract  is  made  with  one  who  does  not  disclose  his  agency,  an  unsatisfied 
judgment  obtained  against  him  is  not  a  bar  to  an  action  against  the  principal. 
Beymer  v.  Bonsall,  79  Pa.  298;  Brown  v.  Reiman,  48  N.  Y.  App.  Div.  295. 

"A  judgment  against  an  agent  for  a  fraud  committed  while  acting  within  the 
scope  of  his  agency,  on  which  no  collection  or  payment  has  been  made,  is  no 
bar  to  an  action  against  the  principal  for  the  same  fraud."  Maple  v.  Railroad 
Co.,  40  Ohio  St.  313;  Interstate  Tel.  Co.  v.  Baltimore  Tel.  Co.,  51  Fed.  Rep.  49. 

86  Ferry  i.  Moore,  18  111.  App.  135;  Steele-Smith  Co.  v.  Potthast,  109  la. 
413;  Cobb  v.  Knapp,  71  N.  Y.  348;  Nason  r.  Cockroft,  3  Duer,  366. 


CONTRACTS    OP  AGENTS.  117 

as  his  pretended  principal:  for  his  own  contract  cannot  be  the 
less  valid  because  the  contract  he  professed  at  the  same  time  to  make 
for  another  has  no  effect.  But  when  the  contract  is  not  by  its  form 
or  otherwise  such  as  would  of  itself  make  the  professed  agent  a  party 
to  it  there  are  several  distinctions  to  be  observed. 

Principal  named.  First,  let  us  take  the  cases  where  a  principal  is 
named.  The  other  party  prima  facie  enters  into  the  contract  on 
the  faith  of  that  principal's  credit.  But  credit  cannot  be  presumed 
to  be  given  except  to  a  party  who  is  capable  of  being  bound  by  the 
contract:  hence  it  is  material  whether  the  alleged  principal  is  one 
who  might  authorize  or  ratify  the  contract,  but  does  not,  or  is  one 
who  could  not  possibly  do  so. 

Who  might  be   responsible.     The  more  frequent  case  is  where  the 
party  named  as  principal  is  one  who  might  be  responsible. 

It  is  settled  law  that  there,  subject  to  the  qualifications  which  will 
appear,  the  pretended  agent  has  not  either  the  rights  or  the  liabilities 
of  a  principal  on  the  contract. 

Professed  agent  cannot  sue  on  the  contract.  First,  as  to  his  rights.  In 
Bickerton  v.  Burrell  (r)87  the  plaintiff  had  signed  a  memorandum 
of  purchase  at  an  auction  as  agent  for  a  named  principal.  Afterwards 
he  sued  in  his  own  name  to  recover  the  deposit  then  paid  from  the 
auctioneer,  and  offered  evidence  that  he  was  really  a  principal  in  the 
transaction.  But  he  was  non-suited  at  the  trial,  and  this  was  upheld 
by  the  full  Court,  who  laid  down  that  "  where  a  man  assigns  himself 
as  agent  to  a  person  named,  the  law  will  not  allow  him  to  shift  his 
position,  declaring  himself  principal  and  the  other  a  creature  of 
straw.  ...  A  man  who  has  dealt  with  another  as  agent  (s)  is 
not  at  liberty  to  retract  that  character  without  notice  and  to  turn  round 
and  sue  in  the  Character  of  principal.  The  plaintiff  misled  the  [  1 07 
defendant  and  was  bound  to  undeceive  him  before  bringing  an  ac- 
tion." This  leaves  it  doubtful  what  would  have  been  the  precise 
effect  of  the  plaintiff  giving  notice  of  his  real  position  before  suing: 
but  the  modern  cases  seem  to  show  that  it  would  only  have  put  the 
defendant  to  his  election  to  treat  the  contract  as  a  subsisting  contract 
between  himself  and  the  plaintiff  or  to  repudiate  it  at  once. 

Contrary  decision  of  Fellowes  v.  Lord  Gwydyr.  One  reported  case,  how- 
ever (t),  appears  to  be  directly  opposed  to  Bickerton  v.  Burrell.    The 

(r)    (1816)  5  M.  &  S.  383.  (*)   Fellowes      v.     Lord      Gioydyr 

(s)  I.  e.  for  a  named  and  responsi-  (1826-9)  1  Sim  63,  1  Russ.  &  M. 
ble  principal.  83,  32  R.  R.   148. 

87  See  also  Fox  v.  Tabel,  66  Conn.  397. 


118  CAPACITY  OF  PARTIES. 

facts  were  shortly  these.  Lord  Gwydyr  was  entitled  as  Deputy  Grand 
Chamberlain  to  the  decorations  used  in  Westminster  Hall  at  the 
coronation  of  George  IV.  He  sold  these  to  the  plaintiff  Fellowes, 
who  re-sold  them  to  the  defendant  Page  at  an  advanced  price,  but 
professed  to  be  selling  as  the  agent  of  Lord  Gwydyr,  and  signed  the 
agreement  for  sale  in  that  character.  Fellowes,  being  unable  to 
procure  Lord  Gvydyr's  consent  to  his  name  being  used  in  an  action, 
sued  Page  in  his  own  name  in  equity  for  a  balance  due  on  the  agree- 
ment. It  was  argued  for  the  defendant  that  he  had  been  misled  "  as 
to  a  most  important  ingredient  in  the  contract,  as  to  the  person, 
namely,  with  whom  he  had  really  contracted"  (u).  However  it  was 
held  by  Sir  John  Leach  V.C.  and  by  Lord  Lyndhurst  on  appeal,  that 
Page  could  not  resist  the  performance  of  the  contract  without  show- 
ing that  he  had  been  actually  prejudiced  by  having  it  concealed 
from  him  that  Fellowes  was  the  real  principal.  It  is  submitted  that 
this  decision  is  contrary  to  the  principles  laid  down  in  Bickerton  v. 
Burrell  and  the  other  cases  to  be  presently  cited,  and  is  not 
law  (x).S8 

108]  *  Rayner  v.  Grote.  The  doctrine  under  consideration  was  further 
defined  in  Rayner  v.  Grote  (y).  There  the  plaintiff  sued  to  recover  a 
balance  due  upon  the  sale  by  him  to  the  defendants  of  a  quantity  of 
soda  ash  according  to  a  bought  note  in  this  form : — "  I  have  this  day 
bought  for  you  the  following  goods  from  J.  &  T.  Johnson  — ■  50  tons 
soda  ash,  .  .  .  .  J.  H.  Eayner."  It  was  proved  that  the  plaintiff 
was  the  real  owner  of  the  goods,  and  13  tons  out  of  the  50  had  been 
delivered  to  the  defendants  and  accepted  by  them  at  a  time  when 
there  was  strong  evidence  to  show  that  they  knew  the  plaintiff  to 
be  the  real  principal.    The  law  was  stated  as  follows  (z)  : — 

"  In  many  such  cases  [viz.  where  the  contract  is  wholly  unperformed] 
such  as  for  instance  the  case  of  contracts  in  which  the  skill  or  solvency  of 
the  person  who  is  named  as  the  principal  may  reasonably  be  considered  as 
a  material  ingredient  in  the  contract,  it  is  clear  that  the  agent  cannot  then 

(«)    1  Russ.  &  M.  at  pp.  85,  88.  this   is   not  mentioned   in  the   judg- 

(x)   It  may  have  been  right  on  the  ments.      Equitable    cause    of    action 

facts,  on  the  ground  that  Page  con-  there  was  really  none.     No  judicial 

tinued  to  act  under  the  contract  af-  comment  on  the  case  has  been  met 

ter  knowing  the  true  state  of  things  with. 

(as    was    said    in    argument   for   the  (y)    (1846)    15   M.   &  W.   359,    16 

plaintiff,   1   Russ.   &  M.   83,  32  R.  R.  L.  j.  Ex.  79. 

151),    which   would    bring    the    ease  (z)    Per    Cur.    15   M.   &   W.   at  p. 

within    Rayner   y.    Grote    (1846)     15  305;  and  see  the  remarks  on  Bicker- 

M.   &  W.   359,   16  L.  J.   Ex.  79,  but  ton  v.  Burrell,  ad  fin. 

&8  This  criticism  of  Fellowes  r.  Lord  Gwydyr  is  justified  by  the  contrary  de- 
cision in  Archer  v.  Stone,  78  L.  T.  Rep.  34.  See  also  Fisher  v.  Worrall,  5 
W.  &  S.  475,  483 ;  Ames's  Cas.  Eq.  Jur.  354,  n. 


CONTRACTS   OF  AGENTS.  119 

show  himself  to  be  the  real  principal  and  sue  in  his  own  name;  and  perhaps 
it  may  be  fairly  urged  that  this,  in.  all  executory  contracts,  if  wholly  unper- 
formed, or  if  partly  performed  without  the  knowledge  of  who  is  the  real 
principal,  may  be  the  general  rule." 

But  here  part  performance  had  been  accepted  by  the  defendants 
with  full  knowledge  that  the  plaintiff  was  the  real  principal,  and 
i'  was  therefore  considered  that  the  plaintiff  was  entitled  to  recover. 

The  professed  agent  cannot  be  sued  on  the  contract.  Next,  as  to  the  pre- 
tended agent's  liability.  It  was  at  one  time  thought  that  an  agent 
for  a  named  principal  who  turned  out  to  ha,ve  no  authority  might  be 
sued  as  a  principal  on  the  contract  (a).89  3ut  it  has  been  deter- 
mined that  he  is  not  liable  on  the  contract  itself  (&).00 

Implied  warranty  of  authority.  He  is  liable  however  on  an  implied 
warranty  of  his  authority  to  bind  his  principal.  This  was  decided  in 
Collen  v.  *Wright  (c),  and  has  been  followed  in  several  later  [109 
cases  (d).sl     In  the  rare  case  of  a  person  purporting  to  contract  as 

(a)   Cp.  Pothier,  Obi.   §   75.  L.  R.  7  Ch.  777,  7  H.  L.  102,  41  L.  J. 

(&)   Lewis  v.  Nicholson   (1852)    18  Ch.  804,  44  io.  20;  Weeks  V.  Propert 

Q.  B.  503,  21  L.  J.  Q.  B.  311.  (1873)    L.   R.   8   C.   P.   427,   437,   42 

(c)    (1857)  7  E.  &  B.  301,  26  L.  J.  L.  J.  C.  P.   129.     And  the  rule  can- 

Q.  B.  147 ;  in  Ex.  Ch.  8  E.  &  B.  647,  not  be  applied  to  make  a  public  ser- 

27  L.  J.  Q.  B.   215.  vant  acting  on  behalf  of  the   Crown 

{d)   Richardson       v.       Williamson  personally  liable:    Dunn  v.   Macdon- 

(1871)    L.  R.  6  Q.  B.  276,  40  L.  J.  aid  [1897]    1  Q.  B.  555,  66  L.  J.  Q. 

Q.  B.   145 ;    Cherry  v.   Colonial  Bank  B.  420,  C.A.     As  to  the  measure  of 

of  Australasia    (1869)    L.  R.  3  P.  C.  damages,  Simons  v.  Patchett    (1857) 

24,   31;    Oliver  v.   Bank   of  England  7   E.  &  B.  568,  26  L.  J.  Q.  B.   195; 

[1901]    1   Ch.   652,   70   L.  J.   Ch.  377  Spedding   v.   Nevell    (1869)    L.  R.   4 

[aff'd    [1902]    1    Ch.   610].     But   the  C.  P.  212,  38  L.  J.  C.  P.   133;    God- 

representation  of  the   agent  that  he  win  v.  Francis   (1870)    L.  R.  5  C.  P. 

has  authority  must  be'  a  representa-  295,   39   L.  J.    C.   P.    121 ;    Ex  parte 

tion   of   matter    of   fact   and   not   of  Panmwre    (1883)    24  Ch.  Div.  367. 
law:   Beattie  v.  Lord  Elury   (1872) 

88Coffman  v.  Harrison,  24  Mo.  524;  Byars  v.  Doore's  Adm'r,  20  Mo.  284; 
Weare  v.  Gove,  44  N.  II.  196;  Walker  v.  Bank,  9  N.  Y.  582,  585;  Oliver  t. 
Morawetz,  97  Wis.  332. 

80  The  Serapis,  37  Fed.  Rep.  436 ;  Lander  v.  Castro,  43  Cal.  497 ;  Duncan  v. 
Niles,  32  111.  532;  Noyes  v.  Loring,  55  Me.  408;  Simpson  v.  Garland,  76  Me. 
203;  Bartlett  v.  Tucker,  104  Mass.  336;  Sheffield  v.  Ladue,  16  Minn.  388; 
White  r.  Madison,  26  N.  Y.  117. 

91  Bank  v.  Friend,  90  Fed.  Rep.  703;  Seeberger  r.  McCormick,  178  111.  404; 
Railroad  Co.  v.  Richardson,  135  Mass.  473,  475 ;  Conant  v.  Alvord,  166  Mass. 
311;  Tinken  v.  Tallmadge,  54  N.  J.  L.  117;  White  v.  Madison,  26  N.  Y.  117; 
Baltzen  v.  Nicolay,  53  N.  Y.  467;  Simmons  v.  More,  100  N.  Y.  140;  Taylor  v. 
Nostrand,  134  N.  Y.  108 ;  Farmers'  Trust  Co.  v.  Floyd,  47  Ohio  St.  525 ;  Coch- 
ran v.  Baker,  34  Oreg.  555;  or  in  a  special  action  on  the  case:  McHenry  V. 
Duffield,  7  Blackf.  41 ;  Noyes  v.  Loring,  55  Me.  408 ;  Abbey  v.  Chase,  6  Cush. 
64;  Bartlett  r.  Tucker,  104  Mass.  336;  Sheffield  v.  Ladue,  16  Minn.  388; 
Kroeger  v.  Pitcairn,  101  Pa.  311. 

If  an  agent  in  good  faith  contracts  with  one  to  whom  he  discloses  the 
facts  relating  to  his  supposed  authority,  or  who  is  equally  with  the  agent 
chargeable  with  a  knowledge  of  them,  he  does  not  become  personally  liable. 


120 


CAPACITY    OF    PAKTIES. 


agent  for  a  named  principal,  and  at  the  same  time  expressly  dis- 
claiming any  present  authority,  the'  implied  warranty  is  excluded, 
for  the  other  party  does  not  rely  on  the  existence  of  authority  and 
is  not  misled,  but  is  content  to  take  the  chance  of  ratification  for 
what  it  may  be  worth  (e).  The  pretended  agent  is  also  generally 
liable  to  an  action  in  tort  if  he  did  not  believe  that  he  had  author- 
ity (f).  The  liability  on  implied  warranty  is  not  affected  by  the 
supposed  agent's  good  faith  where  he  does  so  believe,  and  it  has 
been  suggested  that  the  rule  now  applies  even  where  a  real  authority 
has  been  determined,  unknown  to  the  agent,  by  the  death  of  the 
principal  (<?). 


(e)  Halbot  v.  Lens  [1901]  1  Ch. 
344,  70  L.  J.  Ch.  125.  It  would 
seem  arguable  that  in  such  a  case 
there  is  nothing  capable  of  ratifi- 
cation. 

(f)  Randell  v.  Trimen,  (1856)  18 
C.  B.  786,  25  L.  J.  C.  P.  307.  The 
object  of  establishing  the  liability 
ex  contractu  was  to  have  a.  remedy 
against  executors. 

For  a  somewhat  similar  doctrine 
applied  to  the  contract  to  marry, 
see  Millward  v.  Littlewood  (1850)  5 
Ex.  775,  20  L.  J.  Ex.  2,  and  Wild  v. 
Harris  (1849)  7  C.  B.  999,  18  L.  J. 
C.  P.  297.  Here  however  theTe  is 
not  properly  a  warranty,  for  the 
promisor's  undertaking  that  he  is 
legally  capable  of  marrying  the 
promisee  is  a  term  in  the  principal 
contract  itself.  See  Chap.  VII.  be- 
low, ad  fin.  [In  accord  see  Paddock 
i;  Robinson,  63  111.  99;  Davis  v. 
Pryor,  3  Ind.  Ty.  396;  Kelly  v.  Rilev, 
106  Mass.  339 ;  Stevenson  v.  Pettis, 
12  Phila.  468;  Coover  v.  Davenport,  1 
Heisk.  368. 

In  Blattmacher  v.  Saal,  29  Barb.  22, 
and  Pollock  v.  Sullivan,  53  Vt.  507,  it 
was  held  that  an  action  of  deceit 
would  He.  See  also  Morrill  v. 
Palmer,  68  Vt.  1. 


If  the  woman  knew  the  man  to  be 
married  the  agreement  would,  of 
course,  be  unlawful.  Davis  v.  Pryor, 
112  Fed.  Rep.  274;  Paddock  v.  Robin- 
son, 63  111.  99;  Eve  v.  Rogers,  12 
Ind.  App.  623;  Noice  v.  Brown,  38  N. 
J.  L.  228;   39  N.  J.  L.  133. 

Where  a  statute  made  absolutely  void 
the  marriage  of  a  person  incurably  im- 
potent, it  was  held  that  no  action 
would  lie  for  the  breach  of  such  per- 
son's promise  of  marriage  made  to 
one  who  knew  his  condition.  Gulick 
v.  Gulick,  41  N.  J.  L.  13.  And  see 
Haviland  v.  Halstead,  34  N.  Y.  643. 

In  Price  v.  Price,  75  N.  Y.  244,  it 
was  decided  that  an  action  to  recover 
damages  for  fraud  on  the  part  of  de- 
fendant, in  that  he  induced  plaintiff 
to  marry  and  cohabit  with  him  by 
means  of  false  and  fraudulent  repre- 
sentations that  his  first  wife  was 
dead,  and  that  he  was  legally  capable 
of  marrying,  did  not  survive  against 
his  personal  representatives.  Ace. 
Payne's  App.,  65  Conn.  397 ;  Gremm 
r.  Carr's  Adm..  31  Pa.  533.  Contra, 
Withee  v.  Brooks,  65  Me.  14.] 

(g)  Halbot  v.  Lens,  note  (e) 
above. 


N.  Y.  &  C.  Steamship  Co.  r.  Harbison,  16  Fed.  Rep.  688;  Ware  v.  Morgan,  67 
Ala.  461;  Ogden  v.  Raymond,  22  Conn.  378;  Mann  v.  Richardson,  66  111.  481; 
Newman  r.  Sylvester,  42  Ind.  106;  Watson  v.  Rickard,  25  Kan.  662;  Murray 
t?.  Carrothers,  1  Met.  (Ky.)  71;  Southworth  v.  Flanders,  33  La.  Ann.  190; 
Sanborn  v.  Neal,  4  Minn.  126;  Walker  v.  Bank,  9  N.  Y.  582,  587;  Snow  r. 
ITix,  54  Vt.  478;  MeCurdy  r.  Rogers,  21  Wis.  197. 

As  to  the  measure  of  damages,  see  Railroad  Co.  v.  Richardson,  135  Mass. 
473;  Skaaraas  r.  Finnegan,  31  Minn.  48;  White  v.  Madison,  26  N.  Y.  117; 
Dung  v.  Parker,  52  N.  Y.  494,  500;  Farmers'  Trust  Co.  v.  Floyd,  47  Ohio 
St.  525. 


CONTRACTS    OF  AGENTS.  121 

0.  Rules  applicable  only  where  alleged  principal  could  be  such.  The 
rules  last  stated  are  applicable  only  where  the  alleged  principal  was 
ascertained  and  existing  at  the  time  the  contract  was  made,  and 
might  have  been  in  fact  principal. 

*Here  the  doctrine  of  ratification  is  important.  When  a  prin-  [110 
cipal  is  named  or  described,  but  is  not  capable  of  authorizing  the 
contract  so  as  to  be  bound  by  it  at  the  time,  there  can  be  no  binding 
ratification :  for  "  ratification  must  be  by  an  existing  person  on  whose 
behalf  a  contract  might  have  been  made  at  the  time"  (7i).92 

There  fall  under  this  head  contracts  entered  into  by  professed 
agents  on  behalf  of  wholly  fictitious  persons,  or  uncertain  persons 
or  sets  of  persons  with  whom  no  contract  can  be  made  by  the  descrip- 
tion given,  persons  in  existence  but  incapable  of  contracting,  and 
lastly  (which  is  in  practice  the  most  important  case)  proposed 
companies  which  have  not  yet  acquired  a  legal  existence  ((')-93  Now 
when  a  principal  is  named  who  might  have  authorized  the  contract, 
there  is  at  the  time  of  the  contract  a  possibility  of  his  being  bound 
by  subsequent  ratification.  But  when  the  alleged  principal  could  not 
have  authorized  the  contract,  then  it  is  plain  from  the  beginning 
that  the  contract  can  have  no  operation  at  all  unless  it  binds  the  pro- 

(h)    Per    Willes    J.    and    Byles    J.  referred    to:     Scott    v.    Lord    Ebury 

Kelner    v.    Baxter     (1866)     L.    R.    2  (1867)    ib.    255;    Empress   Engineer- 

C.   P.    174,    185,   36   L.   J.   C.   P.   94;  ing    Co.     (18S0)     16    Ch.    Div.     125, 

Scott  v.  Lord  Ebury   (1867)   L.  R.  2  overruling   Spiller   v.    Paris    Skating 

V.   P.   255,  267,   36   L.  J.   C.  P.   161.  Rink  Co.   (1878)   7  Ch.  D.  368.     Com- 

When    ratification    is    admitted,    the  panies   have  been   held   in   equity   to 

original    contract    is    imputed    by    a  be  bound  by  the  agreements  of  their 

fiction  of   law  to  the   person  ratify-  promoters,  but  on  grounds  independ- 

ing;    and   the   fiction   is   not   allowed  ent   of  contract.      Action   upon    such 

to  be  extended  beyond  the  bounds  of  an    agreement   by  the    company,    un- 

possibility.     Perhaps  there  is  no  solid  der    the   mistaken    belief   that    it    is 

reason    for    the    rule,    but    it    is    an  binding,    cannot    be    treated    as    evi- 

established    one.  dence     of     a     new     agreement:      Re 

(i)    Kelner    v.    Baxter     (1866)     L  'Northumberland    Avenue    Hotel    Co. 

R.  2  C.  P.  174,  and  authorities  there  (1886)   33  Ch.  Div.  16,  54  L.  T.  777. 

82  It  is  essential  that  the  party  ratifying  should  be  able  to  do  the  act 
ratified  not  merely  at  the  time  the  act  was  done,  but  also  at  the  time  of 
ratification.  Cook  v.  Tullis,  18  Wall.  332,  338.  National  Works  v.  Oconto 
Water  Co.,  68  Fed.  Rep.  1006;  Hardware  Co.  v.  Deere,  53  Ark.  140;  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591;  McDonald  t.  McCov,  121  Cal.  55; 
McArthur  r.  Times  Printing  Co.,  48  Minn.  319;  Pollock  v.  Cohen,  32  Ohio  St. 
514;  Railroad  v.  Christy,  79  Pa.  54;  Milford  v.  Water  Co.,  124  Pa.  610. 

93  Winters  v.  Hub  Mining  Co.,  57  Fed.  Rep.  287;  Abbott  v.  Hapgood,  150 
Mass.  248 ;  Carmody  V.  Powers,  60  Mich.  26 ;  Wonderly  r.  Booth,  36  N.  J.  L. 
250;  Weatherford  Co.  v.  Granger,  86  Tex.  350;  36  Am.  L.«Reg.  N.  S.  545,  560, 
609,  673. 

But  a  note  given  by  a  corporation,  after  its  formation,  for  services  ren- 
dered previously  was  held  valid  in  Smith  v.  Hartford  Water  Works,  73  Conn. 
626. 


122  CAPACITY  OF  PARTIES. 

fessed  agent.  It  is  construed  accordingly  ut  res  magis  valeat  quam 
•pereat,  and  he  is  held  to  have  contracted  in  person  (fc).94 

This  principle  has  been  carried  so  far  that  in  a  case  where  certain 
persons,  chu'rchwardens  and  overseers  of  a  parish,  covenanted  "  for 
themselves  and  for  their  successors,  churchwardens  and  overseers  of 
111]  the  parish,"  and  there  was  *an  express  proviso  that  the  cove- 
nant should  not  bind  the  covenantors  personally,  but  was  intended 
to  bind  the  churchwardens  and  overseers  of  the  parish  for  the  time 
being  as  such  churchwardens,  &c,  but  not  otherwise,  it  was  held 
that  since  the  funds  of  the  parish  could  not  be  bound  by  the  instru- 
ment in  the  manner  intended,  the  effect  of  the  proviso  was  to  make 
no  one  liable  on  the  covenant  at  all,  and  therefore  the  proviso  was 
repugnant  and  void,  and  the  covenantors  were  personally  liable  (Z).9B 

Accordingly  the  proper  course  for  the  other  contracting  party  is 
to  sue  the  agent  as  principal  on  the  contract  itself,  and  he  need  not 
resort  to  the  doctrine  of  implied  warranty  (m).96    And  as  the  agent 

(fc)   Kelner    v.    Baxter    (1866)     L.  bound    if    the   principal    cannot    be? 

E.  2  C.  P.  at  pp.  183,  185.  In    Kelner    v.    Baxter    oral    evidence 

(I)   Furnival  v.  Coombes   (1843)   5  was  offered  that  such  was  the  inten- 

M.   &   Gr.    736,    12   L.  J.   C.   P.   265.  tion,    but    was    rejected    as    contrary 

But   the   doctrine   of   this    case   will  to    the    terms    of    the   writing    sued 

certainly     never     be     extended     (see  upon. 

Williams  v.  Hathaway  (1877)  6  Ch.  (m)  Kelner  v.  Baxter,  note  (fc), 
D.  544)  ;  and  qu.  whether  it  would  last  page.  Cp.  West  London  Corn- 
apply  to  an  instrument  not  under  mercial  Bank  v.  Kitson  (1884)  12 
seal.  It  is  clearly  competent  to  the  Q.  B.  D.  157,  where  a  bill  was  ac- 
parties  to  such  an  instrument  to  cepted  by  directors  on  behalf  of  a 
make  its  operation  as  a  contract  con-  company  which  had  no  power  to  ae- 
ditional  on  any  event  they  please;  cept  bills;  the  liability  was  put  on 
and  in  such  a  case  as  this  why  may  the  ground  of  deceit  in  13  Q.  B.  Div. 
they  not  agree  that  nobody  shall  be  360,  53  L.  J.  Q.  B.  345. 

84  N.  Y.  &  C.  Steamship  Co.  v.  Harbison,  16  Fed.  Rep.  688 ;  Allen  r.  Pegram, 
1G  la.  163;  Woodbury  i:  Blair,  18  la.  572;  Blakeley  r.  Benneke,  59  Mo.  193; 
Codding  t'.  Munson,  52  Nebr.  580;  Learn  v.  Upstill,  52  Nebr.  271;  Wonderly 
v.  Booth,  36  N.  J.  L.  250 ;  cp.  Jefts  r.  York,  10  Cush.  392.  See  also  Knicker- 
bocker v.  Wilcox,  83  Mich.  200. 

95  In  Bank  r.  Dix,  123  Mass.  148,  the  instrument  sued  upon  was  in  the  form 
of  a  promissory  note,  beginning,  "  We  as  trustees  but  not  individually  prom- 
ise to  pay,"  and  was  signed,  "A.,  B.  and  C.  trustees.''  The  makers  were  held 
not  personally  liable.  The  court  said :  "  Even  if  it  be  found  that  the  con- 
tract, according  to  its  true  meaning,  has  no  legal  validity,  or  fails  to  become 
operative,  it  is  not  for  the  court,  in  order  to  give  it  operation,  to  suppose  a 
meaning  which  the  parties  have  not  expressed,  and  which  it  is  certain  they 
did  not  entertain.  It  must  be  assumed  that  all  the  language  used  in  the  con- 
tract was  selected  with  some  purpose,  and  is  to  be  of  some  effect.  If  a  party, 
therefore,  in  a  contract  into  which  he  voluntarily  enters,  and  not  in  the 
execution  of  any  official  trust  or  duty,  makes  it  an  express  stipulation  that 
he  is  acting  for  somebody  else,  and  is  in  no  event  to  be  personally  liable,  he 
certainly  cannot  be  rendered  so  by  law." 

96  Patrick  v.  Bowman,  149  U.  S.  411,  412:  Lewis  r.  Tilton.  64  la.  220. 


CONTRACTS    OF   AGENTS.  123 

can  be  sued,  so  it  is  apprehended  that,  in  the  absence  of  fraud,  he 
might  sue  on  the  contract  in  his  own  name. 

When  professed  agent  may  be  his  own  unnamed  principal.  A  slightly 
different  case  is  where  a  man  professes  to  contract  as  agent,  but  with- 
out naming  his  principal.  He  is  then  (as  said  above)  prima  facia 
personally  liable  in  his  character  of  agent.  But  even  if  the  contract 
is  so  framed  as  to  exclude  that  liability  (and  therefore  any  correlative 
right  to  sue),  he  is  not  precluded  from  showing  that  he  himself  is 
the  principal  and  suing  in  that  character.  This  was  decided  in 
Schmaltz  v.  Avery  (w).97  The  action  was  on  a  charter-party.  The 
charter-party  in  terms  stated  that  *it  was  made  by  Schmaltz  &  [  11 2 
Co.  (the  plaintiffs)  as  agents  for  the  freighters;  it  then  stated  the 
terms  of  the  contract,  and  concluded  in  these  words :  "  This  charter 
being  concluded  on  behalf  of  another  party,  it  is  agreed  that  all  re- 
sponsibility on  the  part  of  G.  Schmaltz  &  Co.  shall  cease  as  soon  as 
the  cargo  is  shipped."  This  clause  was  not  referred  to  in  the  declara- 
tion, nor  was  the  character  of  the  plaintiff  as  agent  mentioned,  but 
he  was  treated  as  principal  in  the  contract.  At  the  trial  it  was  proved 
that  the  plaintiff  was  in  point  of  fact  the  real  freighter.  Before  the 
Court  in  banc  the  cases  of  Bicherton  v.  Burrell  and  Rayner  v.  Orote(o) 
were  relied  on  for  the  defence,  but  it  was  pointed  out  that  in  those 
cases  the  agent  named  a  principal  on  the  faith  of  whose  personal 
credit  the  other  party  might  have  meant  to  contract.  Here  "  the 
names  of  the  supposed  freighters  not  being  inserted,  no  inducement 
to  enter  into  the  contract  from  the  supposed  solvency  of  the  freighters 
[could]  be  surmised.  .  .  .  The  plaintiff  might  contract  as  agent 
for  the  freighter,  whoever  the  freighter  might  turn  out  to  be,  and 
might  still  adopt  that  character  of  freighter  himself  if  he  chose  "  (p).98 
And  conversely,  a  man  who  has  contracted  in  this  form  may  neverthe- 
less be  sued  on  the  contract  as  his  own  undisclosed  principal,  if  the 

(«)    (1851)     16    Q.    B.    655     (the  Brandt    (1871)    L.   R.   6   Q.   B.    720, 

statement  of  the  facts  is  taken  from  40  L.  J.  Q.  B.  312),  there  are  some 

the  judgment  of  the  Court,  p.   658),  expressions  not  very  consistent  with 

20  L.  J.  Q.  B.  228.  this,    but    they    were    by    no    means 

(o)  See  pp.  *306 — *108,  above.  necessary    for    the    decision.       More- 

\p)    In    a"   later    case    in    the    Ex-  over    Schmaltz    V.     Avery    was    not 

chequer       Chamber        (Sharman      V.  cited. 

97  But  see  Paine  v.  Loeb,  96  Fed.  Rep.  164  (c.  c.  a.). 

98  See  also  Huffman  v.  Long,  40  Minn.  473 ;  cp.  Ellsworth  v.  Randall,  78 
la.   141. 

But  where  A.  refused  to  sell  goods  to  B.  personally,  and  B.  falsely  stating 
that  he  was  acting  as  agent  for  another,  induced  A.  to  let  him  have  the 
goods,  the  sale  was  held  void.  Rodliff  r.  Dallinger,  141  Mass.  1 ;  cp.  Kayton 
v.  Barnett,  116  N.  Y.  625. 


124  CAPACITY  OF  PARTIES. 

other  party  can  show  that  he  is  in  truth  the  principal,  but  not  other- 
wise (q).  In  the  same  manner  it  is  open  to  one  of  several  persons 
with  whom  a  contract  was  nominally  made  to  show  that  he  alone  was 
the  real  principal,  and  to  sue  alone  upon  the  contract  accord- 
ingly (r). 

113]  *II.  Artificial  Persons. 

Nature  of  artificial  persons:  In  a  complex  state  of  civilization,  such 
as  that  of  the  Eoman  Empire,  or  still  more  of  the  modern  Western 
nations,  it  constantly  happens  that  legal  transactions  have  to  be  under- 
taken, rights  acquired  and  exercised,  and  duties  incurred  by  or  on 
behalf  of  persons  who  are  for  the  time  being  charged  with  offices  of 
a  public  nature  involving  the  tenure  and  administration  of  property 
for  public  purposes,  or  interested  in  carrying  out  a  common  enter- 
prise or  object.  This  enterprise  or  object  may  or  may  not  be  of  a 
kind  likely  to  be  worked  out  within  a  definite  time,  and  may  or  may 
not  further  involve  purposes  and  interests  of  a  public  nature.  The 
rights  and  duties  thus  created  as  against  the  world  at  large  are  wholly 
distinct  from  the  rights  and  duties  of  the  particular  persons  imme- 
diately concerned  in  the  transactions.  Those  persons  deal  with  in- 
terests beyond  their  own,  though  in  many  cases  including  or  involving 
them,  and  it  is  not  to  their  personal  responsibility  that  third  parties 
dealing  with  them  are  accustomed  to  look. 

This  distinction  (the  substantial  character  of  which  it  is  important 
to  bear  in  mind)  is  conveniently  expressed  in  form  by  the  Eoman 
invention,  adopted  and  largely  developed  in  modern  systems  of  law, 
of  treating  the  collective  persons  who  from  time  to  time  hold  such 
a  position  —  or,  in  some  cases  and  according  to  some  opinions,  the 
property  or  office  itself  —  as  a  single  and  continuous  artificial  per- 
son (s)  or  ideal  subject  of  legal  capacities  and  duties.  It  is  possible 
to  regard  the  artificial  person  as  a  kind  of  fictitious  substance  con- 
ceived as  supporting  legal  attributes;  and  in  fact  this  was,  until 
lately,  the  prevailing  theory  of  modern  civilians  on  the  Continent  (t). 
114]  But  it  is  equally  ^possible,  and  it  seems  not  only  more  philo- 

(q)  Garr  v.  Jackson  (1852)  7  Ex.  "moral  person.''  but  it  has  not  been 
382,  2  L.  J.  Ex.  137.  generally  adopted  by  English  writ- 
(r)  Spurr  v.  Cass  (1870)  L.  R.  5  ers.  Observe  that  the  English  term 
Q.  B.  656,  39  L.  J.  Q.  B.  249.  "  artificial "  is  not  the  same  as  "  fie- 
fs) Fr.  corps  or  etre  moral,  per-  titious." 
sonne  morale  (but  this  does  not  (t)  See  Prof.  Maitland'S  Intro- 
necessarily  import  capacity  to  sue  or  duction  to  Gierke's  Political  Theo- 
be  sued  in  a  corporate  name)  ;  Germ.  ries  of  the  Middle  Age,  Cambridge 
juristische  Person;  Ital.  ente  morale.  1900;  further  references  there,  at  p. 
Kent,   Comm.   2.   268,   uses   the  term  xxvi. 


CORPORATIONS.  l'2o 

sophieal  but  more  business-like,  to  hold  that  what  we  call  the  artificial 
identity  of  a  corporation  is  within  its  own  sphere  and  for  its  own 
purposes  just  as  real  as  any  other  identity  (u).  The  corporation 
becomes,  within  the  limits  assigned  to  its  existence,  "  a  body  distinct 
from  the  members  composing  it,  and  having  rights  and  obligations 
distinct  from  those  of  its  members."  "  This  is  often  called  a  fic- 
tion: but  it  represents  a  class  of  facts  not  confined  to  legal  usage 
or  legal  purposes.  In  the  case  of  an  ordinary  partnership  the  firm 
is  treated  by  mercantile  usage  as  an  artificial  person,  though  not 
recognized  as  such  by  English  law;  and  other  voluntary  and  un- 
incorporated associations  are  constantly  treated  as  artificial  persons 
in  the  language  and  transactions  of  every-day  life.  An  even  more 
remarkable  instance  is  furnished  by  the  artificial  personality  which 
is  ascribed  to  the  public  journals  by  literary  custom  or  etiquette, 

(u)   In   the   United   States   a   cor-  Constitution.     Blake  v.  McClung,  172 

poration  duly  created  by  the  laws  of  U.    S.   240,   176   U.    S.    59,   65.      Nor 

any    state    is    treated    as    a    person  within  the  14th  amendment.     Paul  v. 

dwelling  in,  and  therefore  a   citizen  Virginia,    8    Wall.    168;    Orient    Ins. 

of,  that  state  within  the  meaning  of  Co.    v.    Daggs,    172    U.    S.    557,    561. 

the    constitutional    provision    which  But    the    property    rights    of    a    cor- 

enables  the  Federal  courts  to  enter-  poration     are     protected     under     the 

tain  suits  between  citizens  of  differ-  14th    amendment,    as    if    it    were    a 

ent    states.      See   Marshall  v.   Balti-  "  person."     Railway  Co.  v.  Ellis,  165 

more  and   Ohio  Railr.   Co.    1853)    16  U.  S.  150;  Smyth  v.  Ames,  169  U.  S. 

Howard,      314.        [Railway      Co.     v.  466.]       On    the    philosophy    of    legal 

James,   161   U.   S.   545;   Railway  Co.  personality       cp.       R.       Wallaschek, 

v.  Louisville  Trust  Co.,  174  U.  S.  552,  Studien  zur  Rechtsphilosophie,  Leip- 

565.     A  corporation  is  not,  however,  zig,   1889. 
a  citizen  within  art.  4  sec.  2  of  the 

99  It  is  "  too  familiar  to  everybody  to  require  being  formally  stated  and 
explained  that  a  corporation  is  a  person  in  law  distinct  from  all  the  mem- 
bers composing  it;"  per  Shaw,  C.  J.,  in  Bank  v.  Morton,  4  Gray,  156,  159; 
Society  of  Practical  Knowledge  c.  Abbott,  2  Beav.  559,  567 ;  Graham  v.  Rail- 
road Co.,  102  U.  S.  148,  160;  Edison  v.  Hawthorne,  108  Fed.  Rep.  839,  840; 
Moore,  &c.  Co.  v.  Towers  Co.,  87  Ala.  206;  Gorham  v.  Gilson,  28  Cal.  479; 
Buffalo,  &c.  Co.  r.  Medina  Gas  Co.,  162  N.  Y.  67,  76;  Bank  v.  Irebein  Co.,  59 
Ohio  St.  316;  Button  i:  Hoffman,  61  Wis.  20.  But  see  Ohio  v.  Standard  Oil 
Co.,  49  Ohio  St.  137;  Cincinnati  Volksblatt  Co.  v.  Hoffmeister,  62  Ohio  St. 
189,  200. 

A  deed  of  lands  belonging  to  a  corporation,  executed  by  all  the  members, 
does  not  pass  the  title  of  the  corporation.  Gashwiler  v.  Willis,  33  Cal.  11,  19 ; 
Wheelock  v.  Moulton,  15  Vt.  519.  But  see  Phoenix  Assur.  Co.  v.  Daven- 
port, 16  Tex.  Civ.  App.  283;  McElroy  v.  Percheron  Horse  Co.,  96  Wis. 
317.'  And  the  covenant  of  all  the  members  that  the  corporation  will  do  a 
certain  thing  is  not  binding  as  the  covenant  of  the  corporation.  Tileston  v. 
Newell,  13  Mass.  406;  Peabody  v.  Flint,  6  Allen,  52,  55.  And  see  Grant  on 
Corporations,  15;  Bristol  Milling  &  Manufacturing  Co.  v.  Probasco,  64 
Ind.  406. 

If  a  single  stockholder  acquires  all  the  shares  of  a  corporation,  it  does  not 
dissolve  the  corporation,  and  it,  not  he,  is  the  owner  of  the  corporate  property. 
Keys  v.  Weaver,  95  la.  13;  Louisville  Banking  Co.  v.  Eisenman,  (Ky.)  40  Am. 
&  Eng.  Corp.  Cas.  243,  and  note;  Randall  v.  Dudley,  111  Mich.  437;  Harring- 
ton v.  Connor,  51  Neb.  214. 


126  CAPACITY  OF  PARTIES. 

and  is  so  familiar  in  writing  and  conversation  that  its  curiosity  most 
commonly  escapes  attention.  The  existence  of  these  artificial  per- 
sons by  private  convention,  if  we  may  so  call  them,  shows  that,  if 
indeed  there  be  any  fiction  in  the  matter,  it  is  not  superfluous  or 
arbitrary  (w). 

Corporations  in  the  Common  Law.  In  the  Common  Law  no  speculative 
opinion  on  the  subject  has  been  definitely  adopted  (x),  though  it 
seems  likely  that  only  Coke's  incapacity  for  grasping  any  gen- 
115]  eral  *theory,  good  or  bad,  saved  us  from  what  is  now  known 
as  the  "fiction  theory"  among  Continental  publicists  (y). 

In  our  authorities  and  practice  the  necessary  marks  of  legal  cor- 
porate existence  are  a  recognized  collective  name  (which  however 
need  not  be  expressly  conferred  at  the  outset),  and  capacity  to  sue, 
be  sued,  and  do  other  acts  in  the  law,  in  that  name. 

Perpetual  succession,  that  is,  the  existence  of  a  body  independent 
of  the  natural  life  of  any  one  or  more  members,  and  a  common 
seal  to  authenticate  the  corporate  acts,  are  consequences  or  incidents 
of  incorporation  rather  than  primary  constituents.  A  corporation 
legally  qualified  to  act  as  such  can  exist  only  with  the  sanction  of 
the  State,  which  may  be  expressed  in  England  by  a  royal  charter  (z) 
or  by  statute.  The  statutory  sanction  may  take  the  form—as  in 
the  familiar  case  of  the  Companies  Acts — of  authorizing  persons 
who  are  so  minded  to  constitute  themselves  into  corporations  by  ful- 
filling specified  general  conditions.  In  this  class  of  cases,  at  any 
rate,  it  would  seem  that  the  operative  registration,  or  other  appointed 
formality,  is  not  properly  considered  as  involving  fiction  of  any  kind, 
but  is  the  official  recognition  and  regulation  of  substantial  matters 
of  fact.  With  us  the  official  sanction  is  a  matter  of  procedure  and 
public  convenience.  In  the  Soman  law  of  the  Empire  it  was  an 
offence  to  form  any  kind  of  association  without  public  authority; 

(it))    "The    orthodox     doctrine     of  Co.  Rep.  at  fo.  29  b,  shows  that,  if 

the    common    law,    which    recognizes  any   theory   had  been  formulated,   it 

only  individuals  and  corporations  as  would   have   been   the   then    received 

entities,     undoubtedly    lags    far    be-  one  of  the  civilians, 

hind  the  ordinary  conceptions  of  lay-  (z)   The   want   of   this   has   to   be 

men"-     Harv.  Law  Eev.  xv.  311.  supplied  in  some  cases  by  the  fiction 

(cc)    Hobbes  gives  an  admirable  ex-  of  a   lost  grant:      Blackst.   Comm.   i. 

position   of   the    purely   individualist  473.     See   the   whole   chapter    (Book 

view  in  the  16th  chapter  of  his  Levi-  1.   eh.    18)    for   a   literary   exposition 

athan,  but  of  course  without  regard  of   the   Common   Law  doctrine  as   it 

to  authority.  stood  in  the  latter  part  of  the  18th 

(y)   The  slight  reference  to  Roman  century, 
law  in  the  Sutton's  Hospital  case,  10 


CORPORATIONS.  127 

thus  the  early  Christian  churches  were  exposed  to  penalties  by  the 
mere  fact  of  being  collegia  illicita.  This  principal  has  largely  sur- 
vived in  the  modern  public  law  of  the  Continent;  only  the  faintest 
signs  of  any  attempt  to  imitate  it  occur  in  ours  (a). 

*The  holders  of  ecclesiastical  benefices  and  dignities  are  said,  [116 
by  an  analogy  which  is  of  no  great  antiquity,  to  be  "  corporations 
sole."  1  Little  or  no  useful  result  seems  to  be  attained,  for  the  alleged 
corporate  character  of  a  parson  does  not  prevent  the  freehold  of  the 
church  from  being  in  abeyance  when  he  dies,  though  a  grant  to  an 
existing  parson  and  his  successors  is  effectual.  By  a  still  more  doubt- 
ful extension  of  the  analogy,  the  Crown  is  said  to  be  a  corporation 
sole  (b)  f  and  the  same  description  has  been  applied  by  statute  to 
the  holders  of  a  certain  number  of  public -offices  (c).  It  may  be 
sufficient  to  observe,  so  far  as  the  principle  is  concerned,  that  for 
many  centuries  the  Vatican  and  its  contents — to  say  nothing  of 
the  spiritual  powers  and  other  formal  temporal  possessions  of  the 
Holy  See — have  been  held  under  an  absolutely  unique  system  of 
succession,  but  it  has  never  occurred  to  any  one  to  call  the  Pope 
a  corporation  sole.  At  any  rate,  the  persons  whom  we  have  to  call 
corporations  sole  in  England  can  do  very  little  in  their  corporate 
capacity,  and  in  particular  cannot  bind  or  even  benefit  their  official 
successors  by  contract,  except  in  one  or  two  peculiar  cases  (d). 
We  therefore  have  nothing  to  learn  in  that  quarter  for  the  purposes 

(a)  It  is  said  to  be  an  offence  to  ecutors."  Arundel's  case,  Hob.  64; 
"  assume  to  act  as  a  corporation,"  20  E.  iv.  2,  pi.  7 ;  Hoioley  v.  Knight 
but  this  is  far  short  of  the  Roman  (1849)  14  Q.  B.  240,  19  L.  J.  Q.  B.  3. 
prohibition.  "  Regularly  no  chattel  can  go  in  suc- 

(b)  The  theory  of  the  King's  cession  in  a,  case  of  a  sole  corpora- 
"  body  politic"  is  given  at  some  tion"?  Co.  Litt.  46  b;  [See  Over- 
length  in  Plowd.  213.  It  would  seem  seers  v.  Sear,  22  Pick.  122,  126.]  it 
to  have  been  a  fashionable  novelty  was  otherwise  in  the  ease  of  the 
a.t  the  time.  head    of    a    religious    house,    as    he 

(c)  See  Prof.  Maitland,  The  Cor-  could  not  make  a  will.  Ro.  Ab.  1. 
poration  Sole,  L.  Q.  R.  xvi.  335;  The  515.  See  the  old  authorities  summed 
Crown  as  Corporation,  ib.  xvii.  131.  up  in  Blackst.  Comm.  ii.  431 — 433, 
The  notion  of  a  corporation  sole  ap-  who  attempts  to  find  reasons.  A 
pears  to  date  only  from  the  16th  curious  recent  case  where  a  fund  of 
century.  stock   was   vested   in   certain   rectors 

(d)  Generally      "bishops,      deans,  and    their    successors    by    a    private 
parsons,   vicars,  and  the  like  cannot  Act  is  Power  v.  Banks  [1901]   2  Ch. 
take    obligation    to    them    and    their  487,  70  L.  J.  Ch.  700. 
successors,  but  it  will  go  to  the  ex- 

1  See.  e.g.,  Terrett  v.  Taylor,  9  Cr.  43 ;  Church  Wardens  v.  Mayor,  82  6a. 
656  •  Weston  v.  Hunt,  2  Mass.  500 ;  Brunswick  v.  Dunning,  7  Mass.  445 ; 
Overseers  v.  Sear,  22  Pick.  122,  125-126. 

2  The  Governor  of  a  State  has  been  held  to  be  a  corporation  sole.  The 
Governor  v.  Allen,  8  Humph.  176. 


128  CAPACITY    OF    PARTIES. 

of  this  work,  and  we  may  practically  confine  our  attention  to  cor- 
porations aggregate. 

We  have  to  ascertain  what  contracts  corporate  bodies  can  make, 
117]  and  how  they  are  to  be  made.  The  second  of  *these  questions 
is  reserved  for  the  following  chapter  on  the  Form  of  Contracts. 
The  first  cannot  be  adequately  treated  except  in  connexion  with  a  wider 
view  of  the  capacities,  powers,  and  liabilities  of  corporations  in  general. 

Natural  limitations  of  capacities  and  liabilities  of  corporation.  The  ca- 
pacities of  corporations  are  limited 

(i)  By  natural  possibility,  i.  e.,  by  the  fact  that  they  are  artifi- 
cial and  not  natural  persons: 

(ii)  By  legal  possibility,  i,  e.,  by  the  restrictions  which  the  power 
creating  a  corporation  may  impose  on  the  legal  existence  and  action 
of  its  creature. 

First,  of  the  limits  set  to  the  powers  and  liabilities  of  corpora- 
tions by  the  mere  fact  that  they  are  not  natural  persons.  The  re- 
quirement of  a  common  seal  (of  which  elsewhere)  is  sometimes  said 
to  spring  from  the  artificial  nature  of  a  corporation.  The  fact  that 
it  is  not  known  in  Scotland  is  however  enough  to  show  that  it  is 
a  mere  positive  rule  of  English  law.  The  correct  and  comprehensive 
proposition  is  that  a  corporation  can  do  no  executive  act  except  by 
an  agent ;  and  a  corporate  seal  is  only  one  way  of.  showing  that  the 
person  entrusted  with  it  is  an  authorized  agent  of  the  corporate 
body.  We  say  that  executive  acts  of  a  corporation  must  be  done 
by  an  agent.  It  does  not  seem  necessary  or  plausible  to  extend  the 
proposition  to  deliberative  acts  and  resolutions.  When,  for  example, 
the  assembled  Fellows  of  a  College  resolve  to  grant  a  lease  of  cer- 
tain college  land,  their  resolution,  whether  unanimous  or  by  the 
statutable  majority,  would  seem  to  be  the  act  not  of  agents  but  of 
the  College  itself.  For  if  the  Fellows  voting  are  agents,  who  au- 
thorized them,  and  when?  But  when  they  proceed  to  order  the 
affixing  of  the  College  seal  to  the  lease,  then  the  officer  of  the  College 
who  is  directed  to  affix  it  is  an  appointed  agent,  whether  he  is  him- 
self a  member  of  the  governing  body  or  not.  There  seem  also 
io  be  cases  in  which  the  permanent  authority  of  the  head  or  other 
118]  acting  member  *of  a  corporation  is  derived  not  from  any  au- 
thority specifically  conferred  on  him,  but  from  the  original  con- 
stitution of  the  corporation.  Here,  however,  the  conception  of  an 
implied  agency  is  convenient  and  fairly  applicable.  Indeed,  the 
Common  Law  doctrine  of  agency  is  so  wide  and  flexible  that  we 
practically  tend  to  regard  all  acts  whatever  done  in  the  name  of  a 


CORPORATIONS.  129 

corporation  as  derived  from  some  authority,  general  or  special,  vested 
in  the  natural  persons  by  whom  they  are  done.  This  appears  not 
to  be  a  strictly  correct  view,  but  it  has  largely  saved  us  from  the 
speculative  questions  which  have  vexed  Continental  jurists  ever  since 
the  thirteenth  century,  and  probably  also  from  much  more  serious 
errors. 

A  corporation  obviously  cannot  be  subjected  to  death,  corporal 
punishment,  or  imprisonment,  though  it  can  be  fined  or  made  to 
pay  damages  as  easily  as  a  natural  person.  Further,  it  is  under- 
stood that  a  corporation  is  incapable  of  committing  the  graver  kinds 
of  crime,  such  as  treason,  felony,  perjury,  or  offenses  against  the 
person  (e),  as  well  as  of  being  punished  for  them.  There  can  be 
no  real  authority  to  commit  such  acts.  Any  or  all  of  the  members 
or  officers  of  a  corporation  who  should  commit  acts  of  this  kind 
(e.  g.,  should  levy  war  against  the  King)  under  cover  of  the  cor- 
porate name  and  authority  would  be  individually  liable  to  the  ordi- 
nary consequences.  "  Offences,  certain  offences  of  commission,  are 
the  offences  of  individuals,  not  of  corporations"  (/).  Nor  [119 
can  a  corporation  undertake  duties  which,  though  it  might  be  strictly 
possible  for  a  corporation  to  perform  them  by  its  officers  or  agents, 
are  on  the  whole  of  a  personal  kind  (<?). 

As  to  acts  of  agents.  On  the  other  hand,  it  is  subject  to  the  same 
liabilities  as  any  other  employer  for  the  acts,  neglects,  and  defaults 
of  its  agents  done  in  the  course  of  their  employment  (h)  ;3  and  con- 

(e)   Reg.  v.  G.  N.  of  Eng.  Ry.  Co.  Cincinnati  Fertilizer  Co.,  24  Ohio  St. 

(1846)    9    Q.    B.    315,    326,    16   L.   J.  611.]      We   are   not  aware   that   any 

M.  C.   16;   nor,  it  is  said,  can  it  be  English  writer  has  thought  it  neces- 

excommunicated,  for  it  has  no  soul:  saiy  to   state   in   terms   that   a   cor- 

10   Co.  Rep.  32   b;  the  ultimate  au-  poration  cannot  be  married  or  have 

thority  for  this  was  a  decree  of  In-  any  next  of  kin.     The  statement  is 

nocent   IV.   at  the  Council  of  Lyons  to  be  found  in  Savigny,  Syst.  3.  239 ; 

in   1245 ;    but  otherwise  as   to   inter-  but  is  in  part  not  quite  so  odd  as  it 

diet:      Gierke,     Deutsche     Genossen-  looks,     as     in     Roman     law     patria 

schaftsreeht,    iii.    348-9.      So    a.   cor-  potestas  and  all  the  family  relations 

poration  cannot  do  homage :  Co.  Litt.  arising  therefrom  might  be  acquired 

66  b.     Nor  can  it  be  subject  to  the  by  adoption. 

jurisdiction    of    a    customary    court  If)    Bramwell  L.  J.  5  Q.  B.  D.  at 

whose     process     is     exclusively     per-  p.  313.     Cp.  Mayor  of  Manchester  v. 

sonal:    London  Joint   Stock  Bank  v.  Williams  [1891]   1  Q.  B.  94,  60  L.  J. 

Mayor  of  London   (1875)    1  C.  P.  D.  Q.  B.  23. 

1    45  L   J   C.  P.  213,  in  C.  A.  chiefly  (g)    Ex    parte    Swansea    Friendly 

ok  other  grounds,  5  C.  P.  Div.  494;  Society  (1879)  11  Ch.  D.  768,  48  L.  J. 

affirmed  on  this  point  in  the  House  Ch.  577. 

of  Lords,  6  App.  Ca.  393.  [State  v.  (h)  Difficulties,  formal  and  ma- 
Railroad   Co.,   23   Ind.   362;    State   v.  terial,   which  used  to  be  entertained 

3  "An  action   may  be   maintained  against   a   corporation  for   its   malicious 
or  negligent  torts,  however  foreign  they  may  be  to  the  object  of  its  creation 
or  beyond  its  granted  powers.     It  may  be  sued  for  assault  and  battery,  for 
9 


130  CAPACITY  OF  PARTIES. 

versely  it  may  sue  in  its  corporate  capacity  for  a  libel  reflecting 
on  the  management  of  its  business* (i).  And  the  same  principle 
is  extended  to  make  it  generally  subject  to  all  liabilities  incidental 
to  its  corporate  existence  and  acts,  though  the  remedy  may  be  in 
form  ex  delicto  or  even  criminal. 

Indictable  in  some  cases.  Although  it  cannot  commit  a  real  crime, 
"  it  may  be  guilty  as  a  body  corporate  of  commanding  acts  to  be 
done  to  the  nuisance  of  the  community  at  large,"  and  may  be  indicted 
for  a  nuisance  produced  by  the  execution  of  its  works  or  conduct 
of  its  business  in  an  improper  or  unauthorized  manner,  as  for  ob- 
structing a  highway  or  navigable  river  (fc).4    A  corporation  may  even 

on  this  head  are  now  removed.     Even  generally    maintained    by   the    civili- 

malicious   2proseeution    is    not    now  ans:   Gierke,   op.  cit.  402. 

thought    to    be     an    exception;     see  (i)    South  Hetton   Goal   Co.   v.   N. 

Cornford  v.   Carlton  Bank    [1900]    1  E.  News  Assoc.   [1894]    1   Q.  B.   133, 

Q.  B.  22,  68  L..  J.  Q.  B.   1020,  C.  A.  63  L.  J.  Q.  B.  293,  C.  A. 

In  the  Middle  Ages  the  possibility  of  (k)   Beg.  v.  G.  N.  of  Eng.  By.  Co. 

a.    corporation    committing    a    delict  (1846)   9  Q.  B.  315,  per  Cur.  p.  326, 

was    disputed   by   the   canonists    but  16  L.  J.  M.  C.  16. 

fraud  and  deceit,  for  false  imprisonment,  for  malicious  prosecution,  for 
nuisance,  and  for  libel."  Bank  v.  Graham,  100  U.  S.  699,  702;  Railway  Co. 
r.  Harris,  122  U.  S.  597;  Salt  Lake  City  v.  Hollister,  118  U.  S.  256;  Railroad 
Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  330;  Merchants'  Bank  v.  State 
Bank,  10  Wall.  605,  645;  Railroad  Co.  v.  Quigley,  21  How.  202;  Falk  v. 
Curtis  Pub.  Co.,  98  Fed.  Rep.  989;  Southern  Ex.  Co.  r.  Platten,  93  Fed.  Rep. 
936 ;  Jordan  v.  Railroad  Co.,  74  Ala.  85 ;  Western  News  Co.  v.  Wilmarth, 
33  Kan.  510;  Mavnard  v.  Insurance  Co.,  34  Cal.  48;  Railroad  Co.  v.  Dalby, 
19  111.  353;  Goodspeed  r.  Bank,  22  Conn.  530;  Copley  r.  Grover  S.  M.  Co.,-2 
Woods,  494;  Vinar  r.  Insurance  Co.,  27  La.  Ann.  367 ;  Carter  v.  Howe  Machine 
Co.,  51  Md.  290;  Reed  v.  Bank,  130  Mass.  443;  Ramsden  v.  Railroad  Co.,  104 
Mass.  117;  Fogg  v.  Boston  &  Lowell  R.  Co.,  148  Mass.  513;  Nims  v.  Mt. 
Hermon  School,  150  Mass.  177 ;  Wachsmuth  r.  Bank,  96  Mich.  426 ;  Williams 
r.  Insurance  Co.,  57  Miss.  759;  Boogher  v.  Life  Assn.  of  America,  75  Mo.  319; 
Ricord  v.  Railroad  Co.,  15  Nev.  167;  Brokaw  v.  Railroad  Co.,  32  N.  J.  L.  328; 
Vance  v.  Railroad  Co.,  32  N.  J.  L.  334;  McDermott  v.  Evening  Journal  Assn., 
44  N.  J.  L.  430;  Buffalo  Oil  Co.  v.  Standard  Oil  Co.,  106  N".  Y.  669; 
Wheless  v.  Bank,  1  Baxter,  469;  Zinc  Carbonate  Co.  v.  Bank,  103  Wis.  125. 
See  also  Gaslight  Co.  v.  Lansden,  172  U.  S.  534.  A  municipal  corporation 
could  not  be  liable  for  a  libel,  was  held  in  Howland  v.  Maynard,  159  Mass. 
434.    But  see  contra,  McLay  v.  Bruce  Co.,  14  Ont.  C.  P.  Div.  398. 

Corporations  are  liable  in  exemplary  damages  for  malicious  or  oppressive 
acts,  and  acts  of  wanton  recklessness.  Louisville,  etc.,  R.  Co.  v.  Whitman, 
79  Ala.  325;  Warner  r.  Southern  Pac.  R.  Co.,  113  Cal.  105;  Railroad  Co.  v. 
Rogers,  38  Ind.  116;  Wheeler,  etc.,  Co.  v.  Boyce,  36  Kan.  350;  Goddard  v. 
Railroad  Co.,  57  Me.  202;  Railroad  Co.  v.  Blocher,  27  Md.  277;  Railroad 
Co.  p.  Burke,  53  Miss.  200 ;  Caldwell  v.  Steamboat  Co.,  47  N.  Y.  282 ;  Railroad 
Co.  v.  Dunn,  19  Ohio  St.  162;  Brigham  v.  Lipman,  etc.,  Co.,  40  Oreg.  363; 
Lake  Shore  R.  Co.  v.  Rosenzweig,  113  Pa.  519;  Quinn  v.  South  Carolina 
R.  Co.,  29  S.  C.  381;  Hays  v.  Railroad  Co.,  46  Tex.  272.  Cp.  Lake  Shore 
R.  Co.  r.  Prentice,  147  U.  S.  101. 

*  United    States   v.    John   Kelso   Co.,    86    Fed.    Rep.    304;    Railroad    Co.   r. 
Commonwealth,    80    Ky.    137 ;    Commonwealth    v.    Pulaski    Co.,   92   Ky.    197 
State  v.  Portland,  74  Me.   268 :   Commonwealth  v.  Railroad  Co.,  4  Gray,  22 
People  v.  White  Lead  Works,  82  Mich.  471;  State  v.  Railroad  Co.,  3  Zabr.  360 


COKPORATIONS.  131 

be  liable  by  prescription,  or  by  having  accepted  such  an  obligation 
in  its  charter,  to  repair  highways,  &c,  and  may  be  indictable  for 
not  doing  it  (Z).5  A  corporation  carrying  on  business  may  likewise 
become  liable  to  penalties  imposed  by  any  statute  regulating  that 
business,  if  it  appears  from  the  language  or  subject-matter  of  the 
statute  that  corporations  were  meant  to  be  included  (to).6  A  steam- 
ship company  has  been  *held  (on  the  terms  of  the  particular  [120 
statute,  as  it  seems)  to  be  not  indictable  under  the  Foreign  Enlist- 
ment Act  of  Geo.  3,  and  therefore  not  entitled  to  refuse  discovery 
which  in  the  case  of  a  natural  person  would  have  exposed  him  to 
penalties  under  the  Act  (n).  As  to  the  difficulty  of  imputing 
fraudulent  intention  to  a  corporation,  which  has  been  thought  to 
be  peculiarly  great,  it  may  be  remarked  that  no  one  has  ever  doubted 
that  a  corporation  may  be  relieved  against  fraud  to  the  same  ex- 
tent as  a  natural  person.  There  is  exactly  the  same  difficulty  in 
supposing  a  corporation  to  be  deceived  as  in  supposing  it  to  deceive, 
and  it  is  equally  necessary  for  the  purpose  of  doing  justice  in  both 
cases  to  impute  to  the  corporation  a  certain  mental  condition — of 
intention  to  produce  a  belief  in  the  one  case,  of  belief  produced  in 
the  other — which  in  fact  can  exist  only  in  the  individual  mind  of 
the  member  or  servant  of  the  corporate  body  who  acts  in  the  trans- 
action (o).     Lord  Langdale  found  no  difficulty  in  speaking  of  two 

(I)    See     Grant     on     Corporations,  authority:     Guardians    of    St.    Leon- 

277,    283;    Angell    &   Ames    on    Cor-  ard's,  Shoreditch  V.  FrankUn   (1878) 

porations,    §§    394-7;    Wms.    Saund.  3  C.  F.  D.  377. 

1.   614,  2.  473.  (n)   King  of  Two  Sicilies  v.  Wilcox 

(m)   Pharmaceutical      Society      v.  (1850)   1  Sim  N.  S.  335,  19  L.  J.  Ch. 

London  and  Provincial  Supply  Asso-  488. 

ciation    (1880)    5  App.   Ca.   857;    see  (o)    See    per    Lord    Blackburn,    3 

per   Lord   Blackburn    at   p.    869.      A  App.    Ca.    1264.        A    company    may 

corporation  cannot  sue  as  a  common  "  feel     aggrieved,"     Companies     Act, 

informer    without    speoial    statutory  1880,  43  Vict.  c.  19,  s.  7,  sub-s.  5. 

State  v.  Passaic  Soc,  54  N.  J.  L.  260;  Delaware,  etc.,  Co.  v.  Commonwealth, 
60  Pa.  367 ;  Northern  Ry.  v.  Commonwealth,  90  Pa.  300 ;  Railroad  Co.  v.  State, 
3  Head,  523;  State  v.  Railroad  Co.,  27  Vt.  103. 

Aliter,  where  the  common  law  as  to  crimes  and  criminal  procedure  having 
been  abolished,  the  legislation  substituted  makes  no  provision  for  bringing 
an  indicted  party  into  court  by  summons,  or  otherwise  than  by  actual  arrest 
of  his  person.  State  v.  Railroad  Co.,  23  Ind.  362;  State  v.  Cincinnati 
Fertilizer  Co.,  24  Ohio  St.  611. 

o  Railroad  Co.  v.  Commonwealth,  80  Ky.  147;  Commonwealth  v.  Central 
Bridge  Co.,  12  Cush.  242;  Railroad  Co.  v.  State,  32  N.  H.  215;  Susquehanna, 
etc.,  Co.  v.  People,  15  Wend.  267;  People  v.  Railroad  Co.,  134  N.  Y.  671; 
Railway  Co.  v.  Commonwealth.  101  Pa.  192;  Commonwealth  v.  Railroad 
Co.,  165  Pa.  162;  State  v.  Murfreesboro,  11  Humph.  217;  Nashville,  etc.,  Turn- 
pike Co.  v.  State,  96  Tenn.  249.  A  corporation  may  be  indicted  for  Sabbath- 
breaking.     State  v.  Railroad  Co.,  15  W.  Va.  362. 

6  Stewart  v.  Waterloo  Turn  Verein,  71  la.  226. 


132  CAPACITY  OF  PARTIES. 

railway  companies  as  "guilty  of  fraud  and  collusion,"  though  not 
in  an  exact  sense  (p). 

Is  not  bound  by  acts  of  even  all  its  members  when  of  a  non-corporate  char- 
acter. However  the  members  of  a  corporation  cannot  even  by  giving 
an  express  authority  in  the  name  of  the  corporation  make  it  respon- 
sible, or  escape  from  being  individually  responsible  themselves,  for 
a  wrongful  act  which  though  not  a  personal  wrong  is  such  that  if 
lawful  it  could  not  have  been  a  corporate  act  (q).7  Such  is  a  tres- 
pass in  removing  an  obstruction  of  an  alleged  highway.  For  the 
right  by  which  the  act  has  to  be  justified  is  the  personal  right  to 
121  ]  use  the  highway,  and  a  corporation  as  such  cannot  use  *a  high- 
way. Likewise  it  is  not  competent  to  the  governing  body  or  the 
majority,  or  even  to  the  whole  of  the  members  for  the  time  being, 
cf  a  corporation  constituted  hj  a  formal  act  and  having  defined 
purposes,  to  appropriate  any  part  of  the  corporate  funds  to  their 
private  use  in  a  manner  not  distinctly  warranted  by  the  constitution ; 
for  it  is  not  to  be  supposed  that  all  the  members  of  the  corporation 
are  equivalent  to  the  corporation  so  that  they  can  do  as  they  please 
with  corporate  property.8  A  corporation  does  not  exist  merely  for 
the  sake  of  the  members  for  the  time  being.  Lord  Langdale  held 
on  this  principle  that  the  original  members  of  a  society  incorporated 
by  charter,  who  had  bought  up  the  shares  of  the  society  by  agreement 
among  themselves,  were  bound  to  account  to  the  society  for  the  full 
value  of  them  (r).9    The  fallacy  of  the  assumption  that  a  corporation 

(p)    12  Beav.  382.  (r)    Society    of    Practical    Enowl- 

(g)    Mill  v.  Hawker    (1874)    L.  R.  edge  v.  Abbott    (1840)    2  Beav.  559, 

9  Ex.  309,  318,  44  L.  J.  Ex.  49;   no  567,    50    R.    R.    288,    294.      Cp.    Sav. 

judgment   on   this   part   of   the   case  Syst.    3.    283,    335.      But    it   may   be 

in    Ex.    Ch.    L.    R.    10    Ex.    92.      It  otherwise  if   the   corporation  has  no 

might   be,   by   statute,    the   right   or  definite    constitution    and    no    rules 

duty  of  a  corporation  to  remove  ob-  prescribing    the    application    of    its 

structions,  and  the  real  question  here  property.     Such  cases  are  sometimes 

was   whether   a   highway   board   had  met  with:   Brown  v.  Dale    (1878)    9 

such  a  power  or  duty.  Ch.  D.  78. 

1 A  municipal  corporation  is  not  liable  for  the  tortious  act  of  the  officers 
or  agents,  where  the  act  is  wholly  ultra  vires  in  the  sense  that  it  is  not  within 
the  power  or  authority  of  the  corporation  to  act  in  reference  to  the  matter 
under  anv  circumstances.     Bovle  i\  Albert  Lea,  74  Minn.  230. 

» Supra,  note  99.  Redmond  v.  Dickerson,  1  Stockt.  507,  514,  515.  "The 
directors  of  a  corporation,  even  with  the  consent  of  the  stockholders, 
are  not  authorized  to  discontinue  the  corporate  business  and  to  distribute  the 
capital  stock  among  the  stockholders,  unless  they  are  specially  authorized  to 
do  so  by  a  legislative  act,  or  by  a  decree  of  the  Court  of  Chancery  dissolving 
the  corporation  in  the  manner  prescribed  by  the  statutes."  Ward  v.  Insurance 
Co.,  7  Paige,  21)4;  Grant  r.  Southern  Contract  Co.,  104  Ky.  781. 

9  See  also  London  Trust  Co.  r.  Mackenzie,  68  L.  T.  Rep.  380;  Ashton  v. 
Dashaway  Assoc,  84  Cal.  61;  Railroad  Co.  r.  Arnold,  167  N.  Y.  368. 


CORPORATIONS.  133 

lias  no  rights  as  against  its  unanimous  members  is  easily  exposed  by 
putting  the  extreme  case  of  the  members  of  a  corporation  being  by 
accident  reduced  till  there  is  only  one  left,  who  thereupon  unani- 
mously appropriates  the  whole  corporate  property  to  his  own  use  (s). 

Limitation  of  corporate  capacities  by  positive  rules.  The  powers  of  a 
corporation  are  necessarily  limited  in  some  directions  by  the  nature 
of  things.  There  remains  the  question  whether  there  are  any  general 
rules  of  law  limiting  them  farther  and  otherwise.  If  our  law  had 
committed  itself  to  the  doctrine  that  the  personality  of  a  corporation 
is  a  mere  fiction  of  the  sovereign  power,  it  might  have  been  held  as 
a  natural  consequence  that  a  corporation  could  in  no  case  have  any 
powers  except  such  as  were  conferred  on  it,  expressly  or  by  necessary 
implication,  by  the  same  act  which  created  it.  But  this  did  not 
happen,  and  *the  judicial  discussion  of  the  subject  has  been  [122 
evoked  by  the  rapid  growth  of  incorporated  commercial  and  in- 
dustrial societies  in  modern  times,  and  guided  by  reasons  founded 
not  in  the  nature  of  a  corporation  in  itself,  but  in  the  need  for  safe- 
guarding the  interests  partly  of  the  individual  members  of  com- 
panies, regarded  as  substantially  partners  in  a  joint  undertaking, 
and  partly  of  outside  creditors  dealing  with  companies,  and  looking 
to  their  corporate  funds  and  credit,  on  the  faith  of  apparently  au- 
thorized acts  and  promises  of  their  ■  directors  or  agents.  These  two 
classes  of  interests  are  to  some  extent  opposed,  and  the  law  has  not 
reached  the  fairly  settled  condition  in  which  it  now  stands  without 
considerable  fluctuations  of  opinion.  On  these,  however,  it  is  no 
longer  needful  to  dwell  at  length. 

"  At  common  law  a  corporation  created  by  the  King's  charter 
has  .  .  .  the  power  to  do  with  its  property  all  such  acts  as  an 
ordinary  person  can  do,  and  to  bind  itself  to  such  contracts  as  an 
ordinary  person  can  bind  himself  to"  (t),  (subject  to  the  corporate 
acts  being  sufficient  in  form,  which  we  are  not  considering  in  this 
place).  This  rests  on  authority  which,  though  it  seems  at  times 
to  have  been  forgotten,  has  never  been  disputed  (u). 

Powers  of  statutory  corporations  determined  by  purposes  of  incorporation. 
But  when  a  corporation  is  created  directly  by  special  statute,  or 
indirectly  by  a  statute  authorizing  the  formation  of  a  class  of  cor- 

(s)    Sav.   Syst.  3.   329  sqq.  §§   97-  look  v.  River  Dee  Co.   (1883)   36  Ch. 

99.     The   illustration   in   our  text  is  D.  675,  685,  n. 

given  at  p.   *350,  note,  with  the  re-  (u)   Sutton's  Hospital  case,  10  Co. 

mark,     "  Hier     ist    gewiss     Einstim-  Rep.,  where  it  is  said    (at  p.  30   o ) 

migkeit  vorhanden."  that    when    a    corporation    is    duly 

(*)   Bowen  L.  J.  in  Baroness  Wen-  created,  all  other  incidents  are  tacite 

annexed. 


134  CAPACITY  OF  PARTIES. 

porations  on  specified  conditions,  for  purposes  declared  by  the  stat- 
ute, or  which  the  founders  of  the  corporation  are  required  to  declare, 
then  the  question  is  different.  As  to  powers  expressly  conferred 
on  the  corporation,  or  clearly  authorized  by  general  provisions,  there 
can  be  no  doubt;  when  farther  powers  are  claimed,  it  must  be  con- 
sidered what  was  the  intention  of  the  Legislature,  and  only  such 
1 23  ]  powers  can  be  attributed  to  the  Corporation  as  are  necessary  or 
reasonably  incident  to  the  fulfillment  of  the  purposes  for  which  it  is 
established.  Members  of  the  company  have  the  right  to  rely  on  those 
purposes  not  being  exceeded ;  the  public  can  ascertain  them,  and  have 
not  any  right  to  hold  the  company  liable  for  undertakings  outside 
them.  On  the  whole,  "  where  there  is  an  Act  of  Parliament  creating 
a  corporation  for  a  particular  purpose,  and  giving  it  powers  for  that 
particular  purpose,  what  it  does  not  expressly  or  impliedly  authorize 
is  to  be  taken  to  be  prohibited"  (x) — prohibited  in  the  sense  not 
that  penalties  or  disabilities  follow  on  such  an  act  if  done,  but  that 
the  attempt  to  do  it  can  from  the  first  have  no  kind  of  validity  as 
a  corporate  act. 

Reasons  for  the  limitation,  how  derived.  The  reasons  for  this  rule,  as  we 
have  hinted,  are  derived  (1)  from  the  law  of  partnership:  (2)  from 
principles  of  public  policy. 

1.  From  partnership  law.  In  trading  corporations  the  relation  of  the 
members  or  shareholders  to  one  another  is  in  fact  a  modified  (y)  con- 
tract of  partnership,  which  in  view  of  courts  of  equity  is  governed 
by  the  ordinary  rules  of  partnership  law  so  far  as  they  are  not  excluded 
by  the  constitution  of  the  company. 

Rights  of  dissenting  partners.  Now  it  is  a  well-settled  principle  of 
partnership  law  that  no  majority  of  the  partners  can  bind  a  dissenting 
minoritj',  or  even  one  dissenting  partner,  to  engage  the  firm  in  trans- 
actions  beyond   its   original   scope.10     In  the   case,   therefore,   of   a 

(a)  Lord    Blackburn    in    A.    G.    v.  (1885)   10  App.  Ca.  354,  360,  54  L.  J. 

G.  E.  By.  Co.   (1880)   5  App.  Ca.  473,  Q.  B.  577. 

481,  stating  the  effect  of  Ashbury  By.  (y)   Namely     by     provisions     for 

Carriage     and    Iron     Co.     v.     Biche  transfer   of   shares,   limited   liability 

(1875)    L.  R.  7  H.  L.  653,  44  L.  J.  of    shareholders,     and    other-    things 

Ex.   185,  a  leading  ease  on  the  Com-  whic,h    cannot     (at    least    with    con- 

panies  Act,  1862,  but  not  confined  to  venience    or   completeness)    be   made 

the   construction    of   that   Act.      See  incident  to  a  partnership  at  common 

Baroness   Wenlock  v.  Biver  Dee   Co.  law. 

10  Abbott  i\  Johnson,  32  N.  H.  9 ;  Livingston  r.  Lynch,  4  Johns.  Ch.  573; 
McFadden  v.  Leeka,  48  Ohio  St.  513;  Jennings'  Appeal,  (Pa.)   16  At.  Rep.  19. 


CORPORATIONS.  135 

corporation  whose  members  are  as  between  themselves  partners  in 
the  business  carried  on  by  the  corporation,  any  *dissenting  [124 
member  is  entitled  to  restrain  the  governing  body  or  the  majority 
of  the  company  from  attempting  to  involve  the  company  in  an 
undertaking  which  does  not  come  within  its  purposes  as  defined  by 
it?  original  constitution.11  Courts  of  equity  have  been  naturally 
called  upon  to  look  at  the  subject  chiefly  from  this  point  of  view, 
that  is,  as  giving  rise  to  questions  between  shareholders  and  directors, 
or  between  minorities  and  majorities.  Such  questions  do  not  re- 
quire the  court  to  decide  whether  an  act  which  dissentients  may 
prevent  the  agents  of  the  company  from  doing  in  its  name  might 
not  nevertheless,  if  so  done  by  them  with  apparent  authority,  be 
binding  on  the  corporate  body,  or  a  contract  so  made  be  enforceable 
by  the  other  party  who  had  contracted  in  good  faith.  This  distinc- 
tion was  not  always  kept  in  sight. 

Doctrine  as  to  limited  agency.  But  further,  according  to  the  law  of 
partnership  a  partner  can  bind  the  firm  only  as  its  agent:  his  au- 
thority is  prima  facie  an  extensive  one  (z),  but  if  it  is  specially  re- 

(z)    James     L.     J.       Baird's    case  tralasia   v.   Breillat    (1847)     6    Moo. 

(1870)    L.   R.    5   Ch.   733;    Story  on  P.    C.    152,    195;     Partnership    Act, 

Agency,  §§   124,   125,  adopted  by  the  1890,  ss.  5 — 8. 
Judicial  Committee  in  Bank  of  Aus- 

HMowrey  v.  Railroad  Co.,  4  Biss.  78;  Byrne  v.  Schuyler,  65  Conn.  336; 
Cherokee  Iron  Co.  v.  Jones,  52  Ga.  276;  Harding  v.  American  Glucose  Co., 
182  111.  551;  Chicago  c.  Cameron,  120  111.  447;  Knottsville  Mill  Co.  r. 
Mattingly,  18  Ky.  L.  Rep.  246;  Stewart  v.  Erie,  etc.,  Transportation  Co., 
17  Minn.  348;  March  r.  Railroad  Co.,  43  N.  H.  515;  Rabe  v.  Dunlap,  51 
N.  J.  Eq.  40;  Mills  v.  Central  Railroad,  41  N.  J.  Eq.  1;  Black  v.  Canal  Co., 
24  N.  J.  Eq.  455;  Elkins  v.  Railroad  Co.,  36  N.  J.  Eq.  5;  Zabriskie  v.  Railroad 
Co.,  18  N.  J.  Eq.  178;  Kean  v.  Johnson,  1  Stockt.  401;  Wiswall  v.  Plank 
Road  Co.,  3  Jones  Eq.  133;  Carter  v.  Producers'  Oil  Co.,  1G4  Pa.  463;  Stevens 
v.  Railroad  Co.,  29  Vt.  545.     But  see  Waldoborough  v.  Railroad  Co.,  S4  Me.  469. 

A  subscriber  for  stock  in  a  corporation  is  released  from  his  subscription  by 
a  subsequent  fundamental  alteration  of  the  organization  or  purpose  of  the 
corporation.  Snook  v.  Georgia  Imp.  Co.,  83  Ga.  61 ;  McCray  v.  Railroad  Co., 
9  Ind.  358;  Banet  v.  Railroad  Co.,  13  111.  504,  511;  Katama  Land  Co.  v. 
Jernegan,  126  Mass.  155;  Union  Lock  Co.  v.  Towne,  1  N.  H.  44;  Railroad  Co. 
v.  Croswell.  5  Hill,  383;  Bank  v.  Charlotte,  85  N.  C.  433;  Norwich  Lock  Mfg. 
Co.  v.  Hockaday,  89  Va.  557.  And  see  Tuttle  v.  Railroad  Co.,  35  Mich.  247; 
Marsh  v.  Fulton,  10  Wall.  676;  Railroad  Co.  v.  Harris,  27  Miss.  517. 

Unless  at  the  time  of  subscription  such  change  was  provided  for  by  the 
charter  itself,  or  the  general  law  of  the  State.  New  Buffalo  v.  Iron  Co.,  105 
U.  S.  73;  Bates  County  v.  Winters,  112  U.  S.  325;  East  Lincoln  v.  Daven- 
port, 94  U.  S.  801 ;  Nugent  v.  Supervisors,  19  Wall.  241 ;  Bish  v.  Johnson, 
21   Ind.  299;   Jewett  v.  Railroad  Co.,  34  Ohio  St.   601. 

On  dissolution  of  a  corporation  the  majority  cannot  against  the  will  of 
the  minority  insist  on  selling  the  assets  to  a  new  corporation,  requiring  the 
minority  to  accept  shares  in  a  new  corporation  or  their  pro  rata  value  in 
money.    Mason  r.  Pewabic  Mining  Co.,  133  U.  S.  50. 


136  CAPACITY  OF  PARTIES. 

stricted  by  agreement  between  the  partners,  and  the  restriction  is 
known  to  the  person  dealing  with  him,  he  cannot  bind  the  firm"  to 
anything  beyond  those  special  limits.12 

In  public  companies  limits  of  directors'  authority  presumed  to  be  known. 

Limits  of  this  kind  may  be  imposed  on  the  directors  or  other  officers 
of  a  company  by  its  constitution;  and  if  that  constitution  is  em- 
bodied in  a  special  Act  of  Parliament,  or  in  a  deed  of  settlement 
or  articles  of  association  registered  in  a  public  office  under  the  pro- 
visions of  a  general  Act,  it  is  considered  that  all  persons  dealing 
with  the  agents  of  the  corporation  must  be  deemed  to  have  notice  of 
the  limits  thus  publicly  set  to  their  authority.13  The  corporation 
is  accordingly  not  bound  by  anything  done  by  them  in  its  name  when 
the  transaction  is  on  the  face  of  it  in  excess  of  the  powers  thus  defined. 
And  it  is  important  to  remember  that  in  this  view  the  resolutions 
1 25  ]  of  meetings  however  numerous,  *and  passed  by  however 
great  a  majority,  have  of  themselves  no  more  power  than  the  pro- 
ceeding of  individual  agents  to  bind  the  partnership  against  the 
will  of  any  single  member  to  transactions  of  a  kind  to  which  he  did 
not  by  the  contract  of  partnership  agree  that  it  might  be  bound. 

Irregularities  in  the  conduct  of  the  internal  affairs  of  the  body 
corporate,  even  the  omission  of  things  which  as  between  shareholders 
and  directors  are  conditions  precedent  to  the  exercise  of  the  directors' 
authority,  will  not  however  invalidate  acts  which  on  the  face  of  them 
are  regular  and  authorized :  third  parties  dealing  in  good  faith  are 
entitled  to  assume  that  internal  regulations  (the  observance  of  which 

12  Radcliffe  r.  Varner,  55  Ga.  427 ;  Knox  v.  Buffington,  50  la.  320 ;  Cargill 
V,  Corby,  15  Mo.  425;   cp.  Johnson  v.  Bernheim,  86  N.  C.  339. 

wPearce  r.  Railroad  Co.,  21  How.  441.  443;  Davis  r.  Railroad  Co.,  131 
Mass.  258,  260;  Silliman  n.  Railroad  Co.,  27  Gratt.  119,  130. 

In  England  joint  stock  companies  may  be  formed  by  the  execution  of  two 
documents,  a  memorandum  of  association,  and  articles  of  association ;  the 
former  is  the  charter  of  the  company,  the  latter  define  the  powers  of  the 
directors  as  agents  of  the  whole  body  of  shareholders.  Acts  beyond  the 
memorandum  are  acts  ultra  vires  the  company;  acts  of  the  directors  beyond 
the  articles  only  are  but  acts  of  agents  in  excess  of  their  authority,  and 
always  capable  of  ratification.  Ashbury  Ry.  Car  Co.  v.  Riche,  L.  R.  7  H.  L. 
653;  see  5  Am.  L.  Rev.  272.  In  this  country,  in  some  States,  statutes  also 
allow  the  formation  of  joint  stock  companies  which  are  not  strictly  corpora- 
tions, though  they  have  some  of  the  attributes  of  corporations.  Some  of  the 
large  express  companies  are  associations  of  this  sort.  See  Hotel  Co.  r.  Jones, 
177  U.  S.  449;  Sanford  v.  Gregg,  58  Fed.  Rep.  620;  Gregg  r.  Sanford,  65  Fed. 
Rep.  151;  Edwards  v.  Gasoline  Works,  168  Mass.  564;  Edgeworth  v.  Wood,  58 
N.  J.  L.  463. 

An  English  joint  stock  company  having  the  faculties  and  powers  incident 
to  a  corporation  will  be  treated  as  a  corporation  in  this  country,  although 
Acts  of  Parliament  declare  that  it  shall  not  be  held  to  be  »  corporation. 
Insurance  Co.  v.  Massachusetts,  10  Wall.  566. 


CORPORATIONS.  13? 

it  may  be  difficult  or  impossible  for  them  to  verify)  have  in  fact 
been  complied  with.14 

Assent  of  ".11  the  members  will  remove  objections  on  this  head.     But    it   is 

to  be  observed  that  in  the  ordinary  law  of  partnership  there  is  nothing 
to  prevent  the  members  of  a  firm,  if  they  are  all  so  minded,  from  ex- 
tending or  changing  its  business  without  limit  by  their  unanimous 
agreement.  As  a  matter  of  pure  corporation  law,  the  unanimity  of 
the  members  is  of  little  importance:  it  may  supply  the  want  of  a 
formal  act  of  the  governing  body  in  some  cases  (a),  but  it  can  in 
no  case  do  more.  As  a  matter  of  mixed  corporation  and  partnership 
law  this  unanimity  may  be  all-important  as  being  a  ratification  by  all 
the  partners  of  that  which  if  any  one  of  them  dissented  would  not 
be  the  act  of  the  firm:  for  although  the  corporate  body  of  which 
they  are  members  is  in  many  respects  different  from  any  ordinary 
partnership,  it  is  treated,  and  justly  treated,  as  a  partnership  for 

(a)  Even  this  is  in  strictness  incorporated  to  them  and  their  sue- 
hardly  consistent  with  the,  principle  cessors  by  the  name  of  X,  then  A  + 
that  if  A,  B,  C &c,  are       B  +  C  +     .     .     .     &c.  are  not  =  X. 

M  Where  the  authority  of  the  officers  of  a  corporation  to  bind  it  by  their 
act  depends  upon  the  performance  of  a  condition  precedent,  or  the  existence 
of  an  extrinsic  fact,  and  the  question  of  compliance  with  the  condition,  or  of 
the  existence  of  the  fact,  is  required  to  be  determined  by  them,  or  rests 
peculiarly  within  their  knowledge,  their  representation  (which  may  some- 
times consist  simply  in  doing  the  act)  that  the  condition  has  been  complied 
with,  or  that  the  fact  does  exist,  may  be  relied  on  by  one  acting  in  good  faith, 
and  is  conclusive  and  binding  on  the  corporation.  Commissioners  v.  Aspin- 
wall,  21  How.  539;  Bissell  r.  Jeffersonville,  24  How.  287;  Moran  r.  Com- 
missioners, 2  Black,  722;  Merchants'  Bank  v.  State  Bank,  10  Wall.  604, 
G44;  St.  Joseph  r.  Rogers,  16  Wall.  644;  Coloma  i:  Eaves,  92  U.  S.  484 : 
Commissioners  v.  Bolles,  94  TJ.  S.  104;  Commissioners  r.  January,  94  TJ.  S. 
202;  San  Antonio  v.  Mehaffy,  96  TJ.  S.  312;  Pana  r.  Bowler,  107  U.  S.  529; 
Sherman  County  r.  Simons,  109  TJ.  S.  735 ;  Anderson  County  r.  Beal, 
113  TJ.  S.  227;  Gunnison  County  Comrs.  v.  Rollins,  173  TJ.  S.  255;  Louisville 
Trust  Co.  r.  Railroad  Co.,  75  Fed.  Rep.  433,  468;  174  TJ.  S.  552;  Brattleboro 
Bank  v.  Trustees.  98  Fed.  Rep.  524,  532;  Miners'  Ditch  Co.  v.  Zellerbach, 
37  Cal.  543,  587;  Railroad  Co.  r.  Norwich,  etc.,  Society,  24  Ind.  457;  Common- 
wealth v.  Savings  Bank,  137  Mass.  431;  Madison  Co.  r.  Brown,  67  Miss.  684; 
Hackensack  Water  Co.  r.  De  Kav,  36  N.  J.  Eq.  548;  Railroad  Co.  v.  Schuyler, 
34  N.  Y.  30,  73;  Farnham  v.  Benedict,  107  N.  Y.  159;  Bank  v.  Blakesley, 
42  Ohio  St.  645;  Board  of  Supervisors  v.  Randolph,  89  Va.  614;  Kickland  V. 
Menasha  Woodenware  Co.,  68  Wis.  34.  Contra,  Cagwin  v.  Town  of  Hancock, 
84  N.  Y.  532 ;  Craig  r.  Town  of  Andes,  93  N.  Y.  405.  Cp.  Alvord  v.  Syracuse 
Svgs.  Bk.,  98  N.  Y.  607. 

But  a  representation  of  the  existence  of  facts  which  the  corporate  officers 
had  no  authority  to  determine,  or  which  are  as  well  ascertainable  by  the 
other  party  as  by  the  corporate  agents,  or  a  recital  of  matters  of  law,  does  not 
bind  the  corporation.  Bank  v.  Porter  Township,  110  TJ.  S.  608;  Dixon  County 
v.  Field,  111  TJ.  S.  83;  Nesbit  v.  Riverside  Dist.,  144  TJ.  S.  610;  Manhattan 
Co.  v.  Ironwood,  74  Fed.  Rep.  535,  539;  Geer  v.  School  Dist.,  97  Fed.  Rep. 
732;  Bank  r.  Board  of  Trustees,  98  Fed.  Rep.  524,  533;  Hopple  v.  Brown 
Township,  13  Ohio  St.  311;  Hopple  v.  Hippie,  33  Ohio  St.  116;  Klamath 
Falls  v.  Sachs,  35  Oreg.  325. 


138  CAPACITY   OF    PARTIES. 

this  purpose.  It  appears,  then,  that  the  unanimous  assent  of  the 
members  will  remove  all  objections  founded  on  the  principles  of 
126]  partnership,  and  will  so  far  *leave  the  corporation  in  full  pos- 
session of  its  common  law  powers.  There  are  nevertheless  many 
transactions  which  even  the  unanimous  will  of  all  the  members  can- 
not make  binding  as  corporate  acts.  For  the  reasons  which  de- 
termine this  we  must  seek  farther. 

2.    Powers  must  not  be  used  to  defeat  special  purposes  of  incorporation. 

Most  corporations  established  in  modern  times  by  special  Acts  of 
Parliament  have  been  established  expressly  for  special  purposes  the 
fulfilment  of  which  is  considered'  to  be  for  the  benefit  of  the  public 
as  well  as  of  the  proprietors  of  the  undertaking,  and  for  this  reason 
they  are  armed  with  extraordinary  powers  and  privileges.  Whatever 
a  corporation  may  be  capable  of  doing  at  common  law,  there  is  no 
doubt  that  unusual  powers  given  by  the  Legislature  for  a  special 
purpose  must  be  employed  only  for  that  purpose :  if  Parliament  em- 
powers either  natural  persons  or  a  corporation  to  take  J.  S.'s  lands 
for  a  railway,  J.  S.  is  not  bound  to  let  them  take  it  for  a  factory  or  to 
let  them  take  an  excessive  quantity  of  land  on  purpose  to  re-sell  it 
at  a  profit  (&).  If  Parliament  confers  immunity  for  the  obstruction 
of  a  navigable  river  by  building  a  bridge  at  a  specified  place,  that 
will  be  no  excuse  for  obstructing  it  in  the  like  manner  elsewhere. 
Moreover  we  cannot  stop  here.  It  is  impossible  to  say  that  an  in- 
127]  corporation  for  *special  objects  and  with  special  powers  gives  a 
restricted  right  of  using  those  powers,  but  leaves  the  use  of  ordinary 
corporate  powers  without  any  restriction.  The  possession  of  extraor- 
dinary powers  puts  the  corporation  for  almost  all  purposes  and  in 
almost  all  transactions  in  a  wholly  different  position  from  that  which 

(6)   See     Galloway    v.     Mayor    of  ing    property   takes    it    with   all    its 

London  (1866)  L.  R.  1  H.  L.  at  p.  43,  rights     and     incidents     as     against 

35  L.  J.  Ch.  477 ;  Lord  Carington  v.  strangers,   subject   only   to  the  duty 

Wycombe  Ry.  Co.   (1868)   L.  R.  3  Ch.  of    exercising   those    rights    in    good 

377,  381,  37  L.  J.  Ch.  213.     Nor  may  faith  with  a  view  to  the  objects  of 

a  company  hold  regattas   or  let  out  incorporation:    Swindon   Waterworks 

pleasure-boats  to  the  inconvenience  of  Co.  v.  Wilts  and  Berks  Canal  Naviga- 

the  former  owner  on  a  piece  of  water  tion  Co.    (1875)    L.  R.   7  H.  L.  697, 

acquired   by   them    under    their   Act  704,  710,  45  L.  J.  Ch.  638;  Bonner  v. 

for  a  reservoir:  Bostock  v.   N.  Staf-  G.  W.  Ry.  Co.   (1883)  24  Ch.  Div.  1; 

fordshire  Ry.  Co.   (1856)   3  Sm.  &  G.  and  a  corporation  cannot  bind  itself 

283,  202,  25  L.  J.  Ch.  325 ;  nor  alien-  not  to  use  in  the  future  special  pow- 

ate    land    similarly    acquired    except  ers  which  have  presumably  been  con- 

for  purposes  authorized  by  the  Act:  f erred    to    be    used    for    the    public 

Mulliner  v.   Midland  Ry.   Co.    (1879)  good:    Ayr   Harbour    Trustees  V.   Os- 

11  Ch.  D.  611,  622,  48  L.  J.  Ch.  258.  wald  (1883)  8  App.  Ca.  623. 
But  a  statutory  corporation   acquir- 


CORPORATIONS.  139 

it  would  have  held  without  them ;  and  apart  from  the  actual  exercise 
of  them  it  may  do  many  things  which  it  was  otherwise  legally  com- 
petent to  do,  but  which  without  their  existence  it  could  practically 
never  have  done.  Any  substantial  departure  from  the  purposes  con- 
templated by  the  Legislature,  whether  involving  on  the  face  of  it  a 
misapplication  of  special  powers  or  not,  would  defeat  the  expectations 
and  objects  with  which  those  powers  were  given.  When  Parliament, 
in  the  public  interest  and  in  consideration  of  a  presumed  benefit  to 
the  public,  confers  extraordinary  powers,  it  must  be  taken  in  the  same 
interest  to  forbid  the  doing  of  that  which  will  tend  to  defeat  its 
policy  in  conferring  them;  and  to  forbid  in  the  sense  not  only  of 
attaching  penal  consequences  to  such  acts  when  done,  but  of  making 
them  wholly  void  if  it  is  attempted  to  do  them.  Accordingly  con- 
tracts of  railway  companies  and  corporations  of  a  like  public  nature 
which  can  be  seen  to  import  a  substantial  contravention  of  the  policy 
of  the  incorporating  Acts  are  held  by  the  courts  to  be  void,  and  are 
often  spoken  of  as  mala,  -prohibita,  and  illegal  in  the  same  sense  that  a 
contract  of  a  natural  person  to  do  anything  contrary  to  the  pro- 
visions of  an  Act  of  Parliament  is  illegal  (c).  Others  prefer  to  say 
that  the  Legislature,  acting  indeed  on  motives  of  public  policy,  has 
simply  disabled  the  corporation  from  doing  acts  of  this  class ;  "  to 
regard  the  case  as  one  of  incapacity  to  contract  *rather  than  [128 
of  illegality,  and  the  corporation  as  if  it  were  non-existent  for  the 
purpose  of  such  contracts"  (d).15  This  appears  the  sounder,  and  is 
now  the  more  generally  accepted  view  (e).16 

(c)    Blackburn     J.     in     Taylor    V.  some  means   of   restraining  them   in 

Chichester     &      Midhurst     Ry.      Co.  a   court   of   common   law   at   the  in- 

(1867)  L.  R.  2  Ex.  at  p.  379,  39  L.  J.  stance  of  the  Crown:  A.  O.  v.  0.  E. 

Ex.  217;   and    (Brett  and  Grove  JJ.  By.   Co.    (1880)    11   Ch.   Div.   at  pp. 

concurring)   in  Riche  v.  Ashbury  Ry.  501 — 3. 

Carriage  Co.    (1874)    L.  R.  9  Ex.  at  (e)  The  agreement  of  a  third  person 

pp.  262,  266,  43  L.  J.  Ex.  177.    Lord  to   procure   a   company   to   do   some- 

Hatherley,    s.    c.    nom.    Ashbury   Ry.  thing  foreign  to  its  proper  purposes 

Carriage   Co.  v.  Riche    (1875)    L.  R.  is  plausibly  called  illegal :  MacGregor 

7  H   L.  at  p    689.  v.  Dover  &  Deal  Ry.  Co.    (1852)    18 

(eZ)   Archibald  J.,  L.  B.  9  Ex.  293;  Q.   B.   618,   22   L.   J.   Q.   B.   69;    and 

Lord  Cairns,  L.  E.  7  H.  L.  at  p.  672 ;  see  per  Erie  J.  in  Mayor  of  Norwich 

Lord  Selborne,  ib.   694.     And  Bram-  v.  Norfolk  Ry.  Co.   (1855)   4  E.  &  B. 

well     L.J.     rather     strongly     disap-  397,   24  L.   J.   Q.   B.    105;    but  it   is 

proved   of   calling   such    acts    illegal,  really  void   as  being  the  promise  of 

pointing  out  that  if  they  were  prop-  a  performance  impossible  in  law  (Ch. 

erly  so  called  there  would  have  been  VIII.,  below). 

15  Bath  Gas  Light  Co.  v.  Claffy,  151  N.  Y.  24. 

16  Corporations  may  exercise  all  such  powers  as  are  expressly  conferred 
upon  them,  and  all  others  which  are  necessary  to  the  exercise  of  those  ex- 
pressly conferred ;  and  "  necessary "  is  to  be  taken  not  in  the  sense  of  "  in- 
dispensable "  but  of  "reasonably  incidental."     Atty.-Genl.  v.  Railway  Co.,  5 


140  CAPACITY    OF    PARTIES. 

Interest  of  the  public  as  investors.  There  is  another  consideration  of 
a  somewhat  similar  kind  which  applies  equally  to  what  may  be  called 
public  companies  in  a  special  sense — i.e.,  such  as  are  invested  with 
special  powers  for  carrying  out  defined  objects  of  public  interest  — 
and  ordinary  joint-stock  companies  which  have  no  such  powers.    The 

App.  Ca.  473,  478,  481;  Foster  r.  London,  etc.,  Ry.  Co.,  [1895]  1  Q.  B.  711; 
Railroad  Co.  v.  Union  Steamboat  Co.,  107  U.  S.  98,  100;  Fort  Worth  City  Co. 
v.  Smith  Bridge  Co.,  151  U.  S.  294,  301;  Railway  Co.  v.  Hooper,  160  U.  S. 
514;  Union  Pac.  R.  Co.  c.  Chicago,  etc.,  R.  Co.,  163  U.  S.  564;  Colorado 
Springs  Co.  r.  American  Pub.  Co.,  97  Fed.  Rep.  843,  849;  Schofield  c.  Bank, 
97  Fed.  Rep.  283;  Jewelers'  Pub.  Co.  i:  Jacobs,  109  Fed.  Rep.  509;  Galena 
v.  Corinth,  48  111.  423;  People  v.  Pullman  Palace  Car  Co.,  175  111.  125; 
Miller  r.  Board,  etc.,  of  Dearborn  Co.,  66  Ind.  162,  167;  Thompson  v.  Lambert, 
44  la.  239;  Brown  r.  Winnisimmet  Co.,  11  Allen,  326;  Eureka  Iron  Works 
r.  Bresnahan,  60  Mich.  332 ;  Crawford  r.  Longstreet,  43  N.  J.  L.  325 ;  Ellerman 
r.  Chicago,  etc.,  Co.,  49  X.  J.  Eq.  217;  Barry  v.  Merchants'  Exchange  Co.,  1 
Sandf.  Ch.  280;  Moss  v.  Rossie  Mining  Co.,  5  Hill,  137;  Curtis  v.  Leavitt,  15 
N.  Y.  965;  Larwell  v.  Hanover  S.  F.  Society,  40  Ohio  St.  274,  282;  Gas  & 
Fuel  Co.  r.  Dairy  Co.,  60  Ohio  St.  96;  Bank  r.  Jacobs,  6  Humph.  515,  525; 
Interior  Woodwork  Co.  r.  Prasser,  108  Wis.  557. 

In  the  United  States  they  can  be  created  only  by  the  Legislature.  Miners' 
Ditch  Co.  v.  Zellerbach,  37  Cal.  543,  604;  Stowe  v.  Flagg,  72  111.  397;  Frank- 
lin Bridge  Co.  v.  Wood,  14  Ga.  80;  Atkinson  r.  Railroad  Co.,  15  Ohio  St.  21,  33. 

And  as  the  theory  of  "  general  capacity "  of  corporations  is  limited  by 
the  rule  that  corporations  created  by  legislative  enactment  must  be  taken 
to  be  prohibited  from  doing  any  acts  which  amount  to  a  substantial  de- 
parture from  the  purpose  of  their  incorporation,  it  would  seem  to  make  but 
little  difference  whether  the  theory  of  general  or  special  capacities  be  adopted 
for  the  purpose  of  determining  whether  a  given  act  is,  or  is  not,  ultra  vires 
in  the  case  of  a  given  corporation.  But  for  the  purpose  of  determining  the 
effect  to  be  ascribed  to  the  unauthorized  engagements  of  a  corporation  the  dis- 
tinction between  the  doctrine  which  rests  upon  the  want  of  capacity  to  do  an 
act,  and  that  which  rests  upon  a  prohibition  against  doing  an  act,  thus  im- 
pliedly admitting  a  capacity  to  do  it,'  is  important. 

Perhaps  the  strongest  statement  of  the  doctrine  of  special  capacities  is  to 
be  found  in  the  case  of  Strauss  v.  Insurance  Co.,  5  Ohio  St.  60,  where  it  was 
held  that  a  corporation,  which  was  authorized  to  make  and  receive  negotiable 
paper  in  the  course  of  its  business,  having,  in  the  execution  of  an  unauthor- 
ized contract,  taken  by  indorsement  from  the  other  party  to  the  contract 
the  promissory  note  of  a  third  person,  could  not  recover  on  the  note  against 
the  maker.  The  court  said:  "The  contract  of  indorsement,  like  every  other, 
must  have  parties ;  without  two  parties  competent  to  contract  there  can  be  no 
agreement  by  which  the  one  can  lose  and  the  other  acquire  the  title  to 
negotiable  paper.  The  powers  and  capacities  of  a  corporation  must  be 
derived  from  the  law  of  its  creation  or  they  do  not  exist.  If  a  fair  construc- 
tion of  its  charter  does  not  confer  the  power  it  is  incompetent  to  become 
a  party  to  the  contract  of  indorsement,  and  without  capacity  to  take  or 
hold  the  title.  As  well  might  a  dead  man,  by  the  mere  act  of  the  indorser, 
be  vested  with  the  legal  interest,  as  a  corporation  which  only  lives  for  the 
purposes  and  objects  intended  by  the  Legislature.  Beyond  those  limits  it 
has  no  existence,  and  its  acts  are  neither  more  nor  less  than  a  nullity." 
Cp.  Ehrman  r.  Insurance  Co.,  35  Ohio  St.  324. 

Upon  this  theory  every  unauthorized  engagement  of  a  corporation,  whether 
executory  or  wholly  executed,  must  always  remain  utterly  void  and  inoperative 
as  a  contract  for  want  of  parties ;  if  it  includes  an  alienation  by  or  to  the 
corporation  the  title  cannot  pass  for  want  of  a  grantor  or  grantee  as  the 
case  may  be. 

But  that  this  metaphysical  view  of  the  limits  of  the  capacity  of  corpora' 


CORPORATIONS.  141 

provisions  for  limited  liability  and  for  the  easy  transfer  of  shares  in 
both  sorts  of  companies  must  be  considered,  in  their  modern  form 
and  extent  at  least,  as  a  statutory  privilege.  These  provisions  also 
invest  the  companies  with  a  certain  public  character  and  interest 
apart  from  the  nature  of  their  particular  objects  in  each  case,  but 
derived  from  the  fact  that  they  do  professedly  exist  for  particular 
objects. 

Buyers  of  shares  and  creditors  have  a  right  to  assume  that  the  company's 
professed  objects  are  adhered  to.  By  far  the  greater  part  of  their  capital 
represents  the  money  of  shareholders  who  have  bought  shares  in  the 

tions  drawn  from  their  artificial  constitution,  is  founded  in  error,  is  shown 
by  the  common-law  rule  as  laid  down  in  the  case  of  Sutton's  Hospital,  10 
Co.  Rep.  30,  b.,  infra,  Appendix,  n.  D.  A  statutory  and  a  common-law  cor- 
poration are  equally  artificial  beings,  alike  creatures  of  the  law,  and  any  limi- 
tations upon  their  capacity,  inherent  in  their  nature  as  such  artificial  beings, 
inhere  equally  in  both;  so  that  if  a  common-law  corporation  is  not,  by  reason 
of  its  artificial  nature,  unable  to  exercise  powers  not  conferred  upon  it, 
neither  is  a  statutory  corporation.  If  a  corporation  has  no  existence  save  for 
the  purposes  for  which  it  was  created,  then  as  no  corporation  was  ever 
created  for  that  purpose,  it  cannot  any  more  than  a  "  dead  man  "  commit  a 
tort.  That  in  legal  contemplation,  as  well  as  in  fact,  corporations  have  the 
capacity  to  and  do  acts  not  only  not  authorized  by  their  charters,  but  ex- 
pressly prohibited,  is  shown  by  the  fact  that  'the  law  provides  the  remedy 
by  quo  warranto  against  them  for  such  very  abuse  and  usurpation  of  power. 
The  other,  and,  it  is  believed,  the  correct  theory  in  regard  to  corporations 
is  that  once  created  they  have  the  capacity,  limited  only  by  natural  possibility, 
of  doing  any  act  or  making  any  contract,  but  that  in  addition  to  the  express 
prohibitions  mentioned  in  their  charters  there  is  an  implied  prohibition 
against  any  corporation's  doing  any  act  or  making  any  contract  not  fairly 
incidental  to  the  objects  for  which  it  was  incorporated.  But  such  prohibited 
act  or  contract,  .when  done  or  executed,  is  not  necessarily  always  unlawful  or 
void  to  all  intents;  the  effect  of  the  prohibition  here,  as  with  prohibitory 
statutes,  in  general    (infra,  pp.  397-404)    is  a  question  of  construction. 

Thus  it  is  held  that  an-  alienation  of  property,  made  in  execution  of  a 
contract  ultra  vires,  passes  title.  Smith  v.  Sheelev,  12  Wall.  358;  Reynolds  v. 
Bank,  112  U.  S.  405;  Bank  r.  Matthews,  98  U.  S!  621,  628;  Fritts  r.  Palmer, 
132  U.  S.  282 ;  St.  Louis,  etc.,  Ry.  Co.  v.  T.  H.,  etc.,  Ry.  Co.,  145  U.  S.  393 ; 
Lantry  v.  Wallace,  182  U.  S.  536;  Railroad  Co.  r.  Orton,  6  Sawyer,  157; 
Long  v.  Railway  Co.,  91  Ala.  519;  Edwards  r>.  Fairbanks,  27  La.  Ann.  449; 
Bank  r.  Butler,  157  Mass.  548;  Crolley  v.  Railway  Co.,  30  Minn.  541;  She- 
waiter  v.  Pirner,  55  Mo.  218;  Thornton  v.  Bank,  71  Mo.  221;  Franklin  Ay. 
German  Sav.  Inst.  r.  Board,  etc.,  of  Roscoe,  75  Mo.  408 ;  Missouri  Valley 
Land  Co.  v.  Bushnell,  11  Neb.  192;  Parish  r.  Wheeler,  22  N.  Y.  494,  504; 
Mallet  v.  Simpson,  94  N.  C.  37;  Walsh  v.  Barton,  24  Ohio  St.  28;  Ehrman 
v.  Insurance  Co.,  35  Ohio  St.  324;  Leazure  r.  Hillegas,  7  S.  &  R.  312;  Banks 
r.  Poitiaux,  3  Rand.  136 ;  Fayette  Land  Co.  v.  Railroad,  93  Va.  274,  28o ; 
Farmers',  etc.,  Bank  v.  Railroad  Co.,  17  Wis.  372.  But  see  contra,  Occum  r. 
Sprague  Mfg.  Co.,  34  Conn.  529;  Thweatt  v.  Bank,  81  Ky.  1.  See  also  Madison 
Ave.,  etc.,. Church  v.  Bapt.  Church  in  Oliver  Street,  73  N.  Y.  82. 

A  prohibition  against  a  corporation's  making  a  particular  contract  may  be 
accompanied  by  a  specific  penalty,  such  as  itself  to  indicate  that  the  con- 
tract if  made  shall  not  be  held  void.  Bank  v.  Dearing,  91  TJ.  S.  29 ;  Fritts  r. 
Palmer,  132  U.  S.  282;  Wiley  v.  Starbuck,  44  Ind.  298;  Bank  v.  Hobbs,  11 
Gray  250;  Bank  v.  Pratt,  115  Mass.  539;  Ferguson  r.  Oxford  Mercantile 
Co.,  78  Miss.  65 ;  Pratt  v.  Short,  79  N.  Y.  437 ;  Ewing  v.  Toledo  S.  B.  &  T.  Co., 


142  CAPACITY    OF    PARTIES. 

market  without  any  intention  of  taking  an  active  part  in  the  manage- 
ment of  the  concern,  but  on  the  faith  that  they  know  in  what  sort  of 
adventure  they  are  investing  their  money,  and  that  the  company's 
funds  are  not  being  and  will  not  be  applied  to  other  objects  than  those 
set  forth  in  its  constitution  as  declared  by  the  act  of  incorporation, 
memorandum  of  association,  or  the  like.  This  is  not  a  mere  repetition 
129]  of  the  objections  ^grounded  on  partnership  law;  the  incoming 

43  Ohio  St.  31;  Bank  v.  Garlinghouse,  22  Ohio  St.  492;  Brown  v.  Bank,  72 
Pa.  209. 

A  corporation  forming  ultra  vires  a  partnership  with  an  individual  cannot 
ignore  this,  and  prove  against  the  firm  in  bankruptcy  as  a  creditor.  Wal- 
lerstein  v.  Ervin,  112  Fed.  Rep.  124. 

A  contract  which  corporations  and  natural  persons  are  both  forbidden  to 
make,  as  where  the  charter  of  a  bank  forbids  its  loaning  money  at  more  than 
a  certain  rate  of  interest,  and  by  the  general  law  there  is  a  similar  pro- 
hibition applying  to  natural  persons,  will  not  be  void  when  made  by  a  cor- 
poration, when  it  would  not  be  void  if  made  by  an  individual.  McLean  v. 
Bank,  3  McLean,  587,  609;  Railroad  Co.  r.  Trust  Co.,  82  Fed.  Rep.  124; 
Bank  r.  Harrison,  57  Mo.  503;  Bank  r.  Nolan,  7  How.  'Miss.)  508;  Bank 
v.  Archer,  8  S.  &  M.  151;  Bank  v.  Burehard,  33  Vt.  346;  Bank  v.  Sherwood, 
10  Wis.  230;  contra,  Orr  v.  Lacey,  2  Doug.  (Mich.)  230;  Bank  v.  Swayne, 
8  Ohio,  257 ;  Kilbreath  v.  Bates,  38  Ohio  St.  187 ;  Bank  v.  Owens,  2  Pet.  527 ; 
Cf.  S.  C.  sub.  nom.  Bank  r.  Waggoner,  9  Pet.  378.  And  see  Tiffany  v.  Boat- 
man's Institution,  18  Wall.  375;  infra,  p.  400. 

The  defense  of  ultra  vires  will  generally  not  be  suffered  to  prevail  where 
the  party  raising  it  has  actually  received  the  property  or  money  of  the 
other  party  and  is  trying  to  evade  payment  therefor ;  the  party  having  re- 
ceived the  money  or  property  of  the  other  cannot  retain  it  and  object  that 
the  corporation  had  no  right  to  make  the  contract  under  ivhich  it  was 
received.  Bank  v.  Matthews,  98  U.  S.  621,  629 ;  Bank  v.  Whitney,  103  U.  S. 
99 ;  Parkersburg  v.  Brown,  106  U.  S.  487 ;  Chapman  v.  County  of  Douglas, 
107  U.  S.  348;  Fortier  v.  Bank,  112  TJ.  S.  439;  Central  Transportation  Co. 
v.  Pullman  Co.,  139  U.  S.  24;  171  TJ.  S.  138;  Railrpad  Co.  v.  Dow,  19  Fed. 
Rep.  388;  American  Bank  v.  Wall  Paper  Co.,  77  Fed.  Rep.  85;  Sioux  City  Co. 
r.  Trust  Co.,  82  Fed.  Rep.  124;  Southern  B.  &  L.  Assn.  v.  Casa  Grande 
Co.,  128  Ala.  624;  Argenti  i:  San  Francisco,  16  Cal.  255;  Darst  v.  Gale,  83  111. 
136;  Bradley  r.  Ballard,  55  111.  413;  Pocock  r.  Lafayette  Bldg.  Assn.,  71  Ind. 
357 ;  Thompson  v.  Lambert,  44  la.  239 ;  Opera  House  Co.  v.  M.  B.  &  L.  Assn., 
59  Kan.  65;  Brunswick  Co.  v.  U.  S.  Gas  Fuel  Co.,  85  Me.  532;  Chester  Glass 
Co.  v.  Dewey,  16  Mass.  94;  Bath  Gas  Light  Co.  v.  Claffy,  151  N.  Y.  24;  Madi- 
son Av.,  etc..  Church  r.  Bapt.  Church  in  Oliver  Street,  73  N.  Y.  82 ;  Whitnev 
Arms  Co.  v.  Barlow,  63  N.  Y.  62 ;  Parish  v.  Wheeler,  22  N.  Y.  494,  506 ;  De  Groff 
1-.  Amer.  L.  T.  Co.,  21  N.  Y.  124;  Indiana  r.  Woram,  6  Hill,  33;  Steam  Nav. 
Co.  v.  Weed,  17  Barb.  378;  Hays  v.  Gaslight  Co.,  29  Ohio  St.  330,  340;  Lar- 
well  v.  Hanover  S.  F.  Society,  40  Ohio  St.  274,  285;  Markley  v.  Mineral 
Citv,  60  Ohio  St.  430;  Railroad  Co.  v.  Transportation  Co.,  83  Pa.  160; 
Wright  r.  Pipe  Line  Co.,  101  Pa.  204;  Bigelow  v.  Railway  Co.,  104  Wis.  109. 

But  where  a  corporation  has  not  actually  received  the  money  or  property 
of  the  other  party  to  the  contract,  it  cannot  be  held  liable  upon  a  contract 
prohibited  as  being  a  departure  from  the  purposes  for  which  it  was  created. 
Thomas  r.  Railroad  Co.,  101  TJ.  S.  71;  Pearce  v.  Railroad  Co.,  21  How.  442; 
Franklin  Co.  r.  Lewiston  Inst,  for  Savings,  68  Me.  43 ;  Davis  v.  Railroad  Co., 
131  Mass.  258;  Nat.  Trust  Co.  r.  Miller,  33  N.  J.  Eq.  155;  Nat.  Park 
Bank  v.  German-American  Co.,  116  N.  Y.  281;  Jemison  r.  Bank,  122  N.  Y.  135; 
Madison  Plk.  Rd.  Co.  v.  Watertown  Plk.  Rd.  Co.,  7  Wis.  59 :  contra  to  Davis 
r.  Railroad  Co.,  supra,  on  a  similar  state  of  facts,  is  State  Board  v.  Railroad 
Co.,  47  Ind.  407. 


COEPOEATIONS.  143 

shareholder  may  protect  himself  for  the  future,  but  the  mischief  may 
be  done  or  doing  at  the  time  of  the  purchase :  moreover  persons  other 
than  shareholders  deal  with  the  company  on  the  faith  of  its  adhering 
to  its  defined  objects.  They  are  entitled  to  "know  that  they  are 
dealing  with  persons  who  can  only  devote  their  means  to  a  given  class 
of  objects,  and  who  are  prohibited  from  devoting  their  means  to  any 
other  purpose"  (g).  The  assent  of  all  those  who  are  shareholders 
at  a  given  time  will  bind  them  individually,  but  it  will  not  bind 
others  (A).  If  I  buy  shares  in  a  company  which  professes  to  make 
3  railway  plant  in  England  I  have  a  right  to  assume  that  its  funds 
are  not  pledged  to  pay  for  making  a  railway  in  Spain  or  Belgium, 
and  it  is  the  same  if  dealing  with  it  as  a  stranger  I  lend  money  or 
otherwise  give  credit  to  it.  Accordingly  the  provisions  of  the  Com- 
panies Act,  1862,  are  to  be  considered  as  having  been  enacted  in  the 
interests  of  *'*  in  the  first  place,  those  who  might  become  shareholders 
in  succession  to  the  persons  who  were  shareholders  for  the  time  being ; 
and  secondly,  the  outside  public,  and  more  particularly  those  who 
might  be  creditors  of  companies  of  this  kind"  (i).  Accordingly  it 
is  settled  that  a  company  registered  under  the  Companies  Act  is 
forbidden  to  enter,  even  with  the  unanimous  assent  of  the  share- 
holders for  the  time  being,  into  a  contract  foreign  to  its  objects  as 
defined  in  the  memorandum  of  association  (&).17 

Inability  of  corporations  to  make  negotiable  instruments.  It  is  not 
within  our  scope  to  discuss  the  particular  contracts  which  particular 

(g)   Lord  Hatherley,  L.lt.  7  H.  L.  Co.  v.  Riche   (1875)    L.   R.   7   H.  L. 

at  p.  684.  653,  44  L.  J.  Ex.   185.     See  note  D. 

(h)    See  L.  R.  9  Ex.  270,  .291.  in    Appendix    for    some    further    ac- 

(i)   Lord  Cairns,  L.  R.  7  H.  L.  at  count  of  the  authorities  by  which  the 

p.  667.  rules  were  settled  in  the  latter  part 

(k)   AsKbury  By.  Carriage  &  Iron  of  the  nineteenth  century. 

17  In  Thomas  v.  Railroad  Co.,  101  U.  S.  71,  83,  the  court  said  of  Ashbury 
Ry.  Carriage  Co.  v.  Riche,  supra,  note  ( k ) ,  that  it  "  established  the  broad 
doctrine  that  a  contract  not  within  the  scope  of  the  powers  conferred  on 
the  corporation  cannot  be  made  valid  by  the  assent  of  every  one  of  the 
shareholders,  nor  can  it  by  any  partial  performance  become  the  foundation  of 
a  right  of  action.  It  would  be  a,  waste  of  time  to  attempt  to  examine  the 
American  cases  on  the  subject,  which  are  more  or  less  conflicting,  but  we 
think  we  are  warranted  in  saying  that  this  latest  decision  of  the  House  of 
Lords  represents  the  decided  preponderance  of  authority  in  this  country  and 
in  England,  and  is  based  upon  sound  principle."  The  case  is  also  approved 
and  followed  in  Pennsylvania  Co.  v.  Railroad,  118  U.  S.  290;  Oregon  Ry.  Co. 
V.  Oregonian  R.  Co.,  130  U.  S.  1;  Central  Transportation  Co.  v.  Pullman 
Co.,  139  IT.  S.  24;  171  U.  S.  138;  De  La  Vergne  Co.  v.  German  Sav.  Inst., 
175  U.  S.  40;  Davis  v.  Railroad  Co.,  131  Mass.  258;  Nat.  Trust  Co.  v.  Miller, 
33  N.  J.  Eq.  155;  Grand  Lodge,  etc.  v.  Stepp,  S.  C.  Pa.,  17  Rep.  61;  Mallory 
v.  Oil  Co.,  86  Tenn.  598. 


14-1  CAPACITY    OF    PARTIES. 

corporate  bodies  have  been  held  incapable  of  making.  One  class  of 
contracts,  however,  is  in  a  somewhat  peculiar  position  in  this  respect, 
130]  and  ^requires  a  little  separate  consideration.  We  mean  the 
contracts  expressed  in  negotiable  instruments  and  governed  by  the 
law  merchant.  As  a  general  rule  a  corporation  cannot  bind  itself 
by  a  negotiable  instrument  (I).18  This  is  not  because  a  corporation 
cannot  be  presumed  to  have  power  to  do  so,  but,  in  the  first  place, 
because  of  the  general  rule  of  form  that  the  contracts  of  a  corpora- 
tion must  be  made  under  its  common  seal  (m).  It  follows  from  this 
that  a  corporation  cannot  prima  facie  be  bound  by  negotiable  instru- 
ments in  the  ordinary  form.  The  only  comparatively  early  authority 
which  is  really  much  to  the  point  was  argued  and  partly  decided  on 
this  footing  («).     But  the  corporate  seal  may  now  take  the  place  of 

(I)   A    diiferent    rule    prevails    in  notes,  &c,  within  certain  limits.     In 

the  United   States,   where  it  is  held  Murray  v.  E.  India  Go.    (1821)    5  B. 

that  a  corporation  not  expressly  pro-  &  Aid.  204,  24  R.  R.  325,  the  statu- 

hibited  from  so   doing  may  give  ne-  tory  authority  to  issue  bills  was  not 

gotiable  promissory  notes  for  any  of  disputed;    a   difficulty  was   raised   as 

the  legitimate   purposes   of  its  ineor-  to   the   proper   remedy,    but   disposed 

poration.      This    appears    more    co<n-  of  in  the  course   of  argument:    5  B. 

venient  at  the  present  day.  &   Aid.   210;    24   R.   R.    330".      Other 

(to)    See   more    as   to   this    in   the  cases  at  first  sight  like  these  relate 

following  chapter.  to  the  authority  of  particular  agents 

(n)    Brought  on  v.  Manchester  Wa-  to   bind   a   corporate — or   unincorpor- 

terworks  Co.    (1819)    3  B.  &  Aid.   1,  ated — association   irrespective  of  the 

22  R.  R.   278.     The  chief  point  was  theory   of   corporate   liabilities.      See 

on  the   statutes  giving  the  Bank  of  note  (q)  next  page. 
England   exclusive   rights   of   issuing 

18  In  the  United  States,  "  no  question  is  better  settled  upon  authority 
than  that  a  corporation,  not  prohibited  by  law  from  doing  so,  and  without 
any  express  power  in  its  charter  for  that  purpose,  may  make  a  negotiable 
promissory  note  payable  either  at  a  future  day  or  upon  demand,  when  such 
note  is  given  for  any  of  the  legitimate  purposes  for  which  the  company 
was  incorporated."  Moss  r.  Averill,  10  N.  Y.  449,  457 ;  Railroad  Co.  v.  How- 
ard, 7  Wall.  392,  412;  Grommes  r.  Sullivan,  81  Fed.  Rep.  45;  Oxford  Iron  Co. 
v.  Spradley,  46  Ala.  98;  Ward  r.  Johnson,  95  III.  215;  Davis  v.  Building 
Union,  32'  Md.  285;  Preston  r.  Missouri,  etc.,  Lead  Co.,  51  Mo.  43;  Barry 
r.  Merchants'  Exch.  Co.,  1  Sandf.  Ch.  280;  Railway  Co.  r.  Lynde,  55  Ohio 
St.  23;   Bank  v.  Jacobs,  6  Humph.  515. 

Where  a.  corporation  has  power  to  issue  bills  and  notes  under  any  circum- 
stances, a  bona  fide  holder  may  rely  on  the  presumption  that  they  were  right- 
fully issued.  Supervisors  r.  Schenk,  5  Wall.  772,  784;  Lexington  v.  Butler, 
14  Wall.  282;  Todd  v.  Kentucky  Land  Co.,  57  Fed.  Rep.  47;  Grommes  v. 
Sullivan,  81  Fed.  Rep.  45;  Nat.  Loan  Co.  v.  Rockland  Co.,  94  Fed.  Rep.  335; 
Florence  R.  Co.  r.  Bank,  106  Ala.  364;  Railroad  Co.  r.  Norwich,  etc.,  Society, 
24  Ind.  457;  Bank  v.  Globe  Works,  101  Mass.  57;  American  Bank  v.  Gluck, 
68  Minn.  129;  Auerbach  v.  Le  Sueur  Mill  Co.,  28  Minn.  291;  Bank  v.  Mich. 
Barge  Co.,  52  Mich.  438;  Bissell  r.  Railroad  Co.,  22  N.  Y.  258,  289;  Stoney 
v.  Insurance  Co.,  11  Paige,  635;  Banking  Assn.  r.  White  Lead  Co.,  35  N.  Y. 
505:  Wright  v.  Pipe  Line  Co..  101  Pa.  204;  County  of  Macon  v.  Shores,  97 
U.  S.  272,  278-9.     Supra,  p.  *124,  n.  14. 


CORPORATIONS.  145 

signature  in  .bills  and  notes  (o),19  and  transferable  debentures  under 
a  company's  seal  have  been  held  to  be  negotiable  (p).  Thus  the  ob- 
jection of  form  does  not  seem  of  great  importance  in  modern  practice. 
The  question  of  authority  to  bind  the  company  in  substance  is  more 
serious. 

Ordinary  rules  of  partnership  agency  not  applicable.  It  may  be  asked, 
why  should  not  the  agents  who  are  authorized  to  contract  on  behalf 
of  a  company  in  the  ordinary  course  of  its  business  be  competent 
to  bind  the  company  by  their  acceptance  or  indorsement  on  its 
behalf,  just  as  a  member  of  an  ordinary  trading  partnership  can 
bind  the  firm  ?  There  is  a  twofold  answer.  First,  the  extensive  im- 
plied authority  of  *an  ordinary  partner  to  bind  his  fellows  can-  [131 
not  be  applied  to  the  case  of  a  numerous  association,  whether  incor- 
porated or  not,  whose  members  are  personally  unknown  to  each  other, 
and  it  has  been  often  decided  that  the  managers  of  such  association? 
cannot  bind  the  individual  members  or  the  corporate  body,  as  the  case 
may  be,  by  giving  negotiable  instruments  in  the  name  of  the  concern, 
unless  the  terms  of  their  particular  authority  enable  them  to  do  so 
by  express  words  or  necessary  implication  (g).  In  the  case  of  a  cor- 
poration this  authority  must  be  sought  in  its  constitution  as  set  forth 
in  its  special  Act,  articles  of  association,  or  the  like.  Secondly,  the 
power  of  even  a  trading  corporation  to  contract  without  seal  is  limited 
to  things  incidental  to  the  usual  conduct  of  its  business.  But  as  was 
pointed  out  by  a  judge  who  was  certainly  not  disposed  to  take  a 
narrow  view  of  corporate  powers,  a  negotiable  instrument  is  not  merely 
evidence  of  a  contract,  but  creates  a  new  contract  and  a  distinct  cause 

(o)Bills  of  Exchange  Act,  1882,  B.  &  W.  252,  16  L.  J.  Ex.   112.     As  to 

91.  incorporated     companies:     Steele     v. 

(p)   Bechuanaland  Exploration  Co.  Harmer   (1845)    14  M.  &  W.  831    (in 

V.   London    Trading    Bank    [1898]    2  Ex.  Ch.  4  Ex.  1,  not  on  this  point)  ; 

Q.  B.  658,  67  L.  J.  Q.  B.  987.  Thompson  v.    Universal   Salvage    Co. 

(g)   As     to     unincorporated     joint  (1848)    1  Ex.  694,  17  L.  J.  Ex.  118; 

stock    companies:     Neale    v.    Turton  Re  Peruvian  Rys.   Co.    (1867)    L.  R. 

(1827)    4  Bing.   149,   29  R.   R.   531;  2  Ch.  617,  36  L.  J.  Ch.  864;   cp.  Ex 

Dickinson  V.   Valpy    (1829)    10  B.   &  parte  City  Bank   (1868)   L.  R.  3  Ch. 

C.    128,    34    R.    R.    348;.  Bramah   V.  758,  per  Selwyn  L.J.     The  two  last 

Roberts    (1837)    3  Bing.   N.   C.   963;  cases  go  rather  far   in  the  direction 

Bult  v.   Morrel    (1840)    12   A.   &   E.  of  implying  such  a  power  from  gen- 

745;   Broion  v.  Byers   (1847)    16  M.  eral  words. 

is  So  in  the  United  States.  Mercer  County  v.  Hackett,  1  Wall.  83,  95 , 
Ackley  School  District  v.  Hall,  113  U.  S.  135;  Lachman  v.  Lehman,  63  Ala. 
547;  Griffith  r.  Burden,  35  la.  138;  Strauss  v.  United  Telegram  Co.,  164 
Mass  130;  Boyd  v.  Kennedy,  38  N.  J.  L.  146;  Copper  v.  Mayor,  44  N.  J.  L. 
634;  Bank  r.  Faurot,  149  N.  Y.  532;  Kerr  r.  Corry,  105  Pa.  282;  Mason 
v.  Frick,  105  Pa.  162;  Stevens  v.  Philadelphia  Ball  Club,  142  Pa.  52: 
American  Bank  r.  American  Wood  Paper  Co.,  19  R.  I.  149;  Crawford's  Ne- 
gotiable Instruments'  Law,  §  25;  Green's  Brice's  Ultra  Vires,  268,  note  (a). 
10 


146  CAPACITY    OF    PARTIES. 

of  action,  and  "  it  would  be  altogether  contrary  to  the  principles  of 
the  law  which  regulates  such  instruments  that  they  should  be  valid  or 
not  according  as  the  consideration  between  the  original  parties  was 
good  or  bad;"  and  it  would  be  most  inconvenient  if  one  had  in  the 
case  of  a  corporation  to  inquire  "  whether  the  consideration  in  respect 
of  which  the  acceptance  is  given  is  sufficiently  connected  with  the 
purposes  for  which  the  acceptors  are  incorporated  "  (r). 
132]  *The  result  seems  to  be  that  in  England  a  corporation  can  be 
bound  by  negotiable  instruments  only  in  the  following  cases : — 

1.  When  the  negotiation  of  bills  and  notes  is  itself  one  of  the 
purposes  for  which  the  corporation  exists  —  "  within  the  very  scope 
and  object  of  their  incorporation  "  (s) —  as  with  the  Bank  of  England 
and  the  East  India  Company,  and  (it  is  presumed)  financial  com- 
panies generally,  and  perhaps  even  all  companies  whose  business 
wholly  or  chiefly  consists  in  buying  and  selling  (s). 

2.  When  the  instrument  is  accepted  or  made  by  an  agent  for  ihe 
corporation  whom  its  constitution  empowers  to  accept  bills,  &c,  on  its 
behalf,  either  by  express  words  or  by  necessary  implication. 

The  extent  of  these  exceptions  cannot  be  said  to  be  very  precisely 
defined,  and  in  framing  articles  of  association  and  similar  instru- 
ments, it  is  therefore  desirable  to  insert  express  and  clear  provisions 
on  this  head. 

American  decisions.  In  the  United  States  the  Supreme  Court  has 
decided  that  local  authorities  having  the  usual  powers  of  adminis- 
tration and  local  taxation  have  not  any  implied  power  to  issue 
negotiable  securities  which  will  be  indisputable  in  the  hands  of  a 
bona  fide  holder  for  value  (t),  and  has  been  equally  divided  on  the 
question  whether  municipal  corporations  have  such  power  (w).20  It 
seems  however  that  in  American  Courts  a  power  to  borrow  money  is 

(r)   Per  Erie  C.J.  Batem.au  v.  Mid  (s)    Per  Montague  Smith  J.  L.  R. 

Wales  Ry.  Co.    (1866)    L.  R.   1   C.  P.  1    C.    P.    512;    Ex   parte    City   Batik 

499,  509,  .35  L.  J.  C.  P.   205.     Rail-  (1868)   L.  R.  3  Ch.  758. 
way   companies   are  expressly   forbid-  (t)    Police  Jury  V.  Britton   (1872) 

den  to  issue  negotiable  or  assignable  15  Wall.  566,  572. 
instruments    without    statutory    au-  (u)   The  Mayor  v.  Ray   (1873)    19 

thority,    on    pain    of    forfeiting    the  Wall.  466. 
nominal    amount    of   the    security:    7 
&  8  Vict.  c.  85,  s.   19. 

20  The  weight  of  authority  is  against  their  having  such  power.  Chisholm 
v.  Montgomery,  2  Woods,  584;  Gause  v.  Clarksville,  5  Dillon,  165;  Hopper 
r.  Covington,  8  Fed.  Rep.  779;  Merrill  v.  Monticello,  14  Fed.  Rep.  628;  Insur- 
ance Co.  v.  Manning,  95  Fed.  Rep.  597 ;  Mayor  r.  Wetumka  Wharf  Co.,  63  Ala. 
611,  625;  Clark  v.  Des  Moines,  19  la.  199;  Dively  v.  Cedar  Falls,  21  la.  565; 
Heins  v.  Lincoln,  102  la.  71,  78;  Haekettstown  ads.  Swaekhammer,  37  N.  J.  L. 
191;  Knapp  v.  Mayor,  39  N.  J.  L.  394;  Hubbell  v.  Custer  City,  15  S.  Dak.  55. 
Contra,  Richmond  r.  McGirr,  78  Ind.  192;  Commonwealth  v.  Williamstown, 
156  Mass.  70;  Williamsport  r.  Commonwealth,  84  Pa.  St.  487,  where  previous 


CORPORATIONS.  147 

held  to  carry  -with  it  as  an  incident  the  power  of  issuing  negotiable 
securities  (x.)21 

Estoppel  and  part  performance  apply  to  corporations.  The  common  law 
doctrine  of  estoppel  (y),22  and  the  kindred  equitable  doctrine  of  part 
performance  (z),23  apply  to  corporations  as  well  as  to  natural  [133 
persons.  Even  when  the  corporate  seal  has  been  improperly  affixed 
to  a  document  by  a  person  who  has  the  custody  of  the  seal  for  other 
purposes,  the  corporation  may  be  bound  by  conduct  on  the  part  of 
its  governing  body  which  amounts  to  an  estoppel  or  ratification,  but 
it  will  not  be  bound  by  anything  less  (a)-24  The  principles  applied 
in  such  cases  are  independent  of  contract,  and  therefore  no  difficulty 
arises  from  the  want  of  a  contract  under  the  corporate  seal,  or  non- 
compliance with  statutory  forms.  But  it  is  conceived  that  no  sort 
of  estoppel,  part  performance,  or  ratification  can  bind  a  corporation 
to  a  transaction  which  the  Legislature  has  in  substance  forbidden  it 
to  undertake,  or  made  it  incapable  of  undertaking.25, 

(x)    Police    Jury    v.    Britton,    15  fined  however  to  eases  where  the  cor- 

Wall.  566.  poration  is  "  capable  of  being  bound 

(y)    Webb  v.  Heme  Bay  Gommis-  by  the  written  contract  of  its  direct- 

sioners   (1870)  L.  R.  5  Q.  B.  642,  39  ors    as    an   individual    is    capable    of 

L.  J.  Q.  B.  221.  being  bound  by  his  own  contract  in 

(z)    Wilson    v.     West     Hartlepool  writing:"    per   Cotton   L.J.    Hunt   v. 

Ry.  Co.   (1864-5)  2  D.  J.  S.  475,  493,  Wimbledon  Local  Board  (1878)   4  C. 

peT   Turner   L.J.    34  L.   J.   Ch.   241 ;  P.  Div.  at  p.  62,  48  L.  J.  C.  P.  207. 

Crook     v.     Corporation     of     Seaford  (a)   Bank     of    Ireland    v.    Evans' 

(1871)    L.  R.  6  Ch.  551;   Melbourne  Charities    (1855)     5    H.    L.    a    389; 

Banking    Corporation    v.    Brougham  Merchants  of  the  Staple  v.  Bank  of 

(1878-9)    4   App.   Ca.   at  p.   169,   48  England    (1887)    21   Q.   B.  Div.    160, 

L.  J.   C.  P.    12.     This  must  be  con-  57  L.  J.  Q.  B.  418. 

luthorities  in  accord  with  that  decision  are  collected.  The  opinion  of  Mr. 
Justice  Bradley,  in  Mayor  v.  Ray,  is  approved  in  Wall  v.  County  of  Monroe, 
103  U.  S.  74,  and  Claiborne  County  t:  Brooks,  111  U.  S.  400. 

In  the  case  last  cited  the  court  say,  p.  410:  "It  is  undoubtedly  a  ques- 
tion of  local  policy  with  each  State  what  shall  be  the  extent  and  character 
of  the  powers  which  its  various  political  and  municipal  organizations  shall 
possess ;  and  the  settled  decisions  of  its  highest  courts  on  this  subject  will  be 
regarded  as  authoritative  by  the  courts  of  the  United  States ;  for  it  is  a 
question  that  relates  to  the  internal  constitution  of  the  body  politic  of  the 
State."  So  Loeb  v.  Trustees,  179  U.  S.  472,  492;  Wilkes  Co.  v.  Coler,  180 
TJ.  S.  506,  531. 

See  further  Dillon,  Municipal  Corp.,  §  117  sqq. 

21  Supra,  p.  *129,  n.  19. 

22  Pendleton  County  v.  Amy,  13  Wall.  297;  Railroad  Co.  v.  Howard,  13 
How.  307,  335;  New  England,  etc.,  Co.  v.  Union,  etc.,  Co.,  4  Blatchf.  1; 
Railroad  Co.  v .  Tipton,  5  Ala.  787 ;  Sacramento  Co.  v.  Southern  Pacific  Co., 
127  Cal.  217;  Railroad  Co.  v.  Chatham,  42  Conn.  465;  Hale  v.  Insurance  Co., 
32  N.  H.  295;  Bank  v.  Flour  Co.  S.  C.  Com.  Ohio,  13  Wkly.  Law  Bull.  368; 
Kneeland  v.  Gibson,  24  Wis.  39. 

23  Conant  v.  B.  F.  Canal  Co.,  29  Vt.  263. 

24  Rector,  etc.,  of  St.  Bartholomew  r.  Wood,  80  Pa.  219. 

25  Central  Transportation  Co.  v.  Pullman  Co.,  139  U.  S.  24;  171  U.  S.  138 
Graves  v.  Saline  Co.,  161  U.  S.  359;  Kennedy  v.  Bank,  167  U.  S.  362,  371 
Bank  v.  Hawkins,  174  U.  S.  364;  Clark  v.  Northampton,  105  Fed.  Rep.  312 
Sage  v.  Fargo  Township,  107  Fed.  Rep.  383. 


148 


FORM    OF    COXTRACT. 


134] 


*CHAPTEB  III. 
Form  of  Contract. 


PAGE. 

I.  Formality    in    Early    English 

Law,  148 

Modern  principles  as  to  re- 
quirements of  form,  148 

Position  of  informal  contracts 
in  ancient  law,  149 

Formal  and  informal  contracts 
in   Roman  law, 

Archaic  modes  of  proof, 

The  deed  in  English  medieval 
law, 

Remedies  on  contracts :  debt 
on  covenant  or  simple  con- 
tract, 

Action  of  covenant, 

Action  of  account, 

II.  The  Action  of  Assumpsit, 
Introduction    of   assumpsit    to 

supply  remedy  on  executory 
agreements, 

III.  Modem       Requirements       of 
Form, 

Modern   law:    requirements  of 

form  exceptional, 
Contracts  of  record, 
Contracts    subject    to    special 

forms, 
1.   Contracts   of  Corporations, 


PAGE. 
161 


149 
150 

150 


151 

15-2 
153 
154 


154 

157 

157 
157 

158 
159 


Old  law:   requirement  of  seal,  159 


Modern  exceptions, 
Trading      corporations :      con- 
tracts in  course  of  business,  162 
Non-trading  corporations :  con- 
tracts   necessary    and    inci- 
dental to  corporate  purposes,  164 
Municipal  corporations,  &c,       164 
Appointments  of  officers,  165 

Executed   contracts   with   cor- 
porations, 166 
Statutory  forms  of  contract,     167 
Summary,                                        168 

2.  Negotiable  Instruments,  168 

3.  Statutory  Forms,  168 

A.  Statute  of  Frauds,  168 
Guarantees,  169 
Agreements     upon     considera- 
tion of  marriage,                       172 

Interests  in  land,  172 

Agreements     not     to     be     per- 
formed within  a  year,  175 
Sale  of  goods,                                 178 
The   "  note   or   memorandum,''  178 
Transfers   of   ships   and   copy- 
right,                                           183 

B.  Marine  Insurance,  183 

C.  Transfer   of  Shares,  184 

D.  Acknowledgment  of  Barred 

DeUs,  184 


I.  Formality  in  Early  English  Law. 

Modern  principles:  form  required  only  for  special  reasons.        The  law  of 

contract  exists  chiefly  for  the  security  of  men  in  their  daily  business, 
conducted  in  many  different  modes  from  hour  to  hour,  and  in  whatever 
mode  suits  the  circumstances,  by  word  of  mouth  (nowadays  including 
telephone),  written  agreement,  letter,  or  telegraph.  Hardly  any 
limit  can  be  set  to  the  diversity  of  forms  in  which  men  bargain  with 
one  another;  but  business,  in  the  commercial  sense,  has  this  common 
feature  in  all  its  branches,  that  it  depends  on  bargain  of  some  kind. 
Therefore  the  Common  Law  does  not,  as  a  general  rule,  require  any 
particular  form  in  contracts,  provided  that  there  is  a  bargain  intended 
to  be  binding,  though. in  certain  cases  evidence  in  writing  is  required 
for  special  reasons  of  precaution,  or  by  mercantile  custom  embodied 
in  the  law,  and  in  some  cases  formalities  are  imposed  for  the  pro- 


HISTORY  OF   FORMAL   CONTRACTS.  149 

tection  of  the  revenue.  Transactions  of  bounty,  on  the  other  hand, 
are  not  in  the  ordinary  way  of  business,  and  if  a  man  wants  to  bind 
himself  without  bargain,  or  to  dispense  with  proof  of  a  bargain,  he 
must  do  so  with  a  certain  amount  of  solemnity  (reduced,  however,  to 
a  matter  of  no  great  trouble  or  necessary  cost  in  modern  practice) 
by  expressing  his  promise  in  a  deed.  Accordingly  agreements  made 
for  valuable  consideration  are  subject  to  conditions  of  form  only  by 
way  of  exception  in  particular  cases,  but  solemn  form  is  necessary  to 
make  a  gratuitous  promise  binding.  In  some  such  words  as  the 
foregoing  the  broad  principles  of  our  modern  law,  and  the  *rea-  [  1 35 
sons  which  make  us  fairly  content  with  it  as  it  stands,  may  be  stated 
with  tolerable  accuracy. 

Otherwise  in  early  law.  But  such  a  statement  would  be  misleading 
if  taken  as  implying  the  assertion  that  the  law  came  to  be  what  it  is 
by  any  such  logical  process.  English  law  started  from  a  groundwork 
of  archaic  Germanic  ideas  not  unlike  those  of  the  early  Eoman  law, 
and  quite  unrelated  to  the  common  sense  of  a  modern  man  of  busi- 
ness. Form  and  ceremony  were  everything,  substance  and  intention 
were  nothing  or  almost  nothing.  Only  those  transactions  were  recog- 
nized as  having  legal  efficacy  which  fulfilled  certain  conditions  of 
form,  and  could  be  established  by  one  or  other  of  certain  rigidly 
defined  modes  of  proof.  The  proof  itself  was  formal  and,  when  once 
duly  made,  conclusive.  The  history  of  this  branch  of  our  law,  through 
the  Middle  Ages  and  even  later,  consists  of  the  transition  from  the 
ancient  to  the  modern  way  of  thinking. 

No  systematic  rules  of  contract.  Taking  English  courts  and  the  rem- 
edies they  administered  as  they  were  about  the  middle  of  the  thirteenth 
century  (for  it  is  needless  to  go  farther  back  for  our  present  pur- 
pose) (a),  we  find  that  what  we  should  call  elaborate  contracts  or 
covenants,  and  of  sufficiently  varied  kinds,  can  be  annexed  to  grants  of 
land  and  interests  in  land,  but  there  is  very  little  independent  law 
of  contract,  and,  if  by  a  law  of  contract  we  mean  a  law  which  enforces 
promises  as  such,  it  can  hardly  be  said  that  there  is  any  at  all.  Still 
less  is  there  any  theory  or  system  of  the  law.  Those  who  aim  at 
having  one  must  go  to  the  now  rising  Continental  science  of  Eoman 
law,  and  gather  crumbs  from  the  tables  of  the  renowned  glossators. 
Bracton,   so  far  as  he  has  a  system,  copies  Azo  of  Bologna  with 

(a)   There  was  practically,  no  secu-  ed. ;    "English  Law  before  the  Nor- 

lar  law  of  contract  before  the  Nor-  man      Conquest,"      by     the     present 

man     Conquest.       See     Pollock     and  writer,  L.  Q.  E.  xiv.  291,  303. 
Maitland,  Hist.  Eng.  Law,  i.  57,  2nd 


150  FOBM    OF    COXTKAOT. 

variations  due  partly  to  misunderstanding  and  partly  to  the  impos- 
sibility of  contradicting  the  actual  English  practice  (6).  But 
136]  the  *only  classification  for  which  the  practical  English  lawyer 
cares  is  a  classification  of  forms  of  action,  process,  and  remedies. 
Bracton  was  largely  read  and  used,  and  was  more  or  less  closely  fol- 
lowed by  the  unknown  authors  of  the  books  called  Britton  and  Fleta, 
but  his  Eornan  or  Eomanized  arrangements  of  legal  topics  never  ac- 
quired any  authority,  and  produced  no  effect  whatever  on  the  registers 
of  writs  or  on  the  technical  vocabulary  of  pleaders.  English  lawyers 
would  not  believe — and  on  the  whole  were  right  in  not  believing — 
that  an  English  charter  had  anything  to  do  with  the  Boman  rules 
about  the  verbal  contract  by  stipulation,  or  an  appeal  of  felony  with 
an  action  under  the  Lex  Aquilia  (c). 

Archaic  modes  of  proof.  The  only  modes  of  proof  known  to  early 
Germanic  law  were  oath  and  ordeal.  The  archaic  oath  is  not  a 
confirmation  of  testimony  open  to  discussion,  but  a  one-sided  oath 
of  the  party  and  his  helpers,  which  may  be  preliminary,  for  the 
purpose  of  giving  him  a  standing  before  the  Court,  or  final  and 
decisive.  One  regular  form  of  deciding  issues  on  the  Continent,  but 
not  in  England  until  it  was  introduced  from  Normandy,  was  trial  by 
battle,  not  material  in  the  history  of  this  part  of  the  law,  but  still 
theoretically  possible  in  an  action  of  debt  as  late  as  the  time  of 
Henry  II.  (d).  Ordeal,  abolished  in  the  thirteenth  century,  was  con- 
fined to  criminal  matters.  Proof  by  writing  is  ultimately  of  Boman 
origin,  but  was  adopted  by  the  Germanic  nations  of  the  Continent  at 
an  early  time.  Duel  and  writing  are  the  two  normal  modes  of  proof 
in  the  King's  Court  in  the  twelfth  century  (e).  The  charter  or  deed 
of  medieval  English  law  was  not  a  continuation  of  the  Anglo-Saxon 
"  book,"  but  a  Norman  importation,  representing  the  Frankish  branch 
of  what  we  may  call  Boman  conveyancing  tradition  (f).  Now  the 
137]  old  Boman  formal  contract,  the  stipulation  by  question  *and 
answer,  had  been  practically  transformed  into  a  written  contract  even 
before  the  legislation  of  Justinian  (g)  ;  and  stipulatio  or  adstipulatio 

(b)  See  Prof.  F.  W.  Maitland's  (f)  The  English  charter  of  feoff- 
"  Bracton  and  Azo,"  Selden  Society,  ment  and  memorandum  of  livery  of 
1895.                                                                  seisin  are  really  the  carta  and  noti- 

(c)  "Actio  legis  Aquiliae  de  homini-        tia  familiar   in   Continental   practice 
bus     per    feloniam     occisis    vel    vul-        as  early  as  the  ninth  century, 
neratis":    Bracton,   fo.   103   6.  (g)    Brunner,       Zur       Rechtsgesch. 

(d)  Glanv.  x.  12.  der      rdmischen      und      germanischen 

(e)  II.  x.   17.  Urkunde,  63;  Moyle's  Justinian,  2nd 

ed.  498. 


MEDIEVAL    HISTORY.  151 

had  long  since,  in  Continental  conveyancing,  become  a  name  for  the 
signing  or  execution  of  a  written  instrument  (h). 

Thus  the  charter  came  to  us  with  all  the  historical  dignity  of  the 
most  solemn  form  of  obligation  known  to  Roman  law  (i) ;  and  if  this 
was  not  enough,  its  authority  was  completed  by  the  fact  that  all  proof 
was  formal  in  Germanic  law,  and  was  conclusive  when  once  made  in 
due  form.  "  Proof  was  what  satisfied  the  law,  not  what  satisfied  the 
Court"  (k).  A  deed  was,  and,  subject  to  grounds  of  exception  ad- 
mitted only  at  a  later  time,  still  is  binding,  not  because  it  records 
this  or  that  kind  of  transaction,  but  by  the  form  of  the  record  itself. 
And,  when  a  promise  to  pay  money  was  recorded  in  a  deed,  the  action 
which  the  promisee  could  bring  was  not  an  action  on  the  promise. 

Remedies  in  thirteenth  century  —  Debt  on  covenant.  The  remedy  to  re- 
cover money  secured  by  deed  was  the  action  of  debt,  which  retained 
its  essential  form  and  characters  through  the  whole  history  of  common 
law  procedure,  so  long  as  the  forms  of  action  were  preserved  at  all. 
This  was  a  writ  of  right  for  chattels,  an  action,  not  to  enforce  a 
promise,  but  to  get  something  conceived  as  already  belonging  to  the 
plaintiff:  it  was  called  an  action  of  property  as  late  as  the  Restora- 
tion (I),  a  conception  which  lingers  even  in  some  of  Blaekstone's 
language.  A  promise,  where  it  was  operative  at  all,  operated  not  by 
way  *of  obligation,  but  as  a  grant  of  the  sum  expressed  (m).  [138 
It  was  a  good  defence  that  the  party's  seal  had  been  lost  and  affixed 
by  a  stranger  without  his  knowledge,  at  least  if  the  owner  had  given 
public  notice  of  the  loss  (n)  :  but  not  if  it  had  been  misapplied  by  a 
person  in  whose  custody  it  was ;  for  then,  it  was  said,  it  was  his  own 
fault  for  not  having  it  in  better  keeping. 

( h)    Brunner,      Rom.      u.      Germ.  action    of    Property " :     Edgcomb    v. 

Urkunde,   220   sqq.     For  an   English  Dee,  Vaugh.  at  p.  101. 

example,  see  Kemble,  C.  D.  No.  623.  (to)    Harv.     Law     Rev.     vi.     399; 

(i)   The  summary  view  of  the  Ro-  "contracts     of     debt    are     reciprocal 

man    classification   of   contracts    for-  grants,"  Edgcomb  v.  Dee,  last  note. 

merly    given    in  .  this     chapter    was  (»)    Glanvill    (L.    10,    c.    12)    has 

written  at  a  time  when  English  text-  not  even  this:  Britton,  1,  164,  166,  as 

books  on   Roman  law  were  few  and  in  the  text.     "Pur  ceo  qe  il  ad  conu 

trustworthy  ones  fewer.     It  is  now,  le    fet    estre     soen    en     partie,     soit 

perhaps,    needless,    but    is    preserved  agardS  pur  le  pleyntif  et  se  purveye 

in  the  Appendix   (Note  E)    in  case  it  autre  foiz  le  defendaunt  de  meillour 

may  be  sometimes  useful  for  imme-  gardeyn."     Cp.  Fleta,  1.  6,  c.  33,  §  2; 

diate  reference.  c.  34,  §  4. ,   That  the  practice  of  pub- 

(h)    Salmond,     Essays     in     Juris-  lishing  formal  notice  in  case  of  loss 

prudence,  &c,  p.  16.  really  existed  is  shown  by  the  exam- 

(l)  The  action  of  assumpsit  was  pie  given  in  Blount's  Law  Diction- 
said  by  Vaughan  C.J.  to  be  "  much  ary,  s.  v.  Sigillum,  dated  18  Ric.  II. 
inferior  and  ignobler  than  the  action  In  modern  law  such  questions,  when 
of  debt,  which  by  the  Register  is  an  they  occur,  come  under  the  head  of 

estoppel. 


152 


FOHM    OF    CONTRACT. 


Debt  on  simple  contract,  detinue,  &c.  An  action  of  debt  (o)  might  also 
be  brought,  without  proof  by  deed,  for  such  things  as  money  lent,  or 
the  price  of  goods  sold  and  delivered,  and  an  action  of  detinue 
(which  was  but  a  species  of  debt)  for  chattels  bailed  (p),  the  cause 
of  action  being  still  not  any  promise  by  the  defendant  but  his  pos- 
session of  the  plaintiff's  money  (so  it  was  conceived)  or  goods.  The 
first  thing  needful  to  found  the  action  of  debt  was,  as  it  still  is  in 
jurisdictions  where  the  old  form1:  of  action  persist,  that  a  certain 
sum  of  money  should  be  payable  by  the  defendant  to  the  plaintiff. 
In  debt  and  detinue  the  text-writers  could  profess  to  recognize  the 
Roman  contractus  innominati  (do  ut  des,  &c.)  which  Bractou,  carry- 
ing out  the  medieval  notion  that  a  promise  to  pay  or  deliver  is  a 
grant  immediate  in  execution  and  only  suspended  in  operation,  put 
under  the  head,  strange  to  us  nowadays,  of  conditional  grants  (q). 
139]  In  the  course  of  the  next  two  centuries  we  *find  it  quite  clear 
that  an  action  of  debt,  provided  the  sum  be  liquidated,  will  lie  (as 
we  should  now  say)  on  any  consideration  executed,  and  also  that  on  a 
contract  for  the  sale  of  either  goods  or  land  an  action  may  be  main- 
tained for  the  price  before  the  goods  are  delivered  or  seisin  given  of 
the  land  (r).  In  1294  debt  was  brought  to  recover  money  paid 
on  a  failure  of  consideration  and  the  action  was  held  good  in  form 
(though  there  was  in  fact  a  covenant  (s),  and  it  was  said  that 
money  paid  as  the  price  of  land  might  be  recovered  back  in  debt 
if  the  seller  would  not  enfeoff  the  buyer. 

Covenant.  Other  remedies  applicable  to  contracts  were  of  limited 
scope  and  utility.  "The  action  of  covenant,  of  which  we  do  not  hear 
before  the  thirteenth  century,  was  grounded  on  agreement,  conventio, 
both  in  form  and  in  fact,  but  it  was  practically  confined  to  agree- 
ments relating  to  interests  in  land.     Attempts  at  extending  it  were 

(o)    For  fuller  statement  see  Pol-  possunt   and  ut  repetere  possim  are 

lock   &   Maitland,   Hist.    Eng.    L.    ii.  corrupt.     The  true   readings,  conjec- 

210.  turally  restored  long  ago  by  Guter- 

(p)    For   the  precise  difference   in  bock,  and  in  fact  given  almost  identi- 

the  developed  forms  of  pleading  see  cally  by  the  best  MSS.,  are  sed 

per    Maule    J.    15    C.    B.    303.      The  possum  .  .  .  non  ut  repetere  possim. 
decision   of   the  C.   A.   in   Bryant   v.  (r)    Y.  B.   12  Ed.  III.    (Rolls  ed.) 

Herbert   (1878)    3  C.  P.  Div.  389,  47  587    [Ad.    1338];    Mich.    37    H.    VI. 

L.  J.   C.  P.   670,   that  an  action  for  [A.    D.    1459],    8,    pi.    18,   by   Prisot 

wrongful    detention    is    "  founded    on  C.J.,  where   it  is  added  that  in  the 

tort"    within    the    meaning    of    the  case    of    goods    sold,    though    not    of 

County  Court  Acts  is,  and  professes  land,  ihe  buyer  may  take  the  goods: 

to  be,  beside  the  historical  question.  this     follows     from     the    theory     of 

(q)   Bracton  18  6,  19  a;  Fleta  1.  2,  "reciprocal  grant." 
c.  60,  8  23.     In  Bracton  fo.  19  a,  lines  (s)   Y.  B.  21  &  22  Ed.  I.  600. 

14,   15  in  ed.   1569,  si    (the  second), 


FORMS    OF   ACTION.  153 

cut  short  by  the  establishment,  after  some  vacillation,  of  the  rule  that 
writing  under  seal  was  the  only  admissible  proof;  so  that  in  the 
modern  common  law  covenant  is  the  proper  name  of  a  promise  made 
by  deed.  The  writ  of  covenant  remained  a  solitary  and  barren  form 
of  action,  without  influence  on  the  later  development  of  the  law  (t). 

Account.  The  action  of  account  (u)  was  a  remedy  of  wider  appli- 
cation (sometimes  exclusively,  sometimes  concurrently  with  debt)  to 
enforce  claims  of  the  kind  which  in  modern  times  have  been  the 
subject  of  actions  of  assumpsit  for  money  had  and  received  or  the 
like.  It  covered  apparently  all  *sorts  of  cases  where  money  had  [  1 40 
been  paid  on  condition  or  to  be  dealt  with  in  some  way  prescribed 
by  the  person  paying  it  (x).  One  must  not  be  misled  by  the  state- 
ment that  "  no  man  shall  be  charged  in  account  but  as  guardian 
in  socage,  bailiff  or  receiver "  (y) :  for  it  is  also  said  "  a  man  shall 
have  a  writ  of  account  against  one  as  bailiff  or  receiver  where  he 
was  not  his  bailiff  or  receiver :  for  if  a  man  receive  money  for  my  use 
I  shall  have  an  account  against  him  as  receiver;  or  if  a  man  deliver 
money  unto  another  to  deliver  over  unto  me,  I  shall  have  an  account 
against  him  as  my  receiver"  (z).  This  action  might  be  brought  by 
one  partner  against  another  (a).  At  common  law  it  could  not  be 
brought  by  executors,  except,  it  seems,  in  the  case  of  merchants,  nor 
against  them  unless  at  the  suit  of  the  Crown  (&)  :  but  it  was  made 
applicable  both  for  and  against  executors  by  various  statutes  to  which 
it  is  needless  to  refer  particularly  (c).  In  modern  times  this  action 
was  obsolete  except  as  between  tenants  in  common  (d).  Like  the  ac- 
tion of  debt,  it  was  in  the  nature  of  a  writ  of  right,  and  founded  not 
on  a  promise,  but  on  the  duty — 'in  this  case  not  of  paying  a  sum 
certain  but  of  rendering  an  account  —  attached  by  law  to  the  defend- 
ant's receipt  of  the  plaintiff's  money. 

(t)    See    Pollock    &    Maitland,    ii.  {x)    See  cases  in  1  Rol.  Abr.  116. 

216,    Harv.    Law    Rev.    vi.    399-401.  {y)    11  Co.  Rep.  89,  Co.  Lit.  172  a. 

The   Statutum   Walliae    [A.D.    1284]  (*)    F.  N.  B.  116  Q. 

is    the    most    instructive    document.  (a)   lb.  117  D.     Mr.  Langdell  dis- 

The  suggestion  in  Blackstone,  Comm.  putes   this,   but   Fitzherbert  is   clear 

iii.  158,  that  Assumpsit  is  an  action  and  express  on  the  point 

on  the  ease  analogous  to  the  writ  of  (6)   Co.  Lit.  90  b,  and  see  Earl  of 

covenant,       is       quite      unhistorical,  Devonshire's  case,  11  Rep.  89. 

though  ingenious.  (e)   The    action    is    given    against 

(u)    52  Hen.  III.   (Stat.  Marlb.)   c.  executors  by  4  &  5  Ann.  c.  3    (Rev. 

17,  13  Ed.  I.  Stat.  Westm.  2)    c.  23.  Stat.;   4  Ann.  c.   16  in  Ruffhead)    s. 

For  more  history  and  details  see  Mr.  27.    . 

Langdell    in   Harvard    Law   Rev.    ii.  (d)   See    Lindley    on    Partnership, 

243,  251.  547,  note  0. 


154  FORM    OF    CONTRACT. 

On  informal  executory  agreements  there  was  in  general  no  remedy 
in  the  King's  Courts  (e).  The  Ecclesiastical  Courts  however  en- 
forced them  freely  in  suits  pro  laesione  fidei,  within  (and  sometimes, 
it  would  seem,  not  within)  (/)  the  limits  set  by  the  Constitutions  of 
141]  Clarendon,  and  denned  *later  by  the  ordinance  or  so-called  stat- 
ute of  Circumspecte  agatis.  Executory  mercantile  contracts  were  also 
recognized  in  the  special  courts  which  administered  the  law  merchant. 
But  we  cannot  here  attempt  to  throw  any  light  on  that  which  Lord 
Blackburn  found  to  be  one  of  the-  obscurest  passages  in  the  history 
of  the  English  law  (q).  Also  there  were  exceptions  by  local  custom. 
"  In  London  a  man  shall  have  a  writ  of  covenant  without  a  deed 
for  the  covenant  broken,"  and  there  was  a  like  custom  in  Bristol  (h). 

II.  The  Action  of  Assumpsit. 
Later  introduction  of  assumpsit.  In  the  later  middle  ages  a  general 
remedy  became  indispensable ;  but  it  was  introduced  from  a  different 
branch  of  the  law,  and  by  a  device  which  at  first  was  thought  too 
bold  to  succeed.  This  was  a  new  variety  of  action  on  the  case, 
framed,  it  seems,  as  often  on  the  writ  of  deceit  (i)  as  on  that  of 
trespass,  and  it  ultimately  became  the  familiar  action  of  assumpsit 
and  the  ordinary  way  of  enforcing  simple  contracts.  Failure  to  per- 
form one's  agreements  did  not  create  a  debt  (fc),  but  it  was  found  to 
be  a  wrong  in  the  nature  of  deceit  for  which  there  must  be  a  remedy 
in  damages.  The  final  prevalence  of  assumpsit  over  debt,  like  that 
of  trover  over  detinue  (I),  was  much  aided  by  the  defendant  not  being 
1 42]  able  to  wage  his  law  and  by  the  *greater  simplicity  and  latitude 
of  the  pleadings:  but  the  reason  of  its  original  introduction  was  to 
supply  a  remedy  where  no  other  action  would  lie.    This  was  not  ef- 

(e)  See  further  Ames,  "Parol  Latch.  134,  1  Leo.  2,  4  Leo.  105.  Un- 
Contracts  prior  to  Assumpsit,"  Harv.  less  indeed  we  really  have  here  rules 
Law  Rev.  viii.  252.  of    the    law    merchant    which    were 

(f)  Harv.  Law  Rev.  vi.  403;  Pol-  pleaded  as  local  customs  as  the  only- 
lock  &  Maitland,  H.  E.  L.  ii.  200.  way  of  getting  them  recognized  by 
Neither  the  authority  nor  the  actual  the  King^s  Courts. 

text   of    Circumspecte   agatis    is  cer-  (t)   "The  breach  of  promise  is  al- 

tain.  leged   to   be    mixed   with    fraud   and 

(g)  Blackburn  on  the  Contract  of  deceit  to  the  special  prejudice  of  the 
Sale,  207-208.  In  addition  to  the  plaintiff,  and  for  that  reason  it  is 
quotation  there  from  the  Year  Book  called  trespass  on  the  case":  Pinch- 
of  Ed.  IV.,  see  Y.  B.  21  &  22  Ed.  I.,  em's  case,  9  Co.  Rep.  89a. 

p.  458.     And  see  Master  Macdonnell's  (7c)    "No  man  hath  property  by  a 

introduction    to    Smith's    Mercantile  breach  of  promise,   but  must  be  re- 

Eaw,    10th   ed.    1890;    A.    T.    Carter,  paired   in  damages":    Vaughan  C.J. 

The  Early  History  of  the  Law  Mer-  in  Edgcomb   v.   Dee,  Vaughan  at  p. 

chant  in  England,'  L.  Q.  R.  xvii.  232.  101. 

(h)    F.    N.    B.    146a,    Liber    Albus  (I)   See  per  Martin  B.  Burroughes 

191a,    14    H.    IV.    26a,   pi.    33,    G-odb.  v.  Bayne   (I860)   5  H.  &  N.  at  p.  301, 

49,    336,    Sty.     145,     198,     199,    228,  29  L.  J.  Ex.   188. 


HISTORY   OF  ASSUMPSIT.  155 

fected  without  dispute  and  dissent.  In  the  first  recorded  case  (m), 
ihc  action  was  against  a  carpenter  for  having  failed  to  build  cer- 
tain houses  as  he  had  contracted  to  do.  The  writ  ran  thus :  "  Quare 
cum  idem  [the  defendant]  ad  quasdam  domos  ipsius  Laurentii  [the 
plaintiff]  bene  et  fideliter  infra  certum  tempus  de  novo  construend' 
apud  Grimesby  assumsisset,  praedictus  tamen  T.  domos  ipsius  L. 
infra  tempus  praedictum,  &c,  construere  non  curavit  ad  dampnum 
ipsius  Laurentii  decern  libr',  &c."    The  report  proceeds  to  this  effect : — 

"  Tirwit. —  Sir,  you  see  well  that  his  count  is  on  a  covenant,  and 
he  shows  no  such  thing:  judgment. 

Gascoigne. —  Seeing  that  you  answer  nothing,  we  ask  judgment  and 
pray  for  our  damages. 

Tirwit. —  This  is  covenant  or  nothing  {ceo  est  merement  un  cove- 
nant). 

Brenchesley  J. —  It  is  so:  perhaps  it  would  have  been  otherwise 
had  it  been  averred  that  the  work  was  begun  and  then  by  negligence 
left  unfinished. 

{Earikford  J.  observed  that  an  action  on  the  Statute  of  Labourers 
might  meet  the  case.) 

Bickhill  J. —  For  that  you  have  counted  on  a  covenant  and  show 
none,  take  nothing  by  your  writ  but  be  in  mercy.'' 

The  word  fideliter  in  the  writ  is  significant.  It  seems  to  denote 
a  deliberate  competition  with  the  jurisdiction  of  the  Courts  Christian 
in  matters  of  fidei  laesio.  We  will  show  you,  the  pleader  says  in 
effect,  that  the  King's  *  judges  too  know  what  belongs  to  good  [143 
faith,  and  will  not  let  breach  of  faith  go  without  a  remedy.  It  may 
also  have  been  intended  to  show  that  there  was  a  bargain  and  mutual 
trust  (n). 

This  adverse  decision  was  followed  by  at  least  one  like  it  (o), 
but  early  in  the  reign  of  Henry  VI.  an  action  was  brought  against 
one  Watkins  for  failure  to  build  a  mill  within  the  time  for  which 
he  had  promised  it,  and  two  out  of  three  judges  (Babington  C.J.  ai)d 
Cockaine  J.)  were  decidedly  in  favour  of  the  action  being  maintain- 
able and  called  on  the   defendant's   counsel  to  plead  over  to  the 

(m)   Mich.   2   H.    IV.,    3    6,   pi.   9.  is  still  held  that  there  is  an  alterna- 

The   full   and   careful   historical  dis-  tive  remedy  in  contract  and  in  tort), 

cussion  of  the  whole  subject  by  Prof.  but  an  action  for  mere  non-feasance 

Ames  of  Harvard  in  Harv.  Law  Rev.  was  a  novelty. 

ii.  1,  53,   supersedes  all   previous   re-  (n)   Modern     pleading     would     re- 
searches.    Actions  of  trespass  on  the  quire,   of   course,   a  much   more   dis- 
ease had  previously  been  allowed  for  tinct  averment  of  consideration:   but 
malfeasance    by    the    negligent    per-  the  doctrine  was  not  yet  formed, 
formance  of  contracts    (for  which  it  (o)   Mich.    11    H.    IV.    33,    pi.    60. 

And  see  Bigelow  L.  C.  on  Torts,  587. 


156  FORM    OF    CONTFtACT. 

merits  (p).  Martin  J.  dissented,  insisting  that  an  action  of  trespass 
would  not  lie  for  a  mere  non-feasance:  a  difficulty  by  no  means 
frivolous  in  itself.  "  If  this  action  is  to  be  maintained  on  this  matter," 
he  said,  "  one  shall  have  an  action  of  trespass  on  every  agreement 
that  is  broken  in  the  world."  This  however  was  the  very  thing  sought, 
and  so  it  came  to  pass  in  the  two  following  reigns,  when  the  general 
application  of  the  action  of  assumpsit  was  well  established.  But  only 
in  1596  was  it  conclusively  decided  that  assumpsit  was  admissible 
at  the  plaintiff's  choice  where  debt  would  also  lie  (q).  The  flctior 
of  the  action  being  founded  on  a  tort  was  abolished  by  the  Common 
Law  Procedure  Act. 

Meanwhile  the  relation  between  the  parties  which  was  assumed 
as  the  foundation  of  the  duty  violated  by  the  defendant,  and  which 
involved  the  plaintiff's  having  in  some  way  changed  his  position  for 
the  worse  on  the  faith  of  the  defendant's  undertaking,  was  trans- 
formed into  the  modern  doctrine  of  Consideration,  coalescing  on  the 
144]  way,  *in  fact  if  not  in  strict  theory,  with  the  existing  require- 
ments of  the  actions  of  debt  and  account.  Of  this  we  shall  speak 
separately. 

Rule  that  deeds  may  not  be  written  on  wood,  &c.  It  is  stated  in  several 
books  of  authority  (e.g.  Shepp.  Touchst.  54)  that  a  deed  must  be 
written  on  parchment  or  paper,  not  on  wood,  &c.  This  seems  to  refer 
to  the  then  common  use  of  wooden  tallies  as  records  of  contracts.  Fitz- 
herbert  in  fact  says  (r)  that  if  such  a  tally  is  sealed  and  delivered 
by  the  party  it  will  not  be  a  deed ;  and  the  Year  Books  afford  evidence 
of  attempts  to  rely  on  sealed  tallies  as  equivalent  to  deeds;  and  it 
appears  that  by  the  custom  of  London  they  were  so  (s).  These  tallies 
were  no  doubt  written  upon  as  well  as  notched,  so  that  nothing  could 
be  laid  hold  of  to  refuse  them  the  description  of  deeds  but  the  fact 
of  their  being  wooden :  the  writing  is  expressly  mentioned  in  one 
case  (t),  and  theExchequer  tallies  used  till  within  recent  times  were 
likewise  written  upon  («). 

(p)    Hil.  3  H.  VI.  36,  pi.  33.  (t)   Trin.  12  H.  IV.  23,  pi.  3.     The 

(7)   Blade's  case,  4  Co.  Rep.  91  o,  other  citations  we  have  been  able  to 

in  Ex.  Ch.     It  was  still  later  before  verify    are    Pasch.    25    Ed.    III.    83 

it  was  admitted  that  the  substantial  (wrongly   referred   to    as    40    in   the 

cause  of  action  in  assumpsit  was  the  last    case    and     in    the    margin    of 

contract.     0.   W.   Holmes,  The  Com-  Fitzh.),    pi.    9,    where    the    reporter 

raon  Law,  284-287.     For  the  earlier  notes   it   is   said  to   be  otherwise  in 

history  see  Prof.  Ames,  Harvard  Law  London;  and  Trin.  44  Ed.  III.  21,  pi. 

Rev.  i'i.  16.  23. 

(r)   F.  N.  B.  122  I.  («)    See  account  of  them  in  Penny 

(s)    "  TJn    taille    de    dette    enseale  Cyclopaedia,    s.    v.    Tally;    Hall,    An- 

par  usage   de  la  citee  est  auxi   fort  tiquities  of  the  Exchequer,   118  sqq. 
come  une  obligacoun  " :    Liber  Albus 
191  a. 


CONTRACTS    OF    RECORD.  157 

III.  Modem  requirements  of  form. 

Requirements  of  form  now  exceptional.  We  have  seen  how  in  the  an- 
cient view  no  contract  was  good  (as  indeed  no  act  in  the  law  was) 
unless  it  brought  *itself  within  some  favoured  class  by  satisfying  [  1 45 
particular  conditions  of  form,  or  of  evidence,  or  both.  The  modern 
view  to  which  the  law  of  England  has  now  long  come  round  is  the 
reverse,  namely  that  no  contract  need  be  in  any  particular  form  unless 
it  belongs  to  some  class  in  which  a  particular  form  is  specially 
required. 

Contracts  of  record.  Before  we  say  anything  of  these  classes  it  must 
be  mentioned  that  contracts  under  seal  are  not  the  only  formal  con- 
tracts known  to  English  law.  There  are  certain  so-called  "  contracts 
of  record  "  which  are  of  a  yet  higher  nature  than  contracts:  by  deed. 
The  judgment  of  a  Court  of  Eecord  is  treated  for  some  purposes 
as  a  contract  :1  and  a  recognizance,  i.  e.  "  a  writing  obligatory  ac- 
knowledged before  a  judge  or  other  officer  having  authority  for  that 
purpose  and  enrolled  in  a  Court  of  Eecord,"  is  strictly  and  properly 
a  contract  entered  into  with  the  Crown  in  its  judicial  capacity.  The 
statutory  forms  of  security  known  as  statutes  merchant,  statutes 
staple,  and  recognizances  in  the  nature  of  a  statute  staple,  were 
likewise  of  record,  but  they  have  long  since  fallen  out  of  use  (x). 

The  French    (art.   1333)    and  Italian  shire   not   many  years   ago.     I   have 

(art.  1332)   Civil  Codes  expressly  ad-  seen  them,  in  a  rougher  form,  in  use 

mit     tallies     as      evidence     between  in    a    village    baker's    shop    in    Nor- 

traders   who   keep   their  accounts   in  mandy.      Specimens    of    English    tal- 

this  way;  nor  is  the'  use  of  them  un-  lies  both  ancient  and  recent  may  be 

known  at  this  day  in  England.     By  seen    in    the    medieval    room    of    the 

the  courtesy  of  Mr.  J.  B.  Matthews,  British  Museum,  and  at  the  Record 

of   the    Middle    Temple,    formerly    of  Office.     Cp.  Col.  Yule's  note  on  Marco 

Worcester,  I  have  a  specimen  of  the  Polo,  ii.  78,  '2nd  ed. 
tallies  with  which  the  hop-pickers  in  (a;)   As  to  Contracts  of  Record,  see 

Herefordshire    still    keep   account   of  Anson,  p.  55,  9th  ed.,  and  for  an  ac- 

the    quantities    picked.      They    were  count    of    statutes    merchant,    &c.    2 

used    in    the    Kentish    hop    country  Wms.  Saund.  216-222. 
within  living  memory,  and  in  Hamp- 

l  Stuart  v.  Landers,  16  Cal.  372;  Gebhard  v.  Gamier,  12  Bush,  321;  Morse 
v.  Tappan,  3  Gray,  411. 

But  a  judgment  is  not,  properly  speaking,  a  contract.  Louisiana  v.  Mayor, 
109  U.  S.  285;  Freeland  v.  Williams,  131  U.  S.  405;  Morley  v.  Railroad,  146 
U.  S.  162;  Hilton  v.  Guyot,  159  U.  S.  113,  201;  Wadsworth  v.  Henderson,  16 
Fed.  Rep.  447,  451;  Evans,  etc.  v.  McFadden,  105  Fed,  Rep.  293;  Larrabee 
v.  Baldwin,  35  Cal.  155,  168;  Rae  v.  Hulbert,  17  111.  572,  580;  Burnes  v. 
Simpson,  9  Kan.  658;  Dudley  v.  Lindsey,  9  B.  Mon.  486,  489;  O'Brien  v. 
Young,  95  N.  Y.  428;  Gutta  Percha  Co.  v.  Mayor,  108  N.  Y.  276;  Anglo- 
American  Co.  v.  Davis  Co.,  169  N.  Y.  506,  509;  McDonald  v.  Dickson,  87 
N.  C.  404;  In  re  Kennedy,  2  S.  C.  216. 


158  FOJIM    OF    CONTRACT. 

Contracts  subject  to  special  forms.     The  kinds  of  contract  subject  to 
restrictions  of  forms  are  these : 

(1).  At  common  law,  the  contracts  of  corporations.  The  rule  that 
such  contracts  must  in  general  be  under  seal  is  earlier  than 
the  time  when  the  modern  doctrine  of  contracts  was  formed. 
Of  late  years  great  encroachments  have  been  made  upon  it, 
which  have  probably  not  reached  their  final  limits;  the 
law  is  still  unsettled  on  some  points,  and  demands  careful 
consideration.  Both  the  historical  and  the  practical  reason 
lead  us  to  give  this  topic  the  first  place. 

146]  *(2).  Party  by  the  law  merchant  (now  codified  in  England) 
and  partly  by  statute,  the  peculiar  contracts  expressed  in 
negotiable  instruments. 

(3).  By  statute  only — 

A.  The   various   contracts   within   the    Statute   of   Frauds. 

Certain  sales  and  depositions  of  property  are  regulated 
by  other  statutes,  but  mostly  as  transfers  of  owner- 
ship or  of  rights  good  against  third  persons  rather 
than  as  agreements  between  the  parties. 

B.  Marine  insurances. 

C.  Transfer  of  shares  in  companies  (generally). 

D.  Acknowledgment  of  debts  barred  by  the  Statute  of  Limi- 

tation of  James  I. 

E.  Marriage:  This,  although  we  do  not  mean  to  enter  on 

the  subject  of  the  Marriage  Acts,  must  be  mentioned 
here  to  complete  the  list.2 

2  Under  the  law  prevailing  in  most  of  the  United  States,  marriage  is  not 
a  formal  contract.  Bishop  on  Marriage  and  Divorce,  §  279  et  seq.;  Meister 
v.  Moore,  96  U.  S.  76;  Matthewson  v.  Phoenix  Iron  Foundry,  20  Fed.  Rep. 
281;  Arnold  v.  Chesebrough,  58  Fed.  Rep.  833;  Davis  v.  Pryor,  112  Fed. 
Rep.  274;  Tartt  v.  Negus,  127  Ala.  301;  McCausland's  Estate,  52  Cal.  568; 
Sharon  v.  Sharon,  75  Cal.  1;  Port  v.  Port,  70  111.  484;  Hebblethwaite  r.  Hep- 
worth,  98  111.  126;  Re  Maher's  Est.,  204  111.  25;  Teter  r.  Teter,  101  Ind.  129; 
Schuchart  v.  Schuchart,  61  Kan.  597;  Hutchins  r.  Kimmell,  31  Mich.  126; 
Lorimer  v.  Lorimer,  124  Mich.  631;  Barker  v.  Valentine,  125  Mich.  336; 
State  v.  Worthingham,  23  Minn.  528;  Carey  r.  Hulett,  66  Minn.  327;  Floyd 
v.  Calvert,  53  Miss.  37 ;  Dyer  v.  Brannock,  66  Mo.  391 ;  State  v.  Bittick,  103 
Mo.  183;  Clark  r.  Clark,  52  N.  J.  Eq.  650;  Hynes  v.  McDermott,  82  N.  Y. 
41,  46;  91  N.  Y.  451;  Gall  v.  Gall,  114  N.  Y.  109;  Carmichael  v.  State,  12 
Ohio  St.  553;  Richard  r.  Brehm,  73  Pa.  St.  140;  Chapman  v.  Chapman,  16 
Tex.  Civ.  App.  382;  Stans  r.  Bartley,  9  Wash.  115.  Contra,  Estill  v.  Rogers, 
1  Bush,  62;  Denison  r.  Denison,  35  Md.  361;  Commonwealth  v.  Munson,  127 
Mass.  459 ;  Dunbarton  v.  Franklin.  19  N.  H.  257 ;  State  v.  Wilson,  121  N.  C. 
650;  Northfield  v.  Plymouth,  20  Vt.  582;  Morrill  v.  Palmer,  68  Vt.  1.  See 
27  Am.  L.  Reg.  101,  35  id.  221,  223  seq. 


CONTRACTS    OF    CORPORATIONS.  159 

1.  As  to  contracts  of  corporations. 

Old  rule:  Seal  generally  required.  The  doctrine  of  the  common  law 
was  that  corporations  could  bind  themselves  only  under  their 
common  seal,  except  in  small  matters  of  daily  occurrence,  as  the  ap- 
pointment of  household  servants  and  the  like  (y).  The  principle 
of  these  exceptions  being,  in  the  words  of  the  Court  of  Exchequer 
Chamber,  "  convenience  amounting  almost  to  necessity  "  (z),  the  vast 
increase  in  the  extent,  importance,  and  variety  of  corporate  dealings 
which  has  taken  place  in  modern  times  has  led  to  a  corresponding 
increase  of  the  exceptions.  Before  considering  these,  however,  it  is 
well  *to  cite  an  approved  judicial  statement  of  the  rule,  and  of  [14-7 
the  reasons  that  may  be  given  for  it: — 

"  The  seal  is  required  as  authenticating  the  concurrence  of  the  whole 
body  corporate.  If  the  legislature,  in  erecting  a  body  corporate,  invest  any 
member  of  it,  either  expressly  or  impliedly,  with  authority  to  bind  the  whole 
body  by  his  mere  signature  or  otherwise,  then  undoubtedly  the  adding  a  seal 
would  be  matter  purely  of  form  and  not  of  substance.  Everyone  becoming 
a.  member  of  such  a  corporation  knows  that  he  is  liable  to  be  bound  in  his 
corporate  character  by  such  an  act :  and  persons  dealing  with  the  corpora- 
tion know  that  by  such  an  act  the  body  will  be  bound.  But  in  other 
cases  the  seal  is  the  only  authentic  evidence  of  what  the  corporation  has 
done  or  agreed  to  do.  The  resolution  of  a  meeting,  however  numerously 
attended,  is,  after  all,  not  the  act  of  the  whole  body.  Every  member  knows 
lie  is  bound  by  what  is  done  under  the  corporate  seal  and  by  nothing  else. 
It  is  a  great  mistake,  therefore,  to  speak  of  the  necessity  for  a  seal  as  a 
relic  of  ignorant  times.  It  is  no  such  thing:  either  a  seal  or  some  sub- 
stitute for  a  seal,  which  by  law  shall  be  taken  as  conclusively  evidencing  the 
sense  of  a.  whole  body  corporate,  is  a  necessity  inherent  in  the  very  nature 
of  a  corporation  "(a). 

It  is,  no  doubt,  a  matter  of  "inherent  necessity"  that  when  a 
natural  person  acts  for  a  corporation,  his  authority  must  be  shown 
in  some  way;  and  the  common  seal  in  the  agent's  custody,  when  an 
act  in  the  law  purports  to  be  the  act  of  the  corporation  itself,  or  his 
authority  under  seal,  when  it  purports  to  be  the  act  of  an  agent  for 
the  corporation,  is  in  English  law  the  recognized  evidence  for  that 
purpose.3     But  there  is  no  reason  in  the  nature  of  things  why  his 

(y)    1  Wms.  Saund.  615,  616,  and  (a)    Mayor  of  Ludlow  v.  Charlton 

see  old  authorities  collected  in  notes  (1840)    6  M.  &  W.  815,  823,  adopted 

to  Arnold  v.  Mayor  of  Poole  (1842)  by  Pollock   B.   in  Mayor  of  Kidder- 

4  M.  &  Gr.  860,   12  L.  J.  C.  P.  97;  minster  v.  Hardmck    (1873)   L.  R.  9 

and   Fishmongers'    Company   v.   Rob-  Ex.  at  p.  24,  43  L.  J.  Ex.  9 ;  and  see 

ertson    (1843)    5   M.    &  Gr.    131,    12  per  Keating  J.  Austin  v.   Guardians 

L.  J.  C.  P.  185.  of    Bethnal    Green    (1874)     L.    R.    9 

(z)   Church  v.  Imperial  Gas  Light  C.  P.  at  p.  95,  43  L.  J.  C   P   100 
Company  (1838)   6  A.  &  E.  846,  861, 
45  R.  R.  638,  643. 

3  The  signatures  of  the  proper  officers  being  proved,  the  presence  of  the 
corporate    seal    is    prima   facie   evidence   that   it   was    affixed   by    authority. 


160  f'OBM    01     CONTRACT. 

authority  should  not  be  manifested  in  other  ways:  nor  is  the  seal 
of  itself  conclusive,  for  an  instrument  to  which  it  is  in  fact  affixed 
without  authority  is  not  binding  on  the  corporation  (b).4  On  the 
other  hand,  although  it  is  usual  and  desirable  for  the  deed  of  a  cor- 
poration to  be  sealed  with  its  proper  corporate  seal,  it  is  laid  down 
148]  by  *high  authorities  that  any  seal  will  do  (c).5  A  company 
under  the  Companies  Act,  1862,  must  have  its  name  engraved  in 
legible  characters  on  its  seal,  and  any  director,  &c,  using  as  the  seal 
of  the  company  any  seal  on  which  the  name  is  not  so  engraved  is  sub- 
ject to  a  penalty  of  501.  (ss.  41,  42)  :  but  this  would  not,  it  is  con- 
ceived, prevent  instruments  so  executed  from  binding  the  company  (<!). 
The  seal  of  a  building  society  incorporated  under  the  Building  So- 

(b)  Bank  of  Ireland  v.  Evans'  of  the  private  seal  of  a  director  being 
Charities  (1855)   5  H.  L.  C.  389.  used  when  the  company  had  been  so 

(c)  10  Co.  Rep.  30  b,  Shepp.  recently  formed  that  there  had  been 
Touchst.  57.  Yet  the  rule  is  doubted,  no  time  to  make  a  proper  seal,  Gray 
Grant  on  Corp.  59,  but  only  on  the  v.  Lewis  (1869)  L.  R.  8  Eq.  at  p.  531, 
gro-and  of  convenience  and  without  The  like  direction  and  penalty  are 
any  authority.  The  like  rule  as  to  contained  in  the  Industrial  and 
sealing  by  an  individual  is  quite  P-ovident  Societies  Act,  1893,  s.  66 
clear  and  at  least  as  old  as  Bracton:  (repeating  an  earlier  enactment). 
Non  multum  refert  utrum  [carta]  As  to  execution  of  deeds  abroad  by 
proprio  vel  alieno  sigillo  sit  signata,  companes  under  the  Acts  of  1862  and 
cum  eemel  n.  donatore  coram  testibus  1867,  see  the  Companies  Act,  1862, 
ad  hoc  vocatis  recognita  et  concessa  b.  55,  and  the  Companies  Seals  Act, 
fuerit,  fo.  38  a.     Cp.  Britton.  1.  257.  1864   (27  &  28  Vict.  c.  19)  ;  in  Scot- 

(d)  Notwithstanding  the  statutory  land,  the  Conveyancing  (Scotland) 
penalty,  there  is  a  reported  instance  Act,  1874  (37  &  38  Vict.  c.  94),  s.  56. 

Mickey  v.  Stratton,  5  Sawy.  475;  Andres  r.  Fry,  113  Cal.  124;  Union  Mining 
Co.  v.  Bank,  2  Col.  226;  Conine  v.  Railroad  Co.,  3  Houst.  288;  Solomon's 
Lodge  v.  Montmollin,  58  Ga.  547;  Railroad  Co.  r.  Morgenstern,  103  111.  149; 
Anderson  Transfer  Co.  v.  Fuller,  174  111.  221;  Adams  r.  His  Creditors,  14  La. 
454;  Morris  v.  Keil,  20  Minn.  531;  Musser  v.  Johnson,  42  Mo.  74;  Gorder 
r.  Plattsmouth  Canning  Co.,  36  Neb.  548;  Evans  v.  Lee,  11  Nev.  194;  Flint 
r.  Clinton  Co.,  12  N.  H.  430;  Lovett  t\  Steam  Saw  Mill  Assn.,  6  Paige,  54; 
Trustees  v.  McKechnie,  90  N.  Y.  618;  Sheehan  r.  Davis,  17  Ohio  St.  571; 
Parkinson  v.  City  of  Parker,  85  Pa.  313;  Levering  r.  Mayor,  7  Humph.  553; 
Fidelity  Co.  v.  Railroad  Co.,  32  W.  Va.  244;  Bullen  v.  Milwaukee  Trading  Co., 
109  Wis.  41. 

*  Koehler  v.  Black  River,  etc.,  Co.,  2  Black,  715;  Bliss  r.  Kaweah  Canal, 
etc.,  Co.,  65  Cal.  502;  Leggett  v.  N.  J.  Mfg.,  etc.,  Co.,  Saxt.  Ch.  541;  Jack- 
son v.  Campbell,  5  Wend.  572;  Hoyt  v.  Thompson,  5  N.  Y.  320,  335;  Case 
of  St.  Mary's  Church,  7  S.  &  R.  517,  530. 

5  Eureka  Co.  v.  Bailey  Co.,  11  Wall.  488;  Bank  v.  Mining  Co.,  89  Fed. 
Rep.  439,  447  ;  95  Fed.  Rep.  23 ;  Porter  v.  Railroad  Co.,  37  Me.  349 ;  Mill  Dam 
Foundry  v.  Hovey,  21  Pick.  417;  Tenney  v.  Lumber  Co.,  43  N.  H.  343;  South 
B.ipt.  Society  r.  Clapp,  18  Barb.  35;  St.  Philip's  Church  r.  Zion  Church,  23 
S.  C.  297 ;  Bank  v.  Railroad  Co.,  30  Vt.  159.  Infra,  Appendix,  n.  D.  This  is 
true,  even  of  a  municipal  corporation.  District  of  Columbia  v.  Camden  Iron 
Works,  181  U.  S.  453.  A  scroll  seal  is  sufficient  in  those  States  whose  laws 
recognize  the  validity  of  such  a  seal  when  used  by  a  natural  person.  Johnston 
v.  Crawley,  25  Ga.  316;  Reynolds  v.  Trustees,  6  Dana,  37;  Western  Seminary 
V.  Blair,  1  Disney,  370. 


CONTRACTS   OF   CORPORATIONS.  161 

cieties  Act,  1874  (37  &  38  Vict.  c.  42,  s.  16,  sub-s.  10),  "shall  in 
all  cases  bear  the  registered  name  thereof,"  but  no  penalty  or  other 
consequence  is  annexed  to  the  non-observance  of  this  direction. 

Modern  exceptions — Bank  of  Columbia  v.  Patterson.  We  now  turn  to 
the  exceptions.  According  to  the  modern  authorities  it  is  now  es- 
tablished, though  not  till  after  sundry  conflicting  decisions,  that  the 
"  principle  of  convenience  amounting  almost  to  necessity  "  will  cover 
all  contracts  which  can  fairly  be  treated  as  necessary  and  incidental 
to  the  purposes  for  which  the  corporation  exists :  and  that  in  the  case 
of  a  trading  corporation  all  contracts  made  in  the  ordinary  course 
of  its  business  or  for  purposes  connected  therewith  fall  within  this 
description.  The  same  or  even  a  wider  conclusion  was  much  earlier 
arrived  at  in  the  United  States.  As  long  ago  as  1813  the  law  was 
thus  stated  by  the  Supreme  Court: — 

"  It  would  seem  to  be  a  sound  rule  of  law  that  wherever  a  corporation  is 
acting  within  the  scope  of  the  legitimate  purposes  of  its  institution  all 
*parole  contracts  made  by  its  authorized  agents  are  express  promises  of  [149 
the  corporation,  and  all  duties  imposed  on  them  by  law,  and  all  benefits  con- 
ferred at  their  request,  raise  implied  promises  for  the  enforcement  of  which 
an  action  may  well  lie"   (e).6 

Not  so  wide  in  England.  In  England  this  rule  still  holds  good  only 
for  trading  corporations,  and  perhaps  also  for  non-trading  corpora- 
tions established  in  modern  times  for  special  purposes.     The  former 

(e)  Bank  of  Columbia  v.  Patterson  that  the  appointment  by  a  corpora  - 
(1813)  7  Cranch,  299,  306.  It  is  also  tion  of  an  agent,  officer,  or  attorney 
held    by    the    American    authorities       need  not  be  under  seal. 

6  Railway  Co.  v.  Keokuk  Bridge  Co.,  131  U.  S.  371;  Bank  v.  Mining  Co., 
89  Fed.  Hep.  439,  447;  95  Fed.  Rep.  23;  Selma  v.  Mullen,  46  Ala.  411;  Argenti 
v.  San  Francisco,  16  Cal.  255;  Muscatine- Co.  v.  Lumber  Co.,  85  la.  112; 
Bridge  Co.  v.  Frankfort,  18  B.  Mon.  41;  Elysville,  etc.,  Co.  v.  Okisko  Co.,  1 
Md.  Ch.  392 ;  St.  Paul  Co.  r.  Dayton,  37  Minn.  364 ;  Abbey  r.  Billups,  35  Miss. 
618;  Preston  r.  Missouri,  etc.,  Lead  Co.,  51  Mo.  43;  Crawford  r.  Longstreet, 
43  N.  J.  L.  325;  Trustees  v.  Mulford,  3  Halst.  182;  Dunn  v.  St.  Andrew's 
Church,  14  Johns.  118;  Peterson  r.  Mayor,  17  N.  Y.  449;  Ivramrath  v.  Albany, 
127  N.  Y.  575;  Calvert  v.  Idaho  Stage  Co.,  25  Oreg.  412;  Hamilton  r.  Insur- 
ance Co.,  5  Pa.  St.  339;  San  Antonio  v.  Lewis,  9  Tex.  69;  Sheldon  v.  Fairfax, 
21  Vt.  102. 

And  the  appointment  by  a  corporation  of  an  agent,  officer,  or  attorney  need 
not  be  under  seal.  Fleckner  r.  Bank,  8  Wheat.  338,  357 ;  Osborn  r.  Bank,  9 
Wheat.  738,  829;  Crowley  v.  Genesee  Mining  Co.,  55  Cal.  273;  Bank  v.  Davis, 
8  Conn.  191;  Board  of  Education  r.  Greensbaum,  39  111.  609;  Hamilton  v. 
Railroad  Co.,  9  Ind.  359;  Lathrop  v.  Bank,  8  Dana,  114;  Randall  v.  Van 
Vechten,  19  Johns.  60,  65;  Insurance  Co.  r.  Oakley,  9  Paige,  496;  Buncombe  T. 
Co.  i'.  McCarson,  1  Dev.  &  Bat.  L.  306;  Wolf  v.  Goddard,  9  Watts,  544. 

Where  a  contract  made  in  the  name  of  a  corporation  by  its  president  is 
one  the  corporation  has  power  to  authorize  its  president  to  make,  or  to  ratify 
after  it  has  been  made,  the  burden  is  upon  the  corporation  of  showing  that 
it  was  not  authorized  or  ratified.     Patterson  v.  Robinson,  116  N.  Y.  193. 

11 


162  FORM    OF    CONTRACT. 

conflict  of  decisions  is  much  reduced,  but  there  remains  the  incon- 
venient distinction  of  two  if  not  three  different  rules  for  corporations 
of  different  kinds. 

Trading  corporations:  Contracts  in  course  of  business  do  not  want  seal. 
As  concerns  trading  colorations  the  law  may  be  taken  as  settled 
by  the  unanimous  decisions  of  the  Court  of  Common  Pleas  and  of  the 
Exchequer  Chamber  in  South  of  Ireland  Colliery  Co.  v.  Waddle  (/). 
The  action  was  brought  by  the  company  against  an  engineer  for  non- 
delivery of  pumping  machinery,  there  being  no  contract  under  seal. 
Bovill  C.J.  said  in  the  Court  below  that  it  was  impossible  to  reconcile 
all  the  decisions  on  the  subject:  but  the  exceptions  created  by  the 
recent  cases  were  too  firmly  established  to  be  questioned  by  the  earlier 
decisions,  which  if  inconsistent  with  them  must  be  held  not  to  be 
law: — 

"  These  exceptions  apply  to  all  contracts  by  trading  corporations  entered 
into  for  the  purposes  for  which  they  are  incorporated.  A  company  can  only 
carry  on  business  by  agents, —  managers  and  others ;  and  if  the  contracts  made 
by  these  persons  are  contracts  which  relate  to  objects  and  purposes  of  the 
company,  and  are  not  inconsistent  with  the  rules  and  regulations  which 
govern  their  acts  (g),  they  are  valid  and  binding  upon  the  company,  though 
not  under  seal.  It  has  been  urged  that  the  exceptions  to  the  general  rule 
i=-o]  are  still  limited  to  matters  of  *frequent  occurrence  and  small  importance. 
The  authorities,  however,  do  not  sustain  the  argument." 

Cases  overruled.  The  decision  was  affirmed  on  appeal  without  hear- 
ing counsel  for  the  plaintiffs,  and  Cockburn  C.J.  said  the  defendant 
was  inviting  the  Court  to  reintroduce  a  relic  of  barbarous  antiquity. 
It  is  submitted  that  the  following  cases  must  since  this  be  considered 
as  overruled: — 

East  London  Waterworks  ^.  Bailey  (1827)  4  Bing.  283.  Action  for  non- 
delivery of  iron  pipes  ordered  for  the  company's  works  (7i).  Expressly  said  in 
the  Court  below  to  be  no  longer  law,  per  Montague  Smith  J.  See  L.  R.  3 
C.  P.  475. 

Bomcrsham  v.  Wolrcrhamplon  Waterworks  Co.  (1851)  6  Ex.  137,  20  L.  J. 
Ex.  193.  Contract  under  seal  for  erection  of  machinery:  price  of  extra  work 
done  with  approval  of  the  company's  engineer  and  accepted,  but  not  within  the 
terms  of  the  sealed  contract,  held  not  recoverable. 

Digyle  v.  London  &  Blackball  By.  Co.  (1850)  5  Ex.  442,  19  L.  J.  Ex.  308. 
Work  done  on  railway  in  alterations  of  permanent  way,  &c:  this  case  already 
much  doubted  in  Henderson  v.  Australian  Royal  Mail,  &c.  Co.  5  E.  &  B.  409, 

(if)     (18C8)    L.  R.  3   C.  P.  463,  in  above.      For   details   see   Note  D.    in 

Ex.   Ch.   4  C.   P.   617,  38   L.   J.   C.   P.  Appendix. 

338.     Host  if  not  all  of  the  previous  (h)    The  directors  were  authorized 

authorities  are  there  referred  to.  by   the   incorporating   Act   of   Parlia- 

( g )   This  qualification  is  itself  sub-  ment  to  make  contracts ;   but  it  was 

ject  to  the  rule  established  by  Roi/al  held  that  this  only  meant  they  might 

British  Bank  v.   Tiirquand    (1856)    6  affix     the     seal     without     calling     a 

E.  &  B.  237,  25  L.  J.  ().   P..  317,  and  meeting, 
similar  cases,  and  mentioned  at  p.  126 


TRADING    AXD    NON-TRADING    CORPORATIONS.  163 

24  L.  J.  Q.  B.  322,  which  is  now  confirmed  in  its  full  extent  by  the  principal 
case. 

Probably  Finlay  v.  Bristol  &  Exeter  Ry.  Co.  (1852)  7  Ex.  409,  21  L.  J. 
Ex.  117,  where  it  was  held  that  against  a  corporation  tenancy  could  in  no 
case  be  inferred  from  payment  of  rent  so  as  to  admit  of  an  action  for  use  and 
occupation  without  actual  occupation. 

Also  London  Dock  Co.  v.  Sinnott  (1857)  8  E.  &  B.  347,  27  L.  J.  Q.  B.  129, 
where  a  contract  for  scavenging  the  company's  docks  for  a  year  was  held  to 
require  the  seal,  as  not  being  of  a  mercantile  nature  nor  with  a  customer  of 
the  company,  can  now  be  of  little  or  .no  authority  beyond  its  own  special  cir- 
cumstances:  see  per  Bovill  C.  J.  L.  R.  3  C.  P.  471. 

Even  in  the  House  of  Lords  it  has  been  assumed  and  said,  though  fortu- 
nately not  decided,  that  a,  formal  contract  under  seal  made  with  a  railway 
company  cannot  be  subsequently  varied  by  any  informal  mutual  consent: 
Midland  G.  1T\  Ry.  Co.  of  Ireland  v.  Johnson  (1858)  6  H.  L.  C.  798,  812. 

Cases  affirmed.  The  following  cases  are  affirmed  or  not  contradicted. 
Some  of  them  were  decided  at  the  time  on  narrower  or  *more  [151 
particular  grounds,  and  in  one  or  two  the  trading  character  of  the 
corporation  seems  immaterial : — 

Beverley  v.  Lincoln  Gas  Co.  (1837)  6  A.  &  E.  829;  45  R.  R.  626.  Action 
against  the  company  for  price  of  gas  meters  supplied. 

Church  v.  Imperial  Gas  Co.  (1838)  6  A.  &  E.  846,  45  R.  R.  638  in  Ex. 
Ch.  Action  by  the  company  for  breach  of  contract  to  accept  gas.  A  sup- 
posed distinction  between  the  liability  of  corporations  on  executed  and  on 
executory  contracts  was  exploded. 

Copper  Miners  of  England  v.  Fox  (1851)  16  Q.  B.  229,  20  L.  J.  Q.  B.  174. 
Action  (in  effect)  for  non-acceptance  of  iron  rails  ordered  from  the  company. 
The  company  had  in  fact  for  many  years  given  up  copper  mining  and  traded 
in  iron,  but  this  was  not  within  the  scope  of  its  incorporation. 

Lowe  v.  L.  &  N.  W.  Ry.  Co.  (1852)  18  Q.  B.  632,  21  L.  J.  Q.  B.  361.  The 
company  was  held  liable  in  an  action  for  use  and  occupation  when  there  had 
been  an  actual  occupation  for  corporate  purposes,  partly  on  the  ground  that 
a  parol  contract  for  the  occupation  was  within  the  statutory  powers  of  the 
directors  and  might  be  presumed:  cp:  the  next  case. 

Pauling  v.  L.  &  N.  W.  Ry.  Co.  (1853)  8  Ex.  867,  23  L.  J.  Ex.  105.  Sleepers 
supplied  to  an  order  from  the  engineer's  office  and  accepted :  there  was  no 
doubt  that  the  contract  could  under  the  Companies  Clauses  Consolidation 
Act  be  made  by  the  directors  without  seal,  and  it  was  held  that  the  accept- 
ance and  use  were  evidence  of  an  actual  contract. 

Henderson  v.  Australian  Royal  Mail  Co.  (1855)  5  E.  &  B.  409,  24  L.  J. 
Q.  B.  322.  Action  on  agreement  to  pay  for  bringing  home  one  of  the  com- 
pany's ships  from  Sydney.  Here  it  was  distinctly  laid  down- that  "where 
the  making  of  a  certain  description  of  contracts  is  necessary  and  incidental 
to  the  purposes  for  which  the  corporation  was  created  "  such  contracts  need 
not  be  under  seal  (by  Wightman  J.)  :  -"The  question  is  whether  the  con- 
tract in  its  nature  is  directly  connected  with  the  purpose  of  the  incorpora- 
tion "   (by  Erie  J.). 

Australian  Royal  Mail  Co.  v.  Marzetti  (1855)  11  Ex.  228,  24  L.  J.  Ex. 
273.  Action  by  the  company  on  agreement  to  supply  provisions  for  its  pas- 
senger ships. 

Reuter  v.  Electric  Telegraph  Co.  (1856)  6  E.  &  B.  341,  26  L.  J.  Q.  B.  46; 
where  the  chief  point  was  as  to  the  ratification  by  the  directors  of  a  con- 
tract made  originally  with  the  chairman  alone,  who  certainly  had  no  author- 
ity to  make  it. 

Ebhio  Yale  Company's  case  (1869)  L.  R.  8  Eq.  14,  decides  that  one  who  sells 
to  a  company  goods  of  the  kind  used  in  its  business  need  not  ascertain  that 
the  company  means  so  to  use  them,  and  is  not  prevented  from  enforcing  the 
contract  even  if  he  had  notice  of  an  intention  to  use  them  otherwise. 


164  FORM    OF    CONTRACT. 

Non-trading  corporations  —  "  Necessary  and  incidental "  contracts.  As 
concerns  non-trading  corporations,  the  question  has  never  been 
152]  decided  by  a  Court  of  Appeal.  But  the  weight  *of  authority 
seems  on  the  whole  to  warrant  the  statement  that  all  contracts  neces- 
sary and  incidental  to  the  purposes  for  which  the  corporation  exists 
may  be  made  without  seal,  at  least  when  the  corporation  has  been 
established  for  special  purposes  by  a  modern  statute  or  charter.  On 
the  rule  as  thus  limited  the  latest  case  is  Nicholson  v.  Bradfield 
Union  (i),  where  it  was  held  that  a  corporation  is  liable  without 
a  contract  under  seal  of  goods  of  a  kind  which  must  be  from  time 
to  time  required  for  corporate  purposes,  at  all  events  when  they  have 
been  actually  supplied  and  accepted.  Earlier  decisions  are  as  fol- 
lows : — 

Sanders  v.  St.  Neots  Union  (1846)  8  Q.  B.  810,  15  L.  J.  M.  C.  104.  Iron 
gates  for  workhouse  supplied  to  order  without  seal  and  acceptance. 

Paine  v.  Strand  Union  (1846)  ib.  326,  15  L.  J.  M.  C.  89,  is  really  the  same 
way,  though  at  first  sight  contra:  the  decision  being  on  the  ground  that  mak- 
ing a  plan  for  rating  purposes  of  one  parish  within  the  union  was  not  inci- 
dental to  the  purposes  for  which  the  guardians  of  the  union  were  incorporated: 
they  had  nothing  to  do  with  either  making  or  collecting  rates  in  the  several 
parishes,  nor  had  they  power  to  act  as  a,  corporation  in  matters  confined  to 
any  particular  parish. 

Clarice  v.  Cuckfield  Union  (1852)  21  L.  J.  Q.  B.  349  (in  the  Bail  Court, 
by  Wightman  J.).  Builders'  work  done  in  the  workhouse.  The  former  cases 
are  reviewed. 

Baigh  v.  North  Bierley  Union  (1858)  E.  B.  &  E.  873,  28  L.  J.  Q.  B.  62. 
An  accountant  employed  to  investigate  the  accounts  of  the  union  was  held 
entitled  to  recover  for  his  work  as  "  incidental  and  necessary  to  the  purposes 
for  which  the  corporation  was  created,"  by  Erie  J.,  Crompton  J.  doubting. 

In  direct  opposition  to  the  foregoing  we  have  only  one  decision,  but  a 
considered  one,  Lamprell  v.  Billericay  Union  (1849)  3  Ex.  283,  18  L.  J.  Ex. 
282.  Building  contract  under  seal,  providing  for  extra  works  on  written  direc- 
tions of  the  architect.  Extra,  work  done  and  accepted,  but  without  such 
direction.  Held,  with  an  expression  of  regret,  that  against  an  individual  this 
might  have  given  a  good  distinct  cause  of  action  on  simple  contract,  but  this 
would  not  help  the  plaintiff,  as  the  defendants  could  be  bound  only  by  deed. 

Bunt  v.  Wimbledon  Local  Board  (1878)  4  C.  P.  Div.  48,  48  L.  J.  C.  P.  207. 
Whether  the  preparation  of  plans  for  new  offices  for  an  incorporated  local 
board,  which  plans  were  not  acted  on,  is  work  incidental  and  necessary  to 
the  purposes  of  the  board,  quwre.  The  actual  decision  was  on  the  ground 
that  contracts  above  the  value  of  50/.  were  imperatively  required  by  statute 
to  be  under  seal. 

153]  -Municipal  corporations,  etc.— Old  rule  in  force.  With  regard  to 
municipal  corporations  (and  it  is  presumed  other  corporations  not 
created  for  definite  public  purposes)  the  ancient  rule  seems  to  be  still 
in  force  to  a  great  extent.  An  action  will  not  lie  for  work  done  on 
local  improvements  (k),  or  on   an  agreement  for   the   purchase   of 

(i)     (1866)    L.   R.    1   Q.   B.   620,   35  (70    Manor  of  Ludlow  v.   Charlton 

L.  J.  Q.  B.  17<i.  (1840)   0  it.  &  W.  815. 


MUNICIPAL    COEPOEATIONS.  165 

tolls  by  auction  (I),  or  for  the  grant  of  a  lease  of  corporate  prop- 
erty (m),  without  an  agreement  under  seal.  Where  a  municipal 
corporation  owns  a  graving  dock,  a  contract  to  let  a  ship  have  the 
use  of  it  need  not  be  under  the  corporate  seal;  but  this  was  said  to 
fall  within  the  ancient  exception  of  convenience  resting  on  the  fre- 
quency or  urgency  of  the  transaction.  The  admission  of  a  ship 
into  the  dock  is  a  matter  of  frequent  and  ordinary  occurrence  and 
sometimes  of  urgency  (n). 

Appointments  to  offices  by  corporations.  There  has  also  been  little  dis- 
position to  relax  the  rule  in  the  case  of  appointments  to  offices,  and 
it  seems  at  present  that  such  an  appointment,  if  the  office  is  of  any 
importance,  must  be  under  the  corporate  seal  to  give  the  holder  a  right 
of  action  for  his  salary  or  other  remuneration.  This  appears  by  the 
following  instances:— 

Appointment  of  attorney:  Arnold  v.  Mayor  of  Poole  (1842)  4  M.  &  Gr. 
860,  12  L.  J.  C.  P.  97.  It  is  true  that  the  Corporation  of  London  appoints 
an  attorney  in  court  without  deed,  but  that  is  because  it  is  »  matter  of  record: 
see  4  M.  &  Gr.  pp.  882,  896.  But  after  an  attorney  has  appeared  and  acted 
for  a  corporation  the  corporation  cannot,  as  against  the  other  party  to  the 
action,  dispute  his  authority  on  this  ground:  Faviell  v.  E.  C.  By.  Go.  (1848) 
2  Ex.  344,  17  L.  J.  Ex.  223,  297.  Nor  can  the  other  party  dispute  it  after 
taking  steps  in  the  action:  Thames  Haven,  <£c.  Co.  v.  Hall  (1843)  5  M.  & 
Gr.  274.     Cp.  Reg.  v.  Justices  of  Cumberland  (1848)    17  L.  J.  Q.  B.  102. 

Grant  of  militarv  pension  by  the  East  India  Company  in  its  political  capac- 
ity:     Gibson  v.  E.'l.  Co.   (1839)  5  Bing.  N.  C.  262,  50  R.  R.  688. 

Increase  of  town  clerk's  salary  in  lieu  of  compensation :  Reg.  v.  Mayor  of 
Stamford   (1844)    6  Q.  B.  434. 

*Office  with  profit  annexed  (coal  meter  paid  by  dues)  though  held  at  [154 
the  pleasure  of  the  corporation:  Smith  v.  Cartwright  (1851)  6  Ex.  927,  20 
L.  J.  Ex.  401.  (The  action  was  not  against  the  corporation,  but  against  the 
person  by  whom  the  dues  were  alleged  to  be  payable.  The  claim  was  also 
wrong  on  another  ground.) 

Collector  of  poor  rates:  Smart  v.  West  Ham  Union  (1855)  10  Ex.  867, 
24  L.  J.  Ex.  201;  but  partly  on  the  ground  that  the  guardians  had  not  under- 
taken to  pay  at  all,  the  salary  being  charged  on  the  rates;  and  wholly  on 
that  ground  in  Ex.  Ch.,  11  Ex.  867,  25  L.  J.  Ex.  210. 

Clerk  to  master  of  workhouse:  Austin  v.  Guardians  of  Bethnal  Green 
(1874)  L.  R.  9  C.  P.  91,  43  L.  J.  C.  P.  100. 

Dunston  v.  Imperial  Gas  Light  Co.  (1832)  3  B.  &  Ad.  125,  37  R.  R.  352, 
as  to  directors'  fees  voted  by  a  meeting;  but  chiefly  on  the  ground  that  the 
fees  were  never  intended  to  be  more  than  a  gratuity. 

Cope  v.  Thames  Haven,  &o.  Co.  (1849)  3  Ex.  841,  18  L.  J.  Ex.  345:  agent 
appointed  for  a  special  negotiation  with  another  company  not  allowed  to 
recover  for  his  work,  the  contract  not  being  under  seal  nor  in  the  statutory 
form,  vis.,  signed  by  three  directors  in  pursuance  of  a  resolution,  although  by 
another  section  of  the  special  Act  the  directors  had  full  power  to  "  appoint 
and    displace     ...     all    such   managers,    officers,    agents     ...     as    they 

(I)     Mayor    of    Kidderminster    v.  ration   sought   to    enforce   the   agree- 

Hardwick   (1873)   L.  R.  9  Ex.  13,  43  ment. 

L   J.  Ex.  9.  («)     Wells    v.    Kingston-upon-Hull 

(m)     Mat/or    of    Oxford    v.    Crow  (1875)    L.  R.   10  C.  P.  402,  44  L.  J. 

[1893]    3   Ch.   535,   where  the   corpo-  C.  P.  257. 


166  FORM    OF    CONTRACT. 

shall  think  proper."  It  seems  difficult  to  support  the  decision ;  this  was  not 
like  an  appointment  to  a  continuing  office ;  and  cp.  Reg.  v.  Justices  of  Cum- 
berland (1848)  17  L.  J.  Q.  B.  102,  where  under  very  similar  enabling  words 
an  appointment  of  an  attorney  by  directors  without  seal  was  held  good  as 
against  third  parties. 

No    equity  to  enforce   informal   agreement  against   corporation.        It  has 

been  decided  (as  indeed  it  is  obvious  in  principle)  that  inability  to 
enforce  an  agreement  with  a  corporation  at  law  by  reason  of  its 
not  being  under  the  corporate  seal  does  not  create  any  jurisdiction 
to  enforce  it  in  equity  ( o ) . 

Right  of  corporations  to  sue  on  contracts  executed.  The  rights  of  cor- 
porations to  sue  upon  contracts  are  somewhat  more  extensive  than 
their  liabilities.  When  the  corporation  has  performed  its  own  part 
of  the  contract  so  that  the  other  party  has  had  the  benefit  of  it,  the 
corporation  may  sue  on  the  contract  though  not  originally  bound  (p). 
155]  For  this  reason,  if  possession  is  given  under  a  *demise  from  a 
corporation  which  is  invalid  for  want  of  the  corporate  seal,  and  rent 
paid  and  accepted,  this  will  constitute  a  good  yearly  tenancy  (q) 
and  will  enable  the  corporation  to  enforce  any  term  of  the  agreement 
which  is  applicable  to  such  a  tenancy  (r),  and  a  tenant  who  has 
occupied  and  enjoyed  corporate  lands  without  any  deed  may  be  sued 
for  use  and  occupation  (s).  Conversely  the  presumption  of  a  demise 
from  year  to  year  from  payment  and  acceptance  of  rent  is  the  same 
against  a  corporation  as  against  an  individual  landlord :  "  where  the 
corporation  have  acted  as  upon  an  executed  contract,  it  is  to  be 
presumed  against  them  that  everything  has  been  done  that  was  neces- 
sary to  make  it  a  binding  contract  upon  both  parties,  they  having 
had  all  the  advantage  they  would  have  had  if  the  contract  had  been 
regularly  made"  (t).  And  a  person  by  whose  permission  a  corpora- 
tion has  occupied  lands  may  sue  the  corporation  for  use  and  occu- 

(o)  Kirk  v.  Bromley  Union.  (1846)  (r)     Eccles.     Commrs.     v.     Merral 

2   Ph.    640;    Crampton  v.    Varna  By.  (1869)    L.  R.  4  Ex.  162,  38  L.  J.  Ex. 

Co.   (1872)  L.  R.  7  Ch.  562,  41  L.  J.  93.     By  Kelly  C.B.  this  is  correlative 

Ch.  817.  to   the  tenant's  right   to  enforce   the 

(p)   Fishmongers'  Co.  v.  Robertson  agreement  in  equity  on  the  ground  of 

(1843)   5  M.  &  Gr.  131,  12  L.  J.  C.  F.  part  performance,  sed  qu. 

185.     The  judgment  on  this  point  is  (s)      Mayor     of    Stafford    v.     Till 

at   pp.    192-0;    but   the    dictum    con-  (1827)   4  Bing.  75,  29  R.  R.  511.    The 

tained  in  the  passage  "  Even  if    .    .  like  as  to  tolls,  Mayor  of  Carmarthen 

against   themselves,"    pp.    192-3     (ex-  v.  Lewis    (1834)    6   C.   &  P.   608,  but 

tending    the    right    to    sue    without  see  Serj.  Manning's  note,  2  M.  &  Gr. 

limit)    is  now  overruled.     See  Mayor  249. 

of  Kidderminster  v.  Hardimck  (1873)  (t)    Doe  d.   Pennington  v.   Taniere 

L.  R.  9  Ex.  13,  21,  43  L.  J.  Ex.  9.  (1S48)    12   Q.   B.   998,'  1013,   18   L.   J. 

(g)   Wood  v.  Tate   (1800)   2  Bos.  &  Q.  B.  49. 
P.  N.  R.  247,  9  R.  R.  645. 


CONTRACTS    OF    CORPORATIONS.  167 

pation  (u).  In  the  case  of  a  yearly  tenancy  the  presumption  is  of 
an  actual  contract,  but  the  liability  for  use  and  occupation  is  rather 
quasi  ex  contractu  (x). 

Corporations  liable  on  quasi-contracts  generally.  It  is  settled  that  in 
general  a  cause  of  action  on  a  quasi-contract  is  as  good  against  a  cor- 
poration as  against  a  natural  person.  Thus  a  corporation  may  be 
sued  in  an  action  for  money  received  on  the  ground  of  strict  neces- 
sity ;  "  it  cannot  be  expected  that  a  corporation  should  put  their  seal 
to  a  *promise  to  return  moneys  which  they  are  wrongfully  re-  [  1 56 
ceiving  "  (y).  It  was  held  much  earlier  that  trover  could  be  main- 
tained against  a  corporation- — a  decision  which,  as  pointed  out  in 
the  case  last  cited,  was  analogous  in  principle  though  not  in  form  (z). 
Sometimes  it  is  stated  as  a  general  rule  that  corporations  are  liable 
on  informal  contracts  of  which  they  have  in  fact  had  the  benefit : 
but  the  extent  and  existence  of  the  supposed  rule  are  doubtful  (a). 

Statutory  forms  of  contract.  Forms  of  contracting  otherwise  than  un- 
der seal  are  provided  by  many  special  or  general  Acts  of  Parliament 
creating  or  regulating  corporate  companies,  and  contracts  duly  made 
in  those  forms  are  of  course  valid.  But  a  statute  may,  on  the  other 
hand,  contain  restrictive  provisions  as  to  the  form  of  corporate  con- 
tracts, and  in  that  case  they  must  be  strictly  followed.  Enactments 
requiring  contracts  of  local  corporate  authorities  exceeding  a  certain 
value  to  be  in  writing  and  sealed  with  the  corporate  seal  are  held  to 
be  imperative,  even  if  the  agreement  has  been  executed  and  the  cor- 
poration has  had  the  full  benefit  of  it  (6).  The  general  result  seems 
to  stand  thus: — 

(m)    Lowe  v.  L.  &  A".   W.  Ry.   Co.  ongh,  16  East,  at  p.  10,  14  R.  R.  275. 

(1852)    18  Q.  B.  632,  21  L.  J.  Q.  B.  276. 
361.  (a)     Hunt     v.     Wimbledon    Local 

{x)    The   liability  existed   at  com-  Board   (1878)   4  C.  P.  Div.  at  pp.  53, 

mon  law,  and  the  statute  11  Geo.  2,  57,  48  L.  J.  C.  P.  207. 
c.    19,    s.    14,    made    the    remedy   by  (6)   Frend  v.  Dennett    (1858)   4  C. 

action  on  the  case  co-extensive  with  B.   K".    S.    570,    27    L.    J.   C.   P.    314 : 

that  by  action  of  debt,  see  Gibson  v.  Hunt    v.     Wimbledon    Local    Board 

Kirk    (1841)    1   Q.   B.   850,   10  L.   J.  (1878)    3   C.   P.  D.   208,   in   C.   A.,   4 

Q.  B.  297.    Since  the  C.  L.  P.  Act  the  C.   P.   Div.   48,  48   L.   J.   C.   P.    207  : 

statute  seems  in  fact  superfluous.  Young   d-   Go.   v.   Mayor  of  Learn ing- 

(y)     Hall    v.    Mayor    of    Swansea  ton   (1883)    8  App.  Ca.  517,  52  L.  J. 

(1S44)    5    Q.    B.   526,    549,    13   L.   J.  Q.  B.  713.     In  Eaton  v.  Basher  ( 1881) 

Q.  B.   107.     The  like  of  a  quasi  cor-  7  Q.  B.  Div.  529,  50  L.  J.  Q.  B.  444. 

poration   empowered   to   sue   and    be  it   was   decided   that   a    provision   of 

sued  by   an   officer,  Jefferys  v.   Gurr  this  kind  in  the   Public  Health  Act, 

(1831)   2  B.  &  Ad.  833,  36  R.  R.  769.  1875,  applies  only  to  contracts  known 

(z)    Yarborough  v.   Bank   of  Eng-  at  the  time  of  making  them  to  exceed 

land  (1812)   16  East,  6,  14  R.  R.  272.  the  specified  "value  or  amount"   of 

See   early   cases   of   trespass    against  501. 
corporations  cited  by  Lord  Ellenbor- 


168  FOKM    Of    CONTRACT. 

Summary  of  results.  In  the  absence  of  enabling  or  restrictive  statu- 
tory provisions,  which  when  they  exist  must  be  carefully  attended  to — 
157]  A  trading  corporation  may  make  without  seal  any  con*tract 
incidental  to  the  ordinary  conduct  of  its  business;  but  it  cannot 
bind  itself  by  negotiable  instruments  unless  the  making  of  such  in- 
struments is  a  substantive  part  of  that  business,  or  is  provided  for 
by  its  constitution  (c). 

A  non-trading  corporation,  if  expressly  created  for  special  pur- 
poses, may  make  without  seal  any  contract  incidental  to  those  pur- 
poses; if  not  so  created,  cannot  (it  seems)  contract  without  seal 
except  in  cases  of  immediate  necessity,  constant  recurrence,  or 
trifling  importance. 

In  any  case  where  an  agreement  has  been  completely  executed 
on  the  part  of  a  corporation,  it  becomes  a  contract  on  which  the 
corporation  may  sue. 

The  rights  and  obligations  arising  from  the  tenancy  or  occupation 
of  land  without  an  express  contract  apply  to  corporations  both  as 
landlords  and  as  tenants  or  occupiers  in  the  same  manner  (d)  and 
to  the  same  extent  as  to  natural  persons. 

A  corporation  is  bound  by  an  obligation  implied  in  law  whenever 
under  the  like  circumstances  a  natural  person  would  be  so  bound. 

It  is  much  to  be  wished  that  the  whole  subject  should  be  reviewed 
and  put  on  a  settled  footing  by  the  Court  of  Appeal,  and  that  those 
cases  which  are  already  virtually  overruled  should  be  expressly  de- 
clared to  be  no  longer  of  authority  (e). 

2.  Negotiable  instruments. 

The  peculiar  contracts  undertaken  by  the  persons  who  issue  or 
endorse  negotiable  instruments  must  by  the  nature  of  the  case  be 
in  writing.  Part  of  the  definition  of  a  bill  of  exchange  is  that  it  is 
158]  an  unconditional  order  in  ^writing  (/).  The  acceptance  of  a 
bill  of  exchange,  though  it  may  be  verbal  as  far  as  the  law  merchant 
is  concerned,  is  required  by  statute  to  be  in  writing  and  signed  (g). 

3.  As  to  purely  statutory  forms. 

A.  Contracts  within  the  Statute  of  Frauds. 

To  write  a  commentary  on  the  Statute  of  Frauds  would  be  beyond 

(c)  See  pp.  *130,  *131.  supra.  App.    Ca.    at    p.    523,    agreeing    with 

(d)  Assuming  Finlay  v.  Bristol  <£  Lindlcv  L.J.  8  Q.  B.  Div.  at  p.  585. 
Exetrr  Ry.  Co.  (1852)  7  Ex.  409,  21  (f)  'Bills  of  Exchange  Act,  1882 
L.  J.  Ex.  117,  not  to  be  now  law.  (45  &  46  Vict.  c.   61),  s.   3.     So  of 

(e)  .  See    per    Lord    Blackburn,    8  promissory  notes,  s.  83. 

(<l)  lb.  s.  17. 


STATUTE    OF    FRAUDS.  169 

the  scope  of  this  work.  It  may  be  convenient  however  to  state  as 
shortly  as  possible,  so  far  as  contracts  are  concerned,  the  contents 
of  the  statute  and  some  of  the  leading  points  established  on  the  con- 
struction of  it. 

The  statute  (29  Car.  2,  c.  3)  enacts  that  no  action  shall  be  brought 
on  any  of  the  contracts  specified  in  the  4th  section  "unless  the 
agreement  upon  which  such  action  shall  be  brought  or  some  memo- 
randum or  note  thereof  shall  be  in  writing  and  signed  by  the  party 
to  be  charged  therewith  or  some  other  person  thereunto  by  him  law- 
fully authorized."    The  contracts  comprised  in  this  section  are — 

a.  Promises  by  executor,  &c.  Any  special  promise  by  an  executor  or 
administrator  "to  answer  damages  out  of  his  own  estate."  No  diffi- 
culty has  arisen  on  the  words  of  the  statute,  and  the  chief  observation 
to  be  made  is  the  almost  self-evident  one  (which  equally  applies  to 
the  other  cases  within  the  statute)  that  the  existence  of  a  written  and 
signed  memorandum  is  made  a  necessary  condition  of  the  agreement 
being  enforceable,  but  will  in  no  case  make  an  agreement  any  better 
than  it  would  have  been  apart  from  the  statute.  A  good  conside^kon. 
a  real  consent  of  the  parties  to  the  same  thing  in  the  same  sense^and 
all  other  things  necessary  to  make  a  contract  good  at  common  law 
are  still  required  as  much  as  before  (Ji). 

*|8.  Guaranties.  "Any  special  promise  to  answer  for  the  debt,  [  1 59 
default  or  miscarriages  of  another  person." 

On  this  the  principal  points  are  as  follows.  A  promise  is  not 
within  the  statute  unless  there  is  a  debt,  &c.  of  some  other  person 
for  which  that  other  is  to  remain  liable  (though  the  liability  need  not 
be  a  present  one)  :  for  there  can  be  no  contract  of  suretyship  of  guar- 
anty unless  and  until  there  is  an  actual  principal  debtor.  "Take 
away  the  foundation  of  principal  contract,  the  contract  of  suretyship 
would  fail"  (i).7    Where  the  liability,  present  or  future,  of  a  third 

(h)   As  to  these  contracts  of  exec-  Ex.    Ch.),    43   L.    J.    Q.    B.    188,   per 

utors,   1   Wms.   Exors.   Pt.  '2,   Bk.   2,  Willes   J.;    affd.    L.    B.    7    H.   L.    17. 

c.  2.  nom.       Lakeman     v.      Mountstephen 

(i)      Mountstephen     v.      Lalceman  (1874). 
(1871)    L.  E.   7   Q.  B.   196,  202    (in 

TLedlow  r.  Becton,  36  Ala.  596;  Kilbride  v.  Moss,  113  Cal.  432;  Jepherson 
v.  Hunt,  2  Allen,  417;  Sinclair  v.  Bradley,  52  Mo.  180;  Moorehouse  v.  Crangle, 
36  Ohio  St.  130;  Mease  v.  Wagner,  1  MeCord,  395;  Walker  v.  Norton,  29  Vt. 
226;  Hodges  v.  Hall,  29  Vt.  209. 

A  promise  to  pay  the  debt  of  another,  which  provides  for  a  release  of  that 
other  from  the  debt,  is  not  within  the  statute.  Thornton  V.  Guice,  73  Ala. 
321;  Kilbride  r.  Moss,  113  Cal.  432;  Packer  v.  Benton,  35  Conn.  343;  Harris 
r.  Young,  40  Ga.  65;   Edenfield  v.  Canady,  00  Ga.  450;  Sapp  v.  Faircljk  70 


170  FORM    OF    CONTRACT. 

person  is  assumed  as  the  foundation  of  a  contract,  but  does  not  in 
fact  exist,  then,  independently  of  the  statute,  and  on  the  principle 
of  a  class  of  cases  to  be  explained  elsewhere,  there  is  no  contract. 
On  the  other  hand  a  promise  to  be  primarily  liable,  or  to  be  liable 
at  all  even  is,  whether  any  third  person  is  or  shall  become  liable  or  not, 
is  not  within  the  statute  and  need  not  be  in  writing.  It  may  be  an 
indemnity,  it  is  not  a  guaranty  (/).  Whether  particular  spoken 
words,  not  in  themselves  conclusive,  e.  g.  "  Go  on  and  do  the  work 
and  I  will  see  you  paid,"  amount  to  such  a  promise  or  only  to  a 
guaranty  is  a  question  of  fact  to  be  determined  by  the  circumstances 
of  the  case  (A;)-8 

isoi  is  a  promise  within  the  statute  unless  it  is  made  to  the  prin- 
cipal creditor :  "  The  statute  applies  only  to  promises  made  to  the 
person  to  whom  another  is  answerable  "  (Z)9  or  is  to  become  so. 

(;')    Guild  &  Co.  v.  Conrad  [1894]  (Z)  Eastwood  v.  Kenyon  (1840)   11 

2  Q.  B.  885,  63  L.  J.  Q.  B.  721.  A.   &  E.  438,  446;   concess.   Cripps  v. 

[See   Ames's    Cas.    Suretyship,    53,  Uartnoll    (1863)    4  B.  &   S.   414,   32 

54.]  L.  J.  Q.  B.  381   (Ex.  Ch.). 

i^^   Lakeman     v.     Mountstephen, 
(/»nBc-  Co.  v.  Conrad,  supra. 

Ga.  690;  Howell  r.  Field,  70  Ga.  592;  Sext  v.  Geise,  80  Ga.  698;  Palmer  v. 
Blaine,  55  Ind.  11 ;  Day  v.  Cloe,  4  Bush,  563 ;  Daniels  p.  Gibson,  20  Ky.  L.  Rep. 
847;  White  r.  Solomonsky,  30  Md.  585;  Whittemore  r.  Wentworth,  76  Me.  20; 
Wood  v.  Corcoran,  1  Allen  405;  Eden  r.  Chaffee,  160  Mass.  225;  Griffin  r. 
Cunningham,  183  Mass.  505;  Wilhelm  P.  Voss,  118  Mich.  106;  Yale  r.  Edger- 
ton,  14  Minn.  194;  Meriden  Co.  r.  Zingsen,  48  N.  Y.  247;  Booth  v.  Eighmie,  60 
K.  Y.  238;  First  Bank  r.  Chalmers,  144  N.  Y.  432 1  Corbett  r.  Cochran,  3  Hill 
(S.  C.)  41;  Warren  r.  Smith,  24  Tex.  484;  Watson  v.  Jacobs,  29  Vt.  169; 
Hooper  r.  Hooper,  32  W.  Va.  526. 

8  Davis  r.  Tift,  70  Ga.  52;  Billingsley  v.  Dempelwolf,  11  Ind.  414;  Pettit  r. 
Braden,  55  Ind.  201;  Perkins  v.  Hinsdale,  97  Mass.  157;  Walker  v.  Hill,  119 
Mass.  249;  Barrett  i:  McHugh,  128  Mass.  165;  Cowdin  v.  Gottgetreu,  55  N.  Y. 
650;  Warnick  r.  Grosholz,  3  Grant's  Cas.  234;  Merriman  v.  McManus, 
102  Pa.  102;  Sinclair  r.  Richardson,  12  Vt.  33;  West  r.  O'Hara,  55  Wis.  645. 
See  also  Davis  r.  Patrick,  141  TJ.  S.  479;  Craft  v.  Kendrick,  39  Fla.  90; 
Phelps  r.  Stone,  172  Mass.  355;  Daniel  r.  Robinson,  66  Mich,  296;  Wilhelm  v. 
Voss,  118  Mich.  106;  Green  i:  Burton,  59  Vt.  423.  Cp.  Birchell  r.  Neaster, 
36  Ohio  St.  331,  and  Crawford  r.  Edison,  45  Ohio  St.  239. 

9  Clark  r.  Jones,  85  Ala.  127;  Pratt  p.  Humphrey,  22  Conn,  317;  Tuttle  v. 
Armstead,  53  Conn.  175 ;  Mever  v.  Hartman,  72  111.  442 ;  Neagle  r.  Kelly, 
146  111.  400;  Crim  r.  Fitch,  53  Ind.  214;  Bateman  p.  Butler,  124  Ind.  223; 
Merchant  r.  O'Rourke,  111  la.  351;  Center  v.  McQuesten,  18  Kan.  476;  Wil- 
liams v.  Rogers,  14  Bush,  776;  North  v,  Robinson,  1  Duv.  71;  TIardesty  V. 
Jones,  10  G.  &  J.  404;  Al-cr  v.  Scoville,  1  Gray,  391;  Perkins  r.  Littlefield, 
5  Allen,  370;  Pratt  v.  Bates,  40  Mich.  37;  Goetz  r.  Foss,  14  Minn.  265;  Ware 
r.  Allen,  04  Miss.  545;  Brown  v.  Brown,  47  Mo.  130;  Green  r.  Estes,  82  Mo. 
3:;7;  Fisk  r,  J\lcGregorv,  34  N.  H.  414;  Mersereau  r.  Lewis,  25  Wend.  243; 
Smart  r.  Smart,  97  N.  Y.  559;  Rice  p.  Carter,  11  Ired.  L.  298;  Little  v. 
McCarter,  89  ST.  C.  233;  Randall  v.  Kelsey,  46  Vt.  158. 

Where,  upon  a  consideration  moving  to  himself,  the  holder  of  a  third  per- 
son's obligation  transfers  it  to  another,  his  guaranty  thereof,  made  simultane- 
ous^^with  the  transfer,  i*  not  within  the  statute.  Railroad  Co.  r.  Jones, 
57  V.  198;   Beaty  v.  Grim,  18  Ind.   131;  Voris  r.  Star,  &c,  Assoc,  20  Ind. 


STATUTE    OF    FRAUDS.  171 

A  mere  promise  of  indemnity  is  not  within  the  statute  (m),10 
though  any  promise  which  is  in  substance  within  it  cannot  be  taken 
out  of  it  by  being  put  in  the  form  of  an  indemnity  (n).11  A  [160 
promise  to  bear  contingent  losses  in  a  transaction  in  which  the 
promisor  has  an  independent  interest  is  a  promise  of  indemnity  and 
not  a  guaranty  (o). 

A  contract  to  give  a  guaranty  at  a  future -time  is  as  much  within 
the  statute  as  the  guaranty  itself  (p).12 

(m)      Cripps     v.     Hartnoll     (last  (n)    Cripps   v.   Hartnoll,   note    (I) 

note)  ;     Wildes    v.    Dudlow     (1874)  last  *  page. 

L.  R.   19  Eq.   198,  44  L.  J.  Ch.   341.  (o)   Mutton  v.  Grey  [1894]   1  Q.  B. 

So  of  an  indemnity  by  one  partner  to  285,  63  L.  J.  Q.  B.  633. 

his  co-partners  in  respect  of  a  doubt-  (p)     Alallet    v.    Bateman     (1865) 

ful  debt  from  a  third  person  to  the  L.  R.  1  C.  P.  163   (Ex.  Ch.),  35  L.  J. 

firm:   Be  Hoyle   [1893]   1  Ch.  84,  62  C.  P.  40.     See  further  on  this  clause, 

L.  J.  Ch.  182,  C.  A.  1   Wins.   Saund.   229—235,   or   1    Sm. 

App.  630  (ep.  Hassinger  v.  Newman,  83  Ind.  124)  ;  Huntington  v.  Welling- 
ton, 12  Mich.  10;  Wilson  v.  Hentges,  29  Minn.  102;  Barker  v.  Seudder,  56 
Mo.  272;  Milks  v.  Rich,  80  N.  Y.  269;  Rowland  r.  Rorke,  4  Jones  L.  337; 
Malone  v.  Keener,  44  Pa.  107;  Hall  v.  Rogers,  7  Humph.  536;  Eagle,  &c., 
Machine  Co.  v.  Shattuck,  53  Wis.  455;  Ames,  Cas.  Suretyship,  62,  n.  3; 
64,  n.  1. 

In  Dows  v.  Swett,  which  was  three  times  before  the  court  ( 134  Mass.  140 ; 
127  Mass.  364;  120  Mass.  322)  it  was  decided,  that  a  debtor's  guaranty  of  the 
note  of  a  third  party,  made  payable  directly  to  the  creditor,  and  accepted  a9 
absolute  payment  of  the  debt,  is  within  the  statute.  But  see  contra,  Sheldon 
r.  Butler,  24  Minn.  513:  Crane  v.  Wheeler. '48  Minn.  207;  Eagle,  &c.  Machine 
Co.  v.  Shattuck,  53  Wis.  455. 

10  Whether  a  promise  to  indemnify  one  for  becoming  bail  or  surety  for  a 
third  person  is,  or  not,  within  the  statute,  is  a  disputed  question  in  the 
United  States.  That  the  promise  is  not  within  the  statute,  see  Godden  v. 
Pierson,  42  Ala.  370;  Smith  v.  Delaney,  64  Conn.  264  (but  see  Clement's  Ap- 
peal, 52  Conn.  464)  ;  Jones  v.  Shorter,  1  Kelly  (6a.)  294;  Resseter  v.  Water- 
man, 151  111.  169;  Horn  r.  Bray,  51  Ind.  555;  Keesling  v.  Frazier,  119  Ind. 
185;  Mills  i'.  Brown,  11  la.  314;  Patton  r.  Mills,  21  Kan.  163;  Dunn  r.  West, 
5  B.  Mon.  376;  George  v.  Hoskins,  17  Ky.  L.  Rep.  63;  Smith  v.  Sayward,  5 
Me.  504;  Aldrich  v.  Ames,  9  Gray,  76;  Boyer  v.  Soules,  105  Mich.  31; 
Fidelity  Co.  v.  Lawler,  64  Minn.  144;  Esch  v.  White,  76  Minn.  220;  Minick  r. 
Huff,  41  Neb.  516;  Holmes  r.  Knights,  10  N.  H.  175;  Demeritt  v.  Bickford, 
58  N.  H.  523 ;  Cortelyou  v.  Hoagland,  40  N.  J.  Eq.  1 ;  Warren  r.  Abbett,  65 
N.  J.  L.  99;  Tighe  v.  Morrison,  116  N.  Y.  263;  Jones  r.  Bacon,  145  N.  Y.  446; 
Rose  v.  Wollenberg,  31  Oreg.  269;  Vogel  v.  Melms,  31  Wis.  306;  Barth  p 
Graf,  101  Wis.  27. 

This  is  believed  to  be  the  better  view.  Contra,  see  Martin  t.  Black,  20  Ala. 
309;  Spear  r.  Bank,  156  111.  555;  May  v.  Williams,  61  Miss.  125;  Bissing  r. 
Britton,  59  Mo.  204;  Hurt  v.  Ford,  142  Mo.  283;  Hartley  r.  Sandford,  66 
N.  J.  L.  627;  Brown  v.  Adams,  1  Stew.  51;  Draughan  p.  Bunting,  9  I  red.  L. 
10;  Easter  r.  White,  12  Ohio  St.  219;  Kelsey  v.  Hibbs,  13  Ohio  St.  340;  Nu- 
gent r.  Wolfe,  111  Pa.  471  (but  see  Elkin  v.  Timlin,  151  Pa.  491)  ;  Simpson 
v.  Nance,  1  Speers,  4;  Macey  v.  Childress,  2  Tenn.  Ch.  438;  Wolverton  v. 
Davis,  85  Va.  64. 

CcuTts  holding  the  latter  view  have  taken  a  distinction  where  the  promisor 
and  promisee  were  both  sureties  for  the  third  person,  and  there  held  the 
promise  of  indemnity  not  within  the  statute.  Barry  v.  Ransom,  12  N.  Y. 
462;  Ferrell  v.  Maxwell,  28  Ohio  St.  383. 

HCheesman  r.  Wiggins,  122  Ind.  352. 

12  Davis  r.  Patrick,  141  U.  S.  479;  Dillaby  r.  Wilcox,  60  Conn.  71;  Dee  v. 


172  FORM    OF    COXTEACT. 

T.  Agreements  upon  consideration  of  marriage.  "  Any  agreement  made 
upon  consideration  of  marriage."  A  promise  to  marry  is  not  within 
these  words,  the  consideration  being  not  marriage,  but  the  other  party's 
reciprocal  promise  to  marry.13  For  further  remarks  on  the  effect 
of  this  clause,  see  Chapter  XIII.  on  Agreements  of  Imperfect  Ob- 
ligation, infra. 

In  the  old  books  we  -frequently  meet  with  another  sort  of  difficulty 
touching  agreements  of  this  kind;  it  was  much  doubted  whether 
matrimony  were  not  so  purely  spiritual  a  matter  that  all  agreements 
concerning  it  must  be  dealt  with  only  by  the  ecclesiastical  courts: 
the  type  of  these  disputed  contracts  is  a  promise  by  A.  to  B.  to  pay  B. 
10L  if  he  will  marry  A.'s  daughter.    But  this  by  the  way  (q). 

161  ]  *<5-  Interests  in  land.  "Any  contract  or  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them."  This  clause 
is   usually   and   conveniently   considered   as   belonging  to   the   topic 

L.  C.  334,  note  to  Birkmyr  v.  Darnell  principale    est    in    foro    ecclesiastico, 

(1705).       Cp.     Wallace     v.     Gibson  ut  si  ob  causam  matrimonii  pecunia 

[1895]   A.  C.  354,  on  the  Mercantile  promittatur,     licet    videatur     prima 

Law   (Scotland)    Amendment  Act.  facie  quod   eognito   super   catallis  et 

(q)    Such  promise  may  be  sued  on  debitis   pertineat  ad  forum  seculare, 

in  the  King's   Court  if   by  deed,   22  tamen  propter  id  quod  maius  est  et 

Ass.  101,  pi.  70;  otherwise  if  he  had  dignius    trahitur    cognitio    pecuniae 

promised    10Z.   with   his  daughter  in  promissae   et    debitae   ad    forum   ec- 

marriage,   then   it   should  be   in   the  clesiasticum,    et    ubi    [  ?    ibi]    locum 

Court   Christian,    Trin.    45    Ed.    III.  non    habet    prohibitio,    cum    debitum 

24,  pi.  30;   action  good  without  spe-  sit   de   testamento   vel   matrimonio:" 

cialty  where  the  marriage  had  taken  folio    175    a.      It.   should    be    remem- 

place,    Mich.    37    H.    VI.    8,   pi.    18;  bered  that  ordinary  debts  were  still 

contra    (not  without  dissent),   Trin.  indirectly   enforced    in    the    spiritual 

17    Ed.    IV.   4,    pi.   4.      In   Bracton's  courts  by  the  imposition  of  penance: 

time  the  exclusive  jurisdiction  of  the  22  Ass.  ubi  sup.     The  so-called  stat- 

spiritual  courts  appears  to  have  been  ute  of  Circumspecte  agatis  appears  to 

admitted :    "  ad  forum  seculare  trahi  have  been  construed  as  allowing  this 

non  debet  per  id  quod  minus  est  et  if  the  spiritual  court  did  not  directly 

non    principale    id   quod    primum    et  order  payment  of  the  debt. 

Downs,  57  la.  589;  State  v.  Shinn,  42  N.  J.  L.  138;  Warren  v.  Abbett,  65 
N.  J.  L.  99;  Carville  c.  Crane,  5  Hill,  483;  Rintoul  v.  White,  108  N.  Y.  222; 
Dougherty  v.  Bash,  167  Pa.  429;  Taylor  r.  Drake,  4  Strobh.  L.  431. 

In  Leonard  v.  Vredenburgh,  8  Johns.  29,  Kent,  C.  J.,  classified  the  cases 
arising  upon  provision  ,}  of  the  statute;  see  further,  the  classification  by 
Comstock,  J.,  in  Mallory  c.  Gillett,  21  N.  Y.  412;  Ames'  Cas.  Suretyship, 
chap.  I. 

is  Clark  t:  Pendleton,  20  Conn.  495;  Blackburn  v.  Mann,  85  111.  222; 
Short  v.  Stotts,  58  Ind.  29;  Caylor  r.  Roe,  39  Ind.  1,  5;  Withers  t>.  Richard- 
son, 5  T.  B.  Mon.  94;  Morgan  v.  Yarborough,  5  La.  Ann.  316;  Ogden  r.  Ogden, 
1  Bland  Ch.  284;  Wilbur  r.  Johnson,  58  "Mo.  600;  Derby  r.  Phelps,  2  N.  H. 
515;  Barge  l>.  Haslam,  63  Neb.  296. 

"An  oral  agreement  to  execute  an  antenuptial  contract  is  within  the  Statute 
of  Frauds;  and  if  an  oral  agreement  to  marry  is  dependent  upon  such  an 
agreement,  and  a  part  of  it.  no  action  can  be  maintained  upon  it."  Chase  v. 
Fitz,  132  Mass.  359.     See  also  Hunt  v.  Hunt,  171  N.  Y.  396. 


STATUTE    OF   FRAUDS.  173 

of  Vendors  and  Purchasers  of  real  estate;  and  the  reader  is  referred 
to  the  well-known  works  which  treat  of  that  subject  (r).  Questions 
have  arisen,  however,  whether  sales  of  growing  crops  and  the  like  were 
sales  of  an  interest  in  lands  within  the  4th  section  or  of  goods  within 
the  17th  (s).u    A  sale  of  tenant's  fixtures,  being  a  sale  only  of  the 

(r)_  As  to  an  agreement  collateral  N.  Y.  74;  Tuttle  l>.  Burgett,  53  Ohio 

to  a  demise  of  land  not  being  within  St.  498;   Baker  v.  Flick,  200  Pa.  13. 

the    statute,    see    Morgan    v    Griffith  Disapproving  Morgan  v.  Griffith,  and 

(1871)   L.  R.  6  Ex.  70,  40  L.  J.  Ex.  Erskine  v.  Adeane,  see  Naumberg  v. 

46;   Erskine  v.  Adeane   (1873)   L.  R.  Young,  44  N.  J.  L.  331.]     As  to  the 

8  Ch.  756,  42  L.  J.  Ch.  835;  Angell  distinction   between   a   demise  and  a 

v.  Duke   (1875)   L.  R.   10  Q.  B.   174,  mere    licence    or    agreement    for    the 

44   L.   J.    Q.    B.   78;    De   Lassalle  v.  use   of   land   without  any   change  of 

Guildford    [1901]    2    K.    B.    215,    70  possession,    Wells   v.    Kingston-upon- 

L.   J.    K.   B.    533,    C.   A.      [Lewis   v.  Hull    (1875)    L.  R.   10  C.  P.  402,  44 

Seabury,    74    N.    Y.    409.      And    see  L.  J.  C.  P.  257. 
Weatherbee  v.  Potter,  99  Mass.   354,  (s)  Marshall  v.  Green  (1875)   1  C. 


361;  Carr  v.  Dooley,  119  Mass.  294 
McCormiek  v.  Cheevers,  124  Mass 
262;  Rackemann  v.  Riverbank  Imp 
Co.  167  Mass.  1;  Remington  v. 
Palmer,  62  N.  Y.  31 ;  Dodge  v.  Zim 
mer,  110  N.  Y.  43;  Johnson  r.  E.  C 
Land  Co.    116  N.  C.  926;  Hei  v.  Hel 


P.  D.  35,  45  L.  J.  C.  P.  153.  As  to 
building  materials  to  be  severed  from 
the  soil,  Lavery  v.  Pursell  ( 1888 )  39 
Ch.  D.  508,  57  L.  J.  Ch.  570.  [Meyers 
v.  Schemp,  67  111.  469,  is  in  accord 
with  Lavery  v.  Pursell.  Cp.  Harris 
v.    Powers,    59    Ala.    139;    Keyser   -v. 


ler,  53  Wis.  415.     As  to  stipulations  District,    35    N.    H.    477;     Long    v. 

collateral  to  the  sale  of  an  interest  White,  42  Ohio  St.  59.]     And  see  1 

in  land,   see   also  Dodder  v.   Snyder,  Wms.  Saund.  395. 
110  Mich.  69;   Chapin  v.  Dobson,  78 

l*  Crops  planted  and  raised  annually  by  the  hand  of  man  are  practically 
withdrawn  from  the  operation  of  the  statute.  Marshall  v.  Ferguson,  23  Cal. 
65;  Davis  v.  McFarlane,  37  Cal.  634;  Bull  v.  Griswold,  19  111.  631;  Meinke  v. 
Nelson,  56  111.  App.  269;   Northern  r.  State,  1  Ind.  113;   Bricker  v.  Hughes, 

4  Ind.  146;  Sherry  v.  Pieken,  10  Ind.  375;  Cutler  v.  Pope,  13  Me.  377; 
Bryant  v.  Crosby,  40  Me.  9;  Purner  i:  Piercy,  40  Md.  212;  Whitmarsh  v. 
Walker,  1  Met.  313;  Smock  i\  Smock,  37  Mo.  App.  56;  Holt  v.  Holt,  57  Mo. 
App.  272;  Newcomb  v.  Ramer,  2  Johns.  421,  note;  Bank  v.  Lansingburgh, 
1  Barb.  542 ;  Webster  v.  Zielly,  52  Barb.  482 ;  Brittain  v.  McCay,  1  Ired.  265 ; 
Walton  v.  Jordan,  65  N.  C.  170;  Carson  v.  Browder,  2  Lea,  701;  Kerr  r.  Hill, 
27  W.  Va.  276.  Cp.  Powell  v.  Rich,  41  111.  466;  Powers  v.  Clarkson,  17  Kan. 
218. 

In  Connecticut,  Kentucky,  Maine,  Maryland,  and  Massachusetts  sales  of 
growing  trees  to  be  presently  cut  and  removed  by  the  vendee  are  held  not 
to  be  within  the  operation  of  the  fourth  section  of  the  statute.  Bostwick  r. 
Leach,  3  Day  (Conn.),  476;  Cain  v.  McGuire,  &c,  13  B.  Mon.  340;  Byassee  v. 
Reese,  4  Mete.  (Ky.)  372;  Prater  v.  Campbell  (Ky.),  60  S.  W.  Rep.  918; 
Erskine  v.  Plummer,  7  Me.  447 ;  Cutler  v.  Pope,  13  Me.  377 ;  Smith  v.  Bryan, 

5  Md.  141;  Claflin  et  al.  v.  Carpenter,  4  Mete.  580;  Nettleton  v.  Sikes,  8 
Mete.   34. 

The  courts  of  most  American  States  that  have  considered  the  question, 
however,  hold  expressly  that  a  sale  of  growing  or  standing  timber  is  a 
contract  concerning  an  interest  in  lands.  Haflin  r.  Bingham,  56  Ala.  574 ; 
Coody  v.  Gress  Lumber  Co.,  82  Ga.  793;  Hostetter  r.  Auman,  119  Ind.  7; 
Jackson  v.  Evans,  44  Mich.  510;  Harrell  v.  Miller,  35  Miss.  700;  Walton  r. 
Lowrey,  74  Miss.  484 ;  Lyle  r.  Shinnebarger,  17  Mo.  App.  66 :  Howe  r.  Batch- 
elder,  49  N.  H.  204;  Westbrook  v.  Eager,  l'  Harr.  (N.  J.)  87:  Mizell  r.  Burnett 
4  Jones  (N.  C.)  249;  Clark  v.  Guest,  54  Ohio  St.  298;  Miller  v.  Zufall,  113 
Pa.  317;  Knox  v.  Haralson,  2  Tenn.  Ch.  232;  Buck  r.  Pickwell,  27  Vt.  157 


174  FORM    OF    CONTRACT. 

right  to   sever  the  fixtures  from   the  freehold  during  the  term,  is 
not  within  either  section  (i).16 

Leases.  By  the  1st  and  2nd  sections  of  the  statute  leases  for  more 
than  three  years,   or  reserving  a  rent  less   than  two-thirds   of  the 

(t)  Lee  v.  Gashell  (1876)   1  Q.  B.  D.  700,  45  L.  J.  Q.  B.  540. 

(cp.   Sterling  v.  Baldwin,  42  Vt.  306);    Fluharty  v.  Mills,  49  W.  Va. '446; 
Seymour  v.  Cushway,  100  Wis.  580. 

A  sale  of  bark  on  standing  trees  is  similar.    Thomson  v.  Poor,  57  Hun,  285. 

16  Bostwick  v.  Leach,  3  Day,  476;  South  Baltimore  Co.  r.  Mullbach,  69  Md. 
395;  Moody  v.  Aiken,  50  Tex.  65.  See  also  Frear  v.  Hardenhergh,  5  Johns. 
272;  Benedict  v.  Beebee,  11  Johns.  145;  Lower  v.  Winters,  7  Cow.  263. 

The  authority  of  an  agent  to  make  a  written  contract  for  the  sale  of  land 
need  not  itself  be  in  writing.  Heard  v.  Pilley,  4  Ch.  App.  548 ;  Rutenberg  v. 
Main,  47  Cal.  213;  Tibbetts  r.  West  &  South  By.  Co.,  153  111.  147;  Rott- 
man  i\  Wasson,  5  Kan.  552;  Rose  ('.  Hayden,  35  Kan.  106;  Talbot  v.  Bowen, 
1  A.  K.  Marsh.  436;  Brown  r.  Eaton,  21  Minn.  409  (changed  by  statute, 
Coursolle  v.  Weyerhauser,  69  Minn.  328,  332)  ;  Curtis  v.  Blair,  26  Miss.  309; 
Lobdell  v.  Mason,  71  Miss.  937;  Biley  r.  Minor,  29  Mo.  439;  Jackson  v. 
Higgins,  70  N.  H.  637;  Worrall  v.  Munn,  5  N.  Y.  229;  Newton  x.  Bronson, 
13  N.  Y.  587;  Blass  v.  Terry,  156  N.  Y.  122,  135;  Abbott  v.  Hunt,  129  N.  C. 
403;  Dodge  r.  Hopkins,  14  Wis.  630;  Tufts  r.  Brace,  103  Wis.  341,  344; 
Brown  v.  Griswold,  109  Wis.  275,  279.     Cp.  Dunphy  u.  Ryan,  116  TJ.  S.  491. 

In  some  States,  however,  statutes  expressly  require  the  agent's  authority  to 
be  in  writing.     See  Mechem.  on  Agency,  §  89. 

Nor  need  an  agreement  of  partnership  be  in  writing  though  the  purpose  of 
the  partnership  is  to  deal  in  lands.  Dale  v.  Hamilton,  5  Hare,  369;  Re 
De  Nicols,  [1900]  2  Ch.  410;  McElroy  r.  Swope,  47  Fed.  Rep.  386;  Bates  v. 
Babcock,  95  Cal.  479;  Von  Trotha  v.  Bamberger.  15  Col.  1;  Morrill  v.  Colehour, 
82  111.  618;  Holmes  v.  McCray,  51  Ind.  358;  Lewis  v.  Harrison,  81  Ind.  278, 
286;  Richards  r.  Grinnel],  63  la.  44;  Dudley  v.  Littlefield,  21  Me.  418,  423; 
Trowbridge  v.  Wetherbee,  11  Allen,  361;  Wetherbee  v.  Potter,  99  Mass.  354; 
Carr  v.  Leavitt,  54  Mich.  540;  Davis  v.  Gerber,  69  Mich.  246;  Petrie  r.  Tor- 
rent, 88  Mich.  43;  Snyder  v.  Wolfred,  33  Minn.  175;  Newell  v.  Cochran,  41 
Minn.  374 ;  Chester  r.  Dickerson,  54  N.  Y.  1 ;  Babcock  v.  Read,  99  N.  Y.  209 ; 
King  v.  Barnes,  109  N.  Y.  267,  285;  Flower  v.  Barnekoff,  20  Oreg.  132; 
Benjamin  v.  Zell,  100  Pa.  33;  Meason  V.  Kaine,  63  Pa.  339;  Everhart's  App., 
106  Pa.  349;  Howell  v.  Kelly,  149  Pa.  473;  Bruce  v.  Hastings,  41  Vt.  380. 
But  see  contra,  Smith  r.  Burnham,  3  Sum.  458;  Rowland  v.  Boozer,  10  Ala. 
690,  695;  Gray  v.  Palmer,  9  Cal.  639;  Pecot  v.  Armelian,  21  La.  Ann.  667; 
Bird  r.  Morrison,  12  Wis.  138;  McMillen  v.  Pratt,  89  Wis.  612;  Smith  v. 
Putnam,  107  Wis.  155,  162.     Cp.  Watters  v.  McGuigan,  72  Wis.  155. 

Similarly  a  contract  for  the  sale  of  a  partnership  interest  is  not  within 
the  statute  though  the  partners  own  land.  Vincent  v.  Vieths,  60  Mo.  App.  9. 
Compare  Watson  r.  Spratley,  10  Ex.  222. 

But  an  agreement  by  one  party  to  buy  an  interest  in  land  jointly  for  himself 
and  the  other  party  is  within  the  statute.  Wallace  r.  Stevens,  64  Me.  225; 
Hollida  v.  Shoop,  4  Md.  465;  Green  r.  Drummond,  31  Md.  71;  Bailey  v. 
Hemenway,  147  Mass.  326 ;  Brosnan  r.  McKee,  63  Mich.  454.  See  also 
McLennan  v.  Boutell,  117  Mich.  544.     Cp.  Evans  v.  Green,  23  Miss.  294. 

A  parol  agreement  between  joint  owners  or  tenants  in  common  to  partition 
their  land  is  held  in  many  States  not  to  be  within  the  statute,  at  least  if  the 
agreement  has  been  acted  on.  Long  r.  Dollarhide,  24  Cal.  218;  Tuffree  v. 
Polhemus,  108  Cal.  670.  677;  Tomlin  v.  Hilyard,  43  111.  300;  Grimes  i: 
Butts,  65  111.  347;  Shepard  v.  Rinks,  78  111.  188;  Gage  v.  Bissell,  119  111. 
298;  Lacy  v.  Gard,  60  111.  App.  72;  Foltz  v.  Wert,  103  Ind.  404;  Moore  r. 
Kerr,  46  Ind.  468;  Bruce  v.  Osgood,  113  Ind.  360;  Tate  v.  Foshee,  117  Ind. 
322 ;.  Higginson  v.  Schaneback   (Ky.),  66  S.  W.  Rep.  1040;  Johnston  v.  Labat, 


STATUTE    OF    FRAUDS.  175 

improved  value,  must  be  in  writing  and  signed  by  the  parties  or  their 
agents  authorized  in  writing,  and  now  by  8  &  9  Viet.  c.  106,  s.  3, 
they  must  be  made  by  deed.  But  an  informal  lease,  though  void 
as  a  lease,  may  be  good  as  an  agreement  for  a  lease  (w).16 

£.  Agreements  not  to  be  performed  within  a  year.  "  Any  agreement 
that  is  not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof."' 

(it)  Dart,  V.  &  P.  1.  198. 

26  La.  Ann.  159;  Wildey  c.  Bonneys,  31  Miss.  644;  Pipes  v.  Buckner,  51  Miss. 
848 ;  Bompart  u.  Roderman,  24  Mo.  385 ;  Jackson  v.  Harder,  4  Johns.  202 ; 
Wood  v.  Fleet,  36  N.  Y.  499;  Piatt  v.  Hubbell,  5  Ohio,  243;  Wolf  r.  Wolf,  158 
Pa.  281;  Rountree  v.  Lane,  32  S.  C.  160;  Meacham  v.  Meacham,  91  Tenn. 
532;  Stuart  r.  Baker,  17  Tex.  417;  Smock  v.  Tandy,  28  Tex.  130;  Mitchell  v. 
Allen,  69  Tex.  70;  Aycock  r.  Kimbrough,  71  Tex.  330;  Mass  r.  Bromberg 
(Tex.  Civ.  App.),  66  S.  W.  Rep.  468;  Whitemore  v.  Cope,  11  Utah,  344; 
Brazee  v.  Schofield,  2  Wash.  Ty.  209.  See  also  Berry  v.  Seawald,  65  Fed. 
Rep.  742  (C.  C.  A.).  But  see  contra,  Johnson  v.  Wilson,  Willes,  248;  Ireland 
v.  Rittle,  1  Atk.  541;  Whaley  v.  Dawson,  2  Sch.  &  L.  367;  Bach  v.  Ballard, 
13  La.  Ann.  487;  Duncan  v.  Sylvester,  16  Me.  388;  Chenery  v.  Dole,  39  Me. 
162;  John  v.  Sabattis,  69  Me.  473;  Porter  r.  Perkins,  5  Mass.  233;  Porter 
v.  Hill,  9  Mass.  34;  Ballou  v.  Hale,  47  N.  H.  347;  Woodhull  v.  Longstreet, 
3  Har.  405;  Lloyd  v.  Conover,  1  Dutch.  47;  Medlin  v.  Steele,  75  N.  C.  154; 
Jones  v.  Reeves,  6  Rich.  L.  132.     See  also  Duncan  v.  Duncan,  93  Ky.  37. 

A  similar  rule  prevails  in  regard  to  a  parol  agreement  between  adjoining 
landowners  as  to  a  disputed  boundary  line.  Jenkins  v.  Trager,  40  Fed.  Rep. 
726;  Cavanaugh  v.  Jackson,  91  Cal.  580;  Watrous  v.  Morrison,  33  Fla.  261; 
Carstarphen  v.  Holt,  96  Ga.  703;  Grim  v.  Murphy,  110  111.  271;  Duggan  v. 
Uppendahl,  197  111.  179;  Tate  i:  Foshee,  117  Ind.  322;  Jamison  r.  Petit,  6 
Bush,  669 ;  Jones  r.  Pashby,  67  Mich.  459 ;  Pittsburgh  Iron  Co.  v.  Lake 
Superior  Iron  Co.,  118  Mich.  109;  Archer  v.  Helm,  69  Miss.  730;  Blair  r. 
Smith,  16  Mo.  273;  Turner  v.  Baker,  8  Mo.  App.  583,  64  Mo.  218;  Atchison 
17.  Pease,  96  Mo.  566;  Barnes  r.  Allison,  166  Mo.  96;  Bartlett  r.  Young,  63 
N.  H.  265;  Hitchcock  v.  Libby,  70  N.  H.  399;  Vosburgh  v.  Teator,  32  N.  Y. 
561;  Bobo  v.  Richmond,  25  Ohio  St.  115;  Hagey  v.  Detweiler,  35  Pa.  409; 
Cooper  v.  Austin,  58  Tex.  494;  Harn  r.  Smith,  79  Tex.  310;  Levy  v.  Maddox, 
81  Tex.  210;  Leeomte  r.  Toudouze,  82  Tex.  208;  Gwynn  v.  Schwartz,  32  W.  Va. 
487;  Teass  v.  St.  Albans,  38  W.  Va.  1.  But  see  contra,  Liverpool  Wharf  r. 
Prescott,  4  Allen,  22,  7  Allen,  494. 

If  the  true  boundary  line  is  known,  however,  a  new  one  cannot  be  estab- 
lished by  parol.  Boyd  v.  Graves,  4  Wheat.  513 ;  Sharp  r.  Blankenship,  67 
Cal.  441;  Nathan  v.  Dierssen,  134  Cal.  282;  Miller  v.  McGlann,  63  Ga.  435; 
Vosburgh  v.  Teator,  32  N.  Y.  561 ;  Harris  v.  Oakley,  130  N".  Y.  1,  5 ;  Ambler 
v.  Cox,  13  Hun,  295;  Lennox  r.  Hendricks,  11  Oreg.  33;  Nichol  v.  Lytle,  4 
Yerg.  456;  Gilchrist  r.  MeGee,  9  Yerg.  455;  Lewallen  v.  Overton,  9  Humph. 
76;   Hartung  v.  Witte,  59  Wis.  285.     See  further,  57  Cent.  L.  J.  449. 

l<">  So  an  instrument  inoperative  as  a  deed  for  want  of  a  seal  may  satisfy 
the  statute  as  a  memorandum  of  »  contract  to  convey.  Henry  v.  Root,  33 
N.  Y.  526,  550. 

"An  instrument  of  writing  in  the  usual  form  of  a  deed  of  conveyance,  but 
not  delivered  as  such,  may  nevertheless  be  delivered  as  an  executory  contract, 
or  as  partial  evidence  of  a  contract  to  sell  and  convey  the  lands  therein  de- 
scribed; and  if  signed  and  so  delivered  by  the  vendor,  and  accepted  by  the 
vendee,  it  is  sufficient,  in  an  action  thereon,  to  take  the  case  out  of  the  opera- 
tion of  the  Statute  of  Frauds."  Thayer  r.  Luce.  22  Ohio  St.  62;  Campbell  v. 
Thomas,  42  Wis.  437.  See  also  Johnston  r.  Jones.  85  Ala.  286:  Wier  v. 
Batdorf,  24  Neb.  83.  Cp.  Kopp  r.  Reiter,  146  III.  437;  Morrow  v.  Moore,  98 
Me.  373;  Schneider  e.  Vogler,   (Neb.)  97  N.  W.  Rep.  1018. 


176  ■  FORJI    01'     CONTRACT. 

"  Is  not  to  be,"  not  "  is  not  "  or  "  may  not  be."  This  means  an 
agreement  that  on  the  face  of  it  cannot  be  performed  within  a  year. 
An  agreement  capable  of  being  performed  within  a  year,  and  not 
showing  any  intention  to  put  off  the  performance  till  after  a  year, 
162]  is  not  within  *this  clause  (a;).17    Nor  is  an  agreement  within  it 

(,r)  Smith  v.  beale  (1857)  2  C.  B.  N.  S.  67,  26  L.  J.  C.  P.  143. 

17  It  is  well  settled  that  an  agreement  is  not  within  the  statute  merely 
because  performance  may  extend  over  more  than  a  year;  but  where  in 
all  probability  performance  will  extend  over  more  than  a,  year  and  it  is 
expected  by  the  parties  that  it  will,  there  has  been  more  question.  The 
leading  case  is  Warner  v.  Texas  &  Pacific  Ry.  Co.,  164  TJ.  S.  418.  In  that 
case  the  promise  of  the  defendant  was  to  maintain  a  switch  for  the  plain- 
tiff's benefit  for  shipping  purposes  "  as  long  as  he  needed  it."  The  de- 
fendant maintained  the  switch  for  thirteen  years  and  then  tore  it  up. 
The  Supreme  Court  reversing  the  decision  below  held  that  the  contract 
was  not  within  the  statute,  and  the  weight  of  authority  sustains  the  decision. 
Heflin  r.  Milton,  69  Ala.  354;  Sweet  v.  Desha  Lumber  Co.,  56  Ark.  629; 
Cement  v.  McElrath,  68  Cal.  466;  Orland  r.  Finnell,  133  Cal.  475;  Clark 
r.  Pendleton,  20  Conn.  495;  Sarles  r.  Sharlow,  5  Dak.  100;  White  v.  Murt- 
land,  71  III.  250;  Straughan  v.  Indianapolis,  &c.  R.  R.  Co.,  38  Ind.  185; 
Sutphen  v.  Sutphen,  30  Kan.  510;  Louisville,  &c.  R.  R.  Co.  r.  Offutt, 
99  Ky.  427;  Story  r.  Story  (Ky.),  61  S.  W.  Rep.  279,  62  S.  W.  Rep.  865: 
Walker  v.  Metropolitan  Ins.  Co.,  56  Me.  371;  Baltimore  Breweries  Co.  f. 
Callahan,  82  Md.  100;  Carnig  v.  Carr,  167  Mass.  544;  Wiebeler  r.  Mil- 
waukee Ins.  Co.,  30  Minn.  464;  Harrington  i.  Kansas  City  R.  R.  Co.,  60 
Mo.  App.  223;  Boggs  v.  Pacific  Laundry  Co.,  86  Mo.  App.  616;  Powder 
River  Co.  v.  Lamb,  38  Neb.  339;  Gault  v.  Brown,  48  N.  H.  183;  Plimp- 
ton v.  Curtiss,  15  Wend.  336;  Trustees  r.  Brooklyn  Fire  Ins.  Co.,  19  N.  Y. 
305;  Blake  v.  Voight,  134  N.  Y.  69;  Randall  v.  Turner,  17  Ohio  St.  262; 
Blakenev  v.  Goode,  30  Ohio  St.  350;  Jones  r.  Pouch,  41  Ohio  St.  146;  Hodges 
v.  Richmond  Mfg.  Co.,  9  R.  I.  482;  Seddon  v.  Rosenbaum,  85  Va.  928. 
But  see  on  the  other  hand  Meyer  V.  Roberts,  46  Ark.  80 ;  Wilson  r.  Bay, 
13  Ind.  1;  Goodrich  v.  Johnson,  66  Ind.  258;  Carnev  r.  Mosher,  97  Mich. 
554;  Mallett  r.  Lewis,  61  Miss.  105;  Biest  v.  Ver  "Steeg  Shoe  Co.  (Mo. 
App.),  70  S.  W.  Rep.  1081;  Shute  r.  Dorr,  5  Wend.  204;  Dav  r.  New  York 
Central  R.  R.  Co.,  51  N.  Y.  5S3,  89  N.  Y.  616;  Izard  v.  Middleton,  1 
Desaus.  110;  Jones  r.  MeMichael,  12  Rich.  L.  176;  Deaton  r.  Tennessee 
Coal  Co.,  12  Heisk.  650;  also  Buhl  v.  Stephens,  84  Fed.  Rep.  922;  Swift 
f.  Swift,  46  Cal.  266;   Butler  v.  Shehan,  61  111.  App.  561. 

Promises  which  by  their  terms  extend  during  the  life  of  the  promisor  or 
promisee  are  not  within  the  statute.  Hill  v.  Jamieson,  16  Ind.  125 : 
Bell  i:  Hewitt's  Ex.,  24  Ind.  280;  Harper  v.  Harper,  57  Ind.  547;  Welz  i. 
Rhodius,  87  Ind.  1;  Pennsylvania  Co.  v.  Dolan,  6  Ind.  Anp.  109;  Atchison, 
&c.  R.  R.  Co.  i\  English,  38  Kan.  110;  Howard  v.  Burgen,  4  Dana,  137; 
Bull  v.  McCrea,  8  B.  Mon.  422;  Myles  r.  Myles,  6  Bush.  237;  Stowers 
v.  Hollis,  83  Ky.  544;  Hutchinson  r.  Hutchinson,  46  Me.  154;  Worthy  r.  Jones, 
11  Gray,  168;' Carr  r.  McCarthy.  70  Mich.  258;  McCormick  r.  Drummett,  9 
Nelt.  384;  Blanding  r.  Sargent,  33  N.  H.  239;  Dresser  v.  Dresser,  35  Barb.  573; 
Thorp  r.  Stewart,  44  Hun,  232;  Richardson  v.  Pierce,  7  R.  I.  330;  East 
Line  Co.  r.  Scott,  72  Tex.  70;  Blanchard  r.  Weeks,  34  Vt.  589;  Thomas 
r.  Armstrong,  86  Va.  323;  Heath  r.  Heath,  31  Wis.  223.  But  see  contra. 
Vose  r.  Strong,  45  111.  App.  9S ;  affd.,  144  111.  108;  Deaton  r.  Tennessee 
Coal   Co.,    12   Heisk.   650. 

Similarly  contracts  to  be  performed  at  the  death  of  a  person  are  not 
within  the  statute.  Frost  >;  Tarr,  53  Tnd.  390;  Riddle  r.  Backus.  38 
la.  81;  Sword  r.  Keith,  31  Mich.  247;  Updike  r.  Ten  Broeck,  3  Vroom,  105: 
Kent  r.  Kent,  62  N.  Y.  560 ;  Jilson  v.  Gilbert,  26  Wis.  637. 


STATUTE    OF    FRAUDS.  177 

which  is  completely  performed  by  one  party  within  a  year  (y).la 
It  appears  to  be  now  settled  that  an  agreement  depending  on  the 
life  of  a  party  or  of  some  other  person,  or  otherwise  determinable 
on  a  contingency  which  may  possibly  happen  within  a  year,  though 
this  be  not  expected  or  desired  by  the  parties,  is  not  within  this  branch 
of  the  statute  (2). 19 

(y)    Cherry  v.   Heming    (1849)    4  Eley  v.  Positive  Assurance  Co.  ( 1876) 

Ex.  631,  19  L.  J.  Ex.  63.     See  notes  1  Ex.  D.  20   (in  C.  A.  ib.  88,  not  on 

to  Peter  v.  Compton,  1  Sm.  L.  C.  359.  this  point),  45  L.  J.   Ex.  451.     The 

(z)   McGregor  v.  McGregor  (1888)  English    decisions    appear    to    be    re- 

21  Q.  B.  Div.  424,  57  L.  J.  Q.  B.  591,  ceived    in   America:    see    Warner    v. 

overruling  Davey  v.  Shannon   (1879)  Texas    and    Pacific    By.    (1896)     164 

4  Ex.  D.   81,  and    (it  should  seem)  U.  S.  418. 

iSFernald  v.  Gilman,  123  Fed.  Rep.  797;  Rake's  Admrs.  v.  Pope,  7  Ala.  161; 
Manning  v.  Pippen,  95  Ala.  537;  Praser  v.  Gates,  118  111.  99,  112;  Piper  i». 
Fosher,  121  Ind.  407;  Curtis  v.  Sage,  35  111.  22;  Haugh  v.  Blythe's  Exrs.,  20 
Ind.  24;  Smalley  c.  Greene,  52  la.  241;  Dant  v.  Head,  90  Ky.  255;  Jones  v. 
Comer,  25  Ky.  L.  Rep.  773;  Holbrook  v.  Armstrong,  10  Me.  31;  Ellicott  v. 
Turner,  4  Md.  476;  Suggett's  Admr.  v.  Cason's  Admr.,  26  Mo.  221;  Self  v. 
Cordell,  45  Mo.  345;  Bless  r.  Jenkins,  129  Mo.  647;  Kendall  r.  Garneau,  55 
Neb.  403;  Perkins  v.  Clay,  54  N.  H.  518;  Barry  r.  Doremus,  30  N.  J.  L.  399; 
Bennett  v.  Mahler,  90  N.  Y.  App.  Div.  22 ;  Scheuer  v.  Monash,  83  N.  Y.  Supp. 
253;  Durfee  v.  O'Brien,  16  R.  I.  213;  Compton  v.  Martin,  5  Rich.  L.  14; 
Bates  v.  Moore,  2  Bailey,  614;  Railway  Co.  v.  Wood,  88  Tex.  191;  Reed  v. 
Gold,  102  Va.  37;  McClellan  t>.  Sanford,  26  Wis.  595;  Grace  v.  Lunch,  80 
Wis.  166.  But  see  contra,  Warner  v.  Texas  &  Pacific  Ry.  Co.,  54  Fed.  Rep. 
922  (see  s.  c.  164  U.  S.  418)  ;  Jackson  Iron  Co.  v.  Negaunee  Co.,  65  Fed. 
Rep.  298;  Patten  v.  Hicks,  43  Cal.  509;  Montague  r.  Garnett,  3  Bush, 
297;  Marcy  v.  Marcy,  9  Allen,  8;  Frary  v.  Sterling,  99  Mass.  461;  Kelley 
v.  Thompson,  175  Masjr.  427;  Whipple  v.  Parker,  29  Mich.  369;  Dietrich 
v.  Hoefelmeir,  128  Mich.  145;  Buckley  t'.  Buckley,  9  Nev.  373;  Emery  v. 
Smith,  46  N.  H.  151;  Broadwell  v.  Getman,  2  Denio,  87;  Reinheimer  v. 
Carter,  31  Ohio  St.  579,  587,  58;  Pierce  v.  Payne,  28  Vt.  34;  Parks  v.  Francis, 
50  Vt.   626. 

But  where  a  plaintiff  who  has  thus  performed,  is  not  allowed  to  sue  on  the 
contract,  he  can  recover  on  a  quantum  meruit,  or  quantum  valebat  if  the  per- 
formance of  the  contract  has  inured  to  the  defendant's  benefit,  so  that  in  the 
absence  of  an  express  promise  of  compensation,  one  would  have  been  implied. 
St.  Louis  Hay  Co.  v.  United  States,  191  U.  S.  159,  164;  Bacon  v.  Parker,  137 
Mass.  309,   310. 

In  Sheehy  v.  Adarene,  41  Vt.  541,  it  was  held  that  a  promise  to  be 
performed  within  a  year,  made  in  consideration  of  one  not  to  be  performed 
within   a  year,  is  not  within  the  statute. 

19  Scribner  v.  Flagg  Mfg.  Co.,  175  Mass.  536.  But  see  Packet  Co.  v.  Sickles, 
5  Wall.  580;  Buhl  v.  Stephens,  84  Fed.  Rep.  922;  Insurance  Co.  r.  IrHand, 
9  Kan.  App.  644;  Trustees  r.  Insurance  Company,  19  N.  Y.  305,  28  \T  y' 
153. 

It  has  even  been  held  that  an  agreement  to  support  a  minor,  until  he 
reaches  a  specified  age  is  not  within  the  statute.  Wootdridge  v.  Stern,  42  Fed. 
Rep.  311:  White  v.  Murtland,  71  111.  250;  Peters  v.  Westborough,  19  Pick. 
364;  McKinney  v.  McCloskey.  8  Daly,  368,  76  N.  Y.  594;  Taylor  v.  Deseve,  81 
Tex.  264.  See  also  Wiggins  r.  Keizer.  6  Ind.  252 ;  Hollis  r.  Stowers,  83  Ky 
"44;  Ellicott  v.  Turner,  4  Md.  476;  McLees  v.  Hale,  10  Wend.  426;  Shahan 
r.  Swan,  48  Ohio  St.  25.  But  see  contra,  Goodrich  v.  Johnson,  66  Ind  258  ■ 
Shute  v.  Dorr,  5  Wend.  204;  Jones  v.  Hay,  52  Barb.  501. 

If   such   a   contract   is  not  within  the   statute   it  seems  hard   to   suggest 
anv  personal  contract  that  is.     The  contract  fixes  a  definite  term  of  more 
12 


178  FORM    OF    CONTRACT. 

Section  17.  The  seventeenth  section  of  the  statute  (sixteenth  in  the 
Eevised  Statutes)  (a)  was  exended  by  Lord  Tenterden's  Act,  9  Geo. 
4,  c.  14,  s.  7,  so  as  to  include  all  executory  sales  of  goods  of  the 
value  of  10Z.  and  upwards,  whether  the  goods  be  in  existence  or  not 
at  the  time  of  the  contract.  In  England  these  enactments  are  super- 
seded and  consolidated  by  the  Sale  of  Goods  Act,  1893  (6).  We  will 
here  only  refer  very  briefly  to  the  question  of  what  is  a  sufficient 
memorandum  of  a  contract,  as  to  which  the  decisions  on  the  Statute 
of  Frauds  remain  applicable. 

The  "  note  or  memorandum."  There  is  a  curious  difference  in  the 
judicial  interpretation  of  the  "  agreement "  of  which  a  memorandum 
or  note  is  required  by  s.  4,  and  the  "  bargain  "  of  which  a  note  or 
memorandum  was  required  by  s.  17.  The  "  agreement "  of  s.  4 
includes  the  consideration  of  the  contract,  so  that  a  writing  which 
omits  to  mention  the  consideration  does  not  satisfy  the  words  of  that 
section:20  but  the  "bargain  "  of  s.  17  includes  the  price  of  the  goods 
1 63  ]  as  a  material  term  *only  where  it  has  been  specifically  agreed 

(a)   The  difference  arises  from  the  Sale,   and  Mr.   Chalmers'  ed.   of  the 

preamble    and    the   enacting    part    of  Sale  of  Goods  Act,   1893    (1894).     A 

s.    13    being    separately   numbered    as  recent    case    of    some    importance    on 

13    and    14    in   other   editions.      The  acceptance  is  Taylor  v.  Smith,  C.  A. 

section  is  commented  on  in  detail  in  [1893]  2  Q.  B.  65,  61  L.  J.  Q.  B.  331. 

Blackburn     on     Sale,     Benjamin     on  (6)  56  &  57  Vict.  c.  71,  s.  4. 

than  a  year.  The  reason  given  for.  holding  the  contract  not  within  the 
statute,  that  the  death  of  the  minor  will  discharge  the  obligation,  holds 
equally  good  of  a,  contract  to  serve  for  any  fixed  period  longer  than  a 
year,  yet  such  a  contract  is  held  to  be  within  the  statute.  Comes  v.  Lam- 
son,  16  Conn.  246;  Kelly  v.  Terrell,  26  Ga.  551;  Tuttle  v.  Swett,  31  Me. 
555;  Hearne  v.  Chadbourne,  65  Me.  302;  Bernier  v.  Cabot  Mfg.  Co.,  71 
Me.  506;  Hill  v.  Hooper,  1  Gray,  131;  Freeman  v.  Foss,  145  Mass.  361; 
Pitcher  v.  Wilson,  5  Mo.  46;  Biest  r.  Ver  Steeg  Shoe  Company,  (Mo.  App.) 
70  S.  W.  Rep.  1081;  Kansas  City  R.  E.  Co.  v.  Conlee,  43  Neb.  121;  MeElroy 
r.  Ludlum,  32  N.  J.  Eq.  828;  Townsend  v  Minford,  48  Hun,  617;  Hill- 
house  v.  Jennings,  60  S.  C.  373;  Hinckley  v.  Southgate,  11  Vt.  428;  Lee's 
Adm.  v.  Hill,  87  Va.  497;  Wilhelm  v.  Hardman,  13  Md.  140.  See  also 
Harris  t.  Porter,  2  Harr.  27;  Doyle  v.  Dixon,  97  Mass.  208. 

As  to  whether  a  contract  for  a  year's  service  to  begin  the  following 
day  is  within  the  statute  see  Dollar  v.  Parkington,  84  L.  T.  470;  Billing- 
ton  v.  Cahill,  51  Hun,  132;  also  Sprague  v.  Foster,  48  111.  App.  140;  Shipley 
r.  Patton,  21  Ind.  169;  Aiken  v.  Nogle,  47  Kan.  96;  Sanborn  v.  Fireman's 
Ins.  Co.,  16  Gray,  448. 

An  agreement  to  marry  which  is  by  its  terms  not  to  be  performed  within 
a  year  has  been  generally  held  within  the  statute.  Ullman  v.  Meyer,  10 
Fed.  Eep.  241;  Paris  V.  Strong,  51  Ind.  339;  Nichols  v.  Weaver,  7  Kan. 
373;  Barge  v.  Haslam,  63  Neb.  296;  Derby  V,  Phelps,  2  N.  H.  515.  But 
see  contra,  Blackburn  v.  Mann,  85  111.  222;  Lewis  r.  Tapman,  90  Md.  294; 
Brick  v.   Gannar,   36   Hun,   52. 

20  The  rule  upon  this  point  differs  in  the  various  States.  See  Browne  on 
Statute  of  Frauds,  §  390  et  seg.  See  also  Reid  v.  Diamond  Glass  Co.,  85  Fed. 
Rep.  193;  Haves  r.  Jackson,  159  Mass.  451;  Ruziecka  v.  Hotovy,  (Neb.)  101 
N.  W.  Rep.  328. 


STATUTE    OF   FRAUDS.  179 

upon  (c).21  So  far  as  regards  guaranties,  however,  this  construc- 
tion of  s.  4  having  been  found  inconvenient  is  excluded  by  the  Mer- 
cantile Law  Amendment  Act,  1856,  19  &  20  Vict.  c.  97,  s.  3,  which 
makes  it  no  longer  necessary  that  the  consideration  for  a  "  special 
promise  to  answer  for  the  debt  default  or  miscarriage  of  another 
person"  should  appear  in  writing  or  by  necessary  inference  from  a 
written  document  (d).22 

The  note  or  memorandum  under  the  4th  as  well  as  the  17th  sec- 
tion (or  Sale  of  Goods  Act)  must  show  what  is  the  contract  and 
who  are  the  contracting  parties  (e),23  but  it  need  be  signed  only  by 
the  party  to  be  charged,  whether  under  the  4th  or  the  17th  section, 
and  indeed  it  need  not  be  signed  in  the  common  meaning  of  the 
word,  for  the  party's  name  inserted  by  his  authority  in  the  body  or 

(c)  Hoadly  v.  HcLaine  (1834)  10  L.  J.  Ch.  10;  Catling  v.  King  (1877) 
Bing.  482,  38  R.  R.  510.  5    Ch.   Div.    660,    46   L.   J.   Ch.    384; 

(d)  See  also  an  article  by  the  late  Jarrett  v.  Hunter  (1886)  34  Ch.  D. 
Sir  James  Stephen  and  the  present  182;  Coombs  v.  Wilkes  [1891]  3  Ch. 
writer  in  the  Law  Quarterly  Review,  77,  61  L.  J.  Ch.  42;  Filby  v.  Hounsell 
i,  1,  and  the  notes  to  Birkmyr  v.  [1896]  2  Ch.  737,  65  L.  J.  Ch.  852 
Darnell  (1705)  and  Wain  v.  Warl-  ( name  of  agent  for  undisclosed  vendor 
ters  (1804)  7  R.  R.  645,  in  2  Sm.  sufficient);  Carr  v.  Lynch  [1900]  1 
L.  C.  266.  Ch.  613,  69  L.  J.  Ch.  345    (reference 

(e)  Williams  v.  Byrnes  (1863)  1  to  payment  made  by  purchaser  with- 
Moo.  P.  C.  N.  S.  154;  Newell  v.  out  name).  As  to  what  is  sufficient 
Radford  (1867)  L.  R.  3  C.  P.  52,  37  description  of  the  property  sold  under 
L.  J.  C.  P.  1;  Williams  v.  Jordan  ■&.  4,  Shardloio  v.  Cotterell  (1881)  20 
(1877)  6  Ch.  D.  517,  46  L.  J.  Ch.  Ch.  Div.  90,  51  L.  J.  Ch.  353;  Plant 
681  ;  and  as  to  sufficiency  of  descrip-  v.  Bourne  [1897]  2  Ch.  281,  66  L.  J. 
tion  otherwise  than  by  name,  Rossiter  Ch.  643,  C.  A. 

v.  Miller  (1878)   3  App.  Ca.  1124,  48 

21  See  Browne  on  the  Statute  of  Frauds,  §  376  b  el  seq.  Turner  v.  Lorillard 
Co.,  100  Ga.  645 ;  Hanson  i:  Marsh,  40  Minn.  1 ;  Kelly  r.  Thuey,  143  Mo.  435 ; 
Hall  v.  Mesenheimer,   (N.  C.)   49  S.  E.  Rep.  104. 

22  See  Browne  on  the  Statute  of  Frauds,  §  386  et  seq. 

23  Grafton  v.  Cummings,  99  U.  S.  100;  Nichols  v.  Johnson,  10  Conn.  192; 
Sherburne  i:  Shaw,  1  N.  H.  157;  Brown  v.  Whipple,  58  N.  H.  229;  Calkins 
V.  Falk,  1  Abb.  App.  Dec.  291;  Mayer  r.  Adrian,  77  ST.  C.  83.  The  memo- 
randum must  show  not  only  who  are  the  contracting  parties,  but  also 
which  is  the  promisor  and  which  the  promisee.  O'Sullivan  v.  Overton,  56 
Conn.  102;  Oglesby  Co.  V.  Williams,  112  Ga.  359;  Sanborn  v.  Flagler,  9 
Allen,  474,  476;  McGovern  v.  Hern,  153  Mass.  308;  Lewis  r.  Wood,  153 
Mass.  321;  Frank  v.  Eltingham,  65  Miss.  281;  Bailey  i\  Ogden,  3  Johns. 
399;  Mentz  v.  Newwitter,  122  N.  Y.  491;  Ward  v.  Hasbrouck,  169  N.  Y. 
407.  But  see  Newell  v.  Radford,  L.  R.  3  C.  P.  52;  Salmon  Falls  Mfg.  Co. 
v.  Goddard,  14  How.  446.  As  to  sufficiency  of  description  otherwise  than 
by  name.  Grafton  r.  Cummings,  99  U.  S.  100;  Ryan.i'.  "United  States,  136 
U.  S.  68;  Haskell  r.  Tukesbury,  92  Me.  551;  Gowers  v.  Klaus,  101  Mass. 
449;  Doherty  v.  Hill,  144  Mass.  465;  Ryder  v.  Loomis,  161  Mass.  161; 
Clampet  r.  Bells,  39  Minn.  272;  Champion  r.  Genin,  51  N.  J.  Eq.  38; 
Walsh  r.  Barton,  24  Ohio  St.  28;  Rineer  r.  Collins,  156  Pa.  342;  Cunningham 
v.  Neeld,  198  Pa.  41,  45;  Seymour  v.  Cushway,  100  Wis.  580. 


180  FORM    OF    CONTEACT. 

at  the  head  of  the  memorandum  may  suffice  (/).24  It  is  no  answer 
to  an  action  on  a  contract  evidenced  by  the  defendant's  signature  to 
say  that  the  plaintiff  has  not  signed  and  therefore  could  not  be  sued,25 
and  if  a  written  and  duly  signed  proposal  is  accepted  by  word  of 

(f)  Evans  v.  Hoare  [1892]  1  Q.  B.  agent  for  a  purchaser,  and  its  dura- 
593,  61  L.  J.  Q.  B.  470.  As  to  the  tion,  see  Bell  v.  Balls  [1897]  1  Ch. 
authority  of  an  auctioneer  to  sign  as       663,  66  L.  J.  Ch.  397. 

24  The  signature  required  by  the  statute  need  not  be  at  the  end  of  the 
memorandum.  Lemayne  v.  Stanley,  3  Lev.  1 ;  Knight  v.  Crockford,  1  Esp. 
188;  Holmes  v.  Mackrell,  3  C.  B.  N.  s.  789;  Barry  v.  Coombe,  1  Pet.  650; 
Nichols  v.  Johnson,  10  Conn.  192;  McConnell  i:  Brillhart,  17  111.  354;  Drury 
v.  Young,  58  Md.  546;  Penniman  v.  Hartshorn,  13  Mass.  87;  Hawkins  v. 
Chace,  19  Pick.  502;  Traylor  v.  Cabanne,  8  Mo.  App.  131;  Merritt  v.  Clason, 
12  Johns.  102;  Tingley  v.  Bellingham  Co.,  5  Wash.  644. 

In  John  Griffiths  Cycle  Corp.  v.  Humber  &  Co.,  [1899]  2  Q.  B.  414,  418, 
A.  L.  Smith,  L. J.,  said :  "  It  is  also  undoubted  law  that  a  signature  to 
a,  document  which  contains  the  terms  of  a  contract  is  available  for  the 
purpose  of  satisfying  sec.  4  of  the  statute,  though  put  alio  intuitu  and  not 
in  order  to  attest  or  verify  the  contract.  Jones  v.  Victoria  Dock  Co.,  2 
Q.  B.  D.  314."  Cp.  Hucklesby  v.  Hook,  82  L.  T.  117.  See  Boardman  v. 
Spooner,  13  Allen,  353,  358. 

But  under  the  New  York  statute  as  amended  requiring  the  memorandum 
to  be  "  subscribed,"  it  is  held  that  the  signature  must  be  at  the  end.  Davis 
t;.  Shields,  26  Wend.  341;  James  v.  Patten,  6  N.  Y.  9;  Doughty  v.  Man- 
hattan Brass  Co.,  101  N.  Y.  644.     See  also  Coon  v.  Bigden,  4  Colo.  275. 

Nor  need  the  writing  have  been  made  for  or  given  to  the  plaintiff.  Moore 
v.  Hart.  1  Vern.  110;  Ayliffe  v.  Tracy,  2  P.  Wms.  65;  Gibson  v.  Holland, 
L.  B.  1  C.  P.  1;  Owen  v.  Thomas,  3  Myl.  &  K.  353;  Moss  v.  Atkinson, 
44  Cal.  3;  Spangler  v.  Danforth,  65  111.  152;  Wood  v.  Davis,  82  111.  311; 
Miller  v.  Eailroad  Co.,  58  Kan.  189;  Fugate  v.  Hansford's  Ex.,  3  Litt. 
262;  Kleeman  v.  Collins,  9  Bush  460;  Moore  v.  Mountcastle,  61  Mo.  424; 
Cunningham  c.  Williams,  43  Mo.  App.  629;  Cash  v.  Clark,  61  Mo.  App.  636; 
Peabody  v.  Speyers,  56  N.  Y.  230;  Mizell  r.  Burnett,  4  Jones  L.  (N.  C.)  249; 
Lee  v.  "Cherry,  85  Tenn.  707.  But  see  First  Nat.  Bank  of  Plattsburgh  r. 
Sowles,  46  Fed.  Eep.  731;  Morrow  v.  Moore,  98  Me.  373;  Kinloch  v.  Savage, 
Speers  Eq.  464;  Buck  r.  Pickwell,  27  Vt.  157,  167.  See  also  Eohrer  v.  Muller, 
22  Wash.  151. 

Nor  is  the  writing  insufficient  because  it  is  a  repudiation  of  the  bar- 
gain. Wilkinson  v.  Evans,  L.  E.  1  C.  P.  407;  Buxton  r.  Eust,  L.  E.  7  Ex. 
279;  Drurv  c  Young,  58  Md.  546;  Heideman  r.  Wolfstein,  12  Mo.  App. 
366;  Cash"  r.  Clark,  61  Mo.  App.  636;  Louisville  Varnish  Co.  v.  Lorick, 
29  S.  C.  533.     See  Westmoreland  v.  Carson,  76  Tex.  619. 

The  statutes  in  some  jurisdictions,  however,  require  the  "contract"  to  be 
in  writing.  See  Montauk  Assoc,  v.  Daly,  62  N.  Y.  App.  Div.  101 ;  Sowards 
v.   Moss.    58   Neb.    119,   59   Neb.   71. 

25  Troy  Fertilizer  Co.  v.  Logan,  96  Ala.  619;  Luckhart  v.  Ogden,  30  Cal.  547; 
Hodges  r.  Kowing,  58  Conn.  12;  Smith  v.  Jones,  60  Ga.  338;  First  Church  r 
Swanson,  100  111.  App.  39 ;  Newby  v.  Eogers,  40  Ind.  9 ;  Eoss  v.  Allen,  45  Kan. 
231;  Williams  i.  Eobinson,  73  Me.  186,  194;  Slater  v.  Smith,  117  Mass.  96; 
Harriman  r.  Tyndale,  184  Mass.  534;  Bowers  r.  Whitney,  88  Minn.  168;  Mar- 
queze  r.  Caldwell,  48  Miss.  23;  Moore  r.  Thompson,  93  Mo.  App.  336;  Gartrell 
r.  Stafford,  12  Neb.  545;  Houghwout  r.  Boisaubin.  IS  N.  J.  Eq.  315;  Dvkers 
r.  Townsend,  24  N.  Y.  57;  Justice  r.  Lang,  42  N.  Y.  493,  52  N.  Y.  323; 
Everhart  r.  Dolph,  133  Pa.  628;  Thornton  v.  Kellv,  11  E.  I.  498;  McPherson 
v.  Fargo.  10  S.  Dak.  fill;  Lee  r.  Cherry,  85  Tenn.  707;  Dver  r.  Winston, 
(Tex.  Civ.  App.)  77  S.  W.  Eep.  227;  Monongah  Coal  Co.  v.  Fleming,  42  W.  Va. 
538;  Lowbcr  r.  Connit,  36  Wis.  176. 


STATUTE    OF   FRAUDS.  181 

mouth  the  contract  itself  is  completed  by  such  acceptance  and  the 
writing  as  a  *  sufficient  memorandum  of  it  (g).26  It  has  also  [164 
been  decided  that  an  acknowledgment  of  a  signature  previously  made 
by  way  of  proposal,  the  document  having  been  altered  in  the  mean- 
time and  the  party  having  assented  to  the  alterations,  is  equivalent 
to  an  actual  signature  of  the  document  as  finally  settled  and  as  the 
record  of  the  concluded  contract.  The  signature  contemplated  by 
the  statute  is  not  the  mere  act  of  writing,  but  the  writing  coupled 
with  the  party's  assent  to  it  as  a  signature  to  the  contract:  and  the 
effect  of  the  parol  evidence  in  such  a  case  is  not  to  alter  an  agree- 
ment made  between  the  parties  but  to  show  what  the  condition  of 
the  document  was  when  it  became  an  agreement  between  them  (h). 
Moreover  it  matters  not  for  what  purpose  the  signature  is  added, 
since  it  is  required  only  as  evidence,  not  as  belonging  to  the  sub- 
stance of  the  contract.  It  is  enough  that  the  signature  attests  the 
document  as  that  which  contains  the  terms  of  the  contract  (i).27 
Nor  need  the  particulars  required  to  make  a  complete  memorandum 
be  all  contained  in  one  document:  the  signed  document  may  incor- 
porate others  by  reference,  but  the  reference  must  appear  from  the 
writing  itself  and  not  have  to  be  made  out  by  oral  evidence:  for  in 
that  case  there  would  be  no  record  of  a  contract  in  writing,  but  only 

(g)  Smith  v.  Neale  (1857)   2  C.  B.  (h)  Stewart  v.  Eddowes   (1874)  L. 

N.  S.  67,  26  L.  J.  C.  P.  143;   Reuss  R.  9  C.  P.  311,  43  L.  J.  C.  P.  204. 

v.   Picksley    (1866)    in  Ex.  Ch.  L.  R.  (i)  Jones  v.  Victoria  Graving  Dock 

1   Ex.   342,   35   L.  J.   Ex.   218.     And  Co.   (1877)   2  Q.  B.  Div.*314,  323,  46 

where  alternative  offers  are  made  by  L.  J.  Q.  B.  219.     It  may  be  doubted 

a  signed  writing,  parol  acceptance  of  whether  this  view  of  the  statute  does 

one   alternative   has   been   held   suffi-  not    tend    to    thrust    contracts    upon 

cient:   Lever  v.  Koffler   [1901]   1   Ch.  parties   by.  surprise  and  contrary  to 

543,  70  L.  J.  Ch.  395.  their  real  intention. 

26  "  A  written  offer  accepted  by  parol  is  a  sufficient  memorandum  to  satisfy 
the  Statute  of  Frauds."  Lydig  v.  Braman,  177  Mass.  212,  218;  Hoadly 
v.  M'Laine,  10  Bing.  482;  Stewart  v.  Eddowes,  L.  R.  9  C.  P.  311;  Vassault 
i\  Edwards,  43  Cal.  458;  Gradle  v.  Warner,  140  111.  123;  Howe  v.  Watson, 
179  Mass.  30;  Austrian  v.  Springer,  94  Mich.  343;  Kessler  v.  Smith, 
42  Minn.  494 ;  Waul  v.  Kirkman,  27  Miss.  823 ;  Peevey  r.  Haughton,  72  Miss. 
918;  Lash  r.  Parlin,  78  Mo.  391;  Argus  Co.  v.  Albany,  55  N.  Y.  495;  Mason  v. 
Decker,  72  N.  Y.  595;  Raubitchek  v.  Blank,  80  N.  Y.  478;  Durham  Co.  v. 
Guthrie,  116  N".  C.  381;  Himrod  Co.  p.  Cleveland  Co.,  22  Ohio  St.  451;  Thayer 
v.  Luce,  22  Ohio  St.  62;  Case  Co.  v.  Smith,  16  Oreg.  381;  Lee  v.  Cherry,  85 
Tenn.  707 ;  Lowber  v.  Connit,  36  Wis.  176 ;  Hawkinson  r.  Harmon,  69  Wis. 
551,  ace.  But  see  contra,  Banks  r.  Harris  Mfg.  Co.,  20  Fed.  Rep.  667;  Haw  v. 
American  Wire  Nail  Co.,  89  la.  745;  American  Oak  Leather  Co.  v.  Porter,  94 
la.  117;  Newlin  v.  Hoyt,  91  Minn.  409;  Montauk  Assoc,  v.  Daly,  62  N.  Y.  App. 
Div.  101.  171  N.  Y.  659;  Atlee  r.  Bartholomew,  69  Wis.  43.  In  all  the  cases 
last  cited  except  Banks  ;\  Harris  Mfg.  Co.  the  statute  under  construction  re- 
quired the  "contract"  to  be  in  writing. 

27  See  supra,  p.  184,  n.  24. 


182  FOTCM    OF    CONTRACT. 

disjointed  parts  of  a  record  pieced  out  with  unwritten  evidence  (k).28 
The  reference,  however,  need  not  be  in  express  terms.  It  is  enough 
if  it  appears  on  the  documents  that  they  are  parts  of  the  same  agree- 
165]  ment  (I).  One  *who  is  the  agent  of  one  party  only  in  the 
transaction  may  be  also  the  agent  of  the  other  party  for  the  purpose 
of  signature  (m).29  The  memorandum  must  exist  at  the  time  of 
action  brought  (n).30 

Deeds  not  within  the  statute.  It  seems  that  the  Statute  of  Frauds 
does  not  apply  to  deeds.31  Signature  is  unnecessary  for  the  validity 
of  a  deed  at  common  law,  and  it  is  not  likely  that  the  Legislature 
meant  to  require  signature  where  the  higher  solemnity  of  sealing 
(as  it  is  in  a  legal  point  of  view)  is  already  present  (o).  But  as  in 
practice  deeds  are  always  signed  as  well  as  sealed,  and  distinctive 
seals  are  hardly  ever  used  except  by  corporations,  the  absence  of  a 
signature  would  nowadays  add  considerably  to  the  difficulty  of  sup- 
porting a  deed  impeached  on  any  other  ground. 

Bills  of  Sale  Acts.  The  law  as  to  the  sale  and  disposition  of  per- 
sonal chattels  is  affected,  in  addition  to  the  Statute  of  Frauds,  by  the 

{k)  See  Peirce  v.  Corf  (1874)  L.  R.  may   be   taken   as    one   document   to 

9  Q.  B.  210,  43  L.  J.  Q.  B.  52;  Kron-  identify  addressee). 
heim  v.  Johnson   (1877)    7  Ch.  D.  60,  (m)    As   to  this,   Murphy  v.  Boese 

47  L.  J.   Ch.   132;   Leather  Cloth  Co.  (1875)    L.    R.    10    Ex.    126,    44   L.   J. 

v.  Bieronimus   (1875)   L.  R.  10  Q.  B.  Ex.  40. 
140,  44  L.  J.  Q.  B.  54.  (n)    Lucas  v.  Dixon    (1889)    22  Q. 

(I)    Studtis  v.    Watson    (1884)    28  B.  Div.  357,  58  L.  J.  Q.  B.  161    (de- 

Ch.  D.  305;   Wylson  v.  Dunn   (1887)  fendant's    affidavit    on    interlocutory 

34    Ch.    D.    569;    Oliver    v.    Hunting  proceedings    in    the    action    will    not 

(1890)    44  Ch.  D.  205,  59  L.  J.   Ch.  do). 

255,  where  the  judgment  states  that  (o)    Cherry   v.    Heming    (1849)    4 

the  old  rule  was  different;   Pearce  v.  Ex.  631,  19  L.  J.  Ex.  63.     Blackstone 

Gardner  [1897]   1  Q.  B.  688,  66  L.  J.  (2.    306,    and    see   note    in    Stephen's 

Q.  B.  457,  C.  A.    (envelope  and  letter  Comm.,   1.  510,  6th  ed.)    assumed  sig- 

proved   to   have  been   enclosed   in   it  nature  to  be  necessary. 

2*  Breckinridge  r.  Crocker,  78  Cal.  529;  Brewer  r.  Horst-Lachman  Co., 
127  Cal.  643;  Ridgway  r,  Ingram,  50  Ind.  145;  Morton  v.  Dean,  13 
Met.  385;  O'Donnell  r.  Leeman,  43  Me.  158;  Frank  v.  Miller.  38  Md.  450: 
Mayer  r.  Adrian,  77  N.  C.  83;  Brown  i.  Whipple,  58  N.  H.  229;  Tice  r. 
Freeman,  30  Minn.  389;  North  r.  Mendel,  73  Ga.  400;  Everman  r.  Herndon, 
71  Miss.  823;  Thayer  r.  Luce,  22  Ohio  St.  62,  74;  Johnson  r.  Buck,  35  N.  J.  L. 
338;  Darling  r.  dimming,  92  Va.  521.  Cp.  Beekwith  c.  Talbott.  95  U.  S.  289; 
Ryan  v.  United  States,  136  U.  S.  68;  Bayne  v.  Wiggins,  139  V.  S.  210;  White 
r.  Breen,  106  Ala.  159;  Strouse  v.  Elting.  110  Ala.  132,  140:  Lerned  r.  Wanne- 
macher,  9  Allen,  412;  Louisville  Asphalt  Varnish  Co.  r.  Loriok,  29  S.  C.  533. 

29  Sims  r.  Landray,  R8941  2  Ch.  318;  Batturs  r.  Sellers,  5  H.  &  J.  117. 
See  Browne  on  the  Statute  of  Frauds,  §  368,  et  seq.  But  see  Wilson  i\  Lewis- 
ton   Mill   Co.,    150    N.    V.    314. 

so  But  see  contra.  Remington  !'.  Linthicum,  14  Pet.  84. 

31  Parks  r.  Hazlerigg,  7  Blackf.  536;  contra.  Miller  v.  Ruble,  107  Pa.  395. 


STATUTORY   FORMS.  183 

Bills  of  Sale  Acts,  1878  and  1882,  with  minor  amending  Acts  of 
1890  and  1891 ;  but  the  subject  is  too  special  to  be  entered  on  here.32 

Transfers  of  ships  and  copyright.  Transfers  of  British  ships  are  re- 
quired by  the  Merchant  Shipping  Act,  1894  (s.  24  sqq.)  to  be  in  the 
form  thereby  prescribed.33  Assignments  of  copyright  are  directly  or 
indirectly  required  by  the  various  statutes  on  that  subject  to  be  in  writ- 
,  ing  (p),34  and  in  the  case  of  sculpture  by  deed  attested  by  two  wit- 
nesses (54  Geo.  3,  c.  56,  s.  4).  But  an  *executory  agreement  [166 
for  an  assignment  of  copyright  apparently  need  not  be  in  writing. 
And  informal  executory  agreements  for  the  sale  or  mortgage  of  ships 
seem  now  to  be  valid  as  between  the  parties,  though  under  earlier  Acts 
it  was  otherwise,  and  it  is  doubtful  whether  at  common  law  a  sale 
without  writing  would  pass  the  property  (q). 

Sale  of  horses  in  market  overt.  There  is  "An  Act  to  avoid  Horse-steal- 
ing "  of  31  Bliz.  c.  12,  which  prescribes  sundry  forms  and  conditions 
to  be  observed  on  sales  of  horses  at  fairs  and  markets :  and  "  every 
sale  gift  exchange  or  other  putting  away  of  any  horse  mare  gelding  colt 
or  filly,  in  fair  or  market  not  used  in  all  points  according  to  the  true 
meaning  aforesaid  shall  be  void"(r).  The  earlier  Act  on  the  same 
subject,  2  &  3  Phil.  &  Mary,  c.  7,  only  deprives  the  buyer  of  the 
benefit  of  the  peculiar  rule  of  the  common  law  touching  sales  in 
market  overt.  These  Acts  are  not  touched  by  the  Sale  of  Goods 
Act,  1893:  see  s.  22. 

B.  Marine  Insurances. 

By  30  Vict.  e.  23,  s.  7,  marine  insurances  must  (with  the  exception 
of  insurances  against  owner's  liability  for  certain  accidents)  be  ex- 
pressed in  a  policy. 

But  the  words  are  not  so  strict  as  those  of  the  repealed  statutes 
on  the  same  subject,  and  the  preliminary  "  slip,"  which  in  practice 
though' not  in  law  is  treated  as  the  real  contract,  has  for  many  pur- 
poses been  recognized  by  the  later  decisions.     These  will  be  spoken 

(p)    Leyland  v.  Stewart    (1876)    4  (q)    Maude   and   Pollock   on   Mer- 

Ch.  D.  419,  46  L,  J.  Ch.  103;  and  as  chant  Shipping,  4th  ed.  pp.  42,  55,  56. 

to  designs,  Jeitiit  v.  Eckhardt  (1878)  And  see  the  Merchant  Shipping  Act, 

8  Ch.  D.  404.     The  confusion  of  our  1894,  s.  57. 

copyright  statutes  is  still  a  disgrace  (r)   Moran  \\  Pitt   (1873)   42  L.  J. 

to  British  legislation.  Q.  B.  47. 

32  Acts    requiring   record    of    chattel    mortgages    and,    in    many    States,    of 
conditional  sales,  are  in  force  in  this  country. 

33  See  §§  4170,  4192,  U.  S.  Comp.  Stat. 

34  As  to  assignments  of   copyrights   and  patents,   see   respectively   §   4955, 
and  §  4898,  U.  S.  Comp.  Stat. 


184  FORM    OF    CONTRACT. 

of  in  another  place  under  the  head  of  Agreements  of  Imperfect 
Obligation   (Chap.  XIII.). 

C.  Transfer  of  Shares. 

There  is  no  general  principle  or  provision  applicable  to  the  trans- 
167]  fer  of  shares  in  all  companies.  But  the  general  *or  special 
Acts  of  Parliament  governing  classes  of  companies  or  particular 
companies  always  or  almost  always  prescribe  forms  of  transfer.  An 
executory  contract  for  the  sale  of  shares  need  not  as  a  rule  be  in 
writing. 

D.  Acknowledgment  of  barred  debts. 

The  operation  of  the  Statute  of  Limitation,  21  Jac.  1,  c.  16,  in 
taking  away  the  remedy  for  a  debt  may  be  excluded  by  a  subse- 
quent promise  to  pay  it,  or  an  acknowledgment  from  which  such 
promise  can  be  implied.  The  promise  or  acknowledgment  if  express 
must  be  in  writing  and  signed  by  the  debtor  (9  Geo.  4,  c.  14,  s.  1) 
or  his  agent  duly  authorized  (19  &  20  Vict.  e.  97,  s.  13).  We  say 
more  of  this  Under  the  head  of  Agreements  of  Imperfect  Obligation, 
Chap.  XIII.  below. 


PAGE. 

PAGE. 

185 

Performance     of     obligation     to 

180 

third  person,                                    206 

187 

Consideration    for    discharge    of 

189 

contract,                                            210 

189 

For  variation  of  contract,                212 

192 

Forbearance  to  sue,                            212 

193 

Compromises,                                       214 

199 

Treatment     of     gratuitous     con- 

i, 201 

tracts  under  seal  in  equity,         216 

Imperfect  gifts,                                 218 

CONSIDERATION.  185 

♦CHAPTER  IV.  [167 

Consideration. 


Definition  of  consideration, 
Gratuitous  promises, 
Early  history  of  the  doctrine, 
Assumpsit, 

Causa  in  Roman  law, 
Benefit  to  promisor, 
Adequacy  of  consideration, 
Past  consideration  ineffectual, 
Acknowledgment  of  barred  debts,  201 
Promises   to   perform   duties    al- 
ready existing,  203 

Definition  of  consideration.  The  following  description  of  Considera- 
tion was  given  by  the  Exchequer  Chamber  in  1875:  "A  valuable 
consideration,  in  the  sense  of  the  law,  may  consist  either  in  some 
right,  interest,  profit,  or  benefit  accruing  to  the  one  party,  or  some 
forbearance,  detriment,  loss,  or  responsibility,  given,  suffered,  or 
undertaken  by  the  other"  (a).1 

The  second  branch  of  this  judicial  description  is  really  the  more 
Important  one.  Consideration  means  not  so  much  that  one  party 
is  profited  as  that  the  other  abandons  some  legal  right  in  the  present, 
or  limits  his  legal  freedom  of  action  in  the  future,  as  an  inducement 
for  the  promise  of  the  first.2  It  does  not  matter  whether  the  party 
accepting  the  consideration  has  any  apparent  benefit  thereby  or  not : 
it  is  enough  that  he  accepts  it,  and  that  the  party  giving  it  does 
thereby  undertake  some  burden,  or  lose  something  which  in  contem- 
plation of  law  may  be  of  value. 

An  act  or  forbearance  of  the  one  party,  or  the  promise  thereof,  is 
the  price  for  which  the  promise  of  the  other  is  bought,  and  the 
promise  thus  given  for  value  is  enforceable. 

A  consideration,  properly  speaking,  can  be  given  only  for  a  promise. 

{a)  Currie  v.  Misa-  (1875)  L.  R.  10  Highway  Board  v.   Barrow   Gas   Co. 

Ex.  at  p.   162,  44  L.  J.  Ex.  94;   per  (1874)  L.  R.  10  Q.  B   92,  95,  44  L.  J. 

Cur.    referring   to   Com.   Dig.   Action  Q.  B.   1 ;    and  for  the  historical  dis- 

on    the    Case,    Assumpsit    B.    1 — 15.  tinction  between  debt  and  assumpsit 

Cp.   Evans,   Appendix   to  Pothier   on  in   this   respect,   Langdell,   Summary, 

Obligations,    No.     2;     and    Edgware  §§  64,  65. 

1  Approved  in  Rector  v.  Teed,  120  N.  Y.  583,  586;  Hamer  v.  Sidway,  124 
N.  Y.  538,  545.     See  also  Robinson  v.  Boyd,  60  Ohio  St.  57,  63. 

2  Approved  in  German  v.  Gilbert,  83  Mo.  App.  411;  Hamer  v.  Sidway,  124 
N.  Y.  538;  Ballard  v.  Burton,  64  Vt.  387. 


186  CONSIDERATION. 

Where  performance  on  both  sides  is  simultaneous,  there  may  be  agree- 
1 69  ]  ment  in  the  wider  sense,  but  *there  is  no  obligation  and  no  con- 
tract. It  may  be  amusing  and  not  uninstructive  to  consider  the  dis- 
tinctions to  be  observed  in  the  legal  analysis  of  such  common  deal- 
ings as  being  ferried  across  a  river  and  paying  on  the  other  side, 
buying  a  newspaper  on  a  railway  platform,  obtaining  a  box  of  matches 
from  an  automatic  machine.  The  reader  may  multiply  examples  at 
his  pleasure. 

A  consideration  which  is  itself  a  promise  is  said  to  be  executory. 
A  consideration  which  consists  in  performance  is  said  to  be  executed. 
It  is  important  to  remember  that  in  the  former  case  "  it  is  the 
counter-promise  and  not  the  performance  that  makes  the  considera- 
tion "  (b). 

Consideration  is  that  which  is  actually  given  and  accepted  in  re- 
turn for  the  promise.  Ulterior  motives,  purposes,  or  expectations 
may  be  present,  but  in  a  legal  point  of  view  they  are  indifferent. 
The  party  seeking  to  enforce  a  promise  has  to  show  the  actual  legal 
consideration"  for  it,  and  he  need  not  show  anything  beyond  (c). 

Gratuitous  promises.  An  informal  promise  made  without  a  con- 

sideration, however  strong  may  be  the  motives  or  even  the  moral  duty 
on  which  it  is  founded,  is  not  enforced  by  English  courts  of  justice 
at  all.  Even  a  formal  promise,  that  is  a  promise  made  by  deed,  or 
in  the  proper  technical  language  a  covenant,  is  deprived,  if  gratuitous, 
of  some  of  the  most  effectual  remedies  administered  by  them.  A 
promise  to  contribute  money  to  charitable  purposes  is  a  good  ex- 
ample of  the  class  of  promises  which,  though  they  may  be  laudable 
and  morally  binding,  are  not  contracts  (d).3 

(v)  Hobart  in  Lampleiqh  v.  Brath-  (d)  Cottage  Street  Church  v.  Ken- 
wait   (1616)    1   Sm.  L,  C.' 155.  dall    (1877)    121  Mass.  52S ;  Re  Hud- 

(c)    Thomas   v.    Thomas    (1842)    2  son,    Creed  v.    Henderson    (1885)    54 

Q.   B.   851,    Finch   Sel.   Ca.   263    (see  L.  J.  Ch.  811.     A  contract  may  arise, 

correction  at  p.  281  of,  a  bad  clerical  however,  if  the  subscriber  authorizes 

slip  in  the  original  report).    In  Coles  a   definite   expenditure    which   is    in- 

v.    Pilkington    (1S74)     L.    R.    19    Eq.  curred  in  reliance   on  his   making  it 

174.   44  L.   J.   Ch.  381,  this  case  was  good:    see   Kedar   Nath    Bhattacharji 

strangely  overlooked.  v.  Gorie  Mahomed  (1886)   I.  L.  R.  14 

Cal.  64 ;  qu.  if  right  on  the  facts. 

3  Charitable  subscriptions  anomalously  have  been  held  supported  by  suffi- 
cient  consideration   on  various  grounds   in  this   country:  — 

1.  If  the  work  for  which  the  subscription  was  made  has  been  done,  or 
liability  incurred  in  regard  to  such  work,  on  the  faith  of  the  subscription, 
consideration  is  found  in  that  fact.  Miller  v.  Ballard,  46  111.  377 ;  Trustees 
r.  Garvey,  53  111.  401;  Des  Moines  Univ.  v.  Livingston,  57  la.  307,  05  la. 
202;  McCabe  r.  O'Connor.  60  la.  134;  First  Church  r.  Donnell,  110  la.  5; 
Gittings  i.  Mavhew,  6  Md.  113;  Cottage  St.  Church  r.  Kendall,  121  Mass. 
528;    Sherwin    r.    Fletcher,    168    Mass.  "413;    Albert   Lea    College    r.    Brown, 


HISTORY    OF    CONSIDERATION.  187 

History  of  the  doctrine.  The  early  history  of  the  law  of  Considera- 
tion is  still  somewhat  obscure,  but  some  acquaintance  with  it  is 
neces*sary  for  understanding  the  fluctuations  on  certain  points  [170 

88  Minn.  524,  60  L.  R.  A.  870;  Pitt  v.  Gentle,  49  Mo.  74;  James  r.  Clough, 
25  Mo.  App.  147;  Ohio,  &c.  College  v.  Love's  Ex.,  16  Ohio  St.  20;  Irwin 
v.  Lombard  University,  5  Ohio  St.  9.  Compare  Johnson  v.  Otterbein  Univer- 
sity, 41  Ohio  St.  527;  Hodges  v.  Nalty,  104  Wis.  464.  See  also  Lasar 
v.  Johnson,   125  Cal.  549;   Gatt's  Ex.  v.   Swain,  9  Gratt.  633. 

In  Beatty  v.  Western  College,  177  111.  280,  the  court  enforced  the  promise, 
because  liabilities  had  been  incurred,  but  said  (p.  292),  "The  gift  will 
be  enforced  upon  the  ground  of  estoppel,  and  not  by  reason  of  any  valid 
consideration   in   the   original   undertaking." 

By  the  reasoning  of  these  ■  cases  a  subscription  is  treated  as  an  offer. 
Therefore  until  work  has  been  done  or  liability  incurred  the  subscription 
may  be  revoked  by  death,  insanity,  or  otherwise.  Grand  Lodge  r.  Farnham, 
70  Cal.  158;  Pratt  v.  Baptist  Soc,  93  111.  475;  Beach  v.  First  Church, 
96  111.  177;  Davis  v.  Campbell,  93  la.  524,  532;  Helfenstein's  Est.,  77  Pa. 
328;  First  Church  v.  Gillis,  17  Pa.  Co.  Ct.  614.  See  also  Reimensnyder  v. 
Gans,    110   Pa.    17. 

2.  It  is  held  in  other  jurisdiction  that  the  promise  of  each  subscriber  is 
supported  by  the  promises  of  the  others.  Christian  College  v.  Hendley,  49 
Cal.  347;  Higert  r.  Trustees,  53  Ind.  326;  Petty  v.  Trustees,  95  Ind.  278; 
Allen  i.  Duffle,  43  Mich.  1;  Congregational  Soc.  r.  Perry,  6  N.  H.  164; 
Edinboro  Academy  v.  Robinson,  37  Pa.  210.  See  also  First  Church  v.  Pungs, 
126   Mich.    670;    Homan   v.    Steele,    18   Neb.    652. 

3.  It  has  been  held  that  the  acceptance  of  the  subscription  by  the  bene- 
ficiary or  its  representatives  imports  a  promise  to  apply  the  funds  properly, 
and  this  promise  supports  the  subscribers'  promises.  Barnett  v.  Franklin 
College,  10  Ind.  App.  103;  Collier  v.  Baptist  Soc,  8  B.  Mon.  68;  Trustees 
v.  Fleming,  10  Bush,  234;  Trustees  r.  Haskell,  73  Me.  140;  Helfenstein's 
Est.,  77  Pa.  328,  331;  Trustees  r.  Nelson,  24  Vt.  189. 

4.  The  fact  that  other  subscriptions  have  been  induced  has  been  held  in 
a  few  cases  »  good  consideration.  Hanson  Trustees  c.  Stetson,  5  Pick. 
506;  Watkins  v.  Eames,  9  Cush.  537;  Ives  r.  Sterling,  6  Met.  310  (but  this 
theory  was  discredited  in  Cottage  St.  Church  v.  Kendall,  121  Mass.  528)  ; 
Comstock  v.  Howd,  15  Mich.  237  (but  see  Northern,  &c.  R.  R.  v.  Eslow,  40 
Mich.  222);   Irwin  v.  Lombard  University,  56  Ohio   St.  9. 

Some  support  is  given  to  the  English  view  that  a  charitable  subscription 
is  not  binding  by  Culver  v.  Banning,  19  Minn.  303.  (But  see  Albert  Lea 
College  v.  Brown.  88  Minn.  524)  ;  Twenty-third  St.  Church  v.  Cornell,  117 
N.  Y.  601  (compare  Keuka  College  r.  Ray,  167  N.  Y.  96)  ;  Montpelier 
Seminary  v.  Smith's  Estate,  69  Vt.  382  (compare  Grand  Isle  v.  Kinney,  70 
Vt.  381). 

In  a  few  eases  of  charitable  subscriptions  the  special  fact  shows  that 
the  promise  was  made  for  clearly  good  consideration.  Rogers  v.  Galloway 
College,  64  Ark.  627;  Lasar  v.  Johnson,  125  Cal.  549;  La  Fayette  Cor- 
poration v.   Ryland,   80   Wis.   29. 

Subscriptions  for  business  purposes  are  common,  for  instance  to  induce 
a  manufacturing  company  to  establish  its  plant  in  a  certain  locality, 
and  as  the  object  of  the  subscriber  in  such  cases  is  personal  gain,  con- 
sideration is  generally  contemplated,  and  when  given  the  subscription  is 
rightlv  held  binding.  Richelieu  Hotel  Co.  v.  International  Co.,  140  111.  248 ; 
Fort  Wavne  Co.  r.  Miller,  131  Ind.  499;  Davis  v.  Campbell,  93  la.  524; 
Bryant's  Pond  Co.  v.  Felt,  87  Me.  234;  Hudson  Co.  P.  Tower,  156  Mass.  82. 
161  Mass.  10;  Martin  v.  Meles,  179  Mass.  114;  Bohn  Mfg.  Co.  r.  Lewis,  45 
Minn.  164;  Gibbons  r.  Bente,  51  Minn.  500;  Homan  v.  Steele,  18  Neb.  652; 
Auburn  Works  r.  Shultz,  143  Pa.  256;  Gibbons  r.  Grinsel,  79  Wis.  365; 
Superior  Land  Co.  v.  Bickford,  93  Wis.  220;  Badger  Paper  Co.  v.  Rose,  95 
Wis.  145. 


188  CONSIDERATION. 

which   lasted   well   into   the   nineteenth   century,   and   one   or   two 
anomalies  which  have  survived. 

The  name  of  Consideration  appears  only  about  the  beginning  of 
the  sixteenth  century,  and  we  do  not  know  by  what  steps  it  became 
a  settled  term  of  art.  The  word  seems  to  have  gone  through  the 
following  significations:  first,  contemplation  in  general;  then  de- 
liberate decision  on  a  disputed  question  (hence  the  old  form  of  judg- 
ments in  the  Common  Law  Courts,  "It  is  considered  ")  (e)  ;  then 
the  grounds  as  well  as  the  act  of  deliberation;  and  lastly,  in  par- 
ticular, that  which  induces  a  grant  or  promise.  If  we  wish  to  form 
a  probable  opinion  as  to  the  origin  or  origins  of  this  final  modifica- 
tion, we  must  inquire  how  far  anything  like  the  thing  signified  was 
to  be  found  in  the  old  action  of  debt,  or  was  involved  in  the  neces- 
sary  elements  of  the  new  action  of  assumpsit.  We  must  also  remem- 
ber that  the  demand  was  for  an  extended  remedy  on  business  agree- 
ments, and,  from  the  pleader's  point  of  view,  for  an  action  which 
would  enable  him  to  rescue  an  increasing  and  lucrative  branch  of 
practice  from  the  monopoly  of  ecclesiastical  jurisdiction  in  matters 
of  breach  of  faith  (/),  and  at  least  to  compete  on  equal  terms  with 
the  Court  of  Chancery.  Nobody  wanted  merely  fanciful  or  gratuitous 
promises  to  be  made  binding  without  form,  and  there  was  no  need 
for  haste  in  defining  exactly  where  the  line  should  be  drawn. 

Quid  pro  quo  in  action  of  debt.  The  action  of  debt  assumed  that  the 
defendant  had  money  or  chattels  (g)  which  belonged  to  the  plain- 
171]  tiff ;  *either  because  the  defendant  had  actually  received  so 
much  from  the  plaintiff,  or  because  he  had  received  from  him  some- 
thing else  which  he  admitted  to  be  equivalent  to  the  money  or  goods 
claimed.  As  the  buyer  of  goods  had  acquired  property  in  the  goods, 
so  did  a  sum  of  his  money  measured  by  the  agreed  price  become,  in 
the  medieval  view,  the  property  of  the  seller.  There  was  a  change 
of  property  by  "reciprocal  grants"  (h).  Thus  the  debt  could  not 
be  established  without  showing  that  the  debtor  had  received  some 
equivalent  or  "  recompense."     In  the  fifteenth  century  this  equiva- 

(e)  Altered  to  "adjudged"  by  the  spiritual  courts  often  might  have 
Judicature  Act  for  no  obvious  reason,  been  prohibited,  and  sometimes  were  ; 
unless  it  were  that  the  word  "  ad-  but  one  has  only  to  look  at  Hale's 
judge  "  was  equally  unknown  to  the  Precedents  and  Proceedings,  repre- 
operative  forms  of  common  law  and  senting  a  small  part  of  what  went  on 
eouity,  though  it  was  current  with  all  over  the  country,  to  see  that  in 
text-writers    from    the  sixteenth   cen-  fact  they  got  the  business. 

tury  onwards.  (<7)   Harv.  Law  Rev.  viii.  260. 

(f)  It  is  said  that  the  King's  (h)  Edgoomb  v.  Dee,  pp.  *137,  *138, 
judges    had    the    remedy   of   prohibi-        above. 

tion   in   their   hands.     No  doubt  the 


HISTORY    OF    CONSIDERATION.  189 

lent  was  called  Quid  pro  quo,  a  peculiarly  English  term  (i).  The 
words  bargain  and  contract,  especially  the  latter,  also  came  to  be 
associated  with  the  action  of  debt  in  the  fifteenth  and  sixteenth  cen- 
turies. In  fact  contract  meant  a  "  real  contract,"  a  transaction  on 
which  an  action  of  debt  might  be  brought  (h).  Mere  one-sided  speech 
could  no  more  pass  property  iii  money  than  in  goods. 

Detriment  to  promisee  in  assumpsit.  The  action  of  assumpsit  was  not 
to  recover  anything  supposed  to  be  the  plaintiff's,  or  for  restitution, 
but  to  recover  damages  for  the  breach  of  an  active  duty  towards  the 
plaintiff  which  had  been  expressly  "  assumed  "  by  the  defendant,  or 
was  attached  by  law  to  the  exercise  of  his  calling.  If  the  defendant's 
"  assumption  "  had  not  induced  the  plaintiff  to  incur  risk  or  trouble 
in  some  way  to  his  own  detriment,  there  was  no  wrong  done  and  no 
ground  of  action.  Here  again  bare  words  of  promise,  as  such,  would 
create  no  duty;  nor  could  mere  disappointment  be  regarded  as  ac- 
tionable damage.  It  was  a  considerable  time  before  the  fact  that 
assumpsit  was  in  substance  an  action  to  enforce  contracts  was  in  any 
way  formally  recognized;  but  this  could  not  be  much  delayed  when 
it  was  settled  that  the  existence  of  a  debt  was  a  ^sufficient  [172 
ground  for  an  action  in  assumpsit,  the  defendant  not  being  allowed 
to  admit  the  existence  of  a. duty  to  pay  the  plaintiff  and  deny  that 
he  had  undertaken  to  fulfil  it. 

Thus  we  have  both  in  debt  and  in  assumpsit  the  notion  of  some 
kind  of  value  received  as  an  element  in  the  defendant's  liability;  in 
the  later  application  of  assumpsit  concurrently  with  debt  this  element 
is  identical  with  the  quid  pro  quo  of  debt  (I)  ;  in  the  original  assumpsit 
founded  on  an  actual  promise  it  is  distinct, 

Causa  in  Roman  law:  "  consideration  "  in  early  common  law.  Meanwhile 
the  canonists  of  Europe,  in  opposition  to  the  more  technical  views 
of  the  civilians,  had  been  generalizing  the  Eoman  law  of  contract  and 
breaking  down  its  formalities.  The  causa  which  made  a  pact  action- 
able was  no  longer  one  of  a  limited  set  of  circumstances  or  "  vest- 
ments "  applicable,  according  to  their  nature,  to  particular  and  limited 
classes  of  transactions;  it  might  be  any  reason  for  making  a  promise 
which  appeared  serious  enough  to  be  the  foundation  of  a  moral  duty 
to  fulfil  the  expectation  created.  It  is  possible  that  English  canonists 
used  the  word  "  consideration  "  to  translate  this  extended  sense  of 

(i)    It  is  not  otherwise  known   to  even  later,   Termes   de   la  Ley,   s.   v. 

Du  Cange  or  his  later  editors.  Contract. 

(k)    See   H.   L.   R.   viii.    253;    the  (1)  Prof.  Ames  in  Harv.  Law  Rev. 

title  of  Debt  in  the  Abridgments;  and  ii.  18. 


190  CONSIDERATION. 

causa  before  it  was  familiar  to  the  common  lawyers.  At  any  rate 
St.  German,  in  his  well-known  Dialogue,  first  published  in  English 
in  1530  (m),  puts  this  word  in  the  mouth  not  of  the  Student  but 
of  the  Doctor.  The  Student  in  the  laws  of  England,  explaining  "  what 
is  a  nude  contract  or  naked  promise  in  the  laws  of  England,  and 
where  an  action  may  lie  thereupon,  and  where  not"  («.),  speaks  of 
recompense,  of  "  a  nude  contract  .  .  .  where  a  man  maketh  a  bar- 
gain or  a  sale  of  his  goods  or  lands,  without  any  recompense  appointed 
for  it,"  and  of  "  a  nude  or  naked  promise  ....  where  a  man 
promiseth  another  to  give  him  certain  money  such  a  day,  or  to  build 
an  house,  or  to  do  him  such  certain  service,  and  nothing  is  as- 
173]  signed  *f or  the  money,  for  the  building,  nor  for  the  service  " ; 
in  which  cases  no  action  lies  (o).  It  is  the  Doctor  of  Divinity  who 
takes  up  the  distinct  question  of  what  promises  are  binding  in  con- 
science, and  distinguishes  "  promises  made  to  a  man  upon  a  certain 
consideration  ...  as  if  A.  promise  to  give  B.  xxl.  because  he  hath 
made  him  such  a  house  or  hath  lent  him  such  a  thing  " — which  is 
generally  binding — from  a  promise  which  is  "  so  naked  that  there  is 
no  manner  of  consideration  why  it  should  be  made,"  and  does  not 
even  create  a  moral  obligation.  Here  the  language  is  not  technical, 
but  is  rather  a  literary  explanation  addressed  to  the  Student,  who  is 
presumed  not  to  know  civil  or  canon  law,  and  would  not  understand 
the  Eomanist  term  causa. 

The  word  "  consideration "  had  already  been  used  in  English 
Courts  in  discussing  the  validity  not  of  promises  but  of  uses;  there 
is  nothing  to  show  any  connexion  with  the  learning,  civilian  or 
canonist,  of  causa,  but  on  the  contrary  "  consideration  "  in  this  con- 
text is  rather  analogous  to  the  quid  pro  quo  of  debt,  though  wider. 
On  the  whole  the  transitional  view  of  the  early  sixteenth  century 
seems  to  have  been  that  a  use  was  created  by  the  will  of  the  grantor, 
but  his  will  could  not  be  known  by  the  Court  without  sufficient  proof 
of  his  intent;  and  such  proof  might  consist  in  the  mutuality  of  the 
transaction  (including  the  creation  of  a  tenure  as  well  as  actual  value 
received ) ,  or  in  the  existence  of  a  natural  duty  towards  the  cestui  qua 

(m)    The   Latin  ed.   pr.    (1523,   re-  he  was  more  likely  to  regard  it  as  a 

printed     1528)      contained     only     the  remedy   for    a    wrong   independent   of 

first  Dialogue;   and  this  also  is  am-  contract,   and  not  to  have   it  before 

plifiecl  in  the  English  version.  his   mind  at  all   in   this   place.      The 

(n)    Question   put  by  the   Doctor,  action    on    the    case    for    negligence, 

Dial.  2,  c.  23,  ad  fin.     The  discussion  which  was   one  origin  of  assumpsit, 

follows  in  c.  24.  is   recognized :    "  if   I   take    [goods   to 

(o)     It    is    not    manifest    whether  keep   safely],   and   after   they  be  lost 

the   author   means   to    allude   to   the  or    impaired    through    my    negligent 

action  of  assumpsit  or  not.     I  think  keeping,  there  an  action  lieth." 


HISTORY    OF    CONSIDERATION.  191 

use.  Either  kind  of  reason  was  called  consideration.  It  is  common 
learning  that  the  mere  solemnity  of  a  deed  was  never  held  sufficient 
for  this  purpose  (p).  *On  the  whole  the  Doctor,  who  represents  [174 
the  canonist  half  of  St.  German's  extraordinary  learning,  appears  to 
use  "  consideration "  as  a  semi-popular  word,  which  will  dispense 
him  from  going  into  technical  details,  and  be  sufficiently  accurate 
for  his  purpose.  As  the  book  rapidly  became  well  known  for  its  merits 
as  an  exposition  of  the  Common  Law,  it  may  well  be  that  this  very 
passage  contributed  to  the  current  use  of  the  word  among  the  Serjeants 
and  apprentices  at  Westminster,  and  suggested  its  application  to  ac- 
tions on  promises,  of  which  no  earlier  example  has  been  found. 

No  probable  connexion  of  causa  with  the  common  law  doctrine.  There  is 
nothing  to  show  that  it  was  so  applied  by  common  lawyers  with  any 
conscious  reference  to  either  the  civilian  or  the  canonist  interpreta- 
tion of  the  Eoman  causa;  nor  had  they  any  need  to  call  in  such 
notions.  The  quid  pro  quo  which  the  defendant  in  debt  must  have 
received,  and  the  damage  which  the  plaintiff  in  assumpsit  must  have 
suffered  by  relying  on  the  defendant's  undertaking,  were  sufficient 
to  form  the  notion  of  consideration  without  any  extraneous  matter. 
In  fact  the  Eomanist  conception  could  not  have  been  fitted  into  the 
English  legal  categories.  In  its  later  canonical  form  it  was  too  wide 
for  the  common  lawyer's  purposes  (q) ,  as  in  its  ancient  classical  form 
it  was  too  narrow  (r) . 

*]STo  one  ever  argued  before  an  English  temporal  Court  that  [175 
deliberate  bounty  or  charitable  intention  will  support  a  formless 
promise;  but  such  was  undoubtedly  the   canonical  view,   and  is  to 

(p)    Y.  B.   20  H.  VII.   10,  pi.  20;  interpreted   the    rule   alteri   stipulari 

Bro.  Ab.  Feoffements  and  Uses,  pi.  40.  nemo   potest   and   Ulpian's   gloss,    ut 

(This    is    dated    1533,    a   little    later  alii  detur  nihil  interest  mea,  D.  45, 

than  St.   German's  book,  but  practi-  1.  de  v.  o.  38,   §   17.     Bracton  seems 

cally  contemporary. )      In  Sharington  not  to  have  accepted  the  Roman  doc- 

v.   Strotton    (1565),  Plowd.   302,  the  trine,  see  Maitland,  Bracton  and  Azo, 

analogy  of   quid  pro   quo  was   relied  154-155.     It  is  far  from  certain  that 

on  in  the  unsuccessful  argument  for  causa  was  really  a  current  term  in 

the  plaintiff.  the  early   part  of   the    16th   century 

(q)   Save  in  the  point,  unknown  to  among    any    canonists     or     civilians 

English   law,   that   a   plaintiff   suing  from   whom   Englishmen   were   likely 

on  a  promise  must  show  that  its  per-  to  borrow. 

formance  was  of  some  value  to  him-  (r)    Ulpian  in  one  place,  D.  19.  5. 

self:  Fothier,  Obi.  §§  54,  55,  60,  Code  de  praeser.  verbis,  15,  goes  near  to  a 

Nap.  1119.     It  is  said  that  a  promise  generalization   when    he    says   of   the 

by  A.  to  B.  to  do  something  useful  to  promise  of  a  reward  for  information 

Z.,  but  not  to  B.,  is  binding  in  con-  of  a  runaway  slave :    "  Conventio  ista 

s^ 'ence  only.     Z.  cannot  sue  because  non  est  nuda,  ut  quis  dicat  ex  pacto 

he  is  not  party  to  the  contract,  nor  actionem  non   oriri,   sed  habet  in   se 

B.  because  he  has  no  interest  in  its  negotium  aliquod." 
performance.    So  the  modern  civilians 


192  CONSIDERATION. 

this  day,  in  theory,  the  rule  of  legal  systems  which  have  followed  the 
modern  Roman  law  (s).  There  was  no  room  within  the  common  law 
scheme  of  actions  for  turning  natural  into  legal  obligation  (t). 

Benefit  to  promisor  not  material.  We  may  now  trace  the  characteristic 
points  of  the  English  doctrine.  It  was  understood  as  early  as  the 
third  quarter  of  the  fifteenth  century,  with  reference  to  the  quid  pro 
quo  of  Debt,  that  apparent  benefit  to  the  promisor  is  immaterial.  In 
1459  we  have  this  case. 

Debt  in  the  Common  Pleas  on  an  agreement  between  the  plaintiff 
and  defendant  that  plaintiff  should  marry  one  Alice,  the  defendant's 
daughter,  on  which  marriage  defendant  would  give  plaintiff  100 
marks.  Averment  that  the  marriage  had  taken  place  and  the  de- 
fendant refused  to  pay.  Danvers  J.  said :  "  The  defendant  has  quid 
pro  quo:  for  he  was  charged  with  the  marriage  of  his  daughter  and 
by  the  espousals  he  is  discharged,  so  the  plaintiff  has  done  what  was 
to  be  paid  for.  So  if  I  tell  a  man,  if  he  will  carry  twenty  quarters 
of  wheat  of  my  master  Prisot's  to  G.,  he  shall  have  40s.,  and  there- 
176]  upon  he  *carry  them,  he  shall  have  his  action  of  debt  against 
me  for  the  40s.;  and  yet  the  thing  is  not  done  for  me,  but  only  by 
my  command:  so  here  he  shows  that  he  has  performed  the  espousals, 
and  so  a  good  cause  of  action  has  accrued  to  him :  otherwise  if  he 
had  not  performed  them"  (u).  Moyle  J.:  "If  I  tell  a  surgeon,  if 
he  will  go  to  one  J.  who  is  ill,  and  give  him  medicine  and  make  him 
safe  and  sound,  he  shall  have  100s.;  there  if  the  surgeon  does  cure  J. 
he  shall  have  a  good  action  of  debt  against  me  for  the  100s.,  although 

(s)    Pothier,  Obi.   §  42;   Sirey  and  impossible   to   prove   that  there  was 

Gilbert   on   Code   Nap.    1131;    Demo-  none,  but  for  the  reasons  in  the  text 

lombe,  Oours  du  Code  Nap.  xxiv.  329  I  think  very  little  of  it  reached  the 

sqq. ;  Langdell,  Sel.  Ca.  Cont.  169 ;  so  minds  of  practising  common  lawyers, 

in    Germany   from    the    17th    century  Mr.      Salmond's      learned      argument 

onwards,    with    only   theoretical    dif-  (Essays  in  Jurisprudence  and  Legal 

ferences  as  to  the  reason  of  the  rule':  History,    No.    iv.)    fails   to   reconvert 

Seuffert,   Zur  Geseh.  der  obligatoris-  me  to  my  own  former  opinion.     One 

chen  Vertrage,  130  sqq.  may   almost  say   that,    if   there   had 

(f)    The   view   here   given   is   sub-  been  any  real  borrowing,  there  must 

stantially  that  of  Prof.  Ames  of  Har-  have     been     more     misunderstanding, 

vard      (The     History     of     Assumpsit,  The  repetition  of  the  one  phrase  Ed- 

Harv.   Law  Rev.   ii.    1.   53),  who   has  nudo  pacto  non   oritur  actio,   caught 

put  the  whole  subject  on  a  new  foot-  up    from    the    civilians,    was,    on    the 

ing.    Chief  Justice  Holmes's  ingenious  whole,  harmless.     As  late  as   18-12  a 

attempt  to  make  the  quid  pro  quo  of  desperate   attempt   was   made   by   the 

debt    cover    the    whole    ground,    and  late  E.  V.  Williams  J.,  when  at  the 

connect   it  with   the   functions   of  the  bar,    to    mix    up    the    civilian    causa 

sccta     in     Anglo-Norman     procedure,  with    the    doctrine    of    consideration: 

does  not  seem  acceptable:  see  Pollock  Thomas  v.   Thomas,  p.  *169,  above, 
and   Maitlnnd.    Hist.    Eng.    Law,    ii.  («)   M.  37  H.  VI.  8,  pi.  18. 

214.     As   to   civilian   influence,   it  is 


ADEQUACY.  193 

the  thing  was  done  for  another  and  not  for  the  defendant  himself ;  if 
there  is  not  quid  pro  quo,  there  is  what  comes  to  the  same"  (w). 
Prisot  C.J.  and  Danby  J.  thought  such  an  action  not  maintainable 
except  on  a  specialty  (though  Prisot  was  impressed  by  Danvers's  and 
Moyle's  instances),  and  an  objection  was  also  taken  to  the  jurisdic- 
tion on  the  ground  of  marriage  being  a  spiritual  matter:  the  case 
was  adjourned  and  the  result  is  not  stated.  But  the  point  is  quite 
clearly  taken  that  what  a  man  chooses  to  bargain  for  must  be  con- 
clusively taken  to  be  of  some  value  to  him. 

Adequacy  of  consideration  not  inquired  into.  It  is  really  by  a  deduc- 
tion from  this  that  our  Courts  have  in  modern  times  laid  it  down  as 
an  "  elementary  principle  that  the  law  will  not  enter  into  an  inquiry 
as  to  the  adequacy  of  the  consideration "  (a;).4  The  idea  is  character- 
istic not  only  in  English  positive  law  but  in  the  English  school  of 
theoretical  jurisprudence  and  politics.  Hobbes  says :  "  The  value 
of  all  things  contracted  for  is  measured  by  the  appetite  of  the  con- 
tractors, and  therefore  the  just  value  is  that  which  they  be  contented 
to  give"  (y).  And  the  legal  rule  is  of  long  standing,  and  illustrated 
by  many  cases.  "  When  a  thing  is  to  be  done  by  the  plaintiff,  be  it 
never  so  small,  this  is  a  sufficient  consideration  to  ground  an  ac- 
tion" (z).  "A.  is  possessed  of  Blackacre,  to  *which  B.  has  no  [177 
manne?'  of  right,  and  A.  desires  B.  to  release  him  all  his  right  to 
Blackacre,  and  promises  him  in  consideration  thereof  to  pay  him 
so  much  money;  surely  this  is  a  good  consideration  and  a  good  promise, 
for  its  puts  B.  to  the  trouble  of  making  a  release  "  (a).5  The  follow- 
ing are  modern  examples.     If  a  man  who  owns  two  boilers  allows 

(x)   Westlake  v.  Adams    (1858)    5  (z)   Sturlyn  v.   Albany,   Cro.   Eliz. 

C.  B.  N.  S.  248,  265,  27  L.  J.  C.  P.  67,  and  see  Cro.   Car.   70,  and  mar- 

271,  per  Byles,  J.  ginal  references  there. 

(y)    Leviathan,  pt.  1,  c.  15.  (a)    Holt  C.J.  12  Mod.  459. 

*  Lawrence  v.  McCalmont,  2  How.  426,  452;  Clark's  App.,  57  Conn.  565; 
Wolford  v.  Powers,  85  Ind.  294;  Colt  v.  McConnell,  116  Ind.  249;  Mullen  v. 
Hawkins,  141  Ind.  363;  Daily  v.  Minnick,  117  la.  563;  Train  v.  Gold,  5  Pick. 
380,  384;  Wilton  v.  Eaton,  127  Mass.  174;  Whitney  v.  Clary,  145  Mass. 
156;  Williams  v.  Jensen,  75  Mo.  681;  Perkins  r.  Clay,  54  N.  H.  518;  Trap- 
hagen's  Ex.  v.  Voorhees,  44  N.  J.  Eq.  21;  Brooks  v.  Ball,  18  Johns.  237; 
Worth  v.  Case,  42  N.  Y.  362;  Earl  r.  Peck,  64  N.  Y.  569;  Cowee  v.  Cornell, 
75  N.  Y.  91;  Hopkins  v.  Ensign,  122  N.  Y.  144,  153;  Judy  v.  Louderman,  48 
Ohio,  562;  Hind  v.  Holdship,  2  Watts,  104;  Cumming's  Appeal,  67  Pa.  404; 
Goree  v.  Wilson,  1  Bailey,  597;  Giddings  r.  Giddings'  Adm.,  51  Vt.  227; 
Churchill  V.  Bradley,  58  Vt.  403.     See  also  infra,  n.  8. 

But  it  is  otherwise  where  the  consideration  is  the  payment  of  a  fixed  sum 
of  money.  Schnell  v.  Nell,  17  Ind.  29 ;  Wolford  v.  Powers,  85  Ind.  294,  301 ; 
Shepard  v.  Rhodes,  7  R.  I.  470.     See  further,  post,  p.  *184,  n.  15. 

5  Ace.  Mullen  v.  Hawkins,  141  Ind.  363;  Kerr  v.  Lucas,  1  Allen,  279. 


194  CONSIDERATION. 

another  to  weigh  them,  this  is  a  good  consideration  for  that  other's 
promise  to  give  them  up  after  such  weighing  in  as  good  condition  as 
before.  "  The  defendant,"  said  Lord  Denman,  "  had  some  reason  for 
wishing  to  weigh  the  boilers,  and  he  could  do  so  only  by  obtaining 
permission  from  the  plaintiff,  which  he  did  obtain  by  promising  to 
return  them  in  good  condition.  We  need  not  inquire  what  benefit  he 
expected  to  derive"  (&).  So  parting  with  the  possession  of  a  docu- 
ment, though  it  had  not  the  value  the  parties  supposed  it  to  have  (c),6 
and  the  execution  of  a  deed  (d),  though  invalid  for  want  of  statu- 
tory requisites  (e),  have  been  held  good  considerations.  In  like  man- 
ner a  licence  by  a  patentee  to  use  the  patented  invention  is  a  good 
consideration  though  the  patent  should  turn  out  to  be  invalid  (/).T 
In  the  Supreme  Court  of  the  United  States  a  release  of  a  supposed 
right  of  dower,  which  the  parties  thought  necessary  to  confirm  a 
title,  has  been  held  a  good  consideration  for  a  promissory  note  (g). 
The  modern  theory  of  the  obligation  incurred  by  a  bailee  who  has 
no  reward  is  that  the  bailor's  delivery  of  possession  is  the  considera- 
tion for  the  bailee's  promise  to  keep  or  carry  safely.  The  bailor  parts 
with  the  present  legal  control  of  the  goods ;  and  this  is  so  far  a  detri- 

(6)  Bainoridgev.  Firmstone  (1838)  (d)    Cp.  Jones  v.  Waite    (1842)    9 

8  A.  &  E.  743,  53  R.  R.  234.  CI.  &  F.  101. 

(c)   Haighx.  Brooks  (1839-40)    (Q.  (e)    See  note    {an),  last  page.     The 

B.  and  Ex.  Ch. ) .  10  A.  &  E.  309,  320,  defendant  had  in  fact  had  the  full 
334,  50  R.  R.  399,  407,  417.  Or  let-  benefit  of  the  consideration,  the  deed 
ting   the    promisor    retain    possession  having  been  acted  on. 

of  a  document  to  which  the  promisee  (f)  Lawes  v.  Purser  (1856)  6  E.  & 

is  entitled:   Hart  v.  Miles    (1858)    4       B.  930,  26  L.  J.'Q.  B.  25. 

C.  B.  N.  S.  371,  27  L.  J.  C.  P.  218.  (g)   Bykes  v.  Chadwick    (1873)    18 

Wallace,   141. 

e  Wilton  v.  Eaton,  127  Mass.  174;  Judy  r.  Louderman,  48  Ohio  St.  562; 
Churchill  v.  Bradley,  58  Vt.  403.  But  see  McCollum  v.  Edmonds,  109  Ala. 
322. 

The  distinction  must  be  carefully  observed,  however,  between  a  bargain  for 
the  paper  and  a  bargain  for  a  title,  right,  or  obligation  which  the  paper  was 
supposed  to  give. 

1  Where  the  patent  is  apparently  valid  and  in  force,  the  party  using  it, 
receiving  the  benefit  of  its  supposed  validity,  is  liable  for  license  fees  agreed 
to  be  paid,  and  cannot  set  up  as  a  defense  the  actual  invalidity  of  the  patent. 
Kinsman  r.  Parkhust,  18  How.  289;  Wilder  v.  Adams,  2  Woodb.  &  M.  329; 
McKay  v.  Jaekman,  17  Fed.  Rep.  641 ;  Milligan  r.  Lallance,  &c.  Mfg.  Co., 
21  Fed.  Rep.  570 ;  Covell  v.  Bostwick,  39  Fed.  Rep.  421 ;  Bartlett  v.  Holbrook, 
1  Gray,  114;  Marston  v.  Swett,  66  N.  Y.  206;  Skinner  v.  Wood  Co.,  140  N.  Y. 
217;  Hyatt  v.  Dale  Mfg.  Co.,  106  N.  Y.  651;  Davis  v.  Gray,  17  Ohio  St.  331. 
But  he  is  not  liable  where  he  has  not  enjoyed  a  monopoly  conferred  by  reason 
of  the  supposed  validity  of  the  patent.  White  v.  Lee,  14  Fed.  Rep.  789; 
Harlow  r,  Putnam,  124  Mass.  55.3;  Marston  v.  Swett,  82  N.  Y.  527;  Angier  v. 
Eaton,  C.  &  B.  Co.,  98  Pa.  St.  594.  And  royalties  paid  after  the  patent  has 
expired  may  be  recovered.     Stanley  Co.  v.  Bailey,  45  Conn.  464. 

The  law  in  regard  to  a  license  under  a  supposed  copyright  is  the  same  as 
that  applicable  to  a  supposed  patent.     Saltus  v.  Belford  Co.,  133  N.  Y.  499. 


ADEQUACY.  195 

ment  to  him,  though  it  may  be  no  benefit  to  the  bailee,  and  the  bailee's 
taking  the  *goods  is  for  the  bailor's  use  and  convenience  (h).  [178 
The  determination  of  a  legally  indifferent  option  in  a  particular  way, 
as  voting  for  a  particular  candidate  for  a  charity  where  there  is  not' 
any  duty  of  voting  for  the  candidate  judged  fittest,  is  legal  "  detri- 
ment "  enough  to  be  a  good  consideration  (i) . 

The  same  rule  is  in  force  in  equity.  It  has  been  held  in  equity,  to  the 
same  effect,  that  a  transfer  of  railway  shares  on  which  nothing  has 
been  paid  is  a  good  consideration  (fc)  :  and  that  if  a  person  indebted 
to  a  testator's  estate  pays  the  probate  and  legacy  duty  on  the  amount 
of  the  debt,  this  is  a  good  consideration  for  a  release  of  the  debt 
by  the  residuary  legatees  (I) :  a  strong  case,  for  this  view  was  an 
afterthought  to  support  a  transaction  which  was  in  origin  and  in- 
tention certainly  gratuitous,  and  in  substance  an  incomplete  voluntary 
release;  the  payment  was  simply  by  way  of  indemnity,  it  being 
thought  not  right  that  the  debtor  should  both  take  his  debt  out  of 
the  estate  and  leave  the  estate  to  pay  duty  on  it.  The  consent  of 
liquidators  in  a  voluntary  winding-up  to  a  transfer  of  shares  is  a 
good  consideration  for  a  guaranty  by  the  transferor  for  the  payment 
of  the  calls  to  become  due  from  the  transferee  (m).  An  agreement 
to  continue — i.  e.,  not  to  determine  immediately — an  existing  service 
terminable  at  will,  is  likewise  a  good  consideration  («).  The  prin- 
ciple of  all  these  cases  may  be  summed  up  in  the  statement  made 
in  so  many  words  by  the  judges  in  more  than  one  of  them,  that  the 
promisor  has  got  all  that  he  bargained  for.  The  law  will  be  satisfied 
that  there  was  a  real  and  lawful  bargain,  but  it  leaves  *parties  to  [179 
measure  their  bargains  for  themselves.8     There  has  been  another 

(h)    O.   W.   Holmes,   The  Common  (i)  Bolton  v.  Madden  (1873)  L.  E. 

Taw,  291,  sqq.     Historically,  the  ex-  9  Q.  B.  55. 

planation  is  that  the  action  sounded  (fc)  Cheale  v.  Eenward  (1858)  3 
in  tort  until  quite  modern  times,  ib.  De  G.  &  J.  27,  27  L.  J.  Ch.  784. 
196.  The  bailor  parts  with  very  lit-  (I)  Taylor  v.  Manners  (1865)  L. 
tie,  for,  if  the  bailment  is  at  will,  R.  1  Ch.  48,  35  L.  J.  Ch.  128,  by 
he  as  well  as  the  bailee  can  sue  a  Turner  L.  J.  duo.  Knight  Bruce  L.J. 
trespasser.  The  real  difficulty,  how-  (to)  Cleve  v.  Financial  Corpora- 
aver,  is  that  in  such  cases,  for  the  tion  (1873)  L.  R.  16  Eq.  363,  375,  43 
most  part,  the  bailor  does  not  deliver  L.  J.  Ch.  54. 

possession  at  the  bailee's  request,  but  (n)    Gravely  v.  Barnard  (1874)   L. 

requests  the'  bailee  to  take  it.     One  R.  18  Eq.  518,  43  L.  J.  Ch.  659. 
of  the  necessary  elements  is  therefore 
fictitious.     Cp.  Langdell,   §  68. 

8  Illustrations  from  recent  American  cases  are :  Naming  a  child  after  the 
promisor,  Wolford  v.  Powers,  85  Ind.  294;  Diffenderfer  v.  Scott,  5  Ind.  App. 
243;  Daily  v.  Minnick,  117  la.  563;  Eaton  v.  Libbey,  165  Mass.  218;  forbearing- 
or  agreeing  to  forbear  from  some  bad  habit,  Talbott  v.  Stemmons'  Ex.,  89  Ky. 


196  CONSIDERATION. 

rather  peculiar  case  in  equity  which  was  to  this  effect.  An  agreement 
is  made  between  a  creditor,  principal  debtor,  and  surety  under  a 
continuing  guaranty,  by  which  no  new  undertaking  is  imposed  on 
the  surety,  but  additional  remedies  are  given  to  the  creditor,  which 
he  is  to  enforce  if  requested  to  do  so  by  the  surety.  Held  that  if  by 
his  own  negligence  the  creditor  deprives  himself  of  the  benefit  of 
these  remedies,  the  surety  is  discharged.  The  real  meaning  of  what 
is  there  said  about  consideration  seems  to  be  that,  as  between  the 
creditor  and  the  surety,  it  is  not  material  (o). 

Contingent  consideration.  It  has  been  suggested  that  on  a  similar 
principle  the  consideration  for  a  promise  may  be  contingent,  that  is, 
it  may  consist  in  the  future  doing  of  something  by  the  promisee 
which  he  need  not  do  unless  he  chooses,  but  which  being  done  by  him, 
the  contract  is  complete  and  the  promise  binding.9  But  this  cannot 
be.  A  consideration  must  be  either  a  present  act  or  forbearance  or  a 
promise.  If  a  tradesman  agrees  to  supply  on  certain  terms  such 
goods  as  a  customer  may  order  during  a  future  period,  this  is  not 
a  promise,  but  an  offer.  He  cannot  sue  the  customer  for  not  ordering 
any  goods,  but  if,  while  the  offer  stands,  the  customer  does  order 
any,  the  condition  of  the  offer  is  fulfilled,  and  the  offer  being  thus 
accepted,  there  is  a  complete  contract  which  the  seller  is  bound  to 
perform  (p).10 

(o)  Watson  v.  Allcock  (1853)  4  D.  13.     Cp.  Chicago  d  0.  E.  Ry.  Go.  v. 

M.   G.   242,   22   L.   J.   Ch.    858.     The  Dane  (1873)  43  N.  Y.  (4  Hand)  240, 

guaranty  was  determinable  by  notice  where  it  was  rightly  held  that  a  gen- 

from  the  surety,  and  it  was  suggested  eral   assent  to  an   offer  of  this   kind 

by  way  of  supplying  a  new  considera-  (not  undertaking  to  order,  or  as  in 

tion   that   on   the   faith   of   the   cred-  the  particular  case  tender  to  be  car- 

itor's    increased    remedy    the    surety  ried,  any  definite  quantity  of  goods) 

might    in    fact    have    abstained    from  did  not  of  itself  constitute  a  contract, 

determining  it.     But  surely  this  will  Cp.   R.  v.   Doners    [1900]    A.   C.    103, 

not  do :   the  true  ground  is  the  cred-  69  L.  J.  P.  C.  5 ;  under  French  Cana- 

itor's    original    duty   to    the    surety,  dia.n  law,  but  no  difference  in  prin- 

which    covers    subsequently    acquired  ciple    is    suggested.      This    seems    to 

rights  and  remedies.  have    been    overlooked    in    Ford    v. 

(p)     a.    N.    Ry.    Go.    v.    Witham  Newth   [1901]   1  K.  B.  683,  70  L.  J. 

(1873)  L.  R.  9  C.  P.  16,  43  L.  J.  G.  P.  K.  B.  459. 

222;  Lindell  r.  Rokes,  60  Mo.  249;  Hamer  v.  Sidway,  124  N.  Y.  548;  Dunton 
r.  Dunton,  18  Vict.  L.  B.  114;  taking  a  trip  for  the  promisee's  health, 
Devecmon  i\  Shaw,  69  Md.  199 ;  buying  a  factory  for  the  promisee's  own  bene- 
fit, Steele  r.  Steele,  75  Md.  477.     See  further,  supra,  n.  4. 

9  See  Wilson  v.  ClonbrockCo.,  105  Fed.  Rep.  846,  848. 

10  In  G.  N.  By.  Co.  v.  Witham,  the  defendant  in  answer  to  an  advertise- 
ment for  tenders  for  the  supply  of  stores  for  a  period  of  twelve  months,  wrote 
to  the  plaintiff  as  follows :  "  I,  the  undersigned  hereby  undertake  to  supply 
the  G.  N.  Ry.  Co.  for  twelve  months  from  the  1st  of  November,  1871,  to  31st 
of  October,  1872,  with  such  quantities  of  each  or  any  of  the  several  articles 
named  in  the  attached  specification,  as  the  company's  storekeeper  may  order, 


ADEQUACY.  197 

*  Inadequacy  as  evidence  of  fraud,  etc.  Great  inadequacy  of  con-  [  1 80 
sideration  may,  however,  be  material  as  a  cumulative  element  in  cases 

from  time  to  time,  at  the  price  set  opposite  each  article  respectively,  and 
agree  to  abide  by  the  conditions  stated  on  the  other  side.  (Signed)  Samuel 
YVitham."  The  plaintiff's  officer  replied:  "Mr.  S.  Witham  —  Sir:  I  am 
instructed  to  inform  you  that  my  directors  have  accepted  your  tender,  dated, 
etc.,  to  supply  this  company,  at  Doncaster  station,  any  quantity  they  may 
order  during  the  period  ending  31st  of  October,  1872,  of  the  description  of 
iron  mentioned  on  the  inclosed  list,  at  the  prices  specified  therein.  The 
terms  of  the  contract  must  be  strictly  adhered  to.  Requesting  acknowledg- 
ment of  the  receipt  of  this  letter.  (Signed)  S.  Fitch,  Assistant  Secretary." 
The  defendant  replied,  acknowledging  receipt.  The  acceptance  here  seems  a 
clear  example  of  what  Mr.  Pollock,  supra,  p.  *46,  calls  an  illusory  promise.  It 
is  impossible  to  see  to  what  it  binds  the  railway  company  so  as  to  furnish  a. 
consideration  for  the  defendant's  promise.  If  the  plaintiff  had  agreed  to  take 
of  the  defendant  all  such  articles  named  in  the  specification  as  they  might  re- 
quire for  their  road  during  the  period  named,  this  would  have  connoted  a 
promise  by  the  plaintiff  during  that  time  not  to  purchase  any  such  articles 
from  any  one  but  the  defendant,  which  would  have  been  a  good  consideration. 
Hartley  r.  Cummings,  5  C.  B.  247;  Church  r.  Proctor,  66  Fed.  Rep.  240  (C. 
C.  A.)  ;  Loudenback  v.  Tennessee  Co.,  121  Fed.  Rep.  298  (C.  C.  A.)  ;  National 
Furnace  Co.  v.  Keystone  Mfg.  Co.,  110  111.  427;  Minnesota  Lumber  Co.  v. 
Whitebreast  Coal  Co.,  160  111.  85 ;  Warden  Coal  Washing  Co.  v.  Myer,  98  111. 
App.  640;  Smith  v.  Morse,  20  La.  Ann.  220;  Burgess  Fibre  Co.  v.  Broomfield, 
62  N.  E.  Rep.  367  (Mass.);  Cooper  c.  Lansing  Wheel  Co.,  94  Mich.  272; 
Hickey  v.  O'Brien,  123  Mich.  611;  E.  C.  Dailey  Co.  v.  Clark  Can  Co.,.  87  N.  W. 
Rep.  761  (Mich.)  ;  Ames-Brooks  Co.  v.  JEtna  Ins.  Co.,  83  Minn.  346;  East  v. 
Cayuga  Lake  Ice  Co.,  21  N.  Y.  Supp.  887;  Miller  v.  Leo,  35  N.  Y.  App.  Div. 
589,  165  N.  Y.  619.  Cp.  Berk  v.  International  Explosives  Co.,  7  Comm. 
Cas.  20. 

Even  such  an  agreement  has  been,  but,  it  is  submitted,  erroneously  held  to 
be  without  consideration.  Bailey  v.  Austrian,  19  Minn.  535;  Cool  v.  Cun- 
ningham, 25  S.  C.  136;  Woodward  v.  Smith,  109  Wis.  607.  See  also  Burton 
r.  Great  Northern  Ry.  Co.,  9  Ex.  507;  American  Cotton  Oil  Co.  v.  Kirk,  68 
Fed.  791;  Columbia  Wire  Co.  v.  Freeman  Wire  Co.,  71  Fed.  Rep.  302;  Crane 
r.  C.  Crane  &  Co.,  105  Fed.  Rep.  869  (C.  C.  A.)  ;  Cold  Blast  Co.  v.  Kansas 
City  Co.,  114  Fed.  Rep.  77  (CCA);  Morrow  v.  Southern  Ex.  Co.,  101  Ga. 
810;  Savannah  Ice  Co.  v.  American  Refrigerator  Co.,  110  Ga.  142;  Vogel  v. 
Pekoe,  157  111.  339;  W.  H.  Purcell  Co.  v.  Sage,  90  111.  App.  160,  189  111.  79; 
American  Refrigerator  Co.  v.  Chilton,  94  111.  App.  6;  Jordan  v.  Indianapolis 
Co.,  61  N.  E.  Rep.  12  (Ind.  App.)  ;  Benjamin  v.  Bruce,  87  Md.  240;  Michigan 
Bolt  Works  v.  Steel,  111  Mich.  153;  Tarbox  v.  Gotzian,  20  Minn.  139;  Beyer- 
stedt  v.  Winona  Mill  Co.,  49  Minn.  1 ;  Rafolovitz  v.  American  Tobacco  Co., 
29  Abb.  N.  C  406;  Gulf,  &c.  Ry.  Co.  v.  Winton,  7  Tex.  Civ.  App.  57;  Hoffman 
r.  Mafnoli,  104  Wis.  630;  Teipel  v.  Meyer,  106  Wis.  41. 

The  letter  of  acceptance  in  G.  N.  Ry.  Co.  v.  Witham  could  not  give  rise  to 
a  unilateral  contract,  as  suggested  by  Brett,  J.,  at  p.  19,  for  the  reason,  in 
addition  to  the  fact  thai  the  acceptance  was  only  illusory,  that  the  con- 
sideration of  a  unilateral  contract  must  always  have  been  executed  on  the 
part  of  the  promisee  before  the  promise  becomes  binding  on  the  promisor; 
a  unilateral  contract  executory  on  both  sides  is  a  contradiction  in  terms; 
before  performance  by  the  promisee,  there  is  no  unilateral  contract,  but  only 
an  offer  by  the  promisor;  see  supra,  p.  22,  n.  21.  Defendant's  tender  was 
simply  a,  continuing  offer  during  the  period  named,  subject  to  revocation  at 
any  time,  but  while  unrevoked  converted  into  a  distinct  contract  by  each 
order  of  goods  from  time  to  time.  Keller  v.  Ybarru,  3  Cal.  147 ;  Brewing 
Assoc,  r.  Nipp,  6  Kan.  App.  730;  Thayer  v.  Burehard,  99  Mass.  508. 
Cp.  Campbell  v.  Lambert,  36  La.  Ann.  35 ;  Railroad  Co.  v.  Dane,  43  N.  Y.  240 ; 
Railroad  Co.  v.  Mitchell,  38  Tex.  85. 


198  CONSIDERATION. 

of  fraud  and  the  like,  though  it  will  not  alone  be  sufficient.    This  will 
be  dealt  with  hereafter. 

Pillans  v.  Van  Mierop.  In  the  interesting  eighteenth-century  case 
of  Pillans  v.  Van  Mierop  (q)  the  actual  decision  was  on  the  prin- 
ciple that  "  any  damage  to  another  or  suspension  or  forbearance 
of  his  right  is  a  foundation  for  his  undertaking,  and  will  make  it 
binding,  though  no  actual  benefit  accrues  to  the  party  undertak- 
ing "  (?•) .  But  Lord  Mansfield  threw  out  the  revolutionary  suggestion 
(which  Wilmot  J.  showed  himself  inclined  to  follow,  though  not 
wholly  committing  himself  to  it)  that  there  is  no  reason  why  agree- 
ments in  writing,  at  all  events  in  commercial  affairs,  should  not  be 
good  without  any  consideration.  "  A  nudum  pactum  does  not  exist 
in  the  usage  and  law  of  merchants.  I  take  it  that  the  ancient  notion 
about  the  want  of  consideration  was  for  the  sake  of  evidence  only 
.  .  .  .  in  commercial  cases  amongst  merchants  the  want  of  con- 
sideration is  not  an  objection"  (s).  The  anomalous  character  of  this 
dictum  was  rightly  seen  at  the  time,  and  it  has  never  been  followed  (t). 
It  was  too  late  to  set  up  a  new  class  of  Formal  Contracts,  which  was 
really  the  effect  of  Lord  Mansfield's  proposal.  But  if  it  had  occurred 
a  century  or  two  earlier  to  a  judge  of  anything  like  Lord  Mansfield's 
authority,  the  whole  course  of  the  English  law  of  contract  might 
have  been  changed,  and  its  principles  might  have  been  substantially 
assimilated  to  those  of  the  modern  civil  law  as  adopted  by  the  law  of 
Scotland. 

181]  *  Promises  founded  on  moral  duty.  Another  doctrine  made  current 
by  Lord  Mansfield  and  some  of  his  colleagues  with  more  success  (u) 
was  that  the  existence  of  a  previous  moral  obligation  constituted  such  a 
relation  between  the  parties  as  would  support  an  express  promise.  The 
Exchequer  Chamber  finally  decided  as  late  as  1840,  that  "a  mere  moral 

(q)    (1705)  3  Burr.  1664,  and  Finch  iously  argues   (Summary,  §§  49,  59), 

Sel.  Ca.  269.  that   contracts  governed  by  the  law 

(r)   Per  Yates  J.  at  p.  1674.  merchant  need  on   principle  no  con- 

(s)   3  Burr.  1669-70.  sideration;  in  short,  that  a  negotiable 

(t)   In  1778  it  was  distinctly  con-  instrument  is  a  specialty.     It  might 

tradicted  by  the  opinion  of  the  judges  have  been  better  so.     In  this  country 

delivered  to  the   House   of   Lords   in  one  can  only  say  dis  aliter  visum. 

Rami  v.  Hughes   (1778)   7  T.  R.  350,  (u)    See   the  note   to   Wennall   r. 

n.:    "All    contracts   are,   by   the  laws  Adney,  3   B.   &  P.   252,   6   R.   R.  782, 

of  England,  distinguished  into  agree-  and    in    Finch    Sel.    Ca.    at   p.    358, 

ments    by    specialty   and    agreements  which   is   approved   by   Parke   B.    in 

by  parol;  nor  is  there  any  such  third  Earle  v.   Oliver   (1848)    2  Ex.  71,  at 

class,  as  some  of  the  counsel  have  en-  p.  90,  and  has  long  been  regarded  as 

deavoured  to  maintain,  as  contracts  classical    on    the   whole    question    of 

in   writing."      Prof.    Langdell   ingen-  past  consideration. 


PAST    CONSIDERATION.  199 

obligation  arising  from  a  past  benefit  not  conferred  at  the  request 
of  the  defendant"  is  not  a  good  consideration  (x).11 

Past  consideration  ineffectual.  It  is  still  not  quite  settled  whether  a 
past  benefit  is  in  any  case  a  good  consideration  for  a  subsequent 
promise.  On  our  modern  principles  it  should  not  be  (y),  and  it  is 
admitted  that  it  generally  is  not  (z).12    For  the  past  service  was  either 

(x)  Eastwood  v.  Kenyon  (1840)  11  (z)   Roscorla  v.  Thomas    (1842)    3 

A.  &  E.  438,  446,  52  R.  R.  400.  Q.  B.  324,  Finch  Sel.  Ca.  340. 

(y)   Cp.  Langdell,  op.  cit.  §  91. 

H  In  most  jurisdictions  a  moral  obligation  is  now  held  insufficient  con- 
sideration, and  the  distinction  suggested  in  the  note  to  Wennall  c.  Adney  is 
invoked  to  support  such  promises  as  the  ratification  of  an  infant's  promise 
or  a  promise  to  pay  a  debt  barred  by  bankruptcy  or  the  Statute  of  Limita- 
tions. Morris  v.  Norton,  75  Fed.  Rep.  912 ;  Cook  v.  Bradley,  7  Conn.  57 ; 
Wiggins  v.  Keizer,  6  Ind.  252;  Mills  c.  Wyman,  3  Pick.  207;  Dodge  r.  Adams, 
19  Pick.  429 ;  Dearborn  v.  Bowman,  3  Met.  155 ;  Hendricks  v.  Robinson,  56 
Miss.  694;  Updike  v.  True,  2  Beasl.  151.  See  further,  53  L.  R.  A.  353,  n. 
In  a  few  jurisdictions,  however,  the  doctrine  that  moral  obligation  may  sup- 
port a  promise  is  still  in  force.  Gen.  Code,  §  2741;  McElven  v.  Sloan,  56  Ga. 
108,  109;  Gray  r.  Hamil,  82  Ga.  375;  Brown  c.  Latham,  92  Ga.  280  (but  see 
Davis  v.  Morgan,  117  Ga.  504);  Spear  v.  Griffith,  86  111.  552;  Lawrence  r. 
Oglesby,  178  111.  122  (but  see  Hobbs  r.  Greifenhagen,  91  111.  App.  400)  ; 
Pierce  r.  Walton,  20  Ind.  App.  66;  Robinson  v.  Hurst,  78  Md.  59;  Edwards 
v.  Nelson,  51  Mich.  121;  Hemphill  v.  MeClimans,  24  Pa.  367;  Landis  v.  Royer, 
59  Pa.  95 ;  Stebbins  v.  Crawford,  92  Pa.  289 ;  Holden  v.  Banes,  140  Pa.  63 ; 
Sutch's  Estate,  201  Pa.  305;  State  r.  Butler,  11  Lea,  418.  See  also  Ferguson 
i'.  Harris,  39  S.  C.  323,  and  an  article  by  Professor  Joseph  P.  McKeehan  on 
Moral  Consideration  in  Pennsylvania,  9  Dickinson  Law  School  Forum,  1. 

A  past  consideration  will  not  support  an  express  promise.  McNaught  v. 
Fisher,  96  Fed.  Rep.   168;   Bulkley  v.  Landon,  2  Conn.  404;   Shealy  p.  Toole, 

56  Ga.  210;  Summers  v.  Vaughn,  35  Ind.  323;  Chamberlin  v.  Wh'itford.  102 
Mass.  448;  Johnson  v.  Johnson's  Adm.,  31  Pa.  450;  Rudolph  r.  Hewitt,  11 
S.  Dak.  646 ;  Barlow  v.  Smith,  4  Vt.  139 ;  Hopkins  v.  Richardson,  9  Graft.  485. 
But  see  Viley  v.  Pettit,  96  Ky.  576;  Koenigsberg  v.  Lennig,  161  Pa.  171. 

When  a  part  of  the  consideration  is  past,  and  a  part  is  not,  it  is  enough 
to  sustain  a  promise.  Irwin  v.  Locke,  20  Col.  148 ;  Wiggins  r.  Keizer,  fi 
Ind.  252;  Loomis  v.  Newhall,  15  Pick.  159;  Graham  v.  Stanton,  177  Mass.  321  ; 
Roberts  v.  Griswold,  35  Vt.  496. 

12  A  promise  to  pay  a  debt  which  the  creditor  has  by  his  own  act  effectually 
discharged,  whether  by  release,  accord,  and  satisfaction,  or  assenting  to  a 
composition,  is  without  consideration.  Ex  parte  Hall,  1  Deacon,  171;  Samuel 
v.  Fairgrieve,  21  Ont.  App.  418;  Rasmussen  v.  State  Bank,  11  Col.  301;  Lewis 
v.  Simons,  1  Handv,  82;  Warren  v.  Whitney,  24  Me.  561;  Phelps  v.  Dennett, 

57  Me.  491;  Ingersoll  r.  Martin,  58  Md.  67;  Hall  c.  Rice,  124  Mass.  292; 
Mason  v.  Campbell,  27  Minn.  54;  Grant  v.  Porter,  63  N.  H.  229;  Zoebisch  r. 
Von  Minden,  47  Hun,  213;  Snevily  v.  Read,  9  Watts,  396;  Callahan  v.  Ackley, 
9  Phila.  99 ;  Shepard  v.  Rhodes,  7  R.  I.  470 ;  Stafford  r.  Bacon,  1  Hill,  532 ; 
S.  C.  2  Hill,  353  (showing  the  opinion  in  25  Wend.  384,  to  have  been  pub- 
lished by  mistake)  ;  Evans  v.  Bell,  15  Lea,  569.  But  see  Jamison  r.  Ludlow, 
3  La.  Ann.  492;  Willing  v.  Peters,  12  S.  &  R.  177,  contra.  Compare  Re 
Merriman,  44  Conn.  587;  Higgins  v.  Dale,  28  Minn.  126. 

A  promise  made  by  a  woman  when  discovert,  to  perform  a  promise 
previously  made  by  her  while  married,  is  not  binding  without  a  new  considera- 
tion. Watson  v.  Dunlap,  2  Cranch  C.  C.  14;  Ezell  r.  King,  93  Ala.  470; 
Thompson  v.  Hudgins,  116  Ala.  93;  Waters  v.  Bean,  15  Ga."358;  Maher  r, 
Martin,  43  Ind.  314;  Putnam  r.  Tennyson,  50  Ind.  456;  Long  v.  Brown,  66 
Ind.   160;   Austin  v.  Davis,   128  Ind.  472;   Holloway's  Assignee  v.  Rudy'  60 


200  CONSIDERATION. 

rendered  without  the  promisor's  consent  at  the  time,  or  with  his  con- 
sent but  without  any  intention  of  claiming  a  reward  as  of  right, 
in  neither  of  which  cases  is  there  any  foundation  for  a  contract  (a)  ; 
or  it  was  rendered  with  the  promisors  consent  and  with  an  expecta- 
tion known  to  him  of  reward  as  justly  due,  in  which  case  there  were 
at  once  all  the  elements  of  an  agreement  for  reasonable  reward. 

Supposed  exceptions:  Lampleigh  v.  Brathwait.  It  is  said,  however,  that 
services  rendered  on  request,  no  definite  promise  of  reward  being  made 
at  the  time,  are  a  good  consideration  for  a  subsequent  express  promise 
in  which  the  reward  is  for  the  first  time  defined.  But  there  is  no  satis- 
factory modern  instance  of  this  doctrine,  and  it  would  perhaps  now 
be  held  that  the  subsequent  promise  is  only  evidence  of  what  the 
parties  thought  the  service  worth  (6).13 

(a)  "  It  is  not  reasonable  that  one  consideration  would  not  support  an 
man  should  do  another  a  kindness,  action  of  debt,  but  was  enough  for 
and  then  charge  him  with  a  recom-  assumpsit,  Marsh  v.  Rainsford  (1588) 
pense."      1   Wms.   Saund.  350.  2  Leon.  Ill  ;  Sidenham  v.  Worlington 

(b)  Lampleigh  v.  Brathwait  (1616)  (1595)  ib.  224;  Finch  Sel.  Ca.  337; 
Hob.  105,  and  1  Sm.  L.  C;  see  per  0.  W.  Holmes,  The  Common  Law. 
Erie  C.J.  13  C.  B.  N.  S.  at  p.  740.  286,  297.  The  theory  was  still  that 
The  Irish  case  of  Bradford  v.  Roul-  the  breach  of  promise  was  aji  action- 
ston  (1858)  8  Ir.  C.  L.  Rep.  468,  able  wrong  because  of  an  existing 
will,  for  English  lawyers  at  least,  relation  between  the  parties  which 
hardly  outweigh  this  dictum ;  and  created  a  special  duty,  not  that  an 
the  doctrine  would  seem  to  be  open  executory  contract,  as  such,  created 
to  examination  in  the  C.  A.,  see  per  an  obligation ;  and  on  that  theory 
Bowen  L.J.  Stewart  v.  Casey  [1892]  there  was  no  reason  why  the  promise 
1  Ch.  at  p.  115,  61  L.  J.  Ch.  61.  See  and  the  consideration  should  be  si- 
Anson,  pp.  102-110,  and  cp.  Clark  multaneous.  But  Lord  Mansfield  can- 
Hare  on  Contracts,  246-249.  At  an  not  be  supposed  to  have  known  any- 
earlier  time  it  was  held  that  a  past  thing  of  this. 

S.  W.  Rep.  650  (Ky.)  ;  Musick  r.  Dodson,  76  Mo.  624;  Bragg  v.  Israel,  86 
Mo.  App.  338;  Kent  v.  Rand,  64  N.  H.  45;  Porterfield  v.  Butler,  47  Miss.  165; 
Condon  r.  Barr,  49  N.  J.  L.  53;  Long  v.  Rankin,  108  N.  C.  333;  Wilcox  v. 
Arnold,  116  N.  C.  708;  Hayward  v.  Barker,  52  Vt.  429;  Valentine  v.  Bell, 
66  Vt.  280;  Dixie  v.  Worthy,  11  U.  C.  Q.  B.  328.  See  also  Parker  v.  Cowan, 
1  Heisk.  51S.  But  see  contra,  Lafitte  r.  Selogny,  33  La.  Ann.  659;  Brownson 
v.  Weeks,  47  La.  Ann.  1042;  Wilson  r.  Burr,  25  Wend.  386;  Goulding  r. 
Davidson,  26  N.  Y.  604;  Hemphill  r.  McClimans,  24  Pa.  367;  Leonard  v. 
Duffin,  94  Pa.  218;  Brooks  v.  Merchants'  Bank,  125  Pa.  394;  Holden  v. 
Banes,  140  Pa.  63. 

But  when  the  original  promise  was  an  engagement  binding  her  separate 
estate,  the  subsequent  promise  has  been  sustained.  Viser  r.  Bertrand,  14 
Ark.  267 ;  Hubbard  v.  Bugbee,  55  Vt.  506 ;  Sherwin  v.  Sanders,  59  Vt.  499. 

l-ln  some  States  this  doctrine  is  still  law.  Montgomery  r.  Downey,  116 
la.  632;  Daily  V.  Minnick,  117  la.  563;  Pool  v.  Horner,  64  Md.  131;  Stuht 
i\  Sweesv,  48  Neb.  767;  Landis  v.  Royer,  59  Pa.  95;  Sutch's  Estate,  201  Pa. 
305;  Silverthorn  v.  Wiley,  96  Wis.  69;  Raife  v.  Gorell,  105  Wis.  636. 

In  Moore  i.  Elmer,  180  Mass.  15.  however,  Holmes,  C.  J.,  said:  "The 
modern  authorities  which  speak  of  services  rendered  upon  request  as  support- 
ing a  promise  must  be  confined  to  cases  where  the  request  implies  an  undertak- 
ing to  pay,  and  do  not  mean  that  what  was  done  as  a  mere  favor  can  be 
turned  into  a  consideration  at  a  later  time  by  the  fact  that  it  was  asked 


MUTUAL    PROMISES.  201 

Performance  of  another's  legal  duty.  It  is  *also  said  that  the  [  1 82 
voluntary  doing  by  one  party  of  something  which  the  other  was  legally 
bound  to  do  is  a  good  consideration  for  a  subsequent  promise  of  recom- 
pense. But  the  authority  for  this  proposition  is  likewise  found  to  be 
unsatisfactory.  Not  only  is  it  scanty  in  quantity,  but  the  decisions, 
so  far  as  they  did  not  proceed  on  the  now  exploded  ground  that  moral 
obligation  is  a  sufficient  consideration,  appear  to  rest  on  facts  es- 
tablishing an  actual  tacit  contract  independent  of  any  subsequent 
promise. 

Acknowledgment  of  barred  debts.  Another  exceptional  or  apparently 
exceptional  case  which  certainly  exists  is  that  of  a  debt  barred  by  the 
Statute  of  Limitation,  on  which  the  remedy  may  be  restored  by  a  new 
promise  on  the  debtor's  part.  It  is  said  that  the  legal  remedy  is  lost 
but  the  debt  is  not  destroyed,  and  the  debt  subsisting  in  this  dormant 
condition  is  a  good  consideration  for  a  new  promise  to  pay  it.  This 
is  not  logically  satisfying,  and  in  fact  it  belongs  to  the  now  discredited 
view  of  past  consideration.  There  is  no  real  equivalent  for  the  new 
promise,  and  the  only  motive  that  can  generally  be  assigned  for  it 
is  the  feeling  that  it  would  be  morally  wrong  not  to  pay.  It  seems 
better  at  this  day  to  say  that  the  law  of  limitation  does  not  belong 
to  substantive  law  at  all,  but  is  a  special  rule  of  procedure  made  in 
favour  of  the  debtor,  who  may  waive  its  protection  if  he  deliberately 
chooses  to  do  so  (c). 

Mutual  promises.  The  most  characteristic  rule  in  our  law  of  con- 
sideration, and  the  most  important  for  the  business  of  life,  is  that 
mutual  promises  are  sufficient  consideration  for  one  another.14    When 

(c)    See  more  on  this  point  in  Ch.  XIII. 

for.  See  Langdell,  Contracts,  §  92  et  seq.;  Chamberlin  r.  Whitford,  102  Mass. 
448,  450;  Dearborn  l".  Bowman,  3  Met.  155,  158;  Johnson  v.  Kimball,  172 
Mass.  398,  400."  See  also  Walker  v.  Brown,  104  Ga.  357;  Holloway  v.  Rudy. 
(Ky.)   60  S.  W.  Rep.  650;  Stoneburner  v.  Motley,  95  Va.  784. 

14  There  has  been  much  difference  of  opinion  on  the  elementary  question  of 
the  essential  element  of  consideration  in  bilateral  contracts.  The  learned 
author  finds  this  element  in  the  legal  detriment  imposed  by  a  binding  promise, 
and  any  new  and  distinct  mutual  promises  made  by  capable  parties,  and  not 
illegal,  he  regards  as  necessarily  binding.  This  is  also  Prof.  LangdelFs  view. 
Summary,  §  84;  XIV.  Harv.  L.  Rev.  496.  Prof.  Ames  finds  in  the  mere 
making,  on  request,  a  promise,  animo  contrahendi,  a  sufficient  consideration. 
XIII.  Harv.  L.  Rev.  29.  This  view  leads  even  more  absolutely  to  the  result 
that  any  promise  whatever  not  in  violation  of  public  policy  may  be  sufficient 
consideration  to  support  a  counter-promise.  To  the  late  Professor  Wald,  as 
well  as  the  present  editor,  it  has  seemed  that  under  the  authorities,  no 
promise  could  be  good  consideration  for  a  counter-promise,  unless  the  per- 
formance of  the  promise  would  or  might  impose  a  legal  detriment  upon  the 
promisor.  Doubtless,  if  for  any  reason,  for  instance,  lack  of  capacity  on  the 
part  of  the  promisor,  a  promise  is  void  in  law,  it  cannot  serve  as  consideration 


202  CONSIDERATION. 

the  subject  was  still  novel  it  would  not  have  been  difficult,  one  would 
183]  think,  to  frame  plausible  *arguments  to  the  contrary.  However, 
there  is  very  little  trace  of  opposition  to  it  in  our  books.  As  early 
as  1555,  the  validity  of  reciprocal  promises  passed  without  question 
in  a  case  reported  on  another  point  (d).  In  1615  it  was  disputed 
(we  are  not  told  on  what  grounds),  and  finally  affirmed  (e).  The 
promises  must  be  exchanged  for  one  another  at  the  same  time  (e), 
and  each  of  them  must  be  binding  on  the  face  of  it,  that  is,  must 
not  be  unenforceable  for  any  intrinsic  reason.  A  promise  which  pur- 
ports to  be  merely  honorary,  or  which  is  invalidated  by  any  rule  of  gen- 
eral policy  or  special  provision  of  positive  law,  is  no  consideration  (/). 
It  is  true  that  the  promise  itself,  not  the  obligation  thereby  created,  is 
the  consideration  (g)  ;  still,  the  value  of  a  promise  does  not  consist  in 
the  act  of  promising,  any  more  than  the  value  of  a  negotiable  in- 
strument consists  in  a  piece  of  paper  with  writing  on  it,  but  in  the 
assurance  of  the  performance  to  which  the  promisor  obliges  himself, 
or,  at  worst,  of  damages  for  his  default.  A  promise  may  be  incapable 
of  being  sued  on  (gg) ,  and  therefore  incapable  of  being  a  consideration 

(d)  Pecke  v.  Redman,  Dyer,  113.  at  p.  34,  that  a  promise  which  is  and 

(e)  Nichols  v.  Baynbred,  Hobart,  is  known  to  be  merely  honorary  may 
88,  Finch  Sel.  Ca.  336.  "  Nichols  be  a  good  consideration,  he  seems  to 
brought  an  assumpsit  against  Rayn-  overlook  the  undisputed  authority  of 
bred,  declaring  that  in  consideration,  Harrison  v.  Cage  (last  note).  Cer- 
that  Nichols  promised  to  deliver  the  tainly  some  men's  honorary  promises 
defendant  to  his  own  use  a  cow,  the  are  in  fact  worth  more  than  some 
defendant  promised  to  deliver  him  men's  legal  promises,  but  the  law 
fifty  shillings :  adjudged  for  the  c  not  estimate  or  regard  this.  Chief 
plaintiff  in  both  Courts,  that  the  Justice  0.  W.  Holmes,  on  the  other 
plaintiff  need  not  to  aver  the  delivery  hand,  suggests  that  every  legal  prom- 
of  the  cow,  because  it  is  promise  for  ise  is  really  in  the  alternative  to  per- 
promise.  Note  here  the  promises  form  or  to  pay  damages:  which  can 
must  be  at  one  instant,  for  else  they  only  be  regarded  as  a  brilliant  para- 
will  be  both  niida  pacta."  See  inter-  dox.  It  is  inconsistent  not  only  with 
mediate  cases  collected  by  Prof.  Ames  tie  existence  of  equitable  remedies, 
in  Harv.  Law  Eev.  xiii.  32,  n.  but    with    the   modern    common    law 

(f)  Harrison  v.  Cage,  5  Mod.  411;  doctrine  that  premature  refusal  to 
Langdell,  "  Mutual  Promises  as  a  perform  may  be  treated  at  once  as  a 
Consideration  for  each  other,"  Harv.  breach.  See  163  TJ.  S.  at  p.  600 ; 
Law  Rev.  xiv.  496,  504.  Harriman,  §  552. 

(g)  Ames,  "Two  Theories  of  Con-  (gg)  In  many  cases  a  promise  may 
?ideration,"  Harv.  Law  Rev.  xiii,  29,  be  actionable  though  not  capable,  in 
32.     But  when  Prof.  Ames  suggests,  fact  or  in  law,  of  performance. 

for  a  counter-promise,  but  the  law  makes  also  the  same  requirement  of 
detriment  in  regard  to  performance  which  is  promised  that  it  makes  in 
regard  to  the  consideration  in  unilateral  contracts.  See  VIII.  Harv.  L.  Rev. 
27.  The  cases  testing  the  correctness  of  this  view  are  promises  to  forbear 
a  groundless  claim  against  a  third  person  in  jurisdictions  where  forbear- 
ance of  such  a  claim  against  the  promisee  himself  is  not  a  good  consideration, 
promises  to  forbear  to  commit  a  tort  against  a  third  person,  and  especially 
the  case  subsequently  discussed  of  promises  to  perform  a  contractual  duty  to  a 
third  person. 


PROMISES   TO   PERFORM    EXISTING   DUTY.  203 

for  a  *counter-promise,  for  various  reasons  which  we  have  exam-  [  1 84 
ined  or  shall  examine  under  their  proper  heads.  Such  reasons  do  not 
form  part  of  the  doctrine  of  Consideration,  as  is  shown  by  the  fact  that 
the  same  or  similar  reasons  exist  and  are  applied  in  the  modern 
Eoman  law  and  national  bodies  of  law  derived  from  it,  where  the 
Common  Law  rules  of  Consideration  are  unknown  (h).  In  many 
cases  a  promisor  has  the  option  of  avoiding  his  contract  for  some 
cause  existing  at  the  date  of  the  promise.  But  in  all  such  eases 
the  contract  is  valid  until  rescinded,  and  the  right  to  rescind  it  may 
be  lost  by  events  beyond  the  promisor's  control;  so  there  is  no  diffi- 
culty in  treating  his  promise  as  a  good  consideration. 

Certainty  required.  Since  a  promise  which  is  to  be  a  good  considera- 
tion for  a  reciprocal  promise  must  be  such  as  can  be  enforced,  it 
must  be  not  only  lawful  but  reasonably  definite.  Thus  a  promise  by 
a  son  to  his  father  to  leave  off  making  complaints  of  the  father's 
conduct  in  family  affairs  is  no  good  consideration  to  support  an 
accord  and  satisfaction,  for  it  is  too  vague  to  be  enforced  (i).  And 
upon  a  conveyance  of  real  estate  without  any  pecuniary  consideration 
a  covenant  by  the  grantee  to  build  on  the  land  granted  such  a  dwelling- 
house  as  he  or  his  heirs  shall  think  proper  is  too  vague  to  save  the 
conveyance  from  being  voluntary  within  27  Eliz.  c.  4  (h). 

Promises  of  a  thing  one  is  already  bound  generally  or  to  the  promisee  to  do. 

Similarly,  neither  the  promise  to  do  a  thing  nor  the  actual  doing 
of  it  will  be  a  good  consideration  if  it  is  a  thing  which  the  party 
is  already  bound  to  do  either  by  the  general  law  or  by  a  subsisting 
contract  with  the  other  party  (I).  It  seems  obvious  that  an  express 
promise  by  *A.  to  B.  to  do  something  which  B.  can  already  call  [  1 85 
on  him  to  do  can  in  contemplation  of  law  produce  no  fresh  advantage 
to  B.  or  detriment  to  A.  (m).15     But  the  doing  or  undertaking  of 

(7i)    Thus  the  question  of  the  per-  (7c)   Bosher  y.  Williams   (1875)   L. 

formance  being  possible  is  irrelevant  R.  20  Eq.  210,  44  L.  J.  Ch.  419. 

here.     In   any  case  the   language  of  (Z)     See   Leake,    538;    and   besides 

2  Wms.  Saund.  430  and  of  the  dicta  authorities    there    given,    Deacon    v. 

there  relied  on  is  much  too  wide.  Gridley  (1854)   15  C.  B.  295,  24  L.  J. 

(i)   White  v.  Bluett  (1853)  23  L.  J.  C.  P.   17;   and  the  judgment  on  the 

Ex.    36 ;    this    seems    the   ratio    deci-  7th    plea    in    Mallalieu    v.    Hodgson 

dendi,  though  so   expressed   only  by  (1851)    16  Q.  B.  689,  20  L.  J.  Q.  B. 

Parke  B.,  who  asked  in  the  course  of  339. 

argument,    "Is    an    agreement    by   a  (m)    Some  American   courts,  how- 
father  in   consideration  that  his  son  ever,    hold   otherwise:    Harriman   on 
will    not    bore    him    a   binding   con-  Contracts,  §  117. 
tract?" 

15  And  yet,  if  the  promise  were  binding  the  Statute  of  Limitations  would 
begin  to  run  anew,  a  legal  detriment  to  one  party  and  benefit  to  the  other. 


204  CONSIDERATION. 

anything  beyond  what  one  is  already  bound  to  do,  though  of  the  same 
kind  and  in  the  same  transaction,  is  a  good  consideration.  A  promise 
of  reward  to  a  constable  for  rendering  services  beyond  his  ordinary 

The  result  supported  by  the  learned  author  and  by  the  weight  of  authority, 
therefore,  does  not  square  with  his  test  of  consideration.  It  is  submitted 
that  the  new  agreement  is  not  good  consideration  not  because  the  promise 
is  not  itself  a  detriment,  but  because  the  performance  promised  is  not.  That 
the  consideration  is  not  good  is  the  prevailing  doctrine.  Harris  v.  Watson, 
Peake,  72;  Stilk  v.  Myrick,  2  Camp.  317;  Fraser  r.  Hatton,  2  C.  B.  N.  S.  517; 
Jackson  r.  Cobbin,  8  M.  &  W.  790;  Mallalieu  r.  Hodgson,  16  Q.  B.  689;  Harris 
v.  Carter,  3  E.  &  B.  559;  Alaska  Packers'  Assoc,  r.  Domenico,  117  Fed.  Rep. 
99  (C.  C.  A.)  ;  Main  Street  Co.  v.  Los  Angeles  Co.,  129  Cal.  301;  Bush  v. 
Rawlins,  S9  Ga.  117;  Davis  r.  Morgan,  117  Ga.  504  (cp.  Poland  Paper  Co. 
r.  Foote,  US  Ga.  458)  ;  Nelson  v.  Pickwick  Associated  Co.,-  30  111.  App.  333: 
Goldsborough  r.  Gable,  140  111.  269;  Moran  v.  Peace,  72  111.  App.  135,  139; 
Allen  r.  Rouse,  78  111.  App.  69;  Mader  r.  Cool,  14  Ind.  App.  299;  Ayres  v.  Chi- 
cago, &c.  R.  R.  Co.,  52  la.  478;  McCarty  r.  Hampton  Building  Assoc,  61  la.  287; 
Westeott  v.  Mitchell,  95  Me.  377;  Storck  i\  Mesker,  55  Mo.  App.  26;  Esterly 
Co.  r.  Pringle,  41  Neb.  265;  Voorhees  P.  Combs,  33  N.  J.  L.  494;  Bartlett  v. 
Wyman,  14  Johns.  260;  Vanderbilt  v.  Schreyer,  91  N.  Y.  392;  Carpenter  V. 
Taylor,  164  N.  Y.  171;  Schneider  r.  Henschenheimer,  55  N.  Y.  Supp.  630; 
Festerman  r.  Parker,  10  Ired.  474;  Gaar  v.  Green,  6  N.  Dak.  48;  Erb  c. 
<  Brown,  69  Pa,  216;  Jones  v.  Risley,  91  Tex.  1;  Tolmie  v.  Dean,  1  Wash.  Ter. 
46;  Magoon  t.  Marks,  11  Hawaii,  764.  See  also  Hartley  v.  Ponscnby,  7 
E.  &  B.  872;  Eastman  v.  Miller,  113  la.  404;  Proctor  v.  Keith,  12  B.  Mon. 
252;  Eblin  r.  Miller's  Exec,  78  Ky.  371;  Endriss  v.  Belle  Isle  lee  Co.,  49 
Mich.  279;  Conover  r.  Stillwell,  34  N.  J.  L.  54,  57. 

In  a  few  jurisdictions  the  contrary  view  is  taken  on  the  ground  that  the 
subsequent  bargain  includes  a  rescission  of  the  earlier.  Stoudenmeier  i.  Wil- 
liamson, 29  Ala.  558;  Bishop  v.  Busse,  69  111.  403;  Cooke  v.  Murphy,  70 
111.  96;  Coyner  v.  Lynde,  10  Ind.  282;  Holmes  v.  Doane,  9  Cush.  135; 
Rollins  v.  Marsh,  128  Mass.  116;  Rogers  r.  Rogers,  139  Mass.  440;  Thomas 
v.  Barnes,  156  Mass.  581,  584;  Brigham  v.  Herrick,  173  Mass.  460,  467; 
Moore  v.  Detroit  Locomotive  Works,  14  Mich.  266 ;  Goebel  v.  Linn,  47  Mich. 
489;  Conkling  r.  Tuttle,  52  Mich.  130;  Osborne  r.  O'Reilly,  42  N.  J.  Eq. 
467;  Lattimore  v.  Harsen,  14  Johns.  330;  Stewart  r.  Keteltas,  36  N.  Y.  388. 
See  also  Peck  v.  Requa,  13  Gray,  407;  King  v.  Duluth  Ry.  Co.,  61  Minn. 
482;  Hansen  v.  Gaar,  63  Minn.  94;  Gaar  i:  Green,  6  N.  Dak.  48;  Dreifus  r. 
Columbian  Co.,   194  Pa.  475. 

Any  promise  made  in  consideration  of  the  payment,  in  whole  or  in  part, 
of  a  debt  already  due,  therefore,  is  not  binding.  Railway  Co.  r,  Clark,  92 
Fed.  Rep.  968;  Skinner  r.  Gold  Min.  Co.,  96  Fed.  Rep.  735;  Barron  v.  Vand- 
vert,  13  Ala.  232;  Hughes  v.  So.  Warehouse  Co.,  94  Ala.  613;  Thompson  v. 
Robinson,  34  Ark.  44;  Liening  r.  Gould,  13  Cal.  598;  Solarv  r.  Stultz,  22 
Fla.  263;  Carlton  v.  Western,  etc.,  R.  Co.,  81  Ga.  531;  Smith  r.  Tyler,  51 
Ind.  512;  State  r.  Davenport,  12  la.  335;  Adams  County  v.  Hunter,  78  la. 
283;  Pemberton  r.  Hoosier,  1  Kan.  108;  Ingalls  v.  Sutliff,  36  Kan.  444; 
Jenness  r.  Lane,  26  Me.  475;  Smith  v.  Bartholomew,  1  Met.  276;  Warren  r. 
Hodge,  121  Mass.  106;  Ness  v.  Minn.  &  Col.  Co.,  87  Minn.  413;  Price  v. 
Cannon,  3  Mo.  453;  Wolz  v.  Parker,  134  Mo.  458;  Watts  v.  French,  19 
N.  J.  Eq.  407;  Parmalee  v.  Thompson,  45  N.  Y.  58;  Arend  r.  Smith,  151 
N.  Y.  502;  Roberts  v.  Bank,  8  N.  Dak.  474;  Jenkins  v.  Clarkson,  7  Ohio 
72;  Trumbull  r.  Brock,  31  Ohio  St.  649;  Charch  r.  Charch,  57  Ohio  St.  561; 
Hanks  v.  Barron,  95  Tenn.  275;  Pomeroy  v.  Slade,  16  Vt.  220;  Valentine 
V.  Bell,  66  Vt.   281;   Smith  v.  Phillips,   77  Va.   548. 

See  post,  n.  17,  20,  21. 


PROMISES  TO  PERFORM  EXISTING  DUTY.  205 

duty  in  the  discovery  of  an  offender  is  binding  (n)  :16  so  is  a  promise 
of  extra  pay  to  a  ship's  crew  for  continuing  a  voyage  after  the  number 
of  hands  has  been  so  reduced  by  accident  as  to  make  the  voyage 
unsafe,  so  that  the  crew  are  not  bound  to  proceed  under  their  origi- 
nal articles  (o).  So,  it  is  conceived,  would  be  a  promise  in  con- 
sideration of  the  promisee  doing  at  a  particular  time,  or  in  a  par- 
ticular way,  something  which  otherwise  he  must  do,  but'  has  the 
choice  of  doing  in  more  than  one  way,  or  at  any  time  within  certain 
limits.  Again,  there  will  be  consideration  enough  for  the  promise 
if  an  existing  right  is  altered  or  increased  remedies  given.  Thus  an 
agreement  to  give  a  debtor  time  in  consideration  of  his  paying  the 
same  interest  that  the  debt  already  carries  is  inoperative,  but  an 
agreement  to  give  time  or  accept  reduced  interest  in  consideration 
of  having  some  new  security  would  be  good  and  binding.  The  common 
proviso  in  mortgages  for  reduction  of  interest  on  punctual  payment 
— i.  e.,  payment  at  the  very  time  at  which  the  mortgagor  has  cove- 
nanted to  pay  it — seems  to  be  without  any  consideration,  and  it  is 
conceived  that  if  not  under  seal  such  a  proviso  could  not  be  en- 
forced (p).1"    Again,  the  rule  does  not  apply  if  the  promise  is  in  the 

(n)  England  v.  Davidson  (1840)  11  (p)  This  could  be  at  once  provided 

A.  &  E.  856,  52  R.  R.  522.  against,    however,    if    so    desired,    by 

(o)  Hartley  v.  Ponsoriby  (1857)  7  fixing  the  times  for  "punctual  pay- 
E.  &  B.  872,  26  L.  J.  Q.  B.  322.  ment "  a  single  day  earlier  than  those 

named  in  the  mortgagor's  covenant. 

16  Morrell  v.  Quarles,  35  Ala.  544 ;  Hayden  v.  Souger,  56  Ind.  42 ;  Bronnen- 
berg  v.  Coburn,  110  Ind.  169;  Trundle  t:.  Riley,  17  B.  Mon.  396;  Pilie  r. 
New  Orleans,  19  La.  Ann.  274;  Studley  v.  Ballard,  169  Mass.  295;  Gregg 
v.  Pierce,  53  Barb.  387;  McCandless  v.  Alleghany,  &c.  Co.,  152  Pa.  139; 
Texas  Cotton- Press  Co.  v.  Mechanics'  Co.,  54  Tex.  319;  Kasling  v.  Morris,  71 
Tex.  584;  Davis  v.  Munson,  43  Vt.  576;  Reif  v.'  Page,  55  Wis.  496.  See  also 
Long  f.  Neville,  36  Cal.  455;  Marsh  v.  Gold,  2  Pick.  289;  Commonwealth 
f.  Vandyke,  57  Pa.  34. 

But  if  no  more  is  done  than  the  legal  duty  requires  there  is  not  sufficient 
consideration.  Witty  t\  Southern  Pacific  Co.,  76  Fed.  Rep.  217;  Morrell 
v.  Quarles,  35  Ala.  544,  548;  Grafton  v.  St.  Louis,  &c.  Ry.  Co.,  51  Ark. 
504;  Lees  v.  Colgan,  120  Cal.  262;  Matter  of  Russell's  Application,  51 
Conn.  577;  Stacy  v.  State  Bank,  5  111.  91;  Hogan  v.  Stophlet,  179  111.  150; 
Hayden  V.  Souger,  56  Ind.  42,  48;  Marking  v.  Needy,  8  Bush,  22;  Pool  v. 
Boston,  5  Cush.  219;  Davies  v.  Burns,  5  Allen,  349;  Brophy  v.  Marble,  118 
Mass.  548;  Studley  v.  Ballard,  169  Mass.  295;  Foley  v.  Piatt,  105  Mich.  635; 
Warner  v.  Grace,  14  Minn.  487;  Day  v.  Putnam  Ins.  Co.,  16  Minn.  408; 
Ex  parte  J.  W.  Gore,  57  Miss.  251;  Kirk  v.  Merry,  23  Mo.  72;  Thornton  v. 
Missouri,  &c.  Ry.  Co.,  42  Mo.  App.  58;  Hatch  v.  Mann,  15  Wend.  44;  Gil- 
more  v.  Lewis,  12  Ohio,  281;  Smith  v.  Whildin,  10  Pa.  39;  Stamper  c. 
Temple,  6  Humph.  113;  Brown  r.  Godfrey,  33  Vt.  120. 

iTMcCann  v.  Lewis,  9  Cal.  246:  Crossman  v.  Wohlleben,  90  111.  537;  Abel 
v.  Alexander,  45  Ind.  523;  Hume  v.  Mazelin,  84  Ind.  574;  Hunt  v.  Postlewait, 
28  la.  427;  Wilson  v.  Powers,  130  Mass.  127;  Hale  v.  Forbis,  3  Mont.  395; 
Kellogg  v.  Olmsted,  25  N.  Y.  189. 

But  it  has  been  held,  and  it  is  submitted  correctly  held,  that  a  promise 
by  a  debtor  to   pay,  until   a  fixed  date,  the  same  interest  which  the   debt 


206  COXSIDEEATION. 

nature  of  a  compromise,  that  is,  if  a  reasonable  doubt  exists  at  the 
186]  time  whether  the  thing  ^promised  be  already  otherwise  due  or 
not,  though  it  should  be  afterwards  ascertained  that  it  was  so.  We 
shall  return  to  this  when  we  speak  of  forbearance  as  a  consideration. 

Performance  of  subsisting  obligation  to  third  person.  Difficult  ques- 
tions arise  when  we  have  a  promise  made  in  consideration  of  the 
promisee  doing  or  promising  to  do  something  which  a  subsisting 
contract  with  a  third  person  has  already  bound  him  to  do.  Such 
cases  are  not  frequent,  and  there  has  not  yet  been  any  full  or  satisfy- 
ing judicial  discussion  of  them.  It  would  seem  that,  being  infrequent 
and  of  no  great  importance  in  current  affairs,  they  should  be  dis- 
posed of  by  the  strict  application  of  settled  principles,  and  that,  even 
if  such  application  should  lead  to  apparently  fine  distinctions,  the 
principles  ought  not  to  be  tampered  with  merely  to  avoid  that  re- 
sult. From  this  point  of  view,  Andrew's  performance  of  his  binding 
promise  to  Peter  does  not  appear  capable  of  being  a  consideration 
for  a  new  promise  by  John  to  Andrew ;  not  because  it  cannot  be  bene- 
ficial to  John,  for  this  it  may  very  well  be,  but  because  in  contempla- 
tion of  law  the  performance  is  no  new  detriment  to  Andrew,  but  on 

already  bears,  is  a  good  consideration  for  a  promise  to  give  him  time  until 
that  date ;  for  by  such  agreement  the  debtor  deprives  himself  of  the  right  to 
pay  the  debt  and  stop  the  interest  before  that  date,  and  the  creditor  gets 
the  benefit  of  an  interest-bearing  investment  for  a  fixed  period  instead  of  a 
period  determinable  at  will.  Pierce  i.  Goldsberry,  31  Ind.  52;  Royal  r. 
Lindsay,  15  Kan.  591;  Shepherd  r.  Thompson,  98  Ky.  668;  Chute  v.  Pattee, 
37  Me.  102;  Simpson  v.  Evans,  44  Minn.  419;  Keirn  r.  Andrews,  59  Miss. 
39;  Moore  r.  Redding,  69  Miss.  841;  Fowler  v.  Brooks,  13  N.  H.  240; 
MeComb  v.  Kittredge,  14  Ohio,  348;  Fawcett  v.  Freshwater,  81  Ohio  St.  637; 
Benson  v.  Phipps,  87  Tex.  578. 

There  are,  however,  a  number  of  decisions  to  the  contrary.  Abel  v. 
Alexander,  45  Ind.  523;  Hume  v.  Mazelin,  84  Ind.  574;  Holmes  v.  Boyd,  90 
Ind.  332;  Davis  v.  Stout,  126  Ind.  12;  Wilson  v.  Powers,  130  Mass.  127;  Hale 
v.  Forbis,  3  Mont.  395;  Grover  v.  Hoppock,  2  Dutch.  191;  Kellogg  v.  Olmsted, 
25  N.  Y.  189 ;  Parmalee  v.  Thompson,  45  N.  Y.  58 ;  Olmstead  v.  Latimer,  158 
N.  Y.  313.  See  also  Hopkins  !'.  Logan,  5  M.  &  W.  241;  Vereycken  v.  Vanden- 
brooks,  102  Mich.  119;  Stryker  v.  Vanderbilt,  3  Dutch.  68;  Toplitz  r.  Bauer, 
161  N.  Y.  58:  McNish  v.  Reynolds,  95  Pa.  483;  Gibson  v.  Daniel,  17  Tex. 
173;  Mclntyre  v.  Ajax  Mining  Co.,  20  Utah,  323,  336;  Flanders  v.  Fay, 
40  Vt.  316;   Stickler  r.  Giles,  9  Wash.  147;  Price  v.  Mitchell,  23  Wash.  742. 

A  promise  by  a  creditor  to  forbear  until  a  fixed  date  in  return  for  the  debtor's 
promise  to  pay  the  debt  with  interest,  at  the  same  rate  as  the  debt  legally 
bears  by  that  date,  is  not,  however,  a  valid  contract,  as  the  debtor  does  not 
agree  to  refrain  from  any  legal  right.  He  may  pay  the  debt  and  stop  the  in- 
terest at  any  time.  McManus  r.  Bark,  L.  R.  5  Ex.  65 ;  Austin  Co.  v.  Bahn,  87 
Tex.  582. 

Where  there  was  a  bona  fide  dispute  as  to  the  medium  of  payment  required 
by  an  obligation,  satisfaction  in  one  medium  was  held  to  extinguish  the  debt 
though  less  in  amount  than  the  debt.  San  Juan  v.  St.  Johns  Gas  Co.,  195 
U.  S.  510.  Cp.  Saunders  v.  Whitcomb,  177  Mass.  457.  See  further,  post, 
n.  20,  21. 


PROMISES   TO   PElil'ORM   EXISTING   DUTY.  207 

the  contrary  is  beneficial  to  him,  inasmuch  as  it  discharges  him  of  an 
existing  obligation.  Therefore  the  necessary  element  of  detriment 
to  the  promisee  is  wanting  (q).  It  seems  therefore  that  if  a  promise 
is  given  in  exchange  merely  for  the  performance  of  the  promisee's  duty 
under  an  existing  contract  with  a  third  person,  it  is  not  binding. 
Authority,  however,  is  the  other  way  so  far  as  it  goes.  Performance 
of  this  kind  has  been  held  a  sufficient  consideration  in  at  least  three 
English  reported  cases  (r),  one  from  the  early  seventeenth  and  two 
from  the  middle  part  *of  the  nineteenth  century.  In  the  first  of  [  1 87 
these  (s)  the  plaintiff  and  defendant  were  jointly  liable  as  sureties 
on  a  bond,  long  before  the  modern  equitable  doctrine  of  contribution 
between  co-sureties  was  established.  In  consideration  of  the  plaintiff 
paying  the  whole  debt,  the  defendant  promised  to  repay  him  half. 
The  promise  was  held  binding,  but  the  real  difficulty  does  not  appear 
to  have  been  dealt  with  (t).  In  the  second  case  (u)  the  plaintiff, 
being  engaged  to  be  married,  did  (on  the  facts  as  assumed)  proceed 
with  the  marriage  on  the  faith  of  a  promise  by  his  uncle,  the  defend- 
ant's testator,  to  pay  him  an  annuity  during  the  promisor's  life.  The 
plaintiff  succeeded  in  an  action  for  arrears  of  the  annuity.  To  the 
majority  of  the  Court  it  appeared  sufficient  to  say  that  the  marriage 
took  place  at  the  testator's  request.  But  this  (whether  rightly  said 
or  not)  does  not  answer  the  question  whether  the  simple  fulfilment 
of  a  promise  of  marriage  already  binding  on  him  could  be  any  legal 
detriment  to  the  promisee.  The  third  case  (a),  in  an  entirely  different 
subject-matter,  also  goes  on  the  ground  of  the  performance  being,  in 
point  of  fact,  both  a  benefit  to  the  promisor  and  a  detriment  to  the 
promisee.     Here  the  defendant's  promise  was  to  unload  a  cargo  of 

(q)  In  point  of  fact  there  may  be  (t)  It  is  certainly  not  touched  by 
some,  for  it  may  be  that  he  might  the  statement,  perfectly  correct  in  it- 
have  omitted  the  performance  with  self,  of  Dodderidge  J. :  "  If  the  con- 
impunity.  But  this  is  like  the  case  sideration  puts  the  other  to  charge, 
of  a  merely  honorary  promise.  The  though  it  be  no  ways  at  ah  profitable 
law  is  made  to  fit  the  normal  con-  to  him  who  made  the  promise,  yet 
ditions  of  men's  affairs.  If  every  this  shall  be  a  good  consideration  to 
man's  word  were  as  good  as  his  bond,  raise  a  promise." 

or  nobody  cared  .to  enforce  his  rights,  (u)  Shadwellv.  Shadwell  (1860)  9 

there  would  be  no  place  for  any  law  C.  B.  N.  S.   159.  30  L.  J.  C.  P.   145, 

of  contract  at  all.  Byles  J.   diss,  chiefly  on  the  ground 

(r)  The  point  might  perhaps  have  that  there  was  really  no  animus  cow- 
been  considered  in  Jones  v.  Waite  trahendi,  but  only  an  act  of  bounty, 
(1839,  1842)  5  Bing.  N.  C.  341,  9  CI.  cp.  Langdell,  §  68.  If  there  were  any 
&  F.  88,  50  R.  R.  705,  717,  but  the  animus  contrahendi,  an  acceleration 
argument  and  decision  were  on  other  of  the  marriage  at  the  testators  re- 
grounds,  quest  would  no  doubt  have  made  a 

(s)  Baggev.  Slade  (1616)  3  Bulst.  good  consideration,  but  that  was  not 

162.     This    decision   was   apparently  averred. 

forgotten    until    Prof.    Ames    lately  (x)  Scotson  v.  Pegg  (1861)  6  H.  & 

called  attention  to  it.  N.  295,  30  L.  J.  Ex.  225. 


208  COXSIDKliATION. 

coal  at  a  certain  rate  in  consideration  of  the  plaintiff  delivering  the 
coal  to  him,  which  the  plaintiff  was  already  bound  to  do  under  a  prior 
contract  with  the  shippers  of  the  coal,  from  whom  the  defendant  had 
bought  it.  There  is  a  suggestion  in  the  course  of  the  argument  that 
188]  the  performance  requested  by  *the  defendant  may  have  added 
new  terms,  as  to  time  and  manner  of  delivery,  to  that  which  the 
plaintiff  was  already  bound  to  do,  and  it  may  be  that  the  plaintiff 
was  entitled  to  succeed  on  that  point,  if  properly  raised.  But  there 
is  nothing  of  the  kind  in  the  judgment.  It  seems  to  be  assumed  that 
the  rule  must  be  the  same  whether  the  consideration  relied  upon  is  a 
performance  already  due  to  a  third  party  or  a  new  promise  thereof 
to  the  defendant.  And  so  the  Supreme  Court  of  Massachusetts  has 
thought  only  a  few  years  ago  (y).  The  validity  of  this  assumption 
must,  however,  be  examined. 

Promise  to  perform  obligation  to  third  person  under  subsisting  contract. 

Let  us  now  take  the  case  of  a  promise  by  John  to  Peter  to  do  some- 
thing which  he  has  already  promised  William  to  do.  Such  a  promise 
may  obviously  create  a  moral  obligation ;  for  Peter  may  in  many  ways 
have  a  just  and  reasonable  interest  in  being  assured  that  John  will  per- 
form his  contract  with  William.  Then  is  there  any  reason  why  it 
should  not  create  a  legal  obligation,  if  supported  by  a  sufficient  con- 
sideration on  Peter's  part?  The  promise  is  a  new  and  distinct 
promise,  creating,  on  the  face  of  it,  a  new  and  distinct  duty  to  a 
new  party.  Duties  to  several  parties  to  perform  the  same  thing  are 
simultaneously  created  in  many  quite  common  forms  of  covenants. 
Why  should  they  not  be  created  by  successive  and  independent  acts? 
Will  any  one  deny  that  John's  promise  to  Peter  will  be  binding  if 
given  in  exchange  for  a  performance — say  immediate  payment  of 
money — by  Peter  ?  If  it  is  not,  this  must  be  the  result  of  some  special 
rule  of  legal  policy,  for  no  other  objection  seems  possible.  But  of 
any  such  rule  of  policy  there  is  no  trace.  If  then  the  promise  is 
binding  when  given  for  a  performance,  why  should  it  be  less  binding 
when  it  is  given  in  exchange  for  Peter's  promise  ?  There  is  no  reason 
in  the  nature  of  the  case  for  making  any  difference.18    If  there  were 

(y)   Abbott  v.  Doane   (1895)   163  Mass.  433. 

18  The  difference  is  this :  John's  promise  to  Peter,  when  given  in  exchange 
for  a,  payment  of  money  by  Peter,  is  binding  because  the  payment  of  money 
is  a  good  consideration.  Whether  the  promise  of  John  in  this  case  could  be 
good  consideration  is  immaterial  for  the  payment  of  money  needs  no  con- 
sideration. The  promise  is  not  illegal  and  the  parties  acted  under  no  mis- 
take. If,  however,  Peter  gives  a  promise  instead  of  money,  there  must  be 
good  consideration  on  both  sides.  Not  only  must  Peter's  promise  be  of  the  sort 
which  the  law  regards  as  sufficient,  but  John's  also  must  be,  or  neither 
is  enforceable,  and  the  disputed  question  is  whether  John's  promise  is  suffi- 
cient consideration  to  support  Peter's  promise. 


PROMISES   TO   PERFOEM    EXISTING   DUTY.  209 

a  positive  rule  of  law,  founded  on  reasons  of  policy,  for  not  allowing 
John's  promise  to  Peter  to  perform  his  contract  with  *William  [  1 89 
to  be  good,  then  John's  promise  would  be  no  consideration;  but  only 
because,  even  though  supported  by  sufficient  consideration  on  the  other 
side  and  satisfying  all  ordinary  requisites,  it  was  deprived  of  validity 
by  the  positive  rule,  and  therefore  made  incapable  of  having  any 
value  in  contemplation  of  law.  But  again,  no  such  positive  rule  can 
be  produced.  It  has  been  said  that  John's  promise  is  a  good  con- 
sideration only  if  it  is  binding,  and  we  have  no  right  to  assume  that 
it  is  binding.  The  answer  to  this  objection  is  that,  if  John's  promise 
can  be  binding,  it  is  made  so  by  the  counter-promise,  and  it  is  for 
the  objector  to  show  that  it  cannot  be.  The  objection,  in  truth,  if 
good  for  anything,  is  equally  good  to  prevent  mutual  promises  from 
ever  being  a  consideration  for  each  other;  for  in  every  such  case 
neither  promise,  taken  by  itself,  is  of  any  legal  force  or  value  (2). 

There  is  no  objection,  in  any  case,  to  a  promise  by  John  to  Peter 
not  to  rescind  a  subsisting  contract  with  Willifci,  or  not  to  accept 
a  waiver  or  release  of  it;  and  a  promise  in  that  form  would  certainty 
be  a  good  consideration. 

No  direct  decision  has  been  made  in  England  on  the  validity  of 
a  promise  to  perform  an  existing  contract  with  a  third  person. 
A  negative  solution  could  not  be  given,  it  is  apprehended,  without 
overruling  the  cases  in  which  performance  has  been  held  sufficient; 
while  a  positive  one,  if  the  argumeigt  above  submitted  be  sound,  might 
be  given  for  independent  reasons.  Not  that  I  am  at  all  desirous 
of  upholding  the  authority  of  the  cases  in  question.  I  venture  to 
6ubmit,  on  the  contrary,  that' they  were  wrongly  decided,  or  at  any 
rate  not  on  right  grounds.  What  is  *here  maintained  is  that  a  [  1 90 
promise  made  for  valuable  consideration,  and  otherwise  good  as 
between  the  parties,  is  not  the  less  valid  because  the  performance 
will  operate  in  discharge  of  an  independent  liability  of  the  promisor 
to  a  third  person  under  an  independent  contract  already  existing.10 

(z)   Prof.  Williston,  upholding  the  xiv.   496.     Prof.    Ames    (Harv.   Law 

objection  originally  raised  by  Sir  W.  Rev.  xii.  515,  xiii.  29,  35)   holds,  on 

Anson   (now  at  p.  98  of  his  9th  ed.),  the  contrary,  that  both  promise  and 

perceived  this,  and  proposed  to  meet  performance    are    good    consideration 

the  difficulty  by  constructing  an  en-  in   cases   of  this   class;   but  this   in- 

tirely  new   theory   of   mutual   prom-  volves  the  proposition  that  any  detri- 

ises:   Harv.  Law  Rev.  viii.  27.     Mr.  ment  in  fact  to  the  promisee  will  do, 

Langdell   has   dealt  with   the   objec-  which  I  cannot  accept.     Prof.  Harri- 

tion,  and  the  theory  founded  on  it,  in  man  (on  Contracts,  p.  67)  appears  to 

a   masterly   reply:    Harv.   Law   Rev.  agree  with  Prof.  Ames. 

19  The  weight  of  authority  in  this  country  is  to  the  effect  that  neither 
performance  nor  promise  of  performance  of  an  act  by  a  party  who  was  under 
legal  obligation  to  a  third  person  to  perform  that  act  will  serve  as  considera- 

14 


210  CONSIDEEATION. 

Rules  as  to  consideration  extended  to  the  discharge  of  contracts.  The 
doctrine  of  Consideration  has  been  extended  with  not  very  happy 
results  beyond  its  proper  scope,  which  is  to  govern  the  formation  of 
contracts,  and  has  been  made  to  regulate  and  restrain  the  discharge 
of  contracts.  For  example,  where  there  is  a  contract  of  hiring  with 
a  stipulation  that  the  wages  due  shall  be  forfeited  in  the  event  of 
the  servant  being  drunk,  a  promise  not  under  seal  to  pay  the  wages 
notwithstanding  a  forfeiture  is  not  binding  without  a  new  con- 
sideration (a).  It  is  the  rule  of  English  law  (now  referred  to  the 
same  reason,  though  really  older)  (&)  that  a  debt  of  100?.  may  be 
perfectly  well  discharged  by  the  creditor's  acceptance  of  a  beaver 
hat  or  a  peppercorn,  or  of  a  negotiable  instrument  for  a  less 
sum  (c),  at  the  same  time  and  place  at  which  the  100Z.  are  payable, 
or  of  ten  shillings  at  an  earlier  day  or  at  another  place,  but  that  noth- 
ing less  than  a  release  under  seal  will  make  his  acceptance  of  99Z.  in 

[a)      Monkman     v.      Shepherdson  (c)    Goddard  v.  O'Brien    (1882)    9 

(1840)    11  A.  &  E.  411,  52  R.  R.  390.        Q.  B.  D.  37;  Bidder  v.  Bridges  (1887) 
(6)    See  Harv.  Law  Rev.  xii.   521.       37  Ch.  Div.  406,  57  L.  J.  Ch.  300. 

tion.  Johnson's  Adm.  v.  Seller's  Adm.,  33  Ala.  265;  Havana  Press  Drill  Co.  v. 
Ashurst,  158  111.  115;  Peelman  r.  Peelman,  4  Ind.  612;  Ford  v.  Garner,  15 
Ind.  298;  Reynolds  v.  Nugent,  25  Ind.  328;  Ritenour  v.  Mathews,  42  Ind.  7; 
Harris  v.  Cassady,  107  Ind.  156;  Brownlee  v.  Love,  117  Ind.  420;  Newton  ('. 
Chicago,  &e.  Ry.  Co.,  66  la.  422;  Schuler  r.  Myton.  8  Kan.  282;  Ford  v.  Cren- 
shaw, 1  Litt.  *(Ky.)  68;  Holloway's  Assignee  v.  Rudy,  60  S.  W.  Rep.  650 
(Ky.)  ;  Putnam  v.  Woodbury,  68  Me.  58;  Northwestern  Bank  v.  Great  Falls 
Opera  House.  23  Mont.  1,  11;  Gordon  i:  Gordon,  56  N.  H.  170;  Vanderbilt 
u.  Schreyer,  91  N.  Y.  392;  Seybolt  V.  New  York,  &c.  R.  R.  Co.,  95  N.  Y.  562; 
Robinson  v.  Jewett,  116  N.  Y.  40;  Arend  v.  Smith,  151  N.  Y.  502;  Allen  v. 
Turck,  8  N.  Y.  App.  Div.  50;  Sherwin  r.  Brigham,  39  Ohio  St.  137;  Wimar 
v.  Overseers,  104  Pa.  317;  Hanks  v.  Barron,  95  Tenn.  275;  Kenigsberger  v. 
Wingate,  31  Tex.  42;  Davenport  r.  Congregational  Soc.,  33  Wis.  387.  This 
view  is  supported  also  by  Anson  (9th  ed.)  98,  and  Prof.  Huffcutt's  note; 
Clark,  (2d  ed.)  129;  VIII  Harv.  L.  Rev.  32.  But  see  contra,  Champlain  Co. 
v.  O'Brien,  .117  Fed.  Rep.  271;  Humes  v.  Decatur  Co.,  98  Ala.  461,  473; 
Merrick  v.  Giddings,  1  Mack.  (D.  C.)  394;  Hirsch  v.  Chicago  Carpet  Co.,  82 
111.  App.  234;  Donnelly  v.  Newbold,  94  Md.  220;  Abbott  v.  Doane,  163  Mass. 
433;  Day  r.  Gardner,  42  N.  J.  Eq.  199,  203;  Bradley  v.  Glenmary  Co.,  53  Atl. 
Rep.  49  (N.  J.  Eq.).  See  also  Green  v.  Kelley,  64  Vt.  309,  and  articles  by 
Professor  Ames,  12  Harv.  L.  Rev.  515;   13  ibid.  29,  also  Harriman,    (2nd  ed.). 

The  view  suggested  by  the  learned  author  distinguishing  between  perform- 
ance and  promise  of  performance,  though  supported  both  by  Prof.  Langdell, 
S'umm.  §  84,  XIV.  Harv.  L.  Rev.  496,  and  Prof.  Beale,  XVII.  Harv.  L.  Rev. 
71,  has  been  adopted  in  one  decision  only,  and  in  that  case  by  a  dictum,  Mer- 
rick v.  Giddings,  1  Mack.  (D.  C. )  394.  From  a  practical  standpoint  it  seems 
an  odd  distinction.  The  assurance  of  future  performance  given  by  a  promise 
may  be  an  excellent  thing,  but  to  hold  that  it  is  a  better  consideration  than 
actual   present  performance  seems   extreme. 

Similarly  performance  of  a  statutory  or  public  duty  will  not  support  a  prom- 
ise by  an  individual.  Voorhees  r.  Reed,  17  111.  App.  21;  Shortle  r.  Terre 
Haute,  &c.  R.  R.  Co.,  131  Ind.  338;  Grant  V.  Green,  41  la.  88;  Newton  v. 
Chicago,  &c.  Ry.  Co.,  66  la.  422;  Kansas  City,  &c.  R.  R.  Co.  v.  Morley,  45  Mo. 
App.   304;   Withers  v.  Ewing,  40  Ohio  St.  400. 


ACCORD    AND   SATISFACTION.  211 

money  at  the  same  time  and  place  a  good  discharge  (d)  :20  although 
modern  decisions  have  confined  .this  absurdity  within  the  narrowest 
possible  limits  (e).21     A  judgment  creditor  agreed  in  writing  with 

{d)   Pinnel's  case  (1602)  5  Co.  Rep.  paradoxical,   is   not   anomalous.      Its 

117,  confirmed  with  reluctance  by  the  numerical  logic  may  be  archaic,  but 

House   of   Lords    in   Foakes   v.   Beer  it  is  strictly  logical.     The'  Court  does 

(1884)  9  App.  Ca.  605,  54  L.  J.  Q.  B.  not   know   judicially   what   a   beaver 

130,  Lord  Blackburn  all  but  dissent-  hat  may  be  worth,  but  it  must  know 

ir.g.    The  Indian  Contract  Act  (s.  63,  that  10Z.  are  not  worth  201. 
illust.    6.)    is   accordingly  careful   to  (e)     See   the   notes   to    Cumber   v. 

express   the    contrary.      The    rule    in  1.  ane  (1719)  in  1  Sm.  L.  C. 
Pinnel's  case,  it  may  be  noted,  though 

20  The  doctrine  of  Foakes  r.  Beer  is  criticised  by  Professor  Ames  in  12  Harv. 
L.  Rev.  522  seq.,  both  on  the  authority  of  early  authorities  not  cited  by  the 
court  and  on  principle.  He  quotes  a  number  of  judicial  criticisms  of  the 
doctrine.  It  has,  however,  been  followed  in  this  country  so  widely  that  ex- 
cept where  changed  by  statute  it  may  be  regarded  as  established.  The  author- 
ities are  fully  collected  in  20  L.  R.  A.  785,  n;  57  Cent.  L.  J.  244.  A  few  re- 
cent decisions  are  Fire  Ins.  Association  v.  Wickham,  141  TJ.  S.  564,  578; 
Reynolds  v.  Reynolds,  55  Ark.  369;  Davidson  v.  Burke,  143  III.  139;  Beaver 
v.  Fulp,  136  Ind.  595;  Mannakee  v.  McCloskey,  23  Ky.  L.  Rep.  515;  Specialty 
Glass  Co.  v.  Daley,  172  Mass.  460;  Saunders  v.  Whitcomb,  177  Mass.  457; 
Leeson  v.  Anderson,  99  Mich.  247;  Murphy  v.  Kastner,  50  N.  J.  Eq.  214; 
Rettinghouse  v.  Ashland,  106  Wis.  595.  Cf.,  Ennis  v.  Pullman,  165  111.  161 ;  ' 
Jordan  r.   Great  Northern  Ry.   Co.   80   Minn.   405. 

21 "  The  law  has  been  changed  by  statute  in  India,  Indian  Contract  Act, 
§  63,  and  in  at  least  ten  of  our  States:  Ala.  Code,  ?  2774;  Cal.  Civ.  Code, 
§  1524;  Dak.  Comp.  Laws,  §  3486;  Ga.  Code,  §  3735;  Maine  Rev.  St.,  c.  82, 
§  45;  No.  Car.  Code,  §  574;  N.  Dak.  Rev.  Code,  §  3827;  Hill,  Ann.  Laws  of 
Oregon,  §  755;  Tenn.  Code  (1884),  §  4539;  Va.  Code  (1897),  §  2858.  In 
one  State,  Mississippi,  the  rule  was  abolished  by  the  court  without  the  aid  of 
a  statute.  Clayton  v.  Clark,  74  Miss.  499.  See  also  to  the  same  effect,  Smith 
v.  Wyatt,  2  Cinein.  Sup.  Ct.  12.  By  decision,  too,  in  some  States  a  parol 
debt  may  be  satisfied  if  the  creditor  gives  a  receipt  in  full  for  a  partial  pay- 
ment. Green  r.  Langdon,  28  Mich.  221;  Lamprey  v.  Lamprey,  29  Minn.  151 
'  (semUe)  ;  Gray  r.  Barton,  55  N.  Y.  68;  Ferry  v.  Stephens,  66  N.  Y.  321; 
lace.  Holmes  v.  Holmes,  129  Mich.  412;  contra,  Warren  v.  Skinner,  20  Conn. 
559;  Bingham  v.  Browning,  197  111.  122.  See  also  Randall  v.  Brodhead,  60 
N.  Y.  App.  Div.  567].  In  others,  partial  payment  is  a  satisfaction  if  the 
debtor  is  insolvent.  Weseott  v.  Waller,  47  Ala„  492,  498  {semble)  ;  Shelton 
v.  Jackson,  20  Tex.  Civ.  App.  443  [ace.  Engbretson  v.  Seiberling,  122  la.  522; 
contra,  Pearson  v.  Thomason.  15  Ala.  700;  Beaver  r.  Fulp,  136  Ind.  595],  or 
even  if  he  is  honestly  believed  to  be  insolvent.  .  Rice  v.  London  Co.,  70  Minn. 
77."     Professor  Ames,  12  Harv.  L.  Rev.  525. 

An  unliquidated  or  disputed  claim  is  not  within  the  scope  of  the  rule.  As 
to  what  comes  under  this  heading,  see  Chicago,  &c.  Ry.  Co.  v.  Clark,  178  U.  S. 
353,  367;  Ostrander  v.  Scott,  161  111.  339;  Bingham  v.  Browning,  197  111.  122; 
Tanner  v.  Merrill,  108  Mich.  58;  Pollman  Coal  Co.  v.  St.  Louis,  145  Mo.  651; 
Fuller  v.  Kemp,  138  N.  Y.  231;  Nassoiy  r.  Tomlinson,  148  N.  Y.  326;  Riggs 
v.  Protection  Assoc,  61  S.  C.  448.     Cp.  Miller  v.  Coates,  66  N.  Y.  609. 

Nor  does  the  rule  apply  to  payment  by  a  third  party.  Marshall  v.  Bullard, 
114  la.  462. 

A  note  or  promise  of  one  joint  debtor  to  pay  the  whole  or  part  of  the  debt 
may  discharge  the  debt.  Thompson  v.  Percival,  5  B.  &  Ad.  925 ;  Lyth  v.  Ault, 
7  Ex.  669;  Morris  Co.  r.  Van  Vorst,  1  Zab.  100,  119;  LudingtonV  Bell  77 
N.  Y.  138;  Allison  v.  Abendroth,  108  1*.  Y.  470;  Jaffray  v.  Davis,  124  N.  Y. 
164,  173.  See,  however,  contra,  Early  v.  Burt,  68  la.  716.  In  Bendix  v. 
Ayers,  21  N.  Y.  App.  Div.  570,  it  was  held  that  payment  of  part  of  a  firm 


212  CONSIDERATION. 

the  debtor  to  take  no  proceedings  on  the  judgment  in  consideration 
of  immediate  payment  of  part  of  the  .debt  and  payment  of  the  residue 
by  certain  instalments;  here  there  was  no  legal  consideration  for  the 
191  ]  creditor's  promise,  and  he  was  entitled  *to  claim  interest  on  the 
debt  though  the  whole  of  the  principal  was  paid  according  to  the  agree- 
ment (f).  This  rule  does  not  touch  the  ordinary  case  of  a  composition 
between  a  debtor  and  several  creditors;  for  every  creditor  undertakes 
to  accept  the  composition  in  consideration  of  the  like  undertaking 
of  the  other  creditors  as  well  as  of  the  debtor's  promise  to  pay  it  (g). 

The  consideration  for  variation  of  contracts.  If  it  is  agreed  between 
creditor  and  debtor  that  the  duty  shall  be  performed  in  some  par- 
ticular way  different  from  that  originally  intended,  this  may  well  be 
binding:  for  the  debtor's  undertaking  to  do  something  different 
though  only  in  detail  from  what  he  at  first  undertook  to  do,  or  even 
relinquishing  an  option  of  doing  it  in  more  ways  than  one,  would  be 
consideration  enough,  and  the  Court  could  not  go  into  the  question 
whether  it  gave  any  actual  advantage  to  the  creditor.  But  if  the 
new  agreement  amounts  to  saying  that  the  debtor  shall  at  his  own 
option  perform  the  duty  as  at  first  agreed  upon  or  in  some  other  way, 
it  cannot  be  binding  without  a  new  consideration :  as  where  an  entire 
sum  is  due,  and  there  is  an  agreement  to  accept  payment  by  instal- 
ments, this  would  be  good,  it  seems,  if  the  debtor  undertook  not 
to  tender  the  whole  sum;  but  in  the  absence  of  anything  to  show 
such  an  undertaking,  the  agreement  is  a  mere  voluntary  indulgence, 
and  the  creditor  remains  no  less  at  liberty  to  demand  the  whole  sum 
than  the  debtor  is  to  pay  it  (h). 

Loss  or  forbearance  of  rights  as  consideration.  The  loss  or  abandonment 
of  any  right,  or  the  forbearance  to  exercise  it  for  a  definite  or  ascertain- 
able time,  is  for  obvious  reasons  as  good  a  consideration  as  actually 

if)   Foakes  v.  Beer   (1884)   9  App.  allowed  to  issue  execution  for  the  in- 

Ca.  605,  44  L.  J    Q.  B.   130,  foil,  in  terest:  Bidder  v.  Bridges    (1887)    37 

Underivood  v.   Underwood    [1894]    P.  Lh.  Div.  406,  57  L.  J.  Ch.  300.     [But 

204,  63  L.  J.  P.  109.     But  where  the  see  20  L.  R.  A.  791.] 
solicitor   of   a  defendant   entitled   to  (g)    Good  v.  Cheesman  (1831)  2  B. 

,,+axed  costs  accepted  from  the  plain-  &  Ad.  328,  Finch  Sel.  Ca.  343,  36  R. 

siLtiftN^%3olicitor     a     cheque     for     the  R.  574. 
'  %mmint*ofa^ts'  («othing  being  said  (h)   McManus  v.  Bark    (1870)    L. 

V^bomfintere^^  this  was  held  to  be  R.   5   Ex.   65,  39  L.  J.  Ex.   65.     Cp. 

an  accord  and  satisfaction  for  every-  Foakes  v.  Beer,  note  (d) ,  last  page, 
thing  due,  and  the  defendant  was  not 

debt  by  retiring  partners  was  sufficient  consideration  to  support  a  promise 
to  discharge  those  partners  from  further  liability.  But  this  is  opposed  to 
Deering  r.  Moore,  86  Me.  181;  Weber  v.  Couch,  134  Mass.  26;  Line  r.  Nelson, 
38  N.  J.  L.  358;  Harrison  v.  Wilcox,  2  Johns.  448;  Martin  v.  Frantz,  127  Pa.  389. 


FORBEARANCE.  213 

doing  something.  In  Mather  v.  Lord  Maidstone  (i)  the  loss  of 
Collateral  rights  by  the  promisee  supported  a  promise  notwith-  [  1 92 
standing  that  the  main  part  of  the  consideration  failed.  The  action 
was  on  a  bill  of  exchange.  This  bill  was  given  and  endorsed  to  the- 
plaintiff  as  in  renewal  of  another  bill  purporting  to  be  accepted  by  the 
defendant  and  endorsed  to  the  plaintiff.  The  plaintiff  gave  up  this- 
first  bill  to  the  defendant;  thirty  days  afterwards  it  was  discovered 
that  it  was  not  really  signed  by  the  defendant:  yet  it  was  held  that 
he  was  liable  on  the  second  bill,  for  the  plaintiff  had  lost  his  remedy 
against  the  other  parties  to  the  first  bill  during  the  time  for  whick 
he  had  parted  with  the  possession  of  it,  and  that  was  consideration 
enough. 

Forbearance  to  sue;  must  be  for  definite  or  ascertainable  time.    As  to 

forbearance,  the  commonest  case  of  this  kind  of  consideration  is  for- 
bearing to  sue.  Forbearance  for  a  reasonable  time  is  enough,  on 
the  principle  of  certum  reddi  potest:  and  terms  in  themselves  vague, 
such  as  "  forbearing  to  press  for  immediate  payment,"  may  be  con- 
strued by  help  of  the  circumstances  and  context  as  meaning  forbear- 
ance for  a  reasonable  time.  A  promise  to  guarantee  a  debt  if  the 
creditor  will  give  time  to  the  principal  debtor  is  in  the  first  instance 
an  offer;  it  becomes  a  binding  promise  when  the  condition  of  giving 
the  specified  time,  or  a  reasonable  time,  has  been  performed.  It  is  a 
question  of  fact  what  is  reasonable  time  in  a  given  case  (h)P 

(i)    (1856)    18  C.  B.  273,  25  L.  J.  Q.  R.  iii.  484,  it  must  be  taken,  with 

C.  P.  310.  the  head-note,  that  the  consideration 

(k)    Oldershaw     v.     King      (1857)  was  actual  forbearance.     The  promise 

(Ex.  Ch.)  2  H.  &  N.  517,  27  L.  J.  Ex.  being   in   tne   form   of  a,   promissory 

120,  and  see  1  Wms.  Saund.  225.     In  note,  i.   e.,  essentially  unconditional, 

Alliance    Bank    v.    Broom    (1864)     2  certainly   makes    a    difficulty,    for    it 

Dr.  &  Sm.  289,  34  L.  J.  Ch.  956,  ac-  would    seem    there    was    a    complete 

tual    forbearance    at   the   defendant's  promise  before  the  consideration,  viz. 

request,  though  not  for  any  specified  forbearing    to    sue    for   a    reasonable 

time,  was  held  sufficient.     Cp.  Wilby  time,  was  or  could  be  executed.     On 

v.  Elgee   (1875)   L.  R.  C.  P.  497.     In  the  principle  see   per   Bowen  L.J.   in 

Crears   v.    Hunter    (1887)     19    Q.    B.  Miles  v.  Neiv  Zealand  Alford  Estate 

Div.  341.  56  L.  J.  Q.   B.  518,  which  Co.   (1885-6)   32  Ch.  Div.  at  p.  289. 
has  been  criticized  as  ambiguous,  L. 

22  Actual  forbearance  is  as  good  consideration  as  a  H'o^rffc  to  ^^bea^^ 
Xo  reason  can  be  suggested  why  unilateral  contracts  of  this  son  are^R-afl^^B 
Edgerton  r.  Weaver,  105  111.  43;  Newton  v.  Carson,  80  Ky.  309;  Home  Inl^' 
Co.  v.  Watson,  59  N.  Y.  390;  Strong  v.  Sheffield,  144  N.  Y.  392. 

There  are  contrary  decisions:  Mecorney  v.  Stanley,  8  Gush.  85:  Manter  v. 
Churchill,  127  Mass.  31;  Shupe  v.  Galbraith,  32  Pa.  10.  See  also  Shadburne 
v.  Daly,  76  Cal.  355;  Lambert  v.  Clewley,  80  Me.  480.  The  reasoning  is  un- 
satisfactory in  these  cases.  The  assumption  seems  to  be  made  that  because 
the  promisee  is  free  to  forbear  or  not,  as  he  chooses,  there  can  be  no  valid 


214  CONSIDERATION. 

There  must  be  an  actual  or  bona  fide  disputed  right.  That  which  is 
forborne  must  also  be  the  exercise  or  enforcement  of  some  legal  or 
equitable  right  which  is  honestly  believed  to  exist.  This  is  simply 
the  converse  of  a  rule  already  given.  As  a  promise  by  A.  to  B.  is 
193]  naught  *if  it  is  only  a  promise  to  do  something  A.  is  already 
bound,  either  absolutely  or  as  against  B.,  to  do,  so  it  is  equally 
worthless  if  it  is  a  promise  not  to  do  something  which  B  can  already, 
as  a  matter  either  of  public  or  of  private  right,  forbid  A.  to  do. 

Why  compromises  are  binding.  So  far  we  assume  the  existing  rights 
of  the  parties  to  be  known :  but  as  in  practice  they  often  are  not 
known,  but  depend  on  questions  of  law  or  of  fact,  or  both,  which 
could  not  be  settled  without  considerable  trouble,  common  sense  and 
convenience  require  that  compromises  of  doubtful  rights  should  be 
recognized  as  binding,  and  they  constantly  are  so  recognized.  "  If  an 
intending  litigant  bona  fide  forbears  a  right  to  litigate  a  question  of 
law  or  fact  which  it  is  not  vexatious  or  frivolous  to  litigate,  he  does 
give  up  something  of  value  "(I)  ;  and  such  forbearance  is  good  con- 
sideration for  a  promise  even  though  the  claim  is  not  well  founded, 
provided  it  is  honestly  believed  in  and  the  promisee  does  not  conceal 
from  the  promisor  any  fact  which  to  his  knowledge  would  affect  its 
validity  (m).23 

[I)  Miles  v.  New  Zealand  Alford  Bowen  L.J.  at  p.  291,  reviewing  pre- 
Estate  Go.   (1885-6)  32  Ch.  Div.  266,       vious  cases  and  dicta. 

(m)    Cotton  L.J.  ib.  at  p.  284. 

contract.  But  the  situation  is  the  same  as  in  any  unilateral  contract.  Until 
the  act  is  done  both  parties  are  free.  Then  a  binding  contract  arises.  If,  by 
the  terms  of  the  offer,  the  forbearance  is  to  be  perpetual,  there  cannot,  there- 
fore, be  a  unilateral  contract,  but  this  is  the  only  qualification  to  be  made. 

Where  the  promise  is  to  forbear  without  naming  a  time  it  is  generally 
assumed  that  a  reasonable  time  is  intended,  Moore  v.  McKenney,  83  Me. 
80;  Haskell  v.  Tukesbury,  92  Me.  551;  Howe  v.  Taggart,  133  Mass.  284; 
Glasscock  v.  Glasscock,  GO  Mo.  627;  Hockenbury  ads.  Meyers,  34  N.  J.  L.  346; 
Elting  v.  Vanderlyn,  4  Johns.  237;  Traders'  Nat.  Bank  v.  Parker,  130  N.  Y. 
415;  Citizens'  Bank  v.  Babbitt,  71  Vt.  182. 

But  a  promise  to  forbear  generally  has  in  some  cases  been  construed  to 
mean  perpetual  forbearance.  Haymaker  v.  Eberly,  2  Binn.  506;  Clark  v. 
Russell,  3  Watts,  213.     It  would  seem  a  question  of  construction  in  each  case 

K™hat  the  paj±ies  ft  fact  meant. 
-<4Bt  Am™a  some  courts  have  shown  a  disposition  to  follow  the  doctrine 
the  late  English  decisions.  Union  Bank  r.  Geary,  5  Pet.  99 ;  Baldwin  v. 
Central  Bank,  17  Col.  App.  7;  Morris  v.  Munroe,  30  Ga.  630;  Hayes  v. 
Massachusetts  Co.,  125  111.  625,  639 ;  Ostrander  v.  Scott,  161  111.  339 ;  Murphy 
«?.  Murphy,  84  111.  App.  292  (compare  Herbert  v.  Mueller,  83  111.  App.  391)  ; 
Melcher  v.  Insurance  Co.,  97  Me.  512;  Prout  v.  Pitt3field  Fire  District,  154 
Mass.  450;  Dunbar  v.  Dunbar,  180  Mass.  170;  Dailey  r.  King,  79  Mich.  568; 
Lesson  v.  Anderson,  99  Mich.  247;   Demars  r.  Musser-Santry  Co.,  37  Minn. 


FORBEARANCE.  215 

The  real  consideration  and  motive  of  a  compromise,  as  well  in  our 
law  as  in  the  civil  law  and  systems  derived  from  it,  is  not  the  sacrifice 
of  a  right  but  the  abandonment  of  a  claim  (n).  The  same  rule 
applies  in  the  case  where  the  claim  given  up  is  on  a  disputed  promise 
of  marriage  (o).  A  partial  compromise  in  which  the  undertaking  is 
not  simply  to  stay  or  not  to  commence  legal  proceedings,  but  to  con- 
duet  them  in  some  particular  manner  or  limit  them  to  some  particu- 
lar object,  may  well  be  good:  but  here  again  the  forbearance  must 
relate  to  something  within  the  proper  scope  of  such  proceedings.  A 
promise  to  conduct  proceedings  in  bankruptcy  so  as  to  injure  the 
debtor's  *credit  as  little  as  possible  is  no  consideration,  for  it  is  [1 94 
in  truth  merely  a  promise  not  to  abuse  the  process  of  the  court  (p).2* 

(n)    Trigge  v.  Lavaltee    (1864)    15  (o)   Eeenan  v.  Hundley    (1864)    2 

Moo.   P.    C.    271,    292    (a    case    from  D.  J.  S.  283. 

Lower    Canada,   then   under   old   Fr.  (p)   Bracewell  v.  Williams    (1866) 

law).     Willy  v.  Elgee    (1875)    L.  R.  L.  R.  2  C.  P.  196. 
10  C.  P.  497,  44  L.  J.  C.  P.  254. 

418;  Hansen  v.  Gaar,  63  Minn.  94;  Grandin  v.  Grandin,  49  N.  J.  L.  508; 
Wahl  u.  Barnum,  116  N.  Y.  87;  Zoebisch  v.  Von  Minden,  120  N.  Y.  406; 
Sears  v.  Grand  Lodge,  163  N.  Y.  374,  379;  Di  Iorio  v.  Di  Brasio,  21  R.  I.  208; 
Bellows  v.  Sowles,  55  Vt.  391;  Citizens'  Bank  v.  Babbitt,  71  Vt.  182;  Hewett 
v.  Currier,  63  Wis.  386. 

The  definition  given  by  other  courts  seems  to  require  the  claim  forborne 
to  be  at  least  reasonably  doubtful  in  fact  or  law  in  order  to  make  the  for- 
bearance or  promise  to  forbear  a  good  consideration.  Stewart  v.  Bradford, 
26  Ala.  410;  Ware  v.  Morgan,  67  Ala.  461;  Richardson  v.  Comstock,  21  Ark. 
89;  Russell  v.  Daniels,  5  Col.  App.  224;  Mulholland  v.  Bartlett,  74  111.  58; 
Bates  v.  Sandy,  27  111.  App.  552  (see  later  Illinois  cases,  supra)  ;  U.  S.  Mort- 
gage Co.  v.  Henderson,  111  Ind.  24;  Sweitzer  v.  Heasly,  13  Ind.  App.  567 
(compare  Moon  v.  Martin,.  122  Ind.  211)  ;  Tucker  v.  Ronk,  42  la.  80;  Peter- 
son v.  Breitag,  88  la.  418;  Potts  v.  Polk  Co.,  80  la.  401  (see  Richardson  Co. 
v.  Hampton,  70  la.  573)  ;  Price  r.  First  Nat.  Bank,  62  Kan.  743;  Cline  v. 
Templeton,  78  Ky.  550;  Mills  v.  O'Daniel,  62  S.  W.  Rep.  1123  (Ky.)  (compare 
Waller's  Adm.  r.  Marks,  100  Ky.  541 )  ;  Schroeder  i:  Fink,  60  Md.  436 ; 
Emmittsburg  v.  Donoghue,  67  Md.  383;  Palfrey  v.  Portland,  &c.  R.  R.  Co., 
4  Allen,  55  (see  later  Massachusetts  cases,  supra)  ;  Taylor  r.  Weeks, 
129  Mich.  233;  Foster  v.  Metts,  55  Miss.  77;  Gunning  v.  Royal,  59  Miss.  45; 
Long  v.  Towl,  42  Mo.  545 ;  Corbyn  v.  Brokmeyer,  84  Mo.  App.  649 ;  Kidder  v. 
Blake,  45  N.  H.  530  (see  Pitkin  v.  Noyes,  48  N.  H.  294)  ;  O.  &  C.  R.  R.  Co.  v. 
Potter,  5  Oreg.  228;  Fleming  v.  Ramsey,  46  Pa.  252;  Sutton  v.  Dudley,  193 
Pa.  194;  Warren  v.  Williamson,  8  Baxter,  427;  Davisson  v.  Ford,  23  W.  Va. 
617   (see  Billingsley -v.  Clelland,  41  W.  Va.  234). 

24  A  distinction  not  brought  out  by  the  English  decisions  and  not  referred 
to  by  the  author  is  that  between  consideration  and  condition.  If  A.  says  to 
B.,  I  will  give  you  $100  if  you  break  your  leg,  it  is  not  probable  -  that  A* 
means  to  request  B.  to  break  his  leg,  as  the  exchange  or  equivalent  for  the 
promise.  The  breaking  of  the  leg  is  merely  the  event  upon  the  happening 
of  which  A.  will  give  a  gratuity.  In  theory  any  act  whatever  may  be  stated 
either  as  the  condition  or  the  consideration  of  a  promise.  See  Langdell 
Summ.  Cont.,  §  66;  Holmes  Common  Law,  p.  292;  but  the  courts  favor  the 
construction  of  consideration.     In  Kirksey  v.  Kirksey,   8   Ala.   131,  the  de- 


216  CONSIDERATION. 

Reaction  of  the  general  doctrine  of  Consideration  on  contracts  under  seal. 
The  main  end  and  use  of  the  doctrine  of  Consideration  in  our  modern 
law  is  to  furnish  us  with  a  comprehensive  set  of  rules  which  can  be 
applied  to  all  informal  contracts  without  distinction  of  their  char- 
acter or  subject-matter.  Formal  contracts  remain,  strictly  speaking, 
outside  the  scope  of  these  rules,  which  were  not  made  for  them,  and 
for  whose  help  they  had  no  need.  But  it  was  impossible  that  so 
general  and  so  useful  a  legal  conception  as  that  of  Consideration 
should  not  make  its  way  into  the  treatment  of  formal  contracts, 
though  with  a  different  aspect.  The  ancient  validity  of  formal  con- 
tracts could  not  be  amplified,  but  it  might  be  restrained:  and  in  fact 
both  the  case-law  and  the  legislation  of  modern  times  show  a  marked 
tendency  to  cut  short  if  not  to  abolish  their  distinctive  privileges, 
and  to  extend  to  them  as  much  as  possible  the  free  and  rational  treat- 
ment of  legal  questions  which  has  been  developed  in  modern  times  by 
the  full  recognition  of  informal  transactions. 

Most  conspicuous  in  Equity.  This  result  is  mainly  due  to  the  action 
of  the  Court  of  Chancery.  *vA.  merely  gratuitous  contract  under  seal 
is  enforceable  at  common  law  (with  some  peculiar  exceptions)  unless 
it  can  be   shown  that  behind  the   apparently  gratuitous   obligation 

fendant  wrote  to  his  brother's  widow :  "  If  you  will  come  down  and  see  me, 
I  will  let  you  have  a  place  to  raise  your  family,  and  I  have  more  open  land 
than  I  can  tend ;  and  on  the  account  of  your  situation  and  that  of  your 
family,  I  feel  like  I  want  you  and  the  children  to  do  well."  The  widow 
came  as  requested,  but  it  was  held  no  contract  was  created  thereby. 

The  decision  was  followed  in  Forward  v.  Armstead,  12  Ala.  124;  Bibb  r. 
Freeman,  59  Ala.  612.  In  the  latter  case  the  court  said:  "  It  is  often  a  mat- 
ter of  great  difficulty  to  discern  the  line  which  separates  promises  creating 
legal  obligations  from  mere  gratuitous  agreements.  Each  case  depends  so 
much  on  its  own  peculiar  facts  and  circumstances  that  it  affords  but  little 
aid  in  determining  other  cases  of  differing  facts.  The  promise  or  agree- 
ment, the  relation  of  the  parties,  the  circumstances  surrounding  them,  and 
their  intent,  as  it  may  be  deduced  from  these,  must  determine  the  inquiry. 
If  the  purpose  is  to  confer  on  the  promisee  a  benefit  from  affection  and 
generosity,  the  agreement  is  gratuitous.  If  the  purpose  is  to  obtain  a  quid 
pro  quo  —  if  there  is  something  to  be  received,  in  exchange  for  which  the 
promise  is  given,  the  promise  is  not  gratuitous,  but  of  legal  obligation." 

See  also  in  accord,  Boord  v.  Boord,  Pelham  (So.  Aust. ),  58.  But  there  are 
other  decisions  where  promises  were  enforced  though  it  seemed  pretty  clear 
that  the  so-called  consideration  was  not  in  fact  requested  in  return  for  the 
promise.  Shirley  v.  Harris,  3  McLean,  330;  Berry  v.  Graddy,  1  Mete.  (Ky. ) 
553;  Bigelow  v.  Bigelow,  95  Me.  17;  Devecmon  r.  Shaw,  69  Md.  199;  Steele 
«'.  Steele,  75  Md.  477 ;  Adams  r.  Honness,  62  Barb.  326 ;  Richardson  r.  Gosser, 
26  Pa.  335.  The  most  noticeable  illustration  of  the  tendency  of  the  courts 
to  treat  as  consideration  a  detriment  which  was  intended  merely  as  a  con- 
dition is  afforded  by  cases  of  charitable  subscriptions.    See  supra,  p.  *169,  n.  3. 

In  regard  to  the  enforcement  by  courts  of  equity  of  gratuitous  promises 
relating  to  land  in  order  to  prevent  a  fraud,  see  Pomeroy  on  Eq.  Jur.,  §  1294; 
Ames,  Cas.  on  Eq.  Jur.  306-309. 


RULES    OF    EQUITY.  217 

there  is  in  fact  an  unlawful  or  immoral  consideration.25  Courts  of 
equity  did  not,  in  the  absence  of  any  special  ground  of  invalidity, 
interfere  with  the  legal  effect  of  formal  instruments :  but  they  would 
not  extend  their  special  protection  and  their  special  remedies  to 
agreements,  however  formal,  made  without  consideration.  A  volun- 
tary covenant,  though  under  seal,  "  in  equity,  where  at  least  the 
covenantor  is  living  (q),  or  where  *specific  performance  of  such  a  [  1 95 
covenant  is  sought,  .  .  .  stands  scarcely,  or  not  at  all,  on  a  better 
footing  than  if  it  were  contained  in  an  instrument  unsealed"  (r).28 

(q)    We  shall   see  under  the  head  if  the  donor,  or  even  his  representa- 

of  undue  influence  that  a  system  of  tives,    choose   within   any   reasonable 

presumptions     has     been    established  time  afterwards  to  dispute  it. 
which    makes    it    difficult    in    many  (r)   Per  Knight  Bruce   L.J.   Keke- 

cases    for   persons    claiming   under   a  icich  v.  Manning   ( 1851 )    1  D.  M.  G. 

voluntary  deed  to  uphold  its  validity  170,   188. 

25Krell  v,  Codman,  154  Mass.  454;  Aller  v.  Aller,  40  N.  J.  L.  446;  Harrell 
v.  Watson,  63  N.  C.  454;  Ducker  v.  Whitson,  112  N.  G.  114;  Burkholder's 
Ex.  v.  Plank,  69  Pa.  225 ;  Harris  v.  Harris,  23  Gratt.  737. 

In  many  States  the  distinction  between  sealed  and  unsealed  written  con- 
tracts is  abolished.  Alaska,  Code  Civ.  Proc,  §  1041;  Arizona,  Civ.  Code 
(1901),  §  4054;  California,  Civ.  Code,  §  1932;  Idaho,  Rev.  Stat.  (1887), 
§  3227:  Iowa,  Code  (1897),  §  3068;  Kentucky,  Comp.  Stat.  (1894),  §  472; 
Mississippi,  Code  (1892),  §§  4079,  4081;  Missouri,  Rev.  Stat.  (1899),  §  893; 
Montana,  Civ.  Code  (1895),  §§  2190,  2191;  Nebraska,  Comp.  Stat.  (1899), 
§  4951;  Nevada,  Gen.  Stat.  (1885),  §  2667;  North  Dakota,  Rev.  Code  (1895), 
§  3892;  Ohio,  Bates'  Annot.  Stat.  (1900),  §  4;  Oklahoma,  Stat.  (1S93),  §  826; 
South  Dakota,  Annot.  Stat.  (1901),  §  4738;  Tennessee,  Code  (1884),  §  2478; 
Texas,  Rev.  Stat.  (1895),  Art.  4862..  See  also  Alaska,  Code  Civ.  Proc,  §  1041; 
Indiana,  Code  Civ.  Proc,  §  450. 

In  most  of  these  States  it  is  also  enacted  that  any  written  contract  shall  be 
presumed  to  have  been  made  for  sufficient  consideration;  but  if  lack  of  con- 
sideration is  affirmatively  proved  the  contract  is  invalid.  Arizona,  Civ.  Code 
(1904),  §  4055;  California,  Civ.  Code,  §  1963  (39)  ;  Idaho,  Rev.  Stat.  (1887), 
§  3222;  Iowa,  Code  (1897),  §  3069;  Kentucky,  Comp.  Stat.  (1894),  §  471; 
Mississippi,  Code  (1892),  §§  4080,  4082;  Missouri,  Rev.  Stat.  (1899),  §  894; 
Montana,  Civ.  Code  (1895),  §  2169;  North  Dakota,  Rev.  Code  (1S95),  §  3880; 
South  Dakota,  Annot.  Stat.  (1901),  §  4727  (2);  Tennessee,  Code  (1884), 
§  2479;  Texas,  Rev.  Stat.  (1895),  Art.  4863.  See  also  Rhode  Island  Gen. 
Laws    (1896),  c.  202,   §  4. 

In  other  States  it  is  enacted  only  that  sealed  contracts  shall  be  presumed 
in  the  absence  of  contrary  evidence  to  have  been  made  for  sufficient  con- 
sideration, and  in  such  States  sealed  contracts  differ  from  ordinary  written 
contracts  to  this  extent.  Alabama,  Code  (1896),  §  3288;  Michigan,  Comp. 
Laws  (1897),  §§  10185,  10186;  New  Jersey,  Gen.  Stat.  (1895),  p.  1413, 
§  72;  New  York,  Birdseye's  Rev.  Stat.  (1S93),  p.  1099,  §  14;  Oregon,  Hill's 
Annot.  Laws    (1892),  §  753;  Wisconsin,  Annot.  Stat.    (18S9),  §  4195. 

26  Barrett  r.  Geisinger,  179  111.  240,  249;  Crandall  v.  Willig,  106  111.  233; 
Selby  r.  Case,  (Md.  App.)  39  Atl.  1041;  Black  v.  Cord,  2  H.  &  G.  100; 
Lamprey  V.  Lamprev,  29  Minn.  151;  Vosser  v.  Vosser,  23  Miss.  378,  382; 
Tunison  v.  Bradford!  49  N.  J.  Eq.  210;  Hays  V.  Kershaw,  1  Sandf.  Ch.  258, 
261;  Short  r.  Price,  17  Tex.  397;  Graybill  v.  Brugh,  89  Va.  855.  That  the 
plaintiff  in  equity  need  not  allege  consideration,  but  the  defendant  must  allege 
and  prove  the  contrary,  was  held  in  Mills  r.  Larranee,  186  111.  635;  Borel  v. 
Mead,  3  N.  Mex.  84.  See  also  Carey  ;;.  Dyer,  97  Wis.  554.  See,  however,  to 
the  contrary,  the  criticism  in  14  Harv.  L.  Rev.  387  and  Mayger  v.  Cruse,  5 
Mont.  485.  " 


218  CONSIDERATION. 

And  this  restriction  is  not  affected  by  the  union  of  legal  and  equitable 
jurisdiction  in  the  High  Court  of  Justice. 

No  specific  performance  of  voluntary  agreement  though  by  deed.  The 
rule  that  a  court  of  equity  will  not  grant  specific  performance  of  a 
gratuitous  contract  is  so  well  settled  that  it  is  needless  to  cite  further 
authorities  for  it:  and  it  is  not  to  be  overlooked  that  whereas  the 
other  rules  that  limit  the  application  of  this  peculiar  remedy  are  of 
a  more  or  less  discretionary  kind,  and  founded  on  motives  of  con- 
venience and  the  practical  requirements  of  procedure  rather  than  on 
legal  principle,  this  is  an  absolute  and  unqualified  rule  which  must 
be  considered  as  part  of  the  substantive  law. 

But  existence  of  consideration  may  be  shown  aliunde.  It  is  the  practice 
of  equity,  however,  at  all  events  when  the  want  of  consideration  is 
actively  put  forward  as  an  objection  (and  the  practice  must  be  the 
same,  it  is  conceived,  when  the  objection  is  made  by  way  of  defence 
in  an  action  for  specific  performance),  to  admit  evidence  of  an  agree- 
ment under  seal  being  in  fact  founded  on  good  consideration,  where 
the  deed  expresses  a  nominal  consideration  (s)  or  no  consideration 
at  all  (t),  though  (save  in  a  case  of  fraud  or  illegality)  a  considera- 
tion actually  inconsistent  with  that  expressed  in  the  deed  could 
probably  not  be  shown  (s). 

Equity  will  not  give  effect  to  imperfect  gifts.  Closely  connected  with 
this  in  principle  is  the  rule  of  equity  that,  although  no  consideration 
is  required  for  the  validity  of  a  complete  declaration  of  trust  (u). 
or  a  complete  transfer  of  any  legal  or  equitable  interest  in  property,  yet 
196]  an  incomplete  voluntary  gift  creates  no  right  which  can  be  *en- 
forced.27  Thus  a  voluntary  parol  gift  of  an  equitable  mortgagee's 
security  is  not  enforceable;  and,  since  his  interest  in  the  deeds  de- 
posited with  him,  where  the  mortgage  is  by  deposit,  is  merely  inci- 
dental to  his  security,  delivery  of  such  deeds  by  the  mortgagee  to  his 
donee  makes  no  difference,  and  does  not  entitle  the  donee  to  retain 
them  against  the  mortgagee's  representatives  (x).     Certain  modern 

(s)  Leif  child's  case  (1865)  L.E.I  (u)    Qu.    whether    this    was    origi- 

Eq.  231.  nally  right  on  principle. 

(t)    Llanelly  Ry.  and  Dock   Go.  v.  (x)    Shillito  v.   Hobson    (1885)    30 

L.  &  N.  W.  Ry.  Go.  (1873)  L.  E.  8  Ch.  Div.  396,  55  L.  J.  Ch.  741.  The 
Ch.   942.  delivery  over  seems  to  be   a  trespass 

against  the  depositor. 

27Dorsey  v.  Packwood,  12  How.  128,  137;  Estate  of  Webb,  49  Cal.  541; 
Wadhajns  v.  Gay,  73  111.  415;  Baltimore  Retort  Co.  v.  Mali,  65  Md.  93; 
Stone  v.  Hackett,  12  Gray,  227;  Young  v.  Young,  80  N.  Y.  422;  Perry  on 
Trusts,  §  96  el  seq.;  Crooks  v.  Crooks,  34  Ohio  St.  610,  615;  Carhart's  Appeal, 
78  Pa.  100,  119. 


RULES   OF   EQUITY.  219 

decisions  have  indeed  shown  a  tendency  to  infringe  on  this  rule  by 
construing  the  circumstances  of  an  incomplete  act  of  bounty  into  a 
declaration  of  trust,  notwithstanding  that  the  real  intention  of  the 
donor  was  evidently  not  to  mike  himself  a  trustee,  but  to  divest  him- 
self of  all  his  interest  (y).  But  these  have  been  disapproved  in  still 
later  judgments  which  seem  entitled  to  more  weight  (z)-28 

(y)   Richardson       v.       Richardson  18  Eq.  11,  43  L.  J.  Ch.  459;   Moore 

(1867)  L.  R.  3  Eq.  686,  36  L.  J.  Ch.  v.   Moore    (1874)    L.   R.   18   Eq.   474, 

653;   Morgan  v.   Malleson    (1870)    L.  43  L.  J.  Ch.  617;  Heartley  v.  Nichol- 

R.  10  Eq.  475,  39  L.  J.  Ch.  680.  son  (1874)  L.  R.  19  Eq.  233,  44  L.  J. 

(z)    Warriner    v.     Rogers     (1873)  Ch.    277.      Cp.    Breton    V.    Woollven 

L.  R.   16  Eq.  340,  42  L.  J.  Ch.  581;  (1881)    17  Ch.  D.  at  p.  420,  50  L.  J. 

Richards  v.  Delbridge    (1874)    L.  R.  Ch.  369. 

28Bamum  v.  Read,  136  111.  388;  Bennett  v.  Littlefield,  177  Mass.  294; 
Young  v.  Young,  80  N.  Y.  422,  439;  Beaver  v.  Beaver,  117  N.  Y.  421,  137 
N.  Y.  59;  Sullivan  v.  Sullivan,  161  N.  Y.  554;  Flanders  v.  Blandy,  45  Ohio 
St.  108. 


220 


PEESONS    AFFECTED    BY    CONTRACT. 


197] 


*CHAPTEK  V. 
Persons  affected  by  Contract. 


provi- 

third 

right 


Preliminary, 
Definitions  and  rules, 

1.  Parties  must  be  certain, 

2.  Third  persons  not  bound, 
Apparent  exceptions, 
Novation, 

3.  Third  persons  not  entitled  by 

the  contract  itself, 

Apparent  exceptions, 

Trusts, 

Exception    of     certain 
sions  for  children, 

Statutory  exceptions, 

Contract  for  benefit  of 
person  gives  him  no 
of  action  at  law, 

Authorities  in  equity, 

Third  person  cannot  be  em- 
powered to  sue  for  conven- 
ience of  parties, 

Negotiable  instruments  pay- 
able to  holder  of  office, 

Law  of  the  United  States, 

Distinctions  of  property  rights, 
agency,  novation,  etc., 

Contracts  for  the  sole  benefit 
of  a  third  person, 

Contracts  to  discharge  a.  debt 
of  the  promisor, 

Law  of  Massachusetts  denies 
rights  to  sole  beneficiary, 

Law  of  other  States, 

Life  insurance  and  other  illus- 
trative cases, 


PAGE. 

220 

221 
223 
224 
225 

227 


228 
228 
230 

231 
232 


233 
233 


235 

236 
237 

237 

242 

244 

247 
249 

251 


Law  as  to  promises  to  dis- 
charge a  debt, 

Assumption  of  mortgages, 

Other  illustrative  cases. 

Rights  of  the  promisee, 

Creditor's  right  to  sue  both 
debtor  and  new  promisor, 

Defences, 

Rescission  or  release. 

Contracts  under  seal. 

Incidental  beneficiaries, 

Assignment  of  contracts, 

Notice  to  debtor. 

Assignment  "  subject  to  equi- 
ties,'' 

Assignment  free  from  equities 
by  agreement  of  parties : 
transferable  debentures, 

Negotiable  instruments. 

Rights  of  bona  fide  holder, 

What  instruments  may  be 
negotiable, 

How  instruments  may  cease 
to  be  negotiable. 

Transferable  shares. 

Obligations  attached  to  prop- 
erty, 

Covenants  running  with  land, 

Bills  of  lading, 

Conflict  between  common  law 
and  equity  as  to  burden  of 
covenants  running  with  the 
land, 

The  foundation  of  the  equi- 
table doctrine. 


255 
260 
200 

268 

270 
271 
273 

270 

277 
278 
281 

284 


287 
290 
291 

292 

294 
295 

297 
298 
302 


304 


305 


General  Rules  as  to  Parties. 

Original  type  of  contract.  The  original  and  simplest  type  of  contract 
is  an  agreement  creating  an  obligation  between  certain  persons.  The 
persons  are  ascertained  by  their  description  as  individuals,  and  not  by 
their  satisfying  any  general  class  description:  or,  more  shortly,  they 
are  denoted  by  proper  names  and  not  by  class  names  (a).  And  the 
persons  who  become  parties  in  the  obligation  created  by  the  agreement 
are  the  persons  who   actually  conclude  the  agreement  in  the   first 

(a)  Savignv,  Obi.  §  53  (2.  16),  cp.  on  the  subject  of  this  chapter  generally, 
ib.  §§  53-70, 'pp.   17-186. 


PARTIES    TO    CONTRACT.  221 

instance,  and  those  only.  The  object  of  this  chapter  will  be  to  point 
out  the  extent  to  which  modern  developments  of  the  law  of  contract 
have  altered  this  primary  type  either  by  modifications  co-extensive 
with  the  whole  range  of  contract  or  by  special  classes  of  exceptions. 

The  fundamental  notion  from  which  we  must  take  our  departure 
is  one  that  our  own  system  of  law  has  in  common  with  the  Eoman 
system  and  the  modern  law  of  other  civilized  countries  derived  there- 
from. A  wide  statement  of  it  may  be  given  in  the  shape  of  a  maxim 
thus: 

Legal  effects  confined  to  contracting  parties.  The  legal  effects  of  a  con- 
tract are  confined  to  the  contracting  parties. 

This,  like  most,  if  not  all,  legal  maxims,  is  a  generalization  which 
can  be  useful  only  as  a  compendious  symbol  of  *the  particulars  [198 
from  which  it  is  generalized,  and  cannot  be  understood  except  by 
reference  to  those  particulars.  The  first  step  towards  the  necessary 
development  may  be  given  in  a  series  of  more  definite  but  still  very 
general  rules,  which  we  shall  now  endeavour  to  state,  embodying  at 
the  same  time  those  qualifications,  whether  of  recent  introduction  or 
not,  which  admit  of  being  stated  in  an  equally  general  form. 

Definitions.  It  will  be  convenient  to  use  certain  terms  in  extended 
or  special  senses.  A  contract  creates  an  obligation  between  the  con- 
tracting parties,  consisting  of  duties  on  the  one  part  and  the  right 
to  demand  the  performance  of  them  on  the  other. 

"  Creditor "  and  "  debtor."  Any  party  to  a  contract,  so  far  as  he  be- 
comes entitled  to  have  anything  performed  under  the  contract,  is 
called  the  creditor.  So  far  as  he  becomes  bound  to  perform  anything 
under  the  contract  he  is  called  the  debtor. 

"  Representation."  Representation,  representatives,  mean  respectively 
succession  and  the  person  or  persons  succeeding  to  the  general  rights 
and  liabilities  of  any  person  in  respect  of  contracts,  whether  by  reason 
of  the  death  of  that  person  or  otherwise. 

"  Third  person."  A  third  person  means  any  person  other  than  one  of 
the  parties  to  the  contract  or  his  representatives  (b). 

Rules. 

1.  Parties.  The  original  parties  to  a  contract  must  be  persons  as- 
certained at  the  time  when  the  contract  is  made. 

( 6 )  Contracts  for  the  sale  of  land  parties.  But  here  the  obligation  is 
are  enforceable  in  equity  by  and  treated  as  attached  to  the  particular 
against  the  heirs  or  devisees  of  the       property. 


222  PERSONS    AFFECTED    BY    CONTRACT. 

2.  Third  persons  not  bound.  The  creditor  can  demand  performance 
from  the  debtor  or  his  representatives.  He  cannot  demand  nor  can 
the  debtor  require  him  to  accept  performance  from  any  third  person ; 
but  the  debtor  or  his  representatives  may  perform  the  duty  by  an 
agent. 

199]  *3.  Third  person  not  entitled.  A  third  person  cannot  become 
entitled  by  the  contract  itself  to  demand  the  performance  of  any  duty 
under  the  contract. 

This  is  subject  to  an  exception  as  to  provisions  contained  in  a  set- 
tlement made  upon  and  in  consideration  of  marriage  for  the  benefit  of 
children  to  be  born  of  the  marriage  (c). 

4.  Assignment.  Persons  other  than  the  creditor  may  become  entitled 
by  representation  or  assignment  to  stand  in  the  creditor's  place  and 
to  exercise  his  rights  under  the  contract. 

Explanation  1.  Notice  to  debtor.  Title  by  assignment  is  not  com- 
plete as  against  the  debtor  without  notice  to  the  debtor,  and  a  debtor 
who  performs  his  contract  to  the  original  creditor  without  notice  of 
any  assignment  by  the  creditor  is  thereby  discharged. 

Explanation  2.  Equities.  The  debtor  is  entitled  as  against  the  rep- 
resentatives, and,  unless  a  contrary  intention  appears  by  the  original 
contract,  as  against  the  assignees  of  the  creditor  to  the  benefit  of  any 
defence  which  he  might  have  had  against  the  creditor  himself. 

The  following  exceptions  given  here  in  order  to  complete  the  gen- 
eral statement  are  connected  in  principle  with  the  cases  of  a  contract 
for  personal  services  or  the  exercise  of  personal  skill  becoming  im- 
possible of  performance  by  inevitable  accident,  of  which  we  speak  in 
Chapter  YI1I.  below. 

Exception  1.  Strictly  personal  duties.  If  it  appears  to  have  been  the 
intention  of  the  parties  that  the  debtor  should  perform  any  duty  in 
person,  he  cannot  perform  it  by  an  agent,  nor  can  performance  of  it 
be  required  from  his  representatives.  Such  an  intention  is  presumed 
in  the  case  of  any  duty  which  involves  personal  confidence  between 
the  parties,  or  the  exercise  of  the  debtor's  personal  skill. 

200]  *  Exception  2.  Strictly  personal  rights.  If  it  appears  to  have  been 
the  intention  of  the  parties  that  only  the  creditor  in  person  should  be 
entitled  to  have  any  duty  performed,  no  one  can  become  entitled  by 
representation  or  assignment  to  demand  the  performance  of  it,  nor 
can  such  performance  be  required  from  the  debtor's  representatives. 

(c)    See  p.  *210,  below. 


GENERAL   RULES.  223 

Such  an  intention  is  presumed  if  the  nature  of  the  transaction  in- 
volves personal  confidence  between  the  parties,  or  is  otherwise  such 
that  "  personal  considerations "  are  of  the  foundation  of  the  con- 
tract (d). 

Exception  3.  The  representatives  of  a  deceased  person  cannot  sue 
for  a  breach  of  contract  in  a  case  where  the  breach  of  contract  was  in 
itself  a  merely  personal  injury,  unless  special  damage  to  the  estate 
which  they  represent  has  resulted  from  the  breach  of  contract.  But 
where  such  damage  has  resulted  the  representatives  may  recover  com- 
pensation for  it,  notwithstanding  that  the  person  whose  estate  they 
represent  might  in  his  lifetime  have  brought  an  action  of  tort  for  the 
personal  injury  resulting  from  the  same  act  (e). 

These  propositions  are  subject  to  several  special  qualifications  and 
exceptions.  Most  of  the  exceptions  are  of  *modern  origin,  and  [201 
we  shall  see  that  since  their  establishment  many  attempts  have  been 
made  to  extend  them.  Such  attempts  have  in  some  departments 
been  successful,  while  in  others  exceptions  which  for  some  time  were 
admitted  have  been  more  recently  disallowed. 

We  shall  now  go  through  the  rules  thus  stated  in  order,  pointing 
out  under  each  the  limits  within  which  exceptions  are  admitted  in 
the  present  state  of  the  law.  The  decisions  which  limit  the  exceptions 
are  (as  commonly  happens  in  our  books)  for  the  most  part  the  chief 
authorities  to  show  the  existence  of  the  rules. 

Rule  1.     Parties  must  be  ascertained. 

Our  first  rule  is  that  the  original  parties  to  a  contract  must  be 
persons  ascertained  at  the  time  when  the  conract  is  made.     It  is 

(d)   Cp.   Indian   Contract   Act,   ss.  dated  Portland  Cement  Manufactur- 

37,     40.       See     Stevens    v.     Benning  ers  [1901]  2  K.  B.  811,  70  L.  J.  K.  B. 

(1854)    1  K.  &  J.  168,  24  L.  J.  Ch.  1036.     If  in   any  of  these  cases  the 

153 ;  Farrow  v.  Wilson   ( 1869')   L.  R.  transaction   is   continued   by   mutual 

4  C.  P.  744,  746,  38  L.  J.  C.  P.  326;  consent,  it  is  a  new  contract,  e.  g.,  if 

Robinson  v.  Davison    (1871)    L.  B.  6  a,  servant  continues  his  service  with 

Ex.  269,  40  L.  J.  Ex.  172;  Finlay  v.  a  deceased   master's   family,  or   if  a 

CMrney  (1888)   20  Q.  B.  Div.  494,  57  painter's     executor,     being     also     a 

L.  J.   Q.    B.   247 ;    Robson  v.    Drum-  painter,    were    to    complete    an    un- 

mond   (1831)    2  B.  &  A.d.  303,  36  B.  finished     portrait     on     the     original 

B.  569;  but  this  case  goes  very  far:  terms  at  the  sitter's  request. 
British   Waggon   Co.    v.    Lea   &    Co.  (e)   See   1   Wms.   Exors.    709,    9th 

(1880). 5  Q.  B.  D.  149,  152,  49  L.  J.  Q.  ed.,   and   Bradshaw  v.   Lancashire  d 

B.    321,    and   will   not  be   extended:  Yorkshire  Ry.   Co.    (1875)    L.   B.   10 

Phillips  v.  Hull  Alhambra  Palace  Co.  C.  P.  189.  44  L.  J.  C.  P.  148    (since 

[1901]  1  Q.  B.  59,  70  L.  J.  Q.  B.  26.  questioned   in  Leggott  v.    G.   N.   Ry. 

An  assignment   which   would   impose  Co.    (1876)    1  Q.  B.  D.  599,  45  L.  J. 

a  novel  burden  on  the  debtor  is  not  Q.  B.  557). 
binding   on   him:    Tolhurst   V.    Asso- 


224  PERSONS    AFFECTED    BY    CONTRACT. 

obvious  that  there  cannot  be  a  contract  without  at  least  one  ascer- 
tained party  to  make  it  in  the  first  instance;  and  it  is  also  an  elemen- 
tary principle  of  law  that  a  contracting  party  cannot  bind  himself 
by  a  floating  obligation  to  a  person  unascertained.  The  rule  has  been 
thus  expressed :  "  A  party  cannot  have  an  agreement  with  the  whole 
world ;  he  must  have  some  person  with  whom  the  contract  is  made"(/). 
It  is  theoretically  possible  to  find  exceptions  to  this  rule  in  such  cases 
as  tbose  of  promises  or  undertakings  addressed  to  the  public  at  large 
by  advertisements  or  the  like,  and  sales  by  auction.  But  we  have 
shown  in  Chap.  I.  that  this  view  is  unnecessary  and  untenable,  and 
that  in  every  such  case  where  a  contract  is  formed  it  is  formed  be- 
tween two  ascertained  persons  by  one  of  them  accepting  a  proposal 
made  to  him  by  the  other,  though  possibly  made  to  him  in  common 
with  all  other  persons  to  whose  knowledge  it  may  come. 

Effects  of  Contract  as  to  Third  Persons. 

The  affirmative  part  of  our  second  rule,  namely:  The  creditor 
202]  can  demand  performance  from  the  debtor  or  his  ^representa- 
tives, is  now  and  long  has  been,  though  it  was  not  always  elemen- 
tary (g). 

Rule  2.    No  liability  imposed  on  third  persons. 

The  negative  part  of  it  states  that  the  creditor  cannot  demand, 
nor  can  the  debtor  require  him  to  accept,  performance  from  any 
third  person.     This  is  subject  to  the  explanation  that  the  debtor  or 

(/)   Squire  v.  Whitton  (1848)   1  H.  non    possunt    faeere    legem    pro    de- 

L.  C.  333,  358.  functo,  petens  probabit  talliam  suam, 

(g)  As  to  the  liability  of  personal  ^el  si  habeat  sectam  secta  debet  ex- 
representatives  on  the  contracts  of  aminari;  et  hoc  est  verum  sive  sit 
the  testator  or  intestate'  see  1  Wms.  mercator  sive  non  '' :  Y.  B.  22  Ed.  I. 
Saund.  241-2.  The  old  rule  that  an  p.  456).  For  the  conflict  of  opinion 
action  of  debt  on  simple  contract  as  to  the  remed;  by  assumpsit,  see 
would  not  lie  against  executors  Reeves  3.  403,  Y.B.  Mich.  2  H.  VIII. 
where  the  testator  could  have  waged  11,  pi.  3,  the  strange  dictum  contra 
his  law  (though  it  is  said  the  objec-  of  Fitzherbert,  Trin.  27  H.  VIII.  23 
tion  could  be  taken  only  by  demur-  pi.  21,  who  said  theTe  was  no  remedy 
rer)  seems  to  have  been  in  truth  an  at  all  (apparently  on  the  ground 
innovation.  See  the  form  of  writ  that  a  cause  ef  action  in  assumpsit 
for  or  against  executors,  Fleta  1.  2,  was  for  a  tort,  and  therefore  died 
c.  62,  §  9;  and  cp.  F.  N.  B.  119  M,  with  the  defendant's  person),  and 
121  0  (the  latter  passage  is  curious:  Norwood  v.  Read  (1557-8)  in  B.  R., 
if  a  man  has  entered  into  religion  Plow.  180.  In  Pinchon's  case  (1612) 
his  executors  shall  be  sued  for  his  in  Ex.  Ch.  9  Co.  Bep.  86  b,  this  die- 
debt,  not  the  abbot  who  accepted  him  turn  was  overruled,  authorities  re- 
into  religion :  seep.  83,  n.  {z) ,  supra,  viewed  and  explained,  and  the  com- 
and  Y.  B.  30  Ed.  I.  p.  238.  It  is  mon  law  settled  in  substance  as  it 
said,  howeveT,  that  "  Quia  executores  now  is. 


THIRD    PERSON    CANNOT    PERFORM.  225 

his  representatives  may  perform  the  duty  by  an  agent,  which  again 
is  modified  by  the  exception  of  strictly  personal  contracts  as  men- 
tioned at  the  end  of  the  rules.     On  this  we  need  not  dwell  at  present. 

Its  foundation  in  principle.  It  is  obvious  on  principle  that  it  is  not 
competent  to  contracting  parties  to  impose  liabilities  on  other  per- 
sons without  their  consent. 

Every  person  not  subject  to  any  legal  incapacity  may  dispose  freely 
of  his  actions  and  property  within  the  limits  allowed  by  the  general 
law.  Liability  on  a  contract  consists  in  a  further  limitation  of  this 
disposing  power  by  a  voluntary  act  of  the  party  which  places  some 
definite  portion  of  that  power  at  the  command  of  the  other  party  to 
the  contract.  So  much  of  the  debtor's  individual  freedom  *is  [203 
taken  from  him  and  made  over  to  the  creditor  (h).  When  there  is 
an  obligation  independent  of  contract,  a  similar  result  is  produced 
without  regard  to  the  will  of  the  party;  the  liability  is  annexed  by 
law  to  some  wrongful  act  or  default  in  the  case  of  tort,  and  in  the  case 
of  contracts  "implied  in  law"  to  another  class  of  events  which  may 
be  roughly  described  as  involving  the  accession  of  benefit  through 
the  involuntary  loss  of  another  person;  but  when  an  obligation  is 
founded  upon  a  real  contract,  the  assent  of  a  person  to  be  bound  is  at 
the  root  of  the  matter  and  is  indispensable  (i). 

Agency:  the  exception  only  apparent.  The  ordinary  doctrines  of  agency 
form  no  real  exception  to  this.  For  a  contract  made  by  an  agent  can 
bind  the  principal  only  by  force  of  a  previous  authority  or  subsequent 
ratification;  and  that  authority  or  ratification  is  nothing  else  than 
the  assent  of  the  principal  to  be  bound,  and  the  contract  which  binds 
him  is  his  own  contract.  Under  certain  conditions  there  may  be  a 
contract  binding  on  the  agent  also,  as  we  have  seen  in  Chap.  II.,  but 
with  that  we  are  not  here  concerned. 

When  companies  held  in  equity  to  promoters'  agreements;  not  ex  contractu. 

Another  less  simple  apparent  exception  occurs  in  the  cases  in  which 

(%)   Cp.  Savigny,  Obi.  §  2.  this  country  and  comment  thereon  8 

(i)   Lumley  v.  Gye   (1853)   2  E.  &  Harv.  L.  Rev.   1;   11  ib.  449;    12  ib. 

B   216,  22  L.  J.  Q.  B.  463,  and  Bowen  335;  43  Cent.  L.  J.  302;  48  ib.  112; 

v.  Hall   (1881)   6  Q.  B.  Div.  333,  50  54    ib.    426;    Reports    of    Am.    Bar 

L.  J.  Q.  B.  305,  show  ( see  now  Quinn  v.  Assoc.   1898,   352.]     But  this   is  not 

Leathern  [1901]  A.  C.  495,  510,  535,  an  obligation  under  the  contract,  any 

70    L.    J.    P.    C.    76,    removing    the  more  than  when  A.  sells  his  land  to 

doubts     raised    in    Allen    v.    Flood  B.  the  duty  of  all  men  to  respect  the 

[1898]  A.  C.  1,  67  L.  J.  Q.  B.  119)  rights  of  B.  instead  of  A.,  as  owner 

that  a  stranger  may  be  liable  in  tort  of   that   land,   is   a  duty   under   the 

for  procuring  the   breach   of   a  con-  contract  of  sale  or  the  conveyance. 
tract.     [See  for  many  authorities  in 
15 


226  PERSON'S  AFFECTED  BY  CONTRACT. 

companies  have  been  held  bound  by  agreements  or  representations  (k) 
made  by  their  promoters  before  the  companies  had  any  legal  existence. 
These  cases,  however,  proceed  partly  on  the  ground  of  a  distinct  obli- 
gation having  either  been  imposed  on  the  company  in  its  original 
constitution,  or  assumed  by  it  after  its  formation  (I),  partly  on  a 
204]  ground  independent  of  con*tract  and  analogous  to  estoppel, 
namely,  that  when  any  person  has  on  certain  terms  assisted  or  ab- 
stained from  hindering  the  promoters  of  a  company  in  obtaining  the 
constitution  and  the  powers  sought  by  them,  the  company  when 
constituted  must  not  exercise  its  powers  to  the  prejudice  of  that 
person  and  in  violation  of  those  terms.  The  doctrine  as  now  estab- 
lished probably  goes  as  far  as  this,  but  certainly  no  farther  (m).1 

Stranger  held  bound  by  award  in  equity.  In  one  case  of  a  suit  in  equity 
for  specific  performance  of  an  award  a  third  person  interested  in  the 
subject-matter  was  made  a  party,  and  was  held  to  be  bound  by  the 
award,  though  he  had  not  been  a  party  to  the  reference  and  had  in 
no  way  assented  to  it,  but  simply  knew  of  it  and  remained  passive  (n). 
But  it  has  been  held  by  higher  authority  (o)  that  in  a  suit  for  the 
specific  performance  of  a  contract  third  persons  claiming  an  interest 
in  the  subject-matter  are  not  even  proper  parties :  and  even  without 
this  it  seems  obvious  that  A.  and  B.  have  no  business  to  submit  C.'s 
rights  to  the  arbitration  of  D.  It  is  apprehended  accordingly  that 
this  exception  may  be  treated  as  non-existent. 

(7c)   Re    Metrop.    Coal    Consumers'  R.  1  Ch.  501,  507,  35  L.  J.  Ch.  795. 

Association,  Karberg's  case  [1892]  3  In  Taylor  v.  Parry   (1840)   I  Man.  & 

Ch.  1,  61  L.  J.  Ch.  741,  C.  A.  Gr.  604,  the  Court  relied  on  positive 

(I)   Lindley    on     Companies,     146,  acts  of  the  parties  as   showing  that 

149.  they  adopted  the  reference  and  were 

(m)    Lindley    on    Companies,    152.  substantially  parties  to  it. 
As  to  ratification  by  companies,  see  ( o )   Tasker  v.  Small  { 1837 )   3  My. 

p.  *110,  above.  '  &  Cr.   63,  45  R.  R.  212,  followed  in 

(ft)    Govett  v.  Richmond    (1834)    7  Be  Hoghton  v.  Money    (1866)    L.   R. 

Sim.  1,  40  R.  R.  56,  doubted  in  Mar-  2  Ch.  164. 
tin  v.  L.  C.  &  D.  Ry.  Co.    (1866)   L. 

l  Marysville  Co.  v.  Johnson,  93  Cal.  538;  Freeman  Imp.  Co.  v.  Osborn, 
14  Col.  App.  488;  Chicago  Bg.  Co.  v.  Creamery  Co.,  106  Ga.  84;  Davis  v.  Dexter 
Co.,  52  Kan.  693 ;  Oldham  v.  Mt.  Sterling  Imp.  Co.,  20  Ky.  L.  Rep.  207 ;  Abbott 
v,  Hapgood,  150  Mass.  248;  Bradford  v.  Metcalf,  185  Mass.  205,  207:  St.  John's 
Mfg.  Co.  ik  Munger,  106  Mich.  90;  Bottelle  v.  Northwestern  Co.,  37  Minn.  89; 
MeArthur  v.  Times  Printing  Co.,"  48  Minn.  319;  Hill  v.  Gould,  129  Mo.  106; 
Low  v.  Railroad  Co.,  45  N.  H.  370;  Van  Schaick  v.  Railroad  Co.,  38  N.  Y. 
346;  Bonner  v.  American  Mfg.  Co.,  81  N.  Y.  468;  Munson  v.  Railroad  Co.,  103 
N.  Y.  58;  Oakes  v.  Cattaraugus  Co.,  143  N.  Y.  430;  Dayton  v.  Turnpike  Co., 
13  Ohio  St.  84 ;  Schreyer  v.  Turner  Mills  Co.,  29  Oreg.  1 ;  Tift  v.  Quaker  City 
Bank,  141  Pa.  550;  Huron  Printing  Co.  v.  Kittleson,  4  S.  Dak.  520;  Chase  v. 
Redfield  Creamery  Co.,  12  S.  Dak.  529;  Lancaster,  &c.  Co.  v.  Murray,  &c.  Co., 
19  Tex.  Civ.  App.  110;  Wall  v.  Mining  Co.,  20  Utah,  474;  Pratt  v.  Oshkosh 
Match  Co.,  89  Wis.  406.  See  also  an  article  by  Austin  Abbott,  1  A.  &  E.  Corp. 
Cas.,  new  series,  i. 


NOVATION.  227 

Novation.  Another  branch  of  the  same  general  doctrine  is  that  the 
debtor  cannot  be  allowed  to  substitute  another  person's  liability  for 
his  own  without  the  creditors  assent.  A  contract  cannot  be  made 
except  with  the  person  with  whom  one  intends  to  contract  (p).  When 
a  creditor  assents  at  the  debtor's  request  to  accept  another  person  as 
his  debtor  in  the  place  of  the  first,  this  is  called  a  novation. 
*  Whether  there  has  been  a  novation  in  any  particular  case  is  a  [205 
question  of  fact,  but  assent  to  a  novation  is  not  to  be  inferred  from 
conduct  unless  there  has  been  a  distinct  and  unambiguous  request  (q). 
Such  questions  are  especially  important  in  ascertaining  who  is  liable 
for  the  partnership  debts  of  a  firm  when  there  has  been  a  change 
in  the  members  of  the  firm,  or  on  contracts  made  in  a  business  which 
has  been  handed  over  by  one  firm  (whether  carried  on  by  a  single 
person,  a  partnership,  or  a  company)  to  another.  A  series  of  cases 
which  were,  or  were  supposed  to  be,  of  this  kind  arose  about  1875  out 
of  successive  amalgamations  of  life  insurance  companies  (r). 

The  question  may  be  resolved  into  two  parts:  Did  the  new  firm 
assume  the  debts  and  liabilities  of  the  old?  and  did  the  creditor, 
knowing  this,  consent  to  accept  the  liability  of  the  new  firm  and  dis- 
charge the  original  debtor  (s)  ?  It  would  be  beyond  our  scope  to 
enter  at  large  on  this  subject  (t).2 

Real  exceptions  to  come  under  Rule  4.  There  exist,  however,  exceptions 
to  the  general  rule.  In  certain  cases  a  new  liability  may  without 
novation  be  created  in  substitution  for  or  in  addition  to  an  existing 
liability,  but  where  the  possibility  exists  of  such  an  exceptional  trans- 
fer of  liabilities  it  is  bound  up  with  the  correlated  possibility  of  an 
exceptional  transfer  of  rights,  and  cannot  be  considered  alone.  For 
this  reason  the  exceptions  in  question  will  come  naturally  to  our 
notice  under  Eule  4,  when  we  deal  with  the  peculiar  modes  in  which 
rights  arising  out  of  certain  classes  of  contracts  are  transferred. 

*  Apart  from  novation  in  the  proper  sense,  the  creditor  may  [206 

(p)   Robson  v.  Drummond    (1831)  case    (1875)    1    Ch.   D.   307,    322,   45 

2   B.  &  Ad.   303,   36   R.  R.   569,  see  L.  J.  Ch.  321. 

note  (d),  p.  *200,  above.     Other  cases  (s)    See  Rolfe  v.  Flower  (1865)   L. 

bearing  on  the  same   point  are  con-  R.  1  P.  C.  27,  44,  35  L.  J.  P.  C.  13. 

sidered   for   another   purpose   in   Ch.  (<)    See    Lindley    on    Partnership, 

IX.  below.  246  sqg.,  and  as  to  the  general  prin- 

(q)    Conquest's  case    (1875)    1  Ch.  ciple  of  novation,  see  Wilson  v.  Lloyd 

Div.  334,  341,  45  L.  J.  Ch.  336.  (1873)   L.  R.  16  Eq.  60,  74,  42  L.  J. 

(r)   It   is    doubtful   whetheT    some  Ch.  559;  for  a  later  instance  of  true 

of  tnese  were  really  cases   of  nova-  novation,  Miller's  case   (1876)    3  Ch. 

tion:    see   Rort's   case    and    Grain's  Div.  391. 

2  See  an  article  by  Prof.  Ames,  6  Harv.  L.  Rev.  184,  and  Am.  &  Eng.  Encyc. 
of  Law. 


228  PERSONS  AFFECTED  BY  CONTRACT. 

bind  himself  once  for  all  by  the  original  contract  to  accept  a  substi- 
tuted liability  at  the  debtor's  option.  Such  an  arrangement  is  in  the 
nature  of  things  unlikely  to  occur  in  the  ordinary  dealings  of  private 
persons  among  themselves.  But  it  was  decided  in  the  winding-up  of 
the  European  Assurance  Society  that  where  the  deed  -of  settlement 
of  an  insurance  company  contained  a  power  to  transfer  the  business 
and  liabilities  to  another  company,  a  transfer  made  under  this  power 
was  binding  on  the  policy-holders  and  they  had  no  claim  against  the 
original  company  (u).  In  the  case  of  a  policy-holder  there  is  indeed 
no  subsisting  debt  (u),  but  he  is  a  creditor  in  the  wider  sense  above 
defined  (p.  *198). 

Rule  3.    A  third  person  cannot  become  entitled  by  the  contract  itself 
to  demand  the  performance  of  any  duty  under  the  contract. 

No  rights  conferred  on  third  persons.  Before  we  consider  the  possibil- 
ity of  creating  arbitrary  exceptions  to  this  rule  in  any  particular 
cases,  there  are  some  extensive  classes  of  contracts  and  transactions 
analogous  to  contract  which  call  for  attention  as  offering  real  or 
apparent  anomalies. 

A.  Exceptions.  Agency:  apparent  only.  Contracts  made  by  agents. 
Here  the  exception  is  only  apparent.  The  principal  acquires  rights 
under  a  contract  which  he  did  not  make  in  person.  But  the  agent 
is  only  his  instrument  to  make  the  contract  within  the  limits  of  the 
authority  given  to  him,  however  extensive  that  authority  may  be: 
and  from  the  beginning  to  the  end  of  the  transaction  the  real  con- 
tracting party  is  the  principle. 

207]  *Degrees  of  agency.  Consider  the  following  series  of  steps  from 
mere  service  to  full  discretionary  powers : 

1.  A  messenger  is  charged  to  convey  a  proposal,  or  the  acceptance 
or  refusal  of  one,  to  a  specified  person. 

2.  He  is  authorized  to  vary  the  terms  of  the  proposal,  or  to  en- 
deavour to  obtain  a  variation  on  the  other  party's  proposal  (t.  e.,  to 
make  the  best  bargain  he  can  with  the  particular  person),  within 
certain  limits. 

3.  He  is  not  confined  to  one  person,  but  is  authorized  to  conclude 
the  corjtract  with  any  one  of  several  specified  persons,  or  generally 
with  any  one  from  whom  he  can  get  the  best  terms. 

(u)  Hort's  case  and  Grain's  case  Div.  326,  45  L.  J.  Ch.  332;  Cocker's 
(1875)  1  Ch.  D.  307.  45  L.  J.  Ch.  case  (1876)  3  Ch.  Div.  1,  45  L.  J.  Ch. 
321;    Barman's    case     (1875)     1    Ch.        882. 


PRINCIPAL  AND  SURETY.  229 

4.  He  is  not  confined  to  one  particular  contract,  but  is  authorized 
generally  to  make  such  contracts  in  a  specified  line  of  business  or  for 
specified  purposes  as  he  may  judge  best  for  the  principal's  interest  (x). 

Agent  contracting  personally.  The  fact  that  in  many  cases  an  agent 
contracts  for  himself  as  well  as  for  his  principal,  and  the  modifica- 
tions which  are  introduced  into  the  relations  between  the  principal 
and  the  other  party  according  as  the  agent  is  or  is  not  known  to  be 
an  agent  at  the  time  when  the  contract  is  made,  do  not  prevent  the 
acts  of  the  agent  within  his  authority  from  being  for  the  purposes 
of  the  contract  the  acts  of  the  principal,  or  the  principal  from  being 
the  real  contracting  party.  Again  when  the  agent  is  also  a  contract- 
ing party  there  are  two  alternative  contracts  with  the  agent  and  with 
the  principal  respectively. 

Ratification.  As  for  the  subsequent  ratification  of  unauthorized  acts, 
there  is  no  difference  for  our  present  purpose  between  a  contract 
made  with  authority  and  one  made  without  authority  and  subse- 
quently ratified.  The  consent  of  the  principal  is  referred  back  to  the 
date  of  the  original  act  by  a  beneficent  and  necessary  fiction. 

B.  Other  relations:  principal  and  surety.  There  are  certain  relations 
created  by  contract,  of  which  that  of  creditor,  principal  debtor,  and 
surety  may  *be  taken  as  the  type,  in  which  the  rights  or  duties  [208 
of  one  party  may  be  varied  by  a  new  contract  between  others.  But 
when  a  surety  is  discharged  by  dealings  between  the  creditor  and  the 
principal  debtor,  this  is  the  result  of  a  condition  annexed  by  law  to 
the  surety's  original  contract.  There  is  accordingly  no  real  anomaly, 
though  there  is  an  apparent  exception  to  the  vague  maxim  that  the 
legal  effects  of  a  contract  are  confined  to  the  contracting  parties :  and 
there  is  not  even  any  verbal  inconsistency  with  any  of  the  more 
definite  rules  we  have  stated.  These  cases  are  mentioned  only  be- 
cause they  have  been  considered  as  real  exceptions  by  writers  of  recog- 
nized authority  (y). 

Anomalous  effects  of  bankruptcy  and  insolvency.  Insolvency  and  bank- 
ruptcy, again,  have  various  consequences  which  affect  the  rights  of 
parties  to  contracts,  but  which  the  general  principles  of  contract  are 
inadequate  to  explain.  We  allude  to  them  in  this  place  only  to 
observe  that  it  is  best  to  regard  them  not  as  derived  from  or  inci- 
dental to  contract,  but  as  results  of  an  overriding  necessity  and  be- 

(*)   Cp.  Savigny,-  Obi.  2.  57-60.  (y)  See  Pothier,  Obi.  §  89. 


230  PERSONS    AFFECTED    BY    COXTRACT. 

yond  the  region  of  contract  altogether  (2).  Even  those  transactions 
in  bankruptcy  and  insolvency  which  have  some  resemblance  to  con- 
tracts, such  as  statutory  compositions  with  creditors,  are  really  of  a 
judicial  or  quasi-judicial  character.  It  is  obvious  that  if  these  trans- 
actions were  merely  contracts  no  dissenting  creditor  could  be  bound. 

C.  Trusts:  a  real  exception,  if  trust  a  contract  between  author  of  trust 
and  trustee.  The  case  of  trusts  presents  a  real  and  important  excep- 
tion, if  a  trust  is  regarded  as  in  its  origin  a  contract  between  the 
author  of  the  trust  and  the  trustee.  It  is  quite  possible,  and  may 
for  some  purposes  be  useful  so  to  regard  it.  The  Scottish  institu- 
tional writers  (who  follow  the  Eoman  arrangement  in  the  learning 
of  Obligations  as  elsewhere)  consider  trust  as  a  species  of  real 
209]  contract  *coming  under  the  head  of  depositation  (a).  Con- 
versely deposits,  bailments,  and  the  contract  implied  by  law  which  is 
the  foundation  of  the  action  for  money  received,  are  spoken  of  in 
English  books  as  analogous  to  trusts  (b).  A  chapter  on  the  duties 
of  trustees  forms  part  of  the  best  known  American  text-books  on 
contracts,  though  no  attempt  is  made,  so  far  as  we  have  ascertained,  to 
explain  the  logical  connection  of  this  with  the  rest  of  the  subject. 

General  analogy  to  contract.  By  the  creation  of  a  trust  duties  are  im- 
posed on  and  undertaken  by  the  trustee  which  persons  not  parties  to 
the  transaction,  or  even  not  in  existence  at  its  date,  may  afterwards 
enforce.  And  the  relation  of  a  trustee  to  his  cestui  que  trust  is  closely 
analogous  to  that  of  a  debtor  to  his  creditor,  in  so  far  as  it  has  the 
nature  of  a  personal  obligation  and  is  governed  by  the  general  rules 
derived  from  the  personal  character  of  obligations.  Thus  the  transfer 
of  equitable  rights  of  any  kind  is  subject,  as  regards  the  perfection 
of  the  transferee's  title,  to  precisely  the  same  conditions  as  the 
transfer  of  rights  under  a  contract.  And  the  true  way  to  understand 
the  nature  and  incidents  of  equitable  ownership  is  to  start  with  the 
notion  not  of  a  real  ownership  which  is  protected  only  in  a  court  of 
equity,  but  of  a  contract  with  the  legal  owner  which  (in  the  case 
of  trusts  properly  so  called)  cannot  be  enforced  at  all,  or  (in  the  case 
of  constructive  trusts,  such  as  that  which  arises  on  a  contract  for 

(z)   A    striking    instance    is    fur-  (a)    Sic,   though  no   such  abstract 

nished  by  the  rule  in  Waring's  case  term   is  known   in  Roman  law.     See 

(1815)    19   Ves.   345,   13   R.   R.  217;  Erskine,  Inst.  Bk.  3,  tit.  1.  s.  32. 
see     per     Lord     Cairns,     Banner    v.  ( 6 )    Blackstone,  Comm.  iii.  432. 

Johnston    (1871)    L.   R.    5   H.   L.   at 
p.  174,  40  L.  J.  Ch.  730. 


PROVISIONS    FOR    CHILDREN.  231 

the  sale  of  land)  cannot  be  enforced  completely,  except  in  a  court  of 
equity  (c). 

However,  although  every  trust  may  be  said  to  include  a  contract, 
it  includes  so  much  more,  and  the  purposes  for  which  the  machinery 
of  trusts  is  employed  are  of  so  different  a  kind,  that  trusts  are  distinct 
in  a  marked  way  not  merely  from  every  other  species  of  contract,  but 
from  *all  other  contracts  as  a  genus.  The  complex  relations  [210 
involved  in  a  trust  cannot  be  reduced  to  the  ordinary  elements  of 
contract.3 

D.  Exception  of  certain  provisions  for  children.  Closely  connected  with 
the  cases  covered  by  the  doctrine  of  trusts,  but  extending  beyond  them, 
we  have  the  rules  of  equity  by  which  special  favour  is  extended  to 
provisions  made  by  parents  for  their  children.  This  exception  has 
already  been  noted  in  stating  the  general  rule  (d).  In  the  ordinary 
case  of  a  marriage  settlement  the  children  of  the  contemplated  mar- 
riage itself  are  said  to  be  "  within  the  consideration  of  marriage  "  (e) 
and  may  enforce  any  covenant  for  their  benefit  contained  in  the  settle- 
ment.4 Where  a  settlement  made  on  the  marriage  of  a  widow  provides 
for  her  children  by  a  former  marriage,  such  children,  though  in  the 
technical  language  of  equity  volunteers,  or  persons  having  no  part  in 
the  consideration,  have  been  held  entitled  to  enforce  the  provisions 
for  their  benefit  ;5  but  this  extension  has  been  doubted  in  the  Court  of 
Appeal  (/). 

The  question  how  far  limitations  in  a  marriage  settlement  to  per- 
sons other  than  children  can  be  supported  by  the  consideration  of 
marriage,  so  as  not  to  be  defeasible  under  27  Eliz.  c.  4,  against  sub- 
sequent purchasers,  is  a  distinct  and  wider  one,  not  falling  within 
the  scope  of  the  present  work  (g). 

( c )  See  per  Lord  Westbury,  Knox  "  la  peine  de  naitre  "  as  a  legal  detri- 
v.   Gye    (1871-2)    L.   R.   5   H.   L.    at       ment. 

p.   675,   42   L.  J.   Ch.   234;   Shaw  v.  (f)   Gale  v.  Gale   (1877)    6  Ch.  D. 

Foster    (1872)    L.  R.   5   H.   L.   at  p.  144,  152,  46  L.  J.  Ch.  809,  criticized 

338     (Lord    Cairns)    and    at    p.    356  per    Lindley    L.J.    A.-G.    v.    Jacobs 

(Lord  Hatherley)  ;  42  L.  J.  Ch.  49.  Smith   [1895]   2  Q.  B.  341,  349;   and 

(d)  P.  199,  above;  cp.  per  Cotton  see  Re  Cameron  and  Wells  (1887)  37 
L.J.  15  Ch.  D.  at  p.  242.  Ch.  D.  32,  57  L.  J.  Ch.  69. 

(e)  It  is  even  said  that  considers-  (g)    The  references  in  Gale  v.  Gale 
tion  moves,  or  is   assumed  to  move,  (last  note)   will  guide  the  reader,  if 
from  them.     But  it  must  not  be  in-  desired,  to  the  authorities,  including 
ferred  from  this  that  equity  regards  the  full  discussion  in  May  on  Volun- 
tary and  Fraudulent  Conveyances. 

3  Arnold  v.  Alden,  17S  111.  229. 

4Imlay  v.  Huntington,  20  Conn.  146,  166;  Vason  v.  Bell,  53  Ga.  416; 
Nowack  v.  Berger,  133  Mo.  24;  Piper  r.  Hoard,  107  N.  Y.  73. 

5  Michael  v.  Morey,  26  Md.  339;  Burkholder's  Appeal,  105  Pa.  31.  See 
further,  Neves  i\  Scott,  9  How.  196;  Burge  v.  Burge,  45  Ga.  301. 


232  PERSONS    AFFECTED    BY    CONTRACT. 

E.  Statutory  exceptions.  There  is  also  a  class  of  statutory  excep- 
tions (though  of  decreasing  importance)  in  cases  where  companies 
211]  and  *public  bodies,  though  not  incorporated,  are  empowered 
to  sue  and  be  sued  by  their  public  officers  or  trustees. 

The  trustees  of  Friendly  Societies  and  Trade  Unions  are  likewise 
empowered  to  sue,  and  may  be  sued,  in  their  own  names,  in  cases  con- 
cerning the  property  of  the  society  or  union  (h). 

Covenants  relating  to  real  property.     By  8  &  9   Vict.  c.   106,  s.   5,  a 

person  who  is  not  a  party  to  an  indenture  may  nevertheless  take  the 
benefit  of  a  covenant  in  it  relating  to  real  property.  This  enactment 
has  not,  so  far  as  we  know,  been  the  subject  of  any  reported  decision  (i). 

General  application  of  rule.  Having  disposed  of  these  special  excep- 
tions, we  may  now  proceed  to  examine  the  rule  in  its  ordinary  appli- 
cation, which  may  be  expressed  thus : — The  agreement  of  contracting 
parties  cannot  confer  on  a  third  person  any  right  to  enforce  the 
contract. 

There  are  two  different  classes  of  cases  in  which  it  may  seem  de- 
sirable, and  in  which  accordingly  it  has  been  attempted  to  effect  this : 

( 1 )  where  the  object  of  the  contract  is  the  benefit  of  a  third  person  : 

(2)  where  the  parties  are  numerous  and  the  persons  really  interested 
are  liable  to  be  changed  from  time  to  time. 

Contract  for  benefit  of  third  person.  It  was  for  a  long  time  not  clear 
21 2]  whether  a  contract  *between  A.  and  B.  that  one  of  them  should 
do  something  for  the  benefit  of  C.  did  or  did  not  give  C.  a  right  of 
action  on  the  contract  (k).  And  there  was  positive  authority  that 
at  all  events  a  contract  made  for  the  benefit  of  a  person  nearly  related 

(h)   Friendly    Societies    Act,    1875  of  London  (1878)   7  Ch.  D.  at  p.  741, 

(38  &  39  Vict.  e.  60),  s.  21;   Trade  47  L.  J.  Ch.  433. 

Union  Act,  1871  (34  &  35  Vict.  c.  (i)  For  an  example  of  the  incon- 
31),  s.  9.  It  is  the  same  with  build-  venience  provided  against  by  it.  see 
ing  societies  formed  before  the  Act  Lord  Southampton  v.  Brown  (1827) 
of  1874  and  not  incorporated  under  6  B.  &  C.  718,  30  R.  R.  511,  where 
it.  A  statute  enabling  a  local  au-  th  <  person  who  was  really  interested 
thority  to  recover  expenses,  and  not  in  the  payment  of  rent  on  a  demise 
specifying  any  remedy,  has  been  held  made  by  trustees  and  with  whom 
to  make  the  local  authority  a  quasi-  jointly  with  the  trustees  the  cove- 
corporation  for  the  purpose  of  suing:  nant  for  payment  of  rent  was  ex- 
Mills  v.  Scott  (1873)  L.  R.  8  Q.  B.  pressed  to  be  made,  was  held  incapa- 
496,  42  L.  J.  Q.  B.  234.  And  the  ble  of  ining  in  an  action  on  the 
grant  of  a  right  by  the  Grown  to  a  covenant. 

class  of  persons  may  have  the  effect  (/,-)    See  Viner,  Abr.  Assumpsit,  Z. 

of     incorporating     them     to     enable  (1.    333-7);    per    Eyre    C.J.    Co.    of 

them  to  exercise  the  right:      Willin-  Feltrnalcers  v.   Davis    (1797)     1    Bos. 

gale  v.  Maitland  (1866)   L.  R.  3  Eq.  &  P.  98;  note  to  Pigott  v.  Thompson 

103,   36   L.   J.   Ch.   64,   explained   by  (1802)  3  Bos.  &  P.  149. 
Jessel  M.R.  in  Chilton  v.  Corporation 


THIRD   PERSON    CANNOT   SUE.  233 

to  one  or  both  of  the  contracting  parties  might  be  enforced  by  that 
person  (I). 

Third  person  cannot  sue  at  law.  However,  the  rule  is  now  settled  that 
a  third  person  cannot  sue  on  a  contract  made  by  others  for  his  benefit 
even  if  the  contracting  parties  have  agreed  that  he  may,  and  also  that 
near  relationship  makes  no  difference  as  regards  any  common  law 
right  of  action.  The  final  decision  was  in  Tweddle  v.  Atkinson  (m). 
The  following  written  agreement  had  been  entered  into: 

"  Memorandum  of  an  agreement  made  this  day  between  William  Guy,"  &c, 
"  of  the  one  part,  and  John  Tweddle  of  the  other  part.  Whereas  it  is  mutually 
agreed  that  the  said  William  Guy  shall  and  will  pay  the  sum  of  £200  to 
William  Tweddle  his  son-in-law,  railway  inspector,  residing  in  Thornton,  in 
the  county  of  Fife  in  Scotland,  and  the  said  John  Tweddle  father  to  the 
aforesaid  William  Tweddle  shall  and  will  pay  the  sum  of  £100  to  the  said 
William  Tweddle  each  and  severally  the  said  sums  on  or  before  the  21st 
day  of  August,  1855;  and  it  is  hereby  further  agreed  by  the  aforesaid  William 
Guy  and  the  said  John  Tweddle  that  the  said  William  Tweddle  has  full  power 
to  sue  the  said  parties  in  any  Court  of  law  or  equity  for  the  aforesaid  sums 
hereby  promised  and  specified." 

William  Tweddle,  the  son  of  John  Tweddle,  brought  an  action 
against  the  executor  of  William  Guy  on  this  agreement,  the  declara- 
tion averring  his  relationship  to  the  parties,  and  their  intention  to 
carry  out  a  verbal  agreement  made  before  the  plaintiff's  marriage  to 
provide  a  marriage  portion.  The  action  was  held  not  to  be  main- 
tainable. The  Court  did  not  in  terms  overrule  the  older  *cases  [21 3 
to  the  contrary,  considering  that  their  authority  was  already  suffi- 
ciently disposed  of  by  the  effect  of  modern  decisions  and  practice  (n). 

Authorities  in  equity  against  right  of  third  person.  The  doctrines  of 
equity  are  at  first  sight  not  so  free  from  doubt.  There  is  clear  and 
distinct  authority  for  these  propositions:  When  two  persons,  for 
valuable  consideration  as  between  themselves,  contract  to  do  some  act 
for  the  benefit  of  another  person  not  a  party  to  the  contract — 

(i)  That  person  cannot  enforce  the  contract  against  either  of  the 
contracting  parties,  at  all  events  if  not  nearly  and  legitimately  re- 

■     (I)   Button  v.  Poole    (1677)     (Ex.  as    on    the    contract:       Playford    v. 

Ch.)  2  Lev.  213.  Vent.  318,  322.     Ap-  United   Kingdom   Electric    Telegraph 

proved  by  Lord  Mansfield,  Cowp.  443.  Co.    (1869)   L.  R.  4  Q.  B.  706,  38  L. 

There  appears  to  have  been  much  dif-  J.    Q.    B.    249 ;    Dickson    v.    Renter's 

ference  of  opinion  at  the  time.  Telegram  Co.    (1877)    2  C.  P.  ~D.   62, 

(m)    (1861)   1  B.  &  S.  393,  30  L.  J.  in  C.  A.  3  C.  P.  Div.  1,  47  L.  J.  C.  P. 

Q.  B.  265.  1.     It  is  a  distinct  question  whether 

(n)   See     also     Price     v.     Easton  these    decisions    rightly   denied    that 

(1833)    4  B.  &  Ad.  433.     Much  less  there  was  any  cause  of  action  at  all. 

suffered  damage  by  the  non-perform-  See  the  present  writer's  book  on  the 

ance  of  it  sue  the  defaulting  party  Law  of  Torts,  6th  ed.  532-536. 
can  a  stranger  to  a  contract  who  has 


234  PERSONS    AFFECTED    BY    CONTRACT. 

lated  to  one  of  them  (o).  Probably  the  only  exception  is  that  men- 
tioned above,  pp.  *199,  *210,  in  favour  of  children  provided  for  by 
marriage  settlements. 

(ii)  But  either  contracting  party  may  enforce  it  against  the  other 
although  the  person  to  be  benefited  had  nothing  to  do  with  the  con- 
sideration (p). 

Apparent  exceptions.  On  the  other  hand  the  case  of  Gregory  v. 
Williams  (q)  shows  that  a  third  person  for  whose  benefit  a  contract  is 
made  may  sometimes  join  as  co-plaintiff  with  one  of  the  actual  con- 
tracting parties  against  the  other,  and  insist  on  the  arrangement  being 
completely  carried  out.  The  facts  of  that  case,  so  far  as  now  material, 
may  be  stated  as  follows :  Parker  was  indebted  to  Williams  and  also 
to  Gregory;  Williams,  being  informed  by  Parker  that  the  debt  to 
Gregory  was  about  9001.,  and  that  there  were  no  other  debts,  under- 
21 4]  took  to  satisfy  the  debt  to  Gregory  on  having  *an  assignment  of 
certain  property  of  Parker's.  Gregory  was  not  a  party  to  this  arrange- 
ment, nor  was  it  communicated  to  him  at  the  time.  The  property 
having  been  assigned  to  Williams  accordingly,  the  Court  held  that 
Gregory,  suing  jointly  with  Parker,  was  entitled  to  call  upon  Williams 
to  satisfy  his  debt  to  the  extent  of  900Z.  (but  not  farther,  although 
the  debt  was  in  fact  greater)  out  of  the  proceeds  of  the  property.  It  was 
not  at  all  suggested  that  he  could  have  sued  alone  in  equity  any  more 
than  at  law  (r),  and  the  true  view  of  the  case  appears  to  be  that 
the  transactions  between  Williams  and  Parker  amounted  to  a  declara- 
tion of  trust  of  the  property  assigned  for  the  satisfaction  of  Gregory's 
claim  to  the  specified  extent  (s). 

Provision  for  widow  in  partnership  articles.  Another  apparent  excep- 
tion is  the  ease  of  Page  v.  Cox  (t),  where  it  was  held  that  a  provision 
in  partnership  articles  that  a  partner's  widow  should  be  entitled  to 
his  share  of  the  business  might  be  enforced  by  the  widow.  But  the 
decision  was  carefully  put  on  the  ground  that  the  provision  in  the 
articles  created  a  valid  trust  of  the  partnership  property  in  the  hands 
of  the  surviving  partner.     The  result  is  that  there  is  no  real  and 

(o)   Colyear  v.  Mulgrave   (1836)   2  clearly    that    A.    cannot    sue    on    a 

Kee.  81,  44  R.  R.  191.  promise  by  B.  to  C.  to  pay  C.'s  debt 

(p)   Davenport  v.  Bishopp   (1843)  to  A. 
2  Y.  &  C.  451,  460,  1  Ph.  698,  704.  (s)   Empress        Engineering        Co. 

(q)    (1817)    3  Mer.  582,   17  R.  R.  (1880)   16  Ch.  Div.  125,  129,  130,  by 

136.  Jessel  M.R.  and  James  L.J. 

(r)   For    an    attempt    of    a,    third  (t)    (1851)  10  Ha.  163,  cp.  Murray 

person  to  sue  at  law  under  very  sim-  v.  Flavell   (1883)   25  Ch.  Div.  89,  53 

ilar  circumstances,  see  Price  v.  Eas-  L.  J.  Ch.  185. 
ton    (1833)    4  B.  &  Ad.  433,  showing 


THIRD  PERSON   CANNOT  SUE.  235 

allowed  authority  for  holding  that  rights  can  in  general  be  acquired 
by  third  parties  under  a  contract,  unless  by  the  creation  of  a  trust. 

The  general  principle  has  been  re-affirmed  of  late  years.  "  A  mere 
agreement  between  A.  and  B.  that  B.  shall  pay  C.  (an  agreement  to 
which  C.  is  not  a  party  either  directly  or  indirectly)  will  not  prevent 
A.  and  B.  from  coming  to  an  agreement  the  next  day  releasing  the 
old  one"  (u). 

*"An  agreement  between  A.  and  B.  that  B.  shall  pay  C.  gives  [215 
C.  no  right  of  action  against  B."  (x) . 

It  is  proper  to  mention  that  a  different  rule  is  prevalent  in  America, 
but  there  does  not  seem  to  be  any  general  agreement  as  to  its  reason 
or  its  precise  extent  (y). 

Third  person  empowered  to  sue  for  convenience  of  parties.  We  now 
come  to  the  class  of  cases  in  which  contracting  parties  have  attempted 
for  their  own  convenience  to  vest  the  right  of  enforcing  the  contract 
in  a  third  person.  Except  within  the  domain  of  the  stricter  rules 
applicable  to  parties  to  actions  on  deeds  and  negotiable  instruments, 
there  appears  to  be  no  objection  to  several  contracting  parties  agree- 
ing that  one  of  them  shall  have  power  to  sue  for  the  benefit  of  all 
except  the  party  sued.  Thus  where  partners  create  by  agreement 
penalties  to  be  paid  by  any  partner  who  breaks  a  particular  stipula- 
tion, they  may  empower  one  partner  alone  to  sue  for  the  penalty  (z)'. 
The  application  of  the  doctrines  of  agency  may  also  lead  to  similar 
results  (a).  It  seems  doubtful  whether  a  promise  to  several  persons 
to  make  a  payment  to  one  of  them  will  of  itself  enable  that  one  to 
sue  alone  (&). 

(u)   Jessel    M.    R.    Empress   Engi-.  {y)    See    Harriman    on    Contracts 

neering  Co.,   16  Ch.  Div.  125,   129.  (Boston,    U.    S.,    2nd   ed.    1901)    pp. 

(x)   Lindley    L.J.    Re    Rotherham  212 — 226. 

Alum    and    Chemical   Co.    (1883)    25  (s)   Raaenhurst  v.  Bates   (1826)    3 

Ch.  Div.  at  p.  111.    These  statements  Bing.    463,   470,    28    R.   R.    659.      Of 

overrule  what   is   said   in   Touche  V.  course  they  must  take  care  to  make 

Metrop.    Railway    Warehousing     Co.  the  penalty  payable  not  to  the  whole 

(1871)   L.  R.  6  Ch.  671,  677,  40  L.  J.  firm,  but  to  the  members  of  the  firm 

Ch.   496    (the   decision   may   be   sup-  minus        the        offending        partner, 

ported     on     the     ground     of     trust,  Whether  under  the  present  Rules  of 

Lindley  on   Companies,   148).     Com-  Court   the   other   partners   could   use 

pare    further    Eley    v.    Positive,    dc.  the  name  of  the  firm  to  sue  for  the 

Life  Assurance  Co.  (1876)   1  Ex.  Div.  penalty,  quaere. 

88,  45  L.  J.  Ex.  451    (a  provision  in  (a)   Bpurr  v.  Cass   (1870)   L.  R.  5 

articles  of  association  that  A.  shall  Q.  B.  656,  39  L.  J.  Q.  B.  249. 

be    solicitor    to     the     company    and  (6)    Chanter  v.  Leese   (1839)   4  M. 

transact  all  its  legal  business  is  as  &  W.  295,  in  Ex.  Ch.  5  M.  &  W.  698, 

regards   A.   res  inter  alios   acta  and  51  R.  R.  584,  where  both  courts  in- 

gives  him  no  right  against  the  com-  clined  to  think  not,  but  gave  no  deci- 

pany)  :  Melhado  v.  Porto  Alegre  Ry.  sion.    In  Jones  v.  Robinson  (1847)   1 

Co.  (1874)  L.  R.  9  C.  P.  503,  43  L.  J.  Ex.  454,   17   L.  J.  Ex.  36,   an  action 

C.  .P.  253.  was  brought  by  one  of  two  late  part- 


236  PEESONS    AFFECTED    BY    CONTRACT. 

216]  *  Attempts  by  unincorporated  companies  to  appoint  a  nominal  plaintiff. 

But  it  is  quite  clear  that  the  most  express  agreement  of  contracting 
parties  cannot  confer  any  right  of  action  on  the  contract  on  a  person 
who  is  not  a  party.  Various  devices  of  this  kind  have  been  tried  in 
order  to  evade  the  difficulties  that  stand  in  the  way  of  unincorporated 
associations  enforcing  their  rights,  but  have  always  failed  when  at- 
tention was  called  to  them.  This  has  happened  in  the  case  of  actions 
brought  by  the  chairman  for  the  time  being  of  the  directors  of  a  com- 
pany (c),  by  the  directors  for  the  time  being  of  a  company  (d),  by 
the  purser  for  the  time  being  cf  a  cost-book  company  (e),  and  by  the 
managers  of  a  mutual  marine  insurance  society  (/).  It  will  not  be 
necessary  to  dwell  on  any  instance  other  than  the  last.  In  Gray  v. 
Pearson  the  reasons  against  allowing  the  right  of  action  are  well 
given  in  the  judgment  of  Willes  J. : — 

Judgment  of  Willes,  J.,  in  Gray  v.  Pearson. 

"  I  am  of  opinion  that  this  action  cannot  be  maintained,  and  for  the 
simple  reason, — a  reason  not  applicable  merely  to  the  procedure  of  this 
country,  but  one  affecting  all  sound  procedure, — that  the  proper  person  to 
bring  an  action  is  the  person  whose  right  has  been  violated.  Though  there 
are  certain  exceptions  to  the  general  rule,  for  instance  in  the  case  of  agents, 
auctioneers,  or  factors,  these  exceptions  are  in  truth  more  apparent  than  real. 
The  persons  who  are  suing  here  are  mere  agents,  managers  of  an  assurance 
association  of  which  they  are  not  members ;  and  they  are  suing  for  premiums 
alleged  to  have  become  payable  by  the  defendant  in  respect  of  policies  ef- 
fected by  the  plaintiffs  for  him,  and  for  his  share  and  contributions  to  losses 
and  damages  paid  by  them  to  other  members  of  the  association  whose  vessels 
have  been  lost  or  damaged.  The  bare  statement  of  the  facts  is  enough  to 
show  that  the  action  cannot  be  maintained. 

"  It  is  in  effect  an  attempt  to  substitute  a  person  as  a  nominal  plaintiff 
in  lieu  of  the  persons  whose  rights  have  been  violated." 

Notes  and  bills  payable  to  holder  of  office.  At  common  law  the  payee 
of  a  negotiable  instrument  must,  on  the  same  principle,  be  a  person 
217]  who  can  be  ^ascertained  at  the  time  of  accepting  the  bill  or 
making  the  note.    But  by  the  Bills  of  Exchange  Act,  1882,  s.  7,  a  bill 

ners    against   the    purchaser    of    the  (e)   Hybart  v.  Parker   (1858)   4  C. 

business    on    a    promise   to   pay    the  B.  N.   S.   209,   27   L.   J.   C.   P.    120; 

plaintiff  what  was  due  to  him  from  where    Willes    J.    suggested    that    it 

the  firm  for  advances.     This  was  de-  was    trenching    on    the    prerogatives 

clared  on   as   a   separate   promise1  in  of  the  Crown  to  make  a,  new  species 

addition  to  a  general  promise  to  the  of   corporation   sole   for  the  purpose 

two  partners  to  pay  the  partnership  of  bringing  actions, 
debts,    and    the    only    question    was  (f)    Gray  v.  Pearson  (1870)   L.  R. 

whether  there  was  any  separate  con-  5   C.   P.   568 ;   in   the  earlier  case  of 

sideration   for   the  promise  sued   on.  Gray  v.  Gibson  (1866)   L.  R.  2  C.  P. 

(e)   Hall   v.   Bainbridge    (1840)     1  120,  36  L.  J.  C.  P.  99,  a  similar  ac- 

Man.  &  Gr.  42.  tion   succeeded,    the   question   of   the 

(d)   Phelps  v.   Lylr    (1839)    10  A.  manager's    right    to    sue    not    being 

&  E.  113,  50  R.  R.  353.  raised. 


LAW    IN    THE    UNITED    STATES.  237 

(and  it  seems  by  ss.  73  and  89  also  a  cheque  or  a  promissory  note) 
may  be  made  payable  to  the  holder  of  an  office  for  the  time 
being  (g).6 

Contracts  for  the  benefit  of  a  third  person  in  the  United  States. 

Discussion  of  principles  necessary.  The  English  law  upon  this  ques- 
tion is  so  different  from  that  of  the  United  States,  that  it  seems  de- 
sirable to  insert  a  fuller  discussion  of  the  law  of  the  United  States 
than  was  possible  in  a  note,  and  some  preliminary  discussion  of  prin- 
ciples involved  is  also  essential,  for  the  first  step  towards  a  clear  un- 
derstanding of  contracts  for  the  benefit  of  third  persons  is  to 
differentiate  several  legally  distinct  states  of  fact  in  which  third  per- 
sons are  interested. 

Property  rights  distinguished  from  contract  rights.  Eights  of  property 
may  arise  simultaneously  with  the  making  of  a  contract,  and  may  be 
enforced  by  the  owner  though  he  was  not  a  party  to  the  contract. 
His  right  of  action  is  not  based  on  the  law  of  contracts,  but  on  the 
law  of  property.  Such  a  right  may  be  legal  or  equitable.  When  a 
seller  ships  goods  in  fulfilment  of  an  order,  for  instance,  the  legal 
title  to  the  goods  ordinarily  passes  to  the  consignee  at  the  time  of 
shipment,  which  is  the  time  when  the  carrier  contracts  with  the  con- 
signor to  deliver  the  goods  to  the  consignee.  If  the  carrier  losses  or 
misdelivers  the  goods  the  consignee  can  sue  the  carrier  or  indeed  any 
one  else  who  may  have  dealt  with  the  goods  wrongfully,  not  by  virtue 
of  the  contract  which  the  carrier  has  made,  but  because  of  the  rights 
of  property  which  arose  when  that  contract  was  made.  If,  indeed,  the 
liability  of  the  carrier  depends  wholly  on  a  promise  in  the  bill  of 
lading,  then  the  question  must  arise,  who  can  sue  on  the  contract 
contained  in  the  bill  of  lading.7  The  case  of  the  carrier  is  typical. 
Whenever  property  other  than  negotiable  paper  or  money  is  delivered, 
in  accordance  with  a  contract  of  sale,  to  a  third  person  for  the  pur- 
chaser, the  title  will  ordinarily  pass  to  the  purchaser  at  that  time, 
and  he  will  acquire  a  right  of  action  though  not  a  party  to  the  con- 
tract made  between  the  seller  and  bailee.  The  right  of  property  trans- 
ferred in  many  cases,  however,  is  equitable.  Whenever  property  is 
delivered  to  one  person  under  such  circumstances  that  the  legal  title 

(g)  On  the  former  law  see  Holmes  v.  Jacques  (1866)  L.  E.  1  Q.  B.  376,  35 
L.  J.  Q.  B.  130. 

e  So  the  American  Negotiable  Instrument  Act,  Crawford  Neg.  Inst.  Law, 
§  27,  par.  6. 
7  See  Elliott  on  Kailroads,  §  1692. 


238  PERSOXS    AFFECTED    BY    CONTRACT. 

passes  to  him,  but  he  undertakes  to  deliver  that  specific  property  or 
its  proceeds  to  a  third  person  or  use  the  property  for  his  benefit,  the 
relation  of  trustee  and  cestui  que  trust  arises.  When  money  or  nego- 
tiable paper  payable  to  bearer  or  indorsed  in  blank  is  delivered  to 
another  the  legal  title  will  generally  if  not  necessarily  pass,  and  the 
right  of  the  person  for  whose  benefit  the  delivery  is  made  will  be 
equitable,  though  in  the  case  of  money  the  appropriate  remedy  of  the 
cestui  que  trust  is  ordinarily  money  had  and  received.8  The  fact  that 
the  remedy  in  such  cases  is  in  assumpsit  has  often  blinded  courts  to 
the  fact  that  the  right  of  action  is  not  based  on  principles  of  contract.9 
Such  rights  of  property  are  not  generally  hard  to  distinguish  from 
contract  rights,  though  in  many  cases  courts  have  confused  the  two. 
The  inquiry  whether  a  specific  fund  or  res  is  to  be  transferred  to  the 
beneficiary  furnishes  a  ready  test. 

Property  rights  distinguished  from  revocable  agencies.  More  difficult 
than  the  distinction  between  contract  rights  and  property  rights  is 
the  distinction  between  cases  involving  the  latter  and  cases  of  revo- 
cable agency.  Unquestionably  a  man  can  create  a  trust  for  the 
benefit  of  another  so  absolute  that  the  settlor  cannot  regain  the  prop- 
erty forming  the  subject  of  the  trust.  On  the  other  hand,  one  may 
give  money  or  property  to  an  agent  with  instructions  to  give  it  to  a 
third  person,  and  before  the  mandate  is  executed  it  may  be  revoked. 
Where  is  the  line  which  divides  the  first  from  the  second  case.  No 
other  test  can  be  found  than  that  furnished  by  the  intention  of  the 
settlor  or  principal  as  indicated  by  his  words  and  conduct,  when  he 
enters  into  the  transaction.  If  his  expressed  intention  read  in  con- 
nection with  all  the  circumstances  of  the  case  indicates  that  the  de- 

8 "  Whenever  one  person  has  in  possession  money  which  he  cannot  con- 
scientiously retain  from  another,  the  latter  may  recover  it  in  this  form  of 
action,  subject  to  the  restriction  that  the  mode  of  trial  and  the  relief  which 
can  be  given  in  a  legal  action  are  adapted  to  the  exigencies  of  the  particular 
case,  and  that  the  transaction  is  capable  of  adjustment  by  that  procedure 
without  prejudice  to  the  interests  of  third  persons.  No  privity  of  contract 
between  the  parties  is  required,  except  that  which  results  from  the  circum- 
stances." Roberts  i:  Ely,  113  N.  Y.  128,  131.  See  also  McKee  v.  Lamon, 
159  TJ.  S.  317,  322;  Nebraska  Bank  v.  Nebraska  Hydraulic  Co.,  14  Fed.  Rep. 
763;  Nash  v.  Commonwealth,  174  Mass.  335,  337. 

9  The  mistakes  are  twofold.  Cases  of  trust  are  treated  as  involving  merely 
questions  of  contract.  Allen  v.  Thomas,  3  Mete.  (Ky.)  198;  Beattie  Mfg.  Co. 
!'.  Gerardi.  166  Mo.  142;  Price  r.  Trusdell,  28  N.  J.  Eq.  200,  202;  Bennett  r. 
Merchantville  Building  Assoc,  44  N.  J.  Eq.  116;  Del.  &  Hudson  Canal  Co.  v. 
Westchester  Bank,  4  Denio,  97.  Cases  of  mere  contract  rights  are  called 
trusts.  Follansbee  r.  Johnson,  28  Minn.  311;  Rogers  v.  Gosnell,  51  Mo.  469. 
The  true  distinction  is  well  presented  by  the  facts  and  is  explained  in  the 
opinions  in  Fay  v.  Sanderson,  48  Mich.  259 ;  Hidden  v.  Chappel,  48  Mich.  527. 
See  also  McDonald  v.  American  Bank,  25  Mont.  456 ;  Belknap  v.  Bender,  75 
N.  Y.  446;  Roberts  V.  Ely,  113  N.  Y.   128. 


PROPERTY    RIGHTS.  239 

livery  was  to  be  a  finality,  that  the  money  or  property  was  to  be  from 
that  moment  dedicated  to  the  third  person,  the  law  will  give  effect 
to  the  intention  and  give  the  latter  a  property  right  from  that  time. 
It  is  true  that  this  cannot  be  done  against  his  will,  but  if  there  is  no 
duty  or  obligation  required  from  him  in  return  for  the  property  he 
is  to  receive,  no  expression  of  assent  is  required.10  Assent  may  be 
implied  or  it  may  be  said  perhaps  more  accurately  that  the  property 
right  vests  without  assent  subject  to  the  possibility  of  rejection.  On 
the  other  hand,  if  the  use  of  the  money  or  property  was  intended  to 
be  subject  to  the  directions  of  the  person  delivering  it,  if  the  holding 
was  for  his  benefit  and  under  his  orders,  the  relation  is  that  of  prin- 
cipal and  agent  and  the  third  person  can  acquire  no  rights  until  the 
agency  has  been  executed  either  by  actual  transfer  to  the  third  per- 
son or  by  some  express  or  implied  attornment  to  him  by  the  agent. 
Mere  notice  to  the  third  person  that  an  agency  has  been  created  can- 
not make  it  irrevocable,  nor  can  even  acceptance  or  change  of  position 
by  the  third  person,  unless  either  the  principal  or  the  agent  with 
authority  from  the  principal  has  made  an  offer  that  the  holding  shall 
be  for  the  benefit  of  the  third  party  if  he  so  elects. 

Application  of  foregoing  principles.  The  statement  of  these  principles 
is  easier  than  the  application  of  them  to  concrete  facts.  One  of  the 
commonest  cases  involving  the  distinction  is  that  of  a  general  assign- 
ment by  a  debtor  for  the  benefit  of  his  creditors.  The  English  courts 
hold  that  the  delivery  of  such  an  assignment  vests  no  rights  in  the 
creditors.11  Yet  it  gives  rise  to  something  more  than  a  mere  agency, 
for  when  the  creditors  assent,  the  assignment  cannot  be  revoked.12 
It  is  in  effect,  therefore,  under  the  English  view,  an  offer  to  the 
creditors  of  a  trust  for  their  benefit.  Until  the  offer  is  accepted,  but 
no  longer,  the  assignee  is  agent  or  trustee  for  the  assignor.  In  the 
United  States  such  assignments  are  held,  with  better  reason,  to  create 
irrevocable  trusts  from  the  moment  the  deed  is  executed.13 

Further  illustration.  Another  illustration  is  furnished  by  the  facts 
of  a  New  York  case.14  Money  was  deposited  in  a  bank  by  a  corpora- 
tion which  owed  coupon  bonds  to  meet  a  series  of  coupons  about  to  fall 
due.  The  bank  agreed  to  apply  the  money  to  the  payment  of  the 
coupons.    Before  the  coupons  had  actually  been  paid  a  creditor  of  the 


10  Ames,  Cas.  Trusts,  2d  ed.,  232,  note ;  Perry  on  Trusts,  5th  ed.,  §  105. 
li  Garrard  v.  Lauderdale,  3  Sim.  1 ;  Smith  v.  Keating,  6  C.  B.  136. 

12  Ibid. 

13  Burrill  on  Assignments,  6th 

14  Rogers  Locomotive  Works  i 
Chattahoochee  Bank,  51  Ga.  325 


12  Ibid. 

13  Burrill  on  Assignments,  6th  ed.,  §  257  $eq. 
i*  Rogers  Locomotive  Works  v.  Kelley,  88  ST.  Y.  234.     Compare  Mayer  v. 

,»«oLnnleo     TlatlV       fil      da        325. 


240  PERSON'S  AFFECTED  BY  CONTRACT. 

corporation  sued  it,  and  garnisheed  the  bank.  It  was  held  that  the 
bank  had  become  a  trustee  for  the  coupon  holders,  and  that  the  cor- 
poration had  no  right  which  could  be  attached.  '  But  where  goods 
were  put  into  A.'s  hands,  to  sell  as  the  owner  should  direct  and  dis- 
tribute the  proceeds  among  certain  creditors,  it  was  held  that  only  a 
revocable  agency  was  created.15  So  where  an  agent  who  received 
money  from  his  principal  to  pay  over  to  a  creditor  subsequently  used 
the  money  otherwise  for  his  principal's  benefit,  and  the  principal 
assented,  it  was  held  that  the  creditor  had  acquired  no  rights.16 

Agency  and  contracts  for  the  benefit  of  a  third  person.  In  another  re- 
spect the  law  of  agency  touches  the  borderland  of  contracts  for  the 
benefit  of  a  third  person.  It  is  familiar  law  that  if  a  contracting 
party  either  is  or  assumes  to  be  the  agent  of  another,  the  latter  may 
sue  upon  the  contract.  The  right  of  a  third  person  benefited  by  a 
contract  to  sue  upon  it  has  sometimes  been  defended  on  the  ground 
that  the  promisee  was  the  agent  of  the  third  person.  But  the  exist- 
ence of  an  agency  is  a  question  of  fact.  It  cannot  be  assumed  as  a 
convenient  piece  of  machinery  when  in  fact  there  was  no  agency. 

Novations.  Novations  and  offers  of  novation  must  also  be  distin- 
guished from  the  other  legal  relations  with  which  this  chapter  deals. 
The  aim  of  the  novation  is  to  substitute  for  an  existing  obligation 
another  right.  To  work  a  novation,  it  is  not  enough  that  a  promise 
has  been  made  to  the  original  debtor  to  pay  the  debt;  nor  does  the 
assent  of  the  creditor  help  the  matter  unless  an  offer  was  made  to 
him.  The  theory  of  novation  is  that  the  new  debtor  contracts  with 
the  old  debtor  that  he  will  pay  the  debt,  and  also  to  the  same  effect 
with  the  creditor,  while  the  latter  agrees  to  accept  the  new  debtor  for 
the  old.  A  novation  is  not  made  out  by  showing  that  the  substituted 
debtor  agreed  to  pay  the  debt.  It  must  appear  that  he  agreed  with 
the  creditor  to  do  so.  Moreover,  this  agreement  must  be  based  on  the 
consideration  of  the  creditor's  agreement  to  look  to  the  new  debtor 
instead  of  the  old.  The  creditor's  assent  to  hold  the  new  debtor  liable 
is  therefore  immaterial  unless  there  is  assent  to  give  up  the  original 
debtor.17 

JBComley  v.  Dazian,  114  N.  Y.  161.  See  also  Keithley  v.  Pitman,  40  Mo. 
App.  596;  Kelly  v.  Babcock,  49  N.  Y.  318. 

16  Dixon  v.  Pace,  63  N.  C.  603.  See  also  Halliburton  v.  Nance,  40  Ark. 
161;  Center  v.  McQuesten,  18  Kan.  476;  McDonald  v.  American  Bank,  25 
Mont.  456;  Beers  v.  Spooner,  9  Leigh,  153. 

17  See  an  article  on  Novation  by  Professor  Ames,  6  Harv.  L.  Rev.  184,  and 
the  article  on  Novation  in  the  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.).  Also 
Cuxon  v.  Chadley,  3  B.  &  C.  591;  Knisely  v.  Brown,  95  111.  App.  516;  Hamlin 
v  Drummond,  91  Me.  175;  Butterfield  r.  Hartshorn,  7  N.  H.  345;  Warren 
v.  Batchelder,  15  N.  H.  129 ;  Smart  v.  Tetherly,  58  N.  H.  310. 


TRUSTEE  AND  CESTUI   QUE  TRUST.  241 

Promises  to  one  who  did  not  furnish  the  consideration.  Promises  for 
the  benefit  of  a  third  party  must  also  be  distinguished  from  promises 
to  one  who  has  not  given  the  consideration  for  the  promise.  It  is 
laid  down  in  the  books  that  consideration  must  move  from  the 
promisee,  and  it  is  sometimes  supposed  that  infringement  of  this 
rule  is  the  basis  of  the  objection  to  allowing  an  action  by  a  third 
person  upon  a  promise  made  for  his  benefit.  This  is  not  the  case. 
In  such  promises  the  consideration  does  move  from  the  promisee,  but 
the  beneficiary  who  seeks  to  maintain  an  action  on  the  promise  is 
not  the  promisee.  The  rule  that  consideration  must  move  from  the 
promisee  is  somewhat  technical,  and  in  a  developed  system  of  con- 
tract law  there  seems  no  good  reason  why  A.  should  not  be  able  for  a 
consideration  received  from  B.  to  make  an  effective  promise  to  C. 
Unquestionably  he  may  in  the  form  of  a  promissory  note,18  and  the 
same  result  is  generally  reached  in  this  country  in  the  case  of  an 
ordinary  simple  contract.19 

When  cestui  que  trust  can  sue  on  contract  for  his  benefit.  One  more 
preliminary  distinction  must  be  made.  A  trustee  can  make  a  eon- 
tract  for  the  benefit  of  his  cestui  que  trust,  and  if  the  contract  is  not 
performed  may  sue  and  recover  full  damages.    A  contract  by  which 

A.  engages  to  pay  B.  money  as  trustee  for  C.  is  unquestionably  valid.20 
And  if  B.  refuses  to  enforce  the  contract,  C.  may  bring  a  bill  in 
equity  against  A.  and  B.,  the  primary  equity  of  which  is  to  compel 
the  trustee  to  do  his  dutj',  but  to  avoid  multiplicity  of  actions  a  court 
of  equity  will  decree  that  A.  pay  the  money.21    It  is  only  in  case  the 

18  Fanning  v.  Russell,  94  111.  386;  Mclntyre  r.  Yates,  104  111.  491;  Hall  v. 
Jones,  78  Ind.  466;  Mize  v.  Barnes,  78  Ky.  506;  Eaton  v.  Libbey,  165  Mass. 
218;  Horn  v.  Fuller,  6  N.  H.  511;  Farley  v.  Cleveland,  4  Cow.  432,  9  Cow. 
739. 

lepigott  v.  Thompson,  3  B.  &  P.  149,  by  Lord  Alvanley;  Bell  v.  Sappington, 
111  Ga.  391;  see.  2747,  Ga.  Code;  Schnracker  v.  Sibert,  18  Kan.  104,  111;  Wil- 
liamson v.  Yager,  91  Ky.  282;  Cabot  v.  Haskins,  3  Pick.  83;  Palmer  Bank  v. 
Insurance  Co.,  166  Mass.  189,  195,  196;  Van  Eman  v.  Stanchfleld,  10  Minn. 
255;  Gold  v.  Phillips,  10  Johns.  412;  Lawrence  v.  Fox,  20  N.  Y.  268,  270,  271, 
276,  277;  Rector  r.  Teed,  120  N.  Y.  5S3. 

so  Such  contracts  are  illustrated  in  Cope  v.  Parry,  2  J.  &  W.  538;  Treat  v. 
Stanton,  14  Conn.  445;  Mass.  Mut.  L.  I.  Co.  v.  Robinson,  98  111.  324. 

21  Gandy  v.  Gandy,  30  Ch.  D.  57.  In  this  case  a  promise  by  a  husband  to 
pay  trustees  money  for  the  support  of  the  promisor's  wife  and  for  the  edu- 
cation of  their  children  was  held  enforceable  by  the  wife  when  the  trustees 
refused  to  sue.  It  was  said  that  the  trustees  merely  intervened  because  hus- 
band and  wife  could  not  contract.  The  reasoning  and  distinctions  in  this  case 
are  not  clear.  The  promise  was  to  pay  the  trustees,  who  were  contracting 
parties,  but  the  court  did  not  clearly  distinguish  the  case  from  that  of  a 
promise  to  pay  a  beneficiary  directly.  Cotton,  L.  J.,  suggested  as  an  excep- 
tion to  the  general  rule  forbidding  one  not  a  party  to  a  contract  to  sue  that 
"  if  the  contract  though  in  form  it  is  with  A.  is  intended  to  secure  a  benefit  to 

B.  so  that  B.  is  entitled  to  say  he  has  a  beneficial  right  as  cestuis  que  trust 

16 


242 


PERSONS  AFFECTED  BY  CONTRACT. 


trustee,  who  is  the  promisee,  refuses  to  act,  that  the  beneficiary  has 
a  right  to  sue  in  this  way.22 

Two  types  of  cases  involving  benefit  of  third  persons.  There  are  two 
quite  distinct  types  of  eases  which  pass  current  under  the  name  of 
promises  for  the  benefit  of  a  third  person.  To  the  first  class  belong 
promises  where  the  promisee  has  no  pecuniary  interest  in  the  per- 
formance of  the  contract,  his  object  in  entering  into  it  being  the 
benefit  of  a  third  person.  To  the  second  class  belong  promises  where 
the  promisee  seeks  indirectly  to  discharge  an  obligation  of  his  own 
to  a  third  person  by  securing  from  the  promisor  a  promise  to 
pay  this  creditor.  These  two  classes  are  frequently  treated  as  if 
their  correct  solution  depended  upon  the  same  principles,  but  there  are 
important  distinctions. 

Contracts   for   the   sole  benefit   of  a   third   person   should  be   enforceable. 

The  first  class  is  properly  called  a  contract  for  the  benefit  of  a  third 
person,  and  the  phrase  "  sole  beneficiary  "  should  be  reserved  for  this 
class.  As  the  promisee  has  no  pecuniary  interest  in  the  performance 
of  the  promise,  he  can  have,  generally  speaking,  no  other  intention 
than  to  benefit  the  third  person,  to  give  him  a  right.  A  typical  illus- 
tration is  a  contract  of  life  insurance  payable  to  some  one  other  than 
the  insured.  Whatever  may  be  the  apparent  technical  difficulties,  it 
is  obvious  that  justice  requires  some  remedy  to  be  given  the  bene- 
ficiary. The  original  bargain  was  convenient  and  proper,  and  the  law 
should  find  a  means  to  enforce  it  according  to  its  terms.  The  tech- 
nical difficulty  is  twofold.  The  beneficiary  is  not  a  party  to  the  con- 
tract, and  apart  from  some  special  principle  governing  this  class  of 
cases  cannot  maintain  an  action.  The  promisee,  though  entitled  to  sue 
on  the  promise  on  ordinary  principles  of  contract,  having  suffered 
no  pecuniary  damage  by  the  failure  of  the  promisor  to  perform  his 
agreement,  cannot  recover  substantial  damages;23  and  if  it  be  granted 
that  the  wrong  of  the  defendant,  not  the  injury  to  the  plaintiff,  fur- 
nishes the  measure  of  damages,  the  beneficiary  gains  nothing  thereby ; 
for  it  is  no  easier  to  find  a  principle  requiring  the  promisee  to  hold 
what  he  recovers  as  a  trustee  for  the  beneficiary  than  to  find  a  prin- 

under  that  contract,  then  B.  would,  in  a  court  of  equity,  be  allowed  to  insist 
upon  and  enforce  the  contract."  In  the  same  case  it  was  held  that  the  children 
could  not  sue. 

22Flynn  v.  Mass.  Ben.  Assoc,  152  Mass.  288. 

23  West  v.  Houghton,  4  C.  P.  D.  197  (but  see  Lloyds  v.  Harper,  16  Ch.  D. 
290;  Re  Flavell,  25  Ch.  D.  89,  97)  ;  Peel  v.  Peel,  17  W.  R.  586,  per  James, 
V.  C;  Burbank  v.  Gould,  15  Me.  118;  Watson  r.  Kendall,  20  Wend.  201; 
Adams  v.  Union  R.  R.  Co.,  21  R.  I.  134,  137.  See  also  Axtel  v.  Chase,  77 
Ind.  74. 


EQUITABLE   JURISDICTION.  243 

ciple    allowing    a    direct   recovery   by   the   beneficiary    against    the 
promisor.24 

A  court  of  equity  is  the  appropriate  forum.  There  is  no  satisfactory 
solution  of  these  difficulties  in  the  procedure  of  a  court  administering 
legal  remedies  only.  But  one  of  the  functions  of  equity  is  to  provide 
a  remedy  where  the  common  law  procedure  is  not  sufficiently  elastic, 
and  no  opportunity  can  be  found  for  the  exercise  of  this  function 
more  appropriate  than  the  sort  of  case  under  consideration.  Much  of 
the  difficulty  of  the  situation  arises  from  the  fact  that  three  parties 
are  interested  in.  the  contract.  Common  law  procedure  contemplates 
but  two  sides  to  a  case,  and  cannot  well  deal  with  more.  Equity  can 
deal  successfully  with  any  number  of  conflicting  interests  in  one  case, 
since  defendants  in  equity  need  have  no  community  of  interest. 

Grounds  for  equitable  jurisdiction.  In  the  case  under  consideration  the 
only  satisfactory  relief  is  something  in  the  nature  of  specific  per- 
formance. The  basis  for  equity  jurisdiction  is  the  same  as  in  other 
eases  of  specific  performance.  There  is  a  valid  contract,  and  the 
remedy  at  law  for  its  enforcement  is  inadequate.  As  the  promisee  and 
the  beneficiary  have  both  an  interest  in  the  performance  of  the 
promise,  either  should  be  allowed  to  bring  suit  joining  the  other  as 
co-defendant  with  the  promisor.  In  this  way  all  parties  have  a 
chance  to  be  heard.  There  may  always  be  a  possible  question  as  to  the 
respective  rights  of  the  promisee  and  the  beneficiary,  and  this  question 
should  not  be  determined  in  any  litigation  to  which  either  is  not  a 
party.25 

English  law.  The  right  of  the  beneficiary  in  such  a  contract  to 
maintain  an  action  was  suggested  in  a  number  of  early  English  cases, 
but  judicial  opinion  was  almost  invariably  against  it.26 

24  Cleaver  v.  Mut.  Reserve  Fund  Life  Assoc,  [1892]   1  Q.  B.  147,  152. 

25  In  Peel  v.  Peel,  17  W.  R.  586,  James,  V.  C.,  decreed  specific  performance 
at  the  suit  of  a  beneficiary  on  the  ground  that  the  party  who  had  the  legal 
right  had  suffered  no  damage. 

26  See  Viner's  Abr.  I.  333-337.  For  the  modern  English  law,  see  supra,  and 
especially  Tweddle  v.  Atkinson,  1  B.  &  S.  393;  Re  'Rotherham  Alum  &  Chemi- 
cal Co.,  25  Ch.  D.  103,  111;  Cleaver  v.  Mutual  Reserve  Fund  Life  Assoc, 
[1892]  1  Q.  B.  147.  In  the  case  last  cited,  Lord  Esher  said  that  apart  from 
statute  a  policy  of  insurance,  on  A.'s  life  payable  to  his  wife  gave  her  no 
rights.  It  would  be  payable  to  A.'s  executors,  and  they  would  not  hold  as 
trustees.  See  also  Eley  v.  Positive,  etc.,  Life  Assurance  Co.,  1  Ex.  D.  88; 
Melhado  v.  Porto  Alegre  Ry.  Co.,  L.  R.  9  C.  P.  503;  Re  Empress  Engineering 
Co.,  15  Ch.  D.  125;  Gandy  v.  Gandy,  30  Ch.  D.  57.  The  remarks  in  Touche  v. 
Metropolitan  Ry.  Warehousing  Co.,  L.  R.  6  Ch.  671,  must  be  regarded  as 
overruled. 

So  in  Ireland,  McCoubray  v.  Thomson,  11  Ir.  Rep.  C.  L.  226;  Clitheroe  v. 
Simpson,  L.  R.  4  Ir.  59;  and  Canada,  Faulkner  v.  Faulkner,  23  Ont.  252. 


244  PERSONS    AFFECTED    BY    CONTRACT. 

The  denial  of  relief  to  a  beneficiary  is  so  obviously  unsatisfactory 
in  the  case  of  life  insurance  policies  that  by  the  Married  Women's 
Property  Act  in  England  a  wife  or  husband  or  children,  named  as 
beneficiary  in  a  policy,  are  entitled  to  the  proceeds  of  the  policy 
though  not  to  sue  for  them  directly.27  But  the  same  reasons  which 
demand  that  relief  shall  be  given  in  the  case  of  an  insurance  policy 
apply  to  other  contracts  where  the  intention  of  the  promisee  was  to 
stipulate  for  a  benefit  to  a  third  person.  Such  bargains  are  unques- 
tionably valid  contracts  and  the  law  should  have  sufficient  adaptability 
to  enforce  them  according  to  their  terms. 

The  case  of  Tweddle  v.  Atkinson?*  for  instance,  is  open  to  as 
serious  criticism  as  the  life  insurance  case. 

Were  it  not  for  strained  decisions  on  the  law  of  trusts,  the  English 
courts  would  be  obliged  to  make  more  unfortunate  decisions  than 
they  do.  In  Moore  v.  Barton^1  money  was  lent  to  Moore  for  which 
he  gave  this  receipt :  "  Eeceived  the  22d  of  October,  1843,  of  Miss 
Darton,  for  the  use  of  Ann  Dye  £100,  to  be  paid  to  her  at  Miss  Dar- 
ton's  decease,  but  the  interest  at  4  per  cent  to  be  paid  to  Miss  Dar- 
ton." The  court  held  that  a  trust  for  Ann  Dye  had  been  created ;  but 
the  provision  as  to  interest  is  clear  evidence  that  the  transaction  wa^ 
a  loan,  which  Moore  promised  to  repay  to  a  beneficiary  instead  of 
to  the  lender. 

Contract  to  discharge  a  debt  of  the  promisee.  The  second  type  of  case 
to  which  reference  has  been  made — a  contract  to  discharge  an  obliga- 
tion of  the  promisee — has  been  held  in  England  enforceable  only 
by  the  promisee.30  This  rule  does  not  operate  as  unjustly  as  the 
rule  in  the  other  type  of  cases,  for  here  both  the  promisee  and  the 

The  Irish  case  of  Drimmie  v.  Davies,  [1899]  1  Ir.  R.  176,  however,  was  a 
clear  case  of  a  promise  for  the  benefit  of  a  third  person,  and  the  promise 
was  enforced. 

A  possible  exception  to  the  general  rule  in  England  arises  where  a  devise  is 
made  subject  to  the  condition  that  the  devisee  shall  pay  a  sum  of  money  to 
another.  The  acceptance  of  the  devise  was  held  by  Lord  Holt  to  create  a 
personal  liability  to  the  beneficiary.  Ewer  v.  Jones,  2  Ld.  Raym.  937,  2  Salk. 
415,  6  Mod.  26.  This  was  followed  in  Webb  v.  Jiggs,  4  M.  &  S.  119,  and  not 
denied  in  Braithwaite  v.  Skinner,  5  M.  &  W.  313,  but  it  was  suggested  that 
the  value  of  the  devise  limited  the  liability  of  the  devisee.  For  American 
cases  holding  the  devisee  liable  see  post,  p.  252,  n.  74. 

27  45  &  46  Vict.,  c.  75,  §   11. 

28  See  supra,  p.  *211. 

294  De  G.  &  S.  517;  Ames,  Cas.  Trusts  (2d  ed.),  39.  See  also  M'Fadden  v. 
Jenkyns,  1  Phillips  153;  Ames,  Cas.  Trusts,  47. 

•TO  Crow'  !".  Rogers,  1  Strange,  592;  Price  l\  Easton,  4  B.  &  Ad.  433;  Re 
Empress  Engineering  Co.,  16  Ch.  D.  125.  129;  Bonner  v.  Tottenham  Society. 
[1899]   1  Q.  B.  161.     But  see  Gregory  r.  Williams,  3  Mer.  5S2. 

So  in  Canada,  Henderson  v.  Killey.  17  Ont.  App.  456;  s.  e.  sub  mm. 
Osborne  v.  Henderson,  18  Can.  S.  C.  698;  Robertson  v.  Lonsdale,  21  Ont.  600. 


PROMISE    TO    PAY    A    DEBT.  245 

third  party  have  an  adequate  remedy.  The  object  of  such  a  contract 
must  always  be  primarily  and  generally  solely  to  secure  an  advantage 
to  the  promisee.  He  wishes  to  be  relieved  from  liability,  and  he 
exacts  a  promise  to  pay  the  third  person  only  because  that  is  a  way 
of  relieving  himself.  If  the  promisor  breaks  his  promise  the  promisee 
suffers  material  damage,  namely  the  amount  of  the  liability  which 
should  have  been  discharged  and  which  in  fact  still  exists,  and  ac- 
cording to  ordinary  rules  of  contract  the  promisee  is  liable  for  this 
damage.31  The  third  person,  moreover,  can  sue  his  original  debtor. 
He  has  the  right  for  which  he  bargained,  and  if  he  is  given  also  a 
direct  right  against  the  promisor,  the  latter  is  subjected  to  a  double 
right  of  action  on  a  single  promise,  and  the  creditor  is  allowed  to 
take  advantage  of  a  promise  for  which  he  did  not  furnish  the  con- 
sideration and  in  which  the  contracting  parties  had  their  own  advan- 
tage, not  his,  in  mind. 

Creditor's  interest  in  such  a  promise.  Yet  the  creditor  is  not  wholly 
without  interest  in  the  promise  to  pay  his  claim.  That  promise  is  a 
valuable  right  belonging  to  his  debtor.  If  a  solvent  promisor  has 
agreed  to  purchase  a  debt  of  the  promisee  to  the  amount  of  a  thousand 
dollars,  it  is  as  real  an  increase  of  the  assets  of  the  promisee  as  a 
promise  to  pay  the  latter  directly  that  sum,  or  indeed  as  the  actual 
payment  thereof.  It  should  make  no  difference  what  form  a  debtor's 
assets  take.  The  law  should  be  able  to  reach  them  in  whatever  shape 
they  may  be,  and  compel  their  application  to  the  payment  of  debts. 
Obviously  a  promise  to  pay  a  debt  due  a  third  person  cannot  be  taken 
on  an  execution  against  the  debtor,  nor  is  it  the  subject  of  garnish- 
ment; for  the  promisor,  if  he  is  willing  to  perform  his  premise, 
cannot  be  compelled  to  do  anything  else,  and  as  the  promise  is  not  to 
pay  the  promisee,  the  promisor  cannot  be  charged  as  garnishee  or 
trustee  for  him.32  The  aid  of  equity  is,  therefore,  necessary  in  order 
to  compel  the  application  of  such  property  to  the  creditor's  claim,  and 
acting  as  it  does  by  personal  decree,  equity  can  readily  give  the  re-' 
quired  relief.  In  a  bill  against  the  indebted  promisee  and  the 
promisor,  the  court  can  order  the  promisor  to  perform  his  promise 
by  paying  the  plaintiff.    As  the  promisee  is  a  party  to  the  litigation, 

31  See  post,  p.  270,  n.  44. 

32  Creditors  other  than  those  specified  in  the  promise  were  not  allowed  to 
garnishee  the  promisor  in  Coleman  v.  Hatcher,  77  Ala.  217;  Clinton  Bank  v. 
Studemann,  74  la.  104 ;  Rickman  v.  Miller,  39  Kan.  362 ;  Edgett  t.  Tucker,  40 
Mo.  523;  Baker  V.  Eglin,  11  Oreg.  333;  Vincent  v.  Watson,  IS  Pa.  96;  Putney 
r.  Farnham,  27  Wis.  187.  See  also  Pounds  v.  Chatham,  96  Ind.  342.  Com- 
pare Mayer  v.  Chattahoochee  Bank,  51  Ga.  325;  Center  v.  McQuesten,  18  Kan. 
476. 


246  PERSONS    AFFECTED    BY    CONTRACT. 

his  rights  will  be  concluded  by  such  a  decree,  and  the  promisor  will 
not  be  subjected  to  the  hardship  of  the  possibility  of  two  actions 
against  him  by  virtue  of  a  single  promise.33  As  in  the  case  of  garnish- 
ment, the  payment  to  the  plaintiff  will  discharge  the  obligation  to 
the  promisee.  Indeed  the  statutes  permitting  garnishment  might 
readily  be  extended  so  as  to  cover  this  kind  of  transaction.34 

Right  not  available  for  every  creditor.  One  peculiarity  is  to  be  no- 
ticed in  regard  to  the  application  of  such  a  promise  to  the  debt 
of  the  promisee.  It  is  a  right  that  not  every  creditor  can  take  ad- 
vantage of.  As  to  most  property  the  creditor  who  first  attaches  or 
files  a  bill  acquires  whatever  rights  his  debtor  has;  but  a  promise  to 
pay  A.'s  debt  to  B.  cannot  be  made  available  by  any  creditor  except 
B.,  since  the  promisor  cannot  be  required  to  do  anything  other  than 
what  he  promised.  The  only  right  other  creditors  than  B.  could  have 
would  arise  if  B.  collected  his  claim  out  of  A.'s  general  assets.  The 
liability  which  would  then  arise  on  the  part  of  the  promisor  to  A. 
could  be  made  available  by  any  creditor. 

Creditor's  right  derivative.  If  this  reasoning  is  sound  the  claim  of 
the  creditor  is  a  derivative  one.  His  only  interest  in  the  promise  is 
the  interest  which  he  has  in  any  property  belonging  to  his  debtor. 
This  view  has  considerable  support  in  the  decisions  in  many  jurisdic- 
tions in  regard  to  promises  to  assume  mortgages.35  A  promise  to  as- 
sume and  pay  a  mortgage  for  which  the  promisee  is  liable  can  hardly 
differ  in  principle  from  a  promise  to  pay  any  other  debt  of  the 
promisee,  but  the  mortgage  cases  are  frequently  treated  as  a  class  by 
themselves.  A  few  cases  also  of  promises  to  pay  unsecured  debts  are 
based  on  substantially  this  theory.30 

Statutes.  The  law  in  this  country  has  not  been  much  affected  by 
statute.  Such  statutes  as  exist  are  generally  of  limited  application. 
Many  states  make  a  policy  of  a  life  insurance  for  the  benefit  of  a  wife 
or  a  wife  and  children  good  against  creditors,37  but  these  statutes 
are  silent  as  to  the  respective  rights  of  the  beneficiary  and  promisee. 
In  Massachusetts,  however,  the  beneficiary  of  a  life  insurance  policy 

S3  The  writer  is  indebted  to  Professor  Ames  for  this  analysis. 

34  In  Vermont  garnishment  by  the  creditor  specified  in  the  promise  is  al- 
lowed. Corey  v.  Powers,  18  Vt.  587 ;  Chapman  v.  Mears,  56  Vt.  386.  See  also 
Henry  v.  Murphy,  54  Ala.  246. 

35  See  infra,  pp.  262,  263. 

se.Jesup   i\   Illinois  Central  R.  P.  Co.,  43   Fed.  Pep.  483,  493;   Mercantile 
Trust  Co.  r.  Baltimore,  etc.,  P.  R.  Co..  94  Fed.  Pep.  722;  Congregatio^l  Soc. 
y.  Flagg,  72  Vt.  248 ;  Vanmeters'  Ex.  r.  Vanmeters,  3  Gratt.  148. 
/''    37  3  Am.  &  Eng.  Cyc.   (2d  ed.),  981. 


LAW    OF    MASSACHUSETTS.  247 

is  given  a  right  of  action.38  California,39  North40  and  South  Dakota,41 
Montana,42  and  Idaho,43  have  the  same  provision  that  "a  contract 
made  expressly  for  the  benefit- of  a  third  person  may  be  enforced  by 
him  at  any  time  before  the  parties  thereto  rescind  it."  The  Louisiana 
Code44  allows  suit  by  the  beneficiary  of  a  contract,  and  Virginia45  and 
West  Virginia46  have  the  same  provision  that  "  if  a  covenant  or 
promise  be  made  for  the  sole  benefit  of  a  person  with  whom  it  is  made, 
or  with  whom  it  is  made  jointly  with  others,  such  person  may  maintain 
in  his  own  name  any  action  thereon  which  he  might  maintain  in  case 
it  had  been  made  with  him  only,  and  the  consideration  had  moved 
from  him  to  the  party  making  such  covenant  or  promise."  The 
Georgia  Code  provides47  that  "  if  there  be  a  valid  consideration  for 
the  promise,  it  matters  not  from  whom  it  is  moved,  the  promisee  may 
sustain  his  action  though  a  stranger  to  the  consideration." 

Code  provisions  as  to  real  party  in  interest.  The  common  provision  in 
the  so-called  code  states,48  that  actions  shall  be  brought  in  the  name 
of  the  real  party  in  interest,  is  sometimes  referred  to  as  controlling 
the  question,49  but  it  seems  to  have  little  bearing  upon  it.  The  diffi- 
cult question  is  whether  the  third  person  is  the  real  party  in  interest. 
It  is  a  question  of  substantive  law  as  to  the  existence  of  rights  rather 
than  of  the  procedure  appropriate  for  their  enforcement.  If,  as  mat- 
ter of  common  law,  the  third  person  is  held  entitled  to  sue  in  the 
name  of  the  promisee  or  to  treat  the  promisee  as  a  trustee  for  him,  the 
provision  would  enable  the  third  person  to  sue  directly  in  his  own 
name.  The  English  common  law,  certainly,  does  not  admit  the  in- 
direct right  any  more  than  the  direct.  The  provision  has  served  in 
some  states  to  add  another  element  of  confusion. 

Massachusetts  law.  In  no  jurisdiction  in  this  country  is  the  law  as 
strict  as  it  is  in  England.  But  there  is  no  uniformity  in  the  law  of 
the  several  states.  That  of  Massachusetts  probably  most  nearly  ap- 
proaches the  English  rigor.    Early  decisions  which  followed  what  was 

38  Stat.  1894,  c.  225. 

39  Civ.  Code,  §   1559. 

40  Civ.  Code,  §  3840. 

41  Civ.   Code   §   4688. 

42  Civ.  Code,  §  2103.  But  this  seems  to  be  very  narrowly  construed.  Mc- 
Donald v.  American  Nat.  Bank,  25  Mont.  456. 

43  Rev.  Stat.,  §  3221. 

44  Art.  1890;  Code  of  Practice,  Art.  35. 

45  Code,  §  2415. 

46  Code,  c.  71,  §  2. 
-~"4TCode,  §  2747. 

48  These  statutes  are  collected  in  Hepburn,  Cases  on  Code  Pleading,  188. 
49Paducah  Lumber  Co.  v.  Paducah  Water  Supply  Co.,  89  Ky.  340;  Smith 
v.  Smith,  5  Bush,  625,  632;  Ellis  v.  Harrison,  104  Mo.  270,  277. 


248  PERSONS    AFFECTED    BY    CONTEACT. 

then  supposed  to  be  the  English  law,  and  gave  a  direct  right  to  the 
Bole  beneficiary  of  a  contract  and  to  a  creditor  against  one  who  had 
promised  to  pay  his  debt,  have  been  overruled.50  But  by  statute,  if 
not  otherwise,  the  beneficiary  of  a  life  insurance  policy  is  entitled 
to  the  proceeds  of  the  policy  as  against  the  personal  representatives 
of  the  insured,51  and  by  a  later  statute52  may  sue  the  insurance  com- 
pany in  his  own  name.  Further,  the  Massachusetts  court  has  recently 
held  that  a  policy  of  fire  insurance  insuring  the  premises  of  a  mort- 
gagor and  taken  out  and  paid  for  by  him,  if  made  payable  to  the 
mortgagee,  may  be  sued  upon  by  the  latter  in  his  own  name.53  The 
mortgagee's  interest  in  such  a  policy  is  essentially  the  same  as  any 
creditor's  interest  in  a  promise  made  to  his  debtor  to  pay  the  debt. 
It  is  true  the  promise  of  the  insurance  company  is  conditional  and 
is  not  to  pay  the  debt  as  such,  but  any  payment  made  by  the  insurer 
operates  as  payment  of  the  debt  pro  ianto,  and,  if  all  the  parties  are 
solvent  it  is  the  mortgagor  not  the  mortgagee  who  derives  benefit 
from  the  payment.  The  only  distinction  that  seems  possible  to 
except  this  case  from  the  general  rule  in  regard  to  promises  to  pay  a 
debt  to  a  third  person  is  to  regard  a  policy  of  insurance  as  a  mercantile 
instrument,  the  effect  of  which  is  largely  determined  by  business  cus- 
tom,54 and  which  may  be  sued  on  like  negotiable  paper  by  the  party 
to  whom  it  is  made  payable  without  regard  to  who  furnished  the  con- 
sideration or  negotiated  the  contract.  This  distinction  seems  sound. 
There  are  also  decisions  in  Massachusetts,  not  overruled,  which  hold 
a  devisee  who  has  accepted  a  devise  made  conditional  on  payment  to 
another  personally  liable  to  the  beneficiary.55 

50  Terry  v.  Brightman,  132  Mass.  318;  Marston  v.  Bigelow,  150  Mass.  45; 
Nims  v.  Ford,  159  Mass.  575;  Wright  v.  Vermont  Life  Ins.  Co.,  1.60  Mass.  175; 
Clare  v.  Hatch,  180  Mass.  194  (overruling  Felton  v.  Dickinson,  10  Mass.  287)  ; 
Feleh  v.  Taylor,  13  Pick.  133;  Bacon  t.  Woodward,  12  Gray,  376,  382.  Cp. 
Nash  !'.  Commonwealth,  174  Mass.  335. 

si  Stat.  1887,  k.  214,  sec.  73. 

62  By  statute  of  1894,  c.  225,  a  heneficiary  may  sue  in  his  own  name  upon 
all  policies  of  life  insurance  issued  since  that  date.  A  decision  in  regard  to 
this  statute  is  Wright  r.  Vermont  Life  Ins.  Co.,  160  Mass.  170. 

53  Palmer  Savings  Bank  r.  Insurance  Co.,  166  Mass.  189,  following  previous 
practice,  which  had  not  before  been  disputed.  The  Massachusetts  court  relies 
on  the  fact  that  most  courts  in  the  country  allow  the  mortgagee  to  sue. 
This  is  true.  See  11  Am.  Encyc.  of  PI.  and  Pr.  394.  But  such  courts  also 
allow  any  creditor  to  sue  on  a  promise  to  pay  him  made  to  another. 

54  In  Michigan,  where  as  in  Massachusetts  a  creditor  cannot  sue  upon  a 
promise  to  pay  his  debt,  a  mortgagee  cannot  sue  upon  insurance  of  the  mort- 
gagor made  payable  to  the  mortgagee.  Hartford  Fire  Ins.  Co.  v.  Davenport, 
37  Mich.  609;'Minnock  r.  Eureka  F.  &  M.  Ins.  Co.,  90  Mich.  236.  Gonf. 
Hopkins  Mfg.  Co.  r.  Aurora  F.  &  M.  Ins.  Co.,  48  Mich.  148. 

See  Langdell,  Summary  Contracts,  §§  49,  51. 

55  Felch  r.  Taylor,  13  Pick.  133;  Adams  v.  Adams,  14  Allen,  65.  In  Prentice 
v.  Brimhall,   123  Mass.  291,  293;   Gray,  C.  J.,  explained  these  decisions  by 


LAW   OF  OTHER   STATES.  249 

Law  of  other  states.  A  large  majority  of  the  states  allow  the  sole 
beneficiary  to  sue  at  law;58  but — besides  Massachusetts — the  Federal 

the  lack  of  equity  powers  in  the  court  when  the  first  decision  was  made.     As 
no  equitable  charge  on  the  property  could  have  been  enforced,  the  defendant 
would  have  escaped  altogether  if  not  held  personally  liable. 
(Insurance  cases  are  not  included  in  this  note.) 

5t>  Arkansas.    Rogers  v.  Galloway  Female  College,  64  Ark.  627. 

Georgia.  Wilson  v.  First  Presbyterian  Church,  56  Ga.  554.  See  also  Code, 
§  3664. 

Illinois.    Lawrence  v.  Oglesby,  178  111.  122. 

Indiana.  Allen  v.  Davison,  16  Ind.  416;  Beals  v.  Beals,  20  Ind.  163; 
Marlett  v.  Wilson,  30  Ind.  240;  Miller  v.  Billingsly,  41  Ind.  489;  Henderson  v. 
McDonald,  84  Ind.  149;  Waterman  v.  Morgan,  114  Ind.  237;  Stevens  v.  Flanna- 
gan,  131  Ind.  122;  Ferris  v.  American  Brewing  Co.,  155  Ind.  539.  Except  for 
the  Code  the  plaintiff  would  have  to  sue  in  equity. 

Kansas.     Strong  r.  Marcy,  33  Kan.  109. 

Kentucky.  Clarke  v.  McFarland's  Exec,  5  Dana,  45;  Smith  v.  Smith,  5 
Bush,  625 ;  Benge  r.  Hiatt's  Adm.,  82  Ky.  666 ;  Paducali  Lumber  Co.  c.  Paducah 
Water  Supply  Co.,  89  Ky.  340.  See  also  McGuire  v.  MeGuire,  11  Bush.  142; 
Mercer  v.  Mercer's  Adm.,  87  Ky.  30.  Except  for  the  Code  plaintiff  would  have 
to  sue  in  equity. 

Louisiana.     Civil  Code,  Arts.  1884,  1896. 

Maryland.     Owings  v.  Owings,  1  H.  &  G.  484,  491. 

Massachusetts.  Felton  v.  Dickinson,  10  Mass.  287  (overruled  by  Terry 
v.  Brightman,  132  Mass.  318;  Marston  r.  Bigelow,  150  Mass.  45).  See  also 
Felch  v.  Taylor,  13  Pick.  133;  Bacon  v.  Woodward,  12  Gray,  376,  382; 
Prentice  v.  Brimhall,  123  Mass.  291. 

Missouri.  St.  Louis  v.  Von  Phul,  133  Mo.  561;  Devers  v.  Howard,  144 
Mo.  671;  Crone  v.  Stinde,  156  Mo.  262;  Weinreieh  v.  Weinreich,  18  Mo.  App. 
364;  Markel  r.  W.  U.  Tel.  Co.,  19  Mo.  App.  80;  Glencoe  Lime  Co.  v.  Wind, 
86  Mo.  App.  163.  But  see  Phcenix  Ins.  Co.  r.  Trenton  Water  Co.,  42  Mo.  App. 
118;  Howsmon  v.  Trenton  Water  Co.,  119  Mo.  304;  State  v.  Loomis,  88  Mo. 
App.  500. 

Montana.  Civ.  Code,  §  2103.  But  see  McDonald  v.  American  Bank,  25 
Mont.  456. 

Nebraska.  Hale  r.  Ripp,  32  Neb.  259;  Sample  r.  Hale,  34  Neb.  220; 
Lyman  r.  Lincoln,  38  Neb.  794;  Doll  v.  Crume,  41  Neb.  655;  Korsmeyer  Co. 
r.  McClay,  43  Neb.  649;  Chicago,  etc.,  R.  R.  Co.  v.  Bell,  44  Neb.  44;  Kauf- 
mann  v.  Cooper,  46  Neb.  644;  Hickman  r.  Layne,  47  Neb.  177,  180;  Fitz- 
gerald v.  McClay,  47  Neb.  816;  King  r.  Murphy,  49  Neb.  670;  Rohman  v. 
Gaiser,  53  Neb.  474;  Pickle  Marble  Co.  r.  McClay,  54  Neb.  661.  But  see 
Eaton  v.  Fairbury  Water  Works  Co.,  37  Neb.  546. 

Nevada.     See  Ferris  r.  Carson  Water  Co..  16  Nev.  44. 

New  Jersey.  Rue  v.  Meirs,  43  N.  J.  Eq.  377,  3*84;  Whitehead  v.  Burgess, 
61  N.  J.  L.  75. 

New  York.  Schermerhorn  v.  Vanderheyden,  1  Johns.  139,  140 ;  Glen  v. 
Hope  Mutual  L.  I.  Co.,  56  N.  Y.  379 ;  Little  v.  Banks,  85  N.  Y.  281 ;  Todd 
v.  Weber,  95  N.  Y.  181;  Rector  r.  Teed,  44  Hun,  349,  120  N.  Y.  583;  Buchanan 
r.  Tilden,  158  N.  Y.  109;  Roberts  v.  Cobb,  31  Hun,  150;  Knowles  v.  Erwin,  43 
Hun,  150;  affd.,  124  N.  Y.  633;  Whitcomb  v.  Whitcomb,  92  Hun,  443;  Bab- 
cock  v.  Chase,  92  Hun,  264;  Luce  v.  Gray,  92  Hun,  599.  But  see  contra, 
Lorillard  v.  Clyde,  122  N.  Y.  498;  Townsend  r.  Rackham,  143  N.  Y.  576; 
Sullivan  v.  Sullivan,  161  N.  Y.  554;  Wainwright  v.  Queen's  County  Water 
Co.,  78  Hun,  146;  Coleman  v.  Hiler,  85  Hun,  547;  Buffalo  Cement  Co.  r. 
McNaughton,  90  Hun,  74;  affd.,  156  N.  Y.  702,  reargument  denied,  157 
N.  Y.  703;  Glens  Falls  Gas  Light  Co.  v.  Van  Vranken,  11  N.  Y.  App.  Div.  420. 

North  Carolina.     Gorrell  v.  Greensboro  Water  Co.,  124  N.  C.  328. 

Ohio.  Flickinger  v.  Saum,  40  Ohio  St.  591,  601;  Irwin  v.  Lombard  Univ., 
56  Ohio  St.  9,  20. 

Pennsylvania.     Strohecker  v.  Grant,  16  S.  &  R.  237,  241,  semble;  Ayer's 


250  PERSONS    AFFECTED    BY    CONTRACT. 

Courts,57  Connecticut,58  Michigan,59  Minnesota,60  New  Hampshire,61 
Vermont,62  Virginia,63  and  to  some  degree  Pennsylvania,64  do  not  al- 
low an  action.  In  the  Federal  Courts,  Connecticut,  Michigan,  Ver- 
mont, and  Virginia,  however,  it  seems  that  a  suit  in  equity  might  be 
maintained.65  The  law  of  New  York  is  in  rather  dubious  condition. 
It  has  been  laid  down  in  some  cases  that  in  order  to  entitle  one  who  is 
not  a  party  to  a  contract  to  sue  upon  it,  the  promisee  must  owe  him 
some  duty;66  but  from  recent  cases  it  seems  that  a  moral  duty  is 

Appeal,  28  Pa.  179;  Hostetter  v.  Hollinger,  117  Pa.  606.  But  see  contra, 
Edmundson  v.  Penny,  1  Barr,  334;  Guthrie  v.  Kerr,  85  Pa.  303. 

Rhode  Island.  Adams  v.  Union  R.  R.  Co.,  21  R.  I.  134.  But  see  contra, 
Wilbur  v.  Wilbur,  17  R.  I.  295. 

South  Carolina.     Thompson  v.  Gordon,  3  Strobh.  196. 

Utah.     See  Montgomery  v.  Rief,  15  Utah,  495. 

Vermont.  Hodges  v.  Phelps,  65  Vt.  303.  But  see  contra,  Crampton  v. 
Ballard,  10  Vt.  251;  Hall  v.  Huntoon,  17  Vt.  244;  Pugure  c.  Mut.  Soc.  of  St. 
Joseph,  46  Vt.  362. 

Virginia.  Taliaferro  v.  Day,  82  Va.  79;  Code  of  1887,  §  2415.  But  see 
contra,  Ross  r.  Milne,  12  Leigh,  204;  also  Newberry  Land  Co.  v.  Newberry,  95 
Va.  111. 

West  Virginia.     Johnson  v.  McClung,  26  W.  Va.  659,  670. 

Wisconsin.  Grant  v.  Diebold  Safe  Co.,  77  Wis.  72;  Tweeddale  v.  Tweeddale, 
116  Wis.  517. 

United  States.  Nat.  Bank  v.  Grand  Lodge,  98  U.  S.  123.  Conf.  Constable 
v.  National  Steamship  Co.,  154  U.  S.  51;  Sayward  r.  Dexter,  72  Fed.  Rep.  758; 
U.  S.  r.  National  Surety  Co.,  92  Fed.  Rep.  549 ;  Brown  &  Haywood  Co.  v.  Ligon, 
92  Fed.  Rep.  851;  Goodyear  Shoe  Machinery  Co.  v.  Dancel,  119  Fed.  Rep.  692 
( C   C   A  ) 

BT  Goodyear  Shoe  Machinery  Co.  r.  Dancel,  119  Fed.  Rep.  692  (C.  C.  A.). 
And  see  infra,  p.  259,  n.  91. 

58  Baxter  r.  Camp,  71  Conn.  245.  The  court  leaves  the  question  open  whether 
a  suit  in  equity  in  which  the  representatives  of  the  promises  were  joined  could 
be  maintained. 

59  Wheeler  v.  Stewart,  94  Mich.  445;  Linneman  v.  Moross,  98  Mich.  178. 
The  court  left  open  the  question  whether  there  was  an  equitable  right. 

60  Jefferson  r.  Asch,  53  Minn.  446;  Union  Ry.  Storage  Co.  v.  McDermott,  53 
Minn.  407.  In  the  first  of  these  cases  the  court  says :  "'  Where  there  is  nothing 
but  the  promise,  no  consideration  from  such  stranger  and  no  duty  or  obligation 
to  him  on  the  part  of  the  promisee,  he  cannot  sue  upon  it." 

61  Curry  v.  Rogers,  21  N.  H.  247. 

62  Crampton  r.  Ballard,  10  Vt.  251;  Hall  v.  Huntoon,  17  Vt.  244;  Fugure  v. 
Mut.  Soc.  of  St.  Joseph,  46  Vt.  362.  But  in  Hodges  i:  Phelps,  65  Vt.  303,  it 
was  held  that  a  devise  subject  to  the  payment  of  a  legacy  imposed  a  personal 
liability  on  the  devisee,  if  he  accepted  the  devise. 

63  Ross  r.  Milne,  12  Leigh,  204.  But  see  Code  of  1887,  §  2415,  construed  in 
Newberry  Land  Co.  v.  Newberry,  95  Va.  111.  In  Taliaferro  v.  Day,  82  Va.  79, 
an  accepted  devise  subject  to  a  legacy  was  held  to  impose  a  personal  liability. 

64  Edmundson  v.  Penny,  1  Barr,  334 ;  Guthrie  r.  Kerr,  85  Pa.  303.  See,  how- 
ever, Ayer's  Appeal,  28  Pa.  179;  Merriman  v.  Moore,  90  Pa.  78,  81;  Hostetter 
i\  Hollinger,  117  Pa.  606.  If  the  promisor  receives  property  as  the  considera- 
tion for  a  promise  to  make  a  payment,  though  the  promisor  is  under  no  obliga- 
tion to  use  the  property  received  or  its  proceeds  for  the  purpose,  the  Penn- 
sylvania court  apparently  by  an  unwarranted  extension  of  the  law  of  trusts 
holds  the  promisor  liable. 

fi5  See  cases  in  preceding  notes. 

66  Vrooman  v.  Turner,  69  N.  Y.  280.  283 :  Beveridge  r.  N.  Y.  Elevated  R.  R., 
112  N.  Y.  1,  26;  Lorillard  v.  Clyde,  122  N.  Y.  498;  Townsend  v.  Rackham,  143 


LIFE  INSURANCE  CASES.  251 

enough,  and  this  gives  the  court  considerable  latitude.67  Minnesota 
has  adopted  the  same  distinction.68  Missouri  also  has  held  some  duty 
necessary  and  a  moral  duty  sufficient,69  but  a  late  decision  incon- 
sistently dispenses  with  the  requirement.70  A  suggestion  of  the  sort 
is  occasionally  found  in  other  states.71  The  supposed  necessity  results 
from  a  confusion  of  the  two  distinct  types  of  cases.  The  early 
New  York  cases  bearing  on  the  right  of  a  creditor  to  sue  one  who 
promises  the  debtor  to  pay  the  debt  recognized  that  the  creditor's  right 
was  derivative  and  that  it  was  by-  virtue  of  his  claim  against  the 
debtor  that  he  acquired  a  right  to  sue  upon  the  promise  to  the 
debtor.  But  the  requirement  of  a  debt  or  duty  is  wholly  inapplicable 
to  contracts  for  the  sole  benefit  of  a  third  person.  It  might  equally 
well  be  settled  that  a  gift  should  be  invalid  unless  the  donor  was  under 
a  duty  to  make  it.  Moreover,  whenever  such  a  requirement  is  proper 
a  moral  obligation  cannot  suffice.  When  an  obligation  is  of  such 
a  character  that  the  obligee  cannot  enforce  it  directly  against-  the 
obligor,  it  can  no  more  furnish  the  basis  for  a  right  against  one  who 
has  promised  the  obligor  to  pay  the  debt,  than  it  could  for  the  garnish- 
ment of  a  debt  due  to  the  obligor.  In  the  first  case  cited  as  illustrating 
the  New  York  rule  it  was  true  not  only  that  the  promisee  was  under  no 
duty  to  the  plaintiff,  but  also  that  the  plaintiff  was  not  intended  by 
the  promisee  as  the  beneficiary  of  the  contract.  The  benefit  expected 
to  result  to  the  plaintiff  was  merely  incidental  to  the  general  object 
of  the  contract.  This  was  sufficient  ground  for  the  decision;  but  in 
the  later  cases  where  the  doctrine  was  applied  the  result  was  needlessly 
to  defeat  an  intended  gift. 

Life  insurance  cases.  There  are  several  recurring  situations  which 
illustrate  the  contract  for  the  sole  benefit  of  a  third  person.  The  com- 
monest is  the  case  already  referred  to  of  a  life  insurance  policy  for  the 
benefit  of  another.  This  case  may  well  be  regarded  as  depending  upon 
the  nature  of  a  policy  of  insurance  as  a  mercantile  instrument.    At 

N.  Y.  516;  Sullivan  v.  Sullivan,  161  N.  Y.  554;  Coleman  v.  Hiler,  85  Hun, 
547.  See  also  Glens  Falls  Gas  Light  Co.  v.  Van  Vranken,  11  N.  Y.  App.  Div. 
'420;  Opper  v.  Hirseh,  68  N.  Y.  Supp.  879.  Compare  the  cases  of  Little  r. 
Banks,  85  N.  Y.  281,  and  Todd  v.  Weber,  95  N.  Y.  181. 

67  Buchanan  r.  Tilden,  158  N.  Y.  109;  Knowles  r.  Erwin,  43  Hun,  150;  affd., 
124  N.  Y.  633;  Whitcomb  v.  Whiteomb,  92  Hun,  443;  Babcoek  v.  Chase,  92  Hun, 
264;  Luce  v.  Gray,  92  Hun,  599.  In  all  these  cases  the  promise  was  to  pay 
money  to  a  dependent  relative. 

68  See  supra,  n.  60. 

69  Phoenix  Ins.  Co.  v.  Trenton  Water  Co.,  42  Mo.  App.  118;  Howsmon  r. 
Trenton  Water  Co.,  119  Mo.  304;  St.  Louis  v.  Von  Phul,  133  Mo.  561;  Devers 
v.  Howard,  144  Mo.  671;  Glencoe  Lime  Co.  v.  Wind,  86  Mo.  App.  163. 

70  Crone  v.  Stinde,  156  Mo.  262. 

71  Sample  v.  Hale,  34  Neb.  220 ;  Lyman  v.  Lincoln,  38  Neb.  794. 


252 


PERSONS    AFFECTED    BY    CONTRACT. 


all  events  the  insurance  decisions  form  a  class  by  themselves,  and  but 
little  reference  is  made  in  them  to  the  general  law  of  contracts.  Pre- 
sumably everywhere  the  beneficiary  is  given  a  right  to  enforce  such 
a  policy,  and  generally  by  a  direct  action.  This  result  has  been 
reached  in  England  and  Massachusetts  by  statute,  but  in  most  states 
without  the  aid  of  statute.72 

Receipt  of  property  as  consideration  for  a  promise  to  make  a  payment. 

Another  common  illustration  arises  on  these  or  similar  facts :  \ 
parent  gives  property  to  a  son,  who  upon  receiving  it  promises  to  make 
specified  payments  to  daughters  or  others  either  at  once  or  upon  the 
death  of  the  donor.  There  is  properly  no  trust  or  even  equitable 
charge,  because  it  is  contemplated  that  the  son  shall  deal  as  he  sees 
fit  with  the  property  transferred  to  him  and  pay  the  beneficiaries 
from  any  source  he  chooses.  Courts  are  rightly  almost  universally 
unwilling  to  deny  the  beneficiaries  a  remedy  in  such  a  case.73  Even 
in  England  there  are  cases  that  have  never  been  overruled,  in  which 
a  beneficiary  was  allowed  to  recover  in  an  action  of  debt  against  a 
devisee  whose  devise  was  left  upon  the  condition  that  he  should  make 
a  payment  to  the  beneficiary.  If  the  devisee  accepts  the  gift  he  is 
personally  liable  to  perform  the  duty  which  he  thereby  assumes,  and 
his  liability  is  not  restricted  to  the  value  of  the  property  he  has  re- 
ceived.74 So  far  as  this  question  of  personal  liability  is  concerned 
these  cases  present  quite  as  much  difficulty  in  principle  as  the  cases 
where  the  gift  is  made  inter  vivos. 

72  45  &  46  Vict.  c.  75,  §  11;  Mass.  Stats.  1887,  c.  214,  §  73;  1894,  c.  225. 
(See  Cleaver  r.  Mut.  Reserve  Fund  Life  Assoc,  [1892]  1  Q.  B.  147;  Grant  v. 
Bradstreet,  87  Me.  583;  Nims  v.  Ford,  159  Mass.  575;  Wright  v.  Vermont  Life 
Ins.  Co.,  160  Mass.  170.)  Numerous  authorities  in  other  jurisdictions  are 
collected  in  3  Am..  &  Eng.  Cyc.  980. 

73  Beals  v.  Beals,  20  Ind.  163 ;  Henderson  v.  McDonald,  84  Ind.  149 ;  Water- 
man i".  Morgan,  114  Ind.  237;  Stevens  v.  Flannagan,  131  Ind.  122;  Weinreieh 
v.  Weinreieh,  18  Mo.  App.  364;  Knowles  v.  Erwin,  43  Hun,  150,  124  N.  Y.  633; 
Luce  v.  Gray,  92  Hun,  599;  Thompson  v.  Gordon,  3  Strobh.  196.  See  also 
Lawrence  v.  Oglesby,  178  HI.  122. 

Contra  are  Townsend  v.  Rackham,  143  N.  Y.  516;  Coleman  «).  Hiler,  85  Hun, 
547  (the  promisee  in  these  cases  was  under  no  moral  dutv  to  the  beneficiaries)  : 
Guthrie  v.  Kerr,  85  Pa.  303  (conf.  Hostetter  v.  Hollinger,  117  Pa.  606).  Relief 
in  an  action  at  law  was  also  denied  in  Baxter  t'.  Camp,  71  Conn.  245,  and 
Linneman  v.  Moross,  98  Mich.  178;  but  it  was  suggested  that  the  plaintiff 
might  have  a  remedy  in  equity. 

74  Ewer  r.  Jones,  2  Ld.  Ray.  937,  2  Salk.  415,  6  Mod.  26;  Webb  v.  Jiggs,  4 
M.  &  S.  119;  Braithwaite  v.  Skinner,  5  M.  &  W.  313.  In  the  last  case  it  was 
said  by  some  of  the  judges  that  the  plaintiff's  recovery  would  be  restricted  to 
the  value  of  the  land. 

In  this  country  the  devisee  is  personally  liable  without  restriction.  Harland 
v.  Person,  93  Ala.  273;  Williams  v.  Nichbl,  47  Ark.  254;  Millington  i>.  Hill,  47 
Ark.  301;  Lord  v.  Lord.  22  Conn.  595;  Olmstead  !>.  Brush,  27  Conn.  530; 
Zimmer  v.  Sennott,  134  111.  505;  Porter  v.  Jackson,  95  Ind.  210;  Owing's  Case. 


BUILDING    CONTRACTS.  253 

No  distinction  if  promise  based  on  other  valid  consideration.  In  most 
jurisdictions  no  distinction  is  made  when  the  promise  is  based  on 
valid  consideration  other  than  a  transfer  of  property;  for  instance, 
services  or  forbearance  of  a  claim.75 

Building  contract  cases.  It  is  a  common  stipulation  in  a  building 
contract  that  the  contractor  will  pay  all4)ills  for  labor  and  materials. 
In  most  cases  the  fulfilment  of  this  promise  by  the  contractor  operates 
to  discharge  a  liability  of  the  owner  of  the  building,  whose  building 
would  be  liable  to  satisfy  the  liens  given  by  the  law  to  workmen  and 
materialmen.  It  cannot,  therefore,  be  inferred  that  the  promisee  re- 
quires the  promise  in  order  to  benefit  such  creditors  of  the  contractor. 
The  natural  inference  is  that  his  object  is  to  protect  himself  or  his 
building.  When,  however,  the  owner  of  the  building  is  a  munic- 
ipality, or  county,  or  state,  such  an  inference  cannot  so  readily  be 
justified,  for  the  laws  give  no  liens  against  the  buildings  of  such 
owners.  In  such  cases  if  the  stipulation  can  be  regarded  as  the  re- 
sult of  more  than  the  accidental  insertion  of  a  provision  common  in 
building  contracts  without  reflection  as  to  its  necessity,  it  must  be 
supposed  that  the  object  was  to  benefit  creditors  of  the  contractor. 
This  supposition  becomes  a  certainty  when  the  legislature  in  view  of 
litigation  in  the  courts  in  regard  to  the  matter  enacts  that  all  build- 
ing contracts  made  by  towns  or  counties  shall  contain  such  a  stipu- 
lation. Creditors  have  in  some  states  been  allowed  not  only  to  take 
advantage  of  the  promise  but  to  sue  the  contractor  and  his  sureties 
upon  a  bond  given  by  him  to  secure  the  performance  of  his  contract.76 

1  Bland,  370;  Felch  v.  Taylor,  13  Pick.  133;  Bacon  v.  Woodward,  12  Gray,  376, 
S82;  Adams  v.  Adams,  14  Allen,  05;  Prentice  v.  Brimhall,  123  Mass.  291,  293; 
Smith  r.  Jewett,  40  1ST.  H.  530,  535;  Wiggin  v.  Wiggin,  43  N.  H.  561;  Glen  v. 
Fisher,  6  Johns.  Ch.  33;  Gridley  v.  Gridley,  24  N.  Y.  130;  Loder  v.  Hatfield, 
71  N".  Y.  92;  Brown  v.  Knapp,  79  N.  Y.  136;  Yearly  v.  Long,  40  Ohio  St.  27; 
Fliekinger  v.  Saum,  40  Ohio  St.  591;  Hoover  v.  Hoover,  5  Pa.  351;  Etter  v. 
Greenwalt,  98  Pa.  422;  Dreer  v.  Pennsylvania  Co.,  108  Pa.  26;  Jordan  v.  Dona- 
hue, 12  R.  I.  199;  Hodges  v.  Phelps,  65  Vt.  303;   Taliaferro  v.  Day,  82  Va.  79. 

7B  Allen  v.  Davison,  16  Ind.  416;  Marcett  v.  Wilson,  30  Ind.  240;  Strong  v. 
Marcy,  33  Kan.  109 ;  Clarke  v.  McFarland's  Exec.,  5  Dana,  45 ;  Benge  r.  Hiatt's 
Adm.,  82  Ky.  666;  Felton  v.  Dickinson,  10  Mass.  287  (overruled  by  Marston 
v.  Bigelow,  150  Mass.  45)  ;  Todd  c.  Weber,  95  N.  Y.  181;  Buchanan  i:  Tilden, 
158  N.  Y.  109;  Whitcomb  v.  Whiteomb,  92  Hun,  443;  Babcock  v.  Chase,  92  Hun, 
264. 

See  also  Lawrence  v.  Oglesby,  178  111.  122. 

But  in  Pennsylvania,  though  the  promise  is  perhaps  enforceable  by  the  bene- 
ficiary when  the  consideration  is  the  transfer  of  property,  it  is  not  if  the  con- 
sideration is  anything  else.  Edmundson  v.  Penny,  1  Barr,  334.  See  also  Wash- 
burn v.  Interstate  Investment  Co.,  26  Oreg.  436. 

76  King  v.  Downey,  24  Ind.  App.  262;  Baker  v.  Bryan,  64  la.  561  (but  see 
Hunt  v.  King,  97  la.  88)  ;  St.  Louis  v.  Von  Phul,  133  Mo.  561  (overruling 
Kansas  Citv  Sewer  Pipe  Co.  r.  Thompson,  120  Mo.  218)  ;  Devers  v.  Howard. 
144  Mo.  671;  Glencoe  Lime  Co.  v.  Wind,  86  Mo.  App.  163  (cf.  State  v.  Loomis, 


254  PERSONS  AFFECTED  BY  CONTRACT. 

Water  company  cases.  A  somewhat  similar  case  arises  where  a  water 
company  contracts  to  furnish  water  sufficient  to  supply  the  hydrants 
of  a  town  or  district,  and  the  failure  of  the  water  company  to  keep 
its  promise  to  the  town  results  in  the  destruction  of  a  building  by  a 
fire  which  might  have  been  extinguished  but  for  the  lack  of  water. 
The  owner  of  the  house  is  not  generally  allowed  to  sue  on  such  a 
promise.  Though  the  town  or  district  which  is  the  promisee,  not 
being  itself  liable  for  the  lack  of  water  or  for  the  destruction  of  the 
building,  has  no  pecuniary  interest  in  the  performance  of  the  promise, 
yet  it  may  be  doubted  whether  the  stipulation  was  exacted  for  the 
benefit  of  such  people  as  might  have  their  buildings  destroyed  from 
lack  of  water.  It  is  a  more  reasonable  construction  that  the  object 
of  the  promise  is  to  benefit  the  community  as  a  whole.  Whatever 
may  be  the  reason,  the  plaintiff  is  not  usually  allowed  to  recover  in 
such  cases.77 

Telegraph  company  cases.     A  telegraph  company's  contract  made  with 

the  sender  of  a  telegram  to  deliver  it  to  the  person  addressed  is  some- 

.  times  treated  as  a  contract  made  for  the  sole  benefit  of  the  latter,  who 

is  allowed  to  sue  for  this  reason.78     In  some  cases  this  construction 

88  Mo.  App.  500)  ;  Sample  v.  Hale,  34  Neb.  220;  Lyman  v.  Lincoln,  38  Neb. 
794;  Doll  i;.  Crmne,  41  Neb.  655;  Korsmeyer  Co.  v.  McClay,  43  Neb.  649; 
Kaufmann  v.  Cooper,  46  Neb.  644;  Hickman  v.  Layne,  47  Neb.  177;  King  v. 
Murphy,  49  Neb.  670;  Rohman  v.  Gaiser,  53  Neb.  474;  Pickle  Marble  Co.  v. 
McClay,  54  Neb.  661;  Gastonia  o.  McEntee-Peteraon  Co.,  131  N.  C.  363. 
Contra,  Jefferson  v.  Asch,  53  Minn.  446;  Union  Ry.  Storage  Co.  v.  MeDermott, 
53  Minn.  407 ;  Buffalo  Cement  Co.  v.  McNaughton,  90  Hun,  74,  156  N  Y.  702. 
157  N.  Y.  703;  Parker  v.  Jeffery,  26  Oreg.  186;  Brower  Lumber  Co.  r.  Miller, 
28  Oreg.  565 ;  Lancaster  v.  Frescoln,  203  Pa.  640.  See  also  Styles  v.  Long  Co., 
67  N.  J.  L.  413;  Montgomery  v.  Rief,  15  Utah,  495. 

An  action  on  the  bond  presents  the  difficulty  that  the  plaintiffs  not  only  are 
not  the  promisees,  but  are  not  the  payees.  The  promise  is  to  pay  the  penalty 
of  the  bond,  not  to  the  creditors,  but  to  the  town  or  county.  This  difficulty  is 
not  much  alluded  to  in  the  cases.  See,  however,  Jefferson  r.  Asch,  and  Buffalo 
Cement  Co.  r.  McNaughton,  supra. 

77  Boston  Safe  Deposit  Co.  v.  Salem  Water  Co.,  94  Fed.  Rep.  240;  Nickerson 
v.  Bridgeport  Hydraulic  Co.,  46  Conn.  24;  Fowler  v.  Water  Co.,  83  Ga.  219; 
Davis  v.  Water  Works,  54  la.  59;  Becker  v.  Keokuk  Water  Works,  79  la.  419; 
Phoenix  Ins.  Co.  r.  Trenton  Water  Co.,  42  Mo.  App.  118;  Howsmon  v.  Trenton 
Water  Co.,  119  Mo.  304;  Eaton  r.  Fairbury  Water  Works,  37  Neb.  546;  Ferris 
v.  Carson  Water  Co.,  16  Nev.  44;  Wainwright  v.  Queens  County  Water  Co.,  78 
Hun,  146;  Foster  v.  Lookout  Water  Co.,  3  Lea,  42.  Contra,  Paducah  Lumber 
Co.  v.  Paducah  Water  Supply  Co.,  89  Ky.  340 ;  Gorrell  r.  Greensboro  Water 
Supply  Co.,  124  N.  C.  328.  As  to  liability  in  tort,  see  Pittsfield  Cottonwear 
Co.  r.  Pittsfield  Shoe  Co.,  53  Atl.  Rep.  807   (N.  H.)  ;   16  Harv.  L.  Rev.  456. 

78  Western  Union  Tel.  Co.  v.  Hope,  11  111.  App.  291  (but  see  Western  Union 
Tel.  Co.  v.  Dubois,  128  111.  248)  ;  Western  Union  Tel.  Co.  r.  Fenton,  52  Ind.  3 
(statutory)  ;  Markel  v.  Western  Union  Tel.  Co.,  19  Mo.  App.  80  (statutory)  ; 
Aiken  v.  Western  Union  Tel.  Co.,  5  S.  C.  371;  Western  Union  Tel.  Co.  v.  Jones, 
81  Tex.  271.  The  cases  allowing  a  right  of  action,  based  on  various  reasons, 
are  collected  in  Joyce  on  Electric  Law,  §  1008. 


CONTRACTS  TO  DISCHARGE  DEBTS.  255 

is  fair  enough,  but  senders  of  telegrams  perhaps  more  frequently  are 
seeking  objects  of  their  own  rather  than  the  benefit  of  another. 

Charitable  subscriptions.  One  of  the  numerous  ways  of  making  out  a 
fictitious  consideration  for  charitable  subscriptions  is  to  regard  the 
promises  of  the  subscribers  as  mutual  promises  to  pay  the  beneficiary, 
who  is  then  allowed  to  sue  as  on  a  contract  made  for  its  benefit.79 
In  fact,  in  such  subscriptions  the  promise,  on  a  fair  construction,  al- 
most always  runs  directly  to  the  beneficiary  or  to  trustees  represent- 
ing it. 

Other  illustrations.  In  a  recent  New  Jersey  case80  the  beneficiary 
was  undetermined  when  the  contract  was  made.  The  defendant  con- 
tracted to  pay  $750  to  the  owner  of  the  foal  by  the  defendant's  stallion 
that  first  trotted  a  mile  in  2.30.  The  plaintiff  who  answered  the 
description  was  allowed  to  sue  on  the  contract  though  not  a  party  to  it. 

A  decision  in  Indiana81  presents  the  rather  unsual  case  of  the  en- 
forcement by  injunction  of  a  promise  for  the  benefit  of  a  third  person. 
The  defendant  as  lessee  of  certain  premises  had  covenanted  with  the 
lessor  to  sell  on  the  premises  no  beer  except  that  manufactured  by 
the  plaintiff  company.  The  lessor  was  a  relative  of  stockholders  in 
the  company,  but  had  no  pecuniary  interest  in  the  matter.  The  com- 
pany was  granted  an  injunction  to  enforce  the  covenant.82 

Confusion  in  regard  to  contracts  to  discharge  a  debt.  It  is  in  regard  to 
contracts  to  discharge  a  debt  of  the  promisee  that  the  greatest  con- 
fusion prevails.  In  the  first  place  the  intrinsic  difficulty  of  the  case 
is  greater  than  where  the  third  person  is  the  sole  beneficiary  of  the 
contract.  Trust,  agency,  novation,  must  here  be  carefully  distin- 
guished, and  the  facts  may  not  clearly  indicate  in  which  class  a  par- 
ticular case  belongs,  since  the  parties  may  not  have  sufficiently  ex- 
pressed any  intention.  Further,  it  is  in  this  class  of  cases  that  the 
reasoning  of  the  courts  is  most  artificial.    New  York  by  the  decision 

79  Rogers  v.  Galloway  Female  College,  64  Ark.  627 ;  Wilson  v.  First  Presby- 
terian Church,  56  Ga.  554;  Irwin  v.  Lombard  University,  56  Ohio  St.  9,  20. 
See  also  Hale  v.  Ripp,  32  Neb.  259;  Roberts  v.  Cobb,  31  Hun,  150;  Parsons, 
Contracts,  8th  ed.,  468  seq.  Contra  is  Curry  n.  Rogers,  21  N.  H.  247.  A 
curious  case  where  the  promises  actually  were  by  the  s- ubscribers  to  each  other 
is  New  Orleans  St.  Joseph's  Assoc,  v.  Magnier,  16  La.  Ann.  338.  A  number  of 
hatters  agreed  to  close  their  shops  on  Sunday.  For  any  breach  it  was  agreed 
that  the  offender  should  pay  the  plaintiff  $100.  The  plaintiff  was  not  allowed 
to  recover  because  its  benefit  was  not  the  object  of  the  contract. 

80  Whitehead  v.  Burgess,  61  N.  J.  L.  75. 

81  Ferris  v.  American  Brewing  Co.,  155  Ind.  539. 

82  And  in  Chicago,  etc.,  R.  R.  r.  Bell,  44  Neb.  44,  an  agreement  not  to  sue  a 
third  person  was  effectively  used  as  a  bar  to  an  action  against  the  latter.  See 
also  Ayer's  Appeal,  28  Pa.  1 79. 


256  PERSONS    AFFECTED    BY    CONTRACT. 

of  Lawrence  v.  Foxm  has  done  more  than  any  other  jurisdictions  to 
spread  and  strengthen  the  the  theory  that  a  third  person  can  sue  on 
such  a  contract.    ±n  a  later  case8*  the  New  York  court  said : — 

"  It  is  not  every  promise  made  by  one  to  another  from  the  performance  of 
which  a  benefit  may  ensue  to  a  third,  which  gives  a  right  of  action  to  sucli 
third  person,  he  being  neither  privy  to  the  contract,  nor  to  the  consideration. 
The  contract  must  be  made  for  his  benefit  as  its  object,  and  he  must  be 
the  party  intended  to  be  benefited." 

This  language  or  similar  language  is  adopted  in  other  cases.85  Do 
the  courts  which  use  it  really  believe  that  the  intent  of  the  promisee 
in  sucli  a  case  as  Lawrence  v.  Fox  is  to  benefit  the  third  party? 
When  a  grantor  of  premises  subject  to  a  mortgage  requires  the 
grantee  to  assume  and  agree  to  pay  the  mortgage,  is  it  the  welfare 
of  the  mortgagee  that  the  grantor  is  considering,  or  is  it  his  own  ? 

Most  jurisdictions  allow  the  creditor  an  action  at  law.  Whatever  may  be 
the  answer  to  these  questions,  the  jurisdictions  are  few  which  do  not 
allow  the  creditor  a  direct  action  at  law  against  the  promisor.86    Con- 

83  20  N.  Y.  26S. 

84  Simson  v.  Brown,  68  N.  Y.  355,  361. 

85  Central  Trust  Co.  v.  Berwind-White  Co.,  95  Fed.  Rep.  391;  Thomas  Mfg. 
Co.  r.  Prather,  65  Ark.  27:  Hall  v.  Alford,  49  S.  W.  Rep.  444  (Ky.)  ;  Jefferson 
r.  Asch,  53  Minn.  446;  State  r.  St.  Louis,  etc.,  R.  R.,  125  Mo.  596,  617; 
Garnsey  v.  Rogers,  47  N.  Y.  233;  Vrooman  r.  Turner,  69  N.  Y.  280,  283; 
Beveridge  r.  N.  Y.  Elevated  R.  R.,  112  N.  Y.  1,  26;  Parker  v.  Jeffery.  26 
Oreg.  186,  188. 

!/  80  Action  at  law  allowed  against  one  who  promises  to  pay  the  debt  of 
another    (mortgage  cases  are  not  included). 

Alabama.  Huckabee  v.  May,  14  Ala.  263;  Hoyt  r.  Murphy,  18  Ala.  316; 
.Mason  v.  Hall,  30  Ala.  599;  Henry  c.  Murphy.  54  Ala.  246;  Young  v.  Hawkins, 
„■  74  Ala.  370;  Dimmick  v.  Register,  92  Ala.  458;  North  Ala.  Development  Co. 
v.  Short,  101  Ala.  333;  Potts  v.  First  Nat.  Bank,  102  Ala.  286. 

Arkansas.  Chamblee  r.  McICenzie,  31  Ark.  155;  Talbot  v.  Wilkms,  31 
Ark.  411;  Hecht  r.  Caughron,  46  Ark.  132;  Ringo  r.  Wing,  49  Ark.  457,  464; 
Benjamin  v.  Birmingham,  50  Ark.  433.  But  see  contra.  Hicks  v.  Wyatt,  23 
Ark.  55,  and  conf.  Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27. 

California.  Lewis  r.  Covelland,  21  Cal.  189;  Morgan  r.  Overman  Co.,  37 
Cal.  534;  Malone  r.  Crescent  Co.,  77  Cal.  38;  Smith  r.  Los  Angeles,  etc.,  Ry. 
Co.,  98  Cal.  210;  Alvord  v.  Spring  Valley  Gold  Co.,  106  Cal.  547;  Whitney  v. 
Am.  Ins.  Co.,  127  Cal.  464  (overruling  McLaren  v.  Hutchinson,  18  Cal.  80, 
contra) . 

Colorado.  Lehow  r.  Simonton,  3  Col.  346;  Green  v.  Morrison,  5  Col.  18; 
Starbird  v.  Cranston,  24  Col.  20;  Wilson  v.  Lunt,  11  Col.  App.  56. 

Florida.     Hunter  r.  Wilson,  21  Fla.  250;  Wright  v.  Terry,  23  Fla.  160. 

Georgia.     Ford  v.  Finney.  35  Ga.  258,  261   (semble).    See  also  Code,  §  3664. 

Illinois.  Eddy  v.  Roberts,  17  111.  505;  Brown  v.  Strait,  19  111.  88;  Bris- 
ton  r.  Lane,  21  111.  194;  Rabberman  v.  Niskamp,  54  111.  179;  Wilson  v.  Bevans, 
58  111.  232;  Beaslev  v.  Webster,  64  111.  458;  Steele  r.  Clark,  77  111.  471;  Snell  v. 
Ives,  85  111.  279;  Shober  Co.  v.  Kerting,  107  111.  344;  Schmidt  r.  Glade,  126  111. 
485;  Cobb  v.  Heron,  78  111.  App.  654.  180  111.  49;  Mathers  r.  Carter,  7  111.  App. 
225;  Struble  r.  Hake,  14  111.  App.  546;  Boals  r.  Nixon,  26  111.  App.  517;  Wil- 
liamson-Stewart Co.  r.  Seaman,  29  111.  App.  68;  .McCasland  r.  Doorley,  47  111. 


CONTRACTS   TO  DISCHARGE  DEBTS.  257 

App.  513;  Rothermel  i\  Bell  &  Zoller  Co.,  79  111.  App.  667;  Kee  v.  Cahill,  86 
111.  App.  561;  Am.  Splane  Co.  v.  Barber,  91  111.  App.  359. 

Indiana.  Cross  v.  Truesdale,  28  Ind.  44;  Davis  v.  Calloway,  30  Ind.  112; 
Haggerty  v.  Johnston,  48  Ind.  41;  Campbell  v.  Patterson,  58  Ind.  66;  Loeb  r. 
Weis,  64  Ind.  285 ;  South  Side  Planing  Mill  Assoc,  r.  Cutler,  etc.,  Co.,  64  Ind. 
560;  Rhodes  v.  Matthews,  67  Ind.  131;  Fisher  p.  Wilmoth,  68  Ind.  449;  Clod- 
felter  v.  Hulett,  72  Ind.  137;  Medsker  v.  Richardson,  72  Ind.  323;  Hendricks 
r.  Frank,  86  Ind.  278;  Harrison  v.  Wright,  100  Ind.  515,  533;  Warren  v. 
Farmer,  100  Ind.  593;  Wolke  v.  Fleming,  103  Ind.  105;  Redelsheimer  P.  Miller, 
107  Ind.  485;  Leake  e.  Ball,  116  Ind.  214;  Boruff  v.  Hudson,  138  Ind.  280. 
The  early  Indiana  cases  before  the  enactment  of  the  Code  allowed  relief  only 
in  equity.  Salmon  v.  Brown,  6  Blackf.  347 ;  Farlow  v.  Kemp,  7  Blackf .  544 ; 
Britzell  c.  Fryberger,  2  Ind.  176;  Conklin  v.  Smith,  2  Ind.  107,  109;  Bird  r. 
Lanius,  7  Ind.  615,  618. 

Iowa.  Johnson  p.  Knapp,  36  la.  616;  Blair  Co.  P.  Walker,  39  la.  406;  Gil- 
bert p.  Sanderson,  56  la.  349;  Poole  v.  Hintrager,  60  la.  180;  Clinton  Nat. 
Bank  v.  Studemann,  74  la.  104;  Knott  v.  Dubuque,  etc.,  Ry.  Co.,  84  la.  462; 
First  Nat.  Bank  v.  Pipestone,  92  la.  530;  Hawley  P.  Exchange  Bank,  97  la.  187. 

Kansas.  Harrison  p.  Simpson,  17  Kan.  508 ;  Kansas  Pac.  Ry.  Co.  v.  Hop- 
kins, 18  Kan.  494;  Floyd  v.  Ort,  20  Kan.  162;  Alliance  Mut.  L.  Assn.  Soc.  p. 
Welch,  26  Kan.  632,  641;  Brenner  r.  Luth,  28  Kan.  581;  West  v.  W.  U.  Tel. 
Co.,  39  Kan.  93;  Manufacturing  Co.  p.  Burrows,  40  Kan.  361;  Mumper  p. 
Kelley,  43  Kan.  256;  Howell  P.  Hough,  46  Kan.  152;  Hardesty  v.  Cox,  53 
Kan.  618. 

Kentucky.  Garvin  r.  Mobley,  1  Bush,  548;  Dodge's  Adm'r  v.  Moss,  82 
Ky.  441.     But  see  Hall  v.  Alford,  49  S.  W.  Rep.  444. 

Louisiana.  Mayor  t\  Bailev,  5  Mart.  321;  Marigny  r.  Remy,  3  Mart. 
(N.  S.)  607;  Cuc'ullu'p.  Walker,  16  La.  Ann.  198.  See  also  Civil  Code, 
arts.  1884,  1896. 

Maine.  Burbank  v.  Gould,  15  Me.  118;  Hinkley  r.  Fowler,  15  Me.  285; 
Bohanan  v.  Pope,  42  Me.  93:  Coffin  v.  Bradbury,  89  Me.  476;  Baldwin  v. 
Emery,  89  Me.  496,  498. 

Maryland.  Small  v.  Schaefer,  24  Md.  143;  Seigman  p.  Hoff acker,  57  Md. 
321,  325.     But  see  contra,  Hand  p.  Evans  Marble  Co.,  88  Md.  226. 

Massachusetts.  Arnold  r.  Lyman,  17  Mass.  400 ;  Carnegie  v.  Morrison, 
2  Met.  381;  Fitch  v.  Chandler,  4  Cush.  254;  Brewer  p.  Dyer,  7  Cush.  337; 
Putnam  v.  Field,  103  Mass.  556,  overruled  by  later  decisions  contra;  Flint 
p.  Pierce,  99  Mass.  68 ;  Exchange  Bank  v.  Rice,  107  Mass.  37 ;  Rogers  v.  Union 
Stone  Co..  130  Mass.  581 ;  Aigen  p.  Boston  &  Me.  R.  R.,  132  Mass.  423 ;  Morrill 
v.  Allen,  136  Mass.  93;  Borden  r.  Boardman,  157  Mass.  410;  White  v.  Mt. 
Pleasant  Mills,  172  Mass.  462. 

Minnesota.  Sanders  r.  Clason,  13  Minn.  379 ;  Hawley  v.  Wilkinson,  18 
Minn.  527;  Jordan  c.  White,  20  Minn.  91;  Sullivan  :;.  Murphy,  23  Minn.  6; 
Maxfield  p.  Schwartz,  43  Minn.  221;  Lovejoy  v.  Howe,  55  Minn.  353;  Sonstiby 
v.  Keeley,  7  Fed.  Rep.  447.     But  see  Beli  v.  Mendenhall,  71  Minn.  331. 

Mississippi.     Sweatman  v.  Parker,  49  Miss.  19,  30. 

Missouri.  Bank  of  Mo.  v.  Benoist,  10  Mo.  519;  Robbins  v.  Ayres,  10  Mo. 
538;  Carl  r.  Riggs,  12  Mo.  430;  Meyer  v.  Lowell,  44  Mo.  328;  Flanagan  v. 
Hutchinson.  47  Mo.  237;  Rogers  p.  Gosnell,  51  Mo.  466;  58  Mo.  589;  Schuster 
r.  Kas.  City,  etc.,  Ry.  Co.,  60  Mo.  290;  Mosman  v.  Bender,  80  Mo.  579;  Green 
v.  Estes,  82  Mo.  337;  Ellis  v.  Harrison,  104  Mo.  270;  Winn  p.  Lippincott 
Investment  Co.,  125  Mo.  528 ;  State  p.  St.  Louis  &  S.  F.  Ry.  Co.,  125  Mo.  596, 
615;  Porter  r.  Woods,  138  Mo.  540;  Beardslee  v.  Morgner,  4  Mo.  App.  139; 
Harvey  Lumber  Co.  v.  Herriman  Lumber  Co.,  39  Mo.  App.  214;  Nelson  Dis- 
tilling Co.  v.  Loe,  47  Mo.  App.  31 ;  Tennent-Stribling  Shoe  Co.  v.  Rudy,  53  Mo. 
App.  196;  Street  v.  Goodale,  77  Mo.  App.  318;  Rothwell  p.  Skinker,  84  Mo. 
App.  169.  Two  early  eases  contra  are  overruled.  Manny  v.  Frasier,  27  Mo. 
419;  Page  v.  Becker,  31  Mo.  466. 

Nebraska.  Shamp  v.  Meyer,  20  Neb.  223;  Meyer  v.  Shamp,  26  Neb.  730, 
51  Neb.  424;  Fonner  v.  Smith,  31  Neb.  107;  Kaufman  v.  U.  S.  Nat.  Bank,  31 
Neb.  661;  Barnett  v.  Pratt,  37  Neb.  349;  Union  Pac.  Ry.  Co.  v.  Metcalf  50 
Neb.  452,  461;  Tecumseh  Nat.  Bank  v.  Best,  50  Neb.  518. 

17 


258  PERSONS    AFFECTED    BY    CONTRACT. 

Nevada.  Alcalda  v.  Morales,  3  Nev.  132;  Bishop  v.  Stewart,  13  Nev.  25; 
Jones  v.  Pacific  Wood  Co.,  13  Nev.  359,  375;  Miliani  v.  Tognini,  19  Nev.  133. 

New  Jersey.  Berry  v.  Doremus,  30  N.  J.  L.  399;  Joslin  v.  New  Jersey 
Car  Spring  Co.,  36  X.  J.  L.  141.  See  also  Price  v.  Trusdell,  28  N.  J.  Eq.  200, 
202;  Katzenbach  v.  Holt,  43  N.  J.  Eq.  536,  550;  Bennett  v.  Merchantville 
Building  Assoc,  44  N.  J.  Eq.  116,  118;  Cocks  v.  Varney,  45  N.  J.  Eq.  72,  77. 

New  York.  Gold  v.  Phillips,  10  Johns.  142;  Parley  r.  Cleveland,  4  Cow. 
432;  9  Cow.  639;  Ellwood  v.  Monk,  5  Wend.  235; 'Barker  v.  Bucklin,  2 
Denio,  45 ;  Del.  &  Hudson  Canal  Co.  v.  Westchester  County  Bank,  4  Denio,  97 ; 
Lawrence  v.  Fox,  20  N.  Y.  268;  Judson  v.  Gray,  17  How.  Pr.  289;  Dingeldein 
t\  Third  Ave.  R.  R.  Co.,  37  N.  Y.  575;  Barker  v.  Bradley,  42  N.  Y.  316;  Coster 
v.  Mayor  of  Albany,  43  N.  Y.  399;  Secor  v.  Lord,  3  Keyes,  525;  Hutchings 
v.  Miner,  46  N.  Y.'  456,  460;  Claflin  v.  Ostrom,  54  N.  Y.  581;  Barlow  ». 
Myers,  64  N.  Y.  41;  Arnold  r.  Nichols,  64  N.  Y.  117;  Litchfield  v.  Flint, 
104  N.  Y.  543;  Hallenbeck  v.  Kindred,  109  N.  Y.  620;  Warren  v.  Wilder,  114 
N.  Y.  209;  Hannigan  v.  Allen,  127  N.  Y.  639;  Clark  v.  Howard,  150  N.  Y. 
232;  Seaman  c.  Hasbrouck,  35  Barb.  151;  Adams  r.  Wadhams,  40  Barb.  225; 
Brown  v.  Curran,  14  Hun,  260;  Cock  r.  Moore,  18  Hun,  31;  Kingsbury  v. 
Earle,  27  Hun,  141;  Schmid  v.  N.  Y.,  etc.,  Railway,  32  Hun,  335;  affd.,  98 
N.  Y.  634;  Edick  r.  Green,  38  Hun,  202;  Puiver  r.  Skinner,  42  Hun,  322; 
Reynolds  v.  Lawton,  62  Hun,  596;  Bogardus  v.  Young,  64  Hun,  398;  Cook  v. 
Berrott,  66  Hun,  633 ;  Beemer  v.  Packard,  92  Hun,  546.  But  see  .Etna  Nat. 
Bank  v.  Fourth  Nat.  Bank,  .46  N.  Y.  82;  Merrill  v.  Green,  55  N.  Y.  270; 
Wheat  v.  Rice,  97  N.  Y.  296;  Serviss  v.  McDonnell,  107  N.  Y.  260;  Corner 
v.  Mackey,  147  N.  Y.  574,  582;  Fairchild  v.  Feltman,  32  Hun,  398;  Metro- 
politan Trust  Co.  r.  New  York,  etc.,  Ry.  Co.,  45  Hun,  84;  Clark  v.  Howard, 
74  Hun,  228;  Feist  v.  Schiffer,  79  Hun,  275. 

Ohio.  Crumbaugh  v.  Kugler,  3  Ohio  St.  544,  549;  Bagaley  v.  Waters,  7 
Ohio  St.  359 ;  Dodge  v.  Nat.  Exchange  Bank,  30  Ohio  St.  1 ;  Emmitt  v.  Brophy, 
42  Ohio  St.  82. 

Oregon.  Baker  r.  Eglin.  11  Oreg.  333;  Hughes  v.  Oregon  Co.,  11  Oreg. 
437;  Schneider  v.  White,  12  Oreg.  503;  Strong  v.  Kamm,  13  Oreg.  172;  Feld- 
man  v.  MeGuire,  34  Oreg.  310.  But  see  contra,  Washburn  v.  Interstate  Invest. 
Co.,  26  Oreg.  436. 

Pennsylvania.  Strohecker  v.  Grant,  16  S.  &  R.  237,  24] ;  Hind  v.  Holdship, 
2  Watts,  104;  Commercial  Bank  v.  Wood,  7  W.  &  S.  89;  Beers  v.  Robin- 
son, 9  Barr,  229;  Bellas  V.  Fagelv,  19  Pa.  273;  Townsend  v.  Long,  77  Pa. 
143;  White  v.  Thielens,  106  Pa.  173;  Delp  v.  Brewing  Co.,  123  Pa.  42.  But 
see  contra.  Blymire  t'.  Boistle,  6  Watts,  182  Ramsdale  c.  Horton,  3  Barr,  330; 
Campbell  v.  Lacock,  40  Pa.  450;  Robertson  v.  Reed,  47  Pa.  115;  Torrens  v. 
Campbell,  74  Pa.  470;  Kountz  r.  Holthouse,  85  Pa.  235,  237;  Adams  v.  Kuehn, 
119  Pa.  76;  Freeman  v.  Pa.  R.  R.  Co.,  173  Pa.  274.  See  also  Brown  v.  German- 
American  Title  &  Trust  Co.,  174  Pa.  443,  455. 

Rhode  Island.  Merriman  r.  Social  Mfg.  Co.,  12  R.  I.  175;  Wood  v.  Mori- 
arty,  15  R.  I.  518;  Kehoe  r.  Patton,  50  Atl.  Rep.  655. 

South  Carolina.  See  McBride  v.  Floyd,  2  Bailey,  209;  Brown  i.\  O'Brien, 
1  Rich.  268;  Redfearn  v.  Craig,  57  S.  C.  534. 

Tennessee.  Moore  v.  Stovall,  2  Lea,  543;  Lookout  Mountain  R.  R.  Co.  v. 
Houston,  1  Pickle,  224;  O'Conner  v.  O'Conner,  88  Tenh.  76,  82.  But  see 
Campbell  v.  Findley,  3  Humph.  330. 

Texas.  Spann  v.  Cochran,  63  Tex.  240;  Bennett  i\  Rosenthal,  3  Wilson 
Civ.  Cas.  196 ;  Bartley  v.  Conn,  4  Tex.  Civ.  App.  299,  33  S.  W.  Rep.  604. 

Utah.     Brown  r.  Markland,  16  Utah,  360. 

Vermont.  See  Arlington  v.  Hinds,  1  D.  Chip.  430;  Pangborn  v.  Saxton,  11 
Vt.  79,  sernble;  Corey  v.  Powers,  18  Vt.  587;  Rutland  R.  R.  Co.  v.  Cole,  24 
Vt.  33;  Chapman  v.  Mears,  56  Vt.  389;  Congregational  Soc.  v.  Flagg,  72  Vt 
248. 

Virginia.  Vanmeters'  Ex.  r.  Vanmeters,  3  Gratt.  148  (in  equity)  ;  Jones 
r.  Thomas,  21  Gratt.  96,  semble.  See  also  Code,  §  2415.  Contra  is  Stewart 
v.  James  River  &  Kanawha  Co.,  24  Gratt.  294. 

Washington.     Don  Yook  v.  Washington  Mill  Co.,  16  Wash.  459. 

West  Virginia.     Hooper  v.  Hooper,  32  W.  Va.  526;  Bensimer  v.  Fell,  35 


CONTRACTS   TO  DISCHARGE  DEBTS.  259 

necticut,87  Massachusetts/8  Michigan,89  and  North  Carolina90  are 
absolutely  committed  against  the  doctrine.  The  United  States  Su- 
preme Court,91  Maryland,92  New  Hampshire,93  Pennsylvania,94  and 

W.  Va.  15,  29;  Code  1887,  c.  71,  §  2.  But  see  contra,  Johnson  v.  McClung,  26 
W.  Va.  659. 

Wisconsin.  Kimball  l:  Noyes,  17  Wis.  695;  Putney  v.  Farnham,  27  Wis. 
187;  McDowell  t;.  Laev,  35  Wis.  171;  Bassett  v.  Hughes,  43  Wis.  319;  Hoile 
v.  Bailey,  58  Wis.  434;  Winninghoff  v.  Witting,  64  Wis.  180;  Johannes  v, 
Phenix  Ins.  Co.,  66  Wis.  50;  Jones  v.  Foster,  67  Wis.  296,  309;  Ingram 
v.  Osborn,  70  Wis.  184,  193;  Nix  v.  Wiswell,  84  Wis.  334;  Fulmer  v.  Wight- 
man,  87  Wis.  573;  New  York  Life  Ins.  Co.  v.  Hamlin,  98  Wis.  17,  23;  Long 
i.  Chicago,  etc.,  By.  Co.,  Ill  Wis.  198. 

87  Morgan  it.  Randolph-Clowes  Co.,  73  Conn.  396.  See  also  Baxter  v. 
Camp,  71  Conn.  245.  These  cases  overrule  earlier  decisions,  e.  g.,  Crocker 
t\  Higgins,  7  Conn.  342;  Steene  v.  Aylesworth,  18  Conn.  244,  252. 

8SMellen  i\  Whipple,  1  Gray,  317;  Flint  v.  Pierce,  99  Mass.  68;  Exchange 
Bank  v.  Bice,  107  Mass.  37;  Eogers  v.  Union  Stone  Co.,  130  Mass.  581; 
Aigen  v.  Boston  &  Maine  R.  R.,  132  Mass.  423;  Morrill  v.  Allen,  136  Mass. 
93;  Borden  v.  Boardman,  157  Mass.  410;  White  i>.  Mt.  Pleasant  Mills,  172 
Mass.  462.     See  also  cases  of  mortgage,  post,  p.  260,  n.  1. 

89Pipp  r.  Reynolds,  20  Mich.  88;  Turner  r.  McCarty,  22  Mich.  265; 
Halsted  v.  Francis,  31  Mich.  113;  Hartford  Fire  Ins.  Co.  v.  Davenport,  37 
Mich.  609;  Hicks  v.  McGarry,  38  Mich.  667;  Hunt  v.  Strew,  39  Mich.  368, 
371;  Booth  v.  Conn.  Mut.  Life  Ins.  Co.,  43  Mich.  299;  Ayres  v.  Gallup,  44 
Mich.  13;  Edwards  v.  Clements,  81  Mich.  513;  Minnock  r.  Eureka  F.  &  M. 
Ins.  Co.,  90  Mich.  236;  Bliss  v.  Plummer's  Ex.,  103  Mich.  181. 

90Morehead  i:  Wriston,  73  N.  C.  398;  Peacock  v.  Williams.  98  N.  C.  324; 
Woodcock  v.  Bostic,  118  N.  C.  822. 

81  National  Bank  v.  Grand  Lodge,  98  U.  S.  123.  See  also  Constable  v. 
National  S.  S.  Co.,  154  U.  S.  51;  Johns  v.  Wilson,  180  U.  S.  440;  Nebraska 
Bank  v.  Nebraska  Hydraulic  Co.,  14  Fed.  Rep.  763 ;  Jcsup  v.  Illinois  Central 
Co.,  43  Fed.  Rep.  483,  493;  Hennessy  v.  Bond,  77  Fed.  Rep.  405;  Mercantile 
Trust  Co.  v.  Baltimore  &  Ohio  Co.,  94  Fed.  Rep.  722 ;  Goodyear  Shoe  Machinery 
Co.  v.  Dancel,  119  Fed.  Rep.  692  (C.  C.  A.). 

92  Hand  r.  Evans  Marble  Co.,  88  Md.  226.  But  see  Small  v.  Schaefer,  24 
Md.  143;   Seigman  v.  Hoffacker,   57  Md.  321. 

93  Warren  v.  Batchelder,  15  N.  H.  133.  Conf.  Warren  v.  Batchelder,  16 
N.  H.  580;  Lang  v.  Henry,  54  N.  H.  57;  Hunt  v.  New  Hampshire  Fire  Assoc, 
68  N.  H.  305,  308.  In  the  case  last  cited  the  court  say,  "  The  debt  is  in 
equity  his  debt."  "  If  for  technical  reasons  the  law  is  powerless  to  enforce 
the  duty,  equity  is  subject  to  no  such  weakness." 

94Blymire  v"  Boistle,  6  Watts,  182;  Ramsdale  v.  Horton,  3  Barr,  330; 
Campbell  v.  Laeock,  40  Pa.  450;  Robertson  r.  Reed,  47  Pa.  115;  Torrens  v. 
Campbell,  74  Pa.  470;  Kountz  v.  Holthouse,  85  Pa.  235,  237;  Adams  v. 
Kuehn,  119  Pa.  76;  Freeman  v.  Pennsylvania  R.  R.  Co.,  173  Pa.  274.  But 
see  Strohecker  v.  Grant,  16  S.  &  R.  237,  241;  Hind  v.  Holdship,  2  Watts, 
104;  Commercial  Bank  v.  Wood,  7  W.  &  S.  89;  Vincent  v.  Watson,  18  Pa.  96; 
Bellas  t>.  Fagely,  19  Pa.  273;  Townsend  v.  Long,  77  Pa.  143;  White  v.  Thielens, 
106  Pa.  173;  Delp  V.  Brewing  Co.,  123  Pa.  42.  See  also  mortgage  cases, 
post,  p.  260,  n.  6. 

The  rule  in  Pennsylvania  seems  to  be  that  in  general  the  creditor  cannot 
sue,  but  "  among  the  exceptions  are  cases  where  the  promise  to  pay  the  debt 
of  a  third  person  rests  upon  the  fact  that  money  or  property  is  placed  in 
the  hands  of  the  promisor  for  that  particular  purpose,  also  where  one  buys 
out  the  stock  of  a  tradesman  and  undertakes  to  take  the  place,  fill  the  con- 
tracts, and  pay  the  debts  of  his  vendor."  Adams  v.  Kuehn,  1 19  Pa.  76,  86. 
The  first  exception  thus  stated  is  that  of  a  trust,  but  in  its  application  of  the 
rule  the  Pennsylvania  court  has  gone  beyond  trusts  properly  so  called. 


260 


PERSONS    AFFECTED    BY    CONTRACT. 


Wyoming,95  at  least,  do  not  accept  it  unequivocally.  A  few  other 
jurisdictions  apart  from  local  statutes  or  codes  of  procedure  would 
hold  the  creditors'  only  right  to  be  derivative  and  in  equity.96 

Assumption  of  mortgage.  The  most  universal  illustration  of  the  right 
of  the  creditor  to  sue  is  where  the  grantee  of  premises  subject  to  a 
mortgage  assumes  and  agrees  to  pay  the  mortgage.  In  England,97 
Ireland,98  and  Canada99  this  gives  the  mortgagee  no  right.  But  the 
only  state  in  this  country  where  it  has  definitely  been  decided  that 
the  mortgagee  cannot  proceed  against  the  grantee  is  Massachusetts.1 
Of  the  other  jurisdictions  which  do  not  accept  the  doctrine  of  Law- 
rence v.  Fox,  Connecticut2  and  Michigan3  have  statutes  which  cover 
the  case ;  the  United  States  Supreme  Court4  and  North  Carolina5  give 
equitable  relief  on  substantially  the  principles  herein  advocated;  and 
if  the  attitude  of  the  Maryland  and  Pennsylvania  courts  towards  this 
class  of  cases  is  inconsistent  with  their  general  rule,  they  are  not  de- 
terred on  that  account  from  giving  the  mortgagee  relief,6     It  is  a 

85  McCarteney  v.  Wyoming  Nat.  Bank,  1  Wyo.  382. 

96  The  early  Indiana  law  allowed  a  semedy  in  equity  only.  Bird  r.  Lanius, 
7  Ind.  615;  and  since  the  Code  has  made  legal  and  equitable  procedure  the 
same,  it  has  still  been  recognized  that  the  creditor's  right  is  equitable.  Davis 
t\  Calloway,  30  Ind.  112;  Hendricks  v.  Frank,  86  Ind.  278,  284.  Aside  from 
statute  it  is  probable  that  in  Virginia  and  West  Virginia  the  creditor  would 
be  allowed  only  an  equitable  right.  See  also  McDonald  r.  American  Bank,  25^- 
Mont.  456,  495.  - 

97Tweddell  r.  Tweddell,  2  Bro.  Ch.  152;  Oxford  v.  Rodnev,  14  Ves.  417; 
Barham  r.  Thanet,  3  M.  &  R.  607;  Re  Errington,  [1894]  1  Q.  B.  11;  Bonner 
v.  Tottenham  Society,  [1899]   1  Q.  B.  161. 

08  Barry  v.  Harding,  1  Jones  &  Lat.  475,  485. 

99Aldous  v.  Hicks,'~21  Out.  95;  Frontenac  Loan  Co.  v.  Hysop.  21  Ont.  577. 
See  also  Williams  v,  Balfour,  18  Can.  S.  C.  472.  Re  Crozier,  24  Grant,  537, 
contra,  is  overruled. 

iMellen  v.  Whipple,  1  Gray,  317;  Pettee  v.  Peppard,  120  Mass.  522,  523; 
Prentice  i>.  Brimhall,  123  Mass.  291;  Coffin  v.  Adams,  131  Mass.  133;  Rice 
v.  Sanders,  152  Mass.  108;  Creesy  v.  Willis,  159  Mass.  249.  No  attempt  seems 
to  have  been  made  in  Massachusetts  to  enforce  the  mortgagee's  claim  by  a  bill 
in  equity  against  the  mortgagor  and  his  grantee.  Apparently  it  is  assumed 
that  no  relief  would  be  granted.  In  Rice  r.  Sanders  it  is  said  that  the  grantee's 
promise  "  gave  no  additional  rights  to  the  mortgagee." 

2  Gen.  Stat.,  §  983;   Morgan  r.  Randolph-Clowes  Co.,  73  Conn.  396,  398. 

sComp.  Laws  1897,  §  519;  Crawford  r.  Edwards,  33  Mich.  354;  Miller  v. 
Thompson,  34  Mich.  10;  Tavlor  v.  Whitmore,  35  Mich.  97;  Carley  v.  Fox, 
38  Mich.  387;  Winans  v.  Wilkie,  41  Mich.  264;  TJnger  r.  Smith,  44  Mich.  22; 
Corning  r.  Burton,  102  Mich.  86;  Jehle  v.  Brooks,  112  Mich.  131;  Terry  v. 
Durand  Land  Co.,  112  Mich.  665.  It  is  essential  that  the  grantee  and  the 
mortgaged  land  be  within  the  jurisdiction.  Booth  t>.  Connecticut  Mut.  Life 
Ins.  Co.,  43  Mich.  299. 

4  See  infra,  p.  263,  n.   19. 

5  Woodcock  r.  Bostic,  118  N.  C.  822. 

8  A  mortgagee  may  sue  at  law  a  grantee  of  the  mortgagor  who  assumes  the 
mortgage. 

Alabama.     Orman  v.  North  Alabama  Co.,  53  Fed.  Rep.  469;  55  Fed.  Rep.  18. 
Arizona.     Johns  v.  Wilson,  180  U.  S.  446. 


ASSUMPTION   OF   MORTGAGES.  261 

curious  circumstance  that  though  a  promise  by  a  third  person  to  pay 
a  mortgage  debt  cannot  be  distinguished  in  principle  from  a  promise 
to  pay  any  other  debt,  the  question  has  been  to  some  extent  separately 
dealt  with.  Perhaps,  because  the  subject  of  mortgages  fell  within  the 
scope  of  equity  jurisdiction,  the  attempt  was  early  made  by  mort- 

Arkansas.  Pattern  v.  Adkins,  42  Ark.  197 ;  Benjamin  v.  Birmingham,  50 
Ark.  433. 

California.  Wormouth  v.  Hatch,  33  Cal.  121;  Biddel  v.  Brizzolara,  64 
Cal.  354;  Williams  r.  Naftzger,  103  Oal.  438;  Alvord  r.  Spring  Valley  Gold 
Co.,  106  Cal.  547;  Tulare  County  Bank  r.  Madden,  109  Cal.  312;  Hopkins 
v.  Warner,  109  Cal.  133;  .Roberts  v.  Fitzallen,  120  Cal.  482;  Daniels  v.  John- 
son, 129  Cal.  415. 

Colorado.  Green  v.  Morrison,  5  Col.  18;  Stuyvesant  v.  Western  Mtge.  Co., 
22  Col.  28;  Skinner  i:  Harker,  23  Col.  333;  Starbird  v.  Cranston,  24  Col.  20; 
Cobb  i>.  Fishel,  62  Pae.  Rep.  625. 

Connecticut.  See  Bassett  r.  Bradley,  48  Conn.  224;  Lynch  v.  Moser,  72 
Conn.  714.     Conf.  Meech  r.  Ensign,  49  Conn.  191.     General  Stat.,  §  983. 

Georgia.     See  Ford  v.  Finney,  35  Ga.  258. 

Illinois.  Rogers  v.  Herron,  92  111.  583;  Thompson  V.  Dearborn,  107  111. 
87;  Bay  i\  Williams,  112  111.  91;  Hazle  r.  Bondy,  173  111.  302;  Webster  v. 
Fleming,  178  111.  140;  Cotes  v.  Bennett,  183  111.  82;  Harts  v.  Emery,  84  111. 
App.  317;  184  111.  560;  Baer  v.  Knewitz,  39  111.  App.  470;  Ingram  v.  Ingram, 
71  111.  App.  497;  172  111.  287;  Robinson  v.  Holmes,  75  111.  App.  203;  Boisot  r. 
Chandler,  82  111.  App.  261;  Eggleston  !•  Morrison,  84  111.  App.  625;  Murray 
r.  Emery,  85  111.  App.  348;   58  N.  E.  Rep.  327. 

Indiana.  Day  v.  Patterson,  18  Ind.  114;  McDill  v.  Gunn,  43  Ind.  315; 
Smith  v.  Ostermeyer,  68  Ind.  432;  Rick  v.  Hoffman,  69  Ind.  137;  Carnahan 
i.  Tousey,  93  Ind.  561;  Stanton  v.  Kenrick,  135  Ind.  382;  Berkshire  L.  I:  Co. 
v.  Hutchings,  100  Ind.  496;  Lowe  i:  Hamilton,  132  Ind.  406. 

Iowa.  Corbett  v.  Waterman,  11  la.  86;  Moses  v.  Clerk,  12  la.  139;  Thomp- 
son v.  Bertram,  14  la.  476;  Scott's  Adm'r  r.  Gill,  19  la.  187;  Bowen  v.  Kurtz, 
37  la.  239;  Ross  v.  Kennison,  38  la.  396;  Lamb  v.  Tucker,  42  la.  118;  Luney 
r.  Mead,  60  la.  469;  Beeson  v.  Green,  103  la.  406. 

Kansas.  Anthony  r.  Herman,  14  Kan.  494;  Schmucker  v.  Sibert,  18  Kan. 
104;  Rickman  v.  Miller,  39  Kan.  362;  Searing  v.  Benton.  41  Kan.  758; 
Anthony  v.  Mott,  61  Pac.  Rep.  509. 

Louisiana.  Ferguson's  Succession,  17  La.  Ann.  255;  Vinet  v.  Bres,  48  La. 
Ann.  1254. 

Minnesota.  Jordan  v.  White,  20  Minn.  91;  Follansbee  r.  Johnson,  28 
Minn.  311;  Lahmers  v.  Schmidt,  35  Minn.  434;  Scanlan  v.  Grimmer,  71  Minn 
351. 

Mississipi.     Vigniau  v.  Ruffins,  1  Miss.  312;  Lee  v.  Newman,  55  Miss.  365 

Missouri.  Belt  v.  McLaughlin,  12  Mo.  433;  Cress  v.  Blodgett,  64  Mo.  449 
Heim  r.  Vogel,  69  Mo.  529;  Fitzgerald  v.  Barker,  4  Mo.  App.  105;  70  Mo 
6S5;  13  Mo.  App.  192;  85  Mo.  13;  90  Mo.  661;  Nelson  v.  Brown,  140  Mo^ 
580;  Pratt  v.  Conway,  148  Mo.  291;  Saunders  v.  McCIintock,  46  Mo.  App^ 
216;  Commercial  Bank  v.  Wood,  56  Mo.  App.  214;  Wayman  v.  Jones  58 
Mo.  App.  313;  Am.  Nat.  Bank  v.  Klock,  58  Mo.  App.  335.  Page  v.  Becker 
31  Mo.  466,  contra,  is  overruled. 

Nebraska.  Cooper  v.  Foss,  15  Neb.  515;  Bond  v.  Dolby,  17  Neb  49-  Rock- 
well r.  Blair  Bank,  31  Neb.  128;  Hare  v.  Murphy,  45. Neb.  809. 

Nevada.     Ruhling  v.  Hackett,  1  Nev.  360. 

New  York.  Burr  r.  Beers,  24  N.  Y.  178;  Rieard  e.  Sanderson,  41  N  Y 
179;  Thorp  v.  Keokuk  Coal  Co..  48  N  Y.  253;  Campbell  r.  Smith,  71  N.  Y  26- 
Parkinson  r.  Sherman,  74  N.  Y.  88;  Thayer  r.  Marsh,  75  N  Y  340-  Avers  «' 
Dixon,  78  N.  Y.  318,  323 ;  Judson  v.  Da'da,  79  N.  Y.  373 ;  Hand  v  'Kennedv 
83  N.  Y.  149;  Root  v.  Wright,  84  N.  Y.  72;  Gifford  v.  Corriean  *117  NY 
257;  New  York  L.  I.  Co.  v.  Aitkin,  125  N.  Y.  660;  Wager  v.  Link   134  N  Y 


262  PERSONS    AFFECTED    BY    CONTRACT. 

gagees  to  sue  in  equity  those  who  had  assumed  an  obligation  to  pay 
the  mortgage,  while  no  such  attempt  was  made  with  other  debts. 
The  earlier  cases  were  in  jSTew  York,  and  the  result  of  them  is  thus 
summarized  in  a  later  decision  which  first  extended  the  mortgagee's 
right  to  a  direct  action  at  law. 

"  If  the  plaintiff  had  sought  to  foreclose  the  mortgages  in  question  and  to 
charge  the  defendant  with  the  deficiency  which  might  remain  after  applying 
the  proceeds  of  the  sale,  and  had  made  both  the  mortgagor  and  the  present 
defendant  parties,  the  authorities  would  be  abundant  to  sustain  the  action 
in  both  aspects."  7 

The  earlier  New  York  doctrine  has  had  considerable  following  in 
other  jurisdictions.     Alabama,8  California,9  Connecticut,10  Indiana,11 

122;  150  N.  Y.  549;  Blass  v.  Terry,  156  N.  Y.  122;  Hyde  v.  Miller,  168 
N.  Y.  590;  Howard  v.  Bobbins,  67  N.  Y.  App.  Div.  245;  170  N.  Y.  498;  Rush 
v.  Dilks,  43  Hun,  282.     But  see  cases  cited  infra,  n.  7. 

Noeth  Dakota.     See  Moore  v.  Booker,  4  N.  D.  543. 

Ohio.  Thompson  v.  Thompson,  4  Ohio  St.  333,  353;  Brewer  v.  Maurer,  38 
Ohio  St.  543;  Society  of  Friends  v.  Haines,  47  Ohio  St.  423;  Pendery  v. 
Allen,  50  Ohio  St.  121. 

Oregon.     Windle  v.  Hughes,  40  Oreg.  1. 

Pennsylvania.  Hoff's  App.,  24  Pa.  200;  Lenning's  Est.,  52  Pa.  135,  139; 
Merriman  v.  Moore,  90  Pa.  78:  Blood  v.  Crew  Levick  Co.,  177  Pa.  606;  Wun- 
derlich  v.  Sadler,  189  Pa.  469,  470. 

Rhode  Island.  Urquhart  v.  Brayton,  12  E.  I.  169;  Mechanics'  Savings 
Bank  v.  Goff,  13  R.  I.  569. 

South  Dakota.  Granger  v.  Roll,  6  S.  D.  611;  Miller  v.  Kennedy,  12  S.  D. 
478,  481;  Hull  v.  Hayward,  13  S.  D.  291,  295;  Connor  v.  Jones,  72  N.  W. 
Rep.  463. 

Tennessee.     Moore  v.  Stovall,  2  Lea,  543. 

Texas.  McCown  r.  Schrimpf,  21  Tex.  22;  Huffman  v.  Western  Mortgage 
Co.,  13  Tex.  Civ.  App.  169. 

Utah.  Clark  v.  Fisk,  9  Utah,  94;  Thompson  v.  Cheesman,  15  Utah,  43; 
McKay  v.  Ward,  20  Utah,  149. 

Washington.  Ordway  v.  Downey,  18  Wash.  412 ;  Ver  Planck  v.  Lee,  19 
Wash.  492. 

Wisconsin.  Bishop  v.  Douglas,  25  Wis.  696;  Kollock  v.  Parcher,  52  Wis. 
303;  Palmeter  v.  Carey,  63  Wis.  426;  Enos  r.  Sanger,  96  Wis.  150;  Morgan 
V.  South  Milwaukee  Co.,  97  Wis.  275;  Stites  v.  Thompson,  98  Wis.  329. 

7  Burr  v.  Beers,  24  N.  Y.  178,  per  Denio,  J.,  citing  Curtis  v.  Tyler,  9  Paige, 
432;  Halsey  r.  Reed,  9  Paige,  446;  March  v.  Pike,  10  Paige,  595;  King  r. 
Whitely,  10  Paige,  465 ;  Blyer  v.  Monholland,  2  Sandf .  Ch.  478 :  Vail  v.  Foster, 
4  N.  Y.  312;  Trotter  v.  Hughes,  12  N.  Y.  74;  Belmont  v.  Coman,  22  N.  Y.  43S. 
See  also  Wager  v.  Link,  150  N.  Y.  549. 

8  Young  v.  Hawkins,  74  Ala.  370. 

8  Williams  v.  Naftzger,  103  Cal.  438 ;  Alvord  v.  Spring  Vallev  Gold  Co.,  106 
Cal.  547;  Tulare  County  Bank  v.  Madden,  109  Cal.  312;  Hopkins  v.  Warner, 
109  Cal.  133.  In  California  by  statute  an  independent  action  cannot  be 
maintained  even  against  the  mortgagor  on  a  debt  secured  by  mortgage.  Code 
Civ.  Proc,  §  720.  The  mortgaged  property  must  first  be  exhausted.  Stockton 
Saving  &  Loan  Soe.  r.  Harrold,  127  Cal.  612,  617. 

WBassett  v.  Bradlev,  48  Conn.  224.  See  also  Gen.  Stat.,  §  983;  Morgan 
v.  Randolph-Clowes  Co.,  73  Conn.  396,  398. 

ii  See  cases  cited  supra,  n.  6. 


ASSUMPTION   OF   MORTGAGES.  263 

Maryland,12  Michigan,13  New  Jersey,14  North.  Carolina,15  North 
Dakota,18  Vermont,17  Virginia,18  and  the  United  States  Supreme 
Court19  have  adopted  it.  The  phrase  commonly  used  is  that  the 
mortgagee  is  "  subrogated  "  to  the  rights  of  the  mortgagor,  who  is 
the  promisee.  The  use  of  the  word  "  subrogation  "  is  not  wholly  fortu- 
nate. It  suggests  analogies  which  do  not  exist,  with  the  position  of 
a  surety  who  has  paid  the  debt.  In  fact,  it  is  merely  the  application 
by  a  court  of  equity  of  property  of  a  debtor,  the  mortgagor,  to  the 
payment  of  the  debt;  and  whatever  terminology  is  used  there  is  no 
doubt  that  this  is  substantially  the  meaning  of  the  courts  which  have 
followed  the  early  New  York  decisions. 

Mortgagor  should  be  party  to  the  suit.  Even  courts  which  derive  the 
right  of  the  mortgagee  to  sue  the  grantee  from  his  right  to  enforce 
the  mortgagor's  rights,  too  frequently  allow  the  suit  to  be  maintained 
without  joinder  of  the  mortgagor.  The  essential  reason  why  the 
proceeding  should  be  in  equity  is  because  the  mortgagor  ought  to  be 
joined,  since  it  is  his  property — that  is;  a  promise  to  him — of  which 
the  plaintiff  is  seeking  to  avail  himself,  and  that  property  should 
not  be  taken  without  giving  the  owner  his  day  in  court.  Moreover, 
it  is  unfair  to  the  grantee  to  charge  him  at  the  suit  of  the  mortgagee 
unless  at  the  same  time  all  claim  against  him  on  the  part  of  the 
mortgagor  is  extinguished.  This  cannot  be  judicially  determined  un- 
less the  mortgagor  is  joined.20 

12  George  v.  Andrews,  60  Md.  26;  Chilton  t\  Brooks,  72  Md.  554;  Stokes  v. 
Detrick,  75  Md.  256. 

13  Crawford  v.  Edwards,  33  Mich.  354;  Miller  v.  Thompson,  34  Mich.  10. 
And  see  supra,  p.  260,  n.  3. 

14  Klapworth  c.  Dressier,  13  N.  J.  Eq.  62 ;  Pruden  v.  Williams,  26  N.  J.  Eq. 
210;  Crowell  r.  Currier,  27  N.  J.  Eq.  152,  650;  Wise  v.  Puller,  29  N.  J.  Eq. 
257;  Green  r.  Stone,  54  N.  J.  Eq.  387;  Whittaker  r.  Belvidere  Co.,  55  N.  J. 
Eq.  674,  688. 

15  Woodcock  r.  Bostic,  118  N.  C.  822. 

16  Moore  v.  Booker,  4  N.  Dak.  543. 

17  Davis  v.  Hulett,  58  Vt.  90;  Hodgtes  r.  Phelps,  65  Vt.  303. 

18  Willard  v.  Worsham,  76  Va.  392 ;  Osborne  v.  Cabell,  77  Va.  462 ;  Francisco 
t>.  Shelton,  85  Va.  779;  Fisher  v.  White,  94  Va.  370:  Ellett  v.  McGhee,  94 
Va.  377. 

19  Keller  v.  Ashford,  133  U.  S.  610;  Willard  v.  Wood,  135  U.  S.  309,  314. 
See  also  Winters  v.  Hub  Mining  Co.,  57  Fed.  Rep.  287.  But  in  a  case  arising 
■under  the  Arizona  Code,  which  assimilates  legal  and  equitable  procedure,  a 
direct  action  was  allowed  against  the  grantee  in  Johns  v.  Wilson,  180  U.  S.  440. 

20  In  Keller  v.  Ashford,  133  U.  S.  610,  626,  the  court  noticed  the  question 
and  disposed  of  it  thus:  "Although  the  mortgagor  might  properly  have  been 
made  a  party  to  this  bill,  yet  as  no  objection  was  taken  on  that  ground  at  the 
hearing,  and  the  omission  to  make  him  a 'party  cannot  prejudice  any  interest 
of  his,  or  any  right  of  either  party  to  this  suit,  it  affords  no  ground  for 
refusing  relief."  See  also  Miller  v.  Thompson,  34  Mich.  10;  Pruden  v  Wil- 
liams, 26  N.  J.  Eq.  210. 


264 


PERSONS    AFFECTED    BY    CONTRACT. 


Successive  purchases  of  mortgaged  property.  It  frequently  happens  that 
several  grantees  successively  buy  the  premises  and  assume  payment  of 
the  mortgage.  It  is  rightly  held  that  the  last  grantee  can  be  charged 
as  well  as  the  immediate  grantee  of  the  mortgagor.  The  same  reason- 
ing which  justifies  charging  the  first  grantee  through  his  obligation 
to  the  mortgagee's  debtor  requires  the  application  of  the  obligation 
of  the  second  grantee  to  the  first  grantee  in  order  to  satisfy  the  obliga- 
tion of  the  latter  to  the  mortgagor,  and  so  on.21 

Moreover,  all  who  have  assumed  the  mortgage  may  be  charged 
though  they  have  parted  with  the  premises.22  They  have  made  a 
valid  contract  to  pay  the  mortgage,  which  they  cannot  abrogate  by 
selling  the  premises,  though  they  may  get  such  protection  as  the 
promise  of  their  grantee  to  assume  the  mortgage  can  give.  As  be- 
tween the  grantor  and  grantee,  the  latter  becomes  principal  debtor 
and  the  former  a  surety.  Accordingly,  if  the  mortgagee  gives  time 
to  the  grantee,  he  forfeits  his  right  to  assert  a  claim  against  the 
grantor.23  The  doctrine  would  be  more  exactly  expressed  if  it  were 
said  that  the  mortgagee  forfeited  his  right  to  collect  his  claim 
against  the  mortgagor  out  of  any  property  other  than  the  promise  of 
the  grantee. 

21  See  e.  g.,  Flint  v.  Cadenasso,  64  Cal.  83;  Ingram  v.  Ingram,  71  111.  App. 
497,  172  111.  287;  Rick  v.  Hoffman,  69  Ind.  137;  Carnahan  v.  Tousey,  93  lnd. 
561;  Corning  r.  Burton,  102  Mich.  86;  Gifford  v.  Corrigan,  117  N.  Y.  257. 

22  Ingram  v.  Ingram,  71  111.  App.  497,  172  III.  287;  Carnahan  v.  Tousey,  93 
Ind.  561;   Corning  v.  Burton,  102  Mich.  86;   Hyde  v.  Miller,   168  N.  Y.  590. 

23  Union  Life  Ins.  Co.  v.  Hanford,  143  U.  S.  187;  Union  Stove  Works  r. 
Caswell,  48  Kan.  689;  George  v.  Andrews,  60  Md.  26;  Chilton  v.  Brooks,  72 
Md.  554;  Metz  v.  Todd,  36  Mich.  473;  Dedrick  v.  Blyker,  85  Mich.  475;  Com- 
mercial Bank  v.  Wood,  56  Mo.  App.  214;  Wayman  v.  Jones,  58  Mo.  App.  313; 
Nelson  v.  Brown,  140  Mo.  580 ;  Merriam  v.  Miles,  54  Neb.  566 ;  Calvo  r.  Davies, 
73  N.  Y.  211;  Paine  v.  Jones,  14  Hun,  577;  Jester  r.  Sterling,  25  Hun,  344; 
Fish  v.  Hayward,  28  Hun,  456;  Dillaway  r.  Peterson,  US.  Dak.  210;  Miller 
v.  Kennedy,  12  S.  Dak.  478;  Hull  v.  Hayward,  13  S.  Dak.  291;  Schroeder  v. 
Kinney,  15  Utah,  462.  See  also  Hodges  v.  Elyton  Co.,  109  Ala.  617;  Home 
Nat.  Bank  r.  Waterman's  Est.,  134  111.  461.  Contra,  Shepherd  v.  May,  115 
U.  S.  505;  Keller  v.  Ashford,  133  U.  S.  610,  625  (but  see  Union  Ins.  Co.  r. 
Hanford,  143  U.  S.  187)  ;  Corbett  v.  Waterman,  11  la.  86;  James  v.  Day,  37 
la.  164;  Connecticut  Mut.  Life  Ins.  Co.  v.  Mayer,  8  Mo.  App.  18  (overruled). 
See  also  Ridgely  v.  Robertson,  67  Mo.  App.  45;  Aldous  i:  Hicks,  21  Ont.  95. 
Similarly  if  a  grantee  who  takes  subject  to  a  mortgage,  but  does  not  assume 
payment  of  it,  is  given  time,  the  mortgagor  is  discharged  to  the  extent  of  the 
value  of  the  mortgaged  property  which  is  the  principal  debtor.  Travers  v. 
Dorr,  60  Minn.  173;  Murray  v.  Marshall,  94  N.  Y.  611 ;  Antisdel  r.  Williamson, 
165  N.  Y.  372,  375;  Bunnell  r.  Carter,  14  Utah,  100.  But  see  contra,  Chiiton 
r.  Brooks,  72  Md.  554 ;  and  the  decisions  cited  above  which  hold  that  the 
mortgagor  is  not  discharged  even  where  the  grantee  has  assumed  payment 
of  the  mortgage. 

In  Keller  r.  Lee.  66  N.  Y.  App.  Div.  184.  it  was  held  that  a  grantor  who 
on  default  in  the  payment  of  the  mortgage  had  paid  and  discharged  it,  and 
then  sued  the  grantee  who  had  assumed  the  payment  of  it,  no  recovery  could 


ASSUMPTION   OF   MORTGAGES.  265 

A  curious  situation  arises  when  a  mortgagor  transfers  the  premises 
to  one  who,  though  taking  them  subject  to  the  mortgage,  does  not 
agree  to  pay  it,  and  this  grantee  thereafter  transfers  the  premises  to 
another  who  by  the  deed  assumes  and  agrees  to  pay  the  mortgage. 
The  promisee  has  no  interest  in  the  performance  of  this  premise, 
since  he  is  not  personally  liable  for  the  debt,  and  he  is  no  longer  the 
owner  of  the  premises.  The  only  intelligent  object  that  can  be  sug- 
gested for  requiring  the  promise  from  the  grantee  is  a  wish  to  benefit 
the  mortgagee.  In  that  view  the  case  would  fall  within  the  first  type 
of  promises  for  the  benefit  of  a  third  person  and  the  mortgagee  would 
be  the  sole  beneficiary.  But  it  is  hard  to  suppose  that  the  promisee 
had  any  such  intention.  The  object  in  fact  of  such  a  stipulation,  if 
its  insertion  is  not  altogether  a  mistake,  is  doubtless  to  guard  against 
a  supposed  or  possible  liability  on  the  part  of  the  promisee.  The 
decisions  which  generally  deny  the  mortgagee  a  right  to  recover  in 
such  a  case,  therefore,  seem  sound.24 

Assumption  Of  mortgage  by  second  mortgagee.  Another  peculiar  situa- 
tion arises  where  a  mortgagor  makes  a  second  mortgage  and  the 
second  mortgagee  agrees  to  pay  off  the  first  mortgage.  Subsequently 
the  first  mortgagee  endeavors  to  take  advantage  of  this  promise. 
He  is  denied  the  right  and  justly.  In  the  ordinary  case  where  a  pur- 
chaser assumes  and  agrees  to  pay  a  mortgage  he  has  received  a  quid 
pro  quo  for  the  amount  of  the  mortgage.  He  owes  the  amount  of 
the  mortgage  to  some  one.  In  the  case  under  consideration,  however, 
the  second  mortgagee  does  not  owe  the  amount  of  the  first  mortgage. 
He  has  agreed  virtually  to  lend  the  amount  of  it  to  the  mortgagor 
by  paying  the  first  mortgagee.  A  promise  to  lend  a  debtor  money, 
though  on  technically  good  consideration,  is  not  one  which  a  court 

be  had  because  the  land  was  the  primary  fund  and  the  grantee  merely  a 
surety  as  compared  with  the  land. 

24  Ward  v.  De  Oca,  120  Cal.  102 ;  Morris  v.  Mix,  4  Kan.  App.  654 ;  Brown  v. 
Stillman,  43  Minn.  126;  Nelson  v.  Rogers,  47  Minn.  103;  Crone  v.  Stinde,  68 
Mo.  App.  122  (reversed)  ;  Hicks  r.  Hamilton,  144  Mo.  495  (overruled)  ;  Har- 
berg  v.  Arnold,  78  Mo.  App.  237  (overruled)  ;  Wise  v.  Fuller,  29  N.  J.  Eq. 
257,  266;  Norwood  v.  De  Hart,  30  N.  J.  Eq.  412;  Mount  r.  Van  Ness,  33  N.  J. 
Eq.  262,  265;  Eakin  v.  Shultz,  47  Atl.  Rep.  274  (N.  ,T.  Eq.)  ;  King  v.  Whitely 
10  Paige,  465;  Trotter  v.  Hughes,  12  N.  Y.  74;  Vrooman  v.  Turner,  69  N.  Y. 
280;  Smith  v.  Cross,  16  Hun,  487;  Young  Men's  Assoc,  i:  Croft,  34  Oreg.  106; 
Portland  Trust  Co.  r.  Nunn,  34  Oreg.  166;  Osborne  v.  Cabell,  77  Va.  462, 
semile. 

Recovery  was  allowed  in  Cobb  v.  Pishel,  62  Pac.  Rep.  625  (Col.  App.)  ; 
Dean  v.  Walker,  107  111.  541;  Marble  Bank  v.  Mesarvey,  101  la.  285;  Heim 
v.  Vogel,  69  Mo.  529;  Crone  v.  Stinde,  156  Mo.  262;  Hare  v.  Murphy,  45 
Neb.  809;  Brewer  r.  Maurer,  38  Ohio  St.  543;  Merriman  v.  Moore,  90  Pa. 
78;  McKay  v.  Ward,  20  Utah,  149;  Enos  v.  Sanger,  96  Wis.  150. 


266 


PERSONS    AFFECTED    BY    CONTRACT. 


of  equity  should  enforce  for  the  benefit  of  a  creditor.  For  can 
breach  of  the  promise  by  the  second  mortgagee  be  ground  for  sub- 
stantial damages.  The  only  consequence  of  the  breach  is  that  the 
debtor  continues  liable  to  the  first  mortgagee  instead  of  to  the  second 
mortgagee  for  the  amount  of  the  first  mortgage.  As  the  rights  of  the 
first  mortgagee  against  the  promisor  cannot  exceed  the  rights  of  the 
promisee  there  is  no  asset  of  value  applicable  to  the  mortgage.  As 
the  court  said  in  the  first  case  that  presented  these  facts,  "if  the 
action  were  allowed,  any  one  who  promised  to  advance  money  to  an- 
other to  pay  his  debts  would  be  liable  to  an  action  by  the  creditor."  25 

Assumption  of  liabilities  of  outgoing  partner.  Another  class  of  promises 
to  satisfy  a  debtor's  liability  deserves  particular  mention— the  prom- 
ise of  an  individual  or  firm  to  pay  the  liabilities  of  an  outgoing  part- 
ner. It  is  in  this  kind  of  case  that  the  greatest  difficulty  arises  in 
determining  whether  there  is  a  novation.  On  principle  it  is  clear 
that  to  work  a  novation  the  promisor  must  make  an  agreement  with 
the  creditor  to  become  directly  liable  to  him  in  consideration  that  the 
creditor  will  accept  him  as  debtor  in  place  of  the  original  debtor.  It 
is  not  enough,  therefore,  for  the  creditor  to  learn  of  the  promise  to 
the  original  debtor  and  express  assent  to  that  arrangement.  Such 
assent  does  not  necessarily  include  an  agreement  to  give  up  the  claim 
against  the  original  debtor.  Moreover,  the  promisor  must  assent  to 
enter  into  a  contractual  relation  directly  with  the  creditor.  By  a 
curious  freak  the  law  of  New  York26  does  not  allow  the  creditor  a 
remedy  on  a  promise  made  to  his  debtor  in  this  class  of  cases.  The 
law  of  Pennsylvania,27  on  the  other  hand,  though  not  generally  adopt- 
ing the  doctrine  of  Lawrence  v.  Fox,  makes  an  exception  here  in  favor 

25  Garnsey  v.  Rogers,  47  N.  Y.  233.  The  further  distinction  suggested  by  the 
court  that  the  promise  was  not  made  for  the  benefit  of  the  mortgagee  amounts 
to  nothing.  It  is  true,  but  it  is  also  true  in  any  case  where  a  grantee  agrees 
to  pay  a  mortgage. 

The  case  has  been  followed  several  limes,  and  it  has  been  held  imaterial 
that  the  deed  creating  the  second  mortgage  is  on  its  face  absolute.  Pardee 
v.  Treat,  82  N.  Y.  385;  Roe  v.  Barker,  82  N.  Y.  431;  Root  v.  Wright,  84  N.  Y. 
72;  Cole  v.  Cole,  110  N.  Y.  630;  Smith  v.  Cross,  16  Hun,  487. 

A  similar  principle  was  applied  in  favor  of  a  grantee  who  was  a  bare  trustee 
in  Gifford  v.  Corrigan,  105  N.  Y.  223. 

26  Merrill  i\  Green,  55  N.  Y.  270;  Wheat  v.  Rice,  97  N.  Y.  296;  Serviss 
v.  McDonnell,  107  N.  Y.  260;  Corner  v.  Mackey,  147  N.  Y.  574;  Edick  v. 
Green,  38  Hun,  202.  But  see  Claflin  r.  Ostrom,  54  N.  Y.  581;  Arnold  v. 
Nichols,  64  N.  Y.  117;  Hannigan  v.  Allen,  127  ST.  Y.  639. 

27Townsend  r.  Long,  77  Pa.  143;  White  r.  Thielens  106  Pa.  173;  Adams 
i'.  Kuehn,  119  Pa.  76,  86;  Delp  v.  Brewing  Co.,  123  Pa.  142.  But.  it  seems 
to  be  essential  that  property  shall  have  been  transferred  when  the  promise 
5s  made.  Campbell  r.  Lacock,  40  Pa.  450;  Robertson  v.  Reed,  47  Pa.  115; 
Torrens  r.  Campbell,  74  Pa.  470. 


EFFECT  OF  STATUTE  OF  LIMITATIONS.  267 

of  the  creditor.     In  fact,  there  is  no  reason  for  discriminating  for 
or  against  the  creditor,  and  so  the  matter  is  generally  treated.28 

Right  of  holder  of  check  against  bank.  On  the  same  principle  the  holder 
of  a  check  has  sometimes  been  given  a  right  against  the  bank  on 
which  the  check  was  drawn.29  The  common  argument  in  favor  of 
such  a  right  is  that  a  check  is  an  equitable  assignment  of  part  of  the 
fund  in  the  bank.30  If  it  be  granted  that  this  is  unsound,  that  a 
check  is  in  its  nature  an  order,  not  an  assignment,  the  further  argu- 
ment remains  that  the  bank  has  promised  its  depositor  to  pay  the 
latter's  checks  and  that  the  holder  of  a  check  may  sue  upon  this 
promise.  There  seems  no  valid  distinction  between  such  a  case  and 
Lawrence  v.  Fox.  The  bank  in  effect  promises  to  pay  such  debtors 
of  the  depositor  as  the  latter  indicates,  upon  presentation  of  a  cheek 
in  proper  form.  No  distinction  can  be  made  because  the  creditor  to 
be  paid  is  indefinite  at  the  time  the  promise  was  made.  Such  is  the 
fact  in  many  cases,  and  it  is  rightly  regarded  as  immaterial.31 

Statute  of  Limitations.  The  nature  of  a  creditor's  right  against  one 
who  has  promised  the  debtor  to  pay  the  debt  is  involved  in  determin- 
ing when  the  statute  of  limitations  bars  the  creditor's  action.  On 
principle  the  creditor  must  have  a  claim  that  has  not  been  barred 
against  the  original  debtor,  and  the  latter  must  also  have  such  a 
claim  against  the  promisor.  But  courts  which  allow  a  direct  right  to 
the  creditor  against  the  promisor  hold  that  though  the  creditor's 
original  claim  is  barred  he  may  nevertheless  enforce  a  claim  against 
the  promisor  if  the  statutory  period  has  not  run  since  the  debt  was 
assumed.32 

28  See  e.  g.,  allowing  the  action,  Maxfield  v.  Schwartz,  43  Minn.  221;  Love- 
joy  v.  Howe,  55  Minn.  353;  Ellis  v.  Harrison,  104  Mo.  270;  Shamp  v.  Meyer, 
20  Neb.  223;  Merriman  v.  Social  Mfg.  Co.,  12  R.  I.  175;  Spann  v.  Cochran, 
63  Tex.  240;  denying  the  action,  Morgan  v.  Randolph-Clowes  Co.,  73  Conn, 
396;  Ayres  v.  Gallup,  44  Mich.  13. 

29  Harrison  v.  Wright,  100  Ind.  515,  533;  Hawley  v.  Exchange  Bank,  97 
la.  187;  Harrison  v.  Simpson,  17  Kan.  508;  Chanute  Bank  v.  Crowell,  6  Kan. 
App.  533;  Fonner  v.  Smith,  31  Neb.  107.  Gonf.  Mtaa.  Nat.  Bank  v.  Fourth 
Nat.  Bank,  46  N.  Y.  82.  See  Daniel  on  Negotiable  Instruments,  4th  ed., 
|  1637  et  seq. 

30  Ibid. 

31  Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27 ;  Morgan  v.  Overman  Co.,  37  Cal. 
534;  Whitney  v.  Am.  Ins.  Co.,  127  Cal.  464;  Williamson  Stewart  Co.  v.  Sea- 
man 29  111.  App.  68;  Brenner  v.  Luth,  28  Kan.  581;  Bell  v.'Mendenhall,  71 
Minn.  330;  State  v.  St.  Louis  &  S.  F.  Ry.  Co.,  125  Mo.  596,  615;  Glencoe 
Lime  Co.  v.  Wind,  86  Mo.  App.  163;  Johannes  v.  Phenix  Ins.  Co.,  66  Wis.  50, 
56;  Lenz  v.  Chicago,  etc.,  Ry.  Co.,  Ill  Wis.  198.  Many  other  decisions  might 
be  added.  Dow  v.  Clark,  7  Gray,  198,  decided  when  the  Massachusetts  court 
was  disposed  to  restrict  the  creditor's  right  of  action,  is  the  only  contrary 
decision. 

32  Daniels  v.  Johnson,  129  Cal.  415;  Kuhl  v.  Chicago  &  N.  W.  R.  R.,  101 


268  PERSONS  AFFECTED  BY  CONTRACT. 

Rights  of  the  promisee.  It  is  when  the  rights  of  the  promisee  are 
considered  that  the  difficulties  in  the  American  law  become  apparent. 
It  seems  obviously  unfair  to  subject  the  promisor  to  suits  both  by 
the  creditor  and  the  promisee,  and  on  the  other  hand  the  doctrine 
that  a  promisee  in  a  contract  made  upon  good  consideration  furnished 
by  him  cannot  sue  upon  it  is  hard  to  reconcile  with  principle.  In 
cases  where  the  third  person  is  the  sole  beneficiary  the  injury  to 
the  promisee  in  depriving  him  of  a  right  of  action  is  purely  technical, 
because  breach  of  the  promise  causes  him  no  pecuniary  damage ;  but 
in  the  case  of  a  promise  to  pay  a  debt  the  promisee  is  vitally  inter- 
ested in  the  performance  of  the  promise.  The  results  reached  by  the 
courts  are  various.  In  Alabama,  in  a  case  of  the  latter  type,  the 
court  said :  "  The  promise  enured  to  the  benefit  of  the  creditors  and 
prima  facie  they  alone  can  claim  payment  or  sue  for  the  breach  of 
the  agreement,"  S3  and  in  Maine,  it  was  said  in  an  early  case,  "  the 
promisee  can  recover  only  nominal  damages  since  the  defendant  may 
bf  liable  to  the  beneficiary;"34  but  this  case  has  recently  been  over- 
ruled.35 In  Nebraska  the  consignor  cannot  sue  on  a  bill  of  lading, 
though  the  contract  is  with  him,  in  the  absence  of  proof  that  he  was 
the  owner  of  the  goods,  that  he  was  liable  for  their  loss,  or  that  he  had 
sustained  special  damage.36  In  Nevada,  also,  it  was  held  that  a 
promisee  without  pecuniary  interest  in  the  performance  of  a  promise 
could  not  sue  upon  it.37  In  Ehode  Island  the  rule  is  the  same.38  In 
New  York  if  the  third  person  can  sue,  it  seems  the  promisee  cannot. 
A  more  complete  somersault  than  the  New  York  court  has  made 
on  this  subject  when  dealing  with  mortgages  cannot  be  imagined. 
In  the  days  before  Lawrence  v.  Fox  was  decided  it  had  been  held 
that  the  mortgagee,  though  not  entitled  to  sue  directly  a  grantee  who 
had  assumed  the  mortgage,  might  be  "subrogated"  to  the  right  of 
the  mortgagor— the  promisee.  Now  the  court  holds  that  the  promisee 
cannot  sue,  but  upon  paying  the  mortgage  debt  he  is  entitled  to  be 

Wis.  42.  See  also  Eoberts  r.  Fitzallen,  120  Cal.  482 ;  Robertson  v.  Stuhlmiller, 
93  la.  326. 

33Dimmick  r.  Register,  92  Ala.  458,  460;  North  Alabama  Development  Co. 
v.  Short,  101  Ala.  333. 

34Burbank  v.  Gould,  15  Me.  «118. 

35  Baldwin  r.  Emery,  89  Me.  496.  In  Martin  v.  Mtna,  Ins.  Co.,  73  Me.  25, 
28,  it  was  held  in  a  ease  of  the  sole  beneficiary  type  that  the  promisee  might 
sue  as  trustee  for  the  beneficiary. 

36  Union  Pacific  By.  Co.  v.  'Metcalf,  50  Neb.  452.  See  contra,  Snider  v. 
Adams  Express  Co.,  77  Mo.  523,  where  consignor  was  allowed  to  recover  as 
trustee  for  consignee.     See  4  Elliott  on  Railroads,  §  1692. 

37  Ferris  v.  Carsjon  Water  Co.,  16  Nev.  44. 

38  Adams  v.  Union  R.  R.  Co.,  21  R.  I.   134. 


EIGHTS    OF    THE    PROMISEE.  269 

subrogated  to  the  right  of  the  mortgagee  to  sue  upon  this  promise.39 
Ohio  has  recently  reached  the  same  conclusion,40  though  it  is  in  con- 
flict with  an  earlier  Ohio  decision  which  was  not  cited.41 

Ground  for  denying  recovery  by  the  promisee.  The  idea  behind  the 
cases  which  deny  the  promisee  a  right  of  action  is  that  by  the  assent 
of  the  third  person  a  novation  is  created;42  but  as  has  been  already 
shown,  a  contract  with  a  debtor  to  pay  his  debt,  even  though  the 
creditor  assents,  does  not  amount  to  a  novation. 

Recovery  by  the  promisee  generally  allowed.  Whatever  the  hardship 
upon  the  promisor  may  be  in  being  liable  to  two  persons  when  he 
promised  but  one,  most  courts  have  found  it  the  simpler  alternative, 
a  recovery  by  either  party  being  a  bar  to  an  action  by  the  other.43- 
In  mortgage  cases  especially  the  promisor  may  thus  find  himself  in 
a  difficult  position  between  the  mortgagee   and  the  promisee,   the 

39  Miller  v.  Winchell,  70  N.  Y.  437;  439;  Ayers  v.  Dixon,  78  N.  Y.  318.  See 
also  Keller  v.  Lee,  66  N.  Y.  App.  Div.  184.  For  the  earlier  New  York  deci- 
sions, see  ante,  p.  262,  n.  7.  In  Claflin  v.  Ostrom,  54  N.  Y.  581,  584,  it  was 
held  that  the  promisee  or  his  assignee  might  sue  upon  a  promise  to  assume 
the  debts  of  a  firm,  and  in  Ward  v.  Cowdrey,  51  Hun,  641;  affd.,  119  N.  Y. 
614,  it  was  held  that  a  promisee  might  sue  in  the  absence  of  proof  that  the 
third  person  knew  of  or  acquiesced  in  the  arrangement.  The  beneficiary  m 
these  cases  could  noi  have  sued.     \ 

40Poe  i\  Dixon,  60  Ohio  St.  124.  Compare  Blood  v.  Crew  Levick  Co.,  171 
Pa.  334,  337.  The  court  there  said:,  "As  to  the  amount  still  due  and  unpaid 
on  the  mortgages  .  .  .  the  plaintiff  cannot  recover  to  her  own  use  until 
she  has  been  compelled  to  make  payment  and  then  only  to  the  extent  of  pay- 
ments actually  made.  An  action  might  be  maintained  by  the  holder  of  the 
mortgage  in  the  name  of  the  covenantee  for  his  use  upon  the  express  covenant 
to  pay  contained  in  the  deed;  and  I  see  no  reason  why  an  action  might  not 
be  brought  by  a  covenantee  to  recover  damages  sustained  by  reason  of  the 
breach." 

41  Wilson  v.  Stilwell,  9  Ohio  St.  467.,  A  retiring  partner,  who  had  received 
a  promise  from  the  remaining  partner  that  the  latter  would  pay  the  firm 
debts,  was  held  entitled  to  sue  upon  the  promise  without  having  first  paid 
the  debts  himself. 

42  See  also  Brewer  r.  Dyer,  7  Cush.  337,  341.  The  promisee  "  might  likewise 
have  a  remedy  on  the  contract  in  case  the  plaintiff  should  not  elect  to 
adopt  it." 

43  Union  Mut.  L.  I.  Co.  r.  Hanford,  143  U.  S.  187;  Steene  v.  Aylesworth, 
18  Conn.  244,  252;  Tinkler  v.  Swaynie,  71  Ind.  562;  Rodenbarger  r.  Bramblett. 
78  Ind.  213;  Foster  v.  Marsh,  25  la.  300;  Smith  t>.  Smith,  5  Bush,  625,  632;' 
Baldwin  i>.  Emery,  89  Me.  496;  Rogers  v.  Gosnell,  51  Mo.  466,  469;  -Snider  v. 
Adams  Express  Co.,  77  Mo.  523;  Beardslee  v.  Morgner,  4  Mo.  App.  139,  143; 
Megher  r.  Stewart,  6  Mo.  App.  139,-143;  Weinreich  v.  Weinreich.  18  Mo.  App' 
364,  372 ;  Anthony  v.  German  Am.  Ins.  Co.,  48  Mo.  App.  65_^Am.  Nat.  Bank  v. 
Klock,  58  Mo.  App.  335;  Gunnell  v.  Emerson,  73  Mo.  App.  291  (conf.  Bethany 
v.  Howard,  149  Mo.  504);  Strong  v.  Kamm,  13'  Oreg.  172;  Edmundson  v. 
Penny,  1  Barr,  334;  Hoff's  Appeal,  24  Pa.  200;  Blood  r.  Crew  Levick  Co.,  171 
Pa.  334;  Callender  v.  Edmison,  8  S.  Dak.  81;  Hull  v.  Hayward,  13  S.  Dak.<291 ; 
Snyder  v.  Summers,  1  Lea,  534;  Jones  v.  Thomas,  21  Gratt.  96.  See  also 
authorities  in  next  note. 


370  PERSONS    AFFECTED    BY    CONTRACT. 

grantor  of  the  premises.  If  the  promisor  fails  to  keep  his  promise  to 
pay  the  debt,  lie  is  liable  to  the  promisee  to  the  full  amount  of  the 
debt;44  and  unless  the  promise  can  bear  the  construction  of  a  promise 
to  indemnify  against  loss,  this  seems  sound.  But  the  recovery  of  the 
promisee  cannot  affect  the  mortgagee's  rights  against  the  property, 
and  if  he  forecloses  the  mortgage,  the  promisor  loses  the  property 
and  is  obliged  to  pay  the  debt  also.  The  proper  relief  for  the  prom- 
isor is  an  application  to  equity  when  he  is  sued  by  the  promisee,  for 
an  injunction  against  the  action  on  terms  of  payment  of  the  debt 
to  the  mortgagee.  Equity  should  grant  such  an  injunction,  for  it 
does  not  injure  the  promisee,  since  the  terms  imposed  amount  to  a 
decree  of  specific  performance  of  the  promise.45  It  seems  also  that 
if  the  mortgage  has  been  foreclosed  and  the  mortgagee  thereby  paid 
and  the  promisee  freed  from  liability  as  mortgagor,  the  promisor 
should  be  entitled  to  an  injunction  against  the  collection  of  any  judg- 
ment of  the  promisee  against  him,  or  if  a  judgment  has  already  been 
collected,  to  an  action  on  principles  of  quasi  contract  to  recover  back 
1he  amount  collected  less  costs  and  any  payment  or  remaining  lia- 
bility of  the  promisee  to  the  mortgagee. 

Creditor's  right  to  sue  both  debtor  and  new  promisor.  Diversity  of 
opinion  likewise  prevails  in  regard  to  the  right  of  a  creditor  whose 
debtor  has  received  a  promise  to  pay  the  debt,  to  sue  both  the  new 
promisor  and  the  original  debtor.  Courts  which  hold  that  the  origi- 
nal contract  is  in  effect  an  offer  of  novation  naturally  hold  that  if  the 
creditor  accepts  the  promisor  as  his  debtor  he  releases  the  original 
debtor,  and  on  the  other  hand  if  he  elects  to  sue  the  original  debtor 
he  thereby  rejects  the  proffered  novation  and  cannot  afterwards  sue 

44  Meyer  v.  Hartman,  72  111.  442;  Stout  v.  Folger,  34  la.  71;  Furnas  v. 
Durgin,  119  Mass.  500;  Locke  v.  Homer,  131  Mass.  03;  Walton  v.  Ruggles, 
180  Mass.  24;  Strohauer  v.  Voltez,  42  Mich.  444;  Dorrington  v.  Minnick,  15 
Neb.  397;  Rawson  v.  Copeland,  2  Sandf.  Ch.  251;  Rector  v.  Higgins,  48  N.  Y 
532;  Sage  c.  Truslow,  88  N".  Y.  240;  Wilson  v.  Stilwell,  9  Ohio  St.  468;  Cal- 
lender  v.  Edmison,  8  S.  Dak.  81;  Sedgwick  on  Damages,  §  789;  Sutherland  on 
Damages,  §  765.  And  it  makes  no  difference  that  the  promisor  has  sold  the 
land  again.  Reed  v.  Paul,  131  Mass.  129.  But  if  the  mortgagee  has  been  paid 
from  sale  of  the  land  the  promisee  cau  recover  only  nominal  damages.  Muhlig 
v.  Fiske,  131  Mass.  110;  Williams  r.  Fowler,  132  Mass.  385.  See  also  Wilson 
r.  Bryant,  134  Mass.  291;  Keller  v.  Lee,  66  N.  Y.  App.  Div.  184. 

45  Compare  Ford  v.  Bell,  35  G-a.  258.  In  that  case  the  mortgagee  sued  the 
mortgagor.  The  latter  having  sold  the  premises  to  a  third  party,  who  had 
agreed  to  pay  the  mortgage,  brought  a  bill  in  equity  joining  both  the  mort- 
gagee and  the  purchaser,  praying  that  the  latter  be  compelled  to  pay  the 
debt.     The  bill  was  sustained.  '  See  also  Wilson  v.  Stilwell,  9  Ohio  St.  467. 


DEFENSES.  271 

the  new  promisor.46  The  more  common  doctrine,  however,  allows 
the  creditor  a  right  both  .  against  the  original  debtor  and  the  new 
promisor.47 

Defenses  good  against  the  promisee  good  against  the  creditor.  Another 
question  concerns  the  admissibility  of  certain  defences  by  the  prom- 
isor. When  sued  by  the  third  person,  the  promisor  may  rely  on 
facts  showing  that  the  promisee  could  not  enforce  the  contract.  Is 
the  third  person  barred  because  the  promisee  would  be  ?  It  is  neces- 
sary to  observe  some  distinctions  here.  The  foundation  of  any  right 
the  third  person  may  have,  whether  he  is  a  sole  beneficiary  or  a 
creditor  of  the  promisee,  is  the  promisor's  contract.  Unless  there  is 
a  valid  contract  no  rights  can  arise  in  favor  of  any  one.  Moreover, 
the  rights  of  the  third  person,  like  the  rights  of  the  promisee,  must 
be  limited  by  the  terms  of  the  promise.  If  that  is  in  terms  con- 
ditional, no  one  can  acquire  any  rights  under  it  unless  the  condition 
happens.48    Further,  if  there  is  a  contract  valid  at  law,  but  subject 

46  Henry  v.  Murphy,  54  Ala.  246;  Hall  v.  Alford,  49  S.  W.  Rep.  444  (Ky.)  ; 
Floyd  v.  Ort,  20  Kan.  162;  Searing  v.  Benton,  41  Kan.  758  (compare  Kansas 
Pac  Ry.  Co.  v.  Hopkins,  18  Kan.  499,  and  Piano  Mfg.  Co.  r.  Burrows,  40  Kan. 
361.  In  the  latter  case  the  court  held  that  "  no  one  has  the  right  to  take  the 
objection  that  the  old  debt  is  not  extinguished,  but  the  old  debtor,  and  prob- 
ably even  he  would  not  have  such  right");  Bohanan  r.  Pope,  42  Me.  93; 
Brewer  v.  Dyer,  7  Cush.  339;  Warren'i;.  Batchelder,  16  N.  H.  580;  Wood  v. 
Moriarty,    15  R.  I.  518,  522;  Phenix  Iron  Foundry  v.  Lockwood,  21  R.  I.  556. 

In  no  case,  however,  has  a  court  held  that  a  mortgagee  by  seeking  to  recover 
against  one  who  had  assumed  a  mortgage  released  the  mortgagor;  and  in 
Rouse  v.  Bartholomew,  51  Kan.  425,  the  Kansas  court  held  the  mortgagor  was 
not  released  though  the  decision  is  inconsistent  in  principle  with  the  previous 
decisions  of  the  court  as  to  other  debts. 

In  Young  v.  Hawkins,  74  Ala.  370,  it  was  held  that  recovering  judgment 
against  the  original  debtor  in  ignorance  that  a,  new  promisor  had  agreed 
to  pay  the  debt  did  not  bar  a  subsequent  recovery  against  the  latter.  To  make 
a.  binding  election  it  was  said  knowledge  of  the  facts  is  essential. 

47Hopkinson  v.  Warner,  109  Cal.  133;  South  Side  Assoc,  v.  Cutler  Co.,  64 
Ind.  560;  Davis  v.  Hardy,  76  Ind. '272;  Rodenbarger  v.  Bramblett,  78  Ind. 
213;  Stanton  v.  Kenriek,  135  Ind.  382,  389;  Rothermel  r.  Bell  &  Zoller  Co., 
79  111.  App.  667 ;  Wiekham  v.  Hyde  Park  Assoc,  80  111.  App.  523 ;  Rouse  v. 
Bartholomew,  51  Kan.  425;  Davis  v.  Nat.  Bank  of  Commerce,  45  Neb.  589; 
Fischer  v.  Hope  Mut.  Life  Ins.  Co.,  69  N.  Y.  161;  Poe  v.  Dixon,  60  Ohio  St. 
124,  129;  Feldman  v.  McGuire,  34  Oreg.  309,  313. 

*8  Russell  v.  Western  Union  Tel.  Co.,  57  -Kan.  230 ;  Fenn  v.  Union  Co.,  48 
La.  Ann.  541;  Gill  v.  Weller,  52  Md.  8.  But  see  Orman  v.  North  Alabama 
Co.,  53  Fed.  Rep.  469,  55  Fed.  Rep.  18;  East  v.  New  Orleans  Ins.  Assoc,  76 
Miss.  697;  Oakland  Ins.  Co.  v.  Bank  of  Commerce,  47  Neb.  717.  In  the  first 
case  the  person  to  whom  a  telegram  was  sent,  who  was  treated  as  the  benefi- 
ciary of  the  contract  with  the  telegraph  company,  was  held  subject  to  the 
requirement  in  that  contract  that  the  claim  must  be  presented  within  sixty 
days.  In  the  last  two  eases  a  mortgagee  was  allowed  to  sue  on  policies  of  insu- 
rance taken  out  by  the  mortgagor  "  loss  payable  to  mortgagee  "  though  the 
mortgagor  had  acted  in  such  a  way  as  would  avoid  the  policy  as  to  him. 


4i~  PERSONS    AFFECTED    BY    CONTRACT. 

to  some  equitable  defence — as  fraud,49  mistake,50  or  failure  of  con- 
sideration51— the  defence  may  be  set  up  against  the  third  person.  If 
the  case  is  a  promise  to  pay  a  debt  or  discharge  a  duty  of  the  promisee, 
the  rights  of  the  third  person  can  only  be  derived  through  the  prom- 
isee, and  whatever  defence  affects  the  latter  affects  the  creditor.  In 
the  case  of  a  promise  for  the  sole  benefit  of  a  third  person,  the  bene- 
ficiary may  indeed  be  regarded  as  having  a  direct  right,  but  he  is 
in  the  position  of  a  donee.  It  is  no  more  equitable  for  a  sole  bene- 
ficiary, though  himself  innocent  to  try  to  enforce  a  promise  procured 
by  the  fraud  of  another,  than  for  the  donee  of  trust  property  to 
insist  on  his  legal  title  as  against  the  cestui  que  trust. 

Non-performance  by  promisee  a  good  defence.  A  more  difficult  case 
arises  where  the  defence  does  not  relate  to  the  origin  of  the  contract, 
but  is  based  on  supervening  circumstances,  such  as  non-performance 
by  the  promisee  of  a  counter-promise  made  by  him,  or  discharge  by 
the  promisee  by  release  or  rescission.  The  defence  of  non-perform- 
ance should  be  available  against  the  third  person  whether  he  is  a 
sole  beneficiary  or  a  creditor  of  the  promisee.  The  defence  is  fre- 
quently called  failure  of  consideration.  This  is  technically  inaccu- 
rate, since  the  consideration  for  the  promise  was  the  counter-promise, 
and  that  has  not  failed ;  but  as  the  substantial  matter  the  parties  had 

«•  Green  v.  Turner,  80  Fed.  Rep.  41,  86  Fed.  Rep.  837;  Benedict  v.  Hunt, 
32  la.  27;  Maxfleld  tr.  Schwartz,  45  Minn.  150;  Ellis  o.  Harrison,  104  Me.  270, 
278;  Saunders  r.  McClintock,  46  Mo.  App.  216:  American  Nat.  Bank  v.  Klock, 
58  Mo.  App.  335;  Wise  v.  Fuller,  29  N.  J.  Eq.  257;  Arnold  v.  Nichols,  64 
N.  Y.  117;  Moore  v.  Ryder,  65  N.  Y.  438;  Trimble  v.  Strother.  25  Ohio  St. 
378;  Osborne  i>.  Cabell,  77  Va.  462.  Fitzgerald  v.  Barker,  06  Mo.  661,  and 
Klein  v.  Isaacs,  8  Mo.  App.  568,  to  the  contrary  must  be  regarded  either  as 
overruled  or  distinguished  on  the  ground  that  the  plaintiff  bought  the  note, 
payment  of  which  was  assumed,  on  the  faith  of  the  defendant's  promise  to 
pay  it. 

bo  Episcopal  Mission  v.  Brown,  158  U.  S.  222;  Jones  r.  Higgins,  80  Ky.  409; 
Bogart  v.  Phillips,  112  Mich.  697;  Rogers  v.  Castle,  51  Minn.  428;  Gold  v. 
Og'den,  61  Minn.  88;  Bull  r.  Titsworth,  29  N.  J.  Eq.  73;  Stevens  Inst.  v. 
Sheridan,  30  N.  J.  Eq.  23;  O'Neill  v.  Clark,  33  N.  J.  Eq.  444;  Green  v.  Stone, 
54  N.  J.  Eq.  »87 ;  Crow  r.  Lewis,  95  N.  Y.  423 ;  Wheat  v.  Rice,  97  N.  Y.  296. 

01  Clay  r.  Woodrum,  45  Kan.  116;  Amonett  r.  Montague,  75  Mo.  43;  Judson 
v.  Dada,  79  N.  Y.  373,  379;  Osborne  v.  Cabell,  77  Va.  462. 

Several  decisions  present  the  case  of  a  purchaser  with  warranty  of  land 
subject  to  a  mortgage,  who  has  been  evicted  from  the  premises  and  is  there- 
after sued  by 'the  holder  of  the  mortgage.  The  defense  was  held  good  in 
Dunning  r.  Leavitt,  85  N.  Y.  30;  Crow  v.  Lewis,  95  N.  Y.  423;  Gifford  v. 
Father  Matthew  Society,  104  N.  Y.  139.  But  see  contra,  Blood  v.  Crew  Lev- 
iek  Co.,  177  Pa.  606;  Hayden  r.  Snow,  9  Biss.  511,  14  Fed.  Rep.  70;  s.  c.  sub- 
nam.  Hayden  v.  Devery,  3  Fed.  Rep.  782.  In  the  last  case  the  decision  was 
based  on  the  fact  that  the  plaintiff  was  a  purchaser  for  value  of  the  mortgage 
note  after  the  defendant  had  assumed  the  mortgage.  See  also  Knapp  v.  Con- 
necticut Mut.  L.  I.  Co.,  85  Fed.  Rep.  329 ;  Connecticut  Mut.  L.  I.  Co.  v.  Knapp, 
62  Minn.  405. 


RESCISSION   OR  RELEASE.  273 

• 

in  mind  was  the  performance  of  the  promises  the  defendant  prom- 
isor has  in  substance  not  received  what  he  bargained  for.  Under 
these  circumstances  it  is  unjust  to  allow  a  mere  donee  to  enforce  the 
promise ;  and  if  the  third  person-  is  a  creditor  he  is  not  entitled  to 
any  greater  right  than  his  debtor  had.52 

Rescission  or  release.  The  commonest  defence,  that  of  discharge  by 
rescission  or  release,  is  different.  In  the  case  of  a  sole  beneficiary  it 
is  like  the  attempted  revocation  of  a  gift.  The  promisor  for  good 
consideration  has  given  the  beneficiary  a  right.  Later  he  seeks  to 
take  it  away  by  procuring  the  extinction  of  the  promise.  If  it  be 
admitted  that  the  beneficiary  has  a  direct  right  of  his  own,  it  ought 
not  to  be  extinguished  without  his  consent.  The  only  question  can 
be,  when  does  the  beneficiary's  right  arise — when  the  promise  for  his 
benefit  was  made  or  when  he  was  notified  of  it  or  assented  to  it?  for 
unless  a  right  has  vested  in  the  beneficiary  before  the  rescission  or 
release  he  cannot  object.  The  question  is  analogous  to  that  arising 
upon  a  gift  of  property  or  the  creation  of  a  trust  for  the  benefit  of 
another.  As  a  gift  is  a  pure  benefit  to  the  donee  there  seems  no 
reason  why  his  assent  should  not  be  presumed,  unless  and  until  he 
expresses  dissent.53  According  to  this  view  the  sole  beneficiary  ac- 
quires a  right  immediately  upon  the  making  of  the  contract  and  any 
subsequent  rescission  is  ineffectual.  There  is  weighty  authority  in- 
support  of  this  view;54  but  in  most  jurisdictions  the  distinction  has 

62  Episcopal  Mission  v.  Brown,  158  U.  S.  '222;  Pugh  v.  Barnes,  108  Ala. 
167;  Stuwesant  c.  Western  Mortgage  Co.,  22  Col.  28,  33;  Miller  v.  Hughes, 
95  la.  223.  See  also  Willard  v.  Wood,  164  U.  S.  502,  521;  Loeb  v.  Willis,  100 
N.  Y.  231.  But  see  apparently  contra,  Cress  v.  Blodgett,  64  Mo.  449;  Com- 
mercial Bank  v.  Wood,  7  W.  &  S.  89;  Fulmer  v.  Wightman,  87  Wis.  573. 
In  Missouri  and  Nebraska  it  has  been  held  that  a  surety  for  the  promise 
of  a  contractor  to  a  district  or  municipalitj'  to  pay  for  his  labor  and  materials 
is  liable  to  workmen  and  materialmen  in  spite  of  the  fact  that  the  promisee, 
the  district,  or  municipality  has  paid  the  contractor  during  the  progress  of 
the  work  to  an  amount  not  allowed  by  the  contract.  The  Missouri  decision 
relies  on  the  fact  that  the  plaintiffs  had  become  creditors  on  the  faith  of  the 
defendant's  suretyship  before  the  promisee  had  committed  any  breach  of 
duty.  The  Nebraska  decisions  make  no  such  distinction.  School  District  v. 
Livers,  147  Mo.  580;  Doll  v.  Crume,  41  Neb.  655;  Kaufmann  v.  Cooper,  46 
Neb.  644;  King  v.  Murphy,  49  Neb.  670. 

63  Ames,  Cas.  Trusts,  2d  ed.,  232-234. 

64  Henderson  v.  McDonald,  84  Ind.  149,  and  Waterman  v.  Morgan,  114  fnd! 
237;  Thompson  v.  Gordon,  3  Strobh.  196;  Tweeddale  v.  Tweeddale,  116  Wis. 
517.  See  also  Knowles  v.  Brwin;  43  Hun,  150;  affd.,  124  N.  Y.  623.  A  few 
cases  of  the  debtor  and  creditor  type  seem  to  hold  a  similar  doctrine.  -Star- 
bird  v.  Cranston,  24  Col.  20;  Bay  V  Williams,  112  III.  91;  Cobb  v.  Heron,  78 
111.  App.  654,  180  111.  49;  Rogers  v.  Gosnell,  58  Mo.  589. 

The  almost  universal  doctrine  that  the  ieneficiary  of  a  life  insurance  policy 
acquires  a  vested  right  of  which  he  cannot  be  deprived  subsequently  is  in 
accord.    The  numerous  cases  are  collected  in  3'  Am.  &  Eng.  Cyc,  2d  ed    980 
18 


274  PERSONS    AFFECTED    BY    CONTRACT. 

4 

not  been  clearly  stated  in  the  decisions  between  cases  of  sole  bene- 
ficiary and  cases  of  debtor  and  creditor.  Most  of  the  cases  have  been 
of  the  latter  sort,  and  it  has  generally  been  laid  down  broadly  as  true 
of  all  cases  that  prior  to  the  assent  or  acting  upon  the  promise  by 
the  third  party  but  not  afterwards,  a  rescission  or  release  is  opera- 
tive.66 In  theory,  however,  in  a  case  of  debtor  and  creditor  the  situa- 
tion is  very  different  from  that  arising  where  the  third  person  is  a 
sole  beneficiary.  The  creditor's  right  is  purely  derivative,  and  if  the 
debtor  no  longer  has  a  right  against  the  promisor  the  creditor  can 
have  none.  In  one  respect  only  has  the  creditor  any  right  to  object 
to  a  rescission  or  release.  The  promise  to  the  debtor  to  pay  the  debt 
is  a  valuable  right  belonging  to  the  debtor.  Like  his  other  property 
the  debtor  has  no  right  to  give  it  away  if  he  thereby  deprives  himself 
of  sufficient  means  to  pay  his  debts.  Even  though  insolvent,  however, 
he  has  a  right  to  change  the  form  of  his  assets.  Consequently  to  a 
rescission  or  release  for  adequate  consideration  paid  to  the  debtor,  the 
creditor  should  never  have  a  right  to  object.  A  release  or  rescission 
by  an  insolvent  debtor,  without  any  consideration,  or  without  adequate 
consideration,  however,  is  a  fraudulent  conveyance.  It  is  a  gift  of 
property  by  one  whose  circumstances  do  not  justify  him  in  giving, 
and  the  creditor  may  disregard  the  gift.  Here,  too,  the  knowledge 
of  the  promise  by  the  third  person  or  his  assent  thereto  should  make 
no  difference.  A  promise  to  a  debtor  to  pay  his  debt  is  a  valuable 
asset  whether  the  creditor  knows  of  it  or  not,  and  the  debtor,  if  in- 

BBBiddel  v.  Brizzolara,  64  Cal.  354;  Merrick  v.  Giddings,  1  Mackey  (D.  C), 
394;  Durham  v.  Bischof,  47  Ind.  211;  Carnahan  p.  Tousev,  93  Ind.  561;  Smith 
v.  Flack,  95  Ind.  116,  120;  Gilbert  r.  Sanderson,  56  la*  349;  Cohrt  v.  Rock, 
56  la.  658;  Seiffert  Lumber  Co.  r.  Hartwell,  94  la.  576,  582:  Dodge's  Adnrr 
v.  Moss,  82  Ky."441;  Mitchell  v.  Cooley,  5  Rob.  243;  Cucullu  v.  Walker,  16 
La.  Ann.  198;  Garnsey  v.  Rogers,  47  N.  Y.  233,  242;  Gifford  v.  Corrigan,  117 
N.  Y.  257;  Seaman  v.  Hasbrouck,  35  Barb.  151;  Holder  v.  Nat.  Bank,  9  Han, 
108 ;  affd.,  73  N.  Y.  599 ;  Wilson  v.  Stilwell,  14  Ohio- fit.  464 ;  Trimble  v. 
Strother,  25  Ohio  St.  378;  Brewer  v.  Maurer,  38  Ohio  St.  543;  Emmitt  v. 
Brophy,  42  Ohio  St.  82;  McCown  v.  Schrimpf,  21  Tex.  22;  Huffman  r. 
Western  Mortgage  Co.,  13  Tex.  Civ.  App.  169;  Clark  v.  Fisk,  9  Utah,  94; 
Bassett  v.  Hughes,  43  Wis.  319  (overruled  by  Tweeddale  v.  Tweeddale,  116 
Wis.  517). 

What  is  required  in  the  way  of  assent  or  acting  upon  the  promise  is  not 
defined.  Doubtless  in  many  jurisdictions  if  the  third  person  had  knowledge 
of  the  promise  and  made  no  objection  he  would  be  regarded  as  assenting. 
But  in  Crowell  v.  Currier,  27  N.  J.  Eq.  152  (s.  c.  on  appeal  sub  nom.  Crowell 
v.  Hospital,  27  N.  J.  Eq.  650),  it  was  held  that  rescission  was  permissible 
because  the  third  party  had  not  altered  his  position,  the  court  apparently 
requiring  something  like  an  estoppel  to  prevent  a  rescission;  and  in  Wood 
1\  Moriarty,  16  B.  I.  201,  a  release  by  the  promisee  was  held  effectual,  though 
the  creditors  had  made  a  demand  upon  the  promisor  for  the  money,  because 
the  creditors  "  did  not  do  or  say  anything  inconsistent  with  their  continuing 
to  look  to  T.    (the  original  debtor)   for  the  debt." 


DEFENSES.  275 

solvent,  has  no  right  to  dispose  of  it  without  receiving  an  adequate 
price  for  it.56 

Another  kind  of  defence  to  a  promise  to  pay  a  debt  has  given  rise 
to  considerable  litigation.  May  the  promisor  set  up  that  the  debtor 
did  not  owe  the  debt  or  that  it  was  an  illegal  debt?  The  true  an- 
swer to  this  question  depends  upon  the  true  meaning  in  fact  of  the 
promise  rather  than  upon  any  rule  of  law.  If  the  promisor's  agree-', 
nient  is  to  be  construed  as  a  promise  to  discharge  whatever  liability 
the  promisee  is  under,  the  promisor  must  certainly  be  allowed  toi 
show  that  the  promisee  was  under  no  liability.  Thus  one  who  in 
return  for  an  assignment  of  property  assumed  all  the  grantor's  debts 
would  be  allowed  to  dispute  the  validity  of  any  debt.  On  the  other 
hand,  if  the  promise  means  that  the  promisor  agrees  to  pay  a  sum 
of  money  to  A.,  to  whom  the  promisee  says  he  is  indebted,. it  is  im- 
material whether  the  promisee  is  actually  indebted  to  that  amount 
or  at  all.  The  promisee  has  decided  that  question  himself.  Where 
the  promise  is  to  pay  a  specific  debt,  for  example  to  assume  a  specific 
mortgage,  this  construction  will  generally  be  the  true  one.  Most  of 
the  cases  accordingly  refuse  to  allow  one  who  has  assumed  a  specific 
debt  to  set  up  usury57  or  other  defences58  of  which  the  debtor  might 
have  availed  himself. 

56  This  analysis  finds  some  support  in  the  cases  of  Trustees  v.  Anderson, 
30  N.  J.  Eq.  366;  Youngs  v.  Trustees,  31  N.  J.  Eq.  290,  and  Willard  v.  Woi- 
sham,  76  Va.  392,  where  the  validity  of  a  release  by  the  mortgagor  of  one  who 
had  purchased  the  equity  of  redemption  from  him  and  assumed  the  mortgage 
was  made  to  depend  on  the  solvency  of  the  mortgagor. 

"Millington  v.  Hill,  47  Ark.  301;  People's  Bank  v.  Collins,  27  Conn.  142; 
Henderson  v.  Bellew,  45  111.  322;  Valentine  r.  Pish,  45  111.  462;  Easier  v. 
Sloan,  16  111.  App.  63;  Flanders  v.  Doyle,  16  111.  App.  508;  Cleaver  v.  Bureky, 
17  111.  App.  92;  Stephens  v.  Muir,  8  Ind.  352;  Spinney  v.  Miller,  lit  la.  210; 
Hough  v.  Hersey,  36  Mo.  181;  Log  Cabin  Assoc,  v.  Gross,  71  Md.  456;  Scanlan 
r.  Grimmer,  71  Minn.  351;  Cramer  v.  Lepper,  26  Ohio  St.  59;  Jones  v. 
Insurance  Co.,  40  Ohio  St.  583;  Spaulding  v.  Davis,  51  Vt.  77;  Conovcr 
v.  Hobart,  24  N.  J.  Eq.  120 ;  Post  v.  Dart,  8  Paige,  639 ;  Cole  v.  Savage,  10 
Paige,  583;  Root  v.  Wright,  21  Hun,  344;  Sands  v.  Church,  6  N.  Y.  347;  Hart- 
ley v.  Harrison*  24  N.  Y.  170;  Ritter  v.  Phillips,  53  N.  Y.  586  (payment). 
But  see  Knickerbocker  Life  Ins.  Co.  v.  Nelson,  78  N.  Y.  137. 

58  Pope  v.  Porter,  33  Fed.  Rep.  7  (informal  execution)  ;  Kennedy  v.  Brown, 
61  Ala.  296  (coverture)  ;  Gowans  v.  Pierce,  57  Kan.  180  (unauthorized  signa- 
ture to  note)  ;  Bowser  v.  Patrick,  (Ky.)  65  S.  W.  Rep.  824  (champerty)  ; 
Cox  v.  Hoxie,  115  Mass.  120  (erroneous  amount)  ;  Comstock  v.  Smith,  26 
Mich.  306  (coverture)  ;  Miller  v.  Thompson,  34  Mich.  10  (invalid  execution)  ; 
Crawford  v.  Edwards,  33  Mich.  354  (failure  of  consideration)  ;  Lee  v.  Newman, 
55  Miss.  365  (invalidity)  ;  Johnson  v.  Parmely,  14  Hun,  398  (payment)  ; 
Ferris  v.  Cranford,  2  Den.  595  (payment)  ;  Horton  r.  Davis,  26  N.  Y.  495 
(want  of  record)  ;  Freeman  v.  Auld.  44  N.  Y.  50  (failure  of  consideration)  ; 
Parkinson  t'.  Sherman,  74  N.  Y.  88  (failure  of  consideration)  ;  Bennett  v. 
Bates,  94  N.  Y.  354,  370  (invalidity  of  mortgage).  But  see  Goodman  v.  Ran- 
dall, 44  Conn.  321. 


276  PERSONS  AFFECTED  BY  CONTRACT. 

All  parties  should  joined.  In  dealing  with  any  of  these  defences  it  is 
obvious  that  all  three  parties  should  have  an  opportunity  of  litigating 
the  question  since  all  are  interested  in  it,  and  it  is  desirable  to  have  all 
concluded  by  the  judgment.  If  a  creditor  who  sues  the  promisor 
and  is  met  by  the  defence  of  fraud  or  mistake  in  the  contract  neverthe- 
less prevails,  but  being  unable  to  collect  his  judgment  sues  the  origi- 
rial  debtor,  as  he  would  be  allowed  to  do  in  many  jurisdictions,  clearly 
the  debtor  cannot  be  concluded  by  the  judgment  in  the  first  case 
and  the  creditor  must  try  the  same  question  again  and  perhaps  with 
a  different  result.59 

Contracts  under  seal.  None  of  the  earlier  cases  which  allowed  a  right 
of  action  to  one  who  was  not  a  party  to  the  contract  related  to  con- 
tracts under  seal,  and  where  statutes  have  not  taken  away  the  import- 
ance of  the  distinction  between  sealed  and  parol  contracts  the  rule 
that  one  who  is  not  a  party  to  a  contract  under  seal  cannot  sue  upon 
it  is  still  applied  to  contracts  to  benefit  or  pay  a  debt  to  a  third  per- 
son.60 But  in  some  states  the  rules  of  the  common -law  distinguish- 
ing contracts  under  seal  from  other  written  contracts  have  been 
abolished  or  diminished,  so  that  it  is  not  surprising  that  the  distinc- 
tion as  to  the  right  of  a  third  person  to  sue  has  also  been  disre- 
garded.61 

59  In  Green  v.  Stone,  54  N.  J.  Eq.  387,  the  court  held  that  the  defense  that 
the  clause  assuming  payment  of  a  mortgage  was  inserted  in  a  deed  by  mistake 
must  be  asserted  by  a  crossbill  to  which  the  promisee  must  be  made  a  party. 

60  Hendricks  v.  Lindsay,  93  TJ.  S.  143;  Willard  v.  Wood.  135  U.  S.  311, 
313;  152  U.  8.  502;  Douglass  v.  Branch  Bank,  19  Ala.  659;  Hunter  v.  Wilson, 
21  Fla.  250.  252;  Gunter  v.  Mooney,  72  Ga.  205;  Moore  v.  House,  64  111. 
162;  Gautzert  v.  Hoge,  73  111.  30;  Harms -f.  McCormick,  132  111.  104,  109 
(now  changed  by  statute)  ;  Hinkley  v.  Fowler,  15  Me.  285;  Farmington  v. 
Hobart,  74  Me.  416;  Seigman  r.  Hoffacker,  57  Md.-321;  Montague  v.  Smith, 
13  Mass.  396;  Millard  v.  Baldwin,  3  Gray,  484;  Robb  v.  Mudge,  14  Gray,  534, 
538;  Flynn  v.  North  American  Life  Ins.  Co.,  115  Ma3s.  449;  Lee  v.  Newman, 
55  Miss.  365,  374;  How  v.  How,  1  N.  H.  49;  Crowell  r.  Currier,  27  N.  J.  Eq. 
152;  Joslin  r.  New  Jersey  Car  Spring  Co.,  36  N.  J.  L.  141,  146;  Cocks  v. 
Varney,  45  N.  J.  Eq.  72;  Styles  r.  Long  Co.,  67  N.  J.  L.  413,  418  (but  by  stat- 
ute in  1898  the  rule  was  extended  to  sealed  contracts,  Hid. )  ;  Strohecker  v. 
Grant,  16  S.  &  R.  237;  De  Bolle  v.  Pennsylvania  Ins.  Co.,  4  Whart  68;  Mis- 
sissippi R.  R.  Co.  r.  Southern  Assoc,  8  Phila.  107 ;  MeAlister  v.  Marberry,  4 
Humph.  426;  Fairchild  v.  North  Eastern  Assoc,  51  Vt.  613;  Jones  v.  Thomas, 
21  Gratt.  96,  101  (now  changed  bv  statute)  ;  McCarteney  v.  Wyoming  Nat. 
Bank,  1  Wvo.  382. 

«i  Central  Trust  Co.  v.  Berwind-White  Co.,  95  Fed.  Rep.  391;  Starbird  v. 
Cranston,  24  Col.  20;  Webster  v.  Fleming,  178  111.  140;  Harts  v.  Emery,  184 
111.  560;  Robinson  v.  Holmes,  75  111.  App.  203;  Am.  Splane  Co.  v.  Barber.  91 
111.  App.  359;  Garvin  v.  Moblev,  1  Bush,  48;  Jefferson  v.  Aseh,  53  Minn.  446; 
Rogers  r.  Gosnell,  51  Mo.  466;  58  Mo.  589;  Van  Schaick  v.  Railroad,  38 
N.  Y.  346;  Coster  n.  Albanv,  43  N.  Y.  399:  Riordan  v.  First  Church.  26 
N.  Y.  Supp.  38:  Emmitt  v.  Brophy,  42  Ohio  St.  82;  Hughes  r.  Oregon  Co., 
11   Oreg.  437;    McDowell  v.  Laev,  35»  Wis.  171;   Bassett  v.  Hughes,  43   Wis. 


PERSONS    INCIDENTALLY    BENEFITED.  277 

Person  incidentally  benefited.  It  sometimes  happens  that  a  person  who 
is  neither  the  promisee  of  a  contract  nor  the  party  to  whom  perform- 
ance is  to  be  rendered  will  derive  a  benefit  from  its  performance.  A 
typical  case  is  where  A.  promises  B.  to"  pay  him  money  for  his  ex- 
penses. A  creditor  of  B.  is  not  generally  allowed  to  sue  A.62  It  is 
obvious  that  such  a  creditor's  right  can  properly  be  only  a  derivative 
one.  As  the  obligation  is  to  pay  money  to  the  debtor,  there  seems  no 
reason  why  garnishment  proceedings  are  not  appropriate. 

Further  illustrations.  A  different  case  arises  where  the  promise  is  to 
indemnify  against  damages.  Here  the  promisor's  liability  does  not 
arise  until  the  promisee  has  suffered  loss  or  expense.  Until  then  the 
promisee  has  no  right  of  action,  and  consequently  one  claiming  dam-, 
ages  can  assert  no  derivative  right  against  the  promisor,  much  less  a 
direct  right.63  Nor  can  the  promisee  sue  for  the  benefit  of  persons 
claiming  damages.64 

A  third  person's  benefit  under  a  contract  may  be  still  more  inci- 
dental. In  a  recent  case  the  failure  of  the  grantee  of  land  to  keep 
his  promise  to  the  grantor  to  pay  a  mortgage,  resulted  in  a  loss  to  the 
plaintiff  of  an  interest  in  the  land  when  the  mortgagee  foreclosed  the 
mortgage.  The  New  York  court  rightly  refused  relief.65  The  con- 
tract was  not  made  even  partially  for  the  plaintiff's  benefit,  and  as 
the  promisee  was  under  no  obligation  to  the  plaintiff  it  is  not  possible 
to  work  out  an  indirect  right.66 

A  Louisiana  case67  furnishes  another  illustration.  A  number  of 
hatters  agreed  to  close  their  shops  on  Sundays,  and  for  any  breach  it 

319;  Houghton  v.  Milburn,  54  Wis.  554;  Stites  v.  Thompson,  98  Wis.  329, 
331.  A  third  person  was  allowed  to  enforce  a,  promise  under  seal  also  in  the 
following  cases,  but  the  point  was  not  discussed.  South  Side  Assoc,  v.  Cutler 
Co.,  64  Ind.  560;  Anthony  v.  Herman,  14  Kan.  494;  Brenner  v.  Luth,  28 
Kan.  581.  See  also  Va.  Code,  §  2415;  Newberry  Land  Co.  v.  Newberry,  95 
Va.  111. 

62Cragin  v.  Lovell,  109  U.  S.  194,  199;  Thomas  Mfg.  Co.  v.  Prather,  65 
Ark.  27;  Burton  v.  Larkin,  36  Kan.  246.  See  also  Jackson  Iron  Co.  v. 
Negaunee  Concentrating  Co.,  65  Fed.  Rep.  298;  Hill  v.  Omaha,  etc.,  R.  E.  Co., 
82  Mo.  App.  188.  But  see  contra,  Bothwell  v.  Skinker,  84  Mo.  App.  169; 
Houghton  v.  Milburn,  54  Wis.  554.  And  where  an  insurance  company  had 
reinsured  its  risks,  a  policy-holder  was  allowed  to  sue  the  reinsuring  com- 
pany directly  in  Glen  v.  Hope  Mut.  Life  Ins.  Co.,  56  N.  Y.  379;  Fischer  v. 
Hope  Mut.  Life  Ins.  Co.,  69  N.  Y.  161;  Johannes  v.  Phenix  Ins.  Co.,  66  Wis.  50. 

63  Hill  v.  Omaha,  etc.,  R.  R.  Co.,  82  Mo.  App.  188;  French  v.  Vix,  143  N.  Y. 
90;  Embler  v.  Hartford  Ins.  Co.,  158  N.  Y.  431;  Mansfield  v.  Mayor  of  New 
York,  165  N.  Y.  208. 

w  New  Haven  v.  Railroad,  62  Conn.  253. 

&5Durnherr  v.  Ran,  135  N.  Y.  219.  See  also  Pearson  v.  Bailey,  62  N.  E. 
Rep.  265   (Mass.). 

66  See  also  Constable  v.  National  Steamship  Co.,  154  U.  S.  51;  Hennessy 
v.  Bond,  77  Fed.  Rep.  403,  405. 

67  New  Orleans  St.  Joseph's  Assoc,  v.  Magnier,  16  La.  Ann.  338. 


278  PERSONS  AFFECTED  BY  CONTRACT. 

was  agreed  that  the  offender  should  pay  $100  to  a  specified  charitable 
society.  It  was  held  that  the  society  could  not  recover.  The  object 
of  the  contract  was  not  to  benefit  the  plaintiff,  but  to  enforce  per- 
formance of  a  promise  by  the  imposition  of  a  penalty. 

Assignment  of  Contracts. 

Rule  4.  Transfer  of  rights  under  contract.  We  now  come  to  the  fourth 
rule,  which  we  have  expressed  thus: — 

Persons  other  than  the  creditor  may  become  entitled  by  representa- 
tion or  assignment  to  stand  in  the  creditor  s  place  and  to  exercise  his 
rights  under  the  contract. 

We  need  say  nothing  here  about  the  right  of  personal  representa- 
tives to  enforce  the  contracts  of  the  person  they  represent,  except 
that  it  has  been  recognized  from  the  earliest  period  of  the  history  of 
our  present  system  of  law  (h). 

Right  to  sue  on  contract  not  assignable  at  common  law.  With  regard 
to  assignment,  the  benefit  of  a  contract  cannot  be  assigned  (except 
by  the  Crown)  at  common  law  so  as  to  enable  the  assignee  to  sue  in 
his  own  name  (i).68  The  origin  of  the  rule  was  attributed  by  Coke 
to  the  "  wisdom  and  policy  of  the  founders  of  our  law  "  in  discourag- 
ing maintenance  and  litigation  (fc)  :  but  it  is  better  explained  as  a 
logical  consequence  of  the  archaic  view  of  a  contract  as  creating  a 
strictly  personal  obligation  between  the  creditor  and  the  debtor  (I). 
Anyhow  it  has  been  long  established  that  the  proper  course  at  com- 
218]  mon  *law  is  for  the  assignee  to  sue  in  the  name  of  the  as- 
signor.69 It  appears  from  the  Year  Books  that  attempts  were  some- 
times made  to  object  to  actions  of  this  kind  on  the  ground  of 
maintenance,  but  without  success.  That  same  rule  is  stated  by  Gaius 
as  prevailing  in  the  Eoman  law  (m). 

(h)    Subject  to  some  technical  ex-  (Z)   Spence,  Eq.  Jurisd.  of  Chy.  2. 

ceptions     which     have     now     disap-  850.     An  examination  of  the  earlier 

peared:     see    notes    to    Wheatley    v.  authorities    has   been   found   to   con- 

Lane  (1667)   1  Wms.  Saund.  240  sqq.  firm  this  view.     The  rule  is  assumed 

and  for  early  instances  of  actions  of  as    unquestionable,    and   there   is   no 

debt  brought  by  executors,  Y.  B.  20  trace  of  Coke's   reason   for  it.     The 

&  21  Ed.  I.  pp.  304,  374.  objection  of  maintenance  was  set  up, 

(i)   Termes  de  la  Ley,  tit.  Chose  in  not  against  the  assignee  suing  in  his 

Action.  own     name,    which    was     never    at- 

(fc)    Lampet's  cane    (1613)    10  Co.  tempted  so  far  as  we  can  find,  but 

Rep.    48    a.      For   exposition    of   the  against  his  suing  in  the-  name  of  the 

rule  in  detail,  see  Dicey  on  Parties,  assignor:  see  Note  F  in  Appendix. 

115.  (m)   Gai.  2.  38,  39.     Quod  mihi  ab 

68  "  The  United  States  may  sue  at  law  in  their  name  on  a  claim  assigned 
to  them."     United  States  v.  Buford,  3  Pet.   12. 

69  Glenn  v.  Marbury,  145  U.  S.  499. 


RULES    OF   EQUITY.  279 

In  equity  assignee  may  sue,  if  necessary.  In  equity  the  right  of  the  as- 
signee was  pretty  soon  recognized  and  protected,  that  is,  if  the 
assignor  refused  to  empower  the  assignee  to  sue  in  his  name  at  law.70 
Where  the  assignee  had  an  easy  remedy  by  suing  in  the  name  of  the 
assignor,  the  Court  of  Chancery  would  not  interfere  (n). 

Legal  right  of  assignee  under  Judicature  Act,  1873.  The  Supreme  Court 
of  Judicature  Act,  1873  (s.  25,  sub-s.  6),  creates  a  legal  right  to  sue 
in  the  assignee's  own  name,  but  confined  to  cases  where  the  assignment 
is  absolute  (o),  and  by  writing  under  the  hand  of  the  assignor,  and 
express  notice  in  writing  has  been  given  to  the  debtor. 

In  equity  more  extensive:'  how  far  governed  by  Statute  of  Frauds.  There 
may  still  be  more  extensive  equitable  rights  of  this  kind.     By  the 

aliquo     debetur,     id     si     velim    tibi  E.  Africa.  By.  Co.  (1889)  23  Q.  B.  D. 

deberi,  nullo  eorum  modo  quibus  res  239,   58   L.   J.   Q.  B.  459.     An  abso- 

corporales  ad  alium  transferuntur,  id  lute  assignment  may  be  subject  to  a 

efficere    possum:     sed    opus    est,    ut  trust    in   respect   of   the   moneys    re- 

iubente  me  tu  ab  eo  stipuleris:   quae  covered:    Comfort  v.  Betts    [1891]    1 

res   efflcit   ut  a   me   liberetur  et   in-  Q.  B.  737,  60  L.  J.  Q.  B.  656,  C.  A. 

cipiat     tibit      teneTi      quae     dicitur  Whether   the    sub-section    applies    to 

novatio  '  obligationis.      Sine  hac  vero  an  assignment   of  part  of   an   entire 

novatione    non    poteris    tuo    nomine  debt,   quwre:   Durham  Bros.   v.   Roo- 

agere,    sed    debes    ex    persona    mea  ertson   [1898]    1   Q.   B.   765,   774,  67 

quasi   cognitor   aut  procurator  meus  L.  J.  Q.  B.  484,  C.  A.     At  all  events 

experiri.     In   later   times   the  trans-  an     undefined     part     will     not     do: 

feree  of  a   debt  was   enabled  to  sue  Jones  v.  Humphreys   [1902]    1  K.  B. 

by    utilis    actio    in    his    own   name.  10,  71  L.  J.  K.  B.  23.     See  xurther  as 

This  seems  to  have  been  first  intro-  to  what,  amounts  to  an  absolute  as- 

duced  only  for  the  benefit  of  the  pur-  signment,    Mercantile   Bank    of   Lon- 

chaser   of    an    inheritance:    D.    2.    14  don  v.  Evans  [1899]  2  Q.  B.  613,  68 

de  pactis,  16  pr.,  C.  4.  39.  de  hered.  L.  J.  Q.  B.  921,  C.  A.;   Marchant  v. 

vel  act.  vend.   1,  2,  4 — 6;   and  after-  Morton,  Down  &  Co.   [1901]   2  K.  B. 

wards  extended  to  all  cases:    C.  eod.  829,  70  L.  J.  K.  B.  820.     Tne  term 

tit.  7,  9.     See  too  C.  4.  10.  de  obi.  et  "  legal   chose   in  action  "  in  a  corre- 

act.   1,  2,  C.  4.   15.  quando  fiseus,  5,  spending  Colonial  Act  has  been  held 

Arndts,     Lehrbuch     der     Pandekten,  to  include  a  cause  of  action  for  neg- 

§  254.  ligence:    King  v.    Victoria  Insurance 

(n)   Hammond        v.         Messenger  Co.  [1896]  A.  C.  250,  65  L.  J.  P.  C. 

(1838)    9   Sim.   327,   Spence,   2.   854,  38;  and  see  per  Farwell,  J.,  Manehes- 

Harv.  Law  Rev.  i.  6 — 7.  ter  Brewery  Co.  v.  Coombs  [1901]   2 

(o)    Tancred  v.   Delagoa  Bay  and  Ch.  608,  619. 

to  "A  court  of  equity  will  not  entertain  a  bill  by  the  assignee  of  a  strictly 
legal  right,  merely  upon  the  ground  that  he  cannot  bring  an  action  at  law  in 
his  own  name,  nor  unless  it  appears  that  the  assignor  prohibits  and  prevents 
Buch  an  action  from  being  brought  in  his  name,  or  that  an  action  so  brought 
would  not  afford  the  assignee  an  adequate  remedy."  Walker  r.  Brpoks,  125 
Mass.  241;  Hayward  v.  Andrews,  106  U.  S.  672;  N.  Y.  Guaranty,  etc.,  Co.  v. 
Memphis  Water  Co.,  107  U.  S.  205;  Glenn  v.  Marbury,  145  U.  S.  499;  Adair 
v.  Winchester,  7  G.  &  J.  114;  Carter  v.  Insurance  Co.,  1  Johns.  Ch.  463;  Bank 
v.  Mumford,  2  Barb.  Ch.  596;  Smiley  v.  Bell,  Mart  &  Yerg.  378;  Moseley  v. 
Bush,  4  Rand.  392. 


280  PERSONS    AFFECTED   BY    CONTRACT. 

Statute  of  Frauds  (29  Car.  2,  c.  3),  s.  9,  "all  grants  and  assign- 
219]  ments  of  any  trust  or  confidence"  *must  be  in  -writing  signed 
by  the  assignor,  and  by  sect.  7,  equitable  interests  in  land  must  be 
created  by  writing.  Sect.  9  does  not  require  writing  for  the  creation 
in  the  first  instance  by  the  legal  owner  or  creditor  of  an  equitable 
interest  in  personal  property  or  a  chose  in  action:  and  it  may  be 
argued  perhaps  that  its  operation  is  altogether  confined  to  interests 
in  land  by  the  context  in  which  it  occurs.  The  writer  is  not  aware 
of  any  decision  upon  it  (p). 

It  seems  that  to  constitute  an  equitable  assignment  there  must 
be  at  least  an  order  to  pay  out  of  a  specified  fund  (q). 

As  for  the  notice  to  the  debtor,  the  rule  of  equity  is  that  it  must 
be  express  but  need  not  be  in  writing  (r).71 

There  remain,  therefore,  a  great  number  of  cases  where  the  right 
is  purely  equitable,  although  the  enlarged  jurisdiction  of  every 
branch  of  the  Supreme  Court  makes  the  distinction  less  material  than 
formerly. 

Partial  statutory  exceptions.  Several  partial  exceptions  to  the  com- 
mon rule  have  been  made  at  different  times  by  modern  statutes,  on 
which,  however,  it  seems  unnecessary  to  dwell  (s). 

Limitation  of  assignee's  rights.  In  ordinary  cases  rights  under  a  con- 
220]  tract  derived  by  Assignment  from  the  orignial  creditor  are 
subject,  as  already  stated,  to  the  following  limitations : — 

1st.  Title  by  assignment  is  not  complete   as  against  the   debtor 

(p)   See  1  Sanders  on  Uses,  5th  ed.  Policies  of  marine  insurance:  31  & 

343.  32  Vict.  c.  86. 

{g)  Percival  v.  Dunn  (1885)  29  Things  in  action  of  companies 
Ch.  Div.  128,  54  L.  J.  Ch.  572.  An  (Companies  Act,  1862,  s.  157)  and 
;  1  venturous  attempt  to  extend  the  bankrupts  ( Bankruptcy  Act,  1883,  es. 
conception  of  equitable  assignment  56,  57,  and  see  definition  of  "  prop- 
may  be  seen  in  Western  Wagon  and  erty,"  s.  168)  a  igned  in  pursuance 
Property  Co.  v.  West  [1892]  1  Ch.  of  those  Acts  respectively.  As  to  the 
271,  61  L.  J.  Ch.  244.  effect  of  registration  under  the  pres- 

(r)   Re  Tichener    (1865)    35   Beav.  ent  Acts  of  previously  existing  com- 

317.  panies,  &c,  in  transferring  the  right 

(s)    The  more  important  instances  to  sue  on  the  contracts  made  by  the 

are  these: —  company  or  its  officers  in  its  former 

East  India  Bonds,  51  Geo.  3,  c.  64,  state,  see  the  Companies  Act,  1862,  s. 

s.  4,  which  makes  them  negotiable.  193. 

Mortgage     debentures     issued     by  Local    authorities     (including    any 

land  companies  under  the  Mortgage  authority    having    power    to    levy    a 

Debenture   Act,   1865,  28  &  29  Vict.  rate)    may   issue  transferable   deben- 

c.  78,  amended  by  33  &  34  Vict.  c.  20.  tu_s  and  debenture  stock  under  the 

Policies  of  life  assurance:  30  &  31  Local    Loans    Acts,    1875,    38    &    39 

Vict.  c.  144.  Vict.   c.  83. 

71  Skobis  v.  Ferge,  102  Wis.  122. 


ASSIGNMENT  :     NOTICE  TO  DEBTOE.  281 

without  notice  to  the  debtor,  and  a  debtor  who  performs  his  contract 
to  the  original  creditor  without  notice  of  any  assignment  by  the  cred- 
itor is  thereby  discharged. 

2nd.  The  debtor  is  entitled  as  against  the  representatives,  and, 
unless  a  contrary  intention  appears  by  the  orignal  contract,  as  against 
the  assignees  of  the  creditor,  to  the  benefit  of  any  defence  which  he 
might  have  had  against  the  creditor  himself. 

1.  Rules  of  equitable  assignment  in  general  —  Notice  to  debtor.  As  to 
notice  to  the  debtor.  Notice  is  not  necessary  to  complete  the  assignee's 
equitable  right  as  against  the  original  creditor  himself,  or  as  against 
his  representatives,  including  assignees  in  bankruptcy  (t)  :72  but 
the  claims  of  competing  assignees  or  incumbrancers  rank  as  between 
themselves  not  according  to  the  order  in  date  of  the  assignments, 
but  according  to  the  dates  at  which  they  have  respectively  given 
notice  to  the  debtor.  This  was  decided  by  the  cases  of  Dearie  v.  Hall 
and  Loveridge  v.  Cooper  (u),  the  principle  of  which  was  soon  after- 
wards affirmed  by  the  House  of  Lords  (a;).7S    The  same  rule  prevails 

(t)  Burn  v.  Carvalho  (1839)  4  M.  self,  but  from  his  legal  personal  rep- 
is  Cr.  690,  4S  R.  R.  213.  resentative,    may    equally    gain    pri- 

(«)    (1823-7)   3  Russ.  1,  38,  48,  27  ority   by   notice:    Freshfield's    Trusts 

R.  R.  1.  (1879)   11  Ch.  Div.  198.    The  rule  is 

(x)    Foster  v.   Cockerell    (1835)    3  criticized,  though  allowed  to  be  set- 

Cl.   &  F.  456,   39   R.   R.   24.     It  has  tied    law,     in     Ward    V.     Duncombe 

only  lately  been  decided  that  a  sec-  [1893]  A.  C.  369,  per  Lord  Macnagh- 

ond   assignee  who   takes   his   assign-  ten  at  pp.  391-3,  62  L.  J.  Ch.  881. 
ment  not  from  the  beneficiary  him- 

72  Jackson  v.  Hamm,  14  Col.  58 ;  Bishop  v.  Halcomb,  10  Conn.  444 ;  Wood  t\ 
Partridge,  11  Mass.  488,  491;  Thayer  r.  Daniels,  113  Mass.  129;  Conway  v. 
Cutting,  51  N.  H.  407,  409 ;  Muir  v.  Schenk,  3  Hill,  228.  And  pee  cases  cited 
infra,  n.  79. 

13  Re  Gillespie,  15  Fed.  Rep.  734;  Methven  r,  S.  I.  Light  Co.,  66  Fed.  Rep. 
113;  Graham  Paper  Co.  v.  Pembroke,  124  Cal.  117;  Bishop  v.  Holcomb,  10 
Conn.  444,  446;  Enochs-Havis,  etc.,  Co.  v.  Neweomb,  79  Miss.  462;  Murdoch  v. 
Finnev,  21  Mo.  138;  Copeland  v.  Manton,  22  Ohio  St.  398,  401;  Fraley's 
Appeal,  76  Pa.  42;  Pratt's  Appeal,  79  Pa.  378;  Phillips's  Est.,  205  Pa.  515; 
Clodfelter  v.  Cox,  I  Sneed,  330 ;  Ward  i\  Morrison,  25  Vt.  593. 

In  many  States  of  this  country,  however,  the  English  rule  does  not  prevail. 
Sutherland  f.  Reeve,  151  111.  384;  White  v.  Wiley,  14  Ind.  496;  Summers  v. 
Hutson,  48  Ind.  228;  Thayer  v.  Daniels,  113  Mass.  129;  Burton  v.  Gage,  85 
Minn.  355;  Kennedy  v.  Parke,  17  N.  J.  Eq.  415;  Kamena  v.  Huelbig,  23- 
N.  J.  Eq.  78;  Emley  v.  Perrine,  58  N.  J.  L.  472;  Muir  v.  Schenck,  3  Hill,  228; 
Bush  v.  Lathrop,  22  N.  Y.  535,  546;  Greentree  v.  Rosenstock,  61  N.  Y.  583, 
593 ;  Williams  v.  Ingersoll,  89  N.  Y.  508,  523 ;  Fairbanks  v.  Sargent,  104  N.  Y. 
108,  118;  Fortunato  V.  Patten,  147  N.  Y.  277;  Lindsay  v.  Wilson,  2  Dev.  & 
Bat.  Eq.  85;  Meier  v.  Hess,  23  Oreg.  599;  Clarke  v.  Hogeman,  13  W.  Va.  718; 
Tingle  l\  Fisher,  20  W.  Va.  497.  See  further,  Roberts  r.  Insurance  Co.,  120 
U.  S.  511;  Bank  v.  Schuler,  120  U.  S.  511. 

"  Whatever  view  may  be  entertained  as  to  the  English  doctrine  which 
prefers  the  assignee  who  first  gives  notice,  the  second  assignee  is  in  several  con- 
tingencies clearly  entitled  to  supplant  the  first  assignee,  e.  g.,  (1)  if  acting 
in  good  faith  he  obtains  payment  of  the  claim  assigned;  Judson  v.  Corcoran, 


282 


PERSONS    AFFECTED    EY    CONTRACT. 


in  the  modern  civil  law  (y),u  and  has  been  adopted  from  it  in  the 
Scottish  law  (z)  ;  and  the  true  reason  of  it,  though  not  made  very 
prominent  in  the  decisions  which  establish  the  rule  in  England, 
is  the  protection  of  the  debtor.  He  has  a  right  to  look  to  the  person 
with  whom  he  made  his  contract  to  accept  performance  of  it,  and  to 
221  ]  give  him  a  ^discharge,  unless  and  until  he  is  distinctly  in- 
formed that  he  is  to  look  to  some  other  person.  According  to  the 
original  strict  conception  of  contract  ("a  ne  considerer  que  la 
subtilite  du  droit"  as  Pothier  (a)  expressed  it),  his  creditor  or  his 
creditor's  assignee  cannot  even  require  him  to  do  this,  any  more  than 
in  the  converse  but  substantially  different  case  a  debtor  can  require 
his  creditor  to  accept  another  person's  liability,  and  his  assent  must 
be  expressed  by  a  novation  (&).  Such  was  in  fact  the  old  Eoman 
law,  as  is  shown  by  the  passage  already  cited  from  Gaius.  By  the 
modern  practice  the  novation  is  dispensed  with,  and  the  debtor  be- 
comes bound  to  the  assignee  of  whom  he  has  notice.  But  he  cannot 
be  bound  by  any  other  assignment,  though  prior  in  time,  of  which 
he  knows  nothing.  He  is  free  if  he  has  fulfilled  his  obligation  to 
the  original  creditor  without  notice  of  any  assignment;75  he  is  equally 

(y)    See  Pothier,  Contrat  de  Vente,  (a)   Contrat  de  Vente.   §   551. 

§§  560,  554  sqq.  (6)    See  p.  *204,  above. 

(«)  Erskine  Inst.  Bk.  3,  tit.  5. 

17  How.  612;  Bridge  v.  Connecticut  Ins.  Co.,  152  Mass.  343;  Bentley  v.  Root, 
5  Paige,  632,  640;  or  (2)  if  he  reduces  his  claim  to  a  judgment  in  his  own 
name:  Judson  v.  Corcoran,  17  How.  612;  Mercantile  Co.  v.  Corcoran,  1  Gray, 
7.5 ;  or  ( 3 )  if  he  effects  a  novation  with  the  obligor,  whereby  the  obligation  in 
favor  of  the  assignor  is  superseded  by  a  new  one  running  to  himself ;  New  York 
Co.  r.  Schuyler,  34  N.  Y.  30,  80;  Strange  r.  Houston  Co.,  53  Tex.  162;  or  (4) 
if  he  obtains  the  document  containing  the  obligation  when  the  latter  is  in  the 
form  of  a  specialty;  Re  Gillespie,  15  Fed.  Rep.  734;  Bridge  v.  Connecticut  Ins. 
Co.,  152  Mass.  343;  Fisher  v.  Knox,  13  Pa.  622.  In  all  these  cases  having 
obtained  a  legal  right  in  good  faith  and  for  value,  the  prior  assignee  cannot 
properly  deprive  him  of  this  legal  right."  Ames  Cas.  Trusts  (2d  ed.),  328. 
And  see  further  ibid.,  326-328. 

li  Not  in  Germany.     See  4  Harv.  L.  Rev.  309,  n.  2. 

75  Bull  v.  Sink,  (Kan.  App.)  57  Pac.  Rep.  853;  Clark  v.  Boyd,  6  T.  B. 
Mon.  293;  Leahi  v.  Dugdale's  Adnfr,  34  Mo.  99;  Reed  v.  Marble,  10  Paige, 
409;  Trustees  v.  Wheeler,  61  N.  Y.  88,  120;  Heermans  v.  Ellsworth,  64 
N.  Y.  159;  "Van  Keuren  v.  Corkins,  66  N.  Y.  77;  Brindle  v.  Mcllvaine, 
9  S.  &  R.  74;  Gaullagher  v.  Caldwell,  22  Pa.  300;  Skobis  i;.  Ferge,  102 
Wis.  122. 

On  the  other  hand,  no  discharge  from  the  original  creditor  after  the 
debtor  has  notice  of  the  assignment  is  of  any  avail.  Welch  v.  Mandeville, 
1  Wheat.  233 ;  Mandeville  v.  Welch,  5  Wheat.  277,  283 ;  Fassett  v.  Mulock,  5 
Col.  466;  Chapman  r.  Shattuck,  8  111.  49,  52;  Marr  v.  Hanna.  7  J.  J.  Marsh. 
642;  Haokett  v.  Martin,  8  Me.  77;  Matthews  r.  Houghton,  10  Me.  420;  East- 
man p.  Wright,  6  Pick.  316;  Cutler  r.  Haven,  8  Pick.  490;  St.  Johns  v.  Charles, 
105  Mass.  262;  Anderson  v.  Miller,  15  Miss.  586;  Lipp  v.  South  Omaha  Co.. 
24  Neb.  692;  Duneklee  r.  Greenfield  Co.,  23  N.  H.  245;  Sloan  v.  Sommers,  2 
Green    (N.    J.)    509;    Gaullagher   v.   Caldwell,   22   Pa.   300,   302;    Strong  v. 


assignment:    notice  to  debtor.  283 

free  if  he  fulfils  it  to  the  assignee  of  whose  right  he  is  first  informed, 
not  knowing  either  of  any  prior  assignment  by  the  original  creditor 
or  of  any  subsequent  assignment  by  the  new  creditor  (c).  It  is 
enough  for  the  completion  of  the  assignee's  title  "  if  notice  be  given 
to  the  person  by  whom  payment  of  the  assigned  debt  is  to  be  made, 
whether  that  person  is  himself  liable  or  is  merely  charged  with  the 
duty  of  making  the  payment"  (d),  e.  g.,  as  an  agent  entrusted 
with  a  particular  fund.  Notice  not  given  by  the  assignee  may  be 
sufficient,  if  shown  to  be  such  as  a  reasonable  man  would  act  upon(e).78 

Doctrine  of  notice  does  not  apply  to  interests  in  land;  but  does  to  all  other 
equitable  interests.  All  this  doctrine  of  notice  has  no  application  to 
interests  in  land  (/)  :  but,  subject  to  that  *exception,  it  applies  [222 
to  rights  created  by  trust  as  well  as  to  those  created  by  contract; 
the  beneficial  interest  being  treated  for  this  purpose  exactly  as  if  it 
were  a  debt  due  from  the  trustee.  In  the  case  of  trusts  a  difficulty 
may  arise  from  a  change  of  trustees;  for  it  may  happen  that  a  fund 
is  transferred  to  a  new  set  of  trustees  without  any  notice  of  an  assign- 
ment which  has  been  duly  notified  to  their  predecessors,  and  that 
notice  is  given  to  the  new  trustees  of  some  other  assignment.  It 
is  still  unsettled  which  of  the  assignees  is  entitled  to  priority  in 
such  a  case :  but  it  has  been  decided  that  the  new  trustees  cannot  be 
made  personally  liable  for  having  acted  on  the  second  assignment  (<7).77 

(c)   See  per  Willes  J.,  L.  R.  5C.  (f)   Although     the     exception     is 

P.    at    p.    594.      Per    Knight    Bruce  fully  established  its  reasonableness  is 

L.  J.  Stocks  v.  Dohson    (1853)    4  D.  doubtful.      Its    effect    is    that    equi- 

M.  &  G.  11,  17,  22  L.  J.  Ch.  884.    No-  table  interests  in  land  stand  on  a  dif- 

tice    after    a    negotiable    instrument  ferent  footing  from  personal  rights: 

has  been  given  by  the  debtor  is  too  see  this  relied  on  as  the  ground  of 

late  even  if   the   instrument  is   still  the  exception,  'Jones  v.  Jones    (1837- 

held  by  the  original  creditor:  Bence  38)    8  Sim.  633,  42  R.  R.  249.     But 

v.  Shearman  [1898]_  2  Ch.  582,  67  L.  on  the  other  hand  their  liability  to 

J.  Ch.  513,  C.  A.  be  defeated  by  a  purchase  of  the  legal 

{d)   Per  Lord  Selborne  C.  Addison  estate     for     value     without     notice 

v.  Cox  (1872)   L.  R.  8  Ch.  76,  79,  42  shows   that   they   fall    short    of   real 

L.  J.   Ch.  291.  ownership. 

(e)   Lloyd  v.  Banks   (1868)   L.  R.  (g)   Phipps    v.    Lovegrove    (1873) 

3  Ch.  488.  L.  R.  16  Eq.  80,  42  L.  J.  Ch.  892 ;  see 

Strong,  2  Aikens,  373.  See  also  Brown  v.  Hartford  Ins.  Co.,  4  Fed.  Cas.  379; 
Wagner  v.  National  Ins.  Co.,  90  Fed.  Rep.  395;  Chisolm  v.  Newton,  1  Ala.  371; 
Cunningham  v.  Carpenter,  10  Ala.  109,  112;  Reed  v.  Nevins,  38  Me.  193;  Rock- 
wood  v.  Brown,  1  Gray,  261. 

76  See  Anderson  v.  Van  Alen,  12  Johns.  343 ;  Guthrie  v.  Bashline,  25  Pa.  80  ; 
Tritt's  Adm'r  v.  Colwell's  Adm'r,  31  Pa.  228;  Barron  v.  Porter,  44  Vt.  587. 
Notice  given  on  Sunday  is  good.  Crozier  v.  Shants,  43  Vt.  478.  Notice  given 
to  one  of  two  trustees  is  sufficient.     Pardee  v.  Piatt,  20  Conn.  395. 

77  Where  a  trustee  (who  is  also  one  of  the  beneficiaries)  himself  makes 
successive  assignments  of  his  interest,  his  knowledge  of  the  first  assignment 
is  not  notice  to  his  co-trustees.     Lloyd's  Bank  v.  Pearson,  [1901]  1  Ch.  865. 


284  PERSONS    AFFECTED    BY    CONTRACT. 

The  rules  as  to  notice  apply  to  dealings  with  future  or  contingent 
as  well  as  with  present  and  liquidated  claims.  "  An  assurance  office 
might  lend  money  upon  a  policy  of  insurance  to  a  person  who  had 
insured  his  life,  notwithstanding  any  previous  assignment  by  him 
of  the  policy  of  which  no  notice  had  been  given  to  them  "  (h). 

•  2.  Assignee  takes  subject  to  equities:  double  meaning  of  the  rule.  As  to 
the  debtor's  rights  against  assignees.  The  rule  laid  down  in  the 
second  explanation  is  often  expressed  in  the  maxim  "  The  assignee 
of  an  equity  is  bound  by  all  the  equities  affecting  it."  This,  however, 
includes  another  rule  founded  on  a  distinct  principle,  which  is  that 
no  transaction  purporting  to  give  a  beneficial  interest  apart  from 
223]  legal  ownership  (i)  can  confer  on  the  person  who  takes  or  *is 
intended  to  take  such  an  interest  any  better  right  than  belonged  to 
the  person  professing  to  give  it  him.    If  A.  contracts  with  B.  to  give 

B.  something  which  he  has  already  contracted  to  give  C,  then  C.'s 
claim  to  have  the  thing  must  prevail  over  B.'s,  whether  B.  knew  of 
the  prior  contract  with  C.  or  not  (k).  And  if  B.  makes  over  his  right 
to  D.,  D.  will  have  no  better  right  than  B.  had  (Z).78    And  this  ap- 

L.  R.  16  Eq.  p.  90  as  to  the  precau-  Maxfield  v.  Burton  (1873)  L.  R.  17 
tions  to  be  taken  by  an  assignee  of  Eq.  15,  19,  43  L.  J.  Ch.  46,  go  even 
an  equitable  interest  who  wishes  to  farther;  but  it  seems  at  least  doubt- 
be  perfectly  safe.  The  death  of  one  ful  whether  they  can  be  supported, 
of  two  or  more  trustees,  being  the  (k)  This  is  of  course  consistent 
only  one  who  has  notice  of  an  in-  with  B.  having  his  remedy  in  dam- 
cumbrance,  does  not  deprive  that  in-  ages.  Cp.  p.  *31,  above, 
cumbrance  of  the  priority  it  has  (I)  See  Pinkett  v.  Wright  (1842) 
gained:  Ward  v.  Duncombe  [1893]  A.  2    Ha.     120,    afi'd.    nom.    Murray    v. 

C.  369,  62  L.  J.  Ch.  881.  Pinkett  (1846)  12  CI.  &  F.  764; 
(h)  L.  R.  16  Eq.  at  p.  88.  Ford  v.  White  (1852)  16  Beav.  120; 
(i)    Certain    dicta    in    Sharpies    v.  Clack   v.    Holland    (1854)     19    Beav. 

Adams  (1863)  32  Beav.  213,  216,  and       262. 

78  The  American  law  on  this  point  is  in  great  conflict.  It  is  universally 
admitted  that  the  assignee  takes  subject  to  all  defenses  the  debtor  may  have, 
against  the  assignor  prior  to  notice  of  the  assignment.  McCarthy  v.  Mt. 
Teearte  Co.,  110  Cal.  689;  Parmly  v.  Buckley,  103  111.  115;  Barker  v.  Barth, 
192  111.  460;  Brown  v.  Leavitt.  26  Me.  251;  Weinwick  v.  Bender,  33  Mo.  80; 
Marsh  v.  Garney,  69  N.  H.  236 ;  Bury  v.  Hartman,  4  Serg.  &  R.  177 ;  Frantz 
r.  Brown,  17  Serg.  &  R.  287;  Pellman  v.  Hart,  1  Pa.  263,  266;  Gaullagher 
v.  Caldwell,  22  Pa.  300;  Commonwealth  v.  Sides,  176  Pa.  616;  Stebbins  v. 
Bruce,  80  Va.  389;  Stebbins  v.  Union  Pac.  R.  R.  Co.,  2  Wyo.  71. 

It  is  also  settled  that  defenses  acquired  by  the  .debtor  against  the  assignor 
after  noHce  of  assignment  are  invalid.  Leigh  r.  Leigh.  1  B.  &  P.  177:  State 
v.  Jenning,  10  Ark.  428;  Kitzinger  r.  Beck,  4  Col.  App.  °06 :  Chapman  r. 
Shattuck.  8  111.  49;  Carr  v.  Waugh,  28  Til.  418;  Chicago  Title  Co.  v.  Smith, 
158*111.  417;  Daggett  r.  Flanagan.  78  Ind.  253:  McFn.lden  r.  Wilson.  96  Ind. 
253;  Milliken  r.  Coring,  37  Me.  408;  Jones  r.  Witter.  13  Mass.  304;  Schilling 
v.  Mullen,  55  Minn.  122;  Leahy  v.  Dugdale,  41  Mo.  517;  Cameron  r.  Little,  13 
N.  H.  23 ;  Andrews  v.  Becker,  1  Johns.  426 ;  Littlefleld  v.  Story.  3  Johns.  426 ; 


ASSIGNMENT  SUBJECT  TO  EQUITIES.  285 

plies  not  only  to  absolute  but  to  partial  interests  (such  as  equitable 
charges  on  property)  to  the  extent  to  which  they  may  affect  the 
property  dealt  with.  Again,  by  a  slightly  different  application  of 
the  same  principle,  a  creditor  of  A.  who  becomes  entitled  by  operation 
of  law  to  appropriate  for  the  satisfaction  of  his  debt  any  beneficial 
interest  of  A.'s  (whether  an  equitable  interest  in  property  or  a  right 
of  action)  can  claim  nothing  more  than  such  interest  as  A.  actually 
had;  and  he  can  gain  no  priority  by  notice  to  A.'s  trustee  or  debtor 
even  in  cases  where  he  might  have  gained  it  if  A.  had  made  an  express 
and  unqualified  assignment  to  him  (m).79  But  we  are  not  concerned 
here  with  the  development  of  these  doctrines,  and  we  return  to  the 

(to)   Pickering   V.   Ilfracombe   By.  743,  23  L.  J.  Q.  B.  345,  see  Crow  v. 

Co.    (1868)   L.  R.  3  C.  P.  235,  37  L.  Robinson   (1868)    L.  R.  3  C.  P.  264; 

J.    C.    P.    118,    overruling    virtually  judgment  of  Erie  J.   (diss.)   in  ^Yatts 

Watts  v.  Porter    (1854)    3   E.   &  B.  v.. Porter. 

Wilson  v.  Stilwell,  14  Ohio  St.  464,  471.  Compare  Beran  v.  Tradesmen's  Nat. 
Bank,  137  N.  Y.  450 ;  First  Nat.  Bank  v.  Clark,  9  Baxt.  589. 

In  England  the  assignee  also  takes  subject  to  unknown  equities  of  others 
than  the  debtor,  and  this  rule  is  followed  in  New  York  and  some  other  States 
in  this  country.  The  authorities  are  collected  in  Ames,  Cas.  Trust,  p.  309, 
n.  Recent  decisions  to  this  effect  are  Owen  r.  Evans,  134  N.  Y.  514; 
Central  Trust  Co.  v.  West  India  Co.,  169  N.  Y.  314,  324;  Culmer  v.  American 
Co.,  21  N.  Y.  App.  Div.  556;  State  v.  Hearn,  109  N.  C.  150;  Kernohan  v.  Dur- 
ham, 48  Ohio  St.  1;  Patterson  v.  Rabb,  38  S.  C.  138.  But  many  States  protect 
an  assignee  who  has  taken  an  assignment  of  chose  in  action  for  value  and 
without  notice  from  such  latent  equities.  See  Ames,  Cas.  Trusts,  p.  310,  n. 
and  the  following  recent  decisions :  First  Bank  v.  Perris,  107  Cal.  55 ;  Humble 
r.  Curtis,  160  HI.  193;  Mann  i\  Merchants'  Trust  Co.,  100  111.  App.  224;  Hale 
v.  First  Bank,  50  la.  642;  Newton  v.  Newton,  46  Minn.  33;  Moffett  r.  Parker, 
71  Minn.  139;  Brown  v.  Equitable  Soc,  75  Minn.  412;  Duke  v.  Clark,  58 
Miss.  465.  This  view  is  supported  by  Professor  Ames  in  1  Harv.  L.  Rev.  6-8, 
on  the  ground  that  the  assignee  has  acquired  a  legal  power  of  attorney  to  col- 
lect the  claim  from  the  debtor,  and  that  equity  should  not  deprive  him  of  this 
legal  right.  As  to  the  possibility  of  the  right  to  assert  an  equity  being  lost 
by  estoppel,  see  infra,  p.  294,  n.  88. 

79  Pickering  v.  Ilfracombe  Ry.  Co.,  L.  R.  3  C.  P.  235 ;  Jones  v.  Lowery,  104 
Ala.  252;  Walton  v.  Horkan,  112  Ga.  814;  Savage  v.  Gregg,  150  111.  161; 
McGuire  v.  Pitts,  42  la.  535;  Littlefield  v.  Smith,  17  Me.  327;  Wakefield 
v.  Marvin,  3  Mass.  558;  Dix  v.  Cobb,  4  Mass.  512;  Thayer  v.  Daniels,  113- 
Mass.  129;  MacDonald  v.  Kneeland,  5  Minn.  352;  Schoolfield  v.  Hirsh,  71 
Miss.  55;  Smith  v.  Sterritt,  24  Mo.  260;  Knapp  v.  Standley,  45  Mo.  App. 
264;  Hendrickson  f.  Trenton  Bank,  81  Mo.  App.  332;  Marsh  v.  Garney 
69  N.  H.  236;  Board  v.  Duparquet,  50  N.  J.  Eq.  234;  Van  Buskirk  v.  Warren, 
34  Barb.  457;  Williams  v.  Ingersoll,  89  N.  Y.  508;  Meier  v.  Hess,  23  Oreg. 
599;  Stevens  v.  Stevens,  1  Ashmead,  190;  United  States  v.  Vaughan,  3  Binn. 
394;  Pellman  v.  Hart,  1  Pa.  263;  Speed  v.  May,  17  Pa.  91;  Patton  v.  Wilson 
34  Pa.  299;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  354,  367;  Tierney  v.  McGarity, 
14  R.  I.  231;  Brown  v.  Minis,  1  McCord,  80;  Ballingham  Co.  v.  Brisbois,  14 
Wash.  173.  But  see  contra,  Bishop  v.  Holcomb,  10  Conn.  444;  Vanbiiskirk 
v.  Hartford  Ins.  Co.,  14  Conn.  141  (conf.  Clark  v.  Connecticut  Peat  Co.,  35 
Conn.  303 )  ;  Clodfelter  v.  Cox,  1  Sneed,  330 ;  Dews  c.  Olwill,  3  Baxt.  432 ; 
Rhodes  v.  Haynes,  95  Tenn.  673;  Ward  v.  Morrison,  25  Vt.  593;  Nichols  v. 
Hooper,  61  Vt.  295.  See  also  McWilliams  r.  Webb.  32  la.  577;  Ruthven  r 
Clarke,  109  la.  25;  Whiteside  v.  Tall,  88  Mo.  App.  168,  171. 


286  PERSONS    AFFECTED   BY    CONTRACT. 

other  sense  of  the  general  maxim.     In  that  sense  it  is  used  in  such 
judicial  expressions  as  the  following : 

"  If  there  is  one  rule  more  perfectly  established  in  a  court  of  equity  than 
another,  it  is  this,  that  whoever  takes  an  assignment  of  a  chose  in  action 
takes  it  subject  to  all  the  equities  of  the  person  who  made  the  assign- 
ment "    (n) . 

"  It  is  a  rule  and  principle  of  this  Court,  and  of  every  Court,  I  believe, 
that  where  there  is  a  chose  in  action,  whether  it  is  a  debt,  or  an  obligation,  or 
224]  a  trust  fund,  and  it  is  assigned,  the  person  who  holds  the  debt  or  Obli- 
gation, or  has  undertaken  to  hold  the  trust  fund,  has  as  against  the  assignee 
exactly  the  same  equities  that  he  would  have  as  against  the  assignor"    (0). 

This  is  in  fact  the  same  principle  which  is  applied  by  common  law 
as  well  as  equity  jurisdictions  for  the  protection  of  persons  who  con- 
tract with  agents  not  known  to  them  at  the  time  to  be  agents  (p). 
What  is  meant  by  this  special  use  of  the  term  "  equities  "  will  be  best 
shown  by  illustration.  A  debt  is  due  from  B.  to  A.,  but  there  is  also 
a  debt  due  from  A.  to  B.  which  B.  might  set  off  in  an  action  by  A. 
In  this  state  of  things  A.  assigns  the  first  debt  to  C.  without  telling 
him  of  the  set-off.  B.  is  entitled  to  the  set-off  as  against  C.  (<?)-80 
Again,  B.  has  contracted  to  pay  a  sum  of  money  to  A.,  but  the  con- 
tract is  voidable  on  the  ground  of  fraud  or  misrepresentation.     A. 

(n)   Lord  St.  Leonards,  Mangles  v.  Bea-v.    163,    173,    27    L.    J.    Ch.    314, 

Dixon   (1852)   3  H.  L.  C.  702,  731.  where     the     doctrine     is     fully     ex- 

(0)   James  L.J.    (sitting  as  V.-C.)  pounded.     As  to  set-off  accruing  af- 

Phipps  v.  Lovegrove  (1873)   L.  E.  16  ter    notice    of    assignment,    Stephens 

Eq.  80,  88,  42  L.  J.  Ch.  892.  v.    Venables    (1862)     30    Beav.    625; 

(p)   See  pp.  *103,    *104,  above.  Watson  v.  Mid  Walrs  By.  Go.  (1867) 

(q)   Cavendish  v.  Geaves  (1857)  24  L.  E.  2  C.  P.  593,  30  L.  J.  C.  P.  285. 

so  Hall  v.  Hickman,  2  Del.  Ch.  318;  Hooper  v.  Brundage,  22  Me.  460; 
McKenna  v.  Kirkwood,  50  Mich.  544;  Hunt  v.  Shackleford,  55  Miss.  94;  San- 
born v.  Little,  3  N.  H.  539;  Wood  f.  Mayor,  73  N.  Y.  556;  Bank  v.  Bynum, 
84  N.  C.  24;  Metzgar  t.  Metzgar,  1  Eawle,  227.  And  see  infra,  p.  *231.  In 
an  action  by  the  assignee  of  a  chose  in  action,  the  defendant  cannot  set 
off  a  debt  existing  in  his  favor  against  the  assignor  at  the  time  of  the 
assignment,  but  maturing  afterwards.  Graham  r.  Tilford,  1  Met.  (Ky. )  112; 
Chambliss  v.  Matthews,  57  Miss.  306;  Beckwith  v.  Bank,  9  N.  Y.  211;  Myers 
v.  Davis,  22  N.  Y.  4S9 ;  Martin  r.  Kunzmuller,  37  N.  Y.  396;  Eoberts  v. 
Carter,  38  N.  Y.  107;  Fuller  v.  Steiglitz,  27  Ohio  St.  355.  And  see  Adams  v. 
Eodarmel,  19  Ind.  339;  Walker  r.  McKay,  2  Met.  (Ky.)  294;  Backus  r. 
Spalding,  129  Mass.  234;  Follett  v.  Buyer,  4  Ohio  St.  586.  Cp.  Eailroad  Co. 
r.  Ehodes,  8  Ala.  206;  Morrow  v.  Bright,  20  Mo.  298;  Williams  r.  Helme,  1 
Dev.  Eq.  151;  Miller  r.  Bomberger,  76  Pa.  78.  The  assigned  debt,  however, 
need  not  have  been  due  at  the  time  of  the  assignment.  If  the  defendant's 
claim  was  due  at  that  time  he  can  set  it  off  against  an  assigned  debt  maturing 
in  the  assignee's  hands.  Scott  r.  Armstrong,  146  U.  S.  ,499 ;  Re  Hatch,  155 
N.  Y.  401.  Contra,  Koegel  v.  Trust  Co.,  117  Mich.  54.  He  can  set  off  a 
claim  against  the  assignor,  which  he  has  acquired  after  the  assignment,  and 
before  notice  thereof.  McCabe  v.  Grey,  20  Cal.  509 ;  Adams  r.  Leavens,  20 
Conn.  73;  Bank  v.  Balliet,  8  W.  &  S.  311.  But  not  one  acquired  after  notice 
of  the  assignment.  Crayton  ?'.  Clark,  11  Ala.  787;  Goodwin  r.  Cunningham, 
12  Mass.  193;  St.  Andrew  v.  Manchoug,  134  Mass.  42;  Lake  v.  Brown,  7  How. 
(Miss.)    661;  Weeks  v.  Hunt,  6  Vt.  15;  infra,  p.  295,  n.  90. 


ASSIGNMENT   FKEE  FROM   EQUITIES.  287 

assigns  the  contract  to  C,  who  does  not  know  the  circumstances  that 
render  it  voidable.  B.  may  avoid  the  contract  as  against  C.  (r). 
Again,  in  a  some  what  less  simple  case,  there  is  a  liquidated  debt  from 
B.  to  A.  and  a  current  account  between  them  on  which  the  balance 
is  against  A.  A.  assigns  the  debt  to  C,  who  knows  nothing  of  the 
account.  B.  may  set  off  as  against  C.  the  balance  which  is  due  on  the 
current  account  when  he  receives  notice  of  the  assignment,  but  not 
any  balance  which  becomes  due  afterwards  (s). 

The  rule  may  be  excluded  by  original  contract.  But  it  is  open  to  the 
contracting  parties  to  exclude  the  operation  of  this  rule  if  they  think 
fit  by  making  it  a  term  of  the  original  contract  that  the  debtor  shall 
not  set  up  against  an  assignee  of  the  contract  any  counter  claim  which 
he  may  have  against  the  original  creditor.  This  is  *established  [225 
by  the  decision  of  the  Court  of  Appeal  in  Chancery  in  Ex  parte 
Asiatic  Banking  Corporation,  the  facts  of  which  have  already  been 
stated  for  another  aspect  of  the  case  (t). 

Two  alternative  grounds  were  given  for  the  decision  in  favour 
of  the  claim  of  the  Asiatic  Banking  Corporation  under  the  letter 
of  credit.  One,  which  we  have  already  noticed,  was  that  the  letter 
was  a-  general  proposal,  and  that  there  was  a  complete  contract 
with  any  one  who  accepted  it  by  advancing  money  on  the  faith  of  it. 
The  other  was  that,  assuming  the  original  contract  to  be  only  with 
Dickson,  Tatham,  &  Co.  to  whom  the  letter  was  given,  yet  the  takers 
of  bills  negotiated  under  the  letter  were  assignees  of  the  contract, 
and  it  appeared  to  have  been  the  intention  of  the  original  parties  that 
the  equities  which  might  be  available  for  the  bank  against  Dickson, 
Tatham,  &  Co.  should  not  be  available  against  assignees.  Lord 
Cairns,  then  Lord  Justice,  thus  stated  the  law: — 

"  Generally  speaking  a  chose  in  action  assignable  only  in  equity  must 
be  assigned  subject  to  the  equities  existing  between  the  original  parties  to 
the  contract;  but  this  is  a,  rule  which  must  yield  when  it  appears  from 
the  nature  or  terms  of  the  contract  that  it  must  have  been  intended  to  be 
assignable  free  from  and  unaffected  by  such  equities." 

Where  assignees  of  a  chose  in  action  are  enabled  by  statute  to  sue 
at  law,  similar  consequences  may  be  produced  by  way  of  estoppel  (u)  ; 
which  really  comes  to  the  same  thing,  the  doctrine  of  estoppel  being 
a  mere  technical  and  definite  expression  of  the  same  principle. 

(r)    Graham  v.  Johnson  (1869)   L.  (t)    (1867)   L.  R.  2  Ch.  391,  36  L. 

K.  8  Eq.  36,  38  L.  J.  Ch.  374.  J.  Ch.  222,  p.  *23,  supra. 

(s)   Cavendish    v.    Geaves     (1857)  (u)    Webb   v.   Heme  Bay   Commis- 

24  Beav.  163,  27  L.  J.  Ch.  314.  sioners   (1870)  L.  E.  5  Q.  B.  642,  39 

L.  J.  Q.  B.  221. 


288  PERSONS    AFFECTED    BY    CONTRACT. 

Later  decisions:  form  of  instrument,  how  far  material.  The  principle 
thus  laid  down  has  been  followed  out  in  several  later  decisions  on 
the  effect  of  transferable  debentures  issued  by  companies.  The  ques- 
tion whether  the  holder  of  such  a  debenture  takes  it  free  from  equities 
is  to  be  determined  by  the  original  intention  of  the  parties. 
226]  *The  form  of  the  instrument  is  of  course  material,  but  the  gen- 
eral tenor  is  to  be  looked  to  rather  than  the  words  denoting  to  whom 
payment  will  be  made ;  these  cannot  be  relied  on  as  a  sole  or  conclusive 
test.  Making  a  debenture  payable  to  the  holder  or  bearer  does  not 
necessarily  mean  more  than  that  the  issuing  company  will  not  require 
the  holder  who  presents  the  instrument  for  payment  to  prove  his 
title,  especially  if  the  object  of  the  debenture  is  on  the  face  of  it  to 
secure  a  specific  debt  (x).81  But  an  antecedent  agreement  to  give  de- 
bentures in  such  a  form  is  evidence  that  they  were  meant  to  be  assign- 
able free  from  equities (y)  ;  and  debentures  payable  to  bearer  without 
naming  any  one  as  payee  in  the  first  instance  are  prima  facie  so  assign- 
able (z)  and  may  be  negotiable  (a)  ;  so  again  if  the  document  re- 
sembles a  negotiable  instrument  rather  than  a  common  money  bond  or 
debenture  in  its  general  form  (&). 

Even  when  there  is  nothing  on  the  face  of  the  instrument  to  show 
the  special  intention  of  the  parties,  the  issuer  cannot  set  up  equities 
against  the  assignee  if  the  instrument  was  issued  for  the  purpose  of 
raising  money  on  it  (c).  The  general  circumstances  attending  the 
original  contract  —  e.  g.  the  issue  of  a  number  of  debentures  to  a 
creditor  instead  of  giving  a  single  bond  or  covenant  for  the  whole 
amount  due  —  may  likewise  be  important.  Moreover,  apart  from  any 
contract   with   the  original   creditor,   the   issuing   company   may   be 

(x)   Financial  Corporation's  claim  374,    385,    42    L.    J.    Q.    B.    183,    see 

(1868)    L.  E.   3   Ch.  355,  360,   37  L.  Bechuanaland     Exploration     Go.     v. 

J.   Ch.  362.  London  Trading  Bank  [1898]  2  Q.  B. 

(y)   Ex  parte  New  Zealand  Bank-  658,  67  L.  J.  Q.  B.  986. 
ing  Corporation    (1867)    L.  R.  3  Ch.  (b)   Ex  parte  City  Bank  (1868)  L. 

154,  37  L.  J.  Ch.  418.  R.  3  Ch.  758. 

(z)   Ex   parte    Colborne   d    Straio-  (c)   Dickson  v.   Swansea  Vale  Ry. 

bridge    (1870-1)    L.   R.    11    Eq.   478,  Co.    (1868)    L.  R.  4  Q.   B.  44,  38  L. 

40  L.   J.   Ch.  '93.   343.  J.    Q.    B.     17;     Graham    V.    Johnson 

(a)   Notwithstanding      Crouch     v.  (1869)    L.  R.  8  En.  36.  38  L.  J.  Ch. 

Credit  Fonder   (1873)   L.  R.  8  Q.  B.  374,  seems  not  consistent  with  this. 

81  "  Contracts  arc  not  necessarily  negotiable,  because  by  their  terms  they 
iimre  to  the  benefit  of  the  bearer!"  Railroad  Co.  r.  Howard,  7  Wall.  392. 
But  bonds  made  payable  to  bearer,  issued  by  corporations,  are  treated  in  this 
country  as  negotiable  securities  transferable  free  from  equities.  Mercer  County 
v.  Hackett,  1  Wall.  83,  95.    Supra,  p.  144,  n.  18.  , 


ASSIGN  .UliXT   1'REE   FROM    EQUITIES.  289 

estopped  from  setting  up  *equities  against  assignees  by  subse-  [227 
quent  recognition  of  their  title  (d). 

The  rule  extends  to  an  order  for  the  delivery  of  goods  as  well  as 
to  debentures  or  other  documents  of  title  to  a  debt  payable  in 
money  (e).83 

Quaere,  when  the  original  contract  is  voidable.  On  principal  this  doc- 
trine seems  inapplicable  in  a  case  where  the  original  contract  is 
not  merely  subject  to  a  cross  claim  but  voidable.  For  the  agree- 
ment that  the  contract  shall  be  assignable  free  from  equities  is 
itself  part  of  the  contract,  and  should  thus  have  no  greater  valid- 
ity than  the  rest.  A  collateral  contract  for  a  distinct  consider- 
ation might  be  another  matter :  but  the  notion  of  making  it  a  term  of 
the  contract  itself  that  one  shall  not  exercise  any  right  of  rescinding 
it  that  may  afterwards  be  discovered  seems  to  involve  the  same  kind 
of  fallacy  as  the  sovereign  power  in  a  state  assuming  to  make  its  own 
acts  irrevocable.83  Nor  does  it  make  any  difference,  so  long  as  we 
adhere  to  the  general  rules  of  contract,  that  the  stipulation  is  in 
favour,  not  of  the  original  creditor,  but  only  of  his  assignees  (f). 
However,  the  point  has  not  been  distinctly  raised  in  any  of  the  de- 
cided cases.  In  Graham  v.  Johnson  (g),  where  the  contract  was  origi- 
nally voidable  (if  not  altogether  void :  the  plaintiff  had  executed  a  bond 
under  the  impression  that  he  was  accepting  or  indorsing  a  bill  of 

(d)   Higgs  v.  Northern  Assam  Tea  seems  not:    Brunton's   claim    (1874) 

Co.   (1869)  L.  R.  4  Ex.  387,  38  L.  J.  L.  R.   19  Eq.  302,   312,  44  L.  J.  Ch. 

Ex.    233 ;    Ex    parte    Universal    Life  450. 

Assurance  Co.    (1870)    L.  R.   10   Eq.  (e)   Merchant  Banking  Co.  of  Lon- 

458,    39    L.    J.    Ch.    829     (on    same  don    v.    Phcenix   Bessemer    Steel    Co. 

facts);   Ex  parte  Chorley    (1870)    L.  (1877)    5   Ch.   D.   205,   46   L.   J.   Ch. 

R.    11    Eq.    157,    40   L.    J.    Ch.    153;  418. 

cp.  Re  Bahia  &  San  Francisco  By.  (f)  In  principle  it  is  the  same  as 
Co.  (1868)  L.  R.  3  Q.  B.  584,  37  the  case  put  in  the  Digest  (50.  17, 
L.  J.  Q.  B.  176.  Qu.  can  Athenceum  de  reg.  iuris.  23)  "  non  valere  si  con- 
Life  Assurance  Soc.  v.  Pooley  (1858)  venerit,  ne  dolus  praestetur." 
3  De  G.  &  J.  294,  28  L.  J.  Ch.  119,  (g)  (1869)  L.  R.  8  Eq.  36,  38 
be  reconciled   ■with   these  cases?     It  L.  J.  Ch.  374. 

82  See  Jaqua  v.  Montgomery,  33  Ind.  36 ;  2  Ames  Cas.  B.  &  1ST.  782,  n. 

83  But  an  agreement  in  a  life  insurance  policy  that  it  should  be  incontest- 
able after  two  years  is  held  valid  on  the  ground  that  the  agreement  in  effect 
fixes  a  short  Statute  of  Limitations  within  which  fraud  must  be  discovered. 
See  Murray  v.  Insurance  Co.,  22  R.  I.  524,  and  cases  cited.  An  agreement 
that  an  architect's  certificate  should  be  binding  in  spite  of  error  or  fraud  was 
sustained  in  Tullis  i:  Jacson,  [1892]  3  Ch.  441.  Cp.  Redmond  v.  Wynne,  13 
N".  S.  Wales  (Law).  39.  See  further  on  the  general  question.  Hofflin  r.  Moss, 
67  Fed.  Rep.  440;  Kelley  v.  Insurance  Co.,  109  Fed.  Rep.  56;  Hill  r.  Thixton, 
94  Ky.  96;  McCarthy  r.  Insurance  Co.,  74  Minn.  530;  Chism  v.  Schipper,  51 
N.  J.  L.  1;  Wright  v.  Mutual  Benefit  Assoc,  118  N.  Y.  237;  Bridger  r 
Goldsmith,  143  N.  Y.  424. 

19 


290  PERSONS    AFFECTED   BY    CONTRACT. 

exchange)  (A),  an  assignee  of  the  bond  as  well  as  the  obligee  was 
228]  restrained  from  enforcing  the  bond:  but  the  *decision  was 
rested  on  the  somewhat  unsatisfactory  ground  that,  although  the 
instrument  was  given  for  the  purpose  of  money  being  raised  upon  it, 
there  was  no  intention  expressed  on  the  face  of  it  that  it  should  be 
assignable  free  from  equities. 

However,  if  the  contract  were  not  enforceable  as  between  the 
original  parties  only  by  reason  of  their  being  in  pari  delicto,  as  not 
having  complied  with  statutory  requirements  or  the  like,  an  assignee 
for  value  without  notice  of  the  original  defect  will,  at  all  events,  have 
a  good  title  by  estoppel  (i). 

Difficulties  of  assignee  of  ordinary  contract.  We  may  now  observe  the 
difficulties  which  make  the  mere  assignment  of  a  contract  inadequate 
for  the  requirements  of  commerce,  and  to  meet  which  negotiable  in- 
struments have  been  introduced. 

The  assignee  of  a  contract  is  under  two  inconveniences  (k).  The 
first  is  that  he  may  be  met  with  any  defence  which  woidd  have  been 
good  against  his  assignor.  This,  we  have  seen,  may  to  a  considerable 
extent  if  not  altogether  be  obviated  by  the  agreement  of  the  original 
contracting  parties. 

The  second  is  that  he  must  prove  his  own  title  and  that  of  the 
intermediate  assignees,  if  any;  and  for  this  purpose  he  must  inquire 
into  the  title  of  his  immediate  assignor.  This  can  be  in  part,  but  only 
in  part,  provided  against  by  agreement  of  the  parties.  It  is  quite 
competent  for  them  to  stipulate  that  as  between  themselves  payment 
to  the  holder  of  a  particular  document  shall  be  a  good  discharge;  but 
such  a  stipulation  will  neither  affect  the  rights  of  intermediate  as- 
signees nor  enable  the  holder  to  compel  payment  without  proving  his 
title.     Parties  cannot  set  up  a  markei  overt  for  contractual  rights. 

Remedy  by  special  rules  of  law  merchant.  The  complete  solution  of  the 
229]  problem,  for  which  the  *ordinary  law  of  contract  is  inadequate, 
is  attained  by  the  law  merchant  (I)  in  the  following  manner: — 

(i)  The  absolute  benefit  of  the  contract  is  attached  to  the  owner- 
ship of  the  document  which  according  to  ordinary  rules  would  be 
only  evidence  of  the  contract. 

(h)    The   evidence   was   conflicting,  (k)    Cp.  Savigny,  Obi.  §  62. 

but  the  Court  took  this  view  of  the  {I)    Extended  to   promissory  notes 

facts:   see  L.  R.  8  Eq.  at  p.  43.  by  statute:  3  &  4  Ann.  c.  8   (in  Rev. 

(i)    See  Webb  v.  Heme  Bay  Com-  Stat.)    ss.    1-3,   now   superseded   and 

missioners   (1870)   L.  R.  5  Q.  B.  642,  repealed    by    the    Bills    of   Exchange 

39   L.   J.   Q.   B.   221.  .  Act,    1882. 


NEGOTIABLE    INSTRUMENTS.  291 

(ii)  The  proof  of  ownership  is  then  facilitated  by  prescribing  a 
mode  of  transfer  which  makes  the  instrument  itself  an  authentic 
record  of  the  successive  transfers :  this  is  the  case  with  instruments 
transferable  by  indorsement. 

(iii)  Finally  this  proof  is  dispensed  with  by  presuming  the  bona 
fide  possessor  of  the  instrument  to  be  the  true  owner:  this  is  the  case 
with  instruments  transferable  by  delivery,  which  are  negotiable  in 
the  fullest  sense  of  the  word. 

Negotiable  instruments  —  Peculiar  and  extensive  rights  of  bona  fide  holder. 

The  result  is  that  the  contract  is  completely  embodied  (m)  for  all 
practical  purposes  in  the  instrument  which  is  the  symbol  of  the  con- 
tract; and  both  the  right  under  the  contract  and  the  property  in  the 
instrument  are  treated  in  a  manner  quite  at  variance  with  the  general 
principles  of  contract  and  ownership.  We  give  references  to  a  few 
passages  where  specimens  will  be  found  of  the  positive  terms  in  which 
the  privileges  of  bona  fide  holders  of  negotiable  instruments  have 
been  repeatedly  asserted  by  the  highest  judicial  authority  (n). 

The  narrower  doctrine  which  for  a  time  prevailed,  requiring  a 
certain  measure  of  caution  on  the  part  of  the  holder,  is  now  com- 
pletely exploded.  Nothing  short  of  actual  knowledge  of  the  facts 
affecting  his  transferor's  title  *or  wilful  and  therefore  dis-  [230 
honest  avoidance  of  inquiry  (o)  will  defeat  the  holder's  right  (p).B* 

(m)    " Verkorperung     der     Obliga-  Jones  v.  Broadhurst   (1850)    9  C.  B. 

tion,"  Savigny.  "  173,  181;  Lebel  v.  Tucker   (1867)   L. 

(re)   See  per  lyles  J.  Swan  v.  N.  R.  3  Q.  B.  77,  84,  37  L.  J.  Q.  B.  46. 

B.   Australasian   Co.    (1863)    in   Ex.  Indorser:   L.  R.  3  Q.  B.  83;   Benton 

Ch,  2  H.  &  C.  184,  31  L.  J.  Ex.  425;  v.  Peters   (1870)    L.  R.  5  Q.  B.  475, 

per  Lord  Campbell,  Brandao  v.  Bar-  477. 

nett  (1846)  12  CI.  &  P.  787;  opin-  (o)  Lord  Blackburn  in  Jones  v. 
ion  of  Supreme  Court,  TJ.  S.  deliv-  Gordon  (1377)  2  App.  Ca.  at  p.  629. 
ered  by  Story  J.  Swift  v.  Tyson  (p)  Goodman  v.  Harvey  (1836)  4 
(1842)  16  Peters  1,  15.  The  follow-  A.  &  E.  870,  876,  43  R.  R.  507,  509; 
ing  references  as  to  the  nature  of  the  Raphael  v.  Bank  of  England  (1855) 
contracts  undertaken  by  the  parties  17  C.  B.  161,  175,  25  L.  J.  C.  P.  33: 
to  a  bill  of  exchange  may  be  found  Bills  of  Exchange  Act,  s.  90,  and  Mr- 
useful.         Acceptor      and      drawer:  Chalmers'  note  thereon. 

84  Goodman  v.  Simonds,  20  How.  243;  Murray  v.  Lardner.  2  Wall.  110; 
Hotchkiss  v.  Banks,  21  Wall.  354;  Coors  v.  German  Bank,  14  Col.  202;  Craft's^ 
Appeal,  42  Conn.  146 ;  Matthews  v.  Poythress,  4  Ga.  287 ;  Shreves  v.  Allen, 
79  111.  553 ;  Pope  v.  Hartwig,  23  Ind.  App.  333 ;  Lake  r.  Reed,  29  la.  258 ;  Lane 
v.  Evans,  49  la.  156;  Lehman  v.  Press,  106  la.  37;  Fox  v.  Bank,  30  Kan. 
441;  Farrell  v.  Lovett,  68  Me.  326;  Bank  v.  Hooper,  47  Md.  88;  Williams 
v.  Huntington,  68  Md.  590;  Smith  v.  Livingston,  111  Mass.  342;  Bank  v. 
Savery,  127  Mass.  75,  79;  International  Trust  Co.  v.  Wilson,  161  Mass.  80; 
Davis  v.  Seelev,  71  Mich.  209;  Helms  v.  Douglas,  81  Mich.  442;  Bank  v. 
MeNeir,  51  Minn.  123;  Edwards  r.  Thomas,  66  Mo.  468,  483;  Welsh  v. 
Sage,  47  K.  Y.  143;  Insurance  Co.  r.  Hachfield,  73  N.  Y.  226:  Bank  v. 
Weston,  161  N.  Y.  520,  526;   Johnson  v.  Way,  27  Ohio  St.  374;   Kitchen  v. 


292  PERSONS  AFFECTED  BY  CONTRACT. 

Moreover,  there  is  no  discrepance  between  common  law  and  equity 
in  this  matter.  Equity  has  interfered  in  certain  cases  of  forgery  and 
fraud  to  restrain  negotiation ;  but  at  law  no  title  to  sue  on  the  instru- 
ment can  be  made  through  a  forgery  (q)  ;85  and  "the  cases  of  fraud 
where  a  bill  has  been  ordered  to  be  given  up  are  confined  to  those 
where  the  possession,  but  for  the  fraud,  would  be  that  of  the  plaintiff 
in  equity"  (r).  The  rights  of  bona  fide  holders  for  value  are  as  fully 
protected  in  equity  as  at  common  law,  and  against  such  a  holder  equity 
will  not  interfere  (s). 

Qualities  of  negotiable  instruments.      The   most  frequent  examples   of 
negotiable  instruments  are  bills  of  exchange  (of  which  cheques  are  a 

(g)   The  bona  fide  holder  of  an  in-  (r)   Jones  v.  Lane  (1838-9)  3  Y.  & 

strument  with   a   forged   indorsement  C.   Ex.   in  Eq.   281,   293. 
may  be  exposed  to  considerable  hard-  (s)    Thiedemann     v.      Goldschmidt 

ship.     See  Bobbett  v.  Pinkett   (1876)  (1859)   1  D.  F.  &  J.  4. 
1  Ex.  D.  368,  35  L.  J.  Ex.  555. 

Loudenback,  48  Ohio  St.  177;  Kernohan  r.  Manss,  53  Ohio  St.  118,  134;  Ham- 
ilton v.  Vought,  34  N.  J.  L.  187;  Phelan  v.  Moss,  67  Pa.  59;  McSparran  v. 
Neeley,  91  Pa.  17;  Bank  v.  Morgan,  165  Pa.  199;  Frank  v.  Lilienfeld,  33  Gratt. 
377;  Crawford,  Negot.  Inst.  Act,  §  95,  note  (a).  But  pee  Smith  v.  Mechanics' 
Bank,  6  La.  Ann.  610;  Nutter  v.  Stover,  48  Me.  163;  Drew  r.  Wheelihan,  75 
Minn.  68;  Bank  r.  Diefendorf,  123  N.  Y.  191;  Merritt  r.  Duncan,  7  Heisk. 
156;  Ormsbee  v.  Howe,  54  Vt.  182;  Bank  v.  Adams,  70  Vt.  132. 

That  a  bona  fide  purchaser  of  negotiable  paper  secured  by  mortgage  takes 
the  mortgage  as  he  takes  the  negotiable  instrument,  free  from  equities,  see 
Carpenter  r.  Longan,  16  Wall.  271;  Kenicott  r.  Supervisors,  16  Wall.  452,  469; 
Sawyer  i:  Prickett,  19  Wall.  146,  166;  Chicago,  etc.,  Ry.  Co.  v.  Merchants' 
Bank,  136  U.  S.  268,  283;  Swett  v.  Stark,  31  Fed.  Rep.  858;  Mvers  v.  Hazzard, 
50  Fed.  Rep.  155;  O'Rourke  v.  Wahl,  109  Fed.  Rep.  276;  Swift  v.  Bank,  114 
Fed.  Rep.  643;  Hawley  r.  Bibb,  69  Ala.  52;  Hart  v.  Adler,  109  Ala.  467; 
Cowing  r.  Cloud,  16  Col.  App.  326;  Gabbert  v.  Schwartz,  69  Ind.  450;  Preston 
v.  Morris,  42  la.  549;  Updegraft  v.  Edwards,  45  la.  513;  Lewis  v.  Kirk,  28 
Kan.  497,  501;  Duncan  v.  Louisville,  etc.,  13  Bush,  378;  Collins  v.  Bradbury, 
64  Me.  37;  Taylor  r.  Page,  6  Allen,  86;  Town  v.  Rice,  122  Mass.  67,  73; 
Helmer  r.  Krolick,  36  Mich.  371;  Logan  v.  Smith,  62  Mo.  455;  Webb  v. 
Hoselton,  4  Neb.  308;  Paige  ■„.  Chapman,  58  N.  H.  333;  Nashville  Trust  Co. 
v.  Smythe,  94  Tenn.  513;  Cornell  v.  Hichens,  11  Wis.  353;  Kelly  v.  Whitney, 
45  Wis.  110.  Contra,  Kleeman  v.  Frisbie,  63  111.  482;  Bryant  v.  Vix,  83  111. 
11;  Railroad  Co.  v.  Loewenthal,  93  111.  433;  Towner  v.  McClelland,  110  111. 
542;  Romberg  r.  McCormick,  194  111.  205  (cp.  Himrod  v.  Gilman,  147  111.  293)  ; 
Johnson  i\  Carpenter,  7  Minn.  176;  Hostetter  v.  Alexander,  22  Minn.  559; 
Baily  v.  Smith,  14  Ohio  St.  396  (but  see  Holmes  v.  Gardner,  50  Ohio  St.  167). 

85  Bank  r.  Adams,  91  Ind.  280;  Bank  v.  Holtsclaw,  98  Ind.  85;  Cochran  v. 
Atchison,  27  Kan.  728;  Dick  r.  Leverich,  11  La.  573;  Carpenter  c.  Bank, 
123  Mass.  66;  Lennon  v.  Brainard,  36  Minn.  330;  Star  Fire  Insurance 
Co.  v.  Bank,  60  N.  H.  442;  Bucklev  r.  Bank,  35  N.  ,T.  L.  400;  Graves  v. 
Bank,  17  N.  Y.  205;  Colson  r.  Arriot,  57  N.  Y.  253;  Corn  Exeh.  Bank  l". 
Nassau  Bank,  91  N.  Y.  74;  Citizens'  Bank  v.  Importers'  Bank,  119  N  Y 
195;  Shipman  r.  Bank,  126  N.  Y.  318;  Shaffer  r.  McKee,  19  Ohio  St.  526;' 
Armstrong  r.  Bank,  46  Ohio  St.  512;  Chism  v.  Bank,  96  Tenn.  641-  Farmer 
f.  People's  Bank,  100  Tenn.  187. 


NEGOTIABLE    INSTRUMENTS.  293 

species)  (t)   and  promissory  notes.     Their  exceptional  qualities  are 

concisely  stated  in  Crouch  v.  Credit  Fonder  (u)  : — 

"  Bills  of  exchange  and  promissory  notes,  whether  payable  to  order  or 
to  bearer,  are  by  the  law  merchant  negotiable  in  both  senses  of  the  word. 
The  person  who,  by  a  genuine  indorsement,  or,  where  it  is  payable  to  bearer, 
by  a  delivery,  becomes  holder,  may  sue  in  his  own  name  on  the  contract, 
arid  if  he  is  a  bona  fide  holder  for  value  he  has  a  good  title  notwithstanding 
any  defect  of  title  in  the  party  (whether  indorser  or  deliverer)  from  whom 
he  took  it." 

It  is  doubtful  at  common  law  whether  the  seal  of  a  corporation 
can  be  treated  as  equivalent  to  signature  for  the  purpose  of  making 
a  bill  or  note  under  it  negotiable;  in  England  the  doubt  is  removed 
by  the  Bills  of  Exchange  Act  (a;).86 

*A  negotiable  instrument  must  be  a  contract  to  pay  money  or  [231 
to  deliver  another  negotiable  security  representing  money  (y)  :  there- 
fore a  promise  in  writing  to  deliver  1000  tons  of  iron  to  the  bearer 
is  not  negotiable  and  gives  no  right  of  action  to  the  possessor  (z). 

Mere  private  agreement  or  particular  custom  cannot  be  admitted  as 
part  of  the  law  merchant  so  as  to  introduce  new  kinds  of  negotiable 
instruments.87  But  the  fact  that  a  universal  mercantile  usage  is 
modern  is  no  reason  against  its  being  judicially  recognized  as  part  of 
the  law  merchant.  The  notion  that  general  usage  is  insufficient  merely 
because  it  is  not  ancient  is  founded  on  the  erroneous  assumption  that 
the  law  merchant  is  to  be  treated  as  fixed  and  invariable  (a).  The  nego- 
tiability of  debentures  issued  by  limited  companies  has  now  been  recog- 
nized on  the  ground  of  general  though  modern  mercantile  custom (&). 

The  bonds  of  foreign  governments  issued  abroad  and  treated  in 
the  English  market  as  negotiable  instruments  are  recognized  as  such 

(t)   Bills    of   Exchange   Act,    1882  Q.    B.    175.      See   now    Bills    of    Ex- 

(45   &  46  Vict.   c.   61),   s.   73.     And  change  acz,  1882,  s.  91,  sub-s.  2. 
they  are  equally  negotiable:     M'Lean  (y)    Goodwin    v.    Robarts     (1876) 

v.  Clydesdale  Banking  Co.    (1883)    9  Ex.  Ch.,  L.  R.  10  Ex.  337,  1  App.  Ca. 

App.  Ca.  95.  476,  45  L.  J.  Ex.  748. 

(m)  L.  R.  8  Q.  B.  374,  42  L.  J.  (z)  Dixon  v.  Bovill  (1856)  3 
Q.  B.  183.  Macq.  1.  Such  »  contract  may  how- 
fa;)  But  the  addition  of  the  seal  ever  be  made  assignable  free  from 
will  not  prevent  an  instrument  from  equities:  Merchant  Banking  Co.  of 
being  a  good  bill  or  note  if  it  is  also  London  v.  Fhoeniao  Bessemer  Steel  Co. 
signed  by  an  agent  or  agents  for  (1877)  5  Ch.  D.  205,  46  L.  J.  Ch.  418. 
the  company  so  that  it  would  be  {a)  Goodwin  v.  Robarts,  note  (y) 
good  without  the  seal :  see  Halford  v.  supra,  overruling  Crouch  v.  Credit 
Cameron's  Coalbrook  &c.  Co.  (1851)  Fonder  on  this  point;  Rumball  v. 
16  Q.  B.  442,  20  L.  J.  Q.  B.  160;  Metropolitan  Bank  (1877)  2  Q.  B.  D. 
Aggs  v.  Nicholson  (1856)  1  H.  &  N.  194,  46  L.  J.  Q.  B.  346. 
165,  25  L.  J.  Ex.  348;  Balfour  v.  (6)  Bechuanaland  Exploration  Co. 
Ernest  (1859)  5  C.  B.  N.  S.  601,  28  v.  London  Trading  Bank  [1898]  2 
L.  J.  C.  P.  170;  Button  v.  Marsh  Q,  B.  658,  67  L.  J.  Q.  B.  986.  This 
(1871)    L.  R.  6  Q.  B.  361,  40  L.  J.  decision    of    Kennedy    J.    has    been 

86  See  supra,  p.  145,  n.  19. 

87  See  Bank  v.  Dean,  137  N.  Y.  110,  117;  Dean  v.  Driggs,  137  N".  Y.  274,  289. 


'294  PERSONS    AFFECTED    BY    CONTRACT. 

by  law  (c).  So  is  the  provisional  scrip  issued  in  England  by  the 
agent  of  a  foreign  government  as  preparatory  to  giving  definite 
bonds  (d).  Such  bonds  or  scrip,  and  other  foreign  instruments 
negotiable  by  the  law  of  the  country  where  they  are  made,  may 
232]  be  *recognized  as  negotiable  by  our  Courts  though  they  do  not 
satisfy  all  the  conditions  of  an  English  negotiable  instrument  (e). 

Negotiability  by  estoppel.  From  what  was  said  in  Goodwin  v.  Bob- 
arts  (/)  in  the  House  of  Lords  it  seems  that  where  the  holder  of  an 
instrument  purporting  on  the  face  of  it  to  be  negotiable,  and  in 
fact  usually  dealt  with  as  such,  intrusts  it  to  a  broker  or  agent  who 
deals  with  it  in  the  market  where  such  usage  prevails,  he  is  estopped 
from  denying  its  negotiable  quality  as  against  any  one  who  in  good 
faith  and  for  value  takes  it  from  the  broker  or  agent.88  But  where  a 
person  takes  documents  of  value,  negotiable  or  not,  from  one  whom  he 
knows  to  be  an  agent  having  limited  authority,  he  must  at  his  own 
peril  ascertain  what  that  authority  is ;  and  this  whether  his  knowledge 
be  derived  from  the  principal  or  not  (<?). 

How  instruments  may  cease  to  be  negotiable.  It  is  also  to  be  observed 
that  an  instrument  which  has  been  negotiable  may  cease  to  be  so  in 
various  ways,  namely  — 

criticized  by  Mr.  Bosanquet  K.C.  but  (e)    See  Grouch  v.   Credit  Fonder 

supported   by  Mr.   V.   B.   Palmer,   L.  ( 1873 )    L.  R.  8  Q.  B.  at  pp.  384-5 ; 

Q.  R.  xv.  130,  245.  Goodwin  v.  Robarts,    1  App.   Ca.   at 

(c)    Gorgier  v.   Mieville    (1824)    3  pp.  494-5. 

B.  &  C.  45,  27  R.  R.  290.     Negotia-  (f)    1  App.  Ca.  486,  489,  493,  497. 

bility    in    a    foreign    market    is    not  (g)   Earl    of    Sheffield    v.    London 

enough:      Picker      V.      London      and  Joint    Stock    iBank     (1888)     13    App. 

County  Banking  Co.   (1887)   18  Q.  B.  Ca.  333,  57  L.  J.  Ch.  986.     This  ap- 

Div.  515.  plies    only    where    there    is     actual 

{d)     Goodwin   v.    Robarts     (1876)  knowledge  of  the  limited  authority: 

E.  R.  10  Ex.  76,  affd.  in  Ex.  Ch.  ib.  London   Joint    Stock    Bank    v.    Sim- 

337,  in  H.  L.  1  App.  Ca.  476,  45  L.  J.  mons   [1892]  A.  C.  201,  61  L.  J.  Ch. 

Ex.  748.  723. 

K8  "  A  bona  fide  purchaser  for  value  of  a  non-negotiable  chose  in  action  from 
one  upon  whom  the  owner  has,  by  assignment,  conferred  the  apparent  absolute 
ownership,  when  the  purchase  is  made  upon  the  faith  of  such  apparent  owner 
ship,  obtains  a  valid  title  as  against  the  real  owner,  who  is  estopped  from  as 
serting  title  thereto."  Jarvis  v.  Rogers,  13  Mass.  105 ;  Cowdrey  v.  Vanden 
burgh,  101  U.  S.  572;  Bridge  r.  Connecticut  Ins.  Co.,  152  Mass.  343;  Russell 
v.  American  Tel.  Co.,  180  Mass.  467;  Otis  r.  Gardner,  105  111.  436;  Walker  r 
Railway  Co.,  47  Mich.  338;  Cochran  v.  Stewart,  21  Minn.  435;  Brown  r, 
Equitable  Assur.  Soc,  75  Minn.  412;  International  Bank  v.  German  Bank,  71 
Mo.  183;  Prall  v.  Tilt,  28  N.  J.  Eq.  479;  Bank  v.  Neet,  29  N.  J.  Eq.  449 
MrATeil  v.  Bank,  40  N.  Y.  325;  Moore  v.  Bank,  55  N.  Y.  41:  Coombes  v 
Chandler,  33  Ohio  St.  17S;  Wood's  Appeal,  92  Pa.  379:  Burton's  Appeal 
63  Pa.  214;  Cherry  v.  Frost,  7  Lea,  1;  Strange  r.  Railway  Co.,  53  Tex 
162;  State  r.  Hastings,  15  Wis.  75.    Cp.  Osborn  r.  McClelland,  43  Ohio  St.  284, 


TRANSFER    OF    DUTIES.  295 

Payment  by  the  person  ultimately  liable  (h).86 

Restrictive  indorsement  (i). 

Crossing  with  the  words  "not  negotiable"  (k). 

To  a  certain  extent,  in  the  case  of  bills  payable  to  order,  indorse- 
ment when  overdue,  which  makes  the  indorsee's  right  subject  to  what 
are  called  equities  attaching  to  the  bill  itself,  e.  g.  an  agreement  be- 
tween the  original  parties  to  the  bill  that  in  certain  events  the  acceptor 
shall  not  *be  held  liable,  but  not  to  collateral  equities  such  as  [233 
set-off  (Z).90 

Transfer  of  contracts  where  duties  as  well  as  rights  transferred.  We  have 
purposely  left  to  the  last  the  consideration  of  certain  important  classes 
of  contracts  which  may  be  roughly  described  as  involving  the  transfer 
of  duties  as  well  as  of  rights.    This  happens  in  the  cases  91 

(A)  Of  transferable  shares  in  partnerships  and  companies. 

(B)  Of   obligations  (m)    attached   to    ownership   or   interests   in 

property. 

(h)   Lazarus    v.    Cowie     (1842)     3  crossed   has   not   and   cannot   give    a 

Q.  B.  464.     As  to  the  possibility  of  better    title    than    the    person    from 

suing  on  a  bill  after  it  has  been  paid  whom  he  took  it:  s.  81.    The  practice 

by   some   other   person,    see   Cook   v.  of   crossing   cheques    is    unknown    in 

Lister    (1863)     13    C.   B.   N.   S.    543,  America. 
32  L.  J.  C.  P.  121.  (?)    See  Ex  parte  Swan   (1868)    L. 

(i)   Bills   of   Exchange   Act,    1882,  R.    6    Eq.    344,    359,    where    the    au- 

ss.  35,  36.  thorities  are  discussed. 

(k)    Bills   of   Exchange  Act,    1882,  (m)   We  use  the  word  here  in  its 

s.  77.     A  person  taking  a  cheque  so  wide  sense  so  as  to  denote  the  bene- 

89Beebe  v.  Real  Estate  Bank,  4  Ark.  551;  Blenn  r.  Lyford,  70  Me.  149; 
Hopkins  v.  Farwell,  32  N.  H.  425;  Rolfe  v.  Wooster,  58  N.  H.  526;  Citizens' 
Bank  r.  Lay,  80  Va.  436. 

80  Bank  v.  Texas,  20  Wall.  72,  88 ;  Murphy  v.  Arkansas  Co.,  97  Fed.  Rep. 
723;  Robertson  v.  Breedlove,  7  Port.  541;  Robinson  v.  Lyman,  10  Conn. 
30;  Simpson  v.  Hall,  47  Conn.  417,  426;  Wilkinson  v.  Jeffers,  30  Ga.  153; 
Hankins  v.  Shoupe,  2  Ind.  342 ;  Richards  v.  Daily,  34  la.  427 :  Eversole  v. 
Maule,  50  Md.  95,  102;  Arnot  v.  Woodburn,  35  Mo.  99;  Cutter  v.  Cook,  77 
Mo.  388;  Barnes  v.  McMullins,  78  Mo.  260;  Kernohan  v.  Durham,  47  Ohio 
St.  1;  Long  v.  Rhawn,  75  Pa.  128;  Young  r.  Shriner,  80  Pa.  463;  Traf- 
ford  v.  Hall,  7  R.  I.  104;  Britton  v.  Bishop,  11  Vt.  70;  Armstrong  v. 
Noble,  55  Vt.  428 ;  Haley  v.  Congdon,  56  Vt.  65 ;  Davis  v.  Noll,  38  W.  Va.  66 ; 
Crawford,  Negot.  Inst.  Act.  §  97,  note  (a).  Contra,  that  the  indorsee  after 
maturity  does  take  the  paper  subject  to  set-off,  see  Robinson  i-.  Perry,  73 
Me.  168;  Stockbridge  v.  Damon,  5  Pick.  223;  Sargent  v.  Southgate.  5  Pick. 
312;  Ranger  v.  Cary,  1  Met.  369;  McKenna  v.  Kirkwood,  50  Mich.  544;  Cross 
v.  Brown,  51  N.  H.  486;  McDuffie  v.  Dame,  11  N.  H.  244;  Miner  v.  Hoyt, 
4  Hill,  193;  Haywood  v.  McNair,  2  Dev.  &  B.  283;  Turner  v.  Beggarly,  11 
Ired.  L.  331;  Baker-c.  Kinsey,  41  Ohio  St.  403;  Cain  v.  Spann.  1  McMull.  258. 

But  where  the  right  of  set-off  is  permitted,  it  is  not  extended  to  claims  ac- 
quired by  the  defendant  after  the  transfer  of  the  paper,  but  is  limited  to  debts 
due  to  him  at  that  time.  Baxter  *.  Little,  6  Met.  7;  Linn  v.  Rugg,  19  Minn. 
181 ;  Johnson  v.  Bloodgood,  1  Johnson's  Cas.  51 ;  Cain  v.  Spann,  1  McMull. 
258;  Williams  r.  Hart,  2  Hill  (S.  C).  483;  Davis  r.  Miller.  14  Gratt  1 
See  also  Y.  M.  C.  A.  Gymnasium  Co.  v.  Bank.  179  111.  599. 

91  Other  classes  of  cases  might  have  been  here  included.     Any  attempt  to 


296  PERSONS    AFFECTED    BY    CONTRACT. 

A.  Shares  in  partnerships  and  unincorporated  companies  may  be  made 
transferable  at  common  law.  The  contract  of  partnership  generally  in- 
volves personal  confidence,  and  is  therefore  of  a  strictly  personal 
character.  But,  "  if  partners  choose  to  agree  that  any  of  them  shall 
be  at  liberty  to  introduce  any  other  person  into  the  partnership,  there 
is  no  reason  why  they  should  not :  nor  why,  having  so  agreed,  they 
should  not  be  bound  by  the  agreement"  (n).  At  common  law  the 
number  of  persons  engaged  in  a  contract  of  partnership  does  not 
make  any  difference  in  the  nature  or  validity  of  the  contract;  hence 
it  follows  that  if  in  a  partnership  of  two  or  three  the  share  of  a  part- 
ner may  be  transferred  on  terms  agreed  on  by  the  original  partners, 
there  is  nothing  at  common  law  to  prevent  the  same  arrangement 
from  being  made  in  the  case  of  a  larger  partnership,  however  numer- 
ous the  members  may  be;  in  other  words,  unincorporated  companies 
with  transferable  shares  are  not  unlawful  at  common  law.92  But 
this,  as  Lord  Lindley  observes,  is  now  only  of  historical  interest  (o). 

But  no  uncertain  contract  and  no  real  anomaly  in  this.  At  first  sight  this 
234]  may  seem  to  involve  the  anomaly  of  *a  floating  contract  between 
all  the  members  of  the  partnership  for  the  time  being,  who  by  the 
nature  of  the  case  are  unascertained  persons  when  we  look  to  any 
future  time  (p).  But  there  is  no  need  to  assume  any  special  excep- 
tion from  the  ordinary  rules  of  contract.  It  was  pointed  out  by  Lord 
Westbury  that  the  transfer  of  a  share  in  a  partnership  at  common 

fit  or  burden  of  a  contract,  or  both,  Josephs  v.  Pebrer    (1825)    3  B.  &  C. 

according  to  the  nature  of  the  case.  639,     643.       This    line    of    objection, 

(»)   Lindley  on  Partnership,  368.  however,    does    not    appear    to    have 

(o)    Lindley    on    Companies,    130-  been  distinctly  taken  in  any  of  the 

135.  cases    where    the    legality    of    joint- 

(p)    Cp.     per     Abbott     C.     J.     in  stock  companies  was  discussed. 

assign  a  bilateral  contract  so  as  to  substitute  a  new  person  in  the  place  of 
one  of  the  original  contractors  involves,  if  successful,  the  transfer  of  duties 
as  well  as  of  rights.  The  various  meanings  given  to  the  word  assign  and 
an  excellent  analysis  of  the  legal  principles  applicable  may  be  found  in 
18  Harv.  L.  Rev.  23,  by  Professor  F.  C.  Woodward. 

92  Phillips  v.  Blatchford,  137  Mass.  510;  Edwards  v.  Gasoline  Works,  168 
Mass.  564;  Farnum  v.  Patch,  60  N.  H.  294;  Townsend  v.  Goewey,  19  Wend. 
424,  427;  Warner  v.  Beers,  24  Wend.  101,  149;  McFadden  v.  Lee'ka,  48  Ohio 
St.  513,  526. 

In  mining  partnerships  a  sale  of  his  interest  by  a  partner  to  a  stranger 
does  not  dissolve  the  partnership,  but  the  stranger  by  his  purchase  becomes 
a  partner.  Taylor  v.  Castle,  42  Cal.  367;  Kahn  i>.  Smelting  Co.,  102  U.  S. 
641;  Bissell  r.  Foss,  114  U.  S.  252. 


OBLIGATIONS    ATTACHED    TO    PROPERTY.  297 

law  is  strictly  not  the  transfer  of  the  outgoing  partner's  contract  to 
the  incoming  partner,  but  the  formation  of  a  new  contract.  "  By 
the  ordinary  law  of  partnership  as  it  existed  previously  to "  the 
Companies  Acts  "  a  partner  could  not  transfer  to  another  person  his 
share  in  the  partnership.  Even  if  he  attempted  to  do  so  with  the 
consent  of  the  other  partners,  it  would  not  be  a  transfer  of  his  share, 
it  would  in  effect  be  the  creation  of  a  new  partnership"  (q).  This 
therefore  is  to  be  added  to  the  cases  in  which  we  have  already  found 
apparent  anomalies  to  vanish  on  closer  examination. 

Practical  difficulties  of  unincorporated  companies  would  remain,  even  apart 
from  compulsory  provisions  of  Companies  Act.  Notwithstanding  the  theo- 
retical legality  of  unincorporated  companies,  there  does  not  appear 
to  be  any  very  satisfactory  way  of  enforcing  either  the  claims  of  the 
company  against  an  individual  member  (r),  or  those  of  an  individual 
member  against  the  company  (s).  But  the  power  of  forming  such 
companies  is  so  much  cut  short  by  the  Companies  Act,  1862,  which 
renders  (with  a  few  exceptions)  unincorporated  and  unprivileged  (t) 
partnerships  of  more  than  twenty  («)  persons  positively  illegal,  that 
questions  of  this  kind  have  lost  practical  importance  in  this  country. 
In  like  manner  the  transfer  of  shares  in  *companies  as  well  as  [235 
their  original  formation  is  almost  entirely  governed  by  modern 
statutes. 

B.  Obligations  attached  to  property.  Obligations  ex  contractu  attached 
to  ownership  or  interests  in  property  are  of  several  kinds.  With  re- 
gard to  those  attached  to  estates  and  interests  in  land,  which  alone 
offer  any  great  matter  for  observation,  the  discussion  of  them  in 
detail  is  usually  and  conveniently  treated  as  belonging  to  the  law  of 
real  property.  There  are  however  matters  of  general  principle  to  be 
noted,  and  misunderstanding  to  be  avoided,  as  to  the  respective  meth- 
ods of  common  law  and  equity  in  dealing  with  burdens  imposed  on 
the  use  of  land  by  contract. 

(o)   Webb  v.  Whi/p-n   (1872)   L.  R.  the   firm-name.      See   Ord.    XLVTIIa. 

5  H.  L.  711,  727,  42  L.  J.  Ch.  161.  rr.  1,  10. 

(r)  We  have  seen  (supra,  p.  *216)  (t)   i.  e.   such  as  but  for  the  Act 

that  they  cannot  empower  an  officer  would   have   been   mere   partnerships 

to   sue   on  behalf  of  the  association.  at  common  law. 

(s)    See  Lyon  v.  Haynes    (1843)    5  («)    Ten   in  the   case   of  banking: 

M.  &  Gr.   504.     A  partner  can  now  Companies  Act,   1862,  s.  4. 
eue  or  be  sued  by  the  partnership  in 


298 


PERSONS    AFFECTED    BY    CONTRACT. 


A  preliminary  statement  in  a  summary  form  may  be  useful. 


Obligations  attached  to  ownership  and  interests  in  property. 

I.  Goods. 

A  contract  cannot  be  annexed  to  goods  so  as  to  follow  the  property  in 
the  goods  either  at  common  law  (a;)B3  or  ln  equity  (y)  .94 

By  statute  18  &  19  Vict.  c.  Ill  the  indorsement  of  a  bill  of  lading  operates 
as  a  legal  transfer  of  the  contract,  if  and  whenever  by  the  law  merchant  it 
operates  as  a  transfer  of  the  property  in  the  goods. 

II.  Land  (z) . 

a.  Relations  between  landlord  and  tenant  on  a  demise. 
Burden : 

of  lessee's  covenants  As  to  an  existing  thing  parcel  of  the 

demise,    assignees    are    bound    whether 
named  or  not. 

As  to  something  to  be  newly  made  on 
the  premises,  assignees  are  bound  only 
if  named  ( a ) . 


236]    *of   lessor's   covenants 

Benefit : 

of  lessee's   covenants 


runs   with   the   reversion. 
(32  Hen.  VIII.  c.  34.) 


runs  with  the  reversion. 
(32  Hen.  VIII.  c.  34.) 
The   statute   of   Hen.   VIII.   applies   only   to   demises   under   seal  (6),   and 
includes  (by  construction  in  Spencer's  case)  only  such  covenants  as  touch  and 


(x)  3rd  resolution  in  Spencer's 
case,  1  Sin.  L.  C.  05 ;  Splidt  v.  Bowles 
(1808)  10  East  279,  10  R.  R.  296. 
"  In  general  contracts  do  not  by  the 
law  of  England  run  with  goods " : 
Blackburn  on  Sale,  276. 

(y)  De  Mattos  v.  Gibson  (1858)  4 
De  G.  &  J.  276,  295. 

(s)  On  this  generally  see  Dart  V. 
&  P.  2.  862  sqq. ;  3rd  Report  of  R.  P. 
Commission,  Dav.  Conv.  1.  122  (4th 
ed. )  ;  and  above  all  the  notes  to 
Spencer's  case  in  1  Sm.  L.  C. :  and 
also  as  to  covenants  in  leases  the 
notes  to  Thursby  v.  Plant,  1  Wms. 
Saund.    278-281,    299,    305.       [Cove- 


nants Running  with  the  Land,  by 
Henry  U.  Sims,  Chicago,   1901.] 

{a)  As  to  this  distinction,  see  1 
Sm.  L.  C.  67  sqq.  [American  Straw- 
board  Co.  v.  Haldeman  Paper  Co.  83 
Fed.  Rep.  619,  624;  Hansen  v.  Myer, 
81  111.  321;  Thompson  r.  Rose,  8 
Cow.  266 ;  Tallman  v.  Coffin,  4  N.  Y. 
134;  Masury  v.  Southworth,  9  Ohio 
St.  340;  Brown  v.  Railway  Co.  36 
Oreg.  128;  Cronin  v.  Watkins,  1 
Tenn.  Ch.  119;  Doty  v.  Railroad  Co. 
103  Tenn.  564;  Hartung  v.  Witte,  59 
Wis.  285.] 

(0)  e.  g.  Smith  v.  Eggington 
(1874)  L.  R.  9  C.  P.  145,  43  L  J.  C. 
P.  140. 


93  A  warranty  is  not  enforceable  by  a  sub-purchaser  of  the  warranted 
chattel.  Smith  v.  Williams,  117  Ga.  782;  Prater  v.  Campbell,  110  Ky.  23. 
As  to  the  right  of  a  subpurchaser  to  sue  in  tort,  see  Skinn  v.  Reutter,  (Mich.) 
03  L.  R.  A.  743,  and  note. 

94  A  restrictive  agreement  as  to  the  use  of  chattels  cannot  be  enforced 
against  a  sub-purchaser  with  notice.  Taddy  1:  Sterious,  20  T.  L.  R.  102; 
Apolljnaris  Co.  v.  Scherer,  27  Fed.  Rep.  18;  Bobbs-Merrill  Co.  v.  Snellenburg, 
13]  Fed.  Reo.  530;  Garst  v.  Hall  &  Lyon  Co.,  179  Mass.  588.  But  see  contra, 
New  York  Bank  Note  Co.  r.  Hamilton,  &c.  Co.,  28  N.  Y.  App.  Div.  411; 
Murphy  v.  Christian  Press,  etc.,  Co.,  38  N.  Y.  App.  Div.  426 ;  17  Harv.  L.  Rev. 
415. 


COVENANTS   RUNNING   WITH   THE    LAND.  299 

concern  the  thing  demised  ( o )  .95     It  applies  only  to  the  reversion  which  the 
covenanter  had  at  the  time  of  entering  into  the  covenant  ( d ) . 

of  lessor's  covenants  runs  with  the  tenancy. 

See  also  44  &  45  Vict.  c.  41,  ss.  10,  11,  58. 

Note. 

(i)  The  lessee  may  safely  pay  rent  (e)  to  his  lessor  so  long  as  he  has  no 
notice  of  any  grant  over  of  the  reversion:  4  &  5  Anne  c.  3  [in 
Rev.  Stat.:  al  4  Anne  c.  16],  which  is  in  fact  a  declaration  of  common 
law:   see  per  Willes  J.,  L.  R.  5  C.  P.  594. 

(ii)  The  lessee  may  still  be  sued  on  his  express  covenants  (though  under 
the  old  practice  he  could  not  be  sued  in  debt  for  rent)  after  an 
assignment  of  the  term  (f).98 

(iii)  The  doctrine  concerning  a  reversion  in  a  term  of  years  is  the  same 
as  concerning  a  freehold  reversion  ( g ) . 

(It)  Where  the  statute  of  Henry  VIII.  does  not  apply,  the  assignee  of 
the  reversion  cannot  sue  an  original  lessee  who  has  assigned  over 
all  his  estate,  there  being  neither  privity  of  estate  nor  privity  of 
contract  (h). 

/S.  Mortgage  debts. 
The   transfer  of  a  mortgage  security  operates  in  equity  as   a   transfer  of 
the  debt   (i).97     Notice  to  the  mortgagor  is  not  needed  to  make  the  assign- 

(o)   For  the  meaning   of   this   see  Scaltock  v.  Harston    (1875)    1   C.   P. 

1   Sm.  L.   C.  65;   Fleetwood  V.   Hull  D.  106,  45  L.  J.  C.  P.  125. 
(1889)  23  Q.  B.  D.  35,  58  L.  J.  Q.  B.  (f)    1  Sm.  L.  C.  24,  1  Wms.  Saund. 

341.      [Clegg    v.    Hands,    44    Ch.    D.  298. 

503;    White   v.    Southend    Hotel   Co.  (g)    1  Sm.  L.   C.  74,  75. 

[1897]   1  Ch.  767.]  (h)   Allcock  v.  Moorhouse    (1882) 

{d)   Mutter   v.    Trafford    [1901]    1  9  Q.  B.  Div.  366. 
Ch.  54,  70  L.  J.  Ch.  72.  (i)   This    is    one    of    the   cases    in 

(e)  In  the  case  of  the  lessee's  which  the  equitable  transfer  of  a 
covenants  other  than  for  payment  of    ,   debt  is  not  made  =  a  legal  transfer 

rent,  an  assignee  of  the  reversion  is  by    the    Judicature    Act,     1873.      In 

not  bound  to  give  notice  of  the  as-  practice  an  express  assignment  of  the 

signment  to  the  lessee  as  a  condition  debt  is  always  added:  the  old  power 

precedent    to    enforcing    hia    rights:  of   attorney    however    is.  now   super- 
fluous. 

85  Northern  Trust  Co.  v.  Snyder,  76  Fed.  Rep.  34 ;  Salesbury  v.  Shirley, 
66  Cal.  223;  Wiggins  Ferry  Co.  v.  Railway  Co.,  94  111.  83;  Gordon  v.  George 
12  Ind.  408;  Shaber  v.  St.  Paul  Water  Co.,  30  Minn.  179;  Norman  v.  Wells, 
17  Wend.  136 ;  Norfleet  v.  Cromwell,  70  N.  C.  634,  640 ;  Masury  v.  Southworth, 
9  Ohio  St.  340. 

96  Wilson  v.  Gerhardt,  9  Col.  585;  Harris  r.  Heackman,  62  la.  411;  Balti- 
more v.  Peat,  93  Md.  696;  Pfaff  v.  Golden,  126  Mass.  402;  Greenleaf  v. 
Allen,  127  Mass.  248 ;  Rees  v.  Lowy,  57  Minn.  381 ;  Bouscaren  v.  Brown,  50 
Neb.  722;  Harmonv  Lodge  v.  White,  30  Ohio  St.  569;  Smith  v.  Harrison,  42 
Ohio  St.  180;  Gbegan  v.  Young,  23  Pa.  18. 

97  Carpenter  v.  Longan,  16  Wall.  271,  274;  Converse  v.  Michigan  Dairy  Co., 
45  Fed.  Rep.  18;  McHugh  v.  O'Connor,  91  Ala.  241;  Sanford  r.  Kane,  133  111. 
199;  Hamilton  v.  Browning,  94  Ind.  242;  Meeker  Co.  Bank  r.  Young,  51  Minn. 
254;  Gamble  r.  Wilson,  33  Neb.  270;  Cram  v.  Cottrell,  48  Neb.  646:  Tildon  r. 
Stilson,  49  Neb.  382;  Jackson  v.  Blodget,  6  Cow.  202;  Jackson  v.  Willard,,4 
Johns.  41 ;  Holmes  v.  Gardner,  50  Ohio  St.  167 ;  Stimpson  v.  Bishop,  82 
Va.  190. 

An  assignment  of  the  mortgage  alone  is  a  nullity.  Kernohan  v.  Manss,  53 
Ohio  St.  118,  133;  Boyle  v.  Lybrand,  113  Wis.  79. 


300  PERSONS    AFFECTED    BY    CONTRACT. 

"ment   valid ;    but   without   such   notice   the   assignee   is   bound  by  the    [237 
state  of  the  accounts  between  mortgagor  and  mortgagee  (fc).98 

y.    Rent-charges    and    annuities    imposed    on    land    independently    of 

tenancy  or  occupation  (I). 

An  agreement  to  grant  an  annuity  charged  on  land  implies  an  agreement 

to  give  a  personal  covenant  for   payment  (m)  ;   but  by  a  somewhat  curious 

distinction  the  burden  of  a  covenant  to  pay  a  rent-charge  does  not  run  with 

the  land  charged,  nor  does  the  benefit  of  it  run  with  the  rent  (»).99 

d.  Other    covenants    not   between    landlord    and    tenant,    relating    to 

land  and  entered  into  with  the  owner  of  it. 
The  benefit  runs  with  the  covenantee's  estate  so  that  an  assignee  can 
sue  at  common  law.  The  lessee  for  years  of  the  covenantee  may  enforce 
the  covenant  as  an  assign  if  assigns  are  named  (0).  It  is  immaterial 
whether  the  covenanter  was  the  person  who  conveyed  the  land  to  the 
covenantee  or  »  stranger  (p).l  The  usual  vendor's  covenants  for  title  come 
under  this  head.  It  is  doubtful  whether  a  bona  fide  purchaser  from  a 
purchaser  who  obtained  his  conveyance  by  fraud  can  in  any  circumstances 
sue  on  the  former  vendor's  covenants  for  title  (q). 

e.  The  covenants  entered  into  by  the  owner. 

The  burden  of  such  covenants  appears  on  the  whole  not  to  run  with  the 
land   in    any   case   at    common    law  (r).2     But   where   a    right   or    easement 

(7c)   Jones    v.     Gibbons     (1864)     9  (p)    Contra  Sugd.  V.   &  P.  584-5, 

Ves.  407,  411,  7  R.  R.  247;  Matthews  but    alone    among    modern    writers. 

v.    \,'allwyn   (1798)    4  Ves.   118,   126.  The  cases  from  the  Year  Books  relied 

(I)    These    must    be    regarded    as  on    by    Lord    St.    Leonards     (Paken- 

arising    from    contract     (we    do    not  ham's  case,  H.  42  E.  III.  3,  pi.   14; 

speak   of    rents   or    services    incident  Home's  case,  M.  2  H.  IV.  6,  pi.  25) 

to   tenure)  :    the   treatment   of   rent-  seem  to  show  only  that  it  was  once 

charges  in  English  law  as  real  rights  thought    doubtful    whether    the    as- 

or    incorporeal    hereditaments    seems  signee  could  sue  without  being  also 

arbitrary.     For   a   real   right  is   the  heir  of  the  original  covenantee.    See 

power    of    exercising     some     limited  also    O.    W.    Holmes,    The    Common 

part  of  the  rights  of  ownership,  and  Law,  395,  404. 

is   quite   distinct  from  the   right  to  (q)    Onward    Building    Society    v 

receive  a  fixed  payment  without  the  Smithson   [1893]    1   Ch.   1,  15,  62  L 

immediate  power  of  doing  any  act  of  J.  Ch.   138,  C.  A. 
ownership  on  the  property  on  which  (r)    3rd  report  of  R.   P.   Commis 

the  payment  is  secured.  sioners,    in    1    Dav.    Conv.      Auster 

(m)   Bower    v.    Cooper     (1842)     2  berry     v.     Corporation     of     Oldham 

Ha.  408,  11  L.  J.  Ch.  287.  (1885)   29  Ch.  Div.  750,  55  L.  J.  Ch 

(n)    1   Wins.   Saund.  303.  633;    Farwell  J.   in   Rogers  v.   Hose 

(0)   Taite    v.    Gosling     (1879)     11  qood  [1900]  2  Ch.  388,  395;  69  L.  J 

Ch.  D.  273,  48  L.  J.  Ch.  397.  Ch.  59. 

98  See  supra,  p.  281. 

»9  As  to  the  rule  in  the  United  States  see  Sm.  L.  C.  (8th  Am.  ed.)  I,  189. 

1  See  Shaber  i\  St.  Paul  Water  Co.,  30  Minn.  179 ;  Mygatt  r.  Coe,  124 
N.  Y.  229;  Manderbach  v.  Bethany  Orphans'  Home,  109  Pa.  231;  Gulf,  etc., 
Ry.'  Co.  l:  Smith,  72  Tex.  122. 

2  "  This  doctrine  has  not  usually  been  accepted  in  the  "United  States.  It  has 
been  held  in  many  decisions  in  this  Commonwealth  and  elsewhere,  that  at  law 
the  burden  of  a  covenant  may  run  with  the  land.  Savage  v.  Mason,  3  Cush. 
500;  Bronson  v.  Coffin,  108  Mass.  175;  Richardson  v.  Tobey,  121  Mass.  457; 
King  ».  Wight,  155  Mass.  444;  Joy  r.  St.  Louis,  138  U.  S.  1 ;  Fitch  v.  Johnson, 
104  111.  Ill;  Hazlett  v.  Sinclair,  76  Ind.  488;  Norfleet  v.  Cromwell,  64  N.  C.  1 ; 
Pomeroy  Eq.  Jur.  1295.''  Whittenton  Mfg.  Co.  r.  Staples,  164  Mass.  319,  327. 
See  as  to  the  liability  of  purchasers,  both  at  law  and  in  equity,  Ameri- 
can Strawboard  Co.  v.  Haldeman  Paper  Co.,  83  Fed.  Rep.  619;   Robbins  v. 


COVENANTS   RUNNING   WITH   THE    LAND.  301 

affecting  land — such  as  a  right  to  get  minerals  free  from  the  ordinary 
duty  of  not  letting  down  the  surface — is  granted  subject  to  the  duty  of 
paying  compensation  for  damage  done  to  the  land  by  the  exercise  of  the 
*right,  there  the  duty  of  paying  compensation  runs  at  law  with  the  benefit  [238 
of  the  grant.  Here,  however,  the  correct  view  seems  to  be  that  the  right 
itself  is  a  qualified  one — vis.  to  let  down  the  surface,  &c,  paying  com- 
pensation,  and  not  otherwise  ( s ) . 

The  burden  is  said  to  run  with  the  land  in  equity (t)  (subject  to  the 
limitation  to  be  mentioned)  in  this  sense,  that  a  court  of  equity  will  en- 
force the  covenant  against  assignees  who  have  actual  or  constructive  (u) 
notice  of  it;  and  when  the  covenant  is  for  the  benefit  of  other  land  (as  in 
practice  is  commonly  the  case)  the  benefit  generally  though  not  always 
runs  with  that  other  land. 

Explanation.  Let  us  call  the  land  on  the  use  of  which  a  restriction  is 
imposed  by  covenant  the  quosi-serrient  tenement,  and  the  land  for  whose 
benefit  it  is  imposed  the  quasi-dominant  tenement.  Now,  restrictive  cove- 
nants may  be  entered  into 

(1)  By  a  vendor  as  to  the  use  of  other  land  retained  or  simultaneously 

sold,  for  the  benefit  of  the  land  sold  by  him: 
In   this   case   the  burden  runs   with  the   quasi-servient   tenement   and   the 
benefit  also  runs  with  the  quasi-dominant  tenement. 

(2)  By  a  purchaser  as  to  the  use  of  the  land  purchased  by  him,  for  the 

benefit  of  other  land  retained  or  simultaneously  sold  by  the  vendor : 

In  this  case  the  burden  runs  with  the  quasi-servient  tenement,  and  the 
benefit  may  run  with  the  quasi-dominant  tenement  when  such  is  the  inten- 
tion of  the  parties,  and  especially  when  a  portion  of  land  is  divided  intc 
several  tenements  and  dealt  with  according  to  a  prescribed  plan  ( r )  .3 

(s)   Aspdcn    v.    Seddon     (1876)     1  (1871)  L.  R.  11  Eq.  338,  40  L.  J.  Cli. 

Ex.  Div.  496,  509,  46  L.  J.  Ex.  353.  294;   Benals  v.   Gowlishaw    (1S78)    9 

(t)   The    phrase   is   not   free   from  Ch.  D.  125,  11  Ch.  Div.  866,  48  L.  J. 

objection:   see  per  Rigby  L.J.   [1900]  Ch.  830;  Spicer  v.  Martin   (1888)    14 

2  Ch.  at  p.  401.  App.  Ca.  12,  58  L.  J.  Ch.  309;  Rogers 

(«)    Wilson  v.  Bart    (1866)    L.  R.  v.    Bosegood,    [1900]    2    Ch.    388,    69 

1     Ch.     463;     Patman    v.     Borland  L.  J.  Ch.  652,  C.  A.     [See  also  John 

(1881)    17   Ch.   D.  353,  50  L.  J.   Ch.  Brothers  Co.  v.  Holmes  [1900]   1  Ch. 

642.  188;   Holloway  v.   Hill    [1902]   2   Ch. 

(v)   Keates  v.   Lyon,  L.   R.  4  Ch.  612;    Osborne   v.    Bradley    [1903]    2 

218,  38  L.  J.  Ch.  357,  and  other  cases  Ch.  446;   Formby  v.  Barker  [1903]  2 

there   considered;    Harrison  v.   Good  Ch.  539.] 

Webb,  68  Ala.  393;  Webb  v.  Robbins,  77  Ala.  176;  Railway  Co.  v.  Gilmer,  85 
Ala.  422 ;  Fresno  Canal  Co.  v.  Dunbar,  80  Cal.  530 ;  Hottell  v.  Farmers'  Assoc, 
25  Col.  67;  Railroad  Co.  v.  Reeves,  64  Ga.  492;  Fitch  v.  Johnson,  104  111.  Ill; 
Hazlett  v.  Sinclair,  76  Ind.  488;  Railroad  Co.  v.  Power,  15  Ind.  App.  179; 
Savage  v.  Mason,  3  Gush.  500;  Bronson  v.  Coffin,  108  Mass.  175;  Norcross  r. 
James,  140  Mass.  188;  Whittenton  Mfg.  Co.  1:  Staples,  164  Mass.  319,  327; 
Burbank  v.  Pillsbury,  48  N.  H.  475;  Nye  v.  Hoyle,  120  N.  Y.  195;  Easter  v. 
Railroad  Co.,  14  Ohio  St.  48;  Huston  v.  Railroad"  Co.,  21  Ohio  St.  235;  Hickey 
v.  Railway  Co.,  51  Ohio  St.  40;  Brown  v.  Railroad,  36  Oreg.  128;  Landell  r. 
Hamilton,"  175  Pa.  327;  Doty  v.  Railway  Co..  103  Tenn.  564;  Kellogg  v.  Robin- 
son, 6  Vt.  276;  Wooliscroft  r.  Norton,  15  Wis.  198;  Hartung  v.  Witte,  59  Wis 
285;  Crawford  v.  Witherbee,  77  Wis.  419. 

3  Robbins  v.  Webb,  68  Ala.  393;  Willoughby  v.  Lawrence,  116  111.  11 ;  Halle  r. 
Newbold,  69  Md.  265;  Parker  v.  Nightingale,  6  Allen,  341;  Whitney  v.  Rail- 
road Co.,  11  Gray,  359;  Peck  v.  Conway,  119  Mass.  546;  Sharp  r.  Ropes,  110 
Mass.  381.;  Payson  v.  Burnham,  141  Mass.  547;  Hamlen  v.  Werner,  144 
Mass.  396;  Hopkins  v.  Smith.  162  Mass.  444;  Hills  v.-  Metzenroth  173  Mass 
423;  Burbank  v.  Pillsbury,  48  N.  H.  475,  482;  Winfield  v.  Henning,  21  N  J 
Eq.  188 ;  Kirkpatrick  v.  Peshine,  24  N.  J.  Eq.  206 ;  Hayes  v.  Waverly,  &c.  Co., 


302  PERSONS  AFFECTED  BY  CONTRACT. 

All  these  rights  and  liabilities  being  purely  equitable  are  like  all  other 
equitable  rights  and  liabilities  subject  to  the  rule  that  purchase  for  value 
without  notice  is  an  absolute  defence.  An  assign  of  a  covenantee  may  be 
entitled  to  the  benefit  of  the  covenant  without  having  known  of  it  at  thj 
date  of  his  purchase :  the  question  is  whether  he  acquired  it  as  annexed 
to  the  land  (%) . 

Further,  this  doctrine  applies  only  to  restrictive,  not  to  affirmative  cove- 
nants. Thus  it  does  not  apply  to  a  covenant  to  repair.  "  Only  such  a 
covenant  as  can  be  complied  with  without  expenditure  of  money  will  be 
enforced  against  the  assignee  on  the  ground  of  notice  "( y )  A 

239]  *  Further  remarks:  as  to  bills  of  lading.  The  only  points  which 
seem  to  call  for  more  notice  here  are  the  doctrines  as  to  bills  of  lading 
(I.)  and  restrictive  covenants  as  to  the  use  of  land  (II.  e). 

As  to  (I.)  it  is  to  be  borne  in  mind  that  bills  of  lading  are  not 
properly  negotiable  instruments,  though  they  may  be  called  so  "  in  a 
limited  sense  as  against  stoppage  in  transitu  only"  (z).5  As  far  as 
the  law  merchant  goes  the  bill  of  lading  only  represents  the  goods, 
and  does  not  enable  any  one  who  gets  it  into  his  hands  to  give  a 
better  title  than  his  own  to  a  transferee ;  "  the  transfer  of  the  symbol 
does  not  operate  more  than  a  transfer  of  what  is  represented"  (a).6 

(x)   Rogers  v.  Bosegood,  last  note.  Ewin  (1887)   37  Ch.  Div.  74,  57  L.  J. 

(y)   Lindley    L.    J.      Haywood    v.  Ch.   95. 
Brunswick  Building  Society  (1881)  8  (s)   Per  Willes  J.  Fuentes  v.  Mon- 

Q.  B.  Div.   403,   410,  51  L.  J.  Q.   B.  tis  (1868)  L.  R.  3  C.  P.  at  p.  276,  38 

73 ;  L.  &  S.  W.  Ry.  Go.  v.  Gomm,  20  L.  J.  C.  P.  95. 

Ch.  Div.  562,  51  L.  J.  Ch.  530;  Aus-  (a)    Gurney  v.  Behrend    (1854)    3 

terberry    v.    Corporation    of    Oldham,  E.  &  B.  622,  633,  23  L.  J.  Q.  B.  265. 
note     (v),    p.    *237,    above;    Hall    v. 

51  N.  J.  Eq.  345;  Cornish  v.  Wiessman,  56  N.  J.  Eq.  610;  Roberts  v.  Scull,  58 
N.  J.  Eq.  396;  Barrow  v.  Richard,  8  Paige,  351;  Gilbert  v.  Peteler,  38  N.  Y. 
165 ;  Trustees  r.  Lynch,  70  N.  Y.  440 ;  Phoenix  Ins.  Co.  v.  Continental  Ins.  Co., 
87  N.  Y.  400;  Lew'is  v.  Gollner,  129  N.  Y.  227;  Rowland  v.  Miller,  139  N.  Y. 
93:  Stines  r.  Dorman,  25  Ohio  St.  580;  Shields  c.  Titus,  46  Ohio  St.  528;  St. 
Andrew's  Church's  Appeal,  67  Pa.  512;  Muzzarelli  v.  Hulshizer,  163  Pa.  643; 
Green  v.  Crcighton,  7  R.  I.  1 ;  Lydick  c.  Railroad  Co.,  17  W.  Va.  427.  Cp. 
Clapp  v.  Wilder,  170  Mass.  332;  Hazen  v.  Mathews,  1S4  Mass.  388;  American 
Unitarian  Assoc,  v.  Minot,  185  Mass.  589 ;  Hemsley  v.  Hotel  Co.,  62  N.  J.  Eq. 
164,  63  N.  J.  Eq.  804;  Equitable  Afis'n  r.  Brennan,  148  N.  Y.  661.  See  further 
Ames,  Cas.  Eq.  Jur.  149,  n.,  152,  n.,  162,  n.,  165,  n.,  180,  n.;  29  Am.  L.  Reg. 
73;   17  Harv.  L.  Rev.  174. 

4  The  law  seems  otherwise  in  this  country.  Whittenton  Mfg.  Co.  r.  Staples, 
164  Mass.  319,  327;  Burbank  r.  Pillsbury,  48  N.  K.  475,  482;  Gould  r. 
Partridge,  52  N.  Y.  App.  Div.  40;  Bald  Eagle  Valley  R.  Co.  v.  Nittany  Valley 
R.  Co.,  171  Pa.  284. 

5  Munroe  r.  Philadelphia  Warehouse  Co.,  75  Fed.  Rep.  545;  Raleigh,  etc., 
R.  Co.  i.  Lowe,  101  Ga.  320;  Knight  v.  Railway  Co.,  141  111.  110;  Dows 
v.  Perrin,   16  N.  Y.   325. 

6  Shaw  r.  Railroad  Co.,  101  U.  S.  557,  565;  Pollard  v.  Vinton,  105  IT.  S. 
7;  Friedlander  v.  Texas,  &c.  Ry.  Co:,  130  U.  S.  416;  Voss  v.  Robertson, 
46  Ala.  483 ;  Tison  r.  Howard,  57  Ga.  410 ;  Railroad  r.  Live  Stock  Bank,  178 
111.  506;  Anchor  Mill  Co.  i.  Railroad  Co.,  102  la.  262;  Stollenwerck  v. 
Thacher,  115  Mass.  224;  Bank  -v.  Bemis,  177  Mass.  95.  98;  Bank  r.  El- 
liott, 83  Minn.  469;  Hazard  r.  Rnilroad,  67  Miss.  32;  Skilling  v.  Bollman, 
6  Mo.  App.  76:  Dows  r.  Perrin.  16  N.  Y.  325:  Bank  of  Batavia  v.  Railroad, 
106  X.  Y.  195;  Emery's  Sons  I.  Bank.  25  Ohio  St.  360,  368;  Strauss  v. 
Wessel,  30   Ohio  St.  211;   Empire  Transportation  Co.   r.  Steele,  70  Pa.   188. 


COVENANTS   RUNNING   WITH   THE    LAND.  303 

And  the  whole  effect  of  the  statute  is  to  attach  the  rights  and  lia- 
bilities of  the  shipper's  contract  not  to  the  symbol,  but  to  the  property 
in  the  goods  themselves  (&)  :  the  right  to  sue  on  the  contract  con- 
tained in  the  hill  of  lading  is  made  to  "  follow  the  property  in  the 
goods  therein  specified;  that  is  to  say,  the  legal  title  to  the  goods 
as  against  the  indorser"  (c)..7 

As  to  burden  of  covenants  running  with  land.  As  to  (II.  c)  the  theory 
of  the  common  law  is  to  the  following  effect.  The  normal  operation 
of  a  contract,  as  we  have  already  had  occasion  to  say,  is  to  limit  or 
cut  short  in  some  way  the  contracting  party's  control  over  his  own 
actions.  Among  other  kinds  of  actions  the  exercise  of  rights  of 
ownership  over  a  particular  portion  of  property  may  be  thus  limited. 
So  far  then  an  owner  "may  bind  himself  by  covenant  to  allow  any 
right  he  pleases  over  his  property"  (d)  *or  to  deal  with  it  in  [240 
any  way  not  unlawful  or  against  public  policy  (e).  But  if  it  be 
sought  to  annex  such  an  obligation  to  the  property  itself,  this  is  a 
manifest  departure  from  the  ordinary  rules  of  contract.  An  obligation 
attached  to  property  in  this  manner  ceases  to  be  only  a  burden  on  the 
freedom  of  the  contracting  party's  individual  action,  and  becomes  prac- 
tically a  burden  on  the  freedom  of  ownership.  Now  the  extent  to  which 
the  law  will  recognize  such  burdens  is  already  defined.  Certain  well- 
known  kinds  of  permanent  burdens  are  imposed  by  law,  or  may  be 
imposed  by  the  act  of  the  owner,  on  the  use  of  land,  for  the  permanent 
benefit  of  other  land:  these,  and  these  only,  are  recognized  as  being 
necessary  for  the  ordinary  convenience  of  mankind,  and  new  kinds 
cannot  be  admitted.  And  this  principle,  it  may  be  observed,  is  not 
peculiar  to  the  law  of  England  (/).  Easements  and  other  real  rights 
in  re  aliena  cannot  therefore  be  extended  at  the  arbitrary  discretion 
of  private  owners :  "  it  is  not  competent  for  an  owner  of  land  to  ren- 

(6)   Fox   V.    ~Nott    (1861)    6   H.   &  (e)    It  is  not  unlawful  for  a  land- 

N.    630,     636,     30    L.    J.    Ex.     259;  owner  to  let  all  his  land  lie  waste; 

Smurthwaite   v.    Wilkins    (1862)     11  but  a  covenant  to  do  so  would  prob- 

C.  B.  N.  S.  842,  850,  31  L.  J.  C.  P.  ably  be  invalid. 

214.  (f)    Cp.    Savigny,    Obi.    1.    7;    and 

(c)  The  Freedom,  L.  R.  3  P.  C.  for  a  singular  coincidence  in  detail, 
594,  599.  As  to  indorsement  by  way  D.  8.  3.  de  serv.  praed.  rust.  5  §  1, 
of  pledge,  see  Sewell  v.  Burdick  6  pr.  =  Clayton  v.  Corby  ( 1843 )  5 
(1884)    10  App.  Ca.  74,  103.  Q.  B.  415,  14  L.  J.  Q.  B.  364. 

(d)  Hill  v.  Tupper   (1863)   2  H.  & 
C.  121,  127,  32  L.  J.  Ex.  217. 

But   see  Pollard    r.  Reardon,   65   Fed.   Rep.   848;   Ratzer   v,  Burlington,   &c. 
Railway  Co.,  64  Minn.  245.     See  further  7  Yale  L.  J.  169,  219. 

7  Under  the  reformed  procedure  the  transferee  of  a  bill  of  lading  may 
bring  an  action  thereon  in  his  own  name  against  the  carrier.  Bank  v. 
Union  R.  &  T.  Co.,  69  N.  Y.  373. 


304  PERSONS    AFFECTED    BY    COXTRACT. 

der  it  subject  to  a  new  species  of  burden  at  his  fancy  or  caprice  "  (g).8 
Still  less  is  it  allowable  to  create  new  kinds  of  tenure  or  to  attach 
to  property  incidents  hitherto  unknown  to  the  law.  But  if  it  is  not 
convenient  or  allowable  that  these  things  should  be  done  directly  in  the 
form  of  easements,  neither  is  it  convenient  or  allowable  that  they 
should  be  done  indirectly  in  the  form  of  obligations  created  by  con- 
241  ]  tract  but  annexed  to  ownership.  If  the  *burden  of  restrictive 
covenants  is  to  run  with  land,  people  can  practically  create  new  ease- 
ments and  new  kinds  of  tenure  to  an  indefinite  extent.  Such  appears 
to  be  the  view  of  legal  policy  on  which  the  common  law  doctrine 
rests  (h). 

Doctrine  in  equity.  The  history  of  the  doctrine  in  the  Court  of 
Chancery  is  somewhat  curious.  Lord  Brougham,  in  an  elaborate 
judgment  which  seems  to  have  been  intended  to  settle  the  ques- 
tion (i),  treated  what  we  have  called  the  common  law  theory  as  final, 
and,  ignoring  the  difference  between  positive  and  negative  covenants, 
broadly  laid  down  that  where  a  covenant  does  not  run  with  the  land 
at  law,  an  assignee  cannot  be  affected  by  notice  of  it.  But  this  judg- 
ment, though  treated  as  an  authority  in  courts  of  law  (fc),  has  never 
been  followed  in  courts  of  equity.  After  being  disregarded  in  two 
reported  cases  (I)  it  was  overruled  by  Lord  Cottenham  in  TuTk  v. 
Moxhay  (m),  now  the  leading  case  on  the  subject.     The  most  im- 

(.9)    Per     Martin     B.     Nuttall     v.  ( 1881 )  6  App.  Ca.  740,  50  L.  J.  Q.  B. 

Braceivell   (1866)   L.  R.  2  Ex.  10,  36  689. 

L.  J.  Ex.  1;  for  the  C.  L.  principles  (h)   See    per    Willes    J.    delivering 

generally,     see     Ackroyd     v.     Smith  the  judgment  of  the  Ex.  Ch.  in  Den- 

(1850)  "10  C.  B.   164,   19  L.  J.  C.  P.  nett  v.  Atherton   (1872)    L.  R.   7  Q. 

315;    Bailey   v.    Stephens    (1862)     12  B.   316,   325. 

C.   B.  N.   S.  91,  31  L.  J.   C.   P.  226.  (i)   Keppell  v.  Bailey   (1834)   2  M. 

Rights  of  this  kind   are  to  be  care-  &  K.   517,   527,   39   R.   R.   264,   270; 

fully    distinguished    from    those    ere-  and  see  the  preface  to  that  volume, 

ated    bv    grants    in    gross;     see    per  (7c)    Hill  v.  Tupper   (1863)   2  H.  & 

Willes  J.  ib.  12  C.  B.  N.  S.  111.     The  C.  121,  32  L.  J.  Ex.  217. 

Courts    might    have    held    that    new  (I)    Whatman  v.   Gibson   (1838)    9 

negative  easements  might  be  created,  Sim.    196,    47    R.    R.    214;    Mann  V. 

but  not  positive  ones,  but  this  solu-  Stephens    (1846)    15    Sim.   377. 

tion  does  not  seem  to  have  ever  been  (m)    (1848)    2   Ph.   774.      See  per 

proposed;    and  the  whole   subject  of  Fry  J.  in  Luker  v.  Dennis   (1877)   7 

negative    easements    is    still   obscure,  Ch.  T>.  227,  at  pp.  235,  236,  47  L.  J. 

aR   is   shown   by  the  widely  different  Ch.  174. 
opinions    held    in    Bolton    v.    Angus 

8  Taylor  r.  Owen,  2  Blackf.  301;  Norcross  v.  James,  140  Mass.  188; 
Hauessler  r.  Missouri  Iron  Co..  110  Mo.  188;  Brewer  r.  Marshall,  19  N.  J. 
Eq.  537;  Blount  v.  Harvey,  6  Jones  L.  186,  190;  Masury  r.  Southworth,  9 
Ohio  St.  340,  348;  Tardy  r.  Creasy,  81  Va.  553;  West  Va.  Transp.  Co.  v. 
Pipe  Line  Co.,  22  W.  Va*.  600.  Cp.  Kettle  River  R.  Co.  v.  Eastern  Ry.  Co., 
41  Minn.  461;  Huntington  r.  Asher,  96  X.  Y.  604:  Hodge  v.  Sloan,  107 
N.  Y.  244.     See  further  Ames,  Cas.  Eq.  Jur.  186. 


RESTRICTIVE    COVENANTS    AS    TO    LAND.  305 

portant  of  the  recent  cases  are  Keates  v.  Lyon  (n)  (where  the  au- 
thorities are  collected),  Haywood  v.  Brunswick  Building  Society  (o), 
which  explicitly  decided  that  the  rule  applies  only  to  negative  cove- 
nants,9 and  Nottingham  Brick  Co.  v.  Butler  (p).  When  a  vendor  sells 
land  in  building  lots  and  takes  restrictive  covenants  in  identical  terms 
from  the  several  purchasers,  not  entering  into  any  covenant  himself, 
it  is  a  question  of  fact  whether  these  covenants  are  meant  to  operate 
for  the  protection  of  purchasers  as  *between  themselves,  or  as  [242 
against  the  vendor  in  his  dealings  with  parcels  retained  by  him  (q). 
Where  such  is  the  intention,  any  purchaser  can  enforce  the  restriction 
against  any  other  purchaser,  or  his  assigns  having  notice,  or  the 
vendor  as  the  case  may  be,  nor  can  the  vendor  release  the  covenant 
to  any  purchaser  or  his  successors  in  title  without  the  consent  of 
all  the  rest  (r). 

Foundation  of  the  equitable  doctrine.  The  result  of  the  equitable 
doctrine  is  in  practice  to  enable  a  great  number  and  variety  of  restric- 
tions to  be  imposed  on  the  use  of  land  for  an  indefinite  time,  subject 
to  the  contingency  of  a  purchase  for  value  without  notice  of  the 
restriction  (s).  But  equity  does  not  profess  to  enforce  a  restrictive 
covenant  on  a  purchaser  with  notice  as  being  a  constructive  party 
to  the  covenant ;  it  only  restrains  him  from  using  the  land  in  a  manner 
which  would  be  unconscientious  as  depriving  the  covenantee  of  his 
effectual  remedy  (t).     So  far  as  common  law  remedies  go,  covenants 

(n)    (1869)    L.   R.   4    Ch.    218,   38  per  Lord  Macnaghten,  approving  the 

L.  J.   Ch.   357.  statement  of  Hall  V.C.   in  Iienals  v. 

(o)    (1881)    8  Q.  B.  Div.  403,   51  Cowlishaw,  9  Ch.  D.  125,  129.    As  to 

L.  J.   Q.   B.  73.  the  effect  of  a   purchaser  of  lots  in 

(p)  (1886)  16  Q.  B.  Div.  778.  u.  building  estate  under  a  restrictive 
For  the  corresponding  Scottish  doc-  scneme  forming  a  "  sub-scheme  "  by- 
trine,  see  Tli'slop  v.  Leckie  (1881)  6  re-selling  portions  under  new  condi- 
App.  Ca.  560.  tions,  see  Knight  v.  Simmons  [1896] 

(q)  Re  Birmingham  and  District  2  Ch.  294,  65  L.  J.  Ch.  583,  C.  A. 
Land  Co.  v.  Allday  [1893]  1  Ch.  (s)  Where  there  has  once  been 
342,  62  L.  J.  Ch.  90.  As  to  what  such  a  purchase,  a  subsequent  pur- 
is  sufficient  evidence  of  a  "  building  chaser  cannot  be  affected  by  notice, 
scheme,"  Tucker  v.  Vowles  [1893]  See  per  Lindley  L.J.  16  Q.  B.  Div.  at 
1   Ch.    195,   62   L.   J.    Ch.    172.     The  p.  788. 

vendor's  taking  restrictive  covenants  ( t )   "  I  do  not  think  any  covenant 

and   not   reserving    any    part   of   the  runs  with  the  land   in  equity.     The 

property    is    strong    affirmative    evi-  equitable   doctrine   is   that   a   person 

dence',  but  his  reservation  of  part  is  who  takes  with  notice  of  a  covenant 

bv    no    means    conclusive    the   other  is  bound  by  it":   Eigby  L.J.  Rogers 

way  •  v.  Hosegood   [1900]   2   Ch.  388,  401; 

(r)  See  Spicer  v.  Martin  (1888)  12  69  L.  J.  Ch.  652. 
App.   Ca.    12,  23,  58  L.   J.   Ch.   309, 

9  See  supra,  p.  302,  n.  4. 
20 


306  PERSONS    AFFECTED   BY    CONTRACT. 

of  this  kind  can  be  always  or  almost  always  evaded;  if  the  equitable 
remedy  by  injunction  were  confined  to  the  original  covenantor,  that 
also  could  be  evaded  by  a  collusive  assignment.  On  this  principle 
however  an  assign  cannot  be  and  is  not  made  answerable  for  the  active 
performance  of  his  predecessor's  covenant :  he  can  only  be  expected 
not  to  prevent  its  performance.  Hence  the  decisions  to  that  effect 
243]  which  have  been  *cited  (w).  The  jurisdiction  is  a  strictly  per- 
sonal and  restraining  one.  No  rule  of  the  law  of  contract  is  violated, 
for  the  assign  with  notice  is  not  liable  on  the  contract  but  on  a  dis- 
tinct equitable  obligation  in  his  own  person.  Lord  Brougham  fell 
into  the  mistake  of  supposing  that  the  covenant  must  be  operative 
in  equity,  if  at  all,  by  way  of  giving  effect  to  an  intention  to  impose 
permanent  burdens  unknown  to  the  law.  Equity  does  not  trouble 
itself  to  assist  intentions  which  have  no  legal  merits,  and  any  such 
action,  Lord  Brougham  rightly  saw,  was  beyond  its  proper  province. 
The  law  laid  down  in  Keppell  v.  Bailey  (x)  was  erroneous  on  this 
point,  not  from  any  defect  of  reasoning  in  the  judgment,  but  because 
the  reasoning  proceeded  on  an  erroneous  assumption. 

Change  of  conditions.  The  true  principle  is  further  illustrated  by  the 
rule  that  even  with  notice  an  assign  is  not  liable  "  where  an  alteration 
takes  place  through  the  acts  or  permission  of  the  plaintiff  or  those 
under  whom  he  claims,  so  that  his  enforcing  his  covenant  becomes 
unreasonable''  (y).  Were  the  liability  really  on  the  covenant,  noth- 
ing short  of  release  or  estoppel  would  avoid  it. 

(u)   See  a  note  in  L.  Q.  R.  iv.  119  of  a  street  having  been  destroyed  by 

(not  by  the  present  writer)  on  Hall  the   elevated  railway,   the  Court   re- 

v.  Evyin,  36  W.  R.  84,  37  Ch.  Div.  74,  fused  to  enforce  a  covenant  against 

57  L.  J.  Ch.  95,  where  the  doctrine  is  using  the  house  for  trade.     [See  also 

well  explained.  Everstein    v.    Gerstenberg,     186    111. 

(x)  2  M.  &  K.  57,  39  R.  R.  264.  344;  Duncan  v.  Central,  &c.  Railroad 
Other  reasons  with  which  we'  are  not  Co.  85  Ky.  525;  Jackson  v.  Steven- 
concerned  here  were  given ;  the  actual  son,  156  Mass.  496 ;  Troup  v.  Lucas, 
decision  was  perhaps  also  right  on  the  54  N.  J.  Eq.  361 ;  Amerman  v.  Dean, 
ground  that  the  covenant  in  question  132  N.  Y.  355;  Orne  v.  Friedenberg, 
was  not  merely  negative:  see  39  R.  R.  i43  Pa.  48;  Landell  r.  Hamilton,  175 
264,  n.  Pa.    3-31.     Cp.    Reilly    v.    Otto,    108 

(y)    Fry  L.J.  in  Sayers  v.  Colly er  Mich.   330.     The   right  to  relief  was 

(1884)  28  Ch.  Div.  103,  109,  52  L.  J.  held   lost    by   laches    in    Hemsley   r. 

Ch.  770,  explaining  the  limits  of  the  Hotel  Co.  62  K.  J.  Eq.  164,  63  N.  J. 

rule  as  originally  laid  down  in  Duke  Eq.  S04;   Ocean  City  Assoc,  v.  Head- 

of    Bedford    v.    Trustees    of    British  ley,  62  N.  J.  Eq.  322.     In  McGuire  v. 

Museum    (1822)    2  M.  &  K.   552,   39  Caskey,  62  Ohio  St.  419,  the  plaintiff 

R.  R.  288.     In  New  York  this  limita-  had    himself    violated    the    covenant, 

tion    seems    not    to    be    recognized:  but  as  his  violation  was  not  substan- 

Trustees  v.  Thacher  (1882)   87  N.  Y.  tial  the  court  granted  relief.] 
311,   where,    the   residential    amenity 


NECESSITY    OF    INTERPRETATION". 


307 


*  CHAPTER   VI. 

Duties  under  Contract. 


[244 


1.  Interpretation  generally, 
Necessity  of  interpretation, 
Agreements    in    writing:    rule 

against    parol    variations, 
Apparent   exceptions, 
Extrinsic  evidence, 
Customs  of  the  country, 
Trade   usages,    &c, 
Construction :      preference     of 

general  intention, 
Special  rules  of  construction, 

2.  Order  and   Mutuality   of  Per- 

formance, 

Order  of  performance  in  ex- 
ecutory contracts, 

Modern  authorities  look  to  gen- 
eral intention  of  contract, 

Effect  of  default, 

Agreements  presumed  to  be  en- 
tire, 

3.  Default  in  first  or  other  instal- 

ments of  Discontinuous  Per- 
formance, 

Sales  for  delivery  by  instal- 
ments, 

Effect  of  default  in  instal- 
ments, 

Sale  of  Goods  Act, 

4.  Repudiation  of  Contracts, 
A,  Rescission, 

Restitution  of  money,  land, 
chattels,   &c, 

Where  no  performance, 

Repudiation  or  breach  suf- 
ficient, 

1.  Interpretation  generally. 

Necessity  of  interpretation.  We  have  now  gone  through  the  general 
and  necessary  elements  of  a  contract,  and  shall  hereafter  consider 
the  further  causes  which  may  annul  or  restrain  its  normal  effect. 


307 

Election    must    be    mani- 

307 

310 

311 

fested, 
Civil  law  and  Indian  Con- 
tract Act, 
B.  Action  on  the  Contract, 

345 

34| 
3W 

313 
315 
316 

Lord  Cockburn's  rule, 
Inconsistent  with  American 
decisions, 

348 
348 

True  rule, 

350 

317 

Contract  not  terminated, 

351 

318 

Election  need  not  be  mani- 
fested, 

353 

320 

Prospective  inability  to  per- 
form, 

354 

320 
320 

C.  Time   When  Right  or  Ac- 

tion Accrues, 
Explanation    of    early    de- 
cisions, 

355 
356- 

324 
325 

Eochster  v.  De  la  Tour, 
Law  in  England  and  Amer- 
ica, 
Distinction  between  defence 

359 
360 

327 

and  right  of  action, 
Distinction  between  action 
for  restitution  and  action 

361 

327 

on  the  contract, 

362 

327 
332 

No  inconsistency  in  allow- 
ing full   damages   before 
all  performance  due, 

362 

333 

Time  of  performance  fixed 

334 

by  act  of  the  other  party, 
Contracts  to  marry, 

363 
365 

334 

338 

Practical  convenience, 
Illustrations     of     inconve- 

366 

339 

nience, 
Measure  of  damages, 

367 
369 

308  DUTIES    UNDER    CONTRACT. 

This  work  is  not  directly  concerned  with  the  rules  of  law  which  govern 
the  construction,  performance,  and  discharge  of  contracts.  But  we 
cannot  apply  the  principles  by  which  disputes  as  to  the  validity  of 
an  agreement  have  to  be  determined  without  first  determining  what 
the  substance  of  the  agreement  is;  and  a  dispute  as  to  the  original 
substance  and  force  of  a  promise  may  often  be  resolved  into  a  con- 
flict on  the  less  fundamental  question  of  what  is  a  sufficient  per- 
formance of  a  promise  admitted  to  be  binding.  A  summary  view  of 
the  leading  rules  of  interpretation  may  therefore  be  found  useful 
at  this  stage.  We  suppose  an  agreement  formed  with  all  the  positive 
requisites  of  a  good  contract;  and  we  proceed  to  ascertain  what  are 
the  specific  duties  created  by  this  agreement. 

Measure  of  promisor's  duty.  If  there  be  not  any  special  cause  of  ex- 
ception, the  promisor  must  fulfil  the  obligation  which  his  own  act  has 
created.  He  must  perform  his  promise  according  to  its  terms.  Here 
there  are  two  distinct  elements  of  which  either  or  both  may  be  more 
or  less  difficult  to  ascertain :  first  the  terms  in  which  the  promise  was 
made,  and  then  the  true  sense  and  effect  of  those  terms.  The  former 
245  ]  must  be  determined  by  proof  or  admission,  the  latter  by  "'inter- 
pretation, which,  however,  may  have  to  take  account  of  specific  facts 
other  than  those  by  which  the  promise  itself  is  established.  'We 
assume  the  terms  to  be  reduced  to  a  form  in  which  the  Court  can 
understand  them,  as  for  example  by  translation  from  any  language 
of  which  the  Court  does  not  assume  judicial  knowledge,  or  by  ex- 
planation of  terms  of  art  in  sciences  other  than  the  law,  which  is 
really  a  kind  of  translation  out  of  the  language  of  specialists. 

Expectation  of  promisee.  The  nature  of  a  promise  is  to  create  an 
expectation  in  the  person  to  whom  it  is  made.  And,  if  the  promise 
be  a  legally  binding  one,  he  is  entitled  to  have  that  expectation  ful- 
filled by  the  promisor.  It  has,  therefore,  to  be  considered  what  the 
promisor  did  entitle  the  promisee  to  expect  from  him.  Every  ques- 
tion which  can  arise  on  the  interpretation  of  a  contract  may  be 
brought,  in  the  last  resort,  under  this  general  form. 

In  order  to  ascertain  what  the  promisee  had  a  right  to  expect,  we 
do  not  look  merely  to  the  words  used.  We  must  look  to  the  state  of 
things  as  known  to  and  affecting  the  parties  at  the  time  of  the 
promise,  including  their  information  and  competence  with  regard  to 
the  matter  in  hand,  and  then  see  what  expectation  the  promisor's 
words,  as  uttered  in  that  state  of  things,  would  have  created  in  the 
mind  of  a  reasonable  man  in  the  promisee's  place  and  with  the  same 


INTERPRETATION  OF  PROMISE.  309 

means  of  judgment  (a).1  The  reasonable  expectation  thus  determined 
gives  us  the  legal  effect  of  the  promise. 

Reasonable  effect  of  promise  on  promisee.      Now   this   measure   of   the 

contents  of  the  promise  will  be  found  to  coincide,  in  the  usual 
dealings  of  men  of  good  faith  and  ordinary  competence,  both  with 
the  actual  intention  of  the  promisor  and  with  the  actual  expec- 
tation of  the  promisee.  But  this  is  not  a  constant  or  a  necessary 
coincidence.  In  exceptional  cases  a  promisor  may  be  *bound  [246 
to  perform  something  which  he  did  not  intend  to  promise,  or  a 
promisee  may  not  be  entitled  to  require  that  performance  which  he 
understood  to  be  promised  to  him.  The  problem  has  been  dealt  with 
by  moralists  as  well  as  by  lawyers.  Paley's  solution  is  well  known, 
and  has  been  quoted  by  text-writers  and  in  Court  (&)  :  "where  the 
terms  of  promise  admit  of  more  senses  than  one,  the  promise  is  to  be 
performed  in  that  sense  in  which  the  promiser  apprehended  at  the 
time  that  the  promisee  received  it."  But  this  does  not  exactly  hit  the 
mark.  Reflection  shows  that,  without  any  supposition  of  fraud, 
Paley's  rule  might  in  peculiar  cases  (and  only  for  such  cases  do  we 
need  a  rule)  give  the  promisee  either  too  much  or  too  little.  And 
Archbishop  Whately,  a  writer  of  great  acuteness  and  precision  within 
the  limits  he  assigned  to  himself,  perceived  and  corrected  the  defect : 
"  P'aley,"  he  says,  "  is  nearly  but  not  entirely  right  in  the  rule  he  has 
here  laid  down  ....  Every  assertion,  or  promise,  or  declaration  of 
whatever  kind,  is  to  be  interpreted  on  the  principle  that  the  right 
meaning  of  any  expression  is  that  which  may  be  fairly  presumed  to 
be  understood  by  it"  (c).  And  such  is  the  rule  of  judicial  interpre- 
tation as  laid  down  and  used  in  our  Courts.  "  In  all  deeds  and 
instruments"- — and  not  less,  when  occasion  arises,  in  the  case  of 
spoken  words — "the  language  used  by  one  party  is  to  be  construed 
in  the  sense  in  which  it  would  be  reasonably  understood  by  the 
other"  (d).     All  rules  of  construction  may  be  said  to  be  more  or 

(a)    See   per   Blackburn   J.   Smith  the  purpose.     Some  modern  civilians 

v.  Hughes   (1871)  L.  R.  6  Q.  B.  597,  have  said,  with  useless  subtilty,  that 

607,  40   L.   J.   Q.  B.  221 ;   Birrell  v.  a  promisor  who  has  by  his  own  fault 

Dryer  (1884)   9  App.  Ca.  345.  caused  the  promisee  to  expect  more 

( 6 )   L.  R.  6  Q.  B.  600,  610.  than  was   meant   is   bound   "  non  ex 

(c)   Paley,  Moral  Phil.  bk.  3,  pt.  1,  vi    promissionis    sed    ex    damno    per 

c.  5 ;  Whately  thereon  in  notes  to  ed.  culpam  dato." 

1859.     I  am  indebted  to  my  learned  (d)    Blackburn    J.    in   Foivkes    v. 

friend   Mr.   A.   V.    Dicey   for   calling  Manchester    and    London    Assurance 

my    attention    to    Whately's    amend-  Association    (1863)    3   B.   &   S.   917, 

ment.      Austin's    attempt    ( Jurispru-  929,  32  L.  J.  Q.  B.  153,  159. 
dence,  i.  456,  ed.  1869)   is  nothing  to 

1  Mansfield  v.  Hodgdon,  147  Mass.  66.     And  see  ante,  p.  4. 


310  DUTIES   UNDER   CONTRACT. 

less  direct  applications  of  this  principle.  Many  rules  of  evidence 
247]  involve  it,  and  in  particular  its  development  in  one  special 
direction,  extended  from  words  to  conduct,  constitutes  the  law  of 
estoppel  in  pais,  which  under  somewhat  subtle  and  technical  appear- 
ances is  perhaps  the  most  complete  example  of  the  power  and  flexi- 
bility of  English  jurisprudence. 

Agreements  in  writing:  rule  against  parol  variations.  We  have  already 
seen  that  the  terms  of  an  offer  or  promise  may  be  expressed  in  words 
written  or  spoken,  or  conveyed  partly  in  words  and  partly  by  acts, 
or  signified  wholly  by  acts  without  any  use  of  words  (e).  For  the 
purposes  of  evidence,  the  most  important  distinction  is  not  between 
express  and  tacit  significations  of  intention,  but  between  writing  and 
all  other  modes  of  manifesting  one's  intent.  The  purpose  of  reducing 
agreements  to  writing  is  to  declare  the  intention  of  the  parties  in  a 
convenient  and  permanent  form,  and  to  preclude  subsequent  disputes 
as  to  what  the  terms  of  the  agreement  were.  It  would  be  contrary 
to  general  convenience,  and  in  the  great  majority  of  cases  to  the  actual 
intention  of  the  parties  at  the  time,  if  oral  evidence  were  admitted  to 
contradict  the  terms  of  a  contract  as  expressed  in  writing  by  the 
parties.  Interpretation  has  to  deal  not  with  conjectured  but  with 
manifest  intent,  and  a  supposed  intent  which  the  parties  have  not 
included  in  their  chosen  and  manifest  form  of  expression  cannot,  save 
for  exceptional  causes,  be  regarded.  Our  law,  therefore,  does  not 
admit  evidence  of  an  agreement  by  word  of  mouth  against  a  written 
agreement  in  the  same  matter.  The  rule  is  not  a  technical  one,  and 
is-  quite  independent  of  the  peculiar  qualities  of  a  deed.  "  The  law 
prohibits  generally,  if  not  universally,  the  introduction  of  parol 
evidence  to  add  to  a  written  agreement,  whether  respecting  or  not 
respecting  land,  or  to  vary  it"  (/).  "If  A.  and  B.  make  a  contract 
in  writing,  evidence  is  not  admissible  to  show  that  A.  meant  some- 
248]  thing  different  from  what  is  stated  in  the  *contract  itself,  and 
that  B.  at  the  time  assented  to  it.  If  that  sort  of  evidence  were  ad- 
mitted, every  written  document  would  be  at  the  mercy  of  witnesses 
that  might  be  called  to  swear  anything"  (g).2 

(e)   P.  *11,  above.  L.   J.   Ex.   314.     See   also  Hotson  v. 

{f)     Martin    v.    Pycroft    (1852)     2  Browne   (1860)   9  C.  B.  N.  S.  442,  30 

D.  M.  &  G.  785,  795,  22  L.  J.  Ch.  94.  L.  J.   C.   P.    106;    Balhead  v.   Young 

(g)     Per    Pollock    C.B.    Nichol    v.  (1856)   6  E.  &  B.  312,  25  L.  J.  Q.  B. 

Godts    (1854)     10    Ex.    191,    194,    23  290. 

2  Northeastern  By.  Co.  v.  Hastings,  [1900]  A.  C.  260;  Blake  v.  Pine  Moun- 
tain Co.,  76  Fed.  Bep.  624;  Godkin  r.  Monahan,  S3  Fed.  Bep.  116  (C.  C.  A.)  ; 
Brewton  v.  Glass,  116  Ala.  629;  Sector  v.  Bernasehina,  64  Ark.  650;  Poole  v. 


construction;  parol  variations.  311 

Rule  of  equity.  Under  normal  conditions  the  same  rule  prevails  in 
equity,  and  this  in  actions  for  specific  performance  as  well  as  in  other 
proceedings,  and  whether  the  alleged  variation  is  made  by  a  con- 
temporaneous (h)  or  a  subsequent  (i)  verbal  agreement.  "Varia- 
tions verbally  agreed  upon  .  .  .  are  not  sufficient  to  prevent  the 
execution  of  a  written  agreement,  the  situation  of  the  parties  in  all 
other  respects  remaining  unaltered"  (k). 

Similarly,  when  a  question  arises  as  to  the  construction  of  a  written 
instrument  as  it  stands,  parol  evidence  is  not  admissible  (and  was 
always  inadmissible  in  equity  as  well  as  at  law)  to  show  what  was  the 
intention  of  the  parties.  A  vendor's  express  contract  to  make  a  good 
marketable  title  cannot  be  modified  by  parol  evidence  that  the  pur- 
chaser knew  there  were  restrictive  covenants  (I).  It  is  otherwise 
where  it  is  sought  to  rectify  the  instrument  *under  the  peculiar  [249 
equitable  jurisdiction  which  will  be  described  in  a  later  chapter.  And 
therefore  the  Court  has  in  the  same  suit  refused  to  look  at  the  same 
evidence  for  the  one  purpose  and  taken  it  into  account  for  the 
other  (m). 

Apparent  exceptions  at  law  and  in  equity.  It  is  no  real  exception  to 
this  rule  that  though  "  evidence  to  vary  the  terms  of  an  agreement  in 
writing  is  not  admissible,"  yet  "  evidence  to  show  that  there  is  not  an 

{h)   Omerod  v.  Eardman  (1801)   5  being  enforced,  cannot  operate   as   a 

Ves.    722,    730.      Lord    St.    Leonards  mere    rescission    of    the   former    con- 

(V.  &   P.   163)    says   this   cannot  be  tract;    the  ground   being   that   there 

deemed  a,  general  rule:  but  see  Hill  is  nothing  to  show  any  intention  of 

v.  Wilson,  L.  R.  8  Ch.  888;  per  Mel-  the  parties   to  rescind  the  first  c»n- 

lish  L.J.  at  p.  899,  42  L.  J.  Ch.  817.  tract  absolutely. 

(i)   Price  v.  Dyer   (1810)    17  Ves.  (fc)   Price  v.  Dyer   (1810)    17  Ves. 

356,  11  R.  R.  102;  Robinson  v.  Page  at  p.   364,   11   R.  R.    107;    Clowes  v. 

(1826)  3  Russ.  114,  121,  27  R.  R.  26.  Higginson    (1813)    1   Ves.   &   B.   524, 

But  a  subsequent  waiver  by  parol,  if  12  R.  R.  284,  wheTe  it  was  held   (1) 

complete  and   unconditional,  may  be  that  evidence  was  not  admissible  to 

a  good  defence;  ib.:  Ooman  v.  Salis-  explain,     contradict,     or     vary     the 

bury,   1    Vern.   240;    and   cp.    6   Ves.  written  agreement,  but   (2)   that  the 

337a,  note.     Qu,  if  not  also  at  law,  written  agreement  was  too  ambiguous 

if   the    contract   be   not   under   seal:  to  be  enforced. 

see    Dart   V.    &    P.    1096.      Noble   v.  (I)    Cato    v.    Thompson    (1882)    9 

Ward    (1867)    L.  R.  2  Ex.   135,  does  Q.  B.  Div.  616.     In  such   a  case  the 

not  prove  that  a  verbal  waiver  of  a  true  intention  may  well  be  that  the 

written   agreement   is   no   defence   at  vendor  shall  remove  the  defect, 
law,    but    only    that    a    new    verbal  (m)    Bradford  v.   Romney    (1862) 

agreement   intended   to   supersede  an  30  Beav.  431,  cp.  per  Lindley  L.J.  9 

existing  contract,   but   by  reason   of  Q.  B.  Div.  620. 
the  Statute   of   Frauds   incapable  of 

Mass.  Plush  Co.,  171  Mass.  49;  Harrison  v.  Howe,  109  Mich.  476;  Long  v. 
Perine,  41  W.  Va.  314.  Cp.  Bogk  v.  Gassert,  149  U.  S.  17;  Patek  v.  Waples, 
(Mich.)  72  N.  W.  Rep.  995. 


312  DUTIES   UNDER   CONTRACT. 

agreement  at  all  is  admissible,"  3  as  where  the  operation  of  a  writing 
as  an  agreement  is  conditional  on  the  approval  of  a  third  person  (n) 
or  on  something  to  be  done  by  the  other  party  (o).  "A  written  con- 
tract not  under  seal  is  not  the  contract  itself,  but  only  evidence  — 
the  record  of  the  contract.  When  the  parties  have  recorded  their 
contract,  the  rule  is  that  they  cannot  alter  or  vary  it  by  parol  evidence. 
They  put  on  paper  what  is  to  bind  them,  and  so  make  the  written 
document  conclusive  evidence  between  them.  But  it  is  always  open 
to  the  parties  to  show  whether  or  not  the  written  document  is  the 
binding  record  of  the  contract"  (p). 

"  The  rules  excluding  parol  evidence  have  no  place  in  any  inquiry 
in  which  the  Court  has  not  got  before  it  some  ascertained  paper  beyond 
question  binding  and  of  full  effect"  (q).4  It  may  even  be  shown 
that  what  appears  to  be  a  deed  was  delivered  as  an  escrow,  notwith- 
standing that  a  deed  once  fully  delivered  is  conclusive  (r).  Still  less 
does  the  rule  apply  to  proof  of  the  circumstances  in  which  a  docu- 
250]  ment  was  signed  which  was  not  really  part  of  the  *agreemeut  at 
all,  but  only  a  memorandum  made  at 'the  same  time  or  immediately 
after  (s). 

So  in  Jervis  v.  Berridge  (t)  it  was  held  that  a  document  purporting 
to  be  a  written  transfer  of  a  contract  for  the  purchase  of  lands  "  was 
.  .  .  not  a  contract  valid  and  operative  between  the  parties  but  omit- 
ting (designedly  or  otherwise)  some  particular  term  which  had  been 
verbally  agreed  upon,  but  was  a  mere  piece  of  machinery  .  .  .  sub- 
sidiary to  and  for  the  purposes  of  the  verbal  and  only  real  agreement." 
And  since  the  object  of  the  suit  was  not  to  enforce  the  verbal  agree- 
ment, nor  "  any  hybrid  agreement  compounded  of  the  written  instru- 

(n)   Pym  v.  Campbell   (1856)    6  E.  (r)    See  Watkins  v.  Nash    (1875) 

&  B.  370,  374,  25  L.  J.  Q.  B.  277.  L.  R.  20  Eq.  262;  Whelan  v.  Palmer 

(o)   Pattle  v.  Hornibrook  [1897]   1  (1888)    39  Ch.  D.  648,  655,  57  L.  J. 

Ch.  25,  66  L.  J.  Ch.  144.  Ch.  784. 

(p)     Per    Bramwell    B.    Wake    v.  (s)  Bank  of  Australasia  v.  Palmer 

Harrop  (1861-2)  6  H.  &  N.  at  p.  775,  [1897]  A.  C.  540,  66  L.  J.  P.  C.  105, 

30  L.  J.  Ex.  at  p.  277;  cp.  Wace  v.  J.  C. 

Allen  (1888)   128  U.  S.  590.  (t)     (1873)    L.  R.  8  Ch.  351,  359, 

(q)       Guardhouse     v.      Blackburn  360,    42    L.    J.    Ch.    518;    Clarke    v. 

(I860)   L.  R.  1  P.  &  D.  109,  115,  35  Grant    (1807)    14  Vea.   519,  9  R.  R. 

L.  J.  P.  116.    And  see  per  Page  Wood  336,  appears  really  to  belong  to  this 

V.-C.  in  Druiff  v.  Lord  Parker  (1868)  class. 
Jj.  R.  5  Eq.  131,  137,  37  L.  J.  Ch.  241. 

3  Ware  r.  Allen,  128  U.  S.  590;  Vierling  v.  Iroquois  Furnace  Co.,  170 
111.  189;  O'Donnell  !'.  Clinton,  145  Mass.  461;  Adams  v.  Morgan,  150  Mass. 
148;  Grierson  f.  Mason,  60  N.  Y.  394;  Reynolds  r.  Robinson,  110  N.  Y.  654; 
Heeter  c.  Glasgow,  79  Pa.  79. 

*  See  Greenleaf  on  Evidence  (16th  ed. ) ,  I,  §  305a  et  seq. 


CONSTRUCTION  ;    EXTRINSIC    EVIDENCE.  313 

ment  and  some  terms  omitted  therefrom,"  but  only  to  prevent  the 
defendant  from  using  the  written  document  in  a  manner  inconsistent 
with  the  real  agreement,  there  was  no  difficulty  raised  by  the  Statute 
of  Frauds,  "  which  does  not  make  any  signed  instrument  a  valid 
contract  by  reason  of  the  signature,  if  it  is  not  such  according  to  the 
good  faith  and  real  intention  of  the  parties."  If  it  appears  that  a 
document  signed  by  the  parties,  and  apparently  being  the  record  of  a 
contract,  was  not  in  fact  intended  to  operate  as  a  contract,  then 
"  whether  the  signature  is  or  is  not  the  result  of  a  mistake  is  imma- 
terial" (u). 

Collateral  parol  agreements.  Again  it  has  been  held,  and  that  by 
Courts  of  common  law  not  having  equity  jurisdiction,  that  even  where 
there  is  an  agreement  by  deed  a  collateral  agreement  not  inconsistent 
with  the  written  terms  may  be  shown.5  For  such  a  collateral  agree- 
ment, moreover,  the  promisee's  execution  of  the  principal  writing  or 
deed  is  consideration  *enough  (x),  in  the  same  way  as  on  a  [251 
sale  of  goods  no  distinct  consideration  is  required  for  a  simultaneous 
collateral  warranty. 

Evidence  to  explain  particular  terms.  Another  class  of  cases  in  which 
an  apparent,  or  sometimes,  perhaps,  a  real  exception  occurs,  is  that 
in  which  external  evidence  is  admitted  to  explain  the  meaning  in 
which  particular  terms  in  a  contract  were  understood  by  the  parties, 
having  regard  to  the  language  current  in  that  neighbourhood  or 
among  persons  dealing  in  that  kind  of  business.  Witnesses  have  been 
allowed,  in  this  way,  to  prove  that  by  local  custom  "  a  thousand  "  of 
rabbits  was  1,200  (i.  e.,  ten  long  hundreds  of  six  score  each,  the  old 
"Anglicus  numerus  "  of  Anglo-Norman  surveys)  (y) ;  to  show  what 
was   meant  by   "weekly  accounts"   among  builders  (2) ;   to   define 

(u)    Per    Bramwell    B.    Rogers    v.  L.  J.  Ex.  46   (agreement  by  lessor  to 

Hadley  (1863)  2  H.  &  C.  227,  249,  32  keep  down  rabbits)  ;  Angell  v.  Duke 

L.   J.    Ex.   241.      In   this    case  there  (1875)    L.   R.    10   Q.   B.    174    (agree- 

was  "  a  real  contract  not  in  writing  ment  to  do  repairs  and  send  in  fur- 

and    a    paper    prepared   in    order    to  niture)  ;     see     [1901]     2     K     B.     at 

comply  with   some  form,   which  was  p.    223;     De    Lassalle    v.     Guildford 

stated    at    the    time    to    contain    a  [1901]   2  K.  B.  215,  70  L.  J.  K.  B. 

meTely  nominal  price."     Cp.  Bank  of  533,    C.    A.    (warranty   of   drains    in 

Australasia    v.     Palmer,     note     (s),  good  order), 
above.  (y)   Smith  v.  Wilson    (1832)   3  B. 

(x)  Erskine  v.  Adeane  (1873)  L.  R.  &  Ad.  728.  37  R.  R.  536. 
8  Ch.  756,  42  L.  J.  Ch.  835;  Morgan  (»)  Myers  v.  Sari  (1860)  3  E.  &  E. 

v.  Griffith  (1871)  L.  R.  6  Ex.  70,  40  306,  30  L.  J.  Q.  B.  9. 

5  See  Greenleaf  on  Evidence   (16th  ed.),  I.  §§  281,  282,  305f. 


314  DUTIES    UNDER    CONTRACT. 

"year,"  in  a  theatrical  contract  to  pay  a  weekly  salary  for  three 
years,  as  meaning  only  the  part  of  the  year  during  which  the  theatre 
was  open  (a) ;  to  identify  the  wool  described  as  "  your  wool "  in  a 
contract  to  buy  wool  (6).6 

Not  contradictory  but  auxiliary  to  the  writing.  The  theory  is  that  such 
evidence  is  admitted  "not  to  contradict  a  document,  but  to  explain 
the  words  used  in  it,  supply,  as  it  were,  the  mercantile  dictionary  in 
which  you  are  to  find  the  mercantile  meaning  of  the  words  which  are 
used"  (c)  (or  other  meaning  received  by  persons  in  the  condition  of 
the  parties,  as  the  case  may  be).  The  process  may  be  regarded  as  an 
extension  of  the  general  rule  that  words  shall  have  their  primary 
meaning.  For  when  words  are  used  by  persons  accustomed  to  use 
252]  them  technically,  *the  technical  meaning  is  for  those  persons 
at  any  rate  the  primary  meaning  (d).  It  is  a  question  not  of  adding 
of  altering,  but  of  identifying  the  subject-matter.  "  Suppose  that  I 
sell  '  all  my  wool  which  I  have  on  Dale  Farm,'  evidence  must  always 
be  admissible  to  show  that  the  wool  which  was  delivered  was  the  wool 
on  Dale  Farm"  (e).  The  terms  thus  explained  need  not  be  ambigu- 
ous on  their  face  (/) .  Parol  evidence  is  equally  admissible  to  explain 
words  in  themselves  ambiguous  or  obscure  and  to  show,  as  in  the 
case  of  "  a  thousand  of  rabbits,"  that  common  words  were  used  in  a 
special  sense.  "  The  duty  of  the  Court  .  .  .  is  to  give  effect  to  the 
intention  of  the  parties.  ...  It  has  always  been  held  .  .  .  that 
where  the  terms  in  the  particular  contract  have,  besides  their  ordi- 
nary and  popular  sense,  also  a  scientific  or  peculiar  meaning,  the 
parties  who  have  drawn  up  the  contract  with  reference  to  that  par- 
ticular department  of  trade  or  business  must  fairly  be  taken  to  have 
intended  that  the  words  should  be  used  not  in  their  ordinary  but  in 
their  peculiar  sense"  (g). 

This  kind  of  special  interpretation  must  be  kept  distinct  from  the 
general  power  of  the  Court  to  arrive  at  the  true  construction  of  a 

(a)  Grant  v.  Maddox  (1846)  15  Limits  of  Rules  of  Construction," 
M.  &  W.  737,  16  L.  J.  Ex.  227.  L.  Q.  E.  i.  466. 

(b)  Macdonald  v.  Longbottom,  Ex.  (e)  Erie  J.  in  Macdonald  v.  Long- 
Ch.  1859-60,  1  E.  &  E.  977,  28  L.  J.  bottom  (1859-60)  28  L.  J.  Q.  B.  at 
Q.  B.  293,  29  ib.  256.  p.  297 ;   cp.  Bank  of  New  Zealand  v. 

(c)  Lord  Cairns,  Bowes  v.  SKand  Simpson  [1900]  A.  C.  182,  69  L.  J. 
(1877)  2  App.  Ca.  455,  468.  P.  C.  22.  J.  C. 

(d)  See  Elphinstone,  Norton  and  (f)  See  the  judgment  of  Black- 
Clark  on  Interpretation,  48,  57 ;  and       burn  J.  in  Myers  v.  Sari,  above. 

Sir    Howard    Elphinstone    on    "The  (g)  Cockburn  C.J.  in  M yers  v.  Sari 

(1860)  30  L.  J.  Q.  B.  at  p.  12. 

6  See  Greenleaf  on  Evidence    (16th  ed.),  I.  §   305J. 


INTERPRETATION  ;  CUSTOMARY  TERMS.  315 

contract  by  taking  account  of  the  material  facts  and  circumstances 
proved  or  judicially  known.  The  words  "  warranted  no  St.  Law- 
rence "  in  a  time  policy  of  marine  insurance  have  been  decided,  by 
reason  of  the  known  facts  of  geography  and  the  nature  and  risks  of 
the  navigation,  to  include  the  Gulf  of  St.  Lawrence  as  well  as  the 
river,  notwithstanding  the  failure  of  an  attempt  to  prove  that  such 
was  the  customary  meaning  (7i).  In  another  modern  case  the  Court 
found  *no  difficulty  in  holding  that,  in  the  circumstances  of  [253 
the  transaction,  a  guaranty  for  the  price  of  goods  to  be  supplied, 
definite  as  to  the  amount  but  otherwise  loosely  worded,  must  be  read 
as  a  continuing  guaranty  and  not  as  a  guaranty  confined  to  a  single 
sale  then  about  to  be  made  (i). 

Incorporation  of  customary  terms  by  parol  evidence.  The  Courts  have 
taken  yet  a  further  step  in  this  line  of  interpretation  by  reference  to 
unexpressed  matter.  Not  only  particular  terms  may  be  explained,  but 
whole  new  terms  (provided  they  be  not  inconsistent  with  the  terms 
actually  expressed  in  writing)  may  be  added  by  proving  those  terms 
to  be  an  accustomed  part  of  such  contracts,  made  between  such  per- 
sons, as  the  Court  has  before  it.7  Custom,  when  the  word  is  used  in 
these  cases,  does  not  necessarily  imply  either  antiquity  or  universality 
or  any  definite  local  range.  It  is  merely  a  usage  so  general  and  well 
understood  in  fact,  with  reference  to  the  business,  place,  and  class  of 
persons,  that  the  parties  are  presumed  to  have  made  their  contract 
with  tacit  reference  to  it,  and  to  have  intended  to  be  governed  by  it 
in  the  same  way  and  to  the  same  extent  as  other  like  persons  in  like 
cases.  The  Court  may  act,  it  seems,  on  a  proved  change  of  usage 
within  recent  memory  (h).  It  might  perhaps  be  better  not  to  use  in 
this  connexion  the  word  "custom,"  which  has  a  perfectly  distinct 
meaning  in  the  law  of  tenure  and  rights  over  land,  or  at  least  to  speak 
by  preference  of  "  usage,"  except  where  the  phrase  "  custom  of  trade  " 
has  become  too  familiar  to  be  easily  dropped.  It  would  take  us  too 
far  to  enlarge  upon  this  class  of  cases ;  it  must  suffice  to  indicate  them 
and  refer  to  a  few  leading  authorities. 

(h)  Birrell  v.  Dryer  (1884)  9  App.  (t)     Heffield    v.    Meadows     (1869) 

Ca.     345.      In    Johnson    v.    Raylton  L.  R.  4  C.  P.  595. 

(1881)    7   Q.   B.   Div.   438,  50   L.   J.  (k)    See  per  Channell  J.  in  Moult 

Q.     B.     753,     an    implied    warranty  v.  HalUday  [1898]  1  Q.  B.  at  p.  130. 
alleged  to  be  customary  was  decided 
to  be  part  of  the  general  law, 

7  See  Greenleaf  on  Evidence    (16th  ed.),  I.   §  292  et  seq. 


316  DUTIES    UXDER    CONTRACT. 

Customs  of  the  country.  Eights  allowed  to  agricultural  tenants  by 
254]  the  "  custom  *of  the  country,"  such  as  to  take  the  away-going 
crop  after  the  expiration  of  the  term,  to  receive  compensation  for 
particular  kinds  of  improvement,  and  the  like,  have  been  held  for 
more  than  a  century  (I)  not  to  be  excluded  by  anything  short  of  actual 
contradiction  in  the  terms  expressed  between  the  parties,  and  this 
even  where  the  contract  is  under  seal.  In  recent  cases  of  this 
class  (m)  the  question  has  generally  been  whether  something  in  the 
express  terms  was  or  was  not 'so  inconsistent  with  the  usage  as  to 
exclude  the  presumption  that  "  the  parties  did  not  mean  to  express 
in  writing  the  whole  of  the  contract  by  which  they  intended  to  be 
bound,  but  to  contract  with  reference  to  those  known  usages"  (re). 

Customs  of  trade,  &c.  In  the  present  century  there  have  been  a  great 
number  of  decisions  arising  out  of  the  usages  current  in  trades  and 
in  various  kinds  of  mercantile  dealings  and  public  employments. 
One  strong  application  of  the  principle  now  before  us  has  been  to 
make  agents  or  brokers  in  certain  trades  and  markets  personally  liable 
(unconditionally  or  in  some  particular  event)  notwithstanding  that 
they  contracted  only  as  agents  (o).  This  has  been  thought  to  go  too 
far,  as  adding  to  the  written  contract  not  merely  a  new  term  as 
between  the  same  parties,  but  a  new  party.  But  the  point  is  settled 
by  an  unbroken  current  of  authority  (p).  Some  important  groups  of 
cases  have  turned  on  particular  rules  and  usages  of  the  Stock  Ex- 
change, with  regard  especially  to  the  determination  of  the  persons  on 
whom  they  were  binding  without  individual  assent  or  notice  (q). 
255]  As  it  is  not  always  easy  to  say  where  the  ordinary  *construc- 
tion  of  the  language  used  in  affairs  ends,  and  explanation  of  special 
terms  and  senses  by  a  "  mercantile  dictionary  "  as  Lord  Cairns  called 
it  (r),  begins,  so  there  is  a  more  or  less  fluctuating  boundary  line, 
even  now  that  the  law  merchant  is  part  of  the  general  law,  between 
the  establishment,  by  evidence  of  usage,  of  particular  incidents  of 
particular  mercantile  contracts,  and  the  general  development  of 
mercantile  law  by  the  judicial  recognition  of  universal  custom. 

(I)     The    earliest    case    commonly  ren,  1  M.  &  W.  466,  47.5.  46  R.  R.  368, 

cited    is     Wigglesworth    v.    Dallison  377. 

(1778-81)    Dougl.   201,    1   Sm.   L.   C.  (o)   Bumfrey  v.  Dale  (1857)  E.  B. 

528,  where  see  the  notes.  &  E.   1004,  26  L.  J.  Q.   B.   137,  and 

(m)  As  in  Tucker  v.  Linger  (1883)  other  cases  cited  p.  "101,  above. 
8   App.   Ca.    508,   52   L.   J.    Ch.    941.  (p)   See  1  Sm.  L.  C.  543—545. 

See  per  Lord  Blackburn,  8  App.  Ca.  (q)    See  Nickalls  v.  Merry   (1875) 

at  p.  511.  L.  R.  7  H.  L.  530. 

(n)    Parke  B.   in  Button  v.  War-  (r)  Page  *251,  above. 


construction;  general  intention.  317 

Construction  proper:  preference  of  general  intention  to  particular  terms. 
Supposing  the  terms  of  the  contract,  express  or  incorporated  by  ref- 
erence, to  be  finally  established,  there  remains  the  task  of  construc- 
tion in  the  stricter  sense;  namely  of  deciding,  where  the  terms  are 
capable  of  more  than  one  meaning,  which  meaning  is  to  be  preferred. 
On  this  head  there  are  few  rules,  if  any,  which  are  confined  to  con- 
tracts, or  are  more  applicable  to  them  than  to  instruments  in  writing 
generally.  The  one  universal  principle  is  that  effect  is  to  be  given 
to  the  intention  of  the  parties  collected  from  their  expression  of  it  as 
a  whole.  It  must  be  collected  from  the  whole;  that  is,  particular 
terms  are  to  be  construed  in  that  sense  which  is  most  consistent  with 
the  general  intention  (s).  It  must  also  be  collected  from  what  is 
expressed,  not  from  a  mere  conjecture  of  some  intention  which  the 
parties  may  have  had  in  their  minds,  and  would  have  expressed  if 
they  had  been  better  advised  (t).  This  caution,  however,  does  not 
prevent  the  correction  of  mistakes  which  are  obvious  on  the  face  of 
the  document.  In  such  cases  the  general  intent,  as  expressed  by  the 
immediate  context,  or  collected  from  the  whole  scope  of  the  instru- 
ment, is  clear  enough  to  overcome  the  difficulty  arising  from  erro- 
neous or  defective  expression  in  some  part.  Mere  verbal  blunders  have 
always,  in  modern  times  *at  any  rate,  been  corrected  without  [256 
difficulty  by  the  ordinary  jurisdiction  even  of  courts  of  common 
law  (u).  Mala  grammatica  non  vitiat  chartam  (x).  In  construing 
instruments  of  well-known  types,  such  as  family  settlements,  even 
omitted  clauses  have  often  been  supplied  by  aid  of  the  context  (y). 

Limits  of  rules  of  construction.  For  the  rest,  our  Courts  are  now  much 
less  disposed  to  hold  themselves  bound  by  canons  of  construction  than 

(s)    See  Ford  v.  Beech  (1848)    (Ex.  Ch.  Div.  375,  45  L.  J.  Ch.  105;  In  re 

Ch.)   11  Q.  B.  852,  17  L.  J.  Q.  B.  114.  Bird's  Trusts    (1876)    3   Ch.  D.  214; 

(t)    Jessel    M.E.    Smith   v.    Lucas  Greenwood    v.    Greenwood    (1877)     5 

(1881)    18  Ch.  D.  531,  542;   and  see  Ch.  Div.  954,  47  L.  J.  Ch.  298;  Red- 

other      authorities     in     Elphinstone,  fern  v.  Bryning  (1877)   6  Ch.  D.  133; 

Norton  and  Clark  on  Interpretation,  as    to    deciding    on    conflict    in    the 

p.  37.  terms  of  a  lease  by  reference  to  the 

(w)    See     per    Lord    Mansfield,    3  counterpart,  Burchell  v.  Clark  (1876) 

Burr.     1635,    and    Doe    d.    Leach    v.  2  C.  P.  Div.  88,  46  L.  J.  C.  P.   115. 

Micklem    ( 1805 )    6    East,   486 ;    Lord  Sometimes   it   is   not   easy  to  decide 

St.     Leonards,     Wilson     v.     Wilson  whether  the  doctrine  of  falsa  demon  - 

(1854)  5  H.  L.  C.  40,  66,  23  L.  J.  Ch.  stratio  suffices,   or  recourse   must  be 

697,  Sugd.  V.  &  P.  171.  had  to  the  equitable  jurisdiction   to 

(x)    See    Shepp.    Touehst.    55,    87,  rectify  an  instrument  on  the  ground 

369.  of  common  mistake   (Ch.  IX.  pt.  iii. 

(y)  Cropton  v.  Davies  (1869)  L.  R.  below):   see   Cowen  v.   Truefitt,  Ltd. 

4   C.    P.    159,    38    L.    J.    C.    P.    159;  [1899]   2  Ch.  309,  68  L.  J.  Ch.  563, 

Savage  v.  Tyers   (1872)    L.  R.  7  Ch.  C.  A. 
356;    Daniel's    Settlement    (1875)     1 


318  DUTii;,i    UNDER    CONTRACT. 

they  were  even  one  or  two  generations  ago.  "  They  were  framed,  with 
a  view  to  general  results,  but  are  sometimes  productive  of  injustice 
by  leading  to  results  contrary  to  the  intention  of  the  parties"  (z) ; 
and  the  recent  tendency  is  to  pay  less  attention  to  any  such  rules  and 
more  to  all  admissible  indications  of  what  the  intention  actually  was 
in  the  case  in  hand,  including  the  practical  construction  of  the  con- 
tract by  the  conduct  of  the  parties  themselves  (a).  It  will  be  re- 
membered that  a  rule  which  does  hot  yield  to  sufficient  evidence  of 
contrary  intention  is  not  a  rule  of  construction  at  all,  but  a  rule  of 
law  (b).  Again,  many  rules  of  construction  are  in  truth  more  auxil- 
iary than  explanatory;  their  purpose  is  to  supply  the  guidance 
required  for  dealing  with  events  for  which  the  parties  have  omitted 
to  provide.  In  the  language  of  Willes  J.  "  disputes  arise  not  as  to 
the  terms  of  the  contract,  but  as  to  their  application  to  unforeseen 
257]  questions  which  arise  incidentally  or  accidentally  in  the 
course  of  performance,  and  which  the  contract  does  not  answer  in 
terms,  yet  which  are  within  the  sphere  of  the  relation  established 
thereby,  and  cannot  be  decided  as  between  strangers "  (c).  The 
parties  may  really  have  taken  no  thought,  and  therefore  had  no  inten- 
tion at  all  with  respect  to  those  events,  and  yet  something  must  be 
done.  In  such  cases  any  rule  not  inconsistent  with  justice  is  better 
than  uncertainty,  and  it  matters  little  whether  the  reasons  originally 
assigned  for  an  established  rule  be  convincing  or  not.  Among  rules  or 
maxims  of  construction  some  are  much  weaker  than  others,  and  are 
entitled,  as  it  were,  only  to  a  casting  vote.  Such  is  that  which  says 
that  words  are  to  be  taken,  in  case  of  doubt,  against  the  person  using 
them;  a  maxim  to  which  Sir  G.  Jessel  denied  even  a  subsidiary 
value  (d),  but  which  is  in  substance  classical  (e)  and  seems  reason- 
able, and  on  the  whole  stands  approved  on  condition  of  being  used 
to  turn  the  scale  where  there  is  real  doubt,  not  to  force  a  less  natural 
meaning  on  words  which  have  a  more  natural  one  (/). 

Artificial    rules    originally  paramount    to   intention.     There  are  artificial 
rules  of  construction  in  particular  cases  which  stand  apart  from  the 

(»)   Cockburn  C.J.  2  C.  P.  Div.  at  (<?)    Papinian  in  D.  2,   14,  de  pac- 

p.  93.  tis,   39.     Veteribus  placet   pactionem 

(a)    See  D.  C.  v.  Oallaher   (1888)  obscuram  vel  pmbiguani  venditori,  et 

124  U.  S.  505.  qui   locavit,   nocere,   in   quorum   fuit 

( 6 )    F.    V.   Hawkins   on   the   Con-  potestate  legem  apertius  conscribere. 

struction  of  Wills,  Preface.  (f)  Elphinstone,  Norton  and  Clark, 

(c)   Lloyd  v.  Guibert    (1865)    (Ex.  op.   cit.   93.     Lord  Selborne  in  Neill 

Ch.)  L.  R.  1  Q.  B.  115,  120,  35  L.  J.  v.  Duke  of  Devonshire   (1882)   8  App. 

Q.  B.  74.  Ca.  at  p.  149,  states  it  in  a  guarded 

{d)    Taylor  v.   Corporation  of   St.  form. 
Helens  (1877)   6  Ch.  Div.  264,  270. 


SPECIAL    EULES    OF    CONSTRUCTION.  319 

ordinary  principles ;  they  are  derived  chiefly,  but  not  wholly,  from  the 
jurisdiction  of  the  Court  of  Chancery,  and  in  their  origin  did  not  pro- 
fess to  be  consistent  with  the  expressed  intention  of  the  parties.  To 
some  extent  they  went  upon  a  presumed  real  intention,  but  the  pre- 
sumption was  at  least  as  much  of  what  the  Court  thought  the  parties 
ought  to  have  intended  as  of  what  it  thought  they  did  intend  (g). 
They  were  in  truth  rules  of  positive  restriction,  imposed  by  a 
*policy  which  was  then  in  the  hands  of  the  judges,  but  is  now  [258 
held  to  be  in  the  exclusive  competence  of  the  Legislature,  and  for  the 
purpose  of  making  the  substance  of  the  transaction  conform  to  the 
requirements  of  fair  dealing,  as  understood  by  the  Court.  Our  Courts 
have  long  ceased  to  dictate  to  parties  of  full  age  and  with  the  means 
of  independent  judgment  on  what  terms  they  shall  contract,  but 
certain  forms  and  terms  have  had  an  artificial  meaning  firmly  im- 
pressed on  them.  The  modern  justification  of  such  rules  is  that  they 
are  well  known,  and  parties  using  the  accustomed  forms  do  in  fact 
know  and  expect  that  their  words  will  be  construed  in  that  sense 
which,  by  the  standing  practice  of  the  Courts,  has  become  a  received 
and  settled  technical  sense. 

"  If  cases  have  laid  down  a  rule  that  in  certain  events  words  are  to 
have  a  particular  meaning,  and  that  has  become  a  settled  rule,  it  may 
be  assumed  that  persons  in  framing  their  agreements  have  had  regard 
to  settled  law  and  may  have  purposely  used  words  which,  though  on 
the  face  of  them  they  may  have  a  different  meaning,  they  know,  by 
reason  of  the  decided  cases,  must  bear  a  particular  or  special 
meaning"  (h). 

Parties  are  now  presumed  to  adopt  the  artificial  sense.  Policies  of  ma- 
rine insurance  are  to  this  day  made  in  a  form  which  on  the  face  of 
it  is  clumsy,  imperfect,  and  obscure.  But  the  effect  of  every  clause 
and  almost  every  word  has  been  settled  by  a  series  of  decisions,  and 
the  common  form  really  implies  a  whole  body  of  judicial  rules, 
"which  originated  either  in  decisions  of  the  Courts  upon  the  con- 
struction or  on  the  mode  of  applying  the  policy,  or  in  customs  proved 
before  the  Courts  so  clearly  or  so  often  as  to  have  been  long  recog- 
nized by  the  Courts  without  further  proof.  Since  those  decisions, 
and  the  recognition  of  those  customs,  merchants  and  underwriters 
have  for  many  years  continued  to  enter  into  policies  in  the 
same  *form.     According  to  ordinary  principle,  then,  the  later   [259 

(</)    Cp.  Lindley  L.J.  21   Ch.  Div.  (h)   Jessel  M.  E.  Wallis  v.  Smith 

at  p\  274.  (1882)  21  Ch.  Div.  243,  254,  52  L.  J. 

Ch.   145. 


320  DUTIES    I'XDEIi    CONTRACT. 

policies  must  be  held  to  have  been  entered  into  upon  the  basis  of  those 
decisions  and  customs.  If  so,  the  rules  determined  by  those  deci- 
sions and  customs  are  part  of  the  contract"  (i). 

The  rules  applied  to  restrain  the  effect  of  releases  in  general  terms, 
of  stipulations  as  to  time,  and  of  penal  clauses,  had  a  different  origin, 
but  have  been  brought  round  to  rest  on  similar  reasons.  They  are 
now  admitted  to  be  rules  of  construction  which  the  parties  can  super- 
sede, if  so  minded,  by  the  adequate  expression  of  a  different  intention. 
Still,  they  preserve  traces  of  their  history,  and  so  lead  up  to  the 
methods  by  which  equity  jurisdiction  has  dealt,  and  still  deals,  with 
cases  of  real  mistake  in  expressing  an  agreement;  and  in  that  con- 
nexion we  shall  find  it  useful  to  return  to  them. 

2.  Order  and  Mutuality  of  Performance. 

Order  of  performance  in  executory  contracts.  When  a  contract  consists 
in  mutual  promises  which  on  one  or  both  sides  are  not  to  be  com- 
pletely performed  at  one  time,  and  a  party  who  has  not  performed 
the  whole  of  his  own  obligation  complains  of  a  failure  on  the  other 
side,  questions  arise  which  may  be  of  great  difficulty.  How  far  is 
the  plaintiff  bound  to  show  performance  of  the  contract  on  his  own 
part,  or  readiness  and  willingness  to  perform  ?  Or,  to  look  at  it  from 
the  other  side,  how  far  will  a  failure  of  one  party  to  fulfil  some  part 
of  his  duties  under  the  contract  have  the  effect  of  discharging  the 
other  party  from  further  performance  or  the  offer  thereof  on  his 
part  ?  Such  cases  have  been  of  increasing  frequency  and  importance 
in  recent  times,  especially  with  regard  to  contracts  for  delivery  and 
payment  by  instalments.  To  a  certain  extent  the  difficulty  is  one 
of  interpretation,  for  the  modern  decisions  at  any  rate  endeavour 
260]  to  find  a  solution  *in  accordance  with  the  true  intent  of  the 
parties,  although  the  difficulty  is  much  increased  by  the  general  want 
of  any  specific  evidence  of  that  intent.  Most  contracts  are  originally 
made  in  good  faith,  and  the  parties  do  not  necessarily,  perhaps  they 
do  not  usually,  expect  that  all  or  any  of  the  promises  contained  in 
the  contract  will  be  broken,  or  contemplate  in  any  distinct  way  what 
will  be  the  consequences  of  a  breach. 

The  modern  authorities  look  to  intention  of  contract  as  a  whole.  From 
Lord  Mansfield's  time  to  the  present  attempts  have  been  made  to 
lay  down  rules  for  determining,  in  the  absence  of  express  provisions 

(i)    Ctir.  per  Brett  L..T.  Lohre  v.  Aitchison   (1878)   3  Q.  B.  Div.  558,  562. 


DEPENDENT    AND    INDEPENDENT    PROMISES.  321 

or  other  clear  indication  of  intent  (h),  the  relation  of  the  one  party's 
obligation  to  the  other  as  regards  the  order  of  performance  of  mutual 
promises  and  the  extent  to  which  either  is  bound  to  accept  perform- 
ance of  part,  notwithstanding  failure  to  perform  other  part.  In- 
the  earlier  decisions  the  Courts  inclined  to  treat  the  several  terms 
of  a  contract,  unless  expressed  to  be  dependent  on  the  other  party's 
performance  (I),  as  separate  and  independent  promises,  paying  little 
regard  to  the  effect  which  default  in  some  or  one  of  them  might 
produce  in  defeating  the  purpose  of  the  contract  as  a  whole.  At 
this  day  the  tendency  is  the  other  way.  The  Court  looks  to  the  pur- 
pose and  effect  of  the  contract  as  a  whole  as  a  guide  to  the  probable 
intention  of  the  parties  (m),  and  the  presumption,  if  any  there 
be,  is  that  breach  or  default  in  any  material  term  of  a  contract 
between  men  of  business  amounts  to  default  in  the  whole. 

Common  terms.  Certain  terms  which  constantly  recur  in  the  au- 
thorities must  be  well  understood  and  distinguished. 

Promises  or  covenants  are  said  to  be  independent  when,  although 
they  be  mutual,  breach  of  any  of  them  gives  the  other  party  a  right 
of  action  without  showing  performance  on  his  own  part  (n). 

*They  are  said  to  be  dependent  where  "  the  performance  of  [261 
one  depends  on  the  prior  performance  of  another,  and,  therefore,  till 
this  prior  condition  is  performed,  the  other  party  is  not  liable  to  an 
action  on  his  covenant." 

Where  one  party  cannot  sue  for  breach  of  the  other's  promise 
without  showing  on  his  own  part  performance  of  some  promise 
made  by  himself,  or  at  least  readiness  and  willingness  to  perform 
it,  there,  if  the  performance  on  his  part  was  due  before  the  other 
party's,  it  is  said  to  be  a  condition  precedent  to  his  right  of  action  (o). 

If  the  fulfilment  of  mutual  promises  is  due  at  the  same  time,  and 
so  that  the  party  suing  must  be  at  least  ready  and  willing  to  perform 
his  part,  it  may  be  said  that  these  are  concurrent  conditions.  "Neither 
is  a  condition  precedent,"  but  "  the  performance  of  each  is  conditional 
upon  the  other's  being  performed  at  the  same  time"  (p). 

A  contract  which  can  be  fulfilled  only  as  a  whole,  so  that  failure 

{k)    Cp.   Leake,   3rd   ed.    566.   and  (n)    Lord    Mansfield   in   Kingston 

the  chapter  on  "The  Promise"  gen-  v.  Preston    (1773)    cited  in  Jones  v. 

erally.  Buckley,  Doug.   689;   Finch,  Sel.   Ca. 

(I)   15  H.  VII.  10,  pi.  17.  735. 

(to)   Bradford  v.  Williams  (1872)  (o)   See  Bankurt  v.  Bowers  (1866) 

L.  R.   7   Ex.   259,   41   L.  J.   Ex.  259,  L.    R.    1    C.    P.    484;    Norrington   v. 

see  judgment  of  Martin  B.  Wright  (1885)  115  U.  S.  189. 

(p)   Langdell,  Summary,  §  132. 

21 


322  DUTIES    UNDER   CONTRACT. 

in  any  part  is  failure  in  the  whole,  is  said  to  be  entire.  A  contract 
of  which  the  performance  can  be  separated,  so  that  failure  in  one  part 
affects  the  parties'  rights  as  to  that  part  only,  is  said  to  be  divisible. 
It  must  always  be  understood  that  quesions  of  this  kind  are  possible 
only  where  a  contract  consists  of  mutual  promises.  For  if  perform- 
ance itself  is  the  consideration  for  a  promise,  there  is  no  contract 
at  all  without  performance.  But  when,  there  is  a  contract  made 
by  mutual  promises,  we  may  have  to  enquire  whether,  in  addition  to 
each  promise  or  set  of  promises  being  the  consideration  for  the  other, 
the  performance  thereof  on  the  one  side  is  not  a  condition,  precedent 
or  concurrent,  of  the  right  to  claim  performance  on  the  other.  There  is 
no  logical  reason  why  it  should  not  be  so,  or  why  express  words  should 
262]  be  required  to  manifest  an  intention  that  it  should.  *Each 
party's  promise  is  the  consideration  for  the  promise  of  the  other, 
not  for  the  performance  which  is  clue  by  reason  of  the  promise. 
What  are  the  terms  and  conditions  of  the  duty  created  by  the  promise 
is  another  matter.  In  an  executory  contract  of  sale  the  promise 
to  deliver  is  the  consideration  for  the  promise  to  pay;  but  this  need 
not  be  a  promise  to  pay  before  or  without  delivery.  However,  the 
earlier  line  of  decision  was  biassed  by  rules  laid  down  in  cases 
on  promises  by  deed  before  the  law  of  executory  simple  contracts 
was  developed ;  and  for  a  long  time  it  was  supposed  that  promises 
which  were  the  consideration  for  each  other  must,  as  a  matter  of  law, 
be  independent  (q).  Late  in  the  eighteenth  century  this  view  was 
abandoned,  and  it  was  held  that  "  whether  covenants  be  or  be  not 
independent  of  each  other  must  depend  on  the  good  sense  of  the  case, 
and  on  the  order  in  which  the  several  things  are  to  be  done,"  so  that 
"  if  one  party  covenant  to  do  one  thing  in  consideration  (r)  of  the 
other  party's  doing  another,  each  must  be  ready  to  perform  his  part 
of  the  contract  at  the  time  he  charges  the  other  with  non-perform- 
ance "  (s). 

Order  of  performance.  Generally  "  the  order  in  which  the  several 
things  are  to  be  done"  is  the  test  most  readily  applicable  (t)  ;  ac- 

(q)  See  Langdell,  §  140,  and  the  But  if  the  substance  of  the  promises 
■whole  title  of  "  Dependent  and  Inde-  is  that  performance  shall  be  ex- 
pendent  Covenants  and  Promises,"  changed  for  performance,  neither 
and  notes  to  Pordage  v.  Cole,  1  Wms.  party  can  demand  performance  on 
Saund.  549.  any  other  terms. 

(r)    The  word   "consideration"   is  (s)  Morton  v.  Lamb  (1797)  7  T.  R. 

here    used    in    an    elliptical    manner,  125,   4  R.   R.   395,   per  Lord  Kenyon 

and  not  quite  accurately.    The  prom-  C.J.  and  Grose  J. 
ises   are   the    consideration,    and   the  {t)    Cp.   Clark  Hare  on  Contracts, 

only    consideration,    for    each    other.  589. 


ORDER    OF    PERFORMANCE.  323 

cordingly  it  is  said  that  "if  a  day  be  appointed  for  payment  of 
money,  or  part  of  it,  or  for  doing  any  other  act,  and  the  day  is  to 
happen,  or  may  happen,  before  the  thing  which  is  the  consideration 
of  the  money  (or  other  act)  is  to  be  performed,  an  action  may  be 
brought  for  the  money  (or  for  not  doing  such  other  act)  before 
performance"  (u).  But  *this  is  really  no  more  than  a  rule  [263 
of  interpretation ;  it  "  only  professes  to  give  the  result  of  the  intention 
of  the  parties "  (x) ;  the  reason  given  for  it  is  that  "  it  appears 
tbat  the  party  relied  upon  his  remedy,  and  did  not  intend  to  make 
the  performance  a  condition  precedent."  Therefore  the  rule,  like 
all  rules  of  its  kind,  must  yield  to  evidence  of  a  different  intention, 
and  "  where  it  is  clear  that  the  intention  was  to  rely  on  the  per- 
formance of  the  condition  and  not  on  the  remedy,  the  performance 
is  a  condition  precedent"  (x).8 

(u)   Wms.  Saund.  551;  Jervis  C.J.  (oc)   Jervis  C.J.  loe.  cit. 

in  Roberts  v.  Brett    (1856)    18  C.  B. 
373,  25  L.  J.  C.  P.  280,  286. 

8  Though  the  rules  excusing  or  refusing  to  excuse  one  party  to  a  bilateral 
contract  because  of  the  failure  of  the  other  party  to  perform  are  customarily 
dealt  with  as  rules  of  construction  or  interpretation,  and  unquestionably 
found  a  place  in  our  law  on  the  theory  that  the  question  was  one  of  con- 
struction, it  is  probable  that  a  final  analysis  will  disclose  a  deeper  basis. 
Doubtless  either  party  to  a  contract  may  expressly  make  performance  of  his 
promise  conditional  on  the  precedent  or  concurrent  performance  of  the  other 
party,  and  whether  he  has  done  so  in  a  given  case  is  a  question  of  interpre- 
tation, but  even  though  nothing  is  said  in  the  contract  which  justifies  the 
inference  that  the  parties  intended  such  a  condition,  the  substantial  de- 
fault of  one  party,  nevertheless,  in  general  excuses  the  other.  There  are  a 
few  classes  of  cases  which  test  the  reasoning  upon  which  the  innocent 
promisor  is  excused.  Suppose  A  by  the  terms  of  the  contract  is  to  perform 
on  January  1  and  B  on  February  1.  According  to  the  rule  of  construction  as 
usually  stated  A's  liability  to  perform  is  absolute  and  B's  is  conditional. 
No  doubt  during  January  A  can  be  sued  by  B  without  performance  or  tender 
by  B.  But  if,  either  before  January  1  or  later,  B  is  disabled  from  per- 
forming his  promise  A  is  excused  from  performing  his  promise,  if  he  has 
not  alreadv  done  so.  Ex  parte  Chalmers,  L.  R.  8  Ch.  289;  Bloomer  v. 
Bernstein,  L.  B.  9  C.  P.  588 ;  Morgan  v.  Bain,  L.  "R.  10  C.  P.  15 ;  Mess  v. 
Duffus,  6  Comra.  Cas.  165;  Re  Phenix  Bessemer  Steel  Co.,  4  Ch.  D.  108; 
Robinson  i\  Davenport,  27  Ala.  574;  Brassel  v.  Troxel,  68  111.  App.  131  j 
Rappleye  v.  Racine  Seeder  Co.,  79  Iowa,  220;  Hobbs  v.  Columbia  Falls  Co., 
157  Mass.  109;  Lennox  v.  Murphy,  171  Mass.  370,  373;  Pardee  v.  Kanady, 
100  N.  Y.  121;  Vandegrift  l.  Cowles  Engineering  Co.,  161  N.  Y.  435;  Diem 
v.  Koblitz,  49  Ohio  St.  41;  Dougherty  Bros.  v.  Central  Bank,  93  Pa.  227; 
Lancaster  Bank  v.  Huver,  114  Pa.  216.     See  also  Sale  of  Goods  Act,  §§  18,  41. 

Cp.  Ex  parte  -Pollard,  2  Low,  411;  Stokes  i\  Baar,  18  Fla.  656;  Chemical 
Nat.  Bank  v.  World's  Fair  Exposition,  170  111.  82;  C.  F.  Jewett  Pub.  Co.  v. 
Butler,  159  Mass.  517 ;  Bank  Commissioners  v.  New  Hampshire  Trust  Co.,  69 
N.  H.  621. 

In  these  cases  B's  disability  was  due  to  insolvency.  In  the  following 
cases  his  disability  was  due  to  a  voluntary  transfer  to  a  third  person  of 
the  property  to  which  the  contract  related.  Such  a  transfer  was  held  an 
excuse  in  Fort  Payne  Co.  v.  Webster,  163  Mass.  134;  Meyers  v.  Markham,  90 


324  DUTIES   UNDER   CONTRACT. 

Total  or  partial  default.  Another  test  often  applied  is  whether  the 
term  of  the  contract  in  which  default  has  been  made  "  goes  to  the 
whole  of  the  consideration,"  or  only  to  part;  in  other  words,  whether 
the  importance  of  that  term  with  regard  to  the  contract  as  a  whole 
is  or  is  not  such  that  performance  of  the  residue  would  be,  not  a 
defective  performance  of  that  which  was  contracted  for,  but  a  total 
failure  to  perform  it.  Can  it  be  said  that  the  promisee  gets  what 
lie  bargained  for,  with  some  shortcoming  for  which  damages  will 
compensate  him?  or  is  the  point  of  failure  so  vital  that  his  expecta- 
tion is  in  substance  defeated?     The  necessity  of  dealing  with  this 

Minn.  230;  James  v.  Burchell,  82  N.  Y.  108;  Brodhead  v.  Reinbold,  200  Pa. 
618.  See  also  Leonard  v.  Bates,  1  Blackf.  172;  Russ  Lumber  Co.  v.  Muscupiabe 
Co.,  120  Cal.  521.  Garberino  c.  Roberts,  109  Cal.  125;  Webb  v.  Stephenson,  11 
Wash.  342,  are  decided  otherwise  on  the  ground  that  the  property  might  be 
regained  by  B  in  time  for  the  performance  of  the  contract.  See  also  Joyce  v. 
Shafer,  97  Cal.  335 ;   Shiveiy  r.  Semi-Tropic,  etc.,  Co.,  99  Cal.  259. 

The  result  is  the  same  if  B  repudiates  his  obligation  before  A  performs. 
See  infra,  p.  350. 

A's  liability  then  is  not  strictly  absolute.  Even  though  B  is  not  disabled 
and  does  not  repudiate  his  promise  but  simply  fails  to  sue  A  until  after 
February  1  many  cases  hold  that  B  must  tender  performance  in  order  to  main- 
1  ain  his  action.  '  Hill  v.  Grigsby,  35  Cal.  656 ;  McCroskey  v.  Ladd,  96  Cal.  455 ; 
Irwin  c.  Lee,  34  Ind.  319;  Soper  r.  Gabe,  55  Kan.  646;  Brentnall  ('.  Marshall, 
10  Kan.  App.  488;  Beecher  v.  Conradt,  13  N.  Y.  108;  Eddy  v.  Davis,  116  N.  Y. 
247;  Shelly  v.  Mikkelson,  5  N.  Dak.  22;  Boyd  v.  McCullough,  137  Pa.  7,  16; 
First  Nat.  Bank  v.  Spear,  12  S.  Dak.  108;  Hogan  v.  Kyle,  7  Wash.  595. 
See  also  McElwee  v.  Bridgeport  Land  Co.,  54  Fed.  Rep.  627  (C.  C.  A.) 
But  see  contra,  Weaver  v.  Childress,  3  Stew.  (Ala.)  361;  Hays  r.  Hall, 
4  Port.  374,  387;  White  v.  Beard,  5  Port.  94,  100;  Duncan  v.  Charles,  5  111. 
561;  Sheeran  r.  Moses,  84  111.  448;  Gray  v.  Meek,  199  111.  136,  139;  Allen 
v.  Sanders,  7  B.  Mon.  593";  Coleman  r.  Rowe,  6  Miss.  460;  Clopton  v.  Bolton, 
23  Miss.  78;  McMath  v.  Johnson,  41  Miss.  439;  Bowen  v.  Bailey,  43  Miss.  405; 
Biddle  v.  Coryell,  3  liar.  (N.  J.  L.)  377.  See  also  Loud  r.  Pomona  Land 
Co.,  153  U.  S.  564,  580;  Bean  v.  Atwater,  4  Conn.  3;  White  r.  Atkins,  8 
Cush.  367;  Kettle  v.  Harvey,  21  Vt.  301. 

In  regard  to  sales  of  personal  property  the  English  Sale  of  Goods  Act 
provides:  "Sec.  41,  (1)  Subject  to  the  provisions  of  this  Act,  the  unpaid 
seller  of  goods  who  is  in  possession  of  them  is  entitled  to  retain  possession 
of  them  until  payment  or  tender  of  the  price  in  the  following  cases,  namely: — 

"  (~b)  Where  the  goods  have  been  sold  on  credit,  but  the  term  of  credit 
has  expired."  See  further,  Chalmers,  Sale  of  Goods  Act  (5th  ed.),  82; 
Mechem   on   Sales,    §    1521. 

The  explanation  of  these  decisions,  and  the  true  basis  of  the  rule  excusing 
one  party  to  a  contract  on  account  of  the  default  of  the  other  whenever  the 
contract  itself  does  not  provide  for  such  excuse  is  to  be  found  in  the  fact 
that  parties  to  a.  bilateral  contract  save  in  exceptional  cases  always  con- 
template that  the  performance  on  one  side  is  the  exchange  or  price  for  the 
performance  on  the  other,  and  it  is  inequitable  that  either  party  should 
be  required  to  perform  on  his  side  not  only  when  he  has  not  received  but 
when  he  is  not  going  to  receive  performance  from  the  other  party.  This 
doctrine  is  entirely  analogous  to  the  doctrine  of  failure  of  consideration. 
So  the  matter  has  been  worked  out  in  the  civil  law.  113  Harv.  L.  Rev.  80), 
and  many  of  the  results  reached  in  our  courts  cannot  be  adequately  explained 
on  any  other  theory. 


TOTAL  OB  PARTIAL  DEFAULT.  325 

question  as  a  whole  was  perhaps  obscured  to  some  extent  by  the 
requirements  of  formal  pleading  (y),  but  it  has  been  strongly  asserted 
in  all  the  recent  authorities. 

"  Parties  may  think  some  matter,  apparently  of  very  little  im- 
portance, essential;  and  if  they  sufficiently  express  an  intention  to 
make  the  literal  fulfilment  of  such  a  thing  a  condition  precedent, 
it  will  be  one;  or  they  may  think  that  the  performance  of  some  mat- 
ter, apparently  of  essential  importance  and  prima  facie  a  condition 
precedent,  is  not  really  vital,  and  may  be  compensated  for  in  dam- 
ages, *and  if  they  sufficiently  expressed  such  an  intention,  it  [264 
will  not  be  a  condition  precedent 

"  And  in  the  absence  of  such  an  express  declaration,  we  think  that 
we  are  to  look  to  the  whole  contract,  and  applying  the  rule  stated  by 
Parke  B.  to  be  acknowledged  (z),  see  whether  the  particular  stipula- 
tion goes  to  the  root  of  the  matter,  so  that  a  failure  to  perform  it  would 
render  the  performance  of  the  rest  of  the  contract  by  the  plaintiff  a 
thing  different  in  substance  from-  what  the  defendant  has  stipulated 
for;  or  whether  it  merely  partially  affects  it  and  may  be  compen- 
sated for  in  damages.  Accordingly,  as  it  is  one  or  the  other,  we 
think  it  must  be  taken  to  be  or  not  to  be  intended  to  be  a  condition 
precedent"  (a). 

The  agreement  sued  on  in  the  case  where  the  principle  was  thus 
declared  was  an  opera  singer's  engagement.  The  singer,  who  was 
plaintiff  in  the  cause,,  was  to  sing  in  concerts  as  well  as  operas,  and 
during  a  period  of  a  year,  beginning  three  months  before  the  active 
duties  of  the  engagement,  he  was  not  to  sing  out  of  the  theatre  in 
the  United  Kingdom  (in  the  opera  season,  or  within  fifty  miles  of 
London)  without  the  defendant's  permission.  He  was  also  to  be  in 
London  for  rehearsals  six  days  before  the  commencement  of  the 
engagement.  This  last  term  was  not  fulfilled,  but  it  was  held  that, 
having  regard  to  the  whole  scope  of  the  agreement,  it  did  not  go  to 
the  root  of  the  matter  so  as  to  justify  the  defendant  in  determining 
the  engagement  and  refusing  to  employ  the  plaintiff.  Matter  of 
excuse  was  alleged  by  the  plaintiff  for  his  failure  to  arrive  at  the 
time  stipulated,  but  nothing  turned  upon  this. 

Agreements  are  now  presumed  entire  rather  than  divisible.     If,  however, 
there  be  any  presumption  either  way  in  the  modern  view  of  such  cases, 

(y)   It  cannot  be  said  that  it  was  (z)  In  Graves  v.  Legg  (1854)  9  Ex. 

overlooked:   see  Withers  v.  Reynolds  at  p.  716,  23  L.  J.  Ex.  228. 

(1831)   2  B.  &  Ad.  882,  36  E.  R.  782,  (a)    Blackburn   J.   Bettini  v.   Gye 

Franklin  v.  Miller  (1836)   4  A.  &  E.  (1876)    1    Q.    B.   D.    183,    187,    188; 

599,   both   long   before  the    Common  Finch  Sel.  Ca.  742,  745. 
Law  Procedure  Act. 


326  DUTIES   UNDER    CONTRACT. 

it  is  that,  in  mercantile  contracts  at  any  rate,  all  express  terms  are 
265]  material.  "  Merchants  *are  not  in  the  habit  of  placing  upon 
their  contracts  stipulations  to  which  they  do  not  attach  some  value 
and  importance  "  ( h )  .9  In  a  case  not  mercantile,  where  the  contract 
before  the  Court  was  held  on  its  terms  to  be  divisible,  the  late  Lord 
Justice  Mellish  said : — 

"  I  quite  agree  that  as  a  general  rule  all  agreements  must  be  con- 
sidered as  entire.  Generally  speaking,  the  consideration  for  the  per- 
formance of  the  whole  and  each  part  of  an  agreement  by  one  party 
to  it  is  the  performance  of  the 'whole  of  it  by  the  other,  and  if  the 
Court  is  not  in  a  position  to  compel  the  plaintiff,  who  comes  for 
specific  performance,  to  perform  the  whole  of  it  on  his  part,  the 
Court  will  not  compel  the  defendant  to  perform  his  part  or  any  part 
of  the  agreement.  As  a  general  rule,  therefore,  an  agreement  is  en- 
tire. I  can  also  conceive  that  a  court  of  equity  might  treat  an  agree- 
ment as  entire  even  in  cases  where  a  court  of  law  would  say  that  the 
performance  of  one  part  is  not  a  condition  precedent  to  the  perform- 
ance of  the  other  part,  because  the  Court  might  see  that  those  rules 
as  to  conditions  precedent,  which  to  a  certain  extent  are  technical, 
might  not  meet  the  real  justice  of  the  case.  But,  on  the  other  hand, 
1  do  not  find  it  laid  down  anywhere  that  it  is  impossible  for  the 
parties  so  to  frame  an  agreement  that  there  may  be  a  specific  per- 
formance of  part"  (c). 

Entire  consideration  and  quantum  meruit.  The  question  to  what  extent, 
if  at  all,  a  party  is  bound  to  accept  performance  of  less  than  all  that 
was  promised  him  is  to  be  distinguished  from  the  question,  not  to  be 

(b)  Lord  Cairns  in  Bowes  v.  Shand  (c)    Wilkinson  v.  Clements   (1872) 

U877)  2  App.  Ca.  455,  463.  L.  R.  8  Ch.  96,  110. 

9  "  The  right  of  a  party  to  enforce  a  contract  will  not  be  forfeited  or  lost 
by  reason  of  technical,  inadvertent,  or  unimportant  omissions  or  defects.  A 
substantial  performance  must  be  established,  in  order  to  entitle  the  party 
claiming  the  benefit  of  the  contract  to  recover;  but  this  does  not  mean  a 
literal  compliance  as  to  details  that  are  unimportant.  There  must  be  no 
■wilful  or  intentional  departure,  and  the  defects  of  performance  must  not 
pervade  the  whole,  or  be  so  essential  as  substantially  to  defeat  the  object 
which  the  parties  intended  to  accomplish.  Whether,  in  any  case,  such 
defects  or  omissions  are  substantial,  or  merely  unimportant  mistakes  that 
have  been  or  may  be  corrected,  is  generally  a  question  of  fact."  Miller  v. 
Benjamin,  1  VI  N".  Y.  613,  617.  Applications  of  this  principle  to  cases  where 
a  partial  breach  was  held  fatal  may  be  found  in  Glazebrook  r.  Woodrow,  8 
T.  R.  366;  H.  D.  Williams  Cooperage  Co.  r.  Schofield,  115  Fed.  Ren. 
119  (C.  C.  A.);  Worthington  r.  Gwin,  119  Ala.  44:  Leopold  v.  Salkey,  89 
111.  412:  Lake  Shore,  &c.  Ry.  Co.  v.  Richards.  152  111.  59;  Ballance  r. 
Vanuxem,  191  111.  310:  Davis  >'.  Jeffris,  f.  S.  Dak.  352 :  McLean  r.  Brown, 
15  Ont.  313,  16  Ont.  App.  106:  National  Machine  Co.  ».  Standard  Ma- 
chinery Co.,  181   Mass.  275. 


DEFAULT    IN    INSTALMENTS.  327 

pursued  here,  of  the  duty  incurred  by  one  who  does  accept  and  in 
fact  has  some  benefit  from  a  partial  performance.10  It  may  be  the  in- 
tention of  a  contract  that  nothing  less  than  complete  performance  on 
one  side  shall  found  any  claim  at  all  to  payment  on  the  other.  In 
such  cases  effect  is  given  to  the  intention,  and  an  imperfect  per- 
formance, *from  whatever  cause  remaining  imperfect,  affords  [266 
no  ground  of  action.  The  express  terms  are  not  fulfilled  and  a  term 
or  new  contract  to  pay  what  the  benefit  received  is  reasonably  worth 
cannot  be  introduced  where  the  express  terms  exclude  it  (d).  But 
such  a  contract,  it  seems,  cannot  be  executory;  the  complete  per- 
formance itself  is  the  only  consideration  for  the  promise  to  pay.  It 
is  like  the  offer  of  a  reward  by  advertisement  to  the  first  person  who 
procures  certain  information.  A  person  who  brings  the  information, 
but  is  not  the  first  to  bring  it,  evidently  has  no  claim  on  the  adver- 
tiser, whatever  amount  of  trouble  and  expense  he  may  have  incurred, 
and  although  the  delay  may  be  due  to  inevitable  accident  (e). 

3.  Default  in  First  or  other  Instalments  of  Discontinuous  Per- 
formance. 

Questions  on  sales  for  delivery  by  instalments.  Peculiarly  troublesome 
questions  have  arisen  upon  contracts  for  the  sale  of  goods  to  be  de- 
livered and  paid  for  by  instalments.  It  is  not  yet  settled  whether 
failure  to  deliver  the  first  or  any  subsequent  instalments  is  or  is  not 
presumed,  in  the  absence  of  any  special  indication  of  the  parties'  in- 
tention, to  go  to  the  whole  of  the  consideration  and  entitle  the  buyer 
to  refuse  acceptance  of  any  further  deliveries.     It  seems  to  be  ad- 

(d)    Where   performance  has   been  [1898]    1   Q.   B.   673,   67  L.  J.   Q.   B. 

defective  by  the  plaintiff's  own  fault,  545,  C.  A. 

the  burden  is  on  him  to  show  a  fresh  (e)   See  Gutter  v.  Powell  (1795)    6 

contract    to    pay    for    what    he    has  T.   R.    320,   3   R.   R.    185,   and  notes 

actually  done :  see  Sumpter  v.  Hedges  thereto  in  2  Sm.  L.  C. 

10  "  The  reason  of  the  decision  in  that  [Boone  v.  Eyre,  1  H.  Bl.  273]  and 
similar  cases,  besides  the  inequality  of  damages,  seems  to  be,  that  where  a 
person  has  received  part  of  the  consideration  for  which  he  entered  into  the 
agreement,  it  would  be  unjust  that,  because  he  had  not  the  whole,  he  should 
therefore  be  permitted  to  enjoy  that  part  without  either  payment  or  doing 
anything  for  it.  Therefore  the  law  obliges  him  to  perform  the  agreement 
on  his  part,  leaving  him  to  his  remedy  to  recover  any  damage  he  may  have 
sustained  in  not  having  received  the  whole  consideration.  .  .  .  It  is  no 
longer  competent  for  the  defendant  to  insist  upon  the  non-performance  of 
that  which  was  originally  a.  condition  precedent;  and  this  is  more  correctly 
expressed,  than  to  sav  it  was  not  a  condition  precedent  at  all."  Parke,  B., 
in  Graves  v.  Legg,  9  Ex.  709.  See  also  White  v.  Beeton,  7  H.  &  N.  42;  Fillicul 
r.  Armstrong,  7  A.  &  E.  557;  Kauffman  r.  Raeder,  108  Fed.  Rep.  171  (C.  C. 
V)  ;  Keller  r.  Reynolds,  12  Ind.  App.  383;  Swobe  v.  New  Omaha  Electric. 
Light,  39  Neb.  586. 


328  DUTIES    UNDER    CONTRACT. 

mitted  that  failure  on  the  buyer's  part  to  pay  according  to  the  terms 
of  the  contract  for  the  first  or  any  particular  instalment  as  delivered 
is  not  of  itself  a  breach  of  the  entire  contract  (/") ;  but  such  default 
or  refusal  may  by  the  reason  assigned  for  it,  or  because  of  other  par- 
267]  ticular  circum*stances,  manifest  an  intention  to  repudiate  the 
contract  as  a  whole,  in  which  case  the  seller  may  justly  refuse  in  his 
turn  to  go  on  with  the  contract  (g). 

Hoare  v.  Rennie.  In  Hoare  v.  Rennie  (h),  a  case  decided  on  plead- 
ings, the  contract  appeared  to  have  been  to  sell  about  667  tons  of 
iron  of  a  specified  kind,  to  be  shipped  in  June,  July,  August,  and 
September,  in  about  equal  portions  each  month.  The  action  was  by 
the  sellers  for  non-acceptance,  and  for  wrongful  repudiation  of  the 
contract.  The  buyers  pleaded,  in  effect,  that  a  June  shipment  of  21 
tons  only  was  offered  by  the  plaintiffs,  who  were  never  ready  and 
willing  to  deliver  a  proper  June  shipment  according  to  the  contract, 
and  that  the  defendants  thereupon  refused  to  receive  the  portion 
shipped  and  tendered,  and  gave  notice  that  they  would  not  receive 
the  residue.  The  plaintiffs  demurred,  and  the  pleas  were  upheld,  as 
showing  that  the  plaintiffs  had  not  been  ready  and  willing  to  per- 
form the  substance  of  their  contract  within  the  appointed  time.  In 
the  judgments  almost  exclusive  attention  is  paid  to  the  question 
whether  the  defendants  were  bound  to  accept  the  first  shipment;  in 
only  one  of  them  (i)  is  it  stated  in  general  terms  that  the  defend- 
ants were  at  liberty  to  rescind  the  contract,  but  the  decision  evidently 
involves  this  (Jc). 

Simpson  v.  Crippin.  In  Simpson  v.  Grippin  (I)  the  contract  was  to 
supply  about  6,000  to  8,000  tons  of  coal,  to  be  delivered  into  the 
buyers*  waggons,  in  "equal  monthly  quantities  during  the  period  of 
268]  twelve  months  from  the  1st  of  July  next."  *During  the  first 
month  of  the  contract  the  buyers,  though  pressed  by  the  sellers  to 

if)  Mersey  Steel  and  Iron  Company  (h)    (1859)  5  H.  &  N.  19,  29  L.  J. 

v.  Naylor  (1884)  9  App.  Ca.  434,  439,  Ex.  73. 

444,   53   L.   J.   Q.   B.   497;   Freeth  v.  (i)  Channell  B.  5  H.  &  N.  at  p.  29. 

Bunr    (1874)    L.  R.  9   C.   P.   208,  43  (h)    Much  of  the  language  of  the 

L.  J.  C.  P.  91.  judgments  would  certainly  have  been 

(g)   Withers  v.  Reynolds   (1831)   2  more   appropriate   if   the   action  had 

B.  &  Ad.  882,  36  R.  R.  782;  Freeth  been   for  non-acceptance  of  the  first 

v.  Burr   (1874)   L.  R.  9  C.  P.  208,  43  shipment  only.     Cf.  L.  Q.  R.  ii.  281: 

L.    J.    C.    P.    91 ;    and   see   per   Lord  and  per  Bowen  L.J.  in  Mersey  Steel 

Blackburn,  Mersey  Steel  and  Iron  Go.  and  Iron  Co.  v.  Naylor  (1884)  9  Q.  B. 

v.    Naylor,   Benzon   &   Co.    (1884)    9  Div.  at  p.  671;  and  per  Jesael  M.R. 

App.  Ca.  at  p.  442.  ib.  at  p.  658. 

(I)   (1872)  L.  R.  8  Q.  B.  14. 


DEFAULT    IN    INSTALMENTS.  329 

send  waggons,  took  only  158  tons.  The  sellers  thereupon  gave  notice 
to  the  buyers  that  they  cancelled  the  contract.  It  was  held  that  the 
breach  did  not  justify  rescission,  and  great  doubt  was  thrown  upon 
Hoare  v.  Eennie. 

Honck  v.  Muller.  In  Honch  v.  Mutter  (m)  the  contract  was  to  de- 
liver 2,000  tons  of  iron,  "  November,  1879,  or  equally  over  November, 
December,  and  January  next,  at  6d.  per  ton  extra."  The  buyer  failed 
to  take  any  of  the  iron  in  November,  but  near  the  end  of  the  month 
offered  to  "  take  delivery  of  all  in  December  and  January  "  (n).  On 
December  1  the  seller  cancelled  the  contract,  and  was  held  by  the 
majority  of  the  Court  of  Appeal  to  have  been  entitled  to  do  so,  even 
on  the  supposition  that  in  the  circumstances  the  buj^er  could  and  did 
elect  to  take  delivery  in  three  portions  in  the  three  months  named. 
"  I  think,"  said  Bramwell  L.J.  "  where  no  part  of  a  contract  has 
been  performed,  and  one  party  to  its  refuses  to  perform  the  entirety 
to  be  performed  by  him,  the  other  party  has  a  right  to  refuse  any  part 
to  be  performed  by  him.  I  think  if  a  man  sells  2,000  tons  of  iron, 
he  ought  not  to  be  bound  to  deliver  1,333^  only,  if  it  can  be 
avoided"  (o). 

Freeth  v.  Burr.  Meanwhile  it  had  been  held  in  Freeth  v.  Burr  (p) 
that  refusal  by  a  buyer  to  pay  for  a  much  delayed  delivery  of  the 
first  instalment  (under  a  mistaken  claim  to  set  off  loss  arising  from 
any  future  default  in  delivering  the  residue)  did  not  entitle  the  seller 
to  rescind  the  contract.  It  was  suggested  that,  "  in  cases  of  this 
sort,  where  the  question  *is  whether  the  one  party  is  set  free  [269 
by  the  action  of  the  other,  the  real  matter  for  consideration  is 
whether  the  acts  or  conduct  of  the  one  do  or  do  not  amount  to  an 
intimation  of  an  intention  to  abandon  and  altogether  to  refuse  per- 
formance of  the  contract,"  or,  in  other  words,  "evince  an  intention 
no  longer  to  be  bound  by  the  contract"  (q). 

(to)     (1881)    7   Q.   B.   Div.   92,  50.  that    ease     been     partly    performed. 

L.  J.  Q.  B.  529.  Brett  L.J.  dissented,  thinking  Simp- 

{n)   See  7  Q.  B.  Div.  at  p.  94  (not  son  v.   Crippin  right,   and  Hoare  v. 

one-third  in  December  and  one-third  Rennie    wrong;     cp.     his     dissenting 

in   January,   as   stated   in   the  head-  judgment  in  Router  v.   Sala    (1879) 

note).  4  C.  P.  Div.  239,  48  L.  J.  C.  P.  492. 

(o)    7   Q.   B.   Div.   98.     Baggallay  (p)    (1874)   L.  B.  9  C.  P.  208,  43 

L.J.    to    the    same    effect    approving  L.  J.  C.  P.  91. 

Hoare   v.    Rennie,    and    disapproving  -(g)  Lord  Coleridge  C.J.  at  p.  213; 

Simpson  v.  Crippin,  which  Bramwell  Keating  and  Denman  J.J.  concurred 

L.J.    endeavoured   to   distinguish   on  in  affirming  this  principle, 
the  ground  that  the  contract  had  in 


330  DUTIES    UNDER    CONTRACT. 

Mersey  Steel  and  Iron  Company  v.  Naylor.  The  later  case  of  the  Mer- 
sey Steel  and  Iron  Company  (r),  where  there  was  only  a  postpone- 
ment of  payment,  in  peculiar  circumstances,  under  erroneous  advice, 
confirms  Freeth  v.  Burr,  so  far  as  it  goes  (s).  As  a  positive  test, 
the  rule  of  Freeth  v.  Burr  is  doubtless  correct;  that  is,  a  party  who, 
by  declaration  or  conduct,  "  evinces  an  intention  no  longer  to  be 
bound  by  the  contract,"  entitles  the  other  to  rescind,  and  this  whether 
he  has  or  has  not,  apart  from  this,  committed  a  breach  of  the  contract 
going  to  the  whole  of  the  consideration.  But  it  seems  doubtful 
whether  the  test  will  hold  negatively.  Can  an  intention  to  repudiate 
the  contract  be  necessary  as  well  as  sufficient  to  constitute  a  total  and 
irreparable  breach?  Can  there  not  be,  without  any  such  intent,  a 
failure  in  a  vital  part  of  the  performance  which  destroys  the  benefit 
of  the  contract  as  a  whole  ?  Must  it  not  depend  on  the  nature  of  the 
contract  and  the  order  and  apparent  connection  of  its  terms?  All 
that  the  authorities  require  of  us  is  not  to  presume  delay  in  payment, 
as  distinguished  from  delivery,  to  be  in  itself  a  total  breach.  In  other 
words,  non-payment  will  not  as  a  rule  justify  refusal  to  perform  on 
the  other  side,  unless  there  be  something  more  in  the  circumstances  by 
which  it  is  shown  to  amount  to  repudiation,  as  in  "Withers  v.  Rey- 
nolds (t),  where  there  was  a  deliberate  and  wilful  refusal  to  pay  for 
the  successive  deliveries  according  to  the  terms  of  the  contract. 

270]  Norrington  v.  Wright.  In  1885  the  Supreme  Court  of  the  United 
States  (u)  had  to  deal  with  a  case  very  like  Hoare  v.  Rennie.  The 
contract  was  for  5,000  tons  of  iron  rails  to  be  shipped  from  Europe 
"  at  the  rate  of  about  1,000  tons  per  month,  beginning  February,  1880, 
but  whole  contract  to  be  shipped  before  August  1,  1880/'  The  action 
was  for  non-acceptance.  A  few  passages  from  the  judgment  of  the 
Court  will  best  show  the  view  taken  by  them. 

"In  the  contracts  of  merchants,  time  is  of  the  essence  (x).  The 
time  of  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  .  .  . 

"  The  contract  sued  on  is  a  single  contract  for  the  sale  and  pur- 

(r)    (1S84)    9  App.  Ca.  434,  53  L.  («)    Norrington  v.  Wright    (1885) 

J.   Q.   B.   407.     The   House  of  Lords  115  U.  S.  189. 

seems   to   have   thought   criticism   of  (a:)     This    had    already    been    laid 

Hoare  v.  Rennie  not  relevant.  down    in    England:    Renter   v.    Sala 

(s)   See  per  Lord  Selborne,  9  App.  (1879)  4  C.  P.  Div.  239,  see  per  Cot- 

Ca.   at  p.   438,   and  per  Lord  Black-  ton  L.J.  at  p.  249,  48  L.  J.  C.  P.  492. 

burn  at  pp   442-3.  Cp.    Brown   v.    Guarantee    Trust   Co. 

(t)    (1831)   2  B.  &  Ad.  882,  36  E.  128  U.  S.  403,  414. 
R.  782,  Finch  Sel.  Ca.  749. 


DEFAULT   IN    INSTALMENTS.  331 

chase  of  5,000  tons  of  iron  rails,  shipped  from  a  European  port  or 
ports  for  Philadelphia.  The  subsidiary  provisions  as  to  shipping  in 
different  months,  and  as  to  payment  for  each  shipment  upon  its 
delivery,  do  not  split  up  the  contract  into  as  many  contracts  as  there 
shall  be  shipments  or  deliveries  of  so  many  distinct  quantities  of 
iron  .  .  . 

"  The  seller  is  bound  to  deliver  the  quantity  stipulated,  and  has  no 
right  either  to  compel  the  buyer  to  accept  a  less  quantity,  or  to  require 
him  to  select  part  out  of  a  greater  quantity;  and  when  the  goods  are 
to  be  shipped  in  certain  proportions  monthly,  the  sellers  failure  to  ship 
the  required  quantity  in  the  first  month  gives  the  buyer  the  same 
right  to  rescind  the  whole  contract  that  he  would  have  had  if  it  had 
been  agreed  that  all  the  goods  should  be  delivered  at  once. 

"  The  plaintiff,  instead  of  shipping  about  1,000  tons  in  February 
and  about  1,000  tons  in  March,  as  stipulated  in  the  contract,  shipped 
only  400  tons  in  February,  and  *885  tons  in  March.  His  fail-  [271 
ure  to  fulfil  the  contract  on  his  part  in.  respect  of  these  first  two 
instalments  justified  the  defendants  in  rescinding  the  whole  contract, 
provided  they  distinctly  and  seasonably  asserted  "the  right  of  re- 
scission." 

The  Court  went  on  to  review  the  English  cases,  which  did  not 
in  their  opinion  establish  any  rule  inconsistent  with  the  decision 
arrived  at  in  the  case  at  bar.  All  will  agree  with  them  that  "  a 
diversity  in  the  law  as  administered  on  the  two  sides  of  the  Atlantic, 
concerning  the  interpretation  and  effect  of  commercial  contracts  of 
this  kind,  is  greatly  to  be  deprecated'"  (y).  And  although  the 
decision  is  not  authoritative  in  this  country,  we  may  expect  that  an 
opinion  of  such  weight,  and  so  carefully  and  critically  expressed,  will 
receive  full  consideration  whenever  the  point  is  again  before  the 
Court  of  Appeal  or  the  House  of  Lords.  It  is  a  notable  addition  of 
force  to  the  modern  tendency  to  eschew  stiff  and  artificial  canons  of 
construction,  and  to  hold  parties  who  have  made  deliberate  promises 
to  the  full  and  plain  meaning  of  their  terms.11 

(y)  115  U.   S.  at  p.  206. 

11  The  tendency  of  the  decisions  upon  instalment  contracts  in  this  country 
has  been  to  hold  non-performance  of  one  instalment  justification  for  refusal  to 
proceed  with  the  remainder  of  the  contract.  Thus  failure  to  deliver  one 
instalment  as  agreed  was  held  to  excuse  the  buyer  from  taking  other  in- 
stalments in  Norrington  v.  Wright,  115  U.  S.  18S;  Cleveland  Rolling  Mill  v. 
Rhodes,  121  U.  S.  255;  Johnson  v.  Allen,  78  Ala.  387;  Roebling  v.  Lock 
Stitch  Fence  Co.,  28  111.  App.  184;  Ballman  r.  Burt,  61  Md.  415;  Robson 
v,  Bohn,  27  Minn.  333;  Smith  v.  Keith  Coal  Co..  36  Mo.  App.  567;  Pope  ». 
Porter.  102  N.  Y.  366;  King  Philip  Mills  v.  Slater,  12  R.  I.  82;  Providence 
Coal   Co.  v.   Coxe,   19   R.   I.   380.     But  see   contra,  Blackburn  r.   Reilly,  47 


332  DUTIES    UNDER   CONTRACT. 

Sale  of  Goods  Act.  The  Sale  of  Goods  Act,  1893,  has  now  declared  as 
follows : — 

Sect.  10. — (1.)  Unless  a  different  intention  appears  by  the  con- 
tract, stipulations  as  to  time  of  payment  are  not  deemed  to  be  of  the 
essence  of  a  contract  of  sale.  Whether  any  other  stipulation  as  to 
time  is  of  the  essence  of  the  contract  or  not  depends  on  the  terms  of 
the  contract. 

Sect.  31. — (1.)  Unless  otherwise  agreed,  the  buyer  of  goods  is 
not  bound  to  accept  delivery  thereof  by  instalments. 

(2.)  Where  there  is  a  contract  for  the  sale  of  goods  to  be  delivered 
by  stated  instalments,  which  are  to  be  separately  paid  for,  and  the 

N.  J.  L.  290;  Gerli  v.  Poidebard  Silk  Co.,  57  N.  J.  L.  432.  See  also  Norria 
v.  Harris,  15  Cal.  256;  Herzog  v.  Purdy,  119  Cal.  99;  Myer  v.  Wheeler,  65 
Iowa,  390. 

Similarly  default  in  accepting  delivery  of  one  instalment  is  held  to 
excuse  the  seller  from  tendering  the  remainder.  Cresswell  Co.  v.  Martindale, 
03  Fed.  Rep.  84  ( C.  C.  A. )  ;  Loudenback  Fertilizer  Co.  v.  Tennessee  Phos- 
phate Co.,  121  Fed.  Rep.  298;  Middle  Division  Elevator  Co.  t.  Vandeventer, 
80  111.  App.  609.  See  also  Worthington  v.  Gwin,  119  Ala.  44;  Hamilton 
p.  Thrall,  7  Neb.  210. 

Non-pavment  for.  one  instalment  excuses  the  seller  from  delivering  the 
others.  Hull  Coal  Co.  v.  Empire  Coal  Co.,  113  Fed.  Rep.  256  (C.  C.  A.); 
Stakes  v.  Baars,  18  Fla.  656;  Branch  v.  Palmer,  05  Ga.  210;  Savannah  Ice 
Co.  v.  American  Transit  Co.,  110  Ga.  142;  Bradley  r.  King,  44  111.  339;  Hesa 
v.  Dawson,  149  111.  138;  Curtis  v.  Gibney,  59  Md.  131;  McGrath  r.  Gegner, 
77  Md.  331;  Baltimore  v.  Schaub  (Md.),*54  Atl.  Rep.  100;  Palmer  v.  Breen, 
34  Minn.  39;  Berthold  v.  St.  Louis  Construction  Co.,  165  Mo.  280;  Gardner 
v.  Clark,  21  N.  Y.  399;  Kokomo  Co.  r.  Inman,  134  N.  Y.  92;  American 
Broom  Co.  v.  Addicks,  42  N.  Y.  Supp.  871;  Johnson  i.  Tyng,  43  N.  Y.  Supp. 
435;  Reybold  t.  Voorhees,  30  Pa.  116;  Rugg  r.  Moore,  110  Pa.  236;  Easton 
r.  Jones,  193  Pa.  147.  See  also  Raabe  v.  Squier,  148  N.  Y.  81.  But  see 
contra,  Monarch  Cycle  Co.  t".  Royer  Wheel  Co.,  105  Fed.  Rep.  324;  West  v. 
Bechtel,  125  Mich.  144;  Blackburn  v.  Reilly,  47  X.  J.  L.  290;  Otis  i:  Adams, 
56  N.  J.  L.  38.  See  also  Johnson  Forge  Co.  v.  Leonard  ( Del. ) ,  57  L.  R.  A. 
225 ;  Winchester  i .  Newton,  2  Allen,  492 ;  Beatty  v.  Howe  Lumber  Co.,  77 
Minn.  272;  Trotter  r.  Heckscher,  40  N.  J.  Eq.  612;  Lucesco  Oil  Co.  v.  Brewer, 
66  Pa.  351 ;  Tucker  v.  Billings,  3  Utah,  82. 

Non-payment  of  an  instalment  under  a  building  contract  or  similar  contract 
justifies  cessation  of  work.  Phillips  Co.  v.  Seymour,  91  U.  S.  640:  Cox  r. 
McLaughlin,  54  Cal.  605;  Dobbins  v.  Higgins,  78  111.  440;  Keeler  i:  Clif- 
ford, 105  111.  544;  Greary  v.  Bangs,  37  111.  App.  301;  Shute  r.  Hennessy,  40 
Iowa,  352;  McCullough  v.  Baker,  47  Mo.  401;  Bean  v.  Miller,  69  Mo.  384; 
Mugan  v.  Regan,  48  Mo.  App.  401;  Graf  v.  Cunningham,  109  N.  Y.  309; 
Thomas  v.  Stewart,  132  N.  Y.  580;  Miller  v.  Sullivan,  (Tex.  Civ.  App.)  33 
S.  W.  Rep.  095;  Bennett  v.  Shaughnessy,  6  Utah,  273;  Preble  v.  Bottom,  27 
Vt.  249.  See  also  Rioux  v.  Ryegate  Brick  Co.,  72  Vt.  148.  Campbell  r.  Mc- 
Leod,  24  Nova  Scotia,  00,  is  contra. 

Defective  quality  of  one  instalment,  however,  does  not  seem  generally  to 
excuse  the  purchaser  from  taking  other  instalments,  either  in  England  or 
this  country,  though  he  may  refuse  to  accept  any  instalment  when'  offered, 
if  it  is  of  poor  quality.  Jonassohn  c.  Young,  4  B.  &  S.  290;  Wayne's  Coal 
Co.  v.  Morewood,  46  L.  J.  Q.  B.  N.  S.  746 ;  Guernsev  v.  West  Coast  Lumber 
Co.,  87  Cal.  249;  Vallens  r.  Tillman,  103  Cal.  187;  Blackburn  v.  Reilly,  47 
N.  J.  L.  290;  Cahen  v.  Piatt,  69  N.  Y.  348;  Scott  v.  Kittanning  Coal  Co., 
89  Pa.  231. 


REPUDIATION    OF    CONTRACTS.  333 

seller  makes  defective  deliveries  in  respect  of  one  or  more  instalments, 
it  is  a  ques*tion  in  each  case  depending  on  the  terms  of  the  [272 
contract  and  the  circumstances  of  the  case,  whether  the  breach  of 
contract  is  a  repudiation  of  the  whole  contract  or  whether  it  is  a 
severable  breach  giving  rise  to  a  claim  for  compensation  but  not  to  a 
right  to  treat  the  whole  contract  as  repudiated. 

The  apparent  intention  and  effect  of  these  enactments  is  to  put  on 
record  the  existing  state  of  the  authorities  without  deciding  any 
question  that  still  remains  fairly  open.  What  is  said  as  to  repudia- 
tion is  obviously  derived  from  Freeth  v.  Burr  (p.  268  above),  but  does 
not  seem  to  amount  to  a  legislative  approval  of  everything  that  was 
said  in  that  case :  for  the  Act  does  not  say  "  shows  an  intention  to 
repudiate,"  but  "is  a  repudiation."  Indeed,  the  opinion  that  the 
real  question  is  not  of  intention  but  of  results  seems  to  be  rather 
strengthened  than  otherwise  by  this  language. 

4.  Repudiation   of  Contracts. 

Use  of  repudiation  is  modern.  The  use  of  the  word  "  repudiation  " 
in  the  law  of  contracts  is  modern,  and  though  the  conduct  to  which 
this  name  has  been  applied  can  hardly  have  been  confined  to  modern 
times,  still  it  is  chiefly  in  recent  cases  that  the  legal  effect  of  such 
conduct  has  been  considered.  Indeed,  it  cannot  be  said  that  the 
courts  have  even  as  yet  worked  out  a  consistent  and  logical  doctrine 
on  the  subject.  ^ 

Meaning  of  term.  By  repudiation  of  a  contract  is  to  be  understood 
such  words  or  actions  by  a  contracting  party  as  indicate  that  he  is  not 
going  to  perform  his  contract  in  the  future.  He  may  already  have 
performed  in  part;  part  performance  may  already  have  become  due 
from  him  under  the  contract,  but  not  have  been  rendered ;  or  the  time 
when  any  performance  is  due  from  him  may  still  be  in  the  future. 
The  essential  element  which  exists  in  all  these  cases  is  something  still 
to  be  performed  in  the  future  under  the  contract  which,  as  he  has 
made  manifest,  he  is  not  going  to  perform.  Whether  the  reason  he 
discloses  for  his  prospective  failure  to  perform  is  because  he  cannot 
or  because  he  will  not  seems  wholly  immaterial,  though  the  word 
"  repudiation  "  is  more  strictly  appropriate  to  cases  where  an  inten- 
tion not  to  perform  is  manifested,  irrespective  of  ability. 

Two  remedies  in  case  of  repudiation.  In  case  such  repudiation  of  a 
contract  is  made  by  one  contracting  party,  the  other  may  frequently, 
at  least,  take  one  of  two  courses. 


■534  DUTIES    UNDER    CONTRACT. 


A.  Eescission. 


General  rules.  He  may  elect  to  rescind  the  contract  entirely.  This 
right  generally  exists  where  there  has  been  repudiation  or  a  material 
breach  of  the  contract,  and  is  most  commonly  exercised  when  the 
aggrieved  party  has  performed  fully  or  in  part,  and  wishes  to  recover 
what  he  has  given  or  its  value.  Thus  he  has  a  right  to  restitution  as 
an  alternative  remedy  instead  of  compensation  in  damages.  This 
choice  of  remedies  was  not  allowed  by  the  early  English  law,12  and 
there  a/e  still  many  exceptions  and  inconsistencies  in  the  application 
of  the  rule,  which  are  due  in  part  to  the  fact  that  the  rule  has  been 
developed  largely  under  cover  of  the  fictitious  declaration  in  indebi- 
tatus assumpsit,  and  of  equally  fictitious  infeiences  that  a  refusal  to 
perform  a  contract  indicates  assent  to  the  rescission  of  the  contract 
and  the  restoration  of  what  has  been  given  under  it.  As  may  be 
observed  in  other  branches  of  the  law,  the  English  cases  are  more 
conservative  than  the  American — less  ready  to  accept  a  new  general 
rule  varying  from  early  precedents.  So  that  the  principle  stated  above 
must  be  taken  only  with  very  considerable  qualifications  as  a  statement 
of  the  law  of  England.  Indeed,  that  principle  is  directly  at  variance 
with  statements  of  law  made  in  recent  English  cases — statements 
which  would  doubtless  in  many  classes  of  cases  be  acted  on.13  In  this 
country,  though  there  are  exceptions  to  the  rule,  it  may  safely  be  laid 
down  as  a  general  principle.  The  following  paragraphs  show  its 
applications  and  limitations. 

Restitution  of  money  paid.  If  a  party  to  a  contract  has  paid  money 
and  the  other  party  has  wholly  failed  to  perform  on  his  part,  restitu- 
tion may  be  had  both  in  England14  and  in  this  country.15 

12  The  earliest  cases  allowing  an  action  for  restitution  against  a  defendant 
guilty  of  breach  of  contract,  and  who  might  have  been  sued  on  the  contract 
for  damages,  are  Dutch  v.  Warren,  1  Str.  406,  and  Anonymous,  1  Str.  407, 
decided  in  1721;  but  in  the  first  of  these  decisions,  though  the  action  was 
in  form  for  restitution,  the  plaintiff's  damages  were  restricted  to  the 
value  of  what  he  ought  to  have  received  by  the  contract.  No  general  recog- 
nition of  a  right  to  restitution  as  a  remedy  for  breach  of  contract  existed 
prior  to  decisions  of  Lord  Mansfield  and  Lord  Kenyon  at  the  end  of  the 
eighteenth  century. 

13  See  e.  g.  James  v.  Cotton,  7  Bing.  266,  274,  per  Tindal,  C.  J.;  Street  v. 
Blny,  2  B.  &  Ad.  456,  462;  Dawson  r.  Collis,  10  C.  B.  523,  528. 

it  Towers  v.  Barrett,  1  T.  R.  133;  Giles  v.  Edwards,  7  T.  R.  181;  Farrer  v. 
Nightingal,  2  Esp.  630;  Widdle  r.  Lynam,  Peake,  A.  C.  30;  Greville  v.  Da 
Costa,  Peake,  A.  C.  113;  Squire  v.  Tod,  1  Camp.  293;  Wilde  v.  Fort,  4 
Taunt.  334;  Bartlett  r.  Tuchin,  6  Taunt.  259;  Gosbell  r.  Archer,  4  N.  &  M. 
485;  So  in  the  colonies:  Wrayton  v.  Naylor,  24  S.  C.  Canada,  295;  Wolff  v. 
Pickering,   12   S.   C.   Cape  of  Good  Hope,  429,  432. 

15  Nash  r,  Towne,  5  Wall.  689;  Lyon  r.  Annable,  4  Conn.  350;  Thresher  v. 
Stonington  Bank,  68  Conn.  201;   Barr  v.  Logan,  5  Harr.    (Del.)    52;   Payne 


RESTITUTION.  335 

Restitution  of  land  conveyed.  If  land  has  been  conveyed  instead  of 
money  paid,  the  special  right  given  by  the  vendor's  lien  is  the  only 
right  the  English  seller  has,  other  than  an  action  on  the  contract 
for  damages.16  But  in  this  country,  in  some  cases  at  least,  the  vendor 
may  obtain  restitution  by  a  bill  in  equity.17 

Restitution  of  personal  property  transferred.  If  the  title  to  personal 
property  has  been  transferred,  whether  under  a  contract  of  exchange18 
or  sale,19  the  English  law  does  not  permit  the  transferrer  to  rescind 
the  transaction  and  revest  the  title  in  himself  because  he  has  not 
received  the  promised  payment.  This  is  true  even  though  the  seller 
has  retained  possession  of  the  property,  and  therefore  has  a  vendor's 
lien.20  The  right  of  stoppage  in  transitu,  although  it  may  seem 
equivalent  in  effect  to  a  right  of  rescission  in  the  limited  class  of 
cases  where  it  is  applicable,  does  no  more  than  continue  the  vendor's 
lien  after  the  property  has  passed  from  his  possession.21  In  this 
country,  however,  if  the  seller  has  not  parted  with  possession  of  the 
goods,  or  has  regained  his  lien  by  stoppage  in  transitu,  he  is  allowed, 

v.  Pomeroy,  21  D.  C.  243;  Trinkle  v.  Reeves,  25  111.  214;  German,  etc.,  Assoc. 

v.  Droge,  14  Ind.  App.  691;  Wilhelm  v.  Fimple,  31  la.  131;  Doherty  v.  Dolan, 

65  Me.  87;  Ballou  i:  Billings,  136  Mass.  307;   Dakota,  etc.,  Co.  r.  Price,  22 

Neb.  96;  Weaver  v.  Bentley,  1  Caines,  47;  Cockcroft  v.  Muller,  71  N.  Y.  367; 

Bigler  v.  Morgan,  77  N.  Y.  312,  Brokaw  v.  Duffy,   165  N.  Y.  391;   Glenn  r. 

Bossier,  88  Hun,  74;   Wilkinson  v.  Ferree,  24  Pa.   190;   Newberry  v.  Ruffin, 

102  Va.  73;  King  v.  British  Am.  Co.,  7  Can.  Exch.  119. 

is  Dart,  Vendors  &  Purchasers    (6th  ed.),  1248.     It  is  common  practice  in 
England  to  insert  an  express  stipulation  allowing  rescission.     Dart,  178. 

ITHowlin  r.  Castro,  136  Cal.  605;  Savannah,  etc.,  By.  Co.  r.  Atkinson,  94 
Ga.   780;    Cooper  v.   Gum,   152  111.   471;   McClelland   r.  McClelland,   176   111. 

83;  Patterson  v.  Patterson,  81  la.  626;  Clark  v.  McCleery,  115  la.  3; 
Scott's  Heirs  v.  Scott,  3  B.  Mon.  2;  Reeder  v.  Beeder,  89  Ky.  529;  Shepard- 
son  r.  Stevens,  77  Mich.  256;'  Pinger  v.  Pinger,  40  Minn.  417;  Lathrop  v. 
Morris,  86  Mo.  App.  355;  Pironi  p.  Corrigan,'  47  N.  J.  Eq.  135;  Michel  v. 
Hallheimer,  56  Hun,  416;  Wilfong  v.  Johnson,  41  W.  Va.  283;  Glocke  v. 
GlOcke,  113  Wis.  303,  57  L.  E.  A.  458.  In  most  of  these  cases  the  con- 
sideration for  the  conveyance  was  a  promise  to  support  the  grantor.  If 
possession  has  been  given,  but  no  conveyance  passed,  ejectment  or  trespass 
will  lie.  MeDaniel  v.  Gray,  69  Ga.  433";  Graves  r.  White,  87  N.  Y.  463; 
Clough  v.  Hosford,  6  N.  H.  231 ;  Williams  v.  Noisseux,  43  N.  H.  388.  See', 
also,  Ferris  r.  Hoglan,  121  Ala.  240.  Even  where  a  conveyance  had  passed 
the  vendor  was  allowed  to  treat  it  as  null,  and  a  conveyance  to  another 
was  held  effectual  in  Thompson  v.  Westbrook,  56  Tex.  265,  and  Kennedy  v. 
Embry,  72  Tex.  387.  But  these  cases  were  questioned  in  Huffman  v. 
Mulkey,  78  Tex.  556,  561,  and  are  opposed  to  McCardle  v.  Kennedv,  92 
Ga.   198. 

is  Emanuel  v.  Dane,  3  Camp.  299 ;  Power  t\  Wells,  Cowp.  818. 
19  Greaves  v.   Ashlin,    3    Camp.   426;    Martindale   r.    Snlith,    1    Q.    B.    389; 
Gillard  v.  Brittan,  8  M.  &  W.  575;  Page  v.  Cowasjee  Eduljee,  L.  R.  1  P.  C. 
127.     But  see  the  early  ease  of  Langfort  v.  Tiler,   1   Salk.   113.     See,  also, 
Sale  of  Goods  Act,  §  48;  Chalmers,  Sale  of  Goods  Act   (3d  ed.),  91. 

20 Martindale  v.  Smith,   1   Q.  B.   389;   Page  t\  Cowasjee  Eduljee    L    R    1 
P.  C.  127.  '      '      ' 

21  Benjamin,  Sales,  §  867;  Diem  v.  Koblitz,  49  Ohio  St.  41. 


336  DUTIES    UNDER   CONTKACT. 

on  default  of  the  buyer  to  rescind  the  sale  and  keep  the  goods  as  his 
own.22  But  if  the  seller  has  parted  with  both  possession  and  title, 
and  is  unable  to  regain  possession  by  stoppage  in  transitu,  there  seems 
to  be  no  authority,  either  in  England  or  in  this  country,  allowing  him 
to  bring  trover  or  other  action  for  the  recovery  of  what  he  had 
transferred.23 

Recovery  of  value  of  services.  If  the  performance  rendered  consists 
of  services,  there  cannot  ordinarily,  from  the  nature  of  legal  remedies, 
be  actual  restitution,  but  it  is  possible  to  give  the  equivalent  in  value 
under  a  common  count.  Since  money  paid  may  be  thus  recovered 
back,  and  similarly  in  this  country  land,  logic  would  require  such  a 
remedy;  and  it  is  allowed  in  part,  but  only  in  part.  If  the  plaintiff 
has  fully  ]jerformed,  the  only  redress  he  has  for  breach  of  contract 

22  Warren  v.  Buckminster,  24  N.  H.  336;  Bridgford  v.  Crocker,  60  N.  Y. 
027.     See  also  Strickland  v.  McCulloeh,  8  N.  S.  Wales,  324. 

In  Dustan  v.  McAndrew,  44  N.  Y.  73,  78,  Earl,  Com.,  in  the  opinion  of  the 
court  said :  '"  The  vendor  of  personal  property  in  a  suit  against  the  vendee 
for  not  taking  and  paying  for  the  property  has  the  choice  ordinarily  of 
either  one  of  three  methods  to  indemnify  himself.  ( 1 )  He  may  store  or 
retain  the  property  for  the  vendee,  and  sue  him  for  the  entire  purchase 
price  ( 2 )  He  may  sell  the  property,  acting  as  the  agent  for  this  purpose 
of  the  vendee,  and  recover  the  difference  between  the  contract  price  and  the 
price  obtained  on  such  resale;  or  (3)  He  may  keep  the  property  as  his  own, 
and  recover  the '  difference  between  the  market  price  at  the  time  and  place 
of  delivery  and  the  contract  price.'' 

This  statement  of  the  law  is  frequently  quoted  exactly  or  substantially 
and  generally  no  distinction  seems  to  be  taken  between  cases  where  title 
to  the  property  in  question  has  passed  and  cases  where  title  has  not  passed. 
Habeler  r.  Rogers,  131  Fed.  Rep.  43,  45;  Magnes  v.  Sioux  City  Seed  Co., 
14  Col.  App.  219,  225;  Basjlev  r.  Findlay,  82  111.  524;  Ames  v.  Moir,  130 
111.  582,  591;  Comstock  v.  Price.  103  111.  App.  19,  21;  Bell  ('.  Offutt,  10  Bush, 
G39;  Putnam  r.  Glidden.  159  Mass.  47,  49;  Pzark  Lumber  Co.  v.  Chicago 
Lumber  Co.,  51  Mo.  App.  555,  561;  Van  Brocklen  r.  Smeallie,  140  N.  Y.  70, 
75 ;  Moore  r.  Potter,  155  N.  Y.  481 ;  Ackerman  r.  Rubens,  167  N.  Y.  405,  408 ; 
Levy  v.  Glassberg,  92  N.  Y.  Supp.  50 ;  Shawhan  v.  Van  Nest,  25  Ohio  St.  90 ; 
Balientine  v.  Robinson,  46  Pa.  177;  Pratt  v.  S.  Freeman  &  Sons  Mfg.  Co.,  115 
Wis.   648,   654. 

The  Indian  Contract  Act,  §  107,  provides  tluu  the  lienholder,  though  title 
has  passed,  may  resell,  and  though  "  the  buyer  must  bear  any  loss,"  he  "  is 
not  entitled  to  any  profit  which  may  occur  on   such  resale." 

23  See  Benjamin  Sales,  §  766;  Power  r.  Wells,  Cowp.  818;  Emanuel  r. 
Dane.  3  Camp.  299:  Xeal  r.  Boggan,  97  Ala.  611,  and  cases  cited;  Holland 
v.  Cincinnati,  etc..  Co.,  97  Ky.  454 ;  Thompson  r.  Conover,  32  N.  J.  L.  466. 
Hornberger  r.  Feder.  61  N.  Y.  Supp.  865.  The  Indian  Contract  Act,  §  121, 
expressly  denies  the  right  to  rescind  after  delivery,  in  the  absence  of  express 
stipulation. 

In  Dow  r.  Harkin,  67  N.  H.  383,  however,  the  plaintiff,  who  had  assigned 
a  patent  and  conveyed  tools  to  the  defendant  in  consideration  of  an  executory 
agreement  which  the  defendant  had  failed  to  perform,  was  allowed  to  recover 
the  tools  as  well  as  have  the  assignment  set  aside  by  proceedings  in  equity. 
The  court  intimated  that  the  jurisdiction  of  eauitv  arose  from  the  assign- 
ment of  the  patent,  but  that  as  it  took  jurisdiction  of  the  case  it  would 
also  act  in  regard  to  the  tools. 


RECOVERY  FOR  SERVICES.  337 

by  the  other  side  is  damages  for  the  breach.  It  is  true  that  if  the 
performance  to  which  he  is  entitled  in  return  is  a  liquidated  sum  of 
money,  he  may  sue  in  indebitatus  assumpsit  and  not  on  the  special 
contract,24  but  the  measure  of  damages  is  what  he  ought  to  have 
received — not  the  value  of  what  he  has  given.25  If,  however,  the 
plaintiff  has  only  partly  performed  and  has  been  excused  from  fur- 
ther performance  by  prevention  or  by  the  repudiation  or  abandon- 
ment of  the  contract  by  the  defendant,  he  may  recover,  either  in 
England  or  America,  the  value  of  what  he  has  given,26  though  such  a 
remedy  is  no  more  necessary  than  where  he  has  fully  performed,  since 
in  both  cases  alike  the  plaintiff  has  an  effectual  remedy,  in  an  action 
on  the  contract  for  damages.  In  some  jurisdictions,  if  a  price  is  fixed 
by  the  contract,  that  is  made  the  conclusive  test  of  the  value  of  the 
services  rendered.27  More  frequently,  however,  the  plaintiff  is  al- 
lowed to  recover  the  real  value  of  the  services  though  in  excess  of 
the  contract  price.28  The  latter  rule  seems  more  in  accordance  with 
the  theory  on  which  the  right  of  action  must  be  based — that  the 
contract  is  treated  as  rescinded  and  the  plaintiff  restored  to  his  orig- 
inal position  as  nearly  as  possible. 

24  Keener,  Quasi-Contracts,  300;  Leake,  Contracts  (3d  ed.),  45;  Chitty, 
Pleadings  (7th  ed.),  i.  358;  Atkinson  v.  Bell,  8  B.  &  C.  277,  283;  Gandell  v. 
Pontignv,  1  Stark.  198;  Savage  r.  Canning,  Ir.  R.  1  C.  L.  434;  Wardrop  r. 
Dublin,  etc.,  Co.,  Ir.  R.  8  C.  L.  295;  Shepard  v.  Mills,  173  111.  223;  Southern 
Bldg.  Assoc,  v.  Price,  88  Md.  155;  Nicol  v.  Fitch,  115  Mich.  15. 

25  Keener,  Quasi-Contracts,  301;  Leake,  Contracts  (3d  ed.),  45;  Barnett 
r.  Sweringen,  77  Mo.  App.  64,  71,  and  cases  cited;  Porter  v.  Dunn,  61  Hun, 
310   (S.  C,  131  N.  Y.  314).     And  see  cases  in  the  preceding  note. 

26Mavor  r.  Pvne,  3  Bing.  285;  Planche  v.  Colburn,  8  Bing.  14;  Clay  v. 
Yates,  1  H.  &  N.  73;  Bartholomew  r.  Markwiek,  15  C.  B.  (N.  S.)  711; 
M'Connell  r.  Kilgallen,  2  L.  R.  Ir.  119;  Jenson  r.  Lee,  67  Kan.  539;  North  v. 
Mallory,  94  Md.  305;  Posner  v.  Seder,  184  Mass.  331;  Dempsey  v.  Lawson.  76 
Mo.  App.  522;  Person  v.  Stoll,  72  N.  Y.  App.  D.  141,  174  N.  Y.  548.  But  the 
right  was  denied  as  recently  as  1802  in  Hulle  v.  Heightman,  2  East,  145. 
Manv  American  cases  are  collected  infra,  p.  342,  n.  43. 

27  Chicago  v.  Sexton,  115  111.  230;  Keeler  v.  Clifford,  165  111.  544,  548; 
Chicago  Training  School  r.  Davies,  64  111.  App.  503;  Rice  v.  Partello,  88  111. 
App.  52;  Western  v.  Sharp,  14  B.  Mon.  177;  Doolittle  v.  McCullough,  12 
Ohio  St.  360  (much  qualified  by  Wellston  Coal  Co.  v.  Franklin  Paper  Co., 
57  Ohio  St.  182)  ;  Harlow  v.  Beaver  Falls  Borough,  188  Pa.  263,  266;  Noyes 
v.  Pugin,  2  Wash.  653.  See  also  Eastern  Arkansas  Fence  Co.  v.  Tanner,  67 
Ark.   156. 

28  United  States  v.  Behan,  110  TJ.  S.  338,  345;  Clover  v.  Gottlieb,  50  La. 
Ann.  568;  Rodemer  v.  Hazlehurst,  9  Gill,  288;  Fitzgerald  v.  Allen,  128  Mass. 
232;  Kearnev  v.  Dovle,  22  Mich.  294;  Hemminger  v.  Western  Assurance  Co., 
95  Mich.  355;  McCullough  r.  Baker,  47  Mo.  401;  Ehrlieh  v.  iEtna  L.  I.  Co., 
88  Mo.  249,  257;  Clark  v.  Manchester,  51  N.  H.  594;  Clark  v.  Mayor,  4  N.  Y. 
338;  Wellston  Coal  Co.  v.  Franklin  Paper  Co.,  57  Ohio  St.  182;  Derby  v. 
Johnson,  21  Vt.  17;  Chamberlin  v.  Scott,  33  Vt.  80. 

But  in  these  jurisdictions  the  prices  fixed  in  the  contract  are  evidence 
(though  not  conclusive)  of  the  value  of  the  work.  Monarch  v.  Board  of 
School  Fund.  49  La.  Ann.  991;  Walsh  v.  Jenvey,  85  Md.  240;  Fitzgerald  v. 
Allen,  128  Mass.  232,  234;  Eakright  v.  Torrent,  105  Mich.  294. 

22 


338  DUTIES   UNDER    CONTRACT. 

Where  no  performance  has  been  rendered.  While  it  is  ordinarily  the 
case  that  a  party  who  seeks  to  rescind  or  avoid  a  contract  because  of 
a  breach  of  contract  or  repudiation  by  the  other  party  has  performed 
at  least  in  part  and  desires  restitution  of  what  he  has  given  or  its 
value,  yet  it  seems  to  follow  that  the  same  course  is  open  to  one  who 
has  not  performed  at  all.  Such  a  person  will  not  wish  ordinarily  to 
avoid  the  contract  altogether,  because  that  course  would  deprive  him  of 
any  right  of  action  whatever.  He  could  seek  neither  restitution,  be- 
cause he  had  given  nothing,  nor  compensation  in  damages  for  breach 
of  the  contract,  because  he  had  put  an  end  to  the  promise  on  which 
he  must  sue.  Nevertheless,  there  are  many  cases  where  the  injured 
party  is  content  merely  to  terminate  his  legal  relations  with  the  other 
party  to  the  contract  without  more.  That  he  may  do  this  is  perhaps 
intimated  by  Parke,  B.,  in  Phillpotts  v.  Evans;29  it  is  expressly  stated 
by  Crompton,  J.,  in  Hochster  v.  De  La  Tour,30  where  the  repudiation 
preceded  the  time  for  performance  by  either  party.  It  was  so  de- 
cided in  King  v.  Faist.31  There  the  plaintiff  had  stated  he  would  not 
perform  unless  the  defendant  gave  a  guarantee  which  the  contract 
did  not  require ;  whereupon  the  defendants  wrote  that  they  would  not 
perform,  and  they  did  not.  The  plaintiffs  sued  for  this  failure  to 
perform,  but  the  Court  held  it  justified,  saying:  "Before  the  defend- 
ants were  in  default  under  the  substituted  contract,  or  had  notified 
him  of  an  intention  not  to  perform  it,  he  himself  repudiated  it  by 
notifying  them  that  he  would  not  perform  it  on  his  part,  and  thus 
gave  them  the  right  to  rescind  the  contract.*'  32  This  right  may  become 
of  great  importance  if  the  contract  while  it  exists  operates  as  a 
threatened  liability  or  a  cloud  on  title.  Thus  if  a  contract  for  the 
sale  of  real  estate  is  recorded,  the  owner  has  no  longer  a  salable  title, 
and  if  the  purchaser  fails  to  carry  out  his  agreement,  the  owner,  to 
regain  a  clear  title  to  his  land,  will  desire  the  rescission  of  the  con- 
tract. In  order  that  there  may  be  recorded  evidence  of  this  a  court 
of  equity  will  decree  the  rescission  and  cancellation  of  such  a  con- 
tract.33 So  one  who  has  given  negotiable  paper  in  return  for  a  prom- 
ise which  has  been  broken  is  entitled  to  proceed  affirmatively  for  the 
rescission  of  the  contract  and  the  surrender  of  the  negotiable  paper, 

29  5  M.  &  W.  475,  477.     See  also  Grimaldi  r.  White,  4  Esp.  95. 

30  2  E.  &  B.  678,  685.     "  When  a  party  announces  his  intention  not  to  fulfil  , 
the   contract,   the   other   side  may  take   him   at  his   word   and   rescind  the 
contract." 

31  161  Mass.  449. 

32/6.  at  p.  457.  See  also  Howe  v.  Smith,  27  Ch.  D.  89,  105;  Munsey  v. 
Butterfield,  133  Mass.  492;  Warters  v.  Herring,  2  Jones  L.   (N.  C.)  46. 

33  Howe  r.  Hutchison,  105  111.  501;  Nelson  v.  Hanson,  45  Minn.  543;  Kirby 
v.  Harrison,  2  Ohio  St.  326. 


REQUIREMENTS    FOR   RESCISSION.  339 

lest  it  should  be  negotiated  by  the  holder  to  a  bona  fide  purchaser  for 
value  without  notice,  to  whom  the  maker  would  be  liable.34 

Repudiation  without  breach  sufficient.  There  seems  to  be  no  doubt  that 
repudiation  without  any  actual  failure  to  perform  the  contract  is 
enough  to  give  rise  to  the  right.  This  point  is  covered  by  the  remark 
of  Crompton,  J.,  just  referred  to.  So,  in  Ballou  v.  Billings?'*  the 
Court  say:  "  Such  a  repudiation  did  more  than  excuse  the  plaintiff 
from  completing  a  tender;  it  authorized  him  to  treat  the  contract  as 
rescinded  and  at  an  end.  It  had  this  effect,  even  if,  for  want  of  a 
tender,  the  time  for  performance  on  the  defendants'  part  had  not 
come,  and  therefore  it  did  not  amount  to  breach  of  covenant."  And 
again,  "  It  is  clear  that,  apart  from  technical  considerations,  so  far  as 
the  right  to  rescind  goes,  notice  that  a  party  will  not  perform  his 
contract  has  the  same  effect  as  a  breach."  3e 

Breach  without  repudiation  sufficient.  Question  is  more  likely  to  be 
made  whether  breach  of  contract  without  repudiation  justifies  rescis- 
sion than  whether  repudiation  without  actual  breach  is  sufficient. 
There  are  many  expressions,  chiefly  in  English  cases,  which  seem  to 
mean  that  repudiation  or  abandonment  of  the  contract  is  essential  to 
give  rise  to  the  right  of  rescission.  Thus,  in  Ehrensperger  v.  Ander- 
son, Parke,  B.,  said,  "In  order  to  constitute  a  title  to  recover  for 
money  had  and  received,  the  contract  on  the  one  side  must  not  only 
not  be  performed  or  neglected  to  be  performed,  but  there  must  have 
been  something  equivalent  to  saying  'I  rescind  this  contract,'  .  .  . 
a  total  refusal  to  perform  it,  or  something  equivalent  to  that,  which 
would  enable  the  plaintiff  on  his  side  to  say,  '  If  you  rescind  the 
contract  on  your  part,  I  will  rescind  it  on  mine.' " 37  In  accordance 
with  this  doctrine  it  was  held  that  failure  by  the  defendant  to  remit 
a  bill  of  exchange  did  not  justify  the 'plaintiff  to  treat  the  contract  as 
rescinded  and  sue  in  money  had  and  received  for  restitution  of  what 
the  defendant  had  received.  In  Freeth  v.  Burr,38  the  Court,  and  par- 
ticularly Lord  Coleridge,  laid  stress  on  the  question  whether  the  breach 

34  See  Randolph  on  Commercial  Paper.  (2d  ed.),  §§  1686,  1687;  Campbell 
Printing  Press  Co.  v.  Marsh,  20  Col.  22;  Duggar  v.  Dempsey,  13  Wash.  396. 

35  136  Mass.  307,  308. 

36  P.  309.  See  also  Drake  v.  Goree,  22  Ala.  409;  Ryan  v.  Dayton,  25  Conn. 
188;  Elder  r.  Chapman,  176  111.  142;  Festing  v.  Hunt,  6  Manitoba,  381. 

3T  3  Ex.  148,  158.  This  is  quoted  in  Keener  on  Quasi-Contracts,  304,  as 
a  correct  exposition  of  the  law.  Similar  expressions  may  be  found  in  Fay  v. 
Oliver,  20  Vt.  118,   122. 

38  L.  R.  9  C.  P.  208,  214.  Reliance  was  placed  on  earlier  expressions  in 
Withers  r.  Reynolds,  2  B.  &  Ad.  882,  and  Jonassohn  v.  Young,  4  B.  &  S.  296. 
See  also  the  language  of  Coleridge,  J.,  in  Franklin  v.  Miller,  4  A.  &  E.  599. 


340  DUTIES   UNDER   CONTRACT. 

of  contract  amounted  to  an  "  abandonment  of  the  contract  or  a  refusal 
to  perform  it  on  the  part  of  the  person  so  making  default;"  and  in 
Mersey  Steel  and  Iron  Co.  v.  Naylor,  the  Earl  of  Selborne,  citing  Lord 
Coleridge's  statement,  expressed  the  same  view  even  more  explicitly.39 
This  doctrine,  though  perhaps  it  is  that  of  the  English  law  to-day,40 

39  9  App.  Cas.  434,  438.  In  botli  Freeth  v.  Burr  and  Mersey  Steel  and  Iron 
Co.  v.  Naylor,  the  question  was  not  directly  as  to  the  right  of  rescission,  but 
as  to  the  right  of  a  party  to  maintain  an  action  on  the  express  contract 
when  himself  in  default.  In  both  those  cases  such  an  action  was  held 
maintainable,  in  part  at  least,  because  the  default  relied  on  did  not  show 
an  intention  to  abandon  the  whole  contract.  It  seems  clear,  however,  that 
a  default  which  is  not  sufficient  to  warrant  the  other  party  in  refusing  to 
perform  his  promise,  and  is  no  answer  to  an  action  on  that  promise,  will  not 
entitle  him  to  treat  the  contract  as  rescinded.  These  cases  may,  therefore, 
be  cited  in  this  connection.  It  is  without  the  scope  of  the  present  chaptei 
to  criticise  fully  the  doctrine  so  far  as  it  relates  to  the  sufficiency  of  the 
plaintiff's  non-performance  without  repudiation  or  abandonment  of  the 
contract  as  »  defense  to  an  action  upon  it,  but  it  may  be  briefly  pointed 
out  that  if  a  party  to  a  contract  fails  to  perform,  it  is  immaterial  to  the 
other  party  whether  the  default  is  wilful  or  negligent,  and  if  the  contract 
has  been  substantially  broken  already  it  does  not  help  matters  that  the 
wrong-doer  has  the  best  intentions  for  the  future.  Lord  Blackburn,  in 
commenting  on  the  Earl  of  Selborne's  statement,  might  have  put  more 
strongly  than  he  did  the  implied  criticism  of  its  adequacy :  "  That  is,  I  will 
not  say  the  only  ground  of  defense,  but  a  sufficient  ground  of  defense." 
9  App.  Cas.  434,  443.    See  this  same  criticism1  supra,  p.  330. 

In  some  American  cases,  also,  it  has  been  said  that  mere  breach  of  con- 
tract does  not  justify  rescission  unless  an  intention  is  manifested  to  be  no 
longer  bound  by  the  contract,  or  unless  the  wrong-doer  has  prevented  per- 
formance by  the  other  party.  Monarch  Cvcle  Co.  v.  Royer  Wheel  Co.,  105  Fed. 
Rep.  ;324;  Wright  v.  Haskell,  45  Me.  489"  (see  also  Dixon  v.  Fridette,  81  Me. 
122)  ;  West  v.  Bechtel.  125  Mich.  144;  Blackburn  v.  Reillv,  47  N.  J.  L.  290; 
Trotter  v.  Heckscher,  40  N.  J.  Eq.  612;  Graves  V.  White,  87  N.  Y.  463; 
Hubbell  v.  Pacific  Mut.  Ins.  Co.,  100  N.  Y.  41,  47  (ep.  Bogardus  v.  N.  Y. 
Life  Ins.  Co.  101  N.  Y.  328)  ;  Suber  r.  Pullin,  1  S.  C.  273.  But  it  is  to  be 
noticed  that  it  is  much  easier  to  find  cases  where  such  expressions  are 
used,  than  it  is  to  find  cases  where  it  was  actually  held  that  a  breach  so 
material  as  to  make  the  partial  performance  of  the  contract  different  in 
substance  from  the  performance  promised  was  insufficient  ground  for  rescission 
because  no  intention  was  manifested  to  refuse  absolutely  to  perform  in  the 
future.  Thus,  in  spite  of  the  remarks  in  some  New  York  cases,  it  was  held 
in  Welsh  r.  Gossler,  89  N.  Y.  540,  that  a  contract  to  ship  in  May  or  June 
might  be  rescinded  for  non-performance  of  this  requirement,  though  there 
was  so  far  from  an  absolute  repudiation  that  shipment  was  actually  made 
in  July  and  the  cargo  tendered.  This  was  followed  in  Hill  v.  Blake,  97  N.  Y. 
216.     See  also  Mansfield  v.  N.  Y.  Central  R.  R.  Co.,  102  N.  Y.  205. 

40  See  in  addition  to  the  cases  cited  in  the  previous  note,  Cornwall  v. 
Henson,  L.  R.  [1900]  2  Ch.  298;  Rhymney  Ry.  Co.  v.  Brecon,  etc.,  Ry.  Co. 
83  L.  T.  Ill;  In  re  Phoenix,  etc.,  Co.,  4  Ch.  I).  108;  Bloomer  r.  Bernstein, 
L.  R.  9  C.  P.  588.  There  are  strong  expressions  to  the'  same  effect  in  Colonial 
decisions.  In  Bradley  v.  Bertoumieux,  17  Victorian  L.  R.  144,  147,  it  is 
said :  "A  contract  broken  is  not  a  contract  rescinded,  and  unless  one  of  the 
parties  to  the  contract  clearly  intimates  his  intention  not  to  perform  his 
contract,  or  his  inability  to  perform  it,  the  other  party  is  not  at  liberty  to 
rescind  the  contract."  So  in  Oaten  v.  Stanley,  19  Victorian  L.  R.  553,  555, 
"  The  point  is  whether  the  person  who  committed  the  breach  meant  to  abandon 
the  contract."  And  see,  to  similar  effect,  Prendergast  v.  Lee,  6  Victorian 
L.  R.    (Law)   411;   Hacker  v.  Australian,  etc.,  Co.,  17  Victorian  L.  R.  376; 


REQUIREMENTS    FOR   RESCISSION".  341 

must  be  regarded  as  erroneous  in  principle  and  unfortunate  in  prac- 
tice. It  seems  to  be  based  in  large  part  on  the  notion  that,  in  order  to 
justify  such  a  rescission  of  the  contract,  mutual  assent  of  the  parties 
must  be  established — an  offer  by  the  party  in  default  accepted  by  the 
other  party.41  In  almost  any  case  this  can  be  established  only  by  re- 
sorting to  the  baldest  fiction.  As  matter  of  theory  a  man  who  re- 
pudiates a  contract  no  more  than  one  who  negligently  breaks  it  offers 
to  rescind  it,  and  if  he  did,  his  offer  could  only  be  construed  as 
expressing  a  willingness  to  drop  matters  as  they  stood  at  the  time, 
not  with  the  addition  imposed  by  the  court  of  making  restitution  of 
what  he  has  received.42  And  as  a  practical  question  the  only  import- 
ant consideration  is  how  defective  the  performance  of  a  contracting 
party  has  been  or  is  likely  to  be,  not  whether  it  was  negligence  or 
wilfulness  on  his  part  that  led  him  to  break  his  promise.  In  truth 
rescission  is  imposed  in  invitum  by  the  law  at  the  option  of  the 
injured  party,  and  it  should  be,  and  in  general  is,  allowed  not  only 

Moroney  v.  Roughan,  29  Vict.  L.  R.  541 ;  Midland  Ry.  Co.  V.  Ontario  Rolling 
Mills,  10  Ont.  App.  677.  See,  however,  Muston  v.  Blake,  11  S.  C.  New  South 
Wales,  92. 

41  Thus,  Coleridge,  J.,  in  Franklin  v.  Miller,  4  A.  &  E.  599,  says:  "The 
rule  is  that,  in  rescinding,  as  in  making  a  contract,  both  parties  must  con- 
cur," and,  "  therefore,  the  refusal  which  is  to  authorize  the  rescission  of 
the  contract  must  be  an  unqualified  one."  See  also  the  reasoning  of  Lord 
Esher  in  Johnstone  v.  Milling,  16  Q.  B.  D.  460,  467.  And  in  an  American  case 
it  is  said :  "'  Where  one  of  the  contracting  parties  absolutely  refuses  to 
perform,  such  refusal  .  .  will  be  regarded  as  equivalent  to  a  consent  on 
his  part  to  a  rescission  of  the  contract,  and  the  other  contracting  party  may, 
if  he  choose,  so  treat  it,  rescind  the  contract,  and  if  he  have  done  anything 
under  it,  may  immediately  sue  for  compensation  on  a  quantum  meruit." 
Shaffner  v.  Killian,  7  111.  App.  620.  So  in  Cromwell  r.  Wilkinson,  18  Ind. 
365,  370;  Stevens  v.  Cushing,  1  N.  H.  17,  18;  Dow  v.  Harkin,  67  N.  H.  383, 
and  other  cases. 

42  How  inadequate  any  doctrine  of  mutual  consent  is  to  account  for  even 
the  English  cases  may  be  seen  from  the  decision  in  Clay  v.  Yates,  1  H.  &  N. 
73.  -The  plaintiff  contracted  to  print  for  the  defendant  a  second  edition  of  a 
treatise  with  a  new  dedication,  which  had  not  then  been  written.  After  the 
treatise  was  printed  the  plaintiff  discovered  that  the  dedication  which  had 
been  furnished  him  was  libellous  and  refused  to  complete  the  fulfilment  of 
the  contract.  He  was  held  entitled  to  recover  for  the  printing  he  had  done. 
Here  the  defendant,  so  far  from  assenting  to  a  rescission  of  the  contract,  de- 
manded that  it  should  be  performed.  The  plaintiff  recovered  because  the 
defendant  had  given  ground  for,  though  not  assented  to,  the  interruption  of 
the  contract. 

Rescission  by  mutual  consent  is,  of  course,  an  entirely  possible  solution  for 
parties  to  elect  when  they  are  disputing  over  a  contract.  An  instance  of  it 
it  to  be  found  in  Skillman  Hardware  Co.  v.  Davis,  53  N.  J.  L.  144.  The  court 
found  from  the  conduct  of  the  parties  that  there  had  been  rescission  by  mutual 
consent.  See  also  Vider  v.  Ferguson,  88  111.  App.  136;  Hobbs  v.  Columbia 
Falls  Brick  Co.,  157  Mass.  109;  Beal  v.  Minneapolis  Co.,  84  Mo.  App.  539. 
Neither  party  is  entitled  to  damages  in  such  a  case  without  special  agreement. 
Leake,  Contracts  (3d  ed.),  52;  McCreery  v.  Day,  119  N.  Y.  1;  Vacuum  Brake 
Co.  v.  Prosser,  157  N.  Y.  289.    See  Coyle  v.  Baum,  3  Okl.  695. 


342  DUTIES    UNDER    CONTRACT. 

for  repudiation  or  total  inability,  but  also  for  any  breach  of  contract 
of  so  material  and  substantial  a  nature  as  should  constitute  a  defence 
to  an  action  brought  by  the  party  in  default  for  a  refusal  to  proceed 
with  the  contract.4,3 

Anything  received  by  plaintiff  must  be  returned.  If  a  contract  has  been 
partly  performed  by  the  party  in  default,  the  other  party,  at  least  if 
he  has  received  any  benefit  from  such  part  performance,  cannot 
ordinarily  rescind  the  contract  according  to  the  English  law.  Even 
though  he  return  what  he  has  received,  it  is  said  the  parties  cannot  be 
restored  to  their  original  position,  because  he  has  had  the  temporary 
enjoyment  of  the  property.  In  the  leading  case  of  Hunt  v.  Silk44 
the  plaintiff,  who  sought  to  recover  money  he  had  paid  under  an 
agreement  for  a  lease,  because  of  the  defendant's  failure  to  make 
repairs  as  agreed,  had  had  possession  of  the  premises  a  few  days. 
This  was  held  fatal.  Lord  Ellenborough  said :  "  If  the  plaintiff 
might  occupy  the  premises  two  days  beyond  the  time  when  the  repairs 
were  to  have  been  done  and  the  lease  executed  and  yet  rescind  the 
contract,  why  might  he  not  rescind  it  after  a  twelvemonth  on  the 
same  account  ?  "  Hunt  v.  Silk  has  been  consistently  followed.45  It 
is  in  accordance  with  this  rule  that  a  buyer  is  not  allowed  to  rescind 
a  contract  for  breach  of  warranty,46  though  there  is  the  additional 

« Panama,  etc.  Co.  r.  India,  etc..  Co.,  L.  R.  10  Ch.  515,  532  (semlle)  ; 
Phillips,  etc.,  Co.  i:  Sevmour,  91  U.  S.  646;  Farmers'  L.  &  T.  Co.  r.  Galesburg, 
133  U.  S.  156;  Watson  v.  Ford,  93  Fed.  Rep.  359;  Powell  v.  Sammons,  31 
Ala.  552;  Ferris  v.  Hoglan,  121  Ala.  240;  Porter  r.  Arrowhead  Reservoir 
Co.,  100  Cal.  500;  San  Francisco  Bridge  Co.  v.  Dumbarton  Co.,  119  Cal.  272; 
Campbell  Printing  Press  Co.  c.  Marsh,  20  Col.  22;  Code  of  Georgia,  §  3712; 
Bacon  i:  Green,  36  Fla.  325;  Harrison  Machine  Works  v.  Miller,  29  III.  App. 
567;  Wolf  r.  Schlacks,  67  111.  App.  117;  Cromwell  v.  Wilkinson,  18  Ind.  365; 
Anderson  r.  Haskell,  45  la.  45;  Wernli  r.  Collins,  87  la.  548;  Stahelin  v. 
Sowle,  87  Mich.  124;  Robson  r.  Bonn,  27  Minn.  333;  Nelson  r.  Hanson, 
45  Minn.  543;  Gullich  r.  Alford,  61  Miss.  224:  Mugan  v.  Regan,  48  Mo.  App. 
461;  Oliver  r.  Goetz,  125  Mo.  370;  Drew  v.  Claggett,  39  N.  H.  431;  Foster 
r.  Bartlett,  62  N.  H.  617;  Pattridge  r.  Gildermeister,  1  Keyes,  93;  Welsh  v. 
Gosper,  89  N.  Y.  540;  Hill  r.  Blake,  97  N.  Y.  216;  North  Dak.  Civ.  Code, 
§  3932;  Rummington  r.  Kelley,  7  Ohio,  pt.  2.  97;  Higbv  v.  Whittaker,  8 
Ohio,  198;  Ivirby  v.  Harrison,  2  Ohio  St.  326;  Oklahoma" Stat.,  §  866;  Miller 
v.  Phillips,  31  Pa.  21sT  Greene  v.  Halev.  5  R.  I.  260;  Bennett  r.  Shaughnessy, 
6  Utah,  273;  Fletcher  r.  Cole,  23  Vt.  114;  Preble  r.  Bottom,  27  Vt.  249; 
Meeker  r.  Johnson,  5  Wash.  718;  School  District  v.  Hayne,  46  Wis.  511. 
Many  earlier  decisions  are  cited  in  the  cases  above. 

44  5  East,  449. 

4BBeed  r.  Blandford,  2  Y.  &  J.  278;  Street  r.  Blav,  2  B.  &  Ad.  456,  464; 
Blackburn  c.  Smith,  2  Ex.  783.  See  also  Heilbutt  r."  Hickson.  L.  R.  7  C.  P. 
438,  451. 

46  Street  v.  Bloy,  2  B.  &  Ad.  456;  Gompertz  v.  Denton,  1  C.  &  M.  207; 
Poulton  r.  Lattimore.  9  B.  &,  C.  2">9 ;  Parsons  r.  Sexton,  4  C.  B.  899 ;  Dawson 
v.  Collis,  10  C.  B.  523.     So  provided  in  the  Indian  Contract  Act,  sect.  117. 


REQUIREMENTS    FOE   RESCISSION.  343 

reason  in  the  case  of  a  warranty  that  it  is  said  to  be  a  collateral  con- 
tract. In  the  United  States  the  law  is  more  liberal.  It  is  univer- 
sally agreed  that  rescission  is  not  allowable  unless  the  party  seeking 
to  rescind  can  and  does  first  restore  or  offer  to  restore  anything  he 
has  received  under  the  contract,47  but  the  construction  of  this  rule 
is  far  less  severe  than  in  England.  Though  it  is  frequently  said  that 
"A  contract  cannot  ordinarily  be  rescinded  unless  both  parties  can 
be  reinstated  in  their  original  situation  in  respect  of  their  contract. 
And  if  one  party  have  already  received  benefit  from  the  contract  he 
cannot  rescind  it  wholly,  but  is  put  to  his  action  for  damages,"  48  or 
the  like,  yet  some  courts  have  gone  very  far  in  allowing  a  rescission 
upon  restitution  in  specie  of  what  had  been  given  in  spite  of  benefits 
derived  from  temporary  possession.49  Thus,  in  many  of  the  states, 
rescission  is  allowed  for  breach  of  warranty.50  The  most  satisfactory 
disposition  of  many  cases  where  the  plaintiff  cannot,  without  any  fault 
on  his  part,  return  all  he  has  received,  would  be  to  allow  the  plaintiff 
to  recover  subject  to  a  deduction  for  what  he  has  received  and  cannot 

4TKauffman  v.  Raeder,  10S  Fed.  Rep.  171  (C.  C.  A.),  54  L.  R.  A.  247; 
Los  Angeles  Traction  Co.  v.  Wilshire,  135  Cal.  654;  Naugle  v.  Yerkes,  187  111. 
358;  Code  of  Virginia,  §  3712;  Summerall  v.  Graham,  62  Ga.  729;  Harden 
u.  Lang,  110  Ga.  392;  Clover  v.  Gottlieb,  50  La.  Ann.  568;  Poche  v.  New 
Orleans  Co.,  52  La.  Ann.  1287 ;  Morrow  v.  Moore,  98  Me.  373 ;  Miner  v. 
Bradley,  22  Pick.  457;  Clark  v.  Baker,  5  Met.  452;  Snow  v.  Alley,  144 
Mass.  546;  De  Montague  v.  Bacharach,  181  Mass.  256;  Gullich  v.  Alford,  61 
Miss.  224;  Doughten  v.  Camden  Assoc.,  41  N.  J.  Eq.  556;  Gale  v.  Nivon, 
6  Cow.  445;  North  Dak.  Civ.  Code,  §  3934;  Brown  v.  Witter,  10  Ohio,  142; 
Oklahoma  Stat.,  §  686;  Potter  v.  Taggart,  54  Wis.  395;  50  Am.  Decisions, 
674,  n. ;  74  Am.  Decisions,  661,  n. 

« Story,  Contracts  (5th  ed.),  §  1337.  See  also  Peck  Co.  v.  Stratton,  95 
Fed.  Rep.  741;  Moore  v.  Butt,  11  la.  198;  Burge  v.  Cedar  Rapids,  etc.,  R.  R. 
Co.,  32  la.  101;  Stevenson  v.  Polk,  71  la.  278;  Handforth  r.  Jackson,  150  Mass. 
149;  Spencer  v.  St.  Clair,  57  N.  H.  9,  13;  Fay  r.  Oliver,  20  Vt.  118. 

49  In  Ankeny  v.  Clark,  148  U.  S.  345,  the  plaintiff  was  allowed  to  recover 
the  full  value  of  wheat  delivered  by  him  to  the  defendant,  on  surrendering 
possession  of  land  which  the  defendant  had  contracted  but  failed  to  convey, 
though  the  plaintiff  had  had  possession  of  the  land  for  over  four  years, 
and  this  possession  was  admitted  to  be  worth  over  two  thousand  dollars. 
The  cases  cited  by  the  court  in  support  of  its  position  merely  establish 
the  point  that  if  the  suit  had  been  reversed  the  vendor  could  not  have 
l  ecovered  for  the  iise  and  occupation  of  the  land  —  a  different  matter. 
Contrary  to  Ankeny  r.  Clark,  but  not  cited  in  that  ease,  are  Axtel  v.  Chase 
77  Ind.  74,  83  Ind.  546,  554;  Fay  r.  Oliver,  20  Vt.  118.  Cp.,  however,  Nothe 
r.  Nomer,  54  Conn.  326.  In  Campbell  Printing  Press,  etc.,  Co.  r.  Marsh,  20 
Col.  22,  it  was  held  that  one  who  had  received  and  used  »  printing  press 
might  return  it  and  rescind  his  contract  on  the  failure  of  the  seller  to 
furnish  another  piece  of  machinery  included  in  the  bargain,  though  the 
market  value  of  the  press  was  impaired  by  the  fact  that  it  had  been  used. 
Op.  Aultman  &  Taylor  Co.  v.  Mead,  109  Ky.,583.  In  Benson  v.  Cowell,  52  la. 
137.  the  plaintiff  was  allowed  to  rescind  on  returning  money  of  which  he  had 
had  the  use,  without  being  required  to  pay  interest. 
50  The  authorities  are  collected  infra,  p.  607,  n.  67. 


34-i  DUTIES    UNDER    CONTRACT. 

return,  and  some  authorities  seem  to  support  such  a  solution  of  the 
problem.51 

Rescission  of  sealed  contracts.  The  right  of  rescission  is  frequently 
stated  as  if  it  were  confined  to  simple  contracts;52  and  it  is  obviously 
inconsistent  with  the  early  common  law  doctrines  in  regard  to  dissolu- 
tion of  sealed  contracts  to  allow  matter  in  pais  to  afford  ground  for 
their  rescission.  But  in  many  jurisdictions  in  this  country  a  seal  no 
longer  has  its  common  law  effect,  and  it  is  clear  that  at  least  in  some 
jurisdictions  where  a  seal  still  retains  its  old  importance  so  far  as  to 
make  consideration  for  a  promise  unnecessary,  a  contract  under  seal 
may  be  rescinded  or  avoided  for  breach  of  promise  by  one  party  at  the 
suit  of  the  other,  and  a  recovery  had  on  a  quantum  meruit.  This  was 
so  held  in  Ballou  v.  Billings?*  Holmes,  J.,  in  delivering  the  opinion 
of  the  Court,  refers  to  earlier  Massachusetts  decisions  which  had  de- 
cided that  a  contract  under  seal  might  be  rescinded  by  parol,  and 
adds,  "  Whether  these  cases  would  have  been  decided  the  same  way  in 
earlier  times  or  not,  we  have  no  disposition  to  question  them  upon 
this  point,  and  it  is  going  very  little  further  to  hold  that  such  a  con- 
tract may  be  rescinded  if  it  is  repudiated  by  the  other  side."  54  In 
other  jurisdictions,  however,  such  relaxation  of  common  law  doc- 
trines has  not  as  yet  been  sanctioned.55 

51  See  Keener,  Quasi-Contracts,  305;  Wilson  v.  Burks,  71  Ga.  862;  Todd 
r.  Leach,  100  Ga.  227;  Todd  v.  McLaughlin,  125  Mich.  268;  Brewster  v. 
Woo3ter,  131  N.  Y.  473;  Mason  v.  Lawing,  10  Lea,  264. 

In  Higby  r.  Whittaker,  8  Ohio,  198,  and  Hood  r.  People's,  etc.,  Assoc,  8 
Tex.  Civ.  App.  385,  the  vendor  was  allowed  to  recover  land  for  which  he  had 
received  part  payment  without  returning  what  he  had  received,  on  the 
ground  that  the  possession  which  the  vendee  had  enjoyed  equalled  in  value 
this  part  pavraent.  See  also  McDaniel  v.  Gray,  69  Ga.  433 ;  Travelers' 
Ins.  Co.  v.  Redfield,  6  Col.  App.  190. 

52  See  p.  g.  Ankeny  r.  Clark,  148  U.  S.  345,  353,  quoting  from  Smith's 
Leading  Cases;  Weart  v.  Hoagland's  Adm'r,  2  Zab.  517,  519;  Fay  v.  Oliver, 
20  Vt.  118,  122;  Brown  v.  Ralston,  9  Leigh,  532,  545;  Festing  v.  Hunt,  6 
Manitoba,  381,  384. 

53  136  Mass.  307. 

54  This  was  allowed  also  in  1803  in  Weaver  v.  Bentley,  1  Caines,  47,  and 
see  the  following  note. 

55Atty  r.  Parish,  1  B.  &  P.,  N.  R.  104;  Middleditch  v.  Ellis,  2  Ex.  623; 
McManus  v.  Cassidy,  66  Pa.  260.  (But  see  Am.  Life  Ins.  Co.  v.  McAden, 
109   Pa.   399.) 

Professor  Keener,  in  his  excellent  work  on  Quasi-Contracts  (p.  308), 
draws  the  distinction  from  the  cases  cited  above  in  this  and  the  two  pre- 
ceding notes,  that  where  money  has  been  paid  by  the  plaintiff  it  may  be 
recovered  from  a  defendant  who  is  in  default  though  the  contract  was  undei 
seal,  but  where  services  have  been  rendered  or  property  other  than  money 
delivered  the  plaintiff's  only  remedy  is  on  the  contract,  if  it  is  under  seal. 
Possibly  the  case  of  Greville  r.  Da  Costa,  Peake,  A.  C.  113,  taken  in  con- 
nection with  the  English  cases  cited  above,  may  lend  some  support  to  this 
view,  but  the  American  cases  certainly  do  not  seem  to  warrant  the  distinction. 
On  the  one  hand,  in  Weaver  v.  Bentley,  the  plaintiff,  who  had  given  notes, 


REQUIREMENTS    FOR   RESCISSION.  345 

One  guilty  of  a  breach  cannot  rescind.  A  party  who  has  himself  been 
guilty  of  a  substantial  breach  of  contract  cannot  rescind  the  contract 
because  of  subsequent  refusal  or  failure  to  perform  by  the  other 
party.56 

Election  must  be  manifested.  As  rescission  is  only  an  alternative  rem- 
edy, and  is  in  derogation  of  the  contract,  a  party  who  wishes  to  avail 
himself  thereof  must  manifest  his  election  in  some  way  f  and  must  do 

money,  and  farm  stock,  was  apparently  allowed  to  recover  for  the  property 
as  well  as  the  money;  and  later  New  York  cases  make  it  evident  that  the 
law  of  that  State  made  no  such  distinction.  See  Jewell  v.  Schroeppel,  4  Cow. 
564;  Allen  v.  Jaquish,  21  Wend.  628.  Certainly,  also,  the  court  in  Ballou 
r.  Billings  indicate  no  intention  to  rest  that  ease  on  the  fact  that  the 
plaintiff  had  paid  money  instead  of  rendering  services  or  delivering  property, 
but  rather  broadly  decide  that  contracts  under  seal  generally  may  be 
rescinded  or  avoided  for  breach.  This  was  decided  also  in  regard  to  a 
contract  for  work  and  labor  in  Webster  v.  Enfield,  10  111.  298.  See  also 
Wolf  r.  Schlacks,  67  111.  App.  117,  118.  A  dictum  by  Redfield,  J.,  in  Myrick 
r.  Slason,  19  Vt.  121,  126,  points  in  the  same  direction.  On  the  other  hand, 
though  the  cases  where  the  plaintiff  was  not  allowed  to  recover  were  in  fact 
actions  for  the  value  of  services  or  property,  there  is  nothing  to  indicate  that 
the  courts  so  deciding  would  have  treated  the  plaintiff  better  had  he  been 
suing  for  monev  paid.     Indeed,  a  contrary  inference  seems  justified. 

58  Home  r.  Smith,  27  Ch.  D.  89;  Sumpter  v.  Hedges  [1898],  1  Q.  B.  637; 
Forman  i:  The  Liddesdale  [1900],  A.  C.  190;  Kane  v.  Jenkinson,  10  Nat.  B.  R. 
316;  Baston  i:  Clifford,  68  111.  67;  Downey  r.  Riggs,  102  la.  88;  Getty  r.  Peters, 
82  Mich.  661;  Feeney  r.  Bardsley,  66  N.  J.  L.  239;  Green  v.  Green,  9  Cow. 
46;  Ketchum  v.  Evertson,  13  Johns.  359,  364;  Higgins  v.  Eagleton,  155 
N.  Y.  466;  Ashbrook  v.  Hite,  9  Ohio  St.  357.  See  also  Hickock  r.  Hoyt, 
33  Conn.  553;  Wilkinson  v.  Blount,  169  Mass.  374;  Norwood  v.  Lathrop,  178 
Mass.  208.  This  principle,  however,  is  only  accepted  with  much  qualification 
in  many  States.  The  right  of  one  who  is  himself  in  default  to  recover  com- 
pensation for  what  he  has  done  is  beyond  the  scope  of  this  chapter.  It  is  fully 
treated  in  Keener  on  Quasi-Contracts,  214  et  seq. 

57  Avery  v.  Bowden,  5  E.  &  B.  714;  Reid  v.  Hoskins,  5  E.  &  B.  729; 
Cornwall"*;.  Henson,  L.  R.  (1900)  2  Ch.  298;  Hennessy  p.  Bacon,  137  U.  S.  78; 
Carney  v.  Newberry,  24  111.  203;  Sanford  v.  Emory's  Adm'r,  34  111.  468; 
Graham  v.  Holloway,  44  111.  385;  Mullin  v.  Bloomer,  11  la.  360;  Supple  v. 
Iowa  State  Ins.  Co.,  58  la.  29;  Weeks  v.  Robie,  42  N.  H.  316;  Swazey  v. 
Choate  Mfg.  Co.,  48  N.  H.  200;  Andrews  v.  Cheney,  62  N.  H.  404.  Cp.  Dow 
V.  Harkin,  67  N.  II.  3S3)  ;  Levy  v.  Loeb,  89  N.  Y.  386,  390;  Higby  v. 
Whittaker,  8  Ohio,  198;  Kirby  v.  Harrison,  2  Ohio  St.  326;  Phillips  v. 
Herndon,  78  Tex.   378. 

The  way  in  which  election  must  be  manifested  may  vary  in  different  cases. 
Formal  notice  is  certainly  not  always  requisite.  In  Thresher  r.  Stonington 
Bank,  68  Conn.  201;  Graham  v.  Holloway,  44  111.  385;  Brown  v.  St.  Paul, 
etc.,  Ry.  Co.,  36  Minn.  236;  Graves  v.  White,  87  N.  Y.  463,  it  was  held 
that  bringing  an  action  for  restitution  promptly  was  sufficient.  And  see 
Kirby  v.  H*rrison,  2  Ohio  St.  326.  In  New  Hampshire,  however,  it  is  held 
some  manifestation  of  election  must  precede  such  an  action.  See  New 
Hampshire  cases  cited  above.  In  Texas  it  is  laid  down,  at  least  in  cases 
of  sales  of  real  estate,  that  "  where  there  has  been  part  performance  by  the 
vendee,  as  paying  a  portion  of  the  purchase  money  or  taking  possession  and 
making  improvements  under  the  contract,  he  would  be  entitled  to  reasonable 
notice  of  the  vendor's  intention  to  rescind.  The  reason  of  this  rule  is  obvi- 
ous. He  may  be  able  to  give  a  reasonable  excuse  for  his  failure  to  fully 
perform  that  would  entitle  him  in  equity  to  protection  to  the  extent  he 
had  performed.     If  the  vendee  has  actually  abandoned  the  contract  or  has 


346  DUTIES    UNDER    CONTRACT. 

so  without  undue  delay.54  An  offer  to  rescind  must  be  kept  good.39 
Election  once  made  determines  the  plaintiff's  rights.60 

Minor  inconsistencies.  There  are  a  few  minor  inconsistencies  in  ap- 
plying or  failing  to  aj3ply  the  rule  allowing  restitution  as  an  alter- 
native remedy  for  breach  of  contract.61  These  inconsistencies  are 
unfortunate,  as  they  not  only  are  at  variance  with  logical  theory,  but 
seem  to  rest  on  no  adequate  foundation  of  practical  convenience.  They 
should,  therefore,  where  it  is  possible,  be  swept  away  by  future  de- 
cisions. 

Rule  in  civil  law.  It  may  seem  that  the  whole  doctrine  of  allow- 
ing restitution  when  an  adequate  remedy  on  the  contract  exists  is 

so  acted  as  to  create  the  reasonable  belief  on  the  part  of  the  vendor  that  he 
has  abandoned  it,  the  vendor  may  rescind  without  notice  of  his  intention, 
notwithstanding  the  part  performance  by  the  vendee."  Kennedy  v.  Embry, 
72  Tex.  387,  390. 

Where  no  time  is  fixed  by  the  contract  or  where  time  is  not  of  the  essence, 
the  injured  party  may  by  notice  fix  a  reasonable  time  after  which  the 
contract,  if  not  performed,  will  be  treated  as  abandoned.  Green  v.  Levin, 
13  Ch.  Div.  589;  Cover  c.  McLaughlin,  18  N.  S.  Wales,  107,  and  decisions 
collected  in  50  Am.  Decisions,  078,  n. 

58  Harden  r.  Lang,  110  Ga.  392,  395;  Carney  r.  Newberry,  24  111.  203; 
Axtel  r.  Chase,  77  lnd.  74,  83  Ind.  546,  554;  Mills  v.  Osawatomie,  59  Kan. 
463;  World  Pub.  Co.  i.  Hull,  SI  Mo.  App.  277;  J.  B.  Alfree  Mfg.  Co.  v.  Grape, 
59  Neb.  777;  Lawrence  r.  Dale,  3  Johns.  Ch.  22;  Caswell  r.  Black  River 
Mfg.  Co.,  14  Johns.  453;  North  Dakota  Civ.  Code,  §  3934;  Oklahoma  Stat., 
§  868;  Thomas  ,:.  McCue,  19  Wash.  287,  74  Am.  Dec.  662  n. 

59  J.  B.  Alfree  Mfg.  Co.  r.  Grape,  59  Neb.  777. 

60  Goodman  r.  Pocock,  15  Q.  B.  576 ;  Eoutledge  r.  Hislop,  29  L.  J. 
M.  (N.  S.)  90;  Sole  I.  Hines,  81  Md.  476;  Dalev  r.  Peoples'  Assoc.,  178 
Mass.  13;  Wolff  r.  Pickering,  12  S.  C.  of  Cape  of  Good  Hope,  429.  Cp. 
Savage  i .  Canning,  I  v.  P.  1  C.  L.  434. 

61  Thus,  one  who  has  sold  goods  to  another,  who  has  agreed  to  give  a  bill 
or  note  made  by  himself  payable  at  a  future  day  and  who  has  failed  to  do  so, 
cannot,  it  is  generally  held,  recover  in  indebitatus  assumpsit  the  value  of 
the  goods  delivered  until  the  stipulated  period  of  credit  has  expired.  Mussen 
v.  Price,  4  East,  147 ;  Dutton  >:.  Solomonson,  3  B.  &  P.  582  ;  Manton  i .  Gam- 
mon, 7  111.  App.  201  (cp.  Dunsworth  v.  Wood  Machine  Co..  29  111.  App.  23)  ; 
Carson  r.  Allen,  6  Dana,  395;  Hanna  r.  Mills,  21  Wend.  90.  Yet  the  failure 
to  give  the  promised  bill  or  note  is  surely  a  material  breach.  And  so  it  was 
held  in  Stoeksdale  v.  Schuyler,  29  N.  Y.  St.  Repr.  380;  affd.,  130  N.  Y.  674). 
See  also  Tyson  r.  Doe,  15  Vt.  571;  Jaquith  r.  Adams,  60  Vt.  392. 

If  a  bill  or  note  signed  by  a  third  person  should  have  been  given,  the  con- 
tract may  be  rescinded  and  action  brought  at  once. 

Again,  it  has  been  held  that  a  plaintiff  cannot  recover  the  money  value  of 
goods  or  services  given  to  the  defendant  if  by  the  contract  he  "«jis  to  receive 
not  money  but  goods  or  services.  Harrison  v.  Luke,  14  M.  &  W.  139  (cp. 
Kevs  v.  Harwood,  2  C.  B.  905)  ;  Anderson  v.  Rice,  20  Ala.  239;  Oswald  r. 
Oodbold,  20  Ala.  811;  Eastland  r.  Sparks.  22  Ala.  607;  Bernard  v.  Dickins, 
22  Ark.  351;  Baldwin  r.  Lessner.  8  Ga.  71;  Cochran  r.  Tatum.  3  T.  B.  Mon. 
404;  Slayton  r.  McDonald,  73  Me.  50;  Pierson  r.  Spaulding,  61  Mich.  90; 
Mitchell  r.  Gile,  12  N.  H.  390;  Weart  r.  Hoagland's  Adm'r,  2  Zab.  517; 
Brooks  r.  Scott's  Exec,  2  Munf.  344;  Bradley  v.  Levy,  5  Wis.  400.  But  see 
ronira,  Sullivan  v.  Boley.  24  Fla.  501;  Stone  r.  Nichols,  43  Mich.  16;  Dike- 
man  v.  Arnold,  78  Mich.  455;  Brown  !.  St.  Paul  Ry.  Co.,  36  Minn.  236;  Clark 


ACTION    ON    THE    CONTRACT.  347 

anomalous  ;62  and  from  a  technical  point  of  view  this  may  be  so.  But 
the  doctrine  must  have  the  merit  either  of  practical  convenience  or  of 
conformity  to  men's  sense  of  fairness,  for  the  history  of  the  civil  law 
shows  even  more  strikingly  than  that  of  the  common  law  the  develop- 
ment of  the  doctrine,  in  spite  of  ancient  rules  to  the  contrary,  that  a 
person  aggrieved  by  breach  of  contract  may  have  rescission  and 
restitution.  The  Eoman  law,  like  the  early  English  law,  did  not  allow 
this,  but  it  was  permitted  by  the  Code  Napoleon,  and  consequently  is 
permitted  now  not  only  in  France,  but  in  the  numerous  countries 
which  have  copied  French  legislation.  Germany  clung  longest  to 
the  old  Eoman  rule,  but  in  contracts  within  the  commercial  code  the 
remedy  in  question  has  been  authorized  since  1861-1868,  when  a 
uniform  commercial  code  was  gradually  adopted  by  the  various 
German  states,  and  since  January  1,  1900,  under  the  Burger liches 
Gesetzbuch  the  remedy  is  well-nigh  uniformly  allowable.83 

Rule  in  India.  The  same  tendency  may  be  observed  in  another  direc- 
tion. The  Indian  Contract  Act,  though  supposed  to  be  generally  a 
codification  of  contracts,  seems  to  go  be3'ond  the  law  of  England  in 
allowing  rescission.64 

B.  Action  on  the  Contract. 

ActioH  on  the  contract  lies.  On  repudiation  of  a  contract  the  ag- 
grieved party  must  have  a  remedy  on  the  contract.  The  only  ques- 
tion can  be  what  he  must  do  in  order  to  perfect  his  right  of  action. 

If  he  has  performed  may  sue  at  once.  If  he  has  already  performed 
all  that  the  contract  required  of  him,  there  can  be  no  doubt  that  he 
may  sue  at  once  on  the  contract  if  the  time  when  the  defendant's 
performance  was  due  has  arrived.  Whether  suit  may  be  brought  at 
once  even  though  that  time  has  not  arrived  will  be  discussed  later. 

».  Fairfield,  22  Wend.  522;  Way  v.  Wakefield,  7  Vt.  223;  Wainwrigh't  v.  Straw, 
.  15  Vt.  215.     And  see  Jackson  v.  Hall,  53  111.  440. 

62  Professor  Keener  so  regards  it,  and  finds  in  the  anomalous  character  of 
the  remedy  a.  reason  for  some  of  its  illogical  limitations.  Quasi-Con- 
traets,  306. 

63  See  13-Harv.  L.  Rev.  84,  85,  94,  95. 

64  Sect.  39.  When  a  party  to  a  contract  has  refused  to  perform,  or  dis- 
abled himself  from  performing,  his  promise  in  its  entirety,  the  promise  may 
put  an  end  to  the  contract,  unless  he  has  signified,  by  words  or  conduct,  his 
acquiescence  in  its  continuance. 

See  also  sect.  53,  which  allows  rescission  because  of  prevention  of  per- 
formance, and  sect.  107,  which  allows  a  vendor  who  has  parted  with  title 
but  retained  a  lien  to  make  a  resale  of  the  goods. 

It  should  be  said,  however,  that  the  court  in  Sooltan  Chund  v.  Schiller,  4 
Calcutta,  252,  showed  a  tendency  to  restrict  the  effect  of  sect.  39. 


348  DUTIES    UNDEB    CONTRACT. 

If  he  has  been  prevented  from  performing  may  also  sue.  The  situation 
is  in  legal  effect  similar  when  the  injured  party  has  not  fully  per- 
formed, but  is  literally  prevented  by  the  other  party  from  continu- 
ing performance.  Where  work  requires  some  cooperation  of  both 
parties  this  frequently  happens.  Though  the  plaintiff's  damages  may 
not  be  the  same  as  if  he  had  fully  performed,  his  right  of  action  is  as 
complete,  for  when  the  defendant  has  himself  caused  the  plaintiff's 
non-performance  he  cannot  take  advantage  of  it  as  a  defence. 

Where  he  has  not  pe~f ormed  or  been  prevented  —  Cockburn's  rule.  But  if 
the  injured  party  has  not  fully  performed  and  is  not  prevented  from 
continuing,  yet  because  of  the  repudiation  by  the  other  party  has  just 
reason  to  believe  that  the  latter  will  not  fulfil  his  contractual  obliga- 
tion, the  situation  presents  greater  difficulty.  In  Frost  v.  Knight,65 
Cockburn,  C.  J.,  thus  stated  the  law :  "  The  promisee,  if  he  pleases, 
may  treat  the  notice  of  intention  as  inoperative,  and  await  the  time 
when  the  contract  is  to  be  executed,  and  then  hold  the  other  party 
responsible  for  all  the  consequences  of  non-performance;  but  in  that 
case  he  keeps  the  contract  alive  for  the  benefit  of  the  other  party  as 
well  as  his  own;  he  remains  subject  to  all  his  own  obligations  and 
liabilities  under  it,  and  enables  the  other  party  not  only  to  complete 
the  contract,  if  so  advised,  notwithstanding  his  previous  repudiation 
of  it,  but  also  to  take  advantage  of  any  supervening  circumstance 
which  would  justify  him  in  declining  to  complete  it. 

"  On  the  other  hand,  the  promisee  may,  if  he  thinks  proper,  treat 
the  repudiation  of  the  other  party  as  a  wrongful  putting  an  end  to 
the  contract,  and  may  at  once  bring  his  action  as  on  a  breach  of 
it;  and  in  such  action  he  will  be  entitled  to  such  damages  as  would 
have  arisen  from  the  non-performance  of  the  contract  at  the  ap- 
pointed time,  subject,  however,  to  abatement  in  respect  of  any  circum- 
stances which  may  have  afforded  him  the  means  of  mitigating  his 
loss."  66 

Rule  approved  in  England  but  inconsistent  with  American  decisions.      This . 
language  was  quoted  with  approval  by  Cotton,  L.  J.,  in  Johnstone  v. 
Milling, m  and  may  be  regarded   as  expressing  the   present  under- 
standing of  English  lawyers  on  the  matter  in  question.68    The  alter- 
native stated  as  permissible  in  the  first  paragraph  of  Lord  Cockburn's 

es  L.  R.  7  Ex.  111. 

66  L.  E.  7  Ex.  Ill,  112. 

67  16  Q.  B.  t».  460. 

68  See  e.  g.  Leake,  Contracts  (4th  ed. ),  618;  Mayne,  Damages  (7th  ed.),  184. 
It  is  also  quoted  and  acted  on  in  Dalrymple  v.  Scott,  19  Ont.  App.  477. 


RULE   OF   DAMAGES.  349 

statement  is  not  allowed  generally  in  this  country.  There  is  a  line 
of  eases  running  back  to  184569  which  hold  that  after  an  absolute 
repudiation  or  refusal  to  perform  by  one  party  to  a  contract,  the 
other  party  cannot  continue  to  perform  and  recover  damages  based 
on  full  performance.  This  rule  is  only  a  particular  application  of  the 
general  rule  of  damages  that  a  plaintiff  cannot  hold  a  defendant  liable 
for  damages  which  need  not  have  been  incurred;  or,  as  it  is  often 
stated,  the  plaintiff  must,  so  far  as  he  can  without  loss  to  himself, 
mitigate  the  damages  caused  by  the  defendant's  wrongful  act.  The 
application  of  this  rule  to  the  matter  in  question  is  obvious.  If  a 
man  engages  to  have  work  done,  and  afterwards  repudiates  his  con- 
tract before  the  work  has  been  begun  or  when  it  has  been  only  partially 
done,  it  is  inflicting  damage  on  the  defendant  without  benefit  to  the 
plaintiff  to  allow  the  latter  to  insist  on  proceeding  with  the  contract. 
The  work  may  be  useless  to  the  defendant,  and  yet  he  would  be  forced 
to  pay  the  full  contract  price.  On  the  other  hand,  the  plaintiff  is 
interested  only  in  the  profit  he  will  make  out  of  the  contract.  If 
he  receives  this  it  is  equally  advantageous  for  him  to  use  his  time 
otherwise. 

American  decisions  sound.  By  every  consideration  of  mercantile  con- 
venience these  decisions  are  correct.  The  facts  of  one  of  the  few 
cases70  which  are  directly  opposed  to  them  need  only  be  stated  to  il- 
lustrate this.  The  defendant,  resident  in  Illinois,  contracted  to  buy 
of  the  plaintiff,  resident  in  New  Jersey,  500  tons  of  barbed  wire. 

fi9  Clark  v.  Marsiglia,  1  Denio,  317,  is  the  earliest  decision.  In  this  case 
the  plaintiff  was  employed  to  clean  and  repair  a  number  of  pictures,  for 
which  the  defendant  agreed  to  pay.  After  the  plaintiff  had  begun  work 
upon  them  the  defendant  countermanded  the  order.  The  plaintiff  nevertheless 
completed  the  work  and  sued  for  the  full  price.  The  court  held  he  could 
recover  only  for  what  he  had  done  before  the  order  was  countermanded,  with 
such  further  sum  as  would  compensate  him  for  the  interruption  of  the 
contract  at  that  point.  To  similar  effect  are  Kingman  v.  Western  Mfg.  Co., 
92  Fed.  Rep.  486  (C.  C.  A.);  Black  v.  Woodrow,  39  Md.  194,  216;  Heaver 
V.  Lanahan,  74  Md.  493;  Collins  v.  Delaporte,  115  Mass.  159  (semble)  ; 
Hosmer  v.  Wilson,  7  Mich.  294;  Gibbons  v.  Bente,  51  Minn.  499;  American 
Publishing  Co.  v.  Walker,  87  Mo.  App.  503;  Dillon  v.  Anderson,  43  N.  Y.  231; 
Lord  r.  Thomas,  64  N..  Y.  107  (semble)  ;  Johnson  v.  Meeker.  96  N.  Y.  93; 
People  v.  Aldridge,  83  Hun,  279  (semble)  ;  Reiser  v.  Mears,  120  N.  C.  443; 
Davis  v.  Bronson,  2  N.  Dak.  300;  Collver  v.  Moulton,  9  R.  I.  90;  Ault  v. 
Dustin,  100  Tenn.  366;  Chicago,  &e.  'Co.  r.  Barry,  52  S.  W.  Rep.  451 
(Tenn.)  ;  Tufts  v.  Lawrence,  77  Tex.  526;  Derby  v.  Johnson,  21  Vt.  17;  Dan- 
forth  e.  Walker,  37  Vt.  239;  40  Vt.  257;  Cameron  r.  White,  74  Wis.  425; 
Tufts  v.  Weinfeld,  88  Wis.  647.  But  see  contra,  Roebling's  Sons'  Co.  r.  Lock 
Stitch  Fence  Co.,  130  111.  660;  McAlister  v.  Safley,  65  la.  719  (cp.  Moline 
Scale  Co.  r.  Beed,  52  la.  307 ) .  See  also  Southern  Cotton  Oil  Co.  r.  Heflin 
99  Fed.. Rep.  339  (C.  C.  A.)  ;  Lake  Shore,  &c.  Ry.  Co.  v.  Richards,  152  111.  59. 

70  Roebling's   Sons'  Co.   v.  Lock   Stitch  Fence  Co.,   130  111.  660.     See  also 
Lake  Shore,  etc.  Ry.  Co.  v.  Richards,  152  111.  59. 


350  DUTIES    UNDER    CONTRACT. 

After  123  tons  had  been  delivered  the  defendant  requested  the  plain- 
tiff to  stop  further  shipments,  and  on  the  refusal  of  the  latter,  tele- 
graphed, "  Will  not  take  wire  if  shipped."  Nevertheless,  the  plaintiff 
went  through  the  futile  and  expensive  steps  of  preparing  and  send- 
ing the  rest  of  the  wire,  and  was  held  entitled  to  recover  damages  for 
so  doing. 

Rule  of  damages  not  perhaps  applicable  in  every  case.  The  English 
courts  have  recognized  the  duty  of  a  plaintiff  to  mitigate  or  at  least 
not  to  enhance  the  damages  which  a  defendant  is  to  be  called  upon 
to  pay  ;71  and  it  is  quite  possible  that  Lord  Cockburn,  in  stating  as  he 
did  the  first  alternative  right  of  a  part}r  aggrieved  by  repudiation  of 
a  contract,  did  not  appreciate  that  his  statement  justified  a  violation 
of  that  duty.72  It  need  not  be  contended  that  in  every  case  the  prin- 
ciple of  damages  in  question  will  deprive  the  plaintiff  of  the  right 
to  continue  performance  of  the  contract  after  it  has  been  repudiated. 
There  may  be  cases  where  so  doing  will  not  needlessly  enhance  dam- 
ages.    But  it  is  clear  that  such  cases  must  be  exceptional. 

Inconsistency  of  Cockburn's  language  —  True  rule.  Lord  Cockburn's 
statement  of  the  plaintiffs  second  alternative  is  that  "  The  promisee 
may,  if  he  thinks  proper,  treat  the  repudiation  of  the  other  party  as 
a  wrongful  putting  an  end  to  the  contract,  and  may  at  once  bring 
his  action  as  on  a  breach  of  it."  The  two  clauses  of  this  sentence 
logically  contradict  each  other.  If  the  contract  is  put  an  end  to,  no 
action  can  be  brought  upon  it.73  If  an  action  may  be  brought  upon 
it,  either  at  once  or  at  any  time  in  the  future,  it  is  not  put  an  end  to.74 
The  question  of  the  time  when  the  action  should  be  brought  is  not 
immediately  essential  here,  and  that  question  being  left  for  subse- 
quent discussion,  it  may  be  laid  clown  as  a  more  logically  coherent 
and  more  practically  useful  statement  that  the  promisee  may,  if  he 
thinks  proper,  treat  the  repudiation  of  the  other  party  as  a  ground 
for  putting  an  end  to  the  contract,  as  shown  in  the  earlier  part  of 
this  article.     If  this  course  is  adopted  no  rights  under  the  contract 

TiMayne,  Damages  (7th  ed.),  185;  Harries  r.  Edmonds,'  1  C.  &  K.  68fi, 
687;  Roper  v.  Johnson,  L.  R.  8  C.  P.  167;  Roth  v.  Taysen  (C.  A.),  12  T.  L.  R. 
211;  Brace  v.  Calder  (C.  A.),  T1895]  2  Q.  B.  253.  Cp.  Brown  r.  Muller, 
L.  R.  7  Ex.  319;  Re  South  African  Trust  Co.   (C.  A.),  74  L.  T.  769. 

72  Lord  Cockburn's  statement  is  also  sometimes  repeated  by  American 
courts,  which  would  not  be  likely  to  enforce  it  to  its  logical  conclusion.  See 
Foss,  etc.,  Co.  v.  Bullock.  59  Fed.  Rep.  83.  87;  Smith  'v.  Georgia  Loan  Co., 
113  Ga.  975;  Strauss  v.  Meertief,  64  Ala.  299,  307;  Claes,  etc.,  Mfg.  Co.,  v. 
MfCord,  65  Mo.  App.  507:   Walsh  r.  Myers,  92  Wis.  397. 

73  1-Ieagney  r.  J.  I.  Case  Machinery  Co'.  (Neb.),  96  N.  W.  Rep.  175;  McCor- 
miek  Machine  Co.  v.  Brown  (Neb.),  98  N.  W.  Rep.  697;  Ward  v.  Warren,  44 
Oreg.  102. 

74  Speirs  v.  Union  Forge  Co.,  180  Mass.  87,  92. 


CONTRACT  NOT  TERMINATED.  351 

can  remain,  though  a  quasi-contractual  right  to  recover  the  value 
of  anything  which  has  been  done  will  survive.  Or  the  promisee  may 
decline  to  continue  to  perform  and  sue  the  promisor  for  his  breach 
of  contract.  Ordinarily,  of  course,  a  plaintiff  in  an  action  upon  a 
contract  cannot  succeed  if  he  has  himself  failed  to  perform  at  the 
proper  time;  but  if  that  failure  to  perform  was  excused  by  the  de- 
fendants' own  conduct  this  principle  does  not  apply.  The  authorities 
'furnish  abundant  illustration  of  this  when  the  excuse  for  thp  plain- 
tiff's failure  to  perform  consisted  in  a  prior  serious  breach  of  the  con- 
tract by  the  defendant.75  The  same  principle  covers  the  case  of 
repudiation  without  an  actual  breach  of  contract.  The  reason  why 
the  plaintiff  must  ordinarily  have  performed  in  order  that  he  may 
recover  is  the  same  reason  which  underlies  the  doctrine  of  failure 
of  consideration.  The  mutual  performances  in  a  bilateral  contract 
are,  barring  exceptional  cases,  intended  to  be  given  in  exchange  for 
each  other,  and  if  the  exchange  fails  on  one  side  owing  to  defective 
performance,  the  other  party  may  likewise  decline  to  perform.  This 
reason  was  pretty  well  hidden  during  the  early  development  of  the 
doctrine  under  the  terminology  of  implied  conditions,  but  it  is  suffi- 
ciently apparent  at  the  present  day.76  Xow,  if  it  be  an  excuse  which 
will  justify  a  promisor  in  breaking  his  promise  that  his  co-contractor 
has  failed  to  give  the  performance  agreed  upon  as  an  exchange,  it 
should  likewise  be  an  excuse  that  the  co-contractor  has  made  it  plain, 
as  by  repudiation,  that  he  will  not  give  such  performance  when  it  be- 
comes due  in  the  future.  A  promisor  can  no  more  be  expected  to  per- 
form his  promise  when  he  is  not  going  to  receive  counter-performance 
than  when  he  actually  has  not  received  it.  Baron  Parke — a  judge 
not  likely  to  stretch  too  far  the  rules  of  the  common  law  in  order 
to  work  out  justice — so  held  in  Ripley  v.  M'ClureP 

Contract  not  terminated.  Neither  where  the  plaintiff's  excuse  for  his 
own  non-performance  is  the  defendant's  actual  breach  of  the  contract 
nor  where  that  excuse  is  a  prospective  breach  because  of  repudiation 
does  the  plaintiff  terminate  the  contract  merely  by  availing  himself 
of  his  excuse.  The  contract  still  exists,  but  one  party  to  it  has  a 
defence  and  an  excuse  for  non-performance.  It  may  be  thought  that 
this  statement  differs  from  that  of  Lord  Cockburn's  second"  alterna- 
tive only  in  words.  Even  so,  words  have  their  importance.  If 
wrongly  used,  wrong  ideas  are  sure  to  follow,  and  wrong  decisions 

75  See  Parsons  on  Contracts  ( 8th  ed. ) ,  ii.  790. 

76  See  e.  g.,  Hull  Coal  Co.  v.  Empire  Coal  Co.,  113  Fed.  Rep.  256,  258 
(C.  C.  A.). 

77  4  Ex.   345. 


352  DUTIES    UNDER   CONTRACT. 

follow  wrong  ideas.  It  is  a  source  of  serious  confusion  in  the  cases 
that  a  contract  is  frequently  spoken  of  as  "  rescinded "  or  "  put  an 
end  to,"  when  in  truth  one  party  to  the  contract  has  merely  exercised 
his  right  to  refuse  to  perform  because  of  the  wrongful  conduct  of 
the  other  party.78  To  be  sure  it  frequently  makes  little  practical 
difference  whether  this  is  the  case  or  whether  the  contract  is  in  fact 
rescinded.  Where  the  only  question  that  arises  is  in  regard  to  the 
liability  of  a  defendant  for  his  refusal  to  perform  the  result  is  the 
same  whether  the  whole  contract  is  rescinded  or  whether  it  still  sub- 
sists subject  to  a  defence  on  the  part  of  the  defendant.  But  if  the 
defendant  seeks  by  counter-claim  or  cross-action  to  establish  a  right 
on  his  part  to  damages,  his  success  depends  on  the  existence  of  the 
contract.  And  more  than  one  court  has  been  led  into  the  error  of 
holding  that  no  such  right  of  action  existed — that  a  voluntary  exer- 
cise of  the  right  to  refuse  to  continue  performance  necessarily  in- 
volved a  total  termination  of  the  contract.79 

78Thi3  error  is  adverted  to  in  Anvil  Mining  Co.  v.  Humble,  153  U.  S. 
540,  551.  The  plaintiff  in  that  case  had  ceased  to  perform  because  of  a 
breach  of  contract  by  the  defendant  and  sought  to  recover  damages. 
Brewer,  J.,  delivering  the  opinion  of  the  court,  said  (p.  551)  :  "It  is  in- 
sisted, and  authorities  are  cited  in  support  thereof,  that  a  party  cannot 
rescind  a  contract  and  at  the  same  time  recover  damages  for  his  [its?]  non- 
performance. But  no  such  proposition  as  that  is  contained  in  that  instruc- 
tion. It  only  lays  down  the  ride,  and  it  lays  that  down  correctly,  which 
obtains  when  there  is  a  breach  of  contract.  Whenever  one  party  thereto 
is  guilty  of  such  a  breach  as  is  here  attributed  to  the  defendant,  the  other 
party  is  at  liberty  to  treat  the  contract  as  broken  and  desist  from  any 
further  effort  on  his  part  to  perform ;  in  other  words,  he  may  abandon  it, 
and  recover  as  damages  the  profits  which  he  would  have  received  through 
full  performance.  Such  an  abandonment  is  not  technically  a  rescission  of 
the  contract,  but  is  merely  an  acceptance  of  the  situation  which  the  wrong- 
doing of  the  other  party  has  brought  about.  So  Holmes,  J.,  in  Daley  v. 
People's  Building  Assoc.,  178  Mass.  13,  18,  "  conduct  going  no  further 
than  the  defendant's  might  not  justify  even  a,  refusal  of  further  performance 
on  the  other  side,  ...  a  right  which  must  not  be  confounded  with  rescission, 
and  which  in  some  eases  is  more  easilv  made  out."  See  also  the  remarks 
of  Bowen,  L.  J.,  in  Boston,  &c.  Co.  r.  Ansell,  39  Ch.  D.  339,  365;  Hayes  r. 
Nashville,  SO  Fed.  Eep.  641,  645. 

79  Cox  r.  McLaughlin,  54  Cal.  605 ;  Porter  r.  Arrowhead  Reservoir  Co.,  100 
Cal.  500,  502;  Palm  v.  Ohio,  etc.,  R.  Co.,  18  111.  217;  Howe  v.  Hutchison,  105 
111.  501;  Lake  Shore,  etc.  Ry.  Co.  v.  Richards,  32  N.  E.  Rep.  402  (111.  Sup. 
Ct.  1S92 )  ;  Jones  v.  Mial,  79  N.  C.  164.  These  cases  hold  that  though  a 
serious  breach  of  contract  will  justify  the  other  party  in  treating  the  con- 
tract as  rescinded  and  so  refusing  to  continue  to  perform,  yet  at  least  unless 
the  breach,  amounts  to  actual  prevention  the  party  aggrieved  cannot,  if  he 
ceases  to  perform,  sue  on  the  contract.  The  late  Illinois  case  cited  was,  how- 
ever, reversed  on  rehearing,  and  though  somewhat  limited  in  its  language, 
perhaps  overrules  the  earlier  decisions  in  the  same  state.  152  111.  59,  80,  82. 
The  first  California  decision  was  chiefly  based  on  the  early  Illinois  ease.  So 
in  Hochster  v.  De  La  Tour,  2  E.  &  B.  678,  counsel  for  the  defendant,  though 
their  case  did  not  require  it,  based  their  whole  argument  on  the  assumption 
that  repudiation  was  equivalent  to  an  offer  to  rescind,  and  that  if  the  ag- 
grieved party  did  not  continue  to  hold  himself  ready  and  willing  to  perform 
he  could  not  sue  upon  the  contract. 


ELECTION    NEED   NOT   BE    MANIFESTED.  353 

No  manifestation  of  election  necessary.  Further,  in  order  to  exercise 
his  right  to  rescind  a  contract,  an  injured  party  must  indicate  his 
election  so  to  do  by  positive  action,80  but  if  he  only  wishes  to  refrain 
from  performing  his  part  of  the  contract,  he  is  not  seeking  to  assert 
an  affirmative  right,  but  standing  on  the  defensive.  He  need  do 
nothing  except  refrain  from  performing  or  receiving  performance 
until  he  sues  or  is  sued,  when  he  should  plead  the  cause  which  justifies 
his  non-performance.81  Of  course  he  may  waive  this  justification,  but 
only  by  some  positive  action  or  estoppel.82 

In  Bethel  i\  Salem  Improvement  Co.,  93  Va.  354,  also,  the  plaintiff  was 
not  allowed  to  recover  for  loss  of  profits,  after  having  ceaseci  to  perform 
owing  to  the  defendant's  breach  of  contract.  See  also  Beatty  r.  Howe  Lumber 
Co.,  77  Minn.  272. 

Citations  need  not  be  multiplied  to  prove  the  error  of  the  foregoing  deci- 
sions and  the  right  of  the  plaintiff  to  cease  performance  upon  the  defendant's 
repudiation  and  yet  sue  upon  the  contract.  Mayne's  Case,  5  Coke,  206 
(3d  Resolution);  Cort  v.  Ambergate,  etc.  By.  Co.,  17  Q.  B.  127;  Ripley  r. 
MeClure,  4  Ex.  345;  Marshall  v.  Mackintosh,  78  L.  T.  750;  Leeson  r.  North 
British,  &c.  Co.,  Ir.  R.  8  C.  L.  309;  Anvil  Mining  Co.  r.  Humble,  153  U.  S. 
540;  McElwee  v.  Bridgeport  Land,  &c.  Co.,  54  Fed.  Rep.  627  (C.  C.  A.); 
Cherry  Valley  Works  v.  Florence,  &c.  Co.,  64  Fed.  Rep.  569  (C.  C.  A.); 
Martin  v.  Chapman,  6  Port.  344;  Baldwin  v.  Marqueze,  91  Ga.  404;  Weill 
v.  American  Metal  Co.,  182  111.  128;  Riley  v.  Walker,  6  Ind.  App.  622;  Morris 
v.  Globe  Refining  Co.  (Ky.),  59  S.  W.  Rep.  12;  Lowe  v.  Harwood,  139  Mass. 
133;  Lee  v.  Briggs,  99  Mich.  487;  Armstrong  r.  St.  Paul,  &c.  Co.,  48  Minn. 
113;  Berthold  v.  St.  Louis  Construction  Co.,  165  Mo.  280;  Vickers  v.  Electro- 
zone  Commercial  Co.,  67  N.  J.  L.  665;  Wharton  r.  Winch,  140  N.  Y.  287; 
Reynolds  V,  Reynolds,  48  Hun,  142;  Davis  r.  Tubbs,  7  S.  Dak.  488. 

Another  instance  of  the  confusion  of  ideas  due  to  the  improper  use  of  words 
here  criticised  may  be  found  in  Fox  v.  Kitton,  19  111.  519,  where  the  court 
says  that  there  is  no  conflict  between  the  views  of  Parke,  B.,  and  the  decision 
ofHochster  v.  De  La  Tour,  2  E.  &  B.  678,  since  Parke,  B.,  said  in  Phillpotts 
v.  Evans,  5  M.  &  W.  475,  477:  "The  notice  (that  he  will  not  receive  the 
wheat)  amounts  to  nothing  until  the  time  when  the  buyer  ought  to  receive 
the  goods,  unless  the  seller  acts  on  it  in  the  meantime  and  rescinds  the  con- 
tract." This,  the  Illinois  court  adds,  "  is  in  strict  accordance  with  the 
principles  recognized  in  .  .  .  Hochster  p.  De  La  Tour."  Now  Parke  was 
using  the  word  "  rescinds  "  in  its  true  sense.  What  he  meant  and  what  he 
said  was  that  the  seller  might  at  his  option  terminate  the  contract.  The 
Illinois  court  thought  he  was  using  the  word  in  the  improper  way  in  which 
Lord  Cockburn  did,  and  that  his  meaning  was  that  the  seller  might,  without 
himself  performing,  so  act  as  to  entitle  himself  to  sue  the  buyer  immediately 
for  breach  of  the  contract — a  doctrine  Parke  expressly  denied  both  in  Phill- 
potts v.  Evans  and  Ripley  v.  M'Clure,  4  Ex.  345,  359.  The  mistake  made  in 
Fox  v.  Kitton  is  repeated  in  Kadish  v.  Young,  108  111.  170. 

80  Supra,  p.  345. 

81  Where  the  ground  of  non-performance  is  an  actual  breach  of  contract 
by  the  other  party,  it  is  an  obvious  consequence  of  the  rule  of  common  law 
pleading  which  required  the  plaintiff  to  allege  and  prove  his  own  perform- 
ance, that  he  would  fail  if  he  had  not  duly  performed,  though  the  defend- 
ant had  not  manifested  any  election.  Changes  in  modern  pleading  cannot 
have  affected  the  substantive  law  on  this  point.  Where  the  ground  of  non- 
performance is  repudiation  or  a  prospective  breach,  there  should  be  no 
difference  for  the  essential  nature  of  the  defense  is  the  same. 

83  See  Langdell,  Summary  of  Contracts,    §    177 ;   Harriman  on  Contracts 
(2ded.). 

23 


354  DUTIES    UNDER   CONTRACT. 

Prospective  inability  to  perform  should  excuse.  If  it  is  clear  that  one 
party  to  a  contract  is  going  to  be  unable  to  perform  it  the  other  party 
should  be  excused  from  performing.  The  excuse  is  the  same  as  in 
cases  where  a  wilful  intention  not  to  perform  is  manifested.  The 
party  aggrieved  is  not  going  to  get  what  he  bargained  for  in  return 
for  his  performance.  It  is  immaterial  to  him,  and  it  should  be  im- 
material to  the  court  whether  the  reason  is  because  the  other  party 
cannot  or  because  he  will  not  do  what  he  promised.  Even  if  the 
prospective  inability  is  due  to  vis  major  this  should  be  true.83 

Cases  of  prospective  inability.  There  is  some  difficulty  in  determin- 
ing when  it  is  sufficiently  certain  that  one  side  of  a  contract  will  not 
be  performed,  to  justify  a  refusal  to  perform  the  other  side.  Cer- 
tainly if  a  party  announces  that  he  cannot  perform,  the  other  party 
is  justified  in  taking  him  at  his  word.84  Destruction  of  the  subject- 
matter  of  the  promise  of  one  party  is  clearly  a  defence  to  the  other.85 
Transfer  to  a  third  person  of  property  forming  the  subject-matter  of 
the  contract  is  not  so  clear,  since  it  is  possible  that  the  grantor  may 
recover  the  title  in  time  to  fulfil  the  contract,  but  ordinarily  the 
chance  seems  so  remote  that  the  defence  should  be  allowed.86  In- 
solvency of  one  party  to  a  contract  of  sale  is  not  always  sufficient 
reason  for  refusal  to  perform  by  the  other,  for  an  assignee  or  trustee 
in  insolvency  or  bankruptcy  may  find  it  for  the  advantage  of  the 
insolvent  estate  to  complete  the  bargain,  and  if  so  he  ought  to  have 

83  Langdell,  Summary,  §   158.     And  see  eases  in  the  following  notes. 

84  But  it  must  be  a  clear  and  positive  statement.  Smoot's  Case,  15  Wall.  36. 
See  also  Re  Phoenix  Bessemer  Steel  Co.,  4  Ch.  D.  108. 

8F  9  Harv.  L.  Rev.  106.  Courts  of  equity  in  some  jurisdictions  have,  how- 
ever, established  an  exception  to  this  rule  in  the  case  of  contracts  for  the 
sale  of  real  estate.    9  Harv.  L.  Rev.  111. 

86  Fort  Payne,  etc.,  Co.  r.  Webster,  163  Mass.  134;  Meyers  r.  Markham,  90 
Minn.  230;  James  i.  Burchell,  82  N.  Y.  108;  Brodhead  v.  Retnbold,  200  Pa. 
618.  Contra  are  Garberino  v.  Roberts,  109  Cal.  125;  Webb  v.  Stephenson,  11 
Wash.  342.  See  also  Joyce  v.  Shafer,  97  Cal.  335;  Shively  v.  Semi-Tropic, 
etc.,  Co.,  99  Cal.  259.  In  the  latter  cases  the  court  cites  decisions  establishing 
the  doctrine  that  a  man  may  contract  to  sell  land  which  he  does  not  own, 
and  draws  the  inference  that  if  the  seller  ceases  to  own  land  which  is  the 
subject  of  a  contract  it  does  not  excuse  the  other  party.  The  inference  does 
not  seem  warranted.  Tn  Ziehen  v.  Smith,  148  N.  Y.  558,  at  the  time  of 
performance  there  was  an  outstanding  lien  on  the  property,  of  which  neither 
buyer  nor  seller  knew  at  the  time  of  entering  into  the  contract.  The  buyer, 
without  demanding  fulfilment  of  the  contract,  at  once  brought  suit  to  recover 
part  of  the  price  which  he  had  paid.  The  court  held  he  could  not  recover,  as 
the  incumbrance  was  one  which  was  in  the  power  of  the  vendor  to  remove,  and 
he  might  have  done  so  if  requested.  This  decision  was  followed  in  Higgins 
r.  Eagleton,  155  N.  Y.  466.  In  the  absence  of  any  fraudulent  concealment  the 
determining  question  should  be,  Would  a  reasonable  man  be  warranted  in  in- 
ferring that  the  contract  would  not  be  carried  out?  See  Forrer  r.  Nash.  35 
Beav.  167 ;  Brewer  r.  Broadwood,  22  Ch.  D.  105 ;  Lytle  r.  Breckenridsre.  3  J.  J. 
Marsh.  663;  Payne  v.  Pomeroy,  21  D.  C.  243.     Cp.  Easton  v.  Jones,  193  Pa.  147, 


TIME    WHEN    1UUHT   ACCRUES.  355 

that  right.87  But  no  one  is  obliged  to  give  credit  to  one  who  is  in- 
solvent or  bankrupt.  Insolvency  or  bankruptcy  affords  a  defence  to 
any  such  contractual  obligation,  and  payment  may  be  required  on  de- 
livery, though  the  contract  expressly  provides  for  a  term  of  credit.88 
And  if  a  contract  is  of  such  a  nature  that  an  assignee  cannot  carry 
it  out,  insolvency  will  excuse  further  performance  by  the  other  party.89 
These  seem  to  be  the  only  cases  in  which  prospective  inability  of  one 
party  is  sufficiently  certain  to  be  a  defence  to  the  other  party. 

C.  Time  "When  Eight  of  Action  Accrues. 

Relation  of  pleading  to  the  question.  The  final  question  remains,  When 
may  the  injured  party  bring  his  action  upon  the  contract?  If  a 
technical  declaration  were  as  much  thought  of  to-day  as  it  was  once, 
the  question  could  hardly  have  become  troublesome.  From  a  technical 
point  of  view,  it  seems  obvious  that  in  an  action  on  a  contract  the 
plaintiff  must  state  that  the  defendant  broke  some  promise  which  he 
had  made.  If  he  promised  to  employ  the  plaintiff  upon  June  1,  the 
breach  must  be  that  he  did  not  do  that.  A  statement  in  May  by  the 
defendant  that  he  was  not  going  to  employ  the  plaintiff  upon  June 
1  can  be  a  breach  only  of  a  contract  not  to  make  such  statements.  It 
is  perhaps  not  wholly  by  chance  that  the  doctrine  of  anticipatory 
breach  has  arisen  as  the  exactness  of  common  law  pleading  has  be- 
come largely  a  thing  of  the  past;  for  the  science  of  special  pleading, 
in  spite  of  the  grave  defects  attending  it,  had  the  great  merit  of  mak- 
ing clear  the  exact  questions  of  law  and  fact  to  be  decided. 

Arguments  from  principle  and  precedent.  The  matter  is  so  plain  on 
principle  that  theoretical  discussion  is  hardly  possible,90  but  certain 

87 Leake,  Contracts  (4th  ed.),  461,  620,  and  cases  cited;  Mess  v.  Duffus, 
6  Comm.  Cas.  165;  Brassel  v.  Troxel,  68  111.  App.  131;  Rappleye  v.  Racine 
Seeder  Co.,  79  la.  220,  228;  Hobbs  v.  Columbia  Falls  Brick  Co.,  159  Mass. 
109;  Vandegrift  v.  Cowles  Co.,  161  N.  Y.  435. 

88  See  authorities  above  cited.  Also,  Lennox  v.  Murphy,  171  Mass.  370,  373; 
Diem  v.  Koblitz,  49  Ohio  St.  41;  Pardee  v.  Kanady,  100  N.  Y.  121;  Dougherty 
Bros.  v.  Central  Bank,  93  Pa.  227;  Lancaster  Bank  v.  Huver,  114  Pa.  216. 
Mere  doubts  of  solvency,  even  though  reasonable,  furnish  no  defense  to  the 
literal  performance  of  a  contract.  C.  P.  Jewett  Publishing  Co.  v.  Butler, 
159  Mass.  517. 

89  Leake,  Contracts  (4th  ed.),  908;  Mess  v.  Duffus,  6  Comm.  Cas.  165; 
Ex  parte  Pollard,  2  Low.  411;  Chemical  Nat.  Bank  v.  World's  Fair  Exposi- 
tion, 170  111.  82;  Bank  Commissioners  v.  New  Hampshire  Trust  Co.,  69 
N.  H.  621. 

90  It  need  hardly  be  said  that  the  doctrine  of  anticipatory  breach  is  peculiar 
to  our  law. 

In  Mommsen's  Beitrage  zum  Obligationenrecht,  Abtheilung,  3,  §  4,  it  is 
said:  "The  obligation  must  be  already  due.     So  long  as  the  time  of  maturity 


356  DUTIES    UNDER   CONTRACT. 

distinctions  may  be  made  which  have  not  always  been  observed,  and 
which,  if  observed,  are  a  sufficient  answer  to  the  claims  of  practical 
convenience  that  furnish  the  only  support  for  the  advocates  of  the 
doctrine  of  anticipatory  breach.  It  seems  desirable,  also,  to  explain 
certain  early  cases  which  have  led  to  some  confusion,  and  thereby 
show  the  lack  of  historical  basis  for  the  doctrine;  and  of  this  first. 

Early  decision.  In  Y.  B.  21  Edw.  IV.  54,  pi.  26,  Choke,  J.,  says: 
"  If  you  are  bound  to  enfeoff  me  of  the  manor  of  D.  before  such  a 
feast,  if  you  make  a  feoffment  of  that  manor  to  another  before  the 
said  feast,  notwithstanding  that  you  repurchase  the  property  before 
the  said  feast,  still  you  have  forfeited  your  obligation-  because  you 
were  once  disabled  from  making  the  feoffment."  91  This  and  similar 
statements  are  repeated  several  times  in  the  early  books.92 

Explanation  of  the  decision.  What  Choke  was  talking  about  was  a 
bond  with  a  condition.  This  appears  from  the  case  itself  where  his 
remark  was  made  as  an  illustration,  and  so  it  was  understood.93  At 
the  present  day  a  bond  with  a  condition  to  convey  before  a  certain 
day  would  be  regarded  as  in  substance  the  equivalent  of  a  covenant 
to  pay  on  or  after  the  day  the  penal  sum  of  the  bond  (for  which 
the  law  would  substitute  appropriate  damages)  if  a  conveyance  was 
not  made  before  the  day.  That  does  not  represent  the  early  under- 
standing of  such  an  instrument.  The  words  of  a  bond,  which  are 
still  used,  acknowledging  an  immediate  indebtedness,  and  adding 
a  proviso  in  which  case  the  instrument  is  to  become  void,  had  a 
literal  meaning  for  our  ancestors.  "A  specialty  debt  was  the  grant 
by  deed  of  an  immediate  right,  which  must  subsist  until  either  the 
deed  was  cancelled  or  there  was  a  reconveyance  by  a  deed  of  release." 94 
It  has  been  frequently  pointed  out  that  a  debt  was  not  regarded  in 

has  not  arrived,  the  obligor  has  always  a  defense  in  ease  the  creditor  should 
endeavor  to  enforce  the  obligation." 

And  in  the  typical  case  of  one  who  regardless  of  his  contract  to  sell  and 
deliver  in  the  future  specific  property  to  A  sells  and  delivers  it  to  B,  Oesterlen, 
Der  Mehrfache  Verkauf,  pp.  17,  18,  says:  "The  temporary  impossibility  of 
performance  due  to  the  first  delivery  is  wholly  immaterial  if  it  is  removed 
at  the  proper  time."  ..."  When  fulfilment  is  not  made  to  the  latter 
(i.  e.  A)  at  the  proper  time,  then  for  the  first  time  had  a  legal  injury 
been  done." 

91  In  Mayne's  Case,  5  Coke,  20  b,  21  a,  this  passage  is  literally  translated 
from  the  Year  Book,  and  it  is  to  Coke,  probably,  that  the  later  currency  of 
the  citation  is  due. 

92  In  1  Bolle's  Ab.  447,  448.  under  the  title  "  Condition,"  this  and  several 
other  similar  cases  are  put.     See  also  5  Viner's  Ab.  224. 

S3  This  is  evident,  e.  g.  from  Rolle's  classification  of  the  authority  under 
"  Condition."    See  also  infra,  p.  358,  n.  98. 
M  9  Harv.  L.  Rev.  56,  by  Professor  Ames. 


BONDS   AND    COVENANTS.  357 

our  early  law  as  a  contractual  right  but  a  property  right,  and  a  deed 
creating  a  debt  was  not  looked  upon,  as  it  it  to-day,  as  a  promise  to 
pay  money,  but  as  a  grant  or  conveyance  of  a  sum  of  the  grantor's 
money  to  the  grantee.95  Accordingly  a  bond  was  closply  analogous 
to  a  mortgage, — a  conveyance  with  a  provision  of  defeasance  'at- 
tached. If  the  condition  was  or  became  impossible  there  remained 
an  absolute  debt  created  by  the  bond.98  Choke's  idea  seems  to  have 
been  that  when  the  obligor  of  the  bond  sold  the  property,  the  condi- 
tion became  at  that  moment  impossible  of  performance.  There  was, 
therefore,  at  that  moment,  by  virtue  of  the  bond  itself,  an  absolute 
indebtedness,  and  this  indebtedness,  having  once  become  absolute, 
could  not  subsequently  be  qualified.  The  condition  could  not  be 
temporarily  in  abeyance. 

Explanation  of  case  continued.  Whether  this  view  of  the  law  was  that 
generally  taken  by  the  contemporary  judges,  and,  if  so,  when  it  gave 
way  to  a  more  modern  conception,  is  not  very  material  to  this  dis- 
cussion, but  it  may  be  mentioned  that  Choke's  statement  seems  in- 
consistent with  the  opinions  of  writers  of  authority  not  long  after- 
wards.97 What  is  material  to  observe  is  that,  whichever  way  the  point 
is  decided,  these  authorities  have  no  bearing  upon  the  question  of  the 
immediate  right  to  sue  upon  the  repudiation  of  a  contract.  It  may 
safely  be  asserted  that  Choke  and  his  contemporaries  and  successors 

95  Parol  Contracts  prior  to  Assumpsit,  by  Professor  Ames,  8  Harv.  L.  Rev. 
252;  Pollock  &  Maitland,  Hist.  Eng.  Law  (2d  ed.),  ii.  205;  Langdell,  Sum- 
mary of  Contracts,  §  100. 

96  2  Vynior's  Case,  8  Coke,  81  b,  83  a;  Perkins,  Profitable  Book,  §§  736,  757; 
1  Kolle's  Ab.  419  (c)  pi.  2;  lb.  420  (E)  pi.  1,  2.  The  last  passage  reads: 
"  If  the  condition  of  a  bond  or  feoffment  is  impossible  when  it  is  made  it  is 
a  void  condition,  but  the  obligation  or  feoffment  is  not  void  but  single, 
because  the  condition  is  subsequent.  But  if  a  condition  precedent  be  impos- 
sible when  it  is  made  the  whole  is  void,  for  nothing  passes  before  the  condi- 
tion is  performed."  Perkins  ( §  757 )  gives  a  case  of  a  condition  originally 
possible,  but  subsequently  becoming  impossible. 

97  Perkins,  Profitable  Book,  §  800 :  "And  there  is  a  diversity  when  the 
condition  is  to  be  performed  on  the  part  of  the  feoffor  or  grantor,  etc.,  and 
when  on  the  part  of  the  feoffee  or  grantee,  etc.  For  when  it  isi  to  be  per- 
formed on  the  part  of  the  feoffee  or  grantee,  it  behoveth  him  that  he  be  not 
disabled  at  any  time  to  do  or  perform  the  same." 

§  801.  "  But  when  the  condition  is  to  be  performed  on  the  part  of  the 
feoffor  or  grantor,  although  they  are  disabled  to  perform  it  at  any  time 
before  the  day  on  which  it  ought  to  be  performed,  yet  if  they  are  able  to 
perform  the  same  at  the  day,  etc.,  it  is  sufficient,  except  in  special  cases." 
Illustrations  are  also  given  by  the  author. 

This  was  written  in  the  first  half  of  the  sixteenth  century.  Coke  adopted 
the  diversity  (Co.  Litt.  221  b)  ;  but  neither  author  gives  a  satisfactory  reason 
for  it. 

In  the  case  put  by  Choke  the  condition  was  to  be  performed  by  the  obligor, 
grantor  of  the  bond. 


358  DUTIES   UNDER    CONTRACT. 

would  all  have  agreed  that  a  covenant  to  convey  land  before  a  certain 
feast,  or  a  covenant  to  pay  damages  if  the  covenantor  failed  to  con- 
vey land  before  a  certain  feast,  could  in  no  event  have  been  sued  upon 
before  the  feast.98 

Erroneous  statement  of  Fuller,  C.  J.  When,  therefore,  Fuller,  C.  J., 
in  a  case  recently  decided  by  the  Supreme  Court  of  the  United  States, 
asserts,  "It  has  always  been  the  law  that  where  a  party  deliberately 
incapacitates  himself  or  renders  performance  of  his  contract  im- 
possible, his  act  amounts  to  an  injury  to  the  other  party,  which  gives 
the  other  party  a  cause  of  action  for  breach  of  contract,"  "  it  must, 
with  deference,  be  said  that  the  learned  judge  is  mistaken.  The  mis- 
take is  perhaps  more  pardonable  than  it  would  otherwise  be,  had  not 
an  English  court  fallen  into  the  same  error.  In  Ford  v.  Tiley,1  Bay- 
ley,  J.  in  delivering  the  opinion  of  the  court,  draws  the  conclusion 
from  some  of  the  old  authorities  above  referred  to  "  that  where  a  party 
has  disabled  himself  from  making  an  estate  he  has  stipulated  to  make 
at  a  future  day,  by  making  an  inconsistent  conveyance  of  that  estate, 
he  is  considered  as  guilty  of  a  breach  of  his  stipulation,  and  is  liable 
to  be  sued  before  such  day  arrives."  2  This  was  not,  so  far  as  appears, 
necessary  to  the  decision  of  the  case.  The  decision  seems  to  have  been 
correct,  as  will  presently  be  shown,  but  Bayley's  remark  is  note- 
worthy as  the  first  statement  in  the  English  books  authorizing  the  idea 
that  an  action  may  be  brought  on  a  promise  before  it  is  broken.  It 
is  to  be  noticed  that  this  remark  is  confined  to  the  case  of  an  estate, 
and  is  not  made  as  laying  down  a  general  principle  of  the  law  of  con- 
tracts.3    Where  the  owner  of  specific  property  agrees  to  sell  it  at  a 

9S  This  is  neatly  proved  by  an  extract  from  the  ease  of  Hoe  v.  Marshall,  Cro. 
Eliz.  579,  580,  S.  C.  Goldsb.  167,  168.  The  reader  should  first  be  reminded  that 
in  our  early  law  a  release  of  a  claim  or  debt  was  treated  as  a  conveyance 
and  that  consequently  a  release  could  not  be  made  of  a  possible  future  claim, 
and  further  that  the  word  "obligation"  here  as  always  in  the  early  books  means 
a  bond  with  condition.  "  If  one  covenants  to  infeoff  me  before  Michaelmas, 
a  release  of  all  actions  before  Michaelmas  is  no  bar  to  an  action  of  covenant 
brought  after  Michaelmas,  for  there  was  not  any  cause  of  action  at  the  time 
of  the  release  made.  But  if  an  obligation  be  for  the  performance  of  that 
covenant,  a  release  of  all  actions  is  a  discharge  of  that  bond,  for  it  was  a  duty 
defeasible." 

99Roehm  v.  Horst,  178  TJ.  S.  1,  18.  It  is  also  stated  in  the  opinion  (p.  8) 
that  this  was  "  not  disputed."  If  so,  the  counsel  for  the  defendant  conceded 
more  than  they  should. 

i  6  B.  &  C.  325  (1827).  But  the  error  is  pointed  out,  though  perhaps  not 
conclusively  shown,  in  the  able  opinion  of  Wells,  J.,  in  Daniels  r.  Newton, 
114  Mass.  530.  It  is  also  adverted  to  in  the  argument  of  counsel  for  the 
defendant  in  Short  r.  Stone,  8  Q.  B.  358,  364,  and  in  Lovelock  v.  Franklyn, 
8  Q.  B.  371.  376. 

2  6   B.  &  C.  325,  327. 

3  Bayley's  remark  was  repeated  as  representing  the  law  in  Heard  v.  Bowers, 
23  Pick.  455,  460;  but  in  that  case,  as  the  impossibilitv  was  not  due  to  the 


HOCHSTER  V.   DE   LA  TOUR.  359 

future  day,  it  is  certainly  much  easier  to  imply  a  promise  that  he  will 
not  otherwise  dispose  of  it  in  the  meantime,  than  it  is  to  imply  a 
promise  in  every  contract  not  only  to  do  but  to  say  nothing  inconsistent 
with  the  principal  promise. 

Other  English  cases.  In  1846  there  were  decided  two  cases  in  which 
a  defendant  was  held  liable  for  the  breach  of  a  promise  to  marry.  In 
one  of  these  cases4  the  defendant's  promise  was  alleged  to  be  simply 
to  marry  the  plaintiff;  in  the  other  case  "to  marry  her  within  a 
reasonable  time  next  after  he  should  thereunto  be  requested."  6  In 
both  cases  the  defendant  was  held  liable  without  any  request  by  the 
plaintiff. 

Dicta  against  anticipatory  breach.  These  cases  did  not  profess  to  es- 
tablish any  general  doctrine  that  a  contract  could  be  broken  before 
the  time  for  its  performance.  Moreover,  Parke,  B.,  twice  expressly 
ruled  the  contrary  at  about  this  time;8  and  Lord  Denman  expressed 
a  similar  opinion.7 

Hochster  v.  De  La  Tour.  So  the  matter  stood  in  1852  when  the  case 
of  Hochster  v.  De  La  Tour8  was  decided.    In  that  case  the  plaintiff 

voluntary  act  of  the  promisor,  the  rule  was  held  inapplicable.  In  Daniels  v. 
Newton,  114  Mass.  530,  the  dictum  in  Heard  v.  Bowers,  was  repudiated. 

4  Gaines  v.  Smith,  15  M.  &  W.  189. 

6  Short  v.  Stone,  8  Q.  B.  358. 

ePhillpotts  v.  Evans,  5  M.  &  W.  475,  477  (1839)  :  "  I  think  no  action  would 
then  have  lain  for  the  breach  of  the  contract,  but  that  the  plaintiffs  were 
bound  to  wait  until  the  time  arrived  for  delivery  of  the  wheat,  to  see 
whether  the  defendant  would  then  receive  it.  The  defendant  might  then 
have  chosen  to  take  it,  and  would  have  been  guilty  of  no  breach  of  contract, 
for  all  that  he  stipulates  for  is  that  he  will  be  ready  and  willing  to  receive 
the  goods,  and  pay  for  them,  at  the  time  when  by  the  contract  he  ought  to 
do  so.  His  contract  was  not  broken  by  his  previous  declaration  that  he  would 
not  accept  them;  it  was  a  mere  nullity,  and  it  was  perfectly  in  his  power 
to  accept  them,  nevertheless;  and,  vice  versa,  the  plaintiffs  could  not  sue 
him  before." 

In  Ripley  v.  M'Clure,  4  Ex.  345  ( 1849 ) ,  Parke  reiterated  his  statement  that 
a  notice  before  the  time  for  performance  could  not  be  a  breach  of  contract, 
but  held  that  it  might  excuse  the  other  party  from  continuing  to  perform. 

1  Lovelock  v.  Franklyn,  8  Q.  B.  371,  378  (1846)  :  "This  distinction  shows 
that  the  passage  cited  from  Lord  Coke  is  inapplicable;  that  proves  no  more 
on  the  point  now  before  us  than  that,  if  an  act  is  to  be  performed  at  a  future 
time  specified,  the  contract  is  not  broken  by  something  which  may  merely 
prevent  the  performance  in  the  meantime."  As  Lord  Denman  had  immedi- 
ately before  taken  part  in  the  decision  of  Short  r.  Stone,  8  Q.  B.  356,  it  may  be 
assumed  he  did  not  regard  that  decision  as  inconsistent  with  his  later  remarks. 

In  Thomson  v.  Miles,  1  Esp.  184,  Lord  Kenyon  had  said  that  it  had  been 
solemnly  adjudged  that  if  a,  party  sells  an  estate  without  having  title,  but 
before  he  is  called  upon  to  make  a  conveyance,  by  »  private  act  of  Parlia- 
ment, gets  such  an  estate  as  will  enable  him  to  make  a  title,  that  is  sufficient." 

See  also  Alexander  v.  Gardner,  1  Bing.  N".  C.  671,  677,  per  Tindal,  C.  J. 

8  2  E.  &  B.  678. 


360  DUTIES    UNDER    CONTRACT. 

had  entered  into  a  contract  with  the  defendant  to  serve  him  as  a 
courier  for  three  months  beginning  June  1,  1852.  On  May  11,  the 
defendant  wrote  to  the  plaintiff  declining  his  services.  The  action 
was  begun  May  22,  and,  after  a  verdict  for  the  plaintiff,  objection 
was  taken  that  the  action  was  prematurely  brought.  Counsel  for  the 
defendant,  however,  argued — unnecessarily  so  far  as  the  immediate 
case  was  concerned  —  that  the  plaintiff,  having  taken  other  employ- 
ment, had  terminated  the  contract.  Lord  Campbell,  in  delivering  the 
opinion  of  the  court  in  favor  of  the  plaintiff,  showed  that  the  situa- 
tion would  be  unfortunate  if  the  plaintiff,  as  a  condition  of  getting 
a  right  of  action,  must  decline  other  employment  and  hold  himself 
ready  to  perform  until  June  1.  From  this,  apparently  misled  by  the 
argument  of  counsel,  Lord  Campbell  drew  the  conclusion  that  the 
plaintiff  must  have  an  immediate  right  of  action;  and  also  drew  the 
conclusion  from  the  earlier  cases  already  referred  to9  that  incapacity 
before  the  time  for  performance  had  already  been  settled  by  decision 
to  be  a  breach,  neglecting  to  notice  the  distinction,  hereafter  adverted 
to,  between  a  fixed  future  day  and  a  day  which  may  be  fixed  at  any 
time  in  the  present  or  future. 

Modern  law.  These  two  misapprehensions  of  Lord  Campbell,  for  as 
such  they  must  be  regarded,  make  the  case  an  unsatisfactory  one. 
It  has,  however,  settled  the  law  in  England,10  and  the  doctrine  for 
which  it  stands  has  been  adopted  in  Canada,11  in  this  country  either 
by  dictum  or  decision,  in  the  Federal  courts12  and  in  the  courts  of  a 

9  He  adds  the  case  of  Bowdell  v.  Parsons,  10  East,  359,  as  establishing  the 
proposition  that  "  if  a  man  contracts  to  sell  and  deliver  specific  goods  on  a 
future  day,  and  before  the  day  he  sells  and  delivers  them  to  another,  he 
is  immediately  liable  to  an  action  at  the  suit  of  the  person  with  whom 
he  first  contracted  to  sell  and  deliver  them."  In  fact,  the  contract  in 
that  case  was  to  deliver  upon  request. 

10  Frost  v.  Knight,  L.  R.  7  Ex.  Ill;  Johnstone*.  Milling,  16  Q.  B.  D.  460; 
Synge  r.  Synge  (C.  A.),  [1894]  1  Q.  B.  466;  Roth  r.  Taysen,  73  L.  T.  628. 
See  also  Danube,  etc.,  Co.  v.  Xenos,  13  C.  B.  (n.  s.)  825;  Avery  v.  Bowden, 
5  E.  &  B.  714;  Reid  r.  Hoskins,  6  E.  &  B.  953;  Roper  t.  Johnson,  L.  R.  8  C.  P. 
167;  Brown  v.  Muller,  L.  R.  7  Ex.  319;  Re  South  African  Trust  Co.,  74 
L.  T.  769. 

HDalrvmple  r.  Scott,  19  Ont.  App.  477,  483;  Ontario  Lantern  Co.  t\  Hamil- 
ton  Mfg.  Co.,  27  Ont.  346. 

l2Roehm  v.  Horst,  178  U.  S.  1,  affirming  91  Fed.  Rep.  345  (C.  C.  A.),  which 
affirmed  84  Fed.  Rep.  565:  Grau  v.  McVicker.  8  Biss.  13;  Dingley  r.  Oler,  11 
Fed.  Rep.  372;  Foss,  &c.  Co.  v.  Bullock,  59  Fed.  Rep.  83,  87;  Marks  v.  Van 
Eoghen,  85  Fed.  Rep.  853  (C.  C.  A.).  The  Supreme  Court  long  remained  ap- 
parently undecided.  Cleveland  Rolling  Mill  r.  Rhodes.  121  U.  S.  255,  264; 
Pierce  r.  Tennessee,  &c  R.  R.  Co.,  173  U.  S.  1,  12.  See  also  Edward  Hines 
Lumber  Co.  v.  Alley,  73  Fed.  Rep.  603  (C.  C.  A.). 

Clark  v.  National  Benefit  Co.,  67  Fed.  Rep.  222,  must  now  be  regarded  as 
overruled. 


DEFENCE    AND    EIGHT    OF   ACTION.  361 

majority  of  the  States  in  which  the  question  has  arisen.13  There 
are  strong  opinions  to  the  contrary,14  however,  and  in  many  States 
the  question  is  still  undecided,15  so  that  the  final  outcome  in  America 
is  not  yet  certain. 

Distinction  between  defence  and  right  of  action.  The  reasoning  in 
Hochster  v.  De  la  Tour,16  already  adverted  to,  illustrates  the  im- 
portance of  a  distinction,  which  should  be  observed  —  the  distinction 
between  a  defence  and  a  right  of  action.  This  seems  obvious,  but  it 
is  frequently  lost  sight  of,  as  it  was  in  that  case.  Every  consideration 
of  justice  requires  that  repudiation  or  inability  to  perform  should 
immediately  excuse  the  innocent  party  from  performing,  nor  is  any 
technical  rule  violated  if  the  excuse  is  allowed.  But  it  does  not  fol- 
low from  this  that  he  has  an  immediate  right  of  action.  It  is  a  con- 
sequence of  allowing  such  an  excuse  that  when  he  brings  an  action 

13  Wolf  r.  Marsh,  54  Cal.  228;  Fresno,  &c.  Co.  v.  Dunbar,  80  Cal.  530; 
Poirier  c.  Gravel,  88  Cal.  79 ;  Remy  v.  Olds,  88  Cal.  537 ;  Garberino  v.  Roberts, 
109  Cal.  125,  128;  Thomson  v.  Kyle,  39  Fla.  582;  Fox  e.  Kitton,  19  111.  519; 
Follansbee  v.  Adams,  86  111.  13;  Kadish  r.  Young,  108  111.  170;  Engesette 
r.  McGilvray,  63  111.  App.  461;  Kurtz  v.  Frank,  76  Ind.  594;  Adams  v.  Byerly, 
123  Ind.  368,  371;  Crabtree  v.  Messersmith,  19  Iowa,  179;  Holloway  v.  Griffith, 
32  Iowa,  409;  McCormiok  r.  Basal,  46  Iowa,  235;  Piatt  i>.  Brand,  26  Mieh. 
173;  Sheahan  v.  Barrv,  27  Mich.  217;  Kalkhoff  v.  Nelson,  60  Minn.  284,  287; 
Bignall,  &c.  Mfg.  Co.  v.  Pierce,  &c.  Mfg.  Co.,  59  Mo.  App.  673 ;  Claes,  &c.  Mfg. 
Co.  v.  McCord,  65  Mo.  App.  507;  Vickers  r.  Electrozone  Co.,  67  N.  J.  L.  665; 
O'Neill  v.  Supreme  Council,  70  N.  J.  L.  410;  Burtis  r.  Thompson,  42  N.  Y.  246; 
Howard  v.  Daly,  61  N.  Y.  362;  Ferris  v.  Spooner,  102  N.  Y.  10;  Matthews  v. 
Matthews,  62  Hun,  110;  Nichols  v.  Scranton,  &c.  Co.,  137  N.  Y.  471;  Stokes 
v,  McKay,  147  N.  Y.  223;  Union  Ins.  Co.  v.  Central  Trust  Co.,  157  N.  Y.  633, 
643  (cp.  Shaw  v.  Republic  L.  I.  Co.,  69  N.  Y.  286,  293;  Benecke-  v.  Haebler, 
38  N.  Y.  App.  Div.  344;  Hicks  v.  British  Am.  Assur.  Co.,  162  N.  Y.  284;  Lan- 
gan  v.  Supreme  Council,  174  N.  Y.  266)  ;  Schmitt  v.  Schnell,  14  Ohio  C.  C. 
153;  Diem  v.  Koblitz,  49  Ohio  St.  41;  Stark  r.  Duvall,  7  Oklahoma, 
213;  Zuck  v.  McClure,  98  Pa.  541;  Hocking  v.  Hamilton,  158  Pa.  107;  Mount- 
joy  i\  Metzger,  9  Phila.  10;  Ault  v.  Dustin,  100  Tenn.  366;  Brown  v.  Odill, 
104  Tenn.  250;  Burke  r.  Shaver,  92  Va.  345;  Lee  r.  Mutual,  &c.  Assoc,  97 
Va.  160;  Mutual  Assoc,  v.  Taylor,  99  Va.  208;  Davis  v.  Grand  Rapids,  &c.  Co., 
41  W.  Va.  717;  Chapman  v.  Beltz  Co.,  48  W.  Va.  I.  See  also  Wells  v.  Hart- 
ford Co.,  76  Conn.  27;  Trammell  v.  Vaughan,  158  Mo.  214;  Vandegrift  r. 
Cowles  Engineering  Co.,  161  N.  Y.  435. 

l*Pittman  I?.  Pittman  (Ky.),  61  S.  W.  Rep.  461;  South  Gardner  Lumber 
Co.  v.  Bradstreet,  97  Me.  165;  Martin  v.  Meles,  179  Mass.  114;  Porter  c. 
American  Legion,  183  Mass.  326;  Carstens  v.  McDonald,  38  Neb.  858;  King  r. 
Waterman,  55  Neb.  324;  Parker  r.  Pettit,  43  N.  J.  L.  512,  517  (overruled)  ; 
Stanford  r.  Megill,  6  N.  Dak.  536;  Markowitz  v.  Greenwall  Co.  (Tex.  Civ. 
App.),  75  S.  W.  Rep.  74,  317.     See  also  Perkins  v.  Frazer,  107  La.  390. 

15  The  question  is  referred  to  but  expressly  left  open  in  Day  v.  Connecticut, 
etc.,  Co.,  45  Conn.  480,  495  (but  see  Wells  v.  Hartford  Co.,  76  Conn.  27) 
Sullivan  r.  McMillan,  26  Fla.  543  (but  see  Thomson  v.  Kyle,  39  Fla.  582) 
Maltby  V.  Eisenhauer,  17  Kan.  308,  311;  Dugan  v.  Anderson,  36  Md.  567. 
Pinckney  v.  Dambmann,  72  Md.  173,  182  (but  see  Lewis  v.  Tapman  90 
Md.  294') . 

16  2  E.  &  B.  678. 


362  DUTIES    UNDER    CONTRACT. 

he  shall  not  be  defeated  by  reason  of  the  fact  that  he  himself  has  not 
performed,  since  that  failure  to  perform  was  excused  by  the  defend- 
ant's fault.17  But  though  the  defendant  cannot  defeat  the  action  on 
this  ground,  any  other  defence  is  as  effectual  as  ever,  and  that  the 
action  is  prematurely  brought  is  an  entirely  different  defence. 

Distinction  between  action  for  restitution  and  action  on  the  contract.  An- 
other important  and  frequently  neglected  distinction  is  that  between 
an  action  for  restitution  and  an  action  on  the  contract.  Since  re- 
pudiation affords  immediate  cause  for  rescission  it  also  entitles  the 
party  aggrieved  to  bring  an  immediate  suit  for  the  restitution  spe- 
cifically or  in  money  equivalent  of  whatever  he  has  parted  with.18 
Cases  allowing  this  do  not  involve  the  consequence  that  an  action 
might  be  brought  at  that  time  on  the  contract. 

No   inconsistency   in   allowing   full   damages   before   all   performance   due. 

Again,  it  is  often  thought  that  to  allow  a  plaintiff  to  sue  and  recover 
full  damages  before  the  time  for  the  completion  of  all  the  defendant's 
performance  is  to  allow  the  doctrine  of  anticipatory  breach,19  yet  this 
is  not  the  case.  As  soon  as  a  party  to  a  contract  breaks  any  promise 
he  has  made,  he  is  liable  to  an  action.  In  such  an  action  the  plaintiff 
will  recover  whatever  damages  the  breach  has  caused.  If  the  breach 
is  a  trifling  one  such  damages  cannot  well  be  more  than  the  direct 
injury  caused  by  that  trifling  breach.  But  if  the  breach  is  serious 
or  is  accompanied  by  repudiation  of  the  whole  contract,  it  may  and 
frequently  will  involve  as  a  consequence  that  all  the  rest  of  the  con- 
tract will  not  be  carried  out.  This  may  be  a  necessary  consequence  of 
the  situation  of  affairs  or  it  may  result  simply  from  the  plaintiff's 
right  to  decline  to  let  the  defendant  continue  performance,  since  even 
if  all  the  remaining  performance  were  properly  rendered,  the  plain- 
tiff would  not  get  substantially  what  he  bargained  for.  The  plaintiff 
is  entitled  to  damages  which  will  compensate  him  for  all  the  conse- 
quences which  naturally  follow  the  breach,  and  therefore  to  damages 
for  the  loss  of  the  entire  contract.     This  is  no  different  principle 

IT  Thus  where  an  owner  of  a  building  refused  to  allow  a  contractor  to  go  on 
with  work  upon  it  a  condition  of  the  contract  requiring  the  contractor  to 
produce  a  certificate  of  an  engineer  showing  full  performance  cannot  be  set 
up  by  the  owner  in  answer  to  an  action  by  the  contractor.  Smith  r.  Wetmore, 
167  N.  Y.  234. 

18  Supra,  p.  339. 

19  Nichols  i\  Scranton,  etc.,  Co..  137  N.  Y.  471;  Union  Tns.  Co.  v.  Central 
Trust  Co.,  157  N.  Y.  633 ;  Hocking  v.  Hamilton,  158  Pa.  107,  illustrate  this. 
These  cases  are  unquestionably  right.  They  do  not  involve  the  question  of 
anticipatory  breach,  though  in  each  of  them  the  court  seems  to  have 
thought  so. 


SUBSIDIARY    PROMISES.  363 

from  allowing  a  plaintiff  in  an  action  of  tort  for  personal  injuries  to 
recover  the  damages  he  will  probably  suffer  in  the  future.  If  the 
cause  of  action  has  accrued,  the  fact  that  the  damages  or  all  of  them 
have  not  yet  been  suffered  is  no  bar  in  any  form  of  action  to  the  re- 
covery of  damages  estimated  on  the  basis  of  full  compensation.  This 
is  law  where  the  doctrine  of  Hochster  v.  De  la  Tour  is  denied,  as 
well  as  where  it  is  admitted.20 

Action  may  be  based  on  breach  of  subsidiary  promise.  Under  this  prin- 
ciple a  right  of  action  may  accrue  by  breach  of  a  subsidiary  promise, 
long  before  the  defendant's  main  performance  is  due,  and  the  sub- 
sidiary promise  may  be  an  implied  one.  In  any  case  where  the  plain- 
tiff's performance  requires  the  cooperation  of  the  defendant,  as  in  a 
contract  to  serve  or  to  make  something  from  the  defendant's  materials 
or  on  his  land,  the  defendant,  by  necessary  implication,  promises  to 
give  this  cooperation,  and  if  he  fails  to  do  so  he  is  immediately  liable 
though  his  only  express  promise  is  to  pay  money  at  a  future  day.21 
So  in  a  contract  of  life  insurance  a  promise  on  the  part  of  the  com- 
pany to  accept  the  premiums  is  clearly  implied  in  fact  and  a  refusal 
to  receive  premiums  is  an  immediate  breach  of  contract.22  It  may 
indeed  possibly  be  argued  that  there  is  in  every  bilateral  contract  an 
implied  promise  not  to  prevent  performance  by  the  other  party.23  Such 
prevention  would  in  that  case  be  an  immediate  breach  of  contract,  and 

20  Pierce  v.  Tennessee,  &e.  Co.,  173  U.  S.  1;  Re  Manhattan  Ice  Co.,  114 
Fed.  Rep.  399;  Northrop  v.  Mercantile  Trust  Co.,  119  Fed.  Rep.  969; 
Strauss  v.  Meertief,  64  Ala.  299;  Howard  Coi.  v.  Turner,  71  Ala.  429; 
JEtna  Life  Ins.  Co.  v.  ■  Nexsen,  84  lnd.  347;  Goldman  v.  Goldman,  51 
La.  Ann.  761;  Sutherland  v.  Wyer,  67  Me.  64;  Speirs  v.  Union  Drop-Forge 
Co.,  180  Mass.  87;  Cutter  v.  Gillette,  163  Mass.  95;  Girard  v.  Taggart,  5 
S.  &  R.  19;  King  v.  Steiren,  44  Pa.  99;  Chamberlin  v.  Morgan,  68  Pa.  168; 
Remelee  v.  Hall,  31  Vt.  582;  Treat  v.  Hiles,  81  Wis.  280.  See  also  Mayne 
on  Damages   (6th  ed.),  106  et  seq.;  Sutherland  on  Damages,  §§  108,  112,  113. 

The  contrary  decisions  of  Lichtenstein  v.  Brooks,  75  Tex.  196,  198 :  Gordon 
v.  Brewster,  7  Wis.  355  (cp.  Treat  v.  Hiles,  81  Wis.  280;  Walsh  v.  Myers, 
92  Wis.  397),  are  not  to  be  supported.  See  also  Salyers  v.  Smith,  67 
Ark.  526. 

silnchbald  v.  Western,  etc.,  Co.,  17  C.  B.   (N.  S.)   833. 

Ford  v.  Tiley,  6  B.  &  C.  325,  was  clearly  correctly  decided  under  this 
principle.  The  defendant  promised  to  make  a  lease  to  the  plaintiff  as  soon 
as  he  should  become  possessed  of  the  property,  which  was  then  under  lease 
to  a  third  party.  The  defendant  before  the  expiration  of  the  prior  lease 
executed  another  to  the  same  lessee,  thereby  preventing  possession  reverting 
to  him  at  the  expiration  of  the  previous  lease. 

22  O'Neill  p.  Supreme  Council,  70  N.  J.  L.  410;  Fischer  v.  Hope  Ins.  Co., 
69  N.  Y.  161.  The  contrary  decisions  of  Porter  v.  American  Legion,  183 
Mass.  326,  and  Langan  r.  Supreme  Council,  174  N.  Y.  266,  must  be  deemed 
erroneous. 

23  Bishop,  Contracts,  §  1431;  Indian  Contract  Act,  §  53;  United  States  v 
Peck,  102  -U.  S.  64.     But  see  Murdock  r.  Caldwell,  10  Allen,  299. 


364  DUTIES    UNDER    CONTRACT. 

if  of  sufficiently  serious  character  damages  for  the  loss  of  the  entire 
contract  may  be  recovered.  As  countermanding  work  may  have  the 
legal  effect  of  prevention  in  this  country,24  though  it  does  not  involve 
actual  physical  prevention,  it  would  be  a  breach  of  contract  on  this 
theory  at  the  time  when  a  stoppage  in  the  performance  of  the  contract 
had  been  caused  thereby.25 

Time  of  performance  fixed  by  act  of  the  other  party.  The  time  for  the 
defendant's  performance  is  frequently  fixed  in  a  contract,  not  by  nam- 
ing a  definite  day,  but  by  some  act  to  be  done  by  the  plaintiff  — 
either  a  counter-performance  or  a  request.  If  the  defendant  repu- 
diates the  contract,  it  excuses  the  plaintiff  from  doing  a  nugatory  act, 
and,  as  in  the  case  of  any  other  condition  which  the  defendant's  con- 
duct excuses,  he  cannot  take  advantage  of  its  non-performance.26  He 
is  deprived  of  nothing  thereby,  except  what  he  has  indicated  a  willing- 
ness to  go  without,  for  he  has  said  that  even  if  the  request  be  made  he 
will  not  heed  it,  or  if  the  counter- performance  be  offered  he  will  not 
accept  it.  The  case  is  very  different  where  the  defendant  promises  to 
pay  on  a  fixed  day,  or  when  an  outside  event  happens.  To  hold  him 
immediately  liable  in  such  an  event  is  to  enlarge  the  scope  of  his 
promise,  and  entirely  without  his  assent.  If  he  prevented  the  time  for 
his  performance  from  coming,  his  assent  might  be  dispensed  with, 
but  not  otherwise.27  The  English  cases  prior  to  Hochster  v.  De  la 

24  See  ante,  p.  349.  See  also  Cort  v.  Ambergate,  etc.,  Ry.  Co.,  17  Q.  B. 
127,   145. 

25  Hosmer  v.  Wilson,  7  Mich.  294;  Chapman  v.  Kansas  City,  etc.,  Ry.  Co., 
146  Mo.  481. 

26  The  leading  case  for  this  well-settled  doctrine  is  Cort  v.  Ambergate,  etc., 
Rv.  Co.,  17  Q.  B.  127.  A  few  of  the  many  other  cases  which  might  be 
cited  are:  Hinckley  i:  Pittsburg  Steel  Co.,  121  U.  S.  264;  Dwyer  r.  Tulane, 
etc.,  Adm's,  47  La.  Ann.  1232;  Murray  v.  Mayo,  157  Mass.  248;  Canda  v. 
Wick,  100  N.  Y.  127.     See  supra,  p.  353,  n.  79. 

The  distinction  here  contended  for  is  well  brought  out  in  Lowe  v.  Harwood, 
139  Mass.  133.  In  that  case  there  was  a  contract  for  an  exchange  of  real 
estate.  No  time  was  fixed  for  performance.  Before  any  tender  or  demand 
for  performance  the  defendant  repudiated  the  contract.  Holmes,  J.,  in 
delivering  the  opinion  of  the  court,  held  that  this  "  not  only  excused  the 
plaintiff  from  making  any  tender  and  authorized  him  to  rescind  if  he  chose, 
but  amounted  to  a  breach  of  the  contract.  The  contract  was  for  immediate 
exchange,  allowing  a  reasonable  time  for  necessary  preparations.  In  the 
absence  of  special  circumstances,  which  do  not  appear,  sufficient  time  had 
been  allowed,  even  if  any  consideration  of  that  sort  could  not  be  and  was 
not  waived  by  the  defendant.  The  case  is  not  affected  by  Daniels  v.  Newton, 
114  Mass.  530,  but  falls  within  principles  that  have  been  often  recognized." 

27  In  Ford  r.  Tiley,  6  B.  &  C.  325,  the  time  for  performance  was  to  be  fixed 
by  the  defendant's  coming  into  possession  of  certain  property — an  event 
depending  on  outside  contingencies,  which  the  defendant  prevented  from 
happening  as  expected.  In  the  nature  of  the  ease,  however,  a  party  cannot 
prevent  a  day  fixed  by  reference  to  the  calendar  from  arriving. 


CONTRACTS    TO    MARRY.  365 

Tour,28  which  are  cited  in  support  of  the  doctrine  of  anticipatory 
breach,29  may  be  satisfactorily  explained  on  these  principles  with 
possibly  one  exception.30 

Contracts  to  marry.  A  great  many  of  the  cases  are  upon  contracts 
to  marry;31  and  these  cases  may  well  be  distinguished.  Lord  Cock- 
burn  said  in  Frost  v.  Knight:  "On  such  a  contract  being  entered 
into  ...  a  new  status,  that  of  betrothment,  at  once  arises  between 
the  parties."  32  When  a  man  promises  to  pay  money  or  deliver  goods 
at  a  future  day,  all  he  understands,  all  a  reasonable  man  would  under- 
stand, is  that  he  will  be  ready  to  perform  on  the  day.  When  a  man 
promises  to  marry,  his  obligation,  as  he  understands  it  and  as  it  is 
understood,  is  wider,  and  includes  some  undertaking  as  to  his  conduct 
before  the  marriage-day.  If  this  be  so,  marriage  with  another  than 
the  betrothed  is  an  immediate  breach,  not  directly  of  the  promise  to 
marry,  but  of  the  subsidiary  obligation  implied  from  it.  As  this 
breach  necessarily  involves  a  loss  of  the  marriage;  full  damages  could  be 
recovered.  Lord  Cockburn  tries  to  apply  the  same  line  of  reasoning  to 
other  contracts,  saying,  "  The  promisee  has  an  inchoate  right  to  the 
performance  of  the  bargain,  which  becomes  complete  when  the  time 
for  performance  has  arrived.  In  the  meantime  he  has  a  right  to  have 
the  contract  kept  open  as  a  subsisting  and  effective  contract.  Its 
unimpaired  and  unimpeached  efficacy  may  be  essential  to  his  inter- 

28  2  E.  &  B.  678. 

MBowdell  v.  Parsons,  10  East,  359;  Ford  i:  Tiley,  6  B.  &  C.  325;  Caines 
v.  Smith,  15  M.  &.  W.  189.  In  Bowdell  v.  Parsons  and  Caines  v.  Smith  the 
defendant  promised  to  perform  upon  request,  and  later  by  making  his  own 
performance  impossible  excused  the  request.  As  to  Ford  t'.  Tiley,  see  ante. 
So  in  Clements  v.  Moore,  11  Ala.  35 — a  decision  before  the  days  when 
anticipatory  breaches  were  talked  of — the  defendant  was  held  liable  for 
breach  of  a  promise  to  marry  on  request  without  a  request  on  his  marriage 
with  another  than  the  plaintiff. 

so  Short  v.  Stone,  8  Q.  B.  358.  Here  the  promise  was  to  perform  a 
reasonable  time,  after  request.  The  defendant,  by  making  his  own  perform- 
ance impossible,  clearly  dispensed  with  the  necessity  of  a  request  as  such. 
It  does  not  seem  so  clear  why  he  should  forego  the  "  reasonable  time." 
Coleridge,  J.,  avoided  the  difficulty  by  a  strained  construction  of  the  declara- 
tion, holding  the  promise  to  mean  after  request  made  within  a  reasonable 
time.  The  other  members  of  the  court  simply  say  the  request  is  dispensed 
with. 

31  Frost  v.  Knight,  L.  B.  7  Ex.  Ill;  Kurtz  v.  Frank,  76  Ind.  594;  Adams 
r.  Byerly,  123  Ind.  368;  Holloway  v.  Griffith,  32  la.  409;  Lewis  v.  Tapman, 
90  Md.  294;  Sheahan  v.  Barry,  27  Mich.  217;  Trammel!  r.  Vaughan,  158 
Mo.  214;  Burtis  V.  Thompson,  42  N.  Y.  246;  Brown  v.  Odill,  104  Tenn.  250; 
Burke  v.  Shaver,  92  Va.  345.  The  distinction  here  suggested  was  referred  to 
in  Stanford  v.  Mcgill,  6  N.  Dak.  536;  and  in  Lewis  v.  Tapman,  90  Md.  294, 
308.  the  court  said :  "  There  is  no  occasion  to  adopt  and  we  do  not  adopt 
Hochster  v.  De  la  Tour  further  than  it  applies  under  Knight  v.  Frost  to  an 
action  for  breach  of  promise  to  marry." 

32 L.  R.  7  Ex.  Ill,  115, 


36G  DUTIES    UNDER    CONTRACT. 

ests."  33  But  this  is  fanciful.  If  true  the  action  should  be  brought 
for  breach  of  a  promise  to  have  the  contract  kept  open.  If  there  is 
such  an  implied  obligation  in  any  case  there  should  be  in  case  of 
negotiable  paper,  for  in  no  other  case  is  it  more  important  that  the 
promise  should  not  be  discredited  before  the  time  for  performance. 
Yet  it  may  be  doubted  if  any  court  would  apply  the  doctrine  to  bills 
and  notes.34 

Practical  convenience.  The  reason  most  strongly  urged  in  support  of 
the  doctrine  of  anticipatory  breach  is,  however,  its  practical  con- 
venience. It  is  said  that  if  it  is  certain  that  the  plaintiff  is  going  to 
have  an  action,  it  is  better  for  both  parties  to  have  it  disposed  of  at 
once.  It  may  be  conceded  that  practical  convenience  is  of  more  im- 
portance than  logical  exactness,  but  yet  the  considerations  of  practical 
convenience  must  be  very  weighty  to  justify  infringing  the  underlying 
principles  of  the  law  of  contracts.  The  law  is  not  important  solely 
or  even  chiefly  for  the  just  disposal  of  the  litigated  cases  immediately 
before  the  court.  The  settlement  of  the  rights  of  a  community  with- 
out recourse  to  the  courts  can  only  be  satisfactorily  arranged  when 
logic  is  respected.  But  it  is  not  logic  only  which  is  injured.  The  de- 
fendant is  injured.  He  is  held  liable  on  a  promise  he  never  made.  He 
has  only  promised  to  do  something  at  a  future  day.  He  is  held  to  have 
broken  his  contract  by  doing  something  before  that  day.  Enlarging  the 
obligation  of  contracts  is  perhaps  as  bad  as  impairing  it.  This  may  be 
of  great  importance.  Suppose  the  defendant,  after  saying  that  he  will 
not  perform,  changes  his  mind  and  concludes  to  keep  his  promise.  Un- 
less the  plaintiff  relying  on  the  repudiation,  as  he  justly  may,  has  so 
changed  his  position  that  he  cannot  go  on  with  the  contract  without 
injury,  the  defendant  ought  surely  to  be  allowed  to  do  this.33  But  if 
the  plaintiff  is  allowed  to  bring  an  action  at  once  this  possibility  is 

33  L.  E.  7  Ex.  112,  114. 

34  Benecke  v.  Haebler,  38  N.  Y.  App.  Div.  344;  affirmed  without  opinion 
in  166  N.  Y.  631.  See  also  Honour  v.  Equitable  Soc,  [1900]  1  Ch.  852; 
Greenway  c.  Gaither,  Taney,  227;  Flinn  c.  Mowry,  131  Cal.  481. 

In  Roehin  v.  Horat,  178  U.  S.  1,  7,  Chief  Justice  Fuller  distinguishes  the 
case  of  a  note  on  the  ground  that  the  doctrine  of  anticipatory  breach  only 
applies  to  contracts  where  there  are  mutual  obligations.  This  has  not 
before  been  suggested,  though  in  fact  the  cases  where  the  doctrine  has  been 
applied  have  been  cases  of  bilateral  contracts.  Lord  Cockburn's  line  of 
reasoning  is  certainly  as  applicable  to  unilateral  as  to  bilateral  contracts. 
It  would  be  interesting  to  know  what  Chief  Justice  Fuller  would  say  to  the 
rase  of  n  promissory  note  given  in  exchange  for  an  executory  promise,  or 
of  an  instrument  containing  mutual  covenants,  one  of  which  was  to  pay 
money  on  a  fixed  day,  the  party  bound  to  the  money  payment  having 
repudiated  his  obligation  before  it  was  due. 

35Nilson  v.  Morse,  52  Wis.  240. 


ILLUSTRATIONS.  367 

cut  off.  "  Why,"  says  Puller,  C.  J.,  "  should  a  locus  poenitentiae  be 
awarded  to  the  party  whose  wrongful  action  has  placed  the  other  at 
such  disadvantage  ?"  3a  Because  such  is  the  contract  the  parties  made. 
A  promise  to  perform  in  June  does  not  preclude  changing  position 
in  May.37 

Illustrations  of  inconvenience.  Not  only,  moreover,  do  logic  and  the 
defendant  suffer,  but  the  very  practical  convenience  which  is  the 
excuse  for  their  suffering  is  not  attained.  A  few  illustrations  from 
recent  cases  will  show  that  as  at  present  applied  the  doctrine  of  an- 
ticipatory breach  is  so  full  of  pitfalls  for  the  unwary  as  to  be  objec- 
tionable rather  than  advantageous  practically.  In  the  last  English 
case  where  the  doctrine  was  much  considered,  it  is  thus  stated :  "  It 
would  seem  on  principle  that  the  declaration  of  such  intention  [not 
to  carry  out  the  contract]  is  not  in  itself  and  unless  acted  on  by  the 
promisee  a  breach  of  contract.  .  .  .  Such  declaration  only  becomes  a 
wrongful  act  if  the  promisee  elects  to  treat  it  as  such.  If  he  does 
so  elect,  it  becomes  a  breach  of  contract,  and  he  can  recover  upon 
it  as  such."38  The  conception  that  a  breach  of  contract  is  caused 
by  something  which  the  promisee  does  is  so  foreign  to  the  notions 
not  only  of  lawyers  but  of  business  men  that  it  cannot  fail  to  make 
trouble.  If  the  promisee,  after  receiving  the  repudiation,  demands 
or  manifests  a  willingness  to  receive  performance,  his  rights  are  lost. 
Not  only  can  he  not  thereafter  bring  an  action  on  the  repudiation,39 


3«  Roehm  v.  Horst,  178  U.  S.  1,  19. 

37  The  California  Civil  Code,  §  1440,  provides:  "If  a  party  to  an  obliga- 
tion gives  notice  to  another,  before  the  latter  is  in  default,  that  he  will  not 
perform  the  same  upon  his  part,  and  does  not  retract  such  notice  before  the 
time  at  which  performance  upon  his  part  is  due,  such  other  party  is  entitled 
to  enforce  the  obligation  without  previously  performing  or  offering  to  per- 
form any  conditions  upon  his  part  in  favor  of  the  former  party." 

Thi3  necessarily  implies  that  if  the  notice  is  retracted  the  obligation 
cannot  be  enforced  without  an  offer  to  perform.  Yet  in  California  the 
doctrine  of  anticipatory  breach,  which  in  effect  denies  the  right  of  retraction, 
is  followed,  and  no  reference  is  made  to  this  section  of  the  Code.  The 
California  cases  are  cited  ante,  p.  361,  n.  13. 

The  same  provision  is  contained  in  the  Montana  Civil  Code,  §  1956. 

The  North  Dakota  Civil  Code  also  has  copied  in  §  3774  this  provision  of 
the  California  Code,  but  the  Supreme  Court  of  North  Dakota  has  denied  the 
doctrine  of  anticipatory  breach.     Stanford  v.  Mcgill,  6  N.  Dak.  536. 

38  Johnstone  v.  Milling,  16  Q.  B.  D.  460,  472,  per  Lord  Bowen.  The  late 
authorities  continually  refer  to  the  necessity  of  the  promisee  acting  on  the 
repudiation.  What  action  is  necessary  is  not  stated.  It  is  to  be  noticed, 
however,  that  in  Hochster  r.  De  La  four,  2  E.  &  B.  678;  Frost  v.  Knight, 
L.  R.  7  Ex.  Ill,  and  most  of  the  other  cases,  there  was  no  manifestation 
of  election  other  than  bringing  an  action.  This  was  held  enough  in  Mutual 
Assoc,  v.  Tavlor.  99  Va.  208. 

39  Zuck  v.  McClure.  98  Pa.  541 ;  Dalrvmple  v.  Scott,  19  Ont.  App.  477. 


308  DUTIES    UNDER   CONTRACT. 

but  "  he  keeps  the  contract  alive  for  the  benefit  of  the  other .  as  well 
as  his  own;  he  remains  subject  to  all  his  own  obligations  and  liabili- 
ties under  it,  and  enables  the  other  party  not  only  to  complete  the 
contract,  if  so  advised,  notwithstanding  his  previous  repudiation  of 
it,  but  also  to  take  advantage  of  any  supervening  circumstance  which 
would  justify  him  in  declining  to  complete  it."  40  This  is  a  severe 
penalty  imposed  upon  the  injured  party  for  not  seizing  the  right 
moment.  When  A.  repudiates  his  promise,  what  is  more  natural  or 
reasonable  than  for  B.  to  write  urging  him  to  perform.  Yet  if  B.  does 
so,  it  seems  not  only  does  he  lose  his  right  of  immediate  action,  but  he 
is  bound  to  perform  his  own  promise,  though  he  has  reason  to  expect 
A.  will  not  perform  his.41 

Johnstone  v.  Milling.  In  Johnstone  v.  Milling*2  the  promisor  stated 
that  he  could  not  get  money  enough  to  perform  his  promise.  He 
made  this  statement  "constantly  in  answer  to  the  defendant's  direct 
question,  and  at  other  times  in  conversation."  It  was  held  that  this 
was  not  such  a  repudiation  as  would  justify  an  action.  Lord  Esher, 
M.  R.,  made  the  test,  "  Did  he  mean  to  say  that  whatever  happened, 
whether  he  came  into  money  or  not,  his  intention  was  not  to  rebuild 
the  premises,"  43  as  he  had  promised,  and  the  other  judges  expressed 
similar  views.  A  distinction  between  inability  and  wilful  intention 
not  to  perform  is  not  of  practical  value.  As  far  as  the  performance 
of  the  contract  is  concerned  they  are  of  equal  effect,  and  should  be 
followed  by  the  same  consequences. 

Dingley  v.  Oler.  In  Dinghy  v.  Oler**  the  defendant  had  taken  a  cargo 
of  ice  from  the  plaintiff  and  agreed  to  make  return  in  kind  the  next 
season,  which  closed  in  September,  1880.  In  July,  1880,  the  defend- 
ant wrote,  "  We  must,  therefore,  decline  to  ship  the  ice  for  you  this 
season,  and  claim  as  our  right  to  pay  you  for  the  ice  in  cash,  at  the 

40 Frost  v.  Knight,  L.  R.  7  Ex.  Ill,  112.  Quoted  as  stating  the  law  in 
Leake,  Contracts   (4th  ed. ),  618. 

41  In  accordance  with  this  rule  in  Dalrymple  v.  Scott,  19  Ont.  App.  477, 
the  plaintift'  lost  his  case.  The  defendant  had  repudiated  the  contract. 
The  plaintiff  did  not  manifest  an  election  to  treat  that  as  an  immediate 
breach,  but  on  the  contrary  testified  that  he  would  have  been  willing  to 
have  accepted  performance  after  the  repudiation.  When  the  time  foT 
performance  had  passed  he  brought  an  action.  Judgment  was  given  for  the 
defendant,  because  the  plaintiff  had  not  performed  or  offered  to  perform  on 
his  part.  Cp.  Mutual  Assoc,  v.  Taylor,  99  Va.  208;  Walsh  r.  Myers,  92 
Wis.  397. 

42  16  Q.  B.  D.  460. 

43  Page  46S.  There  were  also  other  grounds  of  decision  to  which  the 
present  criticism  is  not  intended  to  apply. 

44  117  U.  S.  490. 


MEASURE    OF    DAMAGES.  369 

price  you  offered  it  to  other  parties  here  (fifty  cents  a  ton),  or  give 
you  ice  when  the  market  reaches  that  point."  At  the  time  when  this 
letter  was  written  ice  was  worth  five  dollars  a  ton.  One  does  not 
need  expert  testimony  to  judge  what  probability  there  is  of  ice  going 
down  before  the  close  of  September  to  one-tenth  of  the  price  for 
which  it  is  selling  in  July,  and  yet  the  court  held  the  letter  con- 
stituted no  anticipatory  breach  of  contract  because  the  refusal  was 
not  absolute,  but  "accompanied  with  the  expression  of  an  alternative 
intention "  to  ship  the  ice  "  if  and  when  the  market  price  should 
reach  the  point  which,  in  their  opinion,  the  plaintiffs  ought  to  be 
willing  to  accept  as  its  fair  price  between  them."  Surely  a  man  must 
be  well  advised  to  know  when  he  has-  the  right  to  regard  his  con- 
tracts as  broken  by  anticipation. 

Measure  of  damages.  In  contracts  for  the  sale  of  goods  when  there 
is  a  repudiation  of  the  contract  before  the  time  for  performance,  the 
question  often  arises  as  to  the  basis  on  which  the  plaintiff's  damages 
are  to  be  calculated.  It  is  often  thought  that  the  decision  of  this 
question  turns  on  whether  a  breach  of  the  contract  is  made  at  the  date 
of  the  repudiation  or  at  the  date  when  the  goods  were  to  be  delivered. 
But  this  is  not  so.  Even  though  the  doctrine  of  anticipatory  breach 
is  not  adopted  the  plaintiff  should,  if  he  knows  the  contract  is  going 
to  be  broken,  as  much  as  if  it  has  already  been  broken,45  take  any 
reasonable  action  to  mitigate  the  damages  which  the  defendant's  ac- 
tion will  cause,  so  that  the  price  of  the  goods  at  the  time  when  they 
should  have  been  delivered  will  not  necessarily  be  the  sole  criterion 
of  the  loss.  On  the  other  hand,  even  though  the  breach  be  regarded 
as  having  occurred  at  the  time  of  repudiation,  yet  it  was  a  breach 
of  a  contract  to  deliver  at  a  later  day,  and,  if  it  was  not  a  reasonable 
thing  under  the  circumstances  to  take  some  action  at  the  earlier  day 
the  damages  must  be  calculated  on  the  basis  of  the  price  of  the  goods 
at  the  time  when  delivery  should  have  been  made.  By  no  reasoning 
can  the  contract  be  treated  as  a  contract  to  deliver  goods  at  the  date 
of  the  repudiation.46 

45  This  is  doubtless  contrary  to  the  early  cases  (Leigh  v.  Patterson,  8 
Taunt.  540;  Phillpotts  r.  Evans,  5  M.  &  W.  475),  but  seems  in  accord  with 
reason  and  with  the  principle  of  the  American  cases  cited,  ante,  p.  349,  n.  69. 

46  The  recent  decisions  on  the  point  seem  to  have  been  made  exclusively  by 
courts  which  recognize  the  doctrine  of  anticipatory  breach.  Some  of  these 
decisions  go  very  far  in  requiring  the  plaintiff  to  take  affirmative  action  at 
his  own  risk.  See  Brown  v.  Mnller,  L.  R.  7  Ex.  319;  Roper  v.  Johnson, 
L.  R.  8  C.  P.  167;  Roth  v.  Tavsen,  12  T.  L.  R.  211  (C.  A.)  ;  Re  South  African 
Trust  Co.,  74  L.  T.  769;  Ashmore  v.  Cox,  [1899]  1  Q.  B.  436;  Nickoll  v. 
Ashton,  [19001  2  Q.  B.  298;  Roehm  v.  Horst,'  178  U.  S.  1.  Cp.  James  H. 
Rice  Co.  v.  Penn  Co.,  88  111.  App.  407. 

24 


370 


UNLAWFUL   AGREEMENTS. 


273] 


*CHAPTEK  VII. 

Unlawful  Agreements. 


PAGE. 

Of  unlawful  agreements  in  gen- 
eral, and  their   classification,     373 

A.  Contrary  to  positive  law,  374 
Agreements  to  commit  an  offence,  374 
Agreements      wrongful      against 

third  persons,  376 

Fraud  on  creditors,  377 

Dealings  between  creditor  and 
principal  debtor  to  prejudice  of 
surety,  383 

Dealings  by  agent,  executor,  &c, 

against  his  duty,  386 

Settlements  in  fraud  of  marital 

right,  392 

Married  Women's  Property  Act, 

1882,  393 

Marriages  within   prohibited   de- 
grees, 395 
Royal  Marriage  Act,                         397 
Agreements  illegal  by  statute,       397 
Rules    for    construction    of    pro- 
hibitory statutes,  398 
When    agreements    may    be    not 
void  though  forbidden,  or  void 
without  being  illegal,                   404 
Wagers,                                                    405 

B.  Agreements      contrary      to 

morals  or  good  manners,  410 
Agreements    in    consideration    of 

illicit  cohabitation,  411 

Validity  of  separation  deeds,  413 

Agreement  for  future  separation 

void,  418 

Publication    of    immoral    or    se- 
ditious works  is  not  merely  im- 
moral but  an  offence,  419 
Contracts  as  to  slaves,  420 

C.  Agreements  contrary  to  pub- 

lie  policy,  421 

Connection  of  the  doctrine  with 

the  common  law  as  to  wagers,  421 
Modern  extent  of   the   doctrine : 

Egerton  v.  Brownlow,  423 

Public  policy  as  to  external  re- 
lations of  the  State,  426 


PAGE. 
Trading  with  enemies,  426 

Effect  of  war  on  subsisting  con- 
tracts, 427 
Negotiable    instruments    between 

England  and  hostile  country,     429 
Hostilities  against  friendly  states,  430 
Trade   with  belligerents   not  un- 
lawful, 431 
Foreign  revenue  laws,                       431 
Public  policy  as  to  internal  gov- 
ernment :     attempts    to    influ- 
ence   legislation,    &c.,    by    im- 
proper means,                                 434 
Sale  of  offices,  &c,                            438 
Assignment  of  salaries,                     439 
"  Stifling  prosecutions  "  and  com- 
pounding offences,                          440 
Compromise  of  election  petition,    443 
Secret   agreement   as   to   conduct 

of  winding-up,  445 

Agreements  for  reference  to  arbi- 
tration :  extent  of  their  validity 
at  common  law,  and  by  the  Ar- 
bitration Act,  445 
Maintenance  and  champerty,  449 
Rules  as  to  champerty,  452 
Purchase     of     subject-matter     of 

suit,  455 

Statute   of  Henry  VIII.   against 

buying  pretended  titles,  457 

Maintenance  in  general,  460 

Public  policy  as  to  duties  of  in- 
dividuals, 461 
Agreements  as  to  custody  of  chil- 
dren, 461 
Discretion  of  equity,  462 
Custody  of  Infants  Act,  463 
Insurance  of  seamen's  wages,  463 
Agreements  against  social  duty,  464 
Public   policy   as   to   freedom   of 

individual  action,  464 

Agreements  in  restraint  of  mar- 
riage, 465 
Agreements  to  influence  testators,  466 
Agreements  in  restraint  of  trade,  467 


FORBIDDEN    PERFORMANCE. 


371 


PAGE 

467 
471 


General  principles, 

Early  history  of  the  doctrine, 

Freedom  of  trade  upheld  by  the 
common  law, 

Particular   restraint  admitted, 

Restrictive     covenants     in     17th 
century, 

Limits  of  space, 

Modern  rule  as  to  limits, 

Table  of  decisions  since  1854, 

Measure  of  distances, 

Indian   Contract  Act, 

Contracts  to  serve  for  life  or  ex- 
clusively, 

D.  Judicial  treatment  of  un- 
lawful agreements  in  gen- 
eral, 

Independent  promises,  where  some 
lawful  and  some  not, 

Where  consideration   or  immedi- 
ate object  unlawful, 

Unlawful  ulterior  intention, 

Connection  with  unlawful  design 
already  executed, 

Securities  for  payment  under  un- 
lawful agreement  are  void, 

Extrinsic  evidence  of  illegality, 

Specific  unlawful  intention,  how 
shown  or  contradicted, 

When  payments  can  be  recovered : 
rule  as  to  party  in  pari  delicto,  496 


472 
474 

474 
475 
475 
478 
480 
480 

481 


481 

482 

483 
485 

489 

491 
492 

493 


PAGE. 

Exceptions:  duty  of  agents  to 
principal  unaffected, 

Money  recoverable  where  agree- 
ment not  executed, 

Where  the  payment  was  compul- 
sory, 

In  equity  where  circumstances  of 
fraud,  &e.,  as  between  the  par- 
ties, 

Final  statement  of  the  rule  and 
qualification, 

Conflict  of  laws  in  space, 

Generally  lex  loci  solutionis  pre- 
vails, 

Exceptions  —  when  a,  prohibitory 
municipal  law  is  not  merely 
local, 

When  agreement  is  immoral 
iure  gentium, 

Treatment  of  slave  contracts  in 
English  courts :  Santos  v.  II- 
lidge, 

Other  instances  of  conflict  of 
laws  as  to  validity  of  agree- 
ment considered, 

Agreements  against  interests  of 
the  local  sovereign, 

Conflict  of  laws  in  time:  subse- 
quent illegality  dissolves  con- 
tract, 

Rules  as  to  knowledge  of  parties 
collected,  516 


498 


502 


503 


504 

505 
506 

506 


506 


508 


509 


511 


513 


514 


Subject-matter  or  performance  a  thing  positively  forbidden,  or  part  of  a 
transaction  which  is  forbidden  (illegal).  We  have  already  seen  that  an 
agreement  is  not  in  any  case  enforceable  by  law  without  satisfying 
sundry  conditions :  as,  being  made  between  capable  parties,  being 
sufficiently  certain,  and  the  like.  If  it  does  satisfy  these  conditions,  it 
is  in  general  a  contract  which  the  law  commands  the  parties  to  per- 
form. But  there  are  many  things  which  the  law  positively  commands 
people  not  to  do.  The  reasons  for  issuing  such  commands,  the  weight 
of  the  sanctions  by  which  they  are  enforced,  and  the  degree  of  their 
apparent  necessity  or  expediency,  are  exceedingly  various,  but  for  the 
present  purpose  unimportant.  A  murder,  the  obstruction  of  a  high- 
way, and  the  sale  of  a  loaf  otherwise  than  by  weight,  are  all  on  the 
same  footing  in  so  far  as  they  are  all  forbidden  acts.  If  the  subject- 
matter  of  an  agreement  be  such  that  the  performance  of  it  would 
either  consist  in  doing  a  forbidden  act  or  be  so  connected  therewith  as 


372  UNLAWFUL   AGREEMENTS. 

to  be  in  substance  part  of  the  same  transaction,  the  law  cannot  com- 
mand the  parties  to  perform  that  agreement.  It  will  not  always  com- 
mand them  not  to  perform  it,  for  there  are  many  cases  where  the  per- 
formance of  the  agreement  is  not  in  itself  an  offence,  though  the  com- 
plete execution  of  the  object  of  the  agreement  is :  but  at  all  events  it 
will  give  no  sort  of  assistance  to  such  a  transaction.  Agreements  of 
this  kind  are  void  as  being  illegal  in  the  strict  sense. 

274]  *Not  positively  forbidden  but  immoral.  Again,  there  are  certain 
things  which  the  law  (a)  does  not  forbid  in  the  sense  of  attaching 
penalties  to  them,  but  which  are  violations  of  established  rules  of  de- 
cency, morals,  or  good  manners,  and  of  whose  mischievous  nature  in 
this  respect  the  law  so  far  takes  notice  that  it  will  not  recognize  them 
as  the  ground  of  any  legal  rights.  "A  thing  may  be  unlawful  in  the 
sense  that  the  law  will  not  aid  it,  and  yet  that  the  law  will  not  im- 
mediately punish  it"  (&).1  Agreements  whose  subject-matter  falls 
within  this  description  are  void  as  being  immoral. 

Not  positively  forbidden,  but  against  public  policy.  Further,  there  are 
many  transactions  which  cannot  fairly  be  brought  within  either  of  the 
foregoing  classes,  and  yet  cannot  conveniently  be  admitted  as  the  sub- 
ject-matter of  valid  contracts,  or  can  be  so  admitted  only  under  un- 
usual restrictions.  It  is  doubtful  whether  these  can  be  completely 
reduced  to  any  general  description,  and  how  far  judicial  discretion 
may  go  in  novel  cases.  They  seem  in  the  main,  however,  to  fall  into 
the  following  categories : 

Matters  governed  by  reasons  outside  the  regular  scope  of  municipal 
law,  and  touching  the  relations  of  the  commonwealth  to  foreign 
states : 

Matters  touching  the  good  government  of  the  commonwealth  and 
the  administration  of  justice : 

Matters  affecting  particular  legal  duties  of  individuals  whose  per- 
formance is  of  public  importance : 

Things  lawful  in  themselves,  but  such  that  individual  citizens  could 
not  without  general  inconvenience  be  allowed  to  set  bounds  to  their 

(a)  i.  e.  the  common  law.  But  qu.  against  either  common  or  ecclesiasti- 
whether  the   common  law  could  take        cal  law. 

notice  of  anything  as  immoral  which  (6)    Bramwell    B.    Coivan   v.    Mil- 

would     not     constitute     an     offence       bourn   (1867)   L.  R.  2  Ex.  at  p.  236, 

36  L.  J.  Ex.  124. 

l  Mogul  S.  S.  Co.  r.  McCiegor,  T18021  A.  C.  25,  39,  46.  51,  58;  United  States 
v.  Addystone  Pipe  Co.,  85  Fed.  Rep.  271,  279;  American  Live  Stock  Co.  v. 
Chicago  Live  Stock  Exchange  Co.,  143  111.  210;  Raymond  r.  Leavitt.  46 
Mich.' 447.  452;  Rosenbaum  v.  U.  S.  Credit  Co.,  65  N.  J.'L.  255;  King  v.  King, 
63  Ohio  St.  363. 


CLASSIFICATION.  373 

freedom  of  action  with  regard  to  those  things  in  the  same  manner  or 
to  the  same  extent  as  they  may  with  regard  to  other  things  (c). 

*Summary.  Agreements  falling  within  this  third  description  [275 
are  void  as  being  against  public  policy. 

We  have  then  in  the  main  three  sorts  of  agreements  which  are  un- 
lawful and  void,  according  as  the  matter  or  purpose  of  them  is — 

A.  Contrary  to  positive  law.     (Illegal.) 

B.  Contrary  to  positive  morality  recognized  as  such  by  law.  (Im- 
moral.) 

C.  Contrary  to  the  common  weal  as  tending 

(a)  To  the  prejudice  of  the  State  in  external  relations 
(h)  To  the  prejudice  of  the  State  in  internal  relations 
(c)  To  improper  or  excessive  interference  with  the  lawful  ac- 
tions of  individual  citizens.     (Against  public  policy.) 

Caution  as  to  use  of  terms.  The  distinction  here  made  is  in  the  rea- 
sons which  determine  the  law  to  hold  the  agreement  void,  not  in  the 
nature  or  operation  of  the  law  itself:  the  nullity  of  the  agreement 
itself  is  in  every  case  a  matter  of  positive  law.  Bearing  this  in  mind, 
it  is  a  harmless  abbreviation  to  speak  of  the  agreement  itself  as  con- 
trary to  positive  law,  to  morality,  or  to  public  policy,  as  the  case 
may  be. 

The  arrangement  only  approximate.  The  arrangement  here  given  is 
believed  to  be  on  the  whole  the  most  convenient,  and  to  represent  dis- 
tinctions which  are  in  fact  recognized  in  the  decisions  that  constitute 
the  law  on  the  subject.  But  like  all  classifications  it  is  only  approxi- 
mate: and  where  the  field  of  judicial  discretion  is  so  wide  as  it  is 
here  (for  nowhere  is  it  wider)  we  must  expect  to  find  many  cases 
which  may  nearly  or  quite  as  well  be  assigned  to  one  place  as  to 
another.  The  authorities  and  dicta  are  too  numerous  to  admit  of  any 
detailed  review.  But  the  general  rules  are  (with  some  few  exceptions) 
sufficiently  well  settled,  so  far  as  the  nature  of  the  case  admits  of 
general  rules  existing.  Any  given  decision,  on  the  other  hand,  is 
likely  to  be  rather  suggestive  than  conclusive  when  applied  to  a  new 
set  of  facts.  Some  *positive  rules  for  the  construction  of  stat-  [276 
utes  have  been  worked  out  by  a  regular  series  of  decisions.  But  with 
this  exception  we  find  that  the  case-law  on  most  of  the  branches  of  the 
subject  presents  itself  as  a  clustered  group  of  analogies  rather  than 

(c)  We  have  already  seen  that  the       party's  freedom  of  action  as  regards 
specific  operation  of  contract  is  none       the  subject-matter  of  the  contract, 
other    than    to    set    bounds    to    the 


374  UNLAWFUL   AGREEMENTS. 

a  linear  chain  of  authority.  We  have  then  to  select  from  these  groups 
a  certain  number  of  the  more  striking  and  as  it  were  central  instances. 
The  statement  of  the  general  rules  which  apply  to  all  classes  of  un- 
lawful agreements  indifferently  will  be  reserved,  so  far  as  practicable, 
until  we  have  gone  through  the  several  classes  in  the  order  above 
given. 

A.  Agreements  contrary  to  positive  law. 

1.  Agreement  to  commit  offence,  void.  The  simplest  case  is  an  agree- 
ment to  commit  a  crime  or  indictable  offence : 

"  If  one  bind  himself  to  kill  a  man,  burn  a  house,  maintain  a  suit, 
or  the  like,  it  is  void  "(d). 

With  one  or  two  exceptions  on  which  it  is  needless  to  dwell,  ob- 
viously criminal  agreements  do  not  occur  in  our  own  time  and  in 
civilized  countries,  and  at  all  events  no  attempt  is  made  to  enforce 
them.  In  the  eighteenth  century  a  bill  was  filed  on  the  Equity  side 
of  the  Exchequer  by  a  highwayman  against  his  fellow  for  a  part- 
nership account.  The  bill  was  reported  to  the  Court  both  scandalous 
and  impertinent,  and  the  plaintiff's  solicitors  were  fined  and  his 
counsel  ordered  to  pay  costs  (e). 

Sometimes  doubtful  if  performance  of  agreement  would  be  offence  —  Mayor 
of  Norwich  v.  Norfolk  Ey.  Co.  The  question  may  arise,  however, 
whether  a  particular  thing  agreed  to  be  done  is  or  is  not  an  offence, 
or  whether  a  particular  agreement  is  or  is  not  on  the  true  construction 
of  it  an  agreement  to  commit  an  offence.  In  the  singular  case  of 
Mayor  of  Norwich  v.  Norfolk  By.  Go.  (f),  the  defendant  company, 
being  authorized  to  make  a  bridge  over  a  navigable  river  at  one  par- 
277  ]  ticular  place,  had  found  difficulties  in  executing  the  *statutorv 
plan,  and  had  begun  to  build  the  bridge  at  another  place.  The 
plaintiff  corporation  took  steps  to  indict  the  company  for  a  nuisance. 
The  matter  was  compromised  by  an  arrangement  that  the  company 
should — not  discontinue  their  works,  but — complete  them  in  a  par- 
ticular manner,  intended  to  make  sure  that  no  serious  obstruction  to 
the  navigation  should  ensue:  and  an  agreement  was  made  by  deed, 
in  which  the  company  covenanted  to  pay  the  corporation  £1000  if  the 
works  should  not  be  completed  within  twelve  months,  whether  an 
Act  of  Parliament  should  within  that  time  be  obtained  to  authorize 
them  or  not.     The  corporation  sued  on  this  covenant,  and  the  com- 

(d)  Shepp.  Touehst.  370.  fled  from  the  originals  in  the  Record 

(e)  Lindley,    on    Partnership,    101.        Office. 

See  L.  Q.  R.  i'x.  107,  for  an  account  of  If)    (1855)  4  E.  &  B.  397,  24  L.  J. 

the  case    (Everet  v.  Williams)    veri-       Q.  B.  105. 


CONTRARY   TO   POSITIVE   LAW.  375 

party  set  tip  the  defence  that  the  works  were  a  public  nuisance,  and 
therefore  the  covenant  to  complete  them  was  illegal.  The  Court  of 
Queen's  Bench  was  divided  on  the  construction  and  effect  of  the  deed. 
Erie  J.  thought  it  need  not  mean  that  the  defendants  were  to  go  on 
with  the  works  if  they  did  not  obtain  the  Act.  "  Where  a  contract  is 
capable  of  two  constructions,  the  one  making  it  valid  and  the  other 
void,  it  is  clear  law  the  first  ought  to  be  adopted."'  -  Here  it  should 
be  taken  that  the  works  contracted  for  were  works  to  be  rendered 
lawful  by  Act  of  Parliament.  Coleridge  J.  to  the  same  effect:  he 
thought  the  real  object  was  to  secure  by  a  penalty  the  speedy  reduc- 
tion of  a  nuisance  to  a  nominal  amount,  which  was  quite  lawful,  the 
corporation  not  being  bound  to  prosecute  for  a  nominal  nuisance. 
Lord  Campbell  C.J.  and  Wightman  J.  held  the  agreement  bad,  as 
being  in  fact  an  agreement  to  continue  an  existing  unlawful  state  of 
things.  The  performance  of  it  (without  a  new  Act  of  Parliament) 
would  have  been  an  indictable  offence,  and  the  Court  could  not  pre- 
sume that  an  Act  would  have  been  obtained.  Lord  Campbell  said : — 
"  In  principle  I  do  not  see  how  the  present  case  is  to  be  distinguished 
from  an  action  by  A.  against  B.  to  recover  £1000,  B.  having  cove- 
nanted with  A.  that  within  twelve  calendar  months  he  would  murder 
C,  and  that  on  failing  to  do  so  he  would  forfeit  and  pay  to  A.  £1000 
as  liquidated  damages,  the  declaration  alleging  that  although  [278 
B.  did  not  murder  C.  within  the  twelve  calendar  months  he  had  not 
paid  A.  the  £1000"  (g). 

It  seems  impossible  to  draw  any  conclusion  in  point  of  law  from 
such  a  division  of  opinion  (h).  But  the  case  gives  this  practical 
warning,  that  whenever  it  is  desired  to  contract  for  the  doing  of 
something  which  is  not  certainly  lawful  at  the  time,  or  the  lawfulness 
of  which  depends  on  some  event  not  within  the  control  of  the  parties, 
the  terms  of  the  contract  should  make  it  clear  that  the  thing  is  not 
to  be  done  unless  it  becomes  or  is  ascertained  to  be  lawful. 

(51)  4  E.  &  B.  441.  the  case  in  the  same  way.     The  re- 

(h)     Not     only     was     the     Court  porters  (4  E.  &  B.  397)  add  not  with- 

equally  divided,  but  a  perusal  of  the  out  reason  to  the  headnote:  Et  quaere 

judgments  at  large  will  show  that  no  inde. 

two  members   of  it   really  looked  at 

2  Mills  v.  Dunham,  [1891]  1  Ch.  576,  590;  Hobbs  v.  McLean,  117  U.  S. 
567,  576;  United  States  v.  Railroad  Co.,  118  U.  S.  235;  Van  Winkle  r. 
Satterfield,  58  Ark.  617;  Hunt  v.  Elliott,  80  Ind.  245;  Guernsey  v.  Cook, 
120  Mass.  501;  White  v.  Western  Assur.  Co.,  52  Minn.  352;  Bank  v.  Wallace, 
61  N.  H.  24;  Ellerman  v.  Chicago,  etc..  Co.  49  N.  J.  Eq.  217;  Curtis  r.  Gokey, 
68  N.  Y.  300;  Ormes  v.  Dauchy,  82  N.  Y.  443;  Lorillard  v.  Clyde,  86  N.  Y. 
384:  Shedeinsky  v.  Budweiser  Brewing  Co..  163  N.  Y.  437;  Hoffman  r.  Machall, 
5  Ohio  St.  124.  132;  Miller  v.  Ratterman,  47  Ohio  St.  141,  164;  Watters  r 
McGuigan,  72  Wis.  155. 


376  UNLAWFUL   AGBEEMENTS. 

When  the  ulterior  object  is  an  offence.  Moreover  a  contract  may  be  il- 
legal because  an  offence  is  contemplated  as  its  ulterior  result,  or 
because  it  invites  to  the  commission  of  crime.  For  example,  an 
agreement  to  pay  money  to  A.'s  executors  if  A.  commits  suicide  would 
be  void  (i)  f  and  although  there  is  nothing  unlawful  in  printing,  no 
right  of  action  can  arise  for  work  done  in  printing  a  criminal 
libel  (k).4  But  this  depends  on  the  more  general  considerations  which 
we  reserve  for  the  present. 

2.  Agreement  for  civil  wrong  to  third  persons  is  void.  Again  an  agree- 
ment will  generally  be  illegal,  though  the  matter  of  it  may  not  be  an 
indictable  offence,  and  though  the  formation  of  it  may  not  amount 
to  the  offence  of  conspiracy,  if  it  contemplates  (I)  any  civil  injury 
to  third  persons.5  Thus  an  agreement  to  divide  the  profits  of  a 
fraudulent  scheme,  or  to  carry  out  some  object  in  itself  not  unlaw- 
279]  ful  by  means  of  an  apparent  trespass,  breach  of  ""contract,  or 
breach  of  trust  is  unlawful  and  void  (m).6    A.  applies  to  his  friend 

(i)    Per  Bramwell  L.J.  5  C.  P.  D.  5  Ex.  775.  20  L.  J.  Ex.  2.    See  further 

nt  p.  307.  at  end  of  this  chapter. 

( it )  Poplctt  v.  Stookdale  ( 1825 )  R.  ( m )    An    agreement   to    commit   a 

&  II.  337,  2  C.  &  P.  198,  31  R.  R.  662.  civil  injury  is  a  conspiracy  in  many, 

(/)  If  A.  contracts  with  B.  to  do  but  it  seems  impossible  to  say  pre- 
something  which  in  fact,  but  not  to  cisely  in  what,  cai-es.  See  the  title 
B.'s  knowledge,  would  involve  a  breach  of  Conspiracy  in  Roscoe's  Digest,  (ed. 
of  contract  or  trust,  A.  cannot  law-  Horace  Smith,  1884).  An  agreement 
fully  perform  his  promise,  but  yet  to  commit  a  trespass  likely  to  lead  to 
may  well  be  liable  in  damages  for  the  a  breach  of  the  peace,  Reg.  v.  flow- 
breach.  Millwardv.  Littlewood  (1850)  lands  (1851)   17  Q.  B.  671,  086,  21  L. 

3Ritter  v.  Mutual  Life  Ins.  Co.,  169  U.  S.  139.  Cp.  Knights  Templars  Co. 
v.  Jarman,  18  U.  S.  197  ;  Seiler  r.  Economic  Life  Assoc.,  105  la.  87 ;  Morris 
v.  State  Mut.  L.  Assur.  Co.,  183  Pa.  563 ;  Patterson  i .  Natural  Premium  Ins. 
Co.,  100  Wis.  US. 

So  in  Burt  v.  Union  Central  Ins.  Co.,  187  U.  S.  362,  where  a  man  com- 
mitted a  murder  and  thereafter  assigned  a  policy  on  his  life  and  was  sub- 
sequently executed,  it  was  held  that  the  assignee  could  not  recover  on  the 
policy. 

4  So  an  agreement  to  reprint  a  literary  work,  in  violation  of  a  copyright 
secured    to    a    third    person,    is    void.     Nichols    v.    Ruggles,    3    Day,     145. 

5  In  Church  r.  Proctor,  66  Fed.  Rep.  240,  it  was  held  a  good  defense  to 
an  agreement  for  the  sale  of  menhaden  that  the  buyer  intended  to  pack  and 
sell  them  as  mackerel.  See  also  Materne  v.  Horwitz,  101  N.  Y.  469; 
Blakely  r.  Sousa,  197  Pa.  305. 

6  Thus  in  Guernsey  r.  Cook,  120  Mass.  501,  the  court  held  illegal  a  contract 
between  two  stockholders  who  together  owned  a  majority  of  the  stock  of  a 
corporation,  that  the  plaintiff  should  be  made  treasurer  of  that  company  at 
a  stipulated  salary;  the  plaintiff  on  his  part  agreeing  to  take  part  of  their 
stock  at  par,  with  an  agreement  that  it  should  be  taken  back,  and  an 
allowance  made  for  interest,  "in  case  it  should  be  desirable  for  anv  reason 
to  dispense  with  the  plaintiff's  service  as  treasurer."  To  similar  effect  are 
West  v.  Camden,  135  U.  S.  507;  Noel  r.  Drake.  28  Kan.  265;  Noyes  r. 
Marsh,  123  Mass.  286;  Woodruff  r.  Wentworth,  133  Mass.  309;  Wilbur  v. 
Stoepel,  82  Mich.  344;   Cone  v.  Russell,  48  N.  J.  Eq.  208;   Fenness  v.  Ross, 


AGREEMENTS    IN    FRAUD    OF    CREDITORS.  377 

B.  to  advance  him  the  price  of  certain  goods  which  he  wants  to  buy 
of  C.  B.  treats  with  C.  for  the  sale,  and  pays  a  sum  agreed  upon 
between  them  as  the  price.  It  is  secretly  agreed  between  A.  and  C. 
that  A.  shall  pay  a  further  sum :  this  last  agreement  is  void  as  a 
fraud  upon  B.,  whose  intention  was  to  relieve  A.  from  paying  any  part 
of  the  price  (n).7  Again,  A.  and  B.  are  interested  in  common  with 
other  persons  in  a  transaction  the  nature  of  which  requires  good  faith 
on  all  hands,  and  a  secret  agreement  is  made  between  A.  and  B.  to  the 
prejudice  of  those  others'  interest. 

Agreement  in  fraud  of  creditors  is  void.  Such  are  in  fact  the  cases  of 
agreements  "  in  fraud  of  creditors " ;  that  is,  where  there  is  an 
arrangement  between  a  debtor  and  the  general  body  of  the  creditors, 

J.   M.   C.   81 — or   to   commit   a   civil  [1901]  A.  C.  395,  70  L.  J.  P.  C.  76. 

wrong  by  fraud  and  false  pretences,  Before  the  C.  L.  P.  Act  a  court  of 

Reg.  v.  Warburton  ( 1870 )   L.  R.  1  C.  common  law  could  not  take  notice  of 

C.  R.  274,  40  L.  J.  M.  C.  22,  cp.  Reg.  an  agreement  being  in  breach  of  trust 
v.  Aspinall  (1876)  2  Q.  B.  Div.  at  p.  so  as  to  hold  it  illegal:  Warwick  v. 
59,  46  L.  J.  M.  C.  145— is  a  con-  Richardson,  (1842)  10  M.  &  W.  284, 
spiraey.  An  agreement  to  commit  a  and  agreements  to  indemnify  trustees 
simple  breach  of  contract  is  not  a  against  formal  breaches  of  trust  are 
conspiracy.  See  on  the  whole  sub-  in  practice  constantly  assumed  to  be 
ject.  Mogul  Steamship  Co.  v.  Mc-  valid  in  equity  as  well  as  law. 
Gregor,  Goto  &  Co.  [1892]  A.  C.  25,  61  («)  Jackson  v.  Duchaire  (1790)  3 
L.  J.  Q.  B.  295;    Quinn  v.  Leathern,  T.  R.  551. 

5  N.  Y.  App.  Div.  342;  Snow  v.  Church,  13  N.  Y.  App.  Div.  108;  Gage  r. 
Fisher,  5  N.  Dak.  297;  Withers  t.  Edwards,  (Tex.)  62  S.  W.  Rep.  795.  See 
also  Blue  v.  Capital  Nat.  Bank,  145  Ind.  518;  Fuller  r.  Dame,  18  Pick.  472; 
McClure  r.  Law,  161  N.  Y.  78;  Gilbert  v.  Finch,  173  N.  Y.  455;  Wood  i\ 
Manchester,  etc.,  Co.,  54  N.  Y.  App.  Div.  522;  Flaherty  v.  Cary,  62  N.  Y. 
App.  Div.  116,  172  N.  Y.  646.  But  compare  Greenwell  v.  Porter,  [1902] 
1  Ch.  530;  Almy  v.  Orme,  165  Mass.  126;  Gassett  r.  Glazier,  165  Mass.  473; 
Seymour  v.  Detroit,  etc.,  Mills,  56  Mich.  117;  Barnes  r.  Brown,  80  N.  Y.  527; 
Bonta  v.  Gridley,  77  N".  Y.  App.  Div.  33. 

So  a  contract  by  a  railroad  construction  company  (bound  to  lay  a  railroad 
by  the  nearest  and  best  route)  by  which  it  agrees  for  a  valuable  consideration 
to  lay  the  road  through  a  town  not  on  the  direct  line  is  illegal.  Woodstock 
Iron  Co.  t\  Richmond  &  Dansville  Extension  Co.,  129  U.  S.  643.  To  similar 
effect  are  Heirs  of  Burney  v.  Ludeling,  47  La.  Ann.  73,  96 ;  Lum  r.  McEwen,  56 
Minn.  278.  Compare  the  following  decisions  in  regard  to  the  location  of 
public  buildings.  Fearnley  v,  De  Mainville,  5  Col.  App.  441 ;  Woodman  v. 
Innes,  47  Kan.  26;  Beal  r.  Polhemus,  67  Mich.  130. 

Other  illustrations  of  the  general  doctrine  of  the  text  may  be  found  in 
Jackson  r.  Ludeling,  21  Wall.  616;  Oscanyan  r.  Arms  Co.,  103  U.  S.  261; 
Forbes  v.  McDonald,  54  Cal.  98;  Brown  r.  Brown,  66  Conn.  493;  Rice  v.  Wood, 
113  Mass.  133;  Woodruff  v.  Wentworth,  133  Mass.  309;  Spinks  v.  Davis,  32 
Miss.  152;  Cone's  Exec.  v.  Russell,  48  N.  J.  Eq.  208;  Glenn  v.  Mathews,  44 
Tex.  400:  Foote  v.  Emerson,  10  Vt.  338.  Cp.,  however,  Barnes  v.  Brown,  80 
N.  Y.  527 ;  Robison  v.  MeCracken,  52  Fed.  Rep.  726,  and  the  decisions  in  some 
States  which  hold  an  agreement  binding  between  the  parties  though  it  contem- 
plates as  part  of  the  transaction  a  conveyance  in  fraud  of  creditors.  Har- 
erow  !'.  Harcrow.  69  Ark.  6;  Stillings  v.  Turner,  153  Mass.  534;  Still  v 
Buzwll.  60  Vt.  478. 

7  Patton  v.  Taft,  143  Mass.  140. 


378  UNLAWFUL   AGREEMENTS. 

but  in  order  to  procure  the  consent  of  some  particular  creditor,  or  for 
some  other  reason,  the  debtor  or  any  person  on  his  behalf,  or  with  his 
knowledge  (o),8  secretly  promises  that  creditor  some  advantage  over 
the  rest.  All  such  secret  agreements  are  void:  securities  given  in 
pursuance  of  them  may  be  set  aside,  and  money  paid  under  them 
ordered  to  be  repaid  (p).9 

280  ]  *  Other  creditors  not  bound  by  the  composition.  Moreover,  the  other 
creditors  who  know  nothing  of  the  fraud  and  enter  into  the  arrange- 
ment on  the  assumption  "  that  they  are  contracting  on  terms  of  equal- 
ity as  to  each  and  all  "  are  under  such  circumstances  not  bound  by  any 
release  they  give  (gO-10    And  it  will  not  do  to  say  that  the  underhand 

(o)    Equality  among  the  creditors  out  of  the  debtor's  funds  or  not.    Ex 

is  of  the  essence  of  the  transaction.  parte   Milner    (1885)    15    Q.   B.   Div. 

Any  agreement  to  give  a  preference,  605,  54  L.  J.  Q.  B.  425. 
made     with     the     debtor's     privity,  (p)  McKewan  v.  Sanderson  (1873) 

strikes  at  the  root  of  the  deed.     It  is  L.  R.   15  Eq.  at  p.  234,    per  Malins 

immaterial  whether  the  arrangement  V.-C.  42  L.  J.  Ch.  296. 
is  under  a  statute  or  not,  and  whether  (q)   Dauglish  v.  Tennent  (1866)  L. 

the  preferential  payment  is  to  come  R.  2  Q.  B.  49,  54,  36  L.  J.  Q.  B.  10. 

8  Clarke  r.  White,  12  Pet.  178,  199;  Smith  v.  Owens,  21  Cal.  11;  Kullman 
v.  Greenebaum,  92  Cal.  403;  Clement's  Appeal,  52  Conn.  464;  Cary  i.  Hess, 
112  Ind.  398;  Morrison  i\  Schlesinger,  10  Ind.  App.  665;  Cheveront  v. 
Textor,  53  Md.  295;  Case  v.  Gerrish,  15  Pick.  49;  Lothrop  v.  King,  8  Cush. 
382;  Sternberg  v.  Bowman,  103  Mass.  325:  Harvey  v.  Hunt,  119  Mass.  279; 
Huckins  r.  Hunt,  138  Mass.  366;  Tirrell  r.  Freeman,  139  Mass.  297;  Brown 
r.  Nealley,  161  Mass.  1;  Vreeland  r.  Turner,  117  Mich.  366;  Newell  v. 
Higgins,  55  Minn.  82;  O'Shea  v.  Collier,  etc.,  Co.,  42  Mo.  397;  Trumbull  r. 
Til  ton,  21  N.  H.  128;  Winn  r.  Thomas,  55  N.  H.  294;  Feldman  r.  Gamble, 
26  N.  J.  Eq.  494;  Lawrence  r.  Clark,  36  N.  Y.  128;  Bliss  r.  Matteson,  45 
iST.  Y.  22 ;  Patterson  v.  Boehm,  4  Pa.  507 ;  Stuart  v.  Blum,  28  Pa.  225 ;  Lee 
v.  Sellers,  *S1  Pa.  473;  Dansby  v.  Frieberg,  76  Tex.  463.  See  also  Bank  v. 
Ohio  Buggy  Co.,  110  Ala.  360;  Lobdell  v.  Bank,  180  111.  56. 

Where  a  composition  agreement  was  made,  by  the  terms  of  which  the 
debtor  was  to  give  his  notes  for  a  percentage  of  his  indebtedness,  and  he 
afterwards  voluntarily  gave  to  one  of  his  debtors,  party  to  the  composition 
agreement,  notes  for  the  balance  of  his  claim,  which  by  their  terms  would 
mature  before  the  composition  notes,  the  notes  last  given  were  held  void. 
Way  r.  Langley,  15  Ohio  St.  392. 

9Bean  r.  "Brookmire,  2  Dill.  108;  Bean  r.  Amsinck,  10  Blatchf.  361  (not 
affected  as  to  the  general  rule  by  the  reversal  in  22  Wall.  395)  ;  Fairbanks  i . 
Bank,  38  Fed.  Rep.  630;  Brown  n.  Everett,  et".,  Co.,  Ill  Ga.  404;  Crossley  r. 
Moore,  40  N.  J.  L.  27. 

Sureties  on  composition  notes  are  released  by  such  a  secret  agreement. 
Powers  Dry  Goods  Co.  r.  Harlin,  68  Minn.  193. 

m  They  may  sue  for  and  recover  the  full  amount  of  their  original  claims 
less  the  amount  received  under  the  composition  agreement.  Kullman  (".  Greene- 
baum, 92  Cal.  403;  Woodruff  r.  Saul,  70  Ga.  271;  Kahn  v.  Gumberts,  9  Ind. 
430;  Partridge  v.  Messer,  14  Grav,  180:  Powers  Drv  Goods  Co.  v.  Harlin,  68 
Minn.  193;  Bank  of  Commerce  r.  Hoeber,  88  Mo.  37; 'White  r.  Kuntz,  107  N.  Y. 
518,  525.  And  it  is  not  essential  to  the  right  of  action  that  the  creditor  should 
first  return  the  money  he  has  received  under  the  compensation  agreement.  Cobb 
r.  Tirrell.  137  Mass.  143:  Hefter  P.  Calm.  73  Til.  296;  Stuart  r.  Blum,  28  Pa. 
225 ;  Bank  r.  Hoeber,  8  Mo.  App.  171.    In  Bartlett  v.  Blaine,  83  111.  25,  it  was 


AGREEMENTS    IN    FRAUD    OF    CREDITORS.  379 

bargain  was  in  fact  for  the  benefit  of  the  creditors  generally,  as  where 
the  preferred  creditor  becomes  surety  for  the  payment  of  the  compo- 
sition, and  the  real  consideration  for  this  is  the  debtor's  promise  to 
pay  his  own  debt  in  full;  for  the  creditors  ought  to  have  the  means 
of  exercising  their  own  judgment  (V).11  But  where  one  creditor  is 
induced  to  become  surety  for  an  instalment  of  the  composition  by  an 
agreement  of  the  principal  debtor  to  indemnify  him,  and  a  pledge  of 
part  of  the  assets  for  that  purpose,  this  is  valid:  for  a  compounding 
debtor  is  master  of  the  assets  and  may  apply  them  as  he  will  (s). 

The  principle  of  these  rules  was  thus  explained  by  Erie  J.  in 
Mallalieu  v.  Hodgson  (t)  : — 

"  Each  creditor  consents  to  lose  part  of  his  debt  in  consideration  that 
the  others  do  the  same,  and  each  creditor  may  be  considered  to  stipulate 
with  the  others  for  a  release  from  them  to  the  debtor  in  consideration  of 
the1  release  by  him.  Where  any  creditor,  in  fraud  of  the  agreement  to 
accept  the  composition,  stipulates  for  a  preference  to  himself,  his  stipu- 
lation is  altogether  void — not  only  can  he  take  no  advantage  from  it, 
but  he  is  also  to  lose  the  benefit  of  the  composition  (u).'12  The  requirement 
of  good  faith  among  the  creditors  and  the  preventing  of  gain  by  agree- 
ments for  preference  have  been  uniformly  maintained  by  a  series  of  cases 
from  Leicester  v.  Rose  {x)  to  Eowden  v.  Haigh  (u)  and  Bradshaw  v. 
Bradshaw  "  ( y ) . 

From  the  last  cited  case  (y)  it  seems  probable,  though  *it  is  [281 
not  decided,  that  when  a  creditor  is  induced  to  join  in  a  composition 
by  having  an  additional  payment  from  a  stranger  without  the  knowl- 
edge of  either  the  other  creditors  or  the  debtor,  the  debtor  on  dis- 
covering this  may  refuse  to  pay  him  more  than  with  such  extra  pay- 
ment will  make  up  his  proper  share  under  the  composition,  or  may 

(r)  Wood  v.  Barker  (1865)  L.  R.  1  (u)     (1840)    11   A.   &  E.   1033;    52 

Eq.  139.  R.  R.  579. 

(s)  Ex  parte  Burrell  (1876)    1  Ch.  (as)     (1803)    4  East,  372:    showing 

Div.  537.  45  L.  J.  Bk.  68.  that  the  advantage  given  to  the  pre- 

(t)    (1851)   16  Q.  B.  689,  20  L.  J.  ferred  creditor  need  not  be  in  monev. 

Q.  B.  339,  347.     See  further  Ex  parte  (y)    (1841)  9  M.  &  W.  29. 
Oliver  (1849-51)  4  De  G.  &  Sm.  354. 

held  that  "  where  a  party  induced  a  creditor  to  sign  a  composition  agree- 
ment, whereby  he  accepted  one-half  of  his  claim  in  full,  upon  the  representa- 
tions of  his  debtor  that  no  person  had  received  any  other  thing,  etc.,  the 
fact  that  the  debtor  had  given  his  note  for  five  hundred  dollars  to  induce 
another  creditor  to  sign  the  same  agreement,  which  note,  upon  suit  thereon, 
was  adjudged  void,  is  not  sufficient  to  avoid  the  contract  of  composition,  as 
it  worked  no  injury  to  the  creditor."  This  decision  is  believed  to  be  wrong, 
as  each  creditor  has  a  right  to  rely  upon  the  unbiased  judgment  of  every 
other  as  to  the  advisability  of  becoming  a  party  to  the  proposed  agreement 
of  composition,  and  the  purchased  assent  of  one  creditor  is  a  fraud  upon  the 
others. 

11  Baldwin  t>.  Rosenman,  49  Conn.  105. 

12  Doughty  r.  Savage.  28  Conn.  146;  Huntington  r.  Clark.  39  Conn.  540, 
554;  Frost  V.  Gage,  3  Allen,  560;  Moses  r.  Kntzenberger,  1  Handy,  46.  But 
see  contra,  Hanover  Nat.  Bank  v.  Blake,  142  N.  Y.  404. 


380  UNLAWFUL    AGREEMENTS. 

even  recover  back  the  excess  if  he  has  paid  it  involuntarily,  e.  g.  to 
bona  fide  holders  of  bills  given  to  the  creditor  under  the  com- 
position.13 

A  debtor  who  has  given  a  fraudulent  preference  can  claim  no 
benefit  under  the  composition  even  as  against  the  creditor  to  whom 
the  preference  has  been  given  {z).u 

A  secret  agreement  by  a  creditor  to  withdraw  his  opposition  to  a 
bankrupt's  discharge  or  to  a  composition  is  equally  void,15  and  it  does 
not  matter  whether  it  is  made  with  the  debtor  himself  or  with  a 
stranger  (a),16  nor  whether  the  consideration  offered  to  the  creditor 
for  such  withdrawal  is  to  come  out  of  the  debtor's  assets  or  not  (6)  ; 
and  this  even  if  it  is  part  of  the  agreement  that  the  creditor  shall  not 
prove  against  the  estate  at  all  (c).  In  like  manner  if  a  debtor  ex- 
ecutes an  assignment  of  his  estate  and  effects  for  the  benefit  of  all  his 
creditors  upon  a  secret  agreement  with  the  trustees  that  part  of  the 
assets  is  to  be  returned  to  him,  this  agreement  is  void  (d). 

We  have  here  at  an  early  stage  of  the  subject  a  good  instance  of 
the  necessarily  approximate  character  of  our  classification.  We  have 
placed  these  agreements  in  fraud  of  creditors  here  as  being  in  effect 

(z)    Biggins  v.  Pitt    (1849)    4  Ex.  (c)    McKewan  v.  Sanderson  (1875) 

312,  18  L.  J.  Ex.  488.  L.  R.  20  Eq.  65,  42  L.  J.  Ch.  296. 

(a)    Biggins  v.  Pitt,  last  note.  (d)    Blacklock  v.  Dobie  (1876)   1  C. 

(6)   Hall  v.  Dyson  (1852)   17  Q.  B.  P.  D.  265,  45  L.  J.  C.  P.  498. 
785,  21  L.  J.  Q.  B.  224. 

13  If  a  creditor  receives  a  secret  advantage  from  a  stranger  without  the 
authority  but  with  the  knowledge  of  the  debtor  the  composition  may  be 
avoided.  Kullman  r.  Greenebaum,  92  Cal.  403;  Bank  of  Commerce  r. 
Hoeber,  88  Mo.  37;  Solinger  v.  Earle,  82  N.  Y.  393.  See  also  Coleman  r. 
Waller,  3  Y.  &  J.  212;  Knight  r.  Hunt,  5  Bing.  432;  Ex  parte  Milner,  15 
Q.  B.  D.  605;  Re  Sawyer,  14  N.  B.  Reg.  241;  Brown  r.  Nealley,  161  Mass.  1. 
Compare  Continental  Nat.  Bank  v.  McGeoch,  92  Wis.  286.  If  the  debtor  is 
ignorant  of  the  advantage  given  by  a  third  person  to  one  creditor,  other 
creditors  cannot  avoid  the  composition.  Martin  r.  Adams,  81  Hun,  9.  Sec 
also  Ex  parte  Milner,  15  Q.  B.  D.  605;  Bank  of  Commerce  v.  Hoeber,  88 
Mo.  37,  44. 

14  If  the  debtor  has  been  released,  the  release  is  valid  against  such  a 
creditor.  Huckins  l\  Hunt,  138  Mass.  366;  White  v.  Kuntz,  107  N.  Y. 
518.     Cp.  Walker  r.  Mayo,   143  Mass.  42. 

15  Nat.  Bankruptcy  Act,  1867,  R.  S.  U.  S.,  §  5131;  Austin  v.  Markham, 
44  Ga.  161;  Marble  v.  Grant,  73  Me.  423;  Blasdel  r.  Fowle,  120  Mass.  447; 
Tirrell  r.  Freeman,  139  Mass.  297;  Tinker  r.  Hurst,  70  Mich.  159;  Rice  v. 
Maxwell,  13  S.  &  M.  289;  Sharp  v.  Teese,  4  Halst.  352:  Payne  r.  Eden,  3 
Caines,  213;  Bruce  !'.  Lee,  4  Johns.  410;  Yeomans  r.  Chatterton.  9  Johns. 
295;  Wiggin  v.  Bush,  12  Johns.  305;  Tuxbury  v.  Miller,  19  Johns.  311; 
Dansby  r.  Frieberg,  76  Tex.  463. 

An  agreement  for  a  consideration  to  vote  for  a  particular  person  as 
assignee  is   illegal.     Eaton  r.   Littlefield,   147  Mass.   122. 

is  Frost  v.  Gage.  3  Allen,  560;  Bell  r.  Leggett,  7  N.  Y.  176.  See  also 
Re  Dietz,  97  Fed.  Rep.  563. 


FRAUD  ON  THIRD  PERSONS.  381 

agreements  to  commit  civil  injuries.  But  a  composition  with  cred- 
itors is  in  most  cases  something  more  than  an  ordinary  civil  contract ; 
it  is  in  truth  a  quasi-judicial  proceeding,  and  as  such  is  to  a  certain 
extent  assisted  by  the  law  (e).17  Public  policy,  therefore,  as  [282 
well  as  private  right,  requires  that  such  a  proceeding  should  be  con- 
ducted with  good  faith  and  that  no  transaction  which  interferes  with 
equal  justice  being  done  therein  should  be  allowed  to  stand. 

Fraud  on  third  parties  not  to  be  presumed  from  mere  possibilities.  The 
doctrine  of  fraud  on  third  parties,  as  it  may  be  called,  is  however  not 
to  be  extended  to  cases  of  mere  suspicion  or  conjecture.  A  possibility 
that  the  performance  of  a  contract  may  injure  third  persons  is  no 
ground  for  presuming  that  such  was  the  intention,  and  on  the 
strength  of  that  presumed  intention  holding  it  invalid  between  the 
parties  themselves. 

"  Where  an  instrument  between  two  parties  has  been  entered  into  for 
a  purpose  which  may  be  considered  fraudulent  as  against  some  third 
person,  it  may  yet  be  binding,  according  to  the  true  construction  of  its 
language,  as  between  themselves.'' 

Nor  can  a  supposed  fraudulent  intention  as  to  third  persons  (in- 
ferred from  the  general  character  and  circumstances  of  a  transaction) 
be  allowed  to  determine  what  the  true  construction  is  (/). 

3.  Certain  cases  of  analogous  nature  as  involving  "  fraud  on  third  persons." 
There  are  certain  cases  analogous  enough  to  the  foregoing  to  call  for 
mention  here,  though  not  for  any  full  treatment.  Their  general  type 
is  this:  There  is  a  contract  giving  rise  to  a  continuing  relation  to 
which  certain  duties  are  incident  by  law;  and  a  special  sanction  is 
provided  for  those  duties  by  holding  that  transactions  inconsistent 
with  them  avoid  the  original  contract,  or  are  themselves  voidable  at 
the  option  of  the  party  whose  rights  are  infringed.  We  have  results 
of  this  kind  from 

(a)  Dealings  between  a  principal  debtor  and  creditor  to  the  preju- 

dice of  a  surety : 

(b)  Dealings  by  an  agent  in  the  business  of  the  agency  on  his  own 

account : 

(c)  Voluntary  settlements  before  marriage  "in  fraud  of  marital 

rights." 

(e)  Bankruptcy  Act,    1833,   ss.   18,  (f)   Shaw    v.    Jeffery     (1860)     13 

19.     Since  this  Act  there  is  a  nota-       Moo.  P.  C.  432,  455. 
ble   increase   of  private   compositions 
independent  of  the  Act. 

17  See  Nat.  Bankruptcy  Act,  1898,  §§  12,  13,  14c. 


382  UNLAWFUL    AGREEMENTS. 

283]  *In  the  first  case  the  improper  transaction  is  as  a  rule  valid  in 
itself,  but  avoids  the  contract  of  suretyship.  In  the  second  it  is  void- 
able as  between  the  principal  and  the  agent.  In  the  third  it  is  (or 
was)  voidable  at  the  suit  of  the  husband. 

(a)   Dealings  between  principal  creditor  and  debtor  to  prejudice  of  surety. 

"Any  variance  made  without  the  surety's  consent  in  the  terms  of  the 
contract  between  the  principal  debtor  and  the  creditor  discharges  the 
surety  as  to  transactions  subsequent  to  the  variance"  (g),  unless  it 
is  evident  to  the  Court  "  that  the  alteration  is  unsubstantial,  or  that 
it  cannot  be  otherwise  than  beneficial  to  the  surety"  (A).18  The 
surety  is  not  the  less  discharged  "  even  though  the  original  agreement 
may  notwithstanding  such  variance  be  substantially  performed"  (t). 
An  important  application  of  this  rule  is  that  "  where  there  is  a  bond 
of  suretyship  for  an  officer,  and  by  the  act  of  the  parties  or  by  Act  of 
Parliament  the  nature  of  the  office  is  so  changed  that  the  duties  are 
materially  altered,  so  as  to  affect  the  peril  of  the  sureties,  the  bond 
is  avoided"  (t).19     But  when  the  guaranty  is  for  the  performance 

(g)   Indian  Contract  Act,  s.  133.  (k)    Oswald  v.  Mayor  of  Berimck- 

(h)    Holme  v.   BrunsHll    (1877)    3  on-Ticeed    (1856)    5  H.  L.  C.   856,  25 

Q.    B.    Div.    495     (diss.    Brett   L.J.),  L.  J.  Q.  B.  383 ;  Pi/bus  v.  Gibb  (1846) 

overruling  on  this  point  Sanderson  v.  6  E.  &  B.   902,   911,  26  L.  J.  B.  41; 

Aston  (1873)   L.  E.  8  Ex.  73,  42  L.  J.  Mayor      of      Cambridge     v.      Dmnis 

&x.  64.  ( 1858)  E.  B.  &  E.  660,  27  L.  J.  Q.  B. 

(t)Per  Lord  Cottenham,  Bonar  v.  474. 
Macdonald    (1850)     3    H.    L.    C.   226, 
238. 

18  Board  v.  Branham,  57  Fed.  Bep.  179.  "  The  law  requires  that  if  there 
is  any  agreement  between  the  principals  with  reference  to  a  contract  to  the 
performance  of  which  another  is  bound  as  surety,  he  ought  to  be  consulted 
in  regard  to  any  proposed  alteration,  and  if  he  is  not  or  does  not  consent  to 
the  alteration  he  will  be  no  longer  bound,  and  the  court  will  not  inquire 
whether  it  is  or  not  to  his  injury."  Paine  r.  Jones,  76  N.  Y.  274,  278 ; 
Reese  v.  United  States,  9  Wall.  13,  21;  Bank  c.  United  States,  164  U.  S. 
227;  United  States  Glass  Co.  r.  West  Virginia  Flint  Co..  81  Fed.  Rep.  993, 
995;  O'Neal  i\  Kelly,  65  Ark.  550;  Driscoll  r.  Winters,  122  Cal.  65;  Rowan 
v.  Sharp's  Rifle  Mfg.  Co.,  33  Conn.  1,  23;  Weir  Plow  Co.  r.  Walmsley,  110 
Ind.  242;  Stillman  r.  Wickham,  106  la.  597;  Warren  i\  Lyons,  152  Mass. 
310;  Fidelity  Assoc,  v.  Dewey,  83  Minn.  389;  Page  v.  Krekey,  137  N.  Y.  307, 
314;  Antisdel  v.  Williamson,  165  N.  Y.  372,  375;  Ide  r.  Churchill,  14  Ohio 
St.  372,  384;  Bensinger  v.  Wren,  100  Pa.  500. 

The  surety's  assent,  if  given  in  advance,  is  binding  upon  him.  Kretschmar 
v.  Bruss,  108  Wis.  396. 

A  surety  is  not  discharged  by  an  independent  collateral  agreement,  not 
injurious  to  him.  Glass  Cor?\  Mathews,  89  Fed.  Rep.  828,  891;  Bank  v.  Hyde, 
131  Mass.  77;  Stuts  r.  Straver,  60  Ohio  St.  384. 

19  Miller  r.  Stewart,  9  Wheat.  680;  United  States  v.  Freeh  186  U.  S.  309; 
Gass  r.  Stinson,  2  Sumner,  453;  United  States  v.  Cheeseman.  3  Sawyer,  424; 
Reynolds  v.  Hall.  1  Spam.  35;  People  v.  Tompkins,  74  111.  482;  Roman  r.  Peters, 
2  Rob.  (La.)  470;  First  Bank  P.  Gerke,  68  Md.  449;  Plunkett  r.  Davis  Co.,  84 
Md.    529;    Boston    Hat   Manufactory    v.    Messinger,    2    Pick.    223;    Denio   v. 


DEALINGS  PREJUDICIAL  TO  SURETY.  383 

of  several  and  distinct  duties,  and  there  is  a  change  in  one  of  them, 
or  if  an  addition  is  made  to  the  duties  of  the  principal  debtor  by  a 
distinct  contract,  the  surety  remains  liable  as  to  those  which  are 
unaltered  (I).20    The  following  rules  rest  on  the  same  ground: 

"  The  surety  is  discharged  by  any  contract  between  the  creditor  and 
the  principal  debtor  by  which  the  principal  debtor  is  released,  or  by 
any  act  or  omission  of  the  creditor  *the  legal  consequence  of  [284 
which  is  the  discharge  of  the  principal  debtor"  (m).21 

"A  contract  between  the  creditor  and  the  pricipal  debtor,  by  which 
the  creditor  makes  a  composition  with,  or  promises  to  give  time  to 
or  not  to  sue  the  principal  debtor,  discharges  the  surety,22  unless  the 

(Z)   Harrisonv.  Seymour  (1866)  L.  Cole    (1846)    16  M.  &  W.  128,   16  L. 

R.   1  C.  P.  518,  35  L.  J.  C.  P.  264;  J.  Ex.  115;   Cragoe  v.  Jones,    (1873) 

Skillett  v.  Fletcher  (1866)  L.  R.  1  0.  L.  R.  8  Ex.  81,  42  L.  J.  Ex.  68.     The 

P.  217,  224,  in  Ex.  Ch.  2.  C.  P.  469,  discharge    extends    to    any    security 

36  L.  J.  C.  P.  206.  given  bv  the  surety :  Bolton  v.  Salmon 

(m)   I.  C.  A.  s.   134.     Kearsley  v.  [1891]  "2  Ch.  48,  60  L.  J.  Ch.  239. 

State,  60  Miss.  949;  Blair  v.  Insurance  Co.,  10  Mo.  559;  Bank  v.  Dickerson, 
41  N.  J.  L.  448;  Kellogg  v.  Scott,  58  N.  J.  Eq.  344;  Nat.  Mechanics'  Banking 
Assn.  v.  Conkling,  90  N.  Y.  116;  American  Telegraph  Co.  v.  Lennig,  139 
Pa.  594;  Munford  v.  Railroad  Co.,  2  Lea,  393.  And  see  White  v.  East  Sag- 
inaw, 43  Mich.  567. 

20  See  Gaussen  v.  United  States,  97  U.  S.  584 ;  Garnett  r.  Farmers'  Bank, 
91  Ky.  614;  State  v.  Swinney,  60  Miss.  39;  Bank  v.  Traube,  75  Mo.  199; 
Bank  Supervisors  v.  Clark,  92  N.  Y.  391;  Major  v.  Kelly,  98  N.  Y.  467;  Daw- 
son i".  State,  38  Ohio  St.  1 ;  Lane's  Appeal,  105  Pa.  49 ;  Shackamaxom 
Bank  v.  Yard,  150  Pa.  351;  Harrisburg  Assoc,  v.  United  States  Fidelity 
Co.,  197  Pa.  177;  Commonwealth  v.  Holmes,  25  Gratt.  771;  Ames,  Cas. 
Suretyship,  274,  n.  Or  if  only  an  additional  amount  of  duty  is  added,  not 
amounting  to  a  change  in  the  nature  of  the  office,  the  sureties  remain  liable. 
United  States  v.  Gaussen,  2  Woods,  92;  Smith  r.  Peoria  Co.,  59  111.  412; 
Commonwealth  v.  Gabbert's  Admr.,  5  Bush,  438;  Strawbridge  f.  Railroad 
Co.,  14  Md.  360;  People  v.  Vilas,  36  N.  Y.  459;  King  v.  Nichols,  16  Ohio 
St.  80. 

21  Trotter  v.  Strong,  63  111.  272 ;  Sohier  v.  Loring,  6  Cush.  537 ;  Bingham 
v.  Wentworth,  11  Cush.  123;  Moore  v.  Paine,  12  Wend.  123;  Eichelberger 
v.  Morris,  6  Watts,  42.  "  The  consent  of  the  surety  to  the  release  of  the 
principal  prevents  such  release  operating  as  a  discharge  of  the  surety." 
Osgood  v.  Miller,  67  Me.  174. 

22  Bank  v.  Hatch,  6  Pet.  250;  Cox  v.  Railroad  Co.,  44  Ala.  611;  Stewart 
v.  Parker,  55  Ga.  656;  Meyers  v.  Bank,  78  111.  257;  White  v.  Whitney,  51 
Ind.  124;  Chickasaw  Co.  v.  Pitcher,  36  la.  593;  Lambert  v.  Shitler.  62 
la.  72;  Hubbard  r.  Ogden,  22  Kan.  363;  Andrews  v.  Marrett,  58  Me.  539: 
Dixon  v.  Spencer,  59  Md.  246:  Farnsworth  r.  Coots,  46  Mich.  117;  Campion 
v.  Whitney,  30  Minn.  177;  Stilwell  v.  Aaron,  69  Mo.  539;  Wild  v.  Howe, 
74  Mo.  551;  Haskell  v.  Burdette,  35  N.  J.  Eq.  31;  Ducker  v.  Rapp,  67  N.  Y. 
464;  Calvo  v.  Da  vies,  73  N.  Y.  211;  Prarie  v.  Jenkins,  75  N.  C.  545;  Carter 
t\  Duncan,  84  N.  C.  676 ;  Forbes  v.  Sheppard,  98  N.  C.  1 1 1 ;  Bank  v.  Lucas, 
26  Ohio  St.  385;  Osborn  v.  Low,  40  Ohio  St.  347;  Apperson  v.  Cross,  5 
Heisk.  481;  Dey  v.  Martin.  78  Va.  1;  Sayre  v.  King,  17  W.  Va.  562;  Weed 
Co.  v.  Oberreich,  38  Wis.  325.  As  to  the  application  of  this  doctrine  where  a 
mortgagee  gives  time  to  one  who  has  assumed    the  mortgage,  see  ante,  p.  264. 

To  release  the  surety  by  agreement  to  give  time,  the  agreement  must  be  for 
an  extension  for  a  definite  time.     King  v.  Haynes,  35  Ark.  463;   Gardner  v. 


384  UNLAWFUL    AGKEEMKXTS. 

surety  assents  to  such  contract"  (rc),23  or  unless  in  such  contract  the 
creditor  reserves  his  rights  against  the  surety  (o),24  in  which  case  the 

(n)    I.    C.   A.    a.    135.      Oakeley    v.  Gosling    (1871)    L.  R.   7   C.  P.  9,  41 

I'asheller   (1830)    4  CI.  &  F.  207,   10  L.  J.  C.  P.  53.     It  must  be  a  binding 

Bli.  N.  S.  548,  42  R.  R.  1 ;   Oriental  contract  with   the  principal   debtor : 

Financial     Corporation    v.     Overend,  Clarke  v.   Birley    (1889)    41    Cli.    D. 

(lurney  A  Co.    (1874)    L.  R.  7  H.  L.  422,  434,  58  L.  J.  Ch.  616. 

348;   Oreen  v.  Wynn   (1869)    L.  R.  4  (o)    Whether  the  surety  knows  of 

Ch.  204,  38  L.  J.  Ch.  220;  Bateson  v.  it  or  not:   Webo  v.  Hewitt    (1857)    3 

Watson,  13  111.  347;  Menifee  c.  Clark,  35  Ind.  304;  Bucklen  «.  Huff,  53  Ind. 
474;  Morgan  v.  Thompson,  60  la.  280;  Way  v.  Dunham,  166  Masa.  263;  Free- 
land  v.  Compton,  30  Miss.  424;  McCormick,  &c.  Co.  r.  Rae,  9  N.  Dak.  482; 
Ward  f\  Wick,  17  Ohio  St.  159;  Edwards  i:  Bedford  Chair  Co.,  41  Ohio  St. 
17;  Hayes  v.  Wells,  34  Md.  512;  Bank  t.  Legrand,  103  Pa.  30!). 

If  a  surety  who  has  been  discharged  by  indulgence  to  the  principal  after- 
wards with  knowledge  of  the  facts  promises  to  pay,  his  promise  is  binding 
without  a  new  consideration.  Porter  i:  Hodenpuvl,  9  Mich.  11;  Fowler  r. 
Brooks,  13  N.  H.  240;  Bramble  r.  Ward,  40  Ohio  St.'  267;  Churchill  v.  Bradley, 
58  Vt.  403.  Contra,  Walters  v.  Swallow,  6  Whart.  446.  And  see  Warren  r. 
Fant,  79  Kv.  1.  See  further  Ames's  Cas.  Suretyship,  227,  n. ;  2  Ames's  Cas. 
B.  &  N.  504",  n. 

An  agreement  by  the  creditor  to  give  time  procured  by  the  debtor  upon  the 
fraudulent  representation  that  the  surety  consents  thereto  may  be  avoided  by 
the  creditor  upon  discovery  of  the  fraud,  leaving  the  surety  liable.  Allen  r. 
Sharpe,  37  Ind.  67;  Kirby  r.  Landis,  54  la.  150;  Dwinnell  v.  McKibben,  93 
la.  331;  Douglass  r.  Ferris,  138  N.  Y.  192;  Bebout  v.  Bodle,  38  Ohio  St.  500; 
Bank  >\  Field,  143  Pa.  473;  First  Bank  v.  Buchanan,  87  Tenn.  32;  McDougall 
v.  Walling,  15  Wash.  78. 

The  fact  that  the  creditor  assented  to  a  discharge  in  bankruptcy  of  the 
principal  debtor  has  generally  been  held  not  to  release  a  surety.  Browne  r. 
Carr,  7  Bing.  508;  Megrath  r.  Gray,  L.  R.  9  C.  P.  216;  Ellis  r.  Wilmot, 
L.  R.  10  Ex.  10;  Ex  parte  Jacobs,  L.  R.  10  Ch.  211  (overruling  Wilson  r. 
Lloyd,  L.  R.  16  Eq.  00;  Be  Burchell,  4  Fed.  Rep.  406;  Guild  v.  Butler,  122 
Mass.  498;  Mason  &  Hamlin  Co.  v.  Bancroft,  1  Abb.  N.  C.  415;  Hill  v. 
Trainer,  49  Wis.  537.  But  see  contra,  Re  McDonald,  14  B.  R.  477;  Calloway 
i:  Snapp.  78  Ivy.  501  ;  Union  Nat.  Bank  r.  Grant,  48  La.  Ann.  18. 

In  Cilley  v.  Colby,  61  N.  H.  63,  even  though  it  was  found  as  a,  fact  that 
the  assent  of  the  plaintiff  was  necessary  to  make  the  required  amount  to 
confirm  a  composition  in  bankruptcy  of  the  principal  debtor  it  was  held  the 
surety  was  not  discharged.  In  Phelps  v.  Borland,  103  N.  Y.  406,  however,  a 
surety  was  held  discharged  by  the  action  of  the  creditor  in  taking  part  in 
a  foreign  bankruptcy  of  the  principal  debtor  and  thereby  making  the  debt 
subject  to  the  foreign  discharge.  See  also  Third  Bank  c.  Hastings,  134  N.  Y. 
501,  505. 

23  Gray's  Exrs.  v.  Brown,  22  Ala.  262 ;  Rockville  Bank  r.  Holt,  58  Conn. 
526;  Bank  r.  Whitman,  66  111.  331;  Crutcher  v.  Trabue,  5  Dana,  80;  Treat  r. 
Smith,  54  Me.  112;  Hutchinson  v.  Wright,  61  N.  H  108;  Kuhlman  r.  Leavens, 
5  Okl.  562;  Van  Home  v.  Dick,  151  Pa.  341;  Sawyer  v.  Senn,  27  S.  C.  251; 
Bowling  v.  Flood,  1  Lea,  678.  Nor  will  the  surety  be  discharged  where  the 
principal  has  indemnified  him  by  giving  ample  collateral  security.  Chilton  v. 
Robbing,  4  Ala.  223;  Wilson  v.  Tibbetts,  29  Ark.  579:  Moore  r.  Paine,  12 
Wend.  123;  Kleinhaus  v.  Generous,  25  Ohio  St.  667;  Smith  v.  Steele,"  25  Vt. 
427;  Fay  r>.  Tower,  58  Wis.  286;  Jones  v.  Ward,  71  Wis.  152. 

It  was  held  in  Guderian  v.  Leland,  61  Minn.  67,  and  Bramble  v.  Ward,  40 
Ohio  St.  267,  that  the  burden  of  proof  was  upon  the  surety  to  show  that  he 
did  not  assent.  But  see  contra,  Mundy  v.  Stevens,  61  Fed.  Rep.  77;  United 
Stntes  r.  M'Intyre,  111  Fed.  Rep.  590;  Menke  v.  Gerbracht,  75  Hun,  181. 

24  Hodges  v.  Elyton  Land  Co.,  109  Ala.  617.  Cp.  Elyton  Co.  v.  Hood,  121 
Ala.  373. 


DEALINGS  PREJUDICIAL  TO  SURETY.  385 

surety's  right  to  be  indemnified  by  the  principal  debtor  contin- 
ues (p).2°  One  reported  case  constitutes  an  apparent  exception  to  the 
general  rule,  but  is  really  none,  as  there  the  nominal  giving  of  time 
had  in  substance  the  effect  of  accelerating  the  creditor's  remedy  (q).26 
The  rule  applies  as  against  a  creditor  of  two  principal  debtors  of 
whom  one  has  become  primarily  liable  as  between  themselves,  whether 
the  creditor  assents  to  the  arrangement  or  not,  provided  he  has  notice 
of  it(r). 

"  If  the  creditor  does  any  act  which  is  inconsistent  with  the  rights 
of  the  surety,  or  omits  to  do  any  act  which  his  duty  to  the  surety  re- 
quires him  to  do,  and  the  eventual  remedy  of  the  surety  himself 
against,  the  principal  debtor  is  thereby  impaired,  the  surety  is  dis- 
charged" (s).27 

*"A  surety  is  entitled  to  the  benefit  of  every  security  which  the  [285 
creditor  has  against  the  principal  debtor  at  the  time  when  the  contract 
of  suretyship  is  entered  into,  whether  the  surety  knows  of  the  exist- 

K.  &  J.  438,  442;   and  see  peT  Lord  affirmed   [1894]    A.   C.   586,   63  L.   J. 

Hatherley,  L.  R.  7  Ch.  150.  Ch.  890. 

(p)   Close  v.  Close   (1853)   4  D.  M.  (s)   I.  C.  A.  s.   139    (=  Story,  Eq. 

&  G.  176,  185.  Jur.  §  325  nearly)  ;  Watson  v.  Allcock 

(q)    Hulme  v.  Coles   (1827)  2  Sim.  (1853)   4  D.   M.  &  G.  242,  supra,  p. 

12,  29  R.  R.  52.  179;  Burgess  v.  Eve   (1872)  L.  R.  13 

(r)    Oakeley  v.  Pasheller   (note(n)  Eq.  450,  41  L.  J.  Ch.  515;  Phillips  v. 

above)   as  discussed  and  explained  in  Foxall  (1872)  L.  R.  7  Q.  B.  666,  41  L. 

Rouse  v.   Bradford  Bkg.    Co.    [1894]  J.    Q.    B.    293;    Sanderson   v.    Aston 

2   Ch.   32,   63   L.   J.   Ch.   337,   C.  A.;  (1873)   L.  R.  8  Ex.  73,  42  L.  J.  Ex. 

64. 

25Roekville  Bank  v.  Holt,  58  Conn.  526;  Mueller  v.  Dobschuetz,  89  111. 
176;  Jones  v.  Sarchett,  61  la.  520;  Dean  v.  Rice,  63  Kan.  691;  Claggett  v. 
Salmon,  5  Gill  &  J.  314,  353;  Sohier  v.  Loring,  6  Cush.  537;  Kenworthy  v. 
Sawyer,  125  Mass.  28;  Richardson  r.  Pierce,  119  Mass.  165;  Hubbell  v.  Car- 
penter, 5  N.  Y.  171;  Morgan  v.  Smith,  70  N.  Y.  537;  Bank  v.  Lineberger,  83 
N.  C.  454;  Hagey  r.  Hill,  75  Pa.  108;  Viele  v.  Hoag,  24  Vt.  46;  Ames's  Cas. 
Suretyship,  150,  n. 

26Suvdam  r.  "Vance,  2  McLean,  99;  Fletcher  v.  Gamble,  3  Ala.  335;  Barker 
V.  MeClure,  2  Blackf.  14;  Hallett  v.  Holmes,  18  Johns.  28;  Upington  r.  May, 
40  Ohio  St.  247;  Gardner  v.  Van  Nostrand,  13  Wis.  543. 

27  White  v.  Life  Assn.  of  America,  63  Ala.  419;  Roberts  v.  Donovan,  70 
Cal.  108;  Railroad  Co.  v.  Gow,  59  Ga.  685;  Walsh  v.  Colquitt,  64  Ga.  740; 
Gradle  v.  Hoffman,  105  111.  147;  Estate  of  Rapp  r.  Phoenix  Ins.  Co.,  113 
111.  390;  Insurance  Co.  v.  Scott,  81  Ky.  540;  Clow  v.  Derby  Coal  Co.,  98  Pa. 
432. 

In  the  case  of  guaranty  of  the  conduct  of  an  employe,  the  surety  is  not 
discharged  by  the  employer's  omission  to  notify  him  of  the  employe's  default 
and  thereafter  continuing  him  in  his  service,  unless  the  default  is  of  a  nature 
indicating  a  want  of  integrity  in  the  employe.  Williams  «.  Lyman,  88  Fed. 
Rep.  237;  Insurance  Co.  v.  Hohvay,  55  la.  571;  Insurance  Co.  v.  Findley,  59 
T<>.  591;  Insurance  Co.  i\  Simmons,  131  Mass.  85;  Cumberland  Assoc,  v. 
Gibbs,  119  Mich.  318;  McKeeknie  v.  Ward,  58  N.  Y.  541;  Telegraph  Co.  r. 
Barnes.  64  N.  Y.  385;  Railroad  Co.  v.  Ling,  18  S.  C.  116;  Railroad  Co.  v. 
Casey,  30  Gratt.  218;  cp.  infra,  p.  660. 

35 


386 


UNLAWFUL   AGREEMENTS. 


ence  of  such  security  or  not;  and  if  the  creditor  loses  or  without  the 
consent  of  the  surety  parts  with  such  security,  the  surety  is  discharged 
to  the  extent  of  the  value  of  the  security  "  (t)  .28  Not  only  an  absolute 
parting  with  the  security,  but  any  dealing  with  it,  such  that  the  surety 
cannot  have  the  benefit  of  it  in  the  same  condition  in  which  it  existed 
in  the  creditor's  hands,  will  have  this  effect  (u).  For  the  same 
reason,  if  there  be  joint  sureties,  and  the  debtor  releases  one,  it  is  a 
release  to  all;  otherwise  if  the  sureties  are  several  (x). 

(b)  Dealings  by  agent  in  the  matter  of  the  agency  on  his  own  account. 

"  If  an  agent  deals  on  his  own  account  in  the  business  of  the  agency 
without  first  obtaining  the  consent  of  his  principal  and  acquainting 
him  with  all  material  circumstances  which  have  come  to  his  own 
knowledge  on  the  subject,  the  principal  may  repudiate  the  trans- 
action "  (y). 


(t)  I.  C.  A.  s.  141.  Mayhem  v. 
Crickett  (1818)  2  Swanst.  185,  191, 
19  R.  R.  57,  61 ;  Wulff  v.  Jay  ( 1872) 
L.  R.  7  Q.  B.  756,  762,  41  L.  J.  Q.  B. 
322;  Bechervaise  v.  Lewis  (1872)  L. 
R.  7  C.  P.  372,  41  L.  J.  C.  P.  161;  se- 
curities now  subsist  notwithstanding 
payment  of  the  debt  for  the  benefit  of 
a  surety  who  has  paid,  Mere.  Law 
Amendment  Act,  1856,  19  &  20  Vict, 
c.  97,  s.  5.  [Such  is  the  prevailing 
doctrine  in  this  country  independ- 
ently of  statute.  See  1  Wh.  &  T.  L. 
C,  4th  Am.  ed.  137 ;  Brandt  on  Guar- 
anty and  Suretyship,  §  270,  sqq.,  Pace 
v.  Pace's  Adm'.  95  Va.  792.  As  to 
dealings  between  creditor  and  debtor 
to  the  prejudice  of  a  surety,  see  the 
very  full  notes  to  Dee-ring  v.  Earl  of 
Winchelsea,  and  Rees  r.  Berrington, 
C.  in  Eq.]  A  right  to  distrain  for 
rent  is  not  a  security  or  remedy 
within  this  enactment:  Russell  V. 
fthoolbred  (1S85)  29  Ch.  Div.  254,  53 
L.  T.  365.     During  the  currency  of  a 


bill  of  exchange  an  indorser  is  not  a 
surety  for  the  acceptor.  But  after 
notice  of  dishonour  he  is  entitled  in 
like  manner  as  if  he  were  a  surety  to 
the  benefit  of  all  payments  made  and 
securities  given  by  the  acceptor  to  the 
holder :  Duncan,  Fox  &  Go.  v.  North 
•£  South  Wales  Bank  (1880)  6  App. 
Ca.  1,  revg.  s.  c.  in  C.  A.  11  Ch.  Div. 
88,  50  L.  J.  Ch.  355. 

(u)  Pledge  v.  Buss  (1860)  Johns. 
663. 

(x)  Ward  v.  Bank  of  New  Zealand 
(1883)  (J.  C.)  8  App.  Ca.  755,  52  L. 
J.  P.  C.  65. 

(y)  I.  C.  A.  s.  215.  The  Indian 
Act  goes  on  to  add,  "  if  the  case  show 
either  that  any  material  fact  has  been 
dishonestly  concealed  from  him  by  the 
agent,  or  that  the  dealings  of  the 
agent  have  been  disadvantageous  to 
him,"  but  these  qualifications  are  not 
recognized  in  English  law.  See  Story 
on  Agency  §  210;  Ex  parte  Laoey 
(1802)  6  Ves.  625,  6  R.  R.  9. 


28  Kirkpatrick  v.  Howck,  80  111.  122;  Sterne  v.  McKinney,  79  Ind.  578; 
Sample  i\  Cochran,  84  Ind.  594;  Sherraden  v.  Parker,  24  la.  28;  Lucas  Co.  v. 
Roberts,  49  la.  159;  Mingus  v.  Dougherty,  87  la.  56;  Saulet  r.  Trepagnier, 
2  La. 'Ann.  427;  Springer  v.  Toothaker,  43  Me.  381;  Cummins  r.  Little.  45 
M>\  183;  Baker  r.  Briggs,  8  Pick.  122;  Guild  r.  Butler,  127  Mass.  386;  Bank 
r.  Torrey,  134  Mass.  239;  Bank  v.  Thayer,  13fi  Mass.  459;  Nelson  v.  Munch, 
2S  Minn.  314;  Nettleton  v.  Land  Co.,  54  Minn.  395;  Burr  P.  Boyer,  2  Neb. 
265 ;  Bank  v.  Young,  43  N.  H.  457 ;  Kidd  v.  Hurley,  54  N.  J.  Eq.  177 ;  Bank  v. 
Page,  44  N.  Y.  453,  457;  Grow  v.  Garlock,  97  N.  Y.  81;  Smith  v.  McLeod,  3 
Ired.  Eq.  390;  Wharton  v.  Duncan,  83  Pa.  40;  Fegley  v.  McDonald,  89  Pa. 
128;  Gillespie  v.  Darwin.  6  Heisk.  21,  27;  Allen  v.  Heiily,  2  Lea,  141;  Hutton 
i'.  Campbell.  10  Lea,  170;  Murrell  r.  Scott,  51  Tex.  520;  Ashbv  r.  Smith.  6 
Leigh,  164;  Morton  v.  Dillon,  90  Va.  592;  Price  Co.  Bank  v.  McKenzie,  91 
Wis.   658. 


DEALINGS  BY  AGENT  AGAINST  DUTY.  387 

"If  an  agent  without  the  knowledge  of  his  principal  deals  in  the 
business  of  the  agency  on  his  own  account  instead  of  on  account  of 
his  principal,  the  principal  is  entitled  *to  claim  from  the  agent  [286 
any  benefit  which  may  have  resulted  to  him  from  the  transaction  "  (z). 

These  rules  are  well  known  and  established  and  have  been  over  and 
over  again  asserted  in  the  most  general  terms.  The  commonest  case 
is  that  of  an  agent  for  sale  himself  becoming  the  purchaser,  or  con- 
versely :  "  He  who  undertakes  to  act  for  another  in  any  matter  shall 
not  in  the  same  matter  act  for  himself.29  Therefore  a  trustee  for  sale 
shall  not  gain  any  advantage  by  being  himself  the  person  to  buy."  so 
"An  agent  to  sell  shall  not  convert  himself  into  a  purchaser  unless 
he  can  make  it  perfectly  clear  that  he  furnished  his  employer  with 

(a)  I.  C.  A.  s.  216. 

29Ringo  v.  Binns,  10  Pet.  269;  Baker  v.  Humphrey,  101  U.  S.  494;  Baker 
v.  Whiting,  3  Sumner,  475;  Kinley  v.  Irvine,  13  Ala.  681;  Rogers  v.  Lockett, 
28  Ark.  290;  Bowman  r.  Officer,  53  la.  640;  Krutz  v.  Fisher,  8  Kan,.  90;' 
Murphy  r.  Sloan,  24  Miss.  658 ;  Fulton  v.  Whitnev,  66  N.  Y.  548 ;  Bennett  r. 
Austin^  81  N.  Y.  308,  332;  Blount  v.  Robeson,  3  Jones  Eq.  73;  Pegrarn  v.  Rail- 
road Co.,  84  N.  C.  696;  Wade  v.  Pettibone,  11  Ohio,  570;  Bartholomew  v. 
Leech,  7  Watts,  472;  Meyer's  App.,  2  Pa.  St.  463;  Smith  c.  Collins,  1  Head, 
251,  256;  Hendee  v.  Cleaveland,  54  Vt.  142;  McMahon  v.  McGraw,  26  Wis.  614. 

An  agent  to  buy,  buying  for  himself,  holds  in  trust  for  his  principal.  Fire- 
stone v.  Firestone,  49  Ala.  128;  Church  v.  Sterling,  16  Conn.  388;  Switzer 
v.  Skiles,  8  111.  529;  Rose  v.  Hayden,  35  Kan.  106;  Bryan  v.  McNaughten, 
38  Kan.  98;  Matthews  v.  Light,  32  Me.  305;  King  r.  Remington,  36  Minn.  15; 
LeGendre  v.  Byrnes,  44  N.  J.  Eq.  372;  Reed  v.  Warner,  5  Paige,  650;  Noyes 
v.  Landon,  59  Vt.  569;  Welford  v.  Chancellor,  5  Gratt.  39. 

30Miehoud  v.  Girod,  4  How.  503;  Marsh  r.  Whitmore,  21  Wall.  178;  Walker 
v.  Palmer,  24  Ala.  358;  Kruse  v.  Steffens,  47  111.  112;  Appleton  v.  Turnbull, 
84  Me.  72;  McKay  v.  Williams,  67  Mich.  547;  Kimball  v.  Ranney,  122  Mich. 
160;  Staats  v.  Bergen,  17  N.  J.  Eq.  297,  554:  Davoue  v.  Fanning,  2  Johns. 
Ch.  252 ;  Moore  v.  Moore,  5  N.  Y.  256 ;  Gardner  r.  Ogden,  22  N.  Y.  327 ;  People 
v.  O.  B.  of  S.  B.  B.  Co.,  92  N.  Y.  98;  Piatt  i;.  Longworth's  Devisees,  27  Ohio 
St.  159,  195;  Caldwell  v.  Caldwell,  45  Ohio  St.  512:  Shannon  v.  Marmaduke, 
14  Tex.  217. 

A  purchase  of  the  subject-matter  of  the  trust  by  a  trustee,  although  the 
purchase  be  at  public  auction,  for  an  adequate  price,  and  fair  in  all  respects, 
will  be  set  aside  as  of  course,  at  the  election  of  the  cestui  que  trust,  unless1 
the  latter  forfeits  his  right  to  relief  by  laches  or  acquiescence.  75.;  Martin 
v.  Martin,  12  Ind.  266;  Mason  v.  Martin,  4  Md.  124;  Scott  v.  Freeland,  7 
S.  &  M.  409;  Marshall  v.  Carson,  38  N.  J.  Eq.  250;  Brothers  v.  Brothers,  7 
Ired.  Eq.  150;  Patton  v.  Thompson,  2  Jones  Eq.  285;  Newcomb  v.  Brooks, 
16  W.  Va.  32.  So  of  a  purchase  by  the  wife  of  a  trustee.  Tyler  v.  Sanborn, 
128  111.  136;  Frazier  v.  Jeakins,  64  Kan.  615;  Bassett  v.  Shoemaker,  46  N.  J. 
Eq.  538;  Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Dundas'  Appeal,  64  Pa.  325. 
Cp.  Miller  v.  Weinstein,  52  N.  Y.  App.  Div.  533. 

But  where  the  trustee  purchases  from  the  cestui  que  trust  himself,  who  is 
sui  juris,  and  intends  that  the  trustee  should  buy,  and  there  is  no  deception, 
no  concealment,  and  no  advantage  taken  by  the  trustee,  the  sale  will  be  upheld. 
Michoud  v.  Girod,  4  How.  503,  556;  Jones  v.  Lloyd,  117  111.  597;  Buell  v. 
Buckingham,  16  la.  284;  Keighler  v.  Savage  Mfg.  Co.,  12  Md.  383,  417; 
Fisher's  Appeal,  34  Pa.  29;  Spencer's  Appeal,  80  Pa.  317.  See  also  Dougan  v. 
Macpherson,  [1902]  A.  C.  197. 


388  UNLAWFUL    AGREEMENTS. 

all  the  knowledge  which  he  himself  possessed"  (a).31  "  It  is  an 
axiom  of  the  law  of  principal  and  agent  that  a  broker  employed  to 
sell  cannot  himself  become  the  buyer,  nor  can  a  broker  employed  to 
buy  become  himself  the  seller,  without  distinct  notice  to  the  principal, 
so  that  the  latter  may  object  if  he  think  proper"  (6).32  Similarly 
an  agent  for  sale  or  purchase  must  not  act  for  the  other  party  at  the 
same  time  or  take  a  secret  commission  from  him  (c).  If  the  local 
usage  of  a  particular  trade  or  market  countervenes  this  axiom  by 
"  converting  a  broker  employed  to  buy  into  a  principal  selling  for 
himself,"  it  cannot  be  treated  as  a  custom  so  as  to  bind  a  principal 

(a)  WHchcote  v.  Lawrence  (1798)  Giffard  L.J.  39  L.  J.  Ch.  536;  ghar- 
3  Yes.  740;  Lowther  \.  Lowther  man  v.  Brandt  (1871)  L.  R.  6  Q.  B. 
(1806)     13    Ves.    95,    103;    and    see       720,  40  L.  J.  Q.  B.  312. 

Charter  v.  Trevelyan  (1844)   11  CI.  &  (c)   The  latest  case,  which,  if  any- 

F.  714.  732.  thing,  increases  the  wholesome  strict- 

(b)  Per  Willes  J.  in  Mollett  v.  ness  of  the  law,  is  Grant  v.  Gold  Ex- 
Robinson  (1870)  L.  R.  5  C.  P.  at  p.  ploration  &c.  Syndicate  of  British 
655,  39  L.  J.  C.  P.  290.  Cp.  Guest  v.  Columbia  [1900]  1  Q.  B.  233,  69  L.  J. 
Smythe   (1870)   L.  R.  5  Ch.  551,  per  Q.  B.  150,  C.  A. 

si  Jeffries  r.  Wiester,  2  Sawyer,  135;  Ingle  v.  Hartman,  37  la.  274;  Keighler 
v.  Savage  Mfg.  Co.,  12  Md.  383. 

An  agent  to  sell  cannot  himself  become  the  purchaser  unless  he  is  known 
to  his  principal  to  be  such.  Adams  v.  Sayre,  70  Ala.  318;  Eldredge  i\  Walker, 
60  111.  230;  Copeland  v.  Insurance  Co.,  6  Pick.  198;  Rennick  r.  Butterfield, 
21  N.  H.  70;  Martin  v.  Moulton,  8  N.  H.  504;  Clendenning  v.  Hawks,  10 
N.  Dak.  90;  Bank  v.  Farmers'  L.  &  T.  Co.,  16  Wis.  629. 

And  the  rule  applies  where  the  employment  is  to  sell  at  a  stipulated  price. 
Porter  r.  Woodruff,  36  N.  J.  Eq.  174;  Ruckman  v.  Bergholz,  37  N.  J.  L.  437; 
Iron  Co.  r.  Harper,  46  Ohio  St.  100.  And  see  Bank  v.  Simons,  133  Mass. 
415;  Rich  v.  Black,  173  Pa.  92;  De  Bussche  v.  Alt,  8  Ch.  D.  286,  317;  9  Harv. 
L.  Rev.  349;   13  ib.  522. 

A  factor  directed  to  procure  insurance  cannot  himself  become  the  insurer. 
Kean  i\  Brandon,  12  La.  Ann.  20. 

32  Conkey  r.  Bond,  36  N.  Y.  427 ;  Taussig  v.  Hart,  49  N.  Y.  301 ;  58  N.  Y. 
425;  Stewart  r.  Mather,  32  Wis.  344.  And  see  Levy  v.  Loeb,  85  N.  Y.  365; 
89  N.  Y.  386. 

A  broker  acting  for  both  vendor  and  purchaser  cannot  recover  for  his 
services.  Fritz  v.  Finnerty,  5  Col.  174;  Young  v.  Trainor,  158  111.  428;  Rail- 
road Co.  v.  Pattison,  15  Ind.  70;  Lloyd  v.  Colston,  5  Bush,  587;  Rice  r.  Wood. 
113  Mass.  133;  Follansbee  v.  O'Reilly,  135  Mass.  80;  Carpenter  v.  Fisher, 
175  Mass.  9 ;  Scribner  v.  Collar,  40  Mich.  375 ;  Hannan  r.  Prentis,  124  Mich. 
417;  Everhardt  v.  Searle,  71  Pa.  256;  Mayo  v.  Knowlton.  134  N.  Y.  250; 
Carpenter  v.  Hogan,  40  Ohio  St.  203;  Lynch  v.  Fallon,  11  R.  I.  311;  Meyer 
r.  Hanchett,  39  Wis.  419 ;  43  Wis.  246.  Cp.  Alexander  r.  N.  W.  C.  University, 
57  Ind.  466;  Alvord  v.  Cook,  174  Mass.  120,  unless  the  double  agency  was 
with  the  full  knowledge  and  consent  of  both  principals;  ib.;  Bell  r.  McConnell, 
37  Ohio  St.  396;  Rowe  r.  Stevens,  53  ST.  Y.  621.  Cp.  Raisin  v.  Clark,  41  Md. 
158;  Pinney  r.  Hall,  101  Mich.  451. 

A  mere  middleman  to  bring  the  parties  together  may  contract  for  com- 
pensation from  both.  Clark  r.  Allen,  125  Cal.  276 ;  Cox  r.  Haun,  127  Ind. 
325;  Mullen  r.  Keetzleb,  7  Bush,  253;  Rupp  r.  Sampson,  16  Gray,  398;  Friar 
v.  Smith,  120  Mich.  411;  Collins  r.  Fowler,  8  Mo.  App.  588;  Jarvis  v.  Schaefer, 
105  N.  Y.  289;  Orton  r.  Scofield,  61  Wis.  382.  And  see  Barry  v.  Schmidt, 
57  Wis.  172;  McKenzie  v.  Lego,  98  Wis.  364. 


DEALINGS    BY    AGENT   AGAINST   DUTY.  3891 

dealing  in  that  trade  or  market  through  a  broker,  but  himself  igno- 
rant of  the  usage  (d).33 

*The  rule  is  not  arbitrary  or  technical,  but  rests  on  the  prin-  [287 
ciple  that  an  agent  cannot  be  allowed  to  put  himself  in  a  position  in 
which  his  interest  and  his  duty  are  in  conflict,  and  the  Court  will  not 
consider  "whether  the  principal  did  or  did  not  suffer  any  injury  in 
fact  by  reason  of  the  dealing  of  the  agent;  for  the  safety  of  mankind 
requires  that  no  agent  shall  be  able  to  put  his  principal  to  the  danger 
of  such  an  inquiry  as  that."  34    It  is  a  corollary  from  the  main  rule 

(d)   Robinson  v.  Mollett   (1874-5)  10  Ch.  593,  44  L.  J.  Ch.  721;  Albion 

L.  R.  7  H.  L.  802,  838,  44  L.  J.  C.  F.  Steel  Wire  Co.  v.  Martin  (1875)  1  Ch. 

362;   and  further   as  to   alleged  cus-  D.  at  p.  585,  per  Jessel  M.R.  45  L.  J. 

toms  of  this  kind  De  Bussche  v.  Alt  Ch.  173;  as  to  promoters,  New  Som- 

(1877)    8  Ch.  Div.  286,  47  L.  J.  Ch.  brero     Phosphate     Co.     v.     Erlanger 

386.     For  the  special  application  of  (1877)    5   Ch.  Div.  73,  46  L.   J.   Ch. 

the  rule  to  the  duty  of  directors  of  425. 
companies,  Hay's   case    (1875)    L.  R. 

33  As  to  alleged  customs  of  this  kind,  see  Irwin  v.  Williar,  110  U.  S.  499; 
Allen  v.  St.  Louis  Bank,  120  U.  S.  20,  39;  Terry  v.  Birmingham  Bank,  99 
Ala.  566;  Skiff  v.  Stoddard,  63  Conn.  198;  Raisin  v.  Clark,  41  Md.  458;  Day 
v.  Holmes,  103  Mass.  306;  Commonwealth  v.  Cooper,  130  Mass.  285;  Merchants' 
Ins.  Co.  v.  Prince,  50  Minn.  53. 

For  the  application  of  the  rule  to  directors  of  corporations,  see  Wardell 
v.  Railroad  Co.,  4  Dill.  330;  affd.,  103  U.  S.  651;  Bill  v.  W.  U.  Telegraph 
Co.,  16  Fed.  Rep.  14;  Meeker  v.  Winthrop  Iron  Co.,  17  Fed.  Rep.  48;  Bensiek 
v.  Thomas,  66  Fed.  Rep.  104;  Wilbur  v.  Hough,  49  Cal.  290;  San  Diego  R. 
Co.  v.  Pacific  Beach  Co.,  112  Cal.  53;  Port  v.  Russell,  36  Ind.  60;  Ryan  v. 
Railway  Co.,  21  Kan.  365;  Bank  v.  Drake,  29  Kan.  311;  Railroad  Co.  v. 
Bowler,  9  Bush,  468;  Railroad  Co.  v.  Poor,  59  Me.  277;  Hoffman  Coal  Co.  v. 
Cumberland  Coal  Co.,  16  Md.  456;  Railway  Co.  v.  Dewey,  14  Mich.  477;  Miner 
v.  Belle  Isle  Co.,  93  Mich.  97;  Manufacturers'  Bank  v.  Iron  Co.,  97  Mo. 
38;  Blake  v.  Railroad  Co.,  56  N.  Y.  485;  Munson  v.  Magee,  161  N.  Y.  182; 
Goodin  v.  Canal  Co.,  18  Ohio  St.  169;  Ashurst's  Appeal,  60  Pa.  290;  Parsons 
r.  Tacoma  Co.,  25  Wash.  492.  Cp.  Rolling  Stock  Co.  v.  Railroad  Co.,  34 
Ohio  St.  450. 

As  to  promoters,  Wiser  v.  Lawler,  189  U.  S.  260;  Yeiser  v.  United  States 
Board  Co.,  107  Fed.  Rep.  340  (OCA.);  Central  Trust  Co.  v.  East  Tenn.  Land 
Co.,  116  Fed.  Rep.  743;  Burbank  v.  Dennis,  101  Cal.  90;  Yale  Gas  Stove  Co.  v. 
Wilcox,  64  Conn.  101;  Hayward  v.  Leeson,  176  Mass.  310;  Cook  v.  South  Co- 
lumbia Co.,  75  Miss.  121;  Exter  v.  Sawyer,  146  Mo.  302;  Woodbury,  &c.  Co.  v. 
Loudenslager,  55  N.  J.  Eq.  78;  Getty  v.  Devlin,  54  N.  Y.  403;  McElhenny  v. 
Hubert  Oil  Co.,  61  Pa.  188;  Simons  v.  Vulcan  Oil  Co.,  61  Pa.  202;  Densmore 
Oil  Co.  v.  Densmore,  64  Pa.  43.  Cp.  Blood  v.  La  Serena  Land  Co.,  134  Cal. 
361. 

34  Humphrey  v.  Eddy  Transportation  Co.,  107  Mich.  163;  Porter  v.  Wood- 
ruff, 36  N.  J.  Eq.  174,  179,  180;  Taussig  v.  Hart,  58  N.  Y.  425;  Rolling  Stock 
Co.  v.  Railroad  Co.,  34  Ohio  St.  450,  460;  Everhardt  v.  Searle,  71  Pa.  256. 

An  agreement  to  pay  a  commission  to  the  agent  of  another  by  one  who  is 
about  to  contract  with  that  other,  if  the  agent  will  use  his  influence  to  induce 
his  principal  to  enter  into  the  contract,  is  a  corrupt  agreement,  and  not 
enforceable  at  law,  even  though  it  does  not  induce  the  agent  to  act  corruptly. 
It  would  be  "  most  mischievous  to  hold  that  a  man  could  come  into  a  court 
of  law  to  enforce  such  a  bargain  on  the  ground  that  he  was  sot  in  fact 
corrupted.  It  is  quite  immaterial  that  the  employer  was  not  in  fact  dam- 
aged."   Harrington  v.  Victoria  Graving  Dock  Co.,  3  Q.  B.  D.  549;  Woodstock 


390  UNLAWFUL  AGREEMENTS. 

that  so  long  as  a  contract  for  sale  made  by  an  agent  remains  execu- 
tory lie  cannot  re-purchase  the  property  from  his  own  purchaser 
except  for  the  benefit  of  his  principal  (e).35  A  like  rule  applies  to  the 
case  of  an  executor  purchasing  any  part  of  the  assets  for  himself.  But 
it  is  put  in  this  somewhat  more  stringent  form,  that  the  burden  of 
proof  is  on  the  executor  to  show  that  the  transaction  is  a  fair  one. 
This  brings  it  very  near  to  the  doctrine  of  Undue  Influence,  of  which 
in  a  later  chapter.  It  makes  no  difference  that  the  legatee  from  whom 
the  purchase  was  made  was  also  co-executor  (/).  Another  branch 
of  the  same  principle  is  to  be  found  in  the  rules  against  trustees  and 
limited  owners  renewing  leases  or  purchasing  reversions  for  them- 
selves (g).se 

Again :  "  It  may  be  laid  down  as  a  general  principle  that  in  all 
cases  where  a  person  is  either  actually  or  constructively  an  agent  for 
other  persons,  all  profits  and  advantages  made  by  him  in  the  business 
beyond  his  ordinary  compensation  are  to  be  for  the  benefit  of  his 
employers"  (h).37    "If  a  person  makes  any  profit  by  being  employed 

(e)  Parker  r.  McEewna  (1874)  10'  Ch.  870,  42  L.  J.  Ch.  641.  On  the 
Ch.  96,  118,  124,  125,  44  L.  J.  Ch.  general  rule  see  also  Marsh  v.  WMt- 
425.  more   (1874)    (Sup.  Court,  U.  S.)   21 

(f)  Gray  v.  Warner   (1873)    L.  R.  Wall.  178. 

16  Eq.  577,  42  L.  J.  Ch.  556.  (h)     Story     on     Agency,     §     211, 

(g)  Notes  to  Keech  v.  Sandford  adopted  by  the  Court  in  Horison  v. 
(1726)  in  1  Wh.  &  T.  L.  C.  The  last  Thompson  (1874)  L.  R.  9  Q.  B.  489, 
ease  on  the  subject  is  Trumper  v.  485,  43  L.  J.  Q.  B.  215,  where  several 
Trumper   (1873)   L.  R.  14  Eq.  295,  8  cases  are  collected. 

Iron  Co.  v.  Richmond  Extension  Co.,  129  U.  S.  643,  656;  Alger  v.  Anderson, 
78  Eed.  Rep.  729,  738;  Continental  Trust  Co.  v.  Toledo,  &c.  Ry.  Co.,  86  Fed. 
Rep.  929,  945;  Union  Ins.  Co.  v.  Berlin,  90  Fed.  Rep.  779  (C.  C.  A.)  ;  Boll- 
man  v.  Loomis,  41  Conn.  581;  Atlee  v.  Fink,  75  Mo.  100;  Byrd  v.  Hughes, 
84  111.  174;  Holcomb  v.  Weaver,  136  Mass.  265.  Cp.  Dexter  v.  McClellan, 
116  Ala.  37. 

An  agreement  between  two  real  estate  agents  representing  different  parties 
to  divide  commissions  in  ease  they  could  effect  a  sale  or  exchange  between 
their  principals  was  held  void  in  Levy  v.  Spencer,  18  Col.  532;  but  in  Alvord 
v.  Cook,  174  Mass.  120,  it  was  held  that  such  an  arrangement  was  not  fraudu- 
lent as  matter  of  law. 

35  Bain  v.  Brown,  56  N.  Y.  285;  Caldwell  r.  Caldwell,  45  Ohio  St.  512; 
Cook  v.  Berlin  W.  M.  Co.,  43  Wis.  433.  See  also  Williams  v.  Scott,  [1900] 
A.  C.  499. 

36Gower  v.  Andrew,  59  Cal.  119;  Davis  v.  Hamlin,  108  111.  39;  Grumley  v. 
Webb,  44  Mo.  444;  Holdridge  v.  Gillespie,  2  Johns.  Ch.  30;  Mitchell  r.  Reed, 
61  N.  Y.  123;  84  N.  Y.  556;  Perry  on  Trusts,  S§  196,  538.  See  also  Kimberly 
v.  Arms,  129  U.  S.  510;  Turner  v.  Sawyer,  150  TJ.  S.  578;  Williamson  v.  Mon- 
roe, 101  Fed.  Rep.  322;  Snead  v.  Deal,  53  Ark.  152;  Franklin  Min.  Co.  v. 
O'Brien,  22  Col.  129;  Larev  !>.  Baker,  86  Ga.  468;  Abrams  «.  Wingo.  9  Kan. 
App.  884;  Robinson  r.  Jewett,  116  N.  Y.  40;  Lacy  v.  Hall,  37  Pa.  365; 
Johnson's  Appeal,  114  Pa.  132. 

37  Railroad  Co.  ?.  Kindred.  3  McCrary,  627;  Vallette  v.  Tedens,  122  111.  607; 
Helberg  v.  Nichol.  149  Til.  249:  Laffertv  r.  Jelly,  22  Ind.  471;  Ackenburgh  v. 
McCool,  36  Ind.  473;  Love  v.  Hoss,  62  Ind.  255-  Blanchard  v.  Jones,  101  Ind. 


DEALINGS  BY  AGENT  AGAINST  DUTY.  391 

contrary  to  his  trust,  the  employer  has  a  right  to  call  back  *that  [288 
profit"  (i).  And  it  is  not  enough  for  an  agent  who  is  himself  inter- 
ested in  the  matter  of  the  agency  to  tell  his  principal  that  he  has 
some  interest:  he  must  give  full  information  of  all  material 
facts  (fc).38 

Even  this  is  not  all :  an  agent,  or  at  any  rate  a  professional  adviser, 
cannot  keep  any  benefit  which  may  happen  to  result  to  him  from  his 
own  ignorance  or  negligence  in  executing  his  duty.  In  such  a  case 
he  is  considered  a  trustee  for  the  persons  who  would  be  entitled  to 
the  benefit  if  he  had  done  his  duty  properly  (l).SB 

Nature  of  remedies  applicable.  In  this  class  of  eases  the  rule  seems  to 
be  that  the  transaction  improperly  entered  into  by  the  agent  is  void- 
able so  far  as  the  nature  of  the  case  admits.     Where  it  cannot  be 

(i)   Massey    v.    Da-vies     (1794)     2  cent  exposition  of  its  limits,  see  Costa 

Ves.  317,  320,  2  R.  R.  218.  Rica  R.  Co.  v.  Forwood  [1901]   1  Ch. 

(fc)    See  authorities  collected,  and  746,  70  L.  J.  Ch.  385,  C.  A. 

observations    of    the    Court    thereon,  {I)   Bulkley  v.    Wilford    (1834)    2 

Dunne  v.  English  (1874)  L.  R.  18  Eq.  CI.  &  F.  102.  37  ±t.  R.  39.     Cp,  Corley 

524,   534.      The   developments   of  the  v.  Lord  Stafford  ( 1857 )    1  De  G.  &  J. 

principle    in    modern    company    law  238.     As  to  alternative  remedies,  see 

cannot  be  followed  here.     For  a  re-  Grant's  case,  p.  *286,  above. 

542;  Thomas  v.  Sweet,  37  Kan.  183;  MeNutt  r.  Dix,  83  Mich.  328;  Goodhue 
v.  Davis,  46  Minn.  210;  Seehorn  v.  Hale,  130  Mo.  257;  Dodd  v.  Wakeman, 
26  N.  J.  Eq.  484,  487;  Dutton  v.  Willner,  52  N".  Y.  S^ ;  Wilson  v.  Wilson,  4 
Abb.  App.  Dec.  621;  Noyes  v.  Landon,  59  Vt.  569.  And  see  the  cases  in  note 
40. 

Even  though  the  agency  is  gratuitous  the  principle  is  applicable.  Salsbury 
r.  Ware,  183  111.  505. 

Where  an  agent,  in  violation  of  his  contract  of  agency,  engaged  in  another 
business  of  similar  character  to  that  which  he  was  conducting  for  his  prin- 
cipal, the  profits  of  his  private  venture  were  held  to  belong  to  the  principal 
in  James  T.  Hair  Co.  v.  Daily,  161  111.  379. 

"  An  agent  cannot  exact  of  his  principal  any  advantage  growing  out  of  a 
contract  made  by  the  agent  in  his  principal's  name,  unless  the  latter  has 
expressly  authorized  or  ratified  it,  with  knowledge  that  such  advantage  would 
accrue."     Vreeland  v.  Van  Blareom,  35  N.  J.  Eq.  530. 

A  director  of  a  corporation  is  bound  to  account  to  the  corporation  for  all 
profits  secretly  made  by  him  out  of  his  office.  Bank  v.  Downey,  53  Cal.  466 ; 
Bent  v.  Priest,  86  Mo.  475;  McClure  r.  Law,  161  N.  Y.  78;  Bird  Coal  Co.  v. 
Hume,  157  Pa.  278;  Rutland  Electric  Light  Co.  r.  Bates,  68  Vt.  579.  But  in 
Bristol  v.  Scranton,  63  Fed.  Rep.  218  (C.  C.  A.),  it  was  held  that  where  the 
president  of  a  corporation  contracted  in  good  faith  for  the  consolidation  of 
his  corporation  with  a,  rival,  and  where  the  latter  would  not  consolidate 
unless  the  president  would  agree  not  to  engage  in  the  business  personally  for 
a  term  of  years,  and  he  made  such  an  agreement  for  a  consideration,  the  con- 
sideration could  not  be  recovered. 

A  gift  made  to  the  plaintiff's  agent  by  one  from  whom  the  agent  had 
made  a  purchase  on  behalf  of  the  plaintiff  after  the  conclusion  of  the  agency 
was  sustained  in  Lamb  Knit  Goods  Co.  v.  Lamb,  119  Mich.  568.  Cp.  Downard 
V.  Hadlev,  116  Ind.  131. 

38  Mulvane  r.  O'Brien,  58  Kan.  463. 

39  See  Downard  v.  Hadley,  116  Ind.  131. 


392  UNLAWFUL   AGREEMENTS. 

avoided  as  against  third  parties,  the  principal  can  recover  the  profit 
from  the  agent.40  But  where  there  are  a  principal,  an  agent,  and  a 
third  party  contracting  with  the  principal  and  cognizant  of  the 
agent's  employment,  and  there  are  dealings  between  the  third  party 
and  the  agent  which  give  the  agent  an  interest  against  his  duty,  there 
the  principal  on  discovering  this  has  the  option  of  rescinding  the 
contract  altogether.  Thus  when  company  A.  contracted  to  make  a 
telegraph  cable  for  company  B.,  and  a  term  of  the  contract  was  that 
the  work  should  be  approved  by  C,  the  engineer  of  company  B.,  and 
C.  took  an  undisclosed  sub-contract  from  company  A.  for  doing  the 
same  work;  and  further  it  appeared  that  this  arrangement  was  con- 
templated when  the  contract  was  entered  into ;  it  was  held  that  com- 
pany B.  might  rescind  the  contract  (m).4 

289]  *(c)  Settlements  in  fraud  of  marital  right.  The  rule  as  to  settle- 
ments "  in  fraud  of  marital  right "  was  thus  given  by  Lord  Lang- 
dale  (n)  : — 

"  If  a  woman  entitled  to  property  enters  into  a  treaty  for  marriage  and 
during  the  treaty  represents  to  her  intended  husband  that  she  is  so  entitled 
that  upon  her  marriage  he  will  become  entitled  jure  mariti,  and  if  during 
the  same  treaty  she  clandestinely  conveys  away  the  property  in  such  man- 
ner as  to  defeat  his  marital  right,  and  secure  to  herself  the  separate  use  of 
it,  and  the  concealment  continues  till  the  marriage  takes  place,  there  can  be 
no  doubt  but  that  a  fraud  is  thus  practised  on  the  husband  and  he  is  entitled 
to  relief  "(o).42 

Moreover — "  If  both  the  property  and  the  mode  of  its  conveyance,  pending 
the  marriage  treaty,  were   concealed  from  the   intended  husband,   as  in  the 

( m )    Panama    &    S.    Pacific    Tele-  ( n )    Cp.  on  this  subject  Dav.  Conv. 

graph   Co.   v.   India   Rubber,   dc.    Co.  vol.  3,  pt.  2,  707. 

(1875)  L.  R.  10  Ch.  515,  45  L.  J.  Ch.  (o)    England   v.    Downs    (1840)     2 

121.  Beav.  522,  528,  50  R.  R.  268,  272,  273. 

40  gee  De  Bussche  v.  Alt,  8  Ch.  D.  286 ;  Perry  v.  Tuscaloosa  Co.,  93  Ala.  364 ; 
Kerfoot  r.  Hyman,  52  111.  512;  Stoner  v.  Weiser,  24  la.  434;  Moore  v.  Man- 
dlebaum,  8  Mich.  433;  Rutland  Electric  Light  Co.  v.  Bates,  68  Vt.  579; 
Seegar  v.  Edwards,  11  Leigh,  213;  Bell  v.  Bell,  3  W.  Va.  183;  Fountain 
Spring  Co.   v.   Roberts,  92  Wis.  345. 

The  person  who  corrupts  or  conspires  with  an  agent  is  liable  to  the  prin- 
cipal. Mayor  v.  Lever,  25  Q.  B.  D.  363,  [1891]  1  Q.  B.  168;  Lister  v.  Stubbs, 
45  Ch.  X>.  1.  12;  Grant  v.  Gold  Syndicate,  [1900]  1  Q.  B.  233;  Emmons  v. 
Alvord,  177  Mass.  466;  Stoney  Creek  Woolen  Co.  i.  Smallev,  111  Mich.  321. 
Cp.  Thorp  v.  Smith,  18  Wash.  277. 

Nor  can  he  recover  from  the  agent  his  agreed  share  of  the  corrupt  profits. 
Talbott  i>.  Luckett   (Md.  App.),  30  Atl.  Rep.  565. 

a  Ace.  Smith  v.  Sorby.  3  Q.  B.  D.  552;  Findlay  n.  Pcrtz,  66  Fed.  Rep.  427; 
Alger  v.  Anderson,  78  Fed.  Rep.  728;  Young  r.  Hughes,  32  N.  J.  Eq.  372; 
Ritter  v.  Railroad  Co.,  (R.  C.  Pa.)  7  W.  N.  Cas.  122.  And  see  W.  U.  Tel. 
Co.  r.  U.  P.  Ry.  Co..  1  McCrary,  581;  Baltimore  Sugar  Co.  v.  Campbell 
&  Zell  Co.,  831  Md.  36;  Landis  v.  Saxton,  89  Mo.  375;  Kelsev  f.  New  England 
Co..  62  N.  J.  Eq.  742:  Yeoman  v.  Lasley,  40  Ohio  St.  190.  Cp.  Yellow  Poplar 
Lumber  Co.  v.  Daniel,  109  Fed.  Rep.  39   (C.  C.  A.). 

42  See  Green  v.  Green,  34  Kan.  740. 


FRAUD    ON    MARITAL    RIGHT.  393 

case  of  Ooddard  v.  Snow  (p) ,  there  is  still  a  fraud  practised  on  the  husband. 
The  non-acquisition  of  property  of  which  he  had  no  notice  is  no  disappoint- 
ment, but  still  his  legal  right  to  property  actually  existing  is  def eated  "  ( q )  .•*» 

The  Married  Women's  Property  Act,  1882,  has  made  the  subject 
obsolete  in  this  country  as  regards  all  marriages  contracted  after  its 
commencement,  and  there  has  been  no  reported  decision  for  many 
years.  It  is  now  thought  advisable  to  omit  the  details  given  in  former 
editions. 

[As  the  details  thus  referred  to  still  have  value  in  this  country  they 
are  here  reprinted  from  the  Fourth  English  edition,  the  latest  in 
which  they  appeared. 

In  order  to  have  such  a  settlement  set  aside  the  husband  must  prove : 

(i)  That  he  was  the  intended  husband  at  the  date  of  the  settle- 
ment— i.  e.  that  there  was  then  a  complete  contract  to  marry,  which 
continued  until  the  marriage  (o). 

(ii)  That  the  settlement  was  not  known  to  him  till  after  the  mar- 
riage (p1). 

What  if  the  intended  husband  knows  that  some  disposition  has  been 
or  is  to  be  made,  but  not  its  contents?  The  doctrine  as  far  as  it  has 
gone  seems  to  be  that  such  knowledge  makes  it  the  duty  of  the  hus- 
band to  inform  himself,  and  if  he  omits  inquiry  he  cannot  afterwards 
complain  (q1) ;  but  if  he  does  inquire,  and  incorrect  information  is 

(p)    (1826)    1  Russ.  485.     See  the  R.  389;  Wrigley  v.  Swainson   (1849) 

earlier  authorities  there  discussed.  3  De  G.  &  Sm.  458 ;  Prideaux  v.  Lons- 

(q)   England    v.    Downs,    2    Beav.  dale   (1863)   4  Giff.  159,  on  appeal,  1 

529;    50  R.  R,   273.     Cp.  Downes  v.  D.   J.  &   S.  433,  438,  no  decision  on 

Jennings    (1863)    32  Beav.   290,   294.  this  part  of  the  case;  Taylor  v.  Pugh 

See     further    8t.     George    v.     Wake  (1842)   1  Hare  608. 
(1831-3)   1  My.  &  K.  610,  625,  36  R. 

(o)  England  v.  Downs,  supra.  Cp.  Downes  v.  Jennings,  32  Beav.  290,  294. 
[See  Gainor  v.  Gainor,  26  la.  237;  Butler  v.  Butler,  21  Kan.  521;  Wilson  v. 
Daniel,  13  B.  Mon.  348;  Williams  v.  Carle,  2  Stockt.  Ch.  543,  552;  Gregory 
v.  Winston,  23  Gratt.  102.] 

(pi)  St.  George  v.  Wake,  1  My.  &  K.  610,  625  [Prather  v.  Burgess,  5  Or. 
C.  C.  376;  Cheshire  r.  Payne,  16  B.  Mon.  618;  Cole  r.  O'Neill,  3  Md.  Ch,  174; 
Murrav  r.  Murrav,  90  Ky.  1;  Terry  v.  Hopkins,  1  Hill  Ch.  1;  McClure  v. 
Miller,*  1  Bailev  Eq.  107;  Fletcher  *i\  Ashley,  6  Gratt.  332,  per  Brooke,  J. 
But  see  Ferebee  v.  Pritchard,  112  N.  C.  83.]" 

(qi)  Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458.  [Cp.  Spencer  v.  Spencer,  3 
Jones  Eq.  404;  Johnson  v.  Peterson,  6  Jones  Eq.  12]. 

43  Linker  v.  Smith,  4  Wash.  C.  C.  224;  Chandler  v.  Hollingsworth,  3  Del. 
Ch.  99;  Leary  v.  King,  6  Del.  Ch.  108;  McAfee  v.  Ferguson,  9  B.  Mon.  475; 
Tucker  v.  Andrews,  13  Me.  124;  Strong  v.  Menzies,  6  Ired.  Eq.  544;  Robinson 
f.  Buck,  71  Pa.  386;  Hall  v.  Carmichael,  8  Baxt.  211.  This,  notwithstanding 
the  Married  Women's  Separate  Property  Acts.  Freeman  v.  Hartman,  45 
111.  57;  Beere  v.  Beere,  79  la.  555;  Baker  v.  Jordan,  73  N.  C.  145;  Belt  v. 
Ferguson,  3  Grant's  Cas.  289;  Duncan's  Appeal,  43  Pa.  67. 


394  UNLAWFUL    AGREEMENTS. 

given,  this  is  equivalent  to  total  concealment  (r).  According  to  the 
modern  doctrine  no  difference  is  made  by  collateral  circumstances, 
"  such  as  the  poverty  of  the  husband — the  fact  that  he  has  made  no 
settlement  upon  the  wife — the  reasonable  character  of  the  settlement 
[which  is  impeached],  as  in  the  case  of  a  settlement  upon  the  chil- 
dren of  a  former  marriage  "  or  the  like.44 

Nevertheless  relief  may  be  refused  on  the  ground  that  the  husband's 
conduct  before  the  marriage  has  been  such  as  to  "  put  it  out  of  the 
power  of  the  wife  effectually  to  make  any  stipulation  for  the  settle- 
ment of  her  property :"  as  where  there  has  been  previous  seduction  (s). 

It  is  said  that  if  the  husband  discovers  the  settlement  before  the 
marriage  takes  place,  he  may  rescind  the  contract  to  marry,  and  will 
have  a  good  defense  to  an  action  for  breach  of  promise  of  marriage  (t). 
This  seems  only  reasonable,  but  we  do  not  know  of  any  direct  authority 
for  it.  Finally,  we  venture  to  suggest  that  the  doctrine  might  well 
be  put  on  a  broader  ground  than  appears  in  the  cases. 

The  contract  to  marry  gives  rise  to  a  new  status  between  the  parties, 
to  which  mutual  duties  are  incident  beyond  the  simple  performance  of 
the  contract  by  marriage  at  the  time  expressed  or  contemplated  (u). 
Among  these  may  fairly  be  reckoned  the  observance  of  the  utmost 
good  faith  in  all  things,  and  in  particular  the  duty  of  not  making 
without  the  other  party's  consent  any  disposition  of  property  of  such 
a  permanent  and  considerable  kind  as  might  affect  the  order  and  con- 
dition of  the  future  household.  Such  conduct  shows  a  want  of  con- 
fidence which  the  other  party  is  entitled  to  treat  as  incompatible  with 

(r)  Prideaux  v.  Lonsdale,  4  Giff.  159.  The  Court  of  Appeals  ( 1  D.  J.  S. 
433,  438)  declined  to  say  any  thing  on  this  part  of  the  case,  affirming  the 
decision  on  the  ground  that  the  settler  herself  did  not  understand  the  effect 
of  her  act. 

(s)  Taylor  r.  Pugh,  1  Ha.  608,  614-6.  [Anonymous,  34  Ala.  430.]  In 
Downes  r.  Jennings,  32  Beav.  290,  no  importance  was  attached  to  the 
parties  having  lived  together  before  marriage.  But  the  circumstances  were 
such  as  to  show  that  their  conduct  was  deliberate.  The  husband's  right  to 
set  aside  the  settlement,  like  all  rights  of  setting  aside  or  rescinding  voidable 
transactions,  may  be  lost  by  acquiescence  or  delay  amounting  to  proof  of 
acquiescence.       Loader  r.  Clarke,  2  Mac  &  G.  382. 

(t)  By  Sir  John  Leach,  M.  B.  in  St.  George  v.  Wake,  supra.  [Cheshire  l>. 
Pavne,  16  B.  Mon.  618.] 

(«)   Frost  v.  Knight,  L.  B.  7  Ex.  Ill,  115,  118. 

44  Wilson  v.  Wilson,  23  Ky.  L.  Bep.  1229 ;  Logan  v.  Simmons,  3  Ired.  Eq. 
487;  Goodson  t.  Whitfield,  5  Ired.  Eq.  163;  Tisdale  v.  Bailey,  6  Ired.  Eq. 
358;  Brinkley  v.  Brinkley,  128  N.  C.  503;  Ward  v.  Ward,  63  Ohio  St.  125; 
Bamsay  r.  Joyce,  1  McMullan's  Eq.  236;  Manes  r.  Durant,  2  Bich.  Eq.  404. 
Contra,  Kinne  r.  Webb.  54  Fed,  Bep.  34;  Alkire  v.  Alkire,  134  Ind.  350; 
Hamilton  r.  Smith,  57  la.  15;  Fennessey  r.  Fennessey,  84  Ky.  519;  Champlin 
r.  Champlin,  16  B.  I.  314;  Green  v.  Goodall,  1  Coldw.  404;  Dudley  v.  Dudley, 
76  Wis.  567.     See  also  Boss's  Appeal,  127  Pa.  4. 


FRAUD    ON    MARITAL   RIGHT.  395 

the  marriage  contract.  Looking  at  it  in  this  way,  there  seems  no 
reason  why  the  rule  should  not  apply  to  both  parties  equally.  The 
expectation  of  acquiring  a  marital  right  cannot  be  said  really  to 
exist  in  most  cases.  There  is  in  truth  a  mutual  expectation  of  acquir- 
ing what  is  practically  a  common  interest.  It  is  obvious,  however, 
that  as  a  rule  the  only  motive  for  a  clandestine  settlement  is  the 
woman's  desire  to  exclude  the  marital  right  of  the  future  husband. 
Since  no  such  motive  can  exist  on  the  other  side,  the  converse  case  of 
a  clandestine  settlement  by  the  man  is  most  unlikely  to  happen ;  there 
is  little  chance,  therefore,  that  the  correctness  of  the  view  here  sug- 
gsted  will  ever  be  brought  to  a  decisive  test.45  One  reported  case, 
however,  supplies  some  analogy.  By  a  marriage  settlement  the  hus- 
band's father  settled  a  jointure  on  the  wife ;  by  a  secret  bond  of  even 
date  the  husband  indemnified  his  father  against  the  payment  of  it; 
this  indemnity  was  held  void  as  "  a  fraud  upon  the  faith  of  the 
marriage  contract"  («)•] 

4.  Marriage  within  prohibited  degrees.  Marriages  within  the  prohib- 
ited degrees  of  kindred  and  affinity  are  another  class  of  transactions 

(%)  Palmer  v.  Weave,  11  Ves.  165.  Cp.  the  other  similar  cases  cited  in 
Story  Eq.  Jur.  §§  266-271.  One  or  two  of  these,  however,  are  really  cases 
of  estoppel. 

■*5  In  this  country  it  is  well  settled  that  a  secret  conveyance  of  his  real 
estate  by  a  man  on  the  eve  of  his  marriage  is  voidable  as  against  his  wife's 
right  of  dower.  Kelly  v.  McGrath,  70  Ala.  75;  Chandler  v.  Hollingsworth, 
3  Del.  Ch.  99;  Petty  v.  Petty,  4  B.  Mon.  215;  Leach  v.  Duvall,  8  Bush,  201; 
Cranson  v.  Cranson,  4  Mich.  230;  Brown  v.  Bronson,  35  Mich.  415;  Hach  v. 
Rollins,  158  Mo.  182 ;  Rice  v.  Waddill,  168  Mo.  99 ;  Brinkley  v.  Brinkley,  128 
N.  C.  503 ;  Arnegaard  v.  Arnegaard,  7  N.  Dak.  475 ;  Ward  r.  Ward,  63  Ohio  St. 
125;  Brooks  v.  Meekin,  37  S.  C.  285;  Dudley  v.  Dudley,  76  Wis.  567.  See 
also  Peek  v.  Peek,  77  Cal.  106;  Fennessey  v.  Fennessey,  84  Ky.  519. 
Cp.  Dearmond  v.  Dearmond,  10  Ind.  191;  Butler  v.  Butler,  21  Kan.  521. 

As  to  whether  under  our  registry  laws  the  record  of  the  conveyance  of 
real  estate  by  the  intended  husband  or  wife  should  operate  as  constructive 
notice  to  the  other  partv,  see  2  Bishop  on  the  Law  of  Married  Women,  §  345 ; 
Ferebee  v.  Pritchard,  112  N.  C.  83;  Brinkley  v.  Brinkley,  128  N.  C.  503. 

The  doctrine  has  been  extended  to  conveyances  of  land  made  after  mar- 
riage in  fraud  of  the  wife's  right  of  inheritance.  Smith  v.  Smith,  22  Col.  480; 
Murray  v.  Murray,  90  Ky.  1;  Brownell  v.  Briggs,  173  Mass.  529;  Walker  v. 
Walker,  66  N.  H.  390,  392.     But  see  Stewart  r.  Stewart,  5  Conn.  317. 

That  the  same  rule  applies  to  transfers  of  personalty  has  been  held  in 
Wilson  v.  Wilson,  23  Ky.  L.  Rep.  1229;  Manikee  v.  Boyd,  85  Ky.  20; 
Newton  v.  Newton,  162  Mo.  173;  Rice  v.  Waddill,  168  Mo.  99;  Thayer  v. 
Thayer,  14  Vt.  107.  See  also  Green  v.  Adams,  59  Vt.  602;  but  denied  in 
Padfield  V.  Padfield,  78  111.  16;  Small  v.  Small,  56  Kan.  1;  Dunnock  v.  Dun- 
nock,  3  Md.  Ch.  140;  Cranson  v.  Cranson.  3  Mich.  230;  Holmes  v.  Holmes,  3 
Paige,  363;  Brodt  r.  Hickman,  7  Ohio  N.  P.  79;  Pringle  r.  Pringle,  59  Pa.  281. 

If  the  husband  was  to  retain  the  benefit  of  the  property  during  his  life, 
the  transaction  elearlv  will  not  be  allowed  to  prejudice  the  wife's  rights. 
Hatcher  r.  Buford,  60  Ark.  169;  Tyler  v.  Tyler,  126  111.  525;  Potter  r. 
Fidelity  Co.,  199  Pa.  369. 


396 


UNLAWFUL   AGREEMENTS. 


contrary  to  positive  law.  For  although  no  direct  temporal  penalties 
are  attached  to  them,  they  have  been  made  the  subject  of  express  and 
definite  statutory  prohibition  (r).  They  formerly  could  not  be  treated 
as  void  unless  declared  so  by  an  ecclesiastical  Court  in  the  lifetime 
290]  of  the  parties:  but  *by  a  modern  statute  (5  &  6  Wm.  4,  c.  54) 
they  are  now  absolutely  void  for  all  purposes.  An  executory  contract 
to  marry  within  the  prohobited  degrees  is  of  course  absolutely  void 
also  (s),  and  would  indeed  have  been  so  before  the  statute.  These  rules 
are  not  local,  like  other  rules  of  municipal  law  prescribing  the  solemni- 
ties of  the  marriage  ceremony,  requiring  the  consent  of  particular 
persons,  or  the  like:  the  legislature  has  referred  the  prohibition  to 
public  grounds  of  a  general  nature  (speaking  of  these  marriages  as 
"contrary  to  God's  law  ")(£),  and  it  concerns  not  the  form  but  the 
substance  of  the  contract;  it  therefore  applies  to  the  marriages  of 
domiciled  British  subjects,  in  whatever  part  of  the  world  the  ceremony 
be  performed,  and  whether  the  particular  marriage  is  or  is  not  of  a 
kind  allowed  by  the  local  law  (w).46 


(?■)  32  H.  8,  c.  38,  and  earlier  re- 
pealed statutes  of  the  same  reign.  It 
is  the  better  supported  opinion  that 
5  &  6  Wm.  4,  e.  54,  does  not  contain 
any  new  substantive  prohibition.  See 
Brook  v.  Brook  (1861)  9  H.  L.  C.  193. 

(s)  It  seems  from  Hillward  v.  Lit- 
tlewood  (1850)  5  Ex.  775,  20  L.  J. 
Ex.  2,  that  in  the  barely  possible  case 
of  the  relationship  being  known  to 
only  one  of  the  parties,  by  whom  it 
is  fraudulently  concealed  from  the 
other,  the  innocent  party  may  sue  as 
for  a  breach  of  contract,  though  the 
performance  of  the  agreement  would 
be  unlawful.  Here  the  ground  of  lia- 
bility is  really  not  contract  but  estop- 
pel. 

( t )  The  use  of  these  particular 
words  seems  of  little  importance.  It 
would  certainly  appear  bold  to  apply 
them  to  marriages  which  are  per- 
missible by  dispensation  in  the  Canon 
law,  and  allowed  unconditionally  by 
the  German  Civil  Code.  [See  the  re- 
marks of  Gray,  C.J.,  in  Common- 
wealth v.  Lane,  113  Mass.  at  pp.  470, 
471.1  The  true  reason  is  shortly  put 
by  Savigny,  Syst.  8.  326:  "die  hier 
einschlagenden   Gesetze,   die   auf   sit- 


tliehen  Rucksichten  beruhen,  haben 
eine  streng  positive  Natur."  Savig- 
ny's  authority  is  perhaps  sufficient  to 
defend  the  doctrine  of  Brook  v.  Brook 
against  the  caustic  criticism  passed 
upon  it  by  the  Chief  Justice  of  Mas- 
sachusetts in  Commonwealth  v.  Lane 
(1873)   113  Mass.  at  p.  473:  — 

"  The  judgment  proceeds  upon  the 
ground  that  an  Act  of  Parliament  is 
not  merely  an  ordinance  of  man  but 
a  conclusive  declaration  of  the  law 
of  God ;  and  the  result  is  that  the 
law  of  God,  as  declared  by  Act  of 
Parliament,  and  expounded  by  the 
House  of  LoTds,  varies  according  to 
the  time,  place,  length  of  life  of  par- 
ties, pecuniary  interests  of  third  per- 
sons, petitions  to  human  tribunals, 
and  technical  rules  of  statutory  con- 
struction and  judicial  procedure." 

(u)  Brook  v.  Brook  (1861)  9  H.  L. 
C.  193.  See  per  Lord  Campbell  at  p. 
220.  He  also  doubted  whether  a  mar- 
riage allowed  by  the  law  of  the  place, 
but  contracted  by  English  subjects 
who  had  come  there  on  purpose  to 
evade  the  English  law,  would  be  rec- 
ognized even  by  the  local  courts.  Cp. 
Sottomayor  v.  De  Barros,  infra. 


*6  In  the  very  learned  opinion  of  Gray.  C.  .J.,  in  Commonwealth  r.  Lane, 
113  Mass.  458,  where  the  earlier  Massachusetts  and  the  English  cases  are 
collected,  it  is  said:  "A  marriage  which  is  prohibited  here  by  statute  because 
contrary  to  the  policy  of  our  law  is  yet  valid  if  celebrated  elsewhere  accord- 


PROHIBITORY    STATUTES.  39? 

Where  a  marriage  has  been  contracted  in  England  between  foreign- 
ers domiciled  abroad,  English  Courts  will  recognize  disabilities,  though 
not  being  iuris  gentium,  *imposed  by  the  law  of  the  domicil  [291 
of  both  parties  (x)  :47  but  a  marriage  celebrated  in  England  is  not 
held  invalid  by  English  Courts  on  the  ground  that  one  of  the  parties 
J5  subject  by  the  law  of  his  or  her  domicile  to  a  prohibition  not  recog- 
nized by  English  law,  at  all  events  where  the  other  party's  domicile  is 
English  (y). 

Royal  Marriage  Act.  The  "Act  for  the  better  regulating  the  future 
marriages  of  the  Royal  Family"  (12  Geo.  3,  c.  11)  imposes  on  the 
persons  within  its  operation  disabilities  (absolute  before  the  age  of 
25,  qualified  after  -that  age)  to  marry  without  the  consent  of  the 
Sovereign;  and  this  disability  is  personal,  not  local,  so  that  a  mar- 
riage without  consent  is  equally  invalid  wherever  celebrated  (2). 

Agreements  illegal  by  statute.  Moreover  a  great  variety  of  dealings 
of  which  contracts  form  part,  or  to  which  they  are  incident  in  the 
ordinary  course  of  affairs,  are  for  extremely  various  reasons  forbidden 
or  restricted  by  statute.  In  the  eighteenth  century,  in  particular, 
Acts  of  Parliament  regulating  the  conduct  of  sundry  trades  and  occu- 
pations were  strangely  multiplied.  Most  of  these  are  now  repealed, 
tfut  the  decisions  upon  them  established  principles  on  which  our 
Courts  still  act  in  dealing  with  statutes  of  this  kind. 

(ac)   Sottomayor     v.      De     Barros  topic,      Sir      Howard      Elphinstone's 
( 1877 )  3  P.  Div.  1,  47  L.  J.  P.  23.  "  Notes  on  the  English  Law  of  Mar- 
(y)   Sottomayor     v.      De     Barros  riage "   in   L.    Q.   R.   v.    44,   and   the 
(1879)    5   P.  D.   94,  dissenting  from  chapter  on  Marriage  in  Dicey,  "Con- 
some  dicta  in  the  previous  judgment  flict  of  Laws." 

of  the  C.  A.,  which  however  went  on  (z)    The      Sussex      Peerage      case 

a    supposed '  different    state    of    the  (1844)   11  CI.  &  F.  85. 
facts.    See  further,  on  this  perplexed 

ing  to  the  law  of  the  place,  even  if  the  parties  are  citizens  and  residents 
of  this  Commonwealth,  and  have  gone  abroad  for  the  purpose  of  evading  our 
laws,  unless  the  Legislature  has  clearly  enacted  that  such  marriages  out  of 
the  State  shall  have  no  validity  here."  Ponsford  v.  Johnson,  2  Blatchf.  51. 
And  see  Stevenson  v.  Gray,  17  B.  Mon.  193;  Whippen  r.  Whip.pen,  171  Mass. 
560;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18;  Thorp  r.  Thorp,  90  N.  Y.  602: 
Moore  v.  Hegeman,  92  N.  Y.  521;  State  v.  Shattuck,  69  Vt.  403.  Contra, 
Norman  v.  Norman,  121  Cal.  620;  Wilhite  r.  Wilhite,  41  Kan.  154;  Williams 
v.  Oates,  5  Ired.  L.  535;  State  v.  Kennedy,  76  N.  C.  251;  Pennegar  v.  State, 
87  Tenn.  244;  Newman  r.  Kimbrough,  59  S.  W.  Rep.  1061  (Tenn.)  ;  Kinnev  r. 
Commonwealth,  30  Gratt.  858.  See  also  State  v.  Tutty,  41  Fed.  Rep.  753; 
McLennan  r.  McLennan.  31  Oreg.  480. 

«In  Milliken  v.  Pratt,  125  Mass.  374,  Gray,  C.  J.,  at  p.  381,  says  of 
Sottomavor  v.  De  Barros,  3  P.  D.  1,  that  the  decision  "  it  is  utterly  opposed 
to  our  law;  and  consequently  the  dictum  of  Lord  Justice  Cotton,  'is  a  well- 
recognized  principle  of  law  that  the  question  of  personal  capacity  to  enter 
into  any  contract  is  to  be  decided  by  the  law  of  the  domicile '  is  entitled 
to  little  weight  here." 


398  UNLAWFUL   AGREEMENTS. 

Construction  of  prohibitory  statutes.  The  question  whether  a  particu- 
lar transaction  comes  within  the  meaning  of  a  prohibitory  statute  is 
manifestly  one  of  construction.  So  far  as  we  have  to  do  with  it 
here,  we  have  in  each  case  to  ask,  Does  the  Act  mean  to  forbid  this 
agreement  or  not  ?  And  in  each  case  the  language  of  the  particular 
Act  must  be  considered  on  its  own  footing.  Decisions  on  the  same 
Act  may  of  course  afford  direct  authority.  But  decisions  on  more  or 
292]  less  similar  enact*ments,  and  even  on  previous  enactments  on 
the  same  subject,  cannot  as  a  rule  be  regarded  as  giving  more  than 
analogies.  Attempts  have  indeed  been  made  at  different  times  to  lay 
down  fixed  rules,  nominally  of  construction,  but  really  amounting 
to  rules  of  law  which  would  control  rather  than  ascertain  the  ex- 
pressed intention  of  the  legislature.  But  in  recent  times  our  Courts 
have  fully  and  explicitly  disclaimed  any  such  powers  of  interpretation. 

"  The  only  rule  for  the  construction  of  Acts  of  Parliament  is  that  they 
should  he  construed  according  to  the,  intent  of  the  Parliament  which 
passed  the  Act;"  provided  that  the  words  be  "  sufficient  to  accomplish  the 
manifest  purpose  of  the  Act"   (a).4* 

The  effect  of  plain  and  unambiguous  words  is  not  to  be  limited  by 
judicial  construction  even  though  anomalous  results  should  follow  (&). 

Policy  of  statutes.  On  the  other  hand  the  general  intention  is  to  be 
regarded,  and  may  if  necessary  prevail  over  particular  expressions, 
no  less  than  in  the  interpretation  of  private  instruments.  But  it 
must  also  be  an  intention  collected  from  what  the  legislature  has 
said,  not  arrived  at  by  conjectures  of  what  the  legislature  might  or 
ought  to  have  meant  (c).  A  transaction  not  in  itself  immoral  is  not 
to  be  held  unlawful  on  a  conjectural  view  of  the  policy  of  a  stat- 
ute (d).  The  true  policy  of  a  statute  is  for  a  court  of  justice  neither 
more  nor  less  than  its  true  construction.    The  Courts  no  longer  under- 

(a)   Opinion  of  the  Judges  in  the  opinion  on  the  Continent),  that  stat- 

Xussex  Peerage  case  11  CI.  &  F.  at  p.  utes    might    be    disregarded    if    the 

143,     per     Tindal     C.J. :     per     Lord  Courts  thought  them  contrary  to  rea- 

Brougham   at   p.    150.      And   see   per  son,  common  right,  or  natural  equity 

Knight  Bruce  L.J.  Crofts  v.  Middle-  (all  synonymous  terms  for  this  pur- 

ton   (1856)    8  D.  M.  &  G.  at  p.  217;  pose),  lias  long  been  repudiated:   see 

per  Lord  Blackburn,  in  River  Wear  per  Willes  J.  Lee  v.  Bude,  &c.  By  Go. 

Commrs.  v.  Adamson    (1877)    2  App.  (1871)   L.  R.  6  C.  P.  576,  582,  40  L. 

Ca.  at  p.  764,  47  L.  J.  Q.  B.  193.  J.  C.  P.  285;   cp.  Journ.  Soc.  Comp. 

(6)    Cargo  ex  Argos,  &c.   (1872-3)  Leg.  N.  S.  ii.  at  p.  423. 
L.    R.    5    P.    C.    at   pp.    152-3.      The  (c)   Cp.  pp.  *255,  *256,  above, 

doctrine  formerly  current  (in  accord-  (d)   Barton  v.  Muir   (1874)    L.  R. 

ance  with  the  prevailing  speculative  6  P.  C.  134,  44  L.  J.  P.  C.  19. 

48  Where  the  meaning  of  a  statute  is  plain,  it  is  the  duty  of  the  courts 
to  enforce  it  according  to  its  obvious  terms.  In  such  a  case  there  is  no 
necessity  for  construction."     Thornley  v.  United  States,  113  U.  S.  310,  313. 


PKOI-IIBITORY    STATUTES.  399. 

take  either  to  cut  short  or  to  widen  the  effect  of  legislation  according 
to  their  views  of  what  ought  to  be  the  *law.  "  Before  we  can  [293 
make  out  that  a  contract  is  illegal  under  a  statute,  we  must  make  out 
distinctly  that  the  statute  has  provided  that  it  shall  be  so"  (e). 

The  cases  in  which  acts  of  corporate  bodies  created  for  special  pur- 
poses have  been  held  void  as  "contrary  to  the  policy  of  the  legis- 
lature "  and  tending  to  defeat  the  objects  of  the  incorporation  have 
already  been  considered  in  Ch.  II. 

These  principles,  when  applied  to  the  more  limited  subject-matter 
of  prohibitory  statutes,  give  the  following  corollaries: 

(a)  No  difference  between  malum  prohibitum  and  malum  in  se.  When  a 
transaction  is  forbidden,  the  grounds  of  the  prohibition  are  imma- 
terial. Courts  of  justice  cannot  take  note  of  any  difference  between 
mala  prohibita  (i.e.  things  which  if  not  forbidden  by  positive  law 
would  not  be  immoral)  and  mala  in  se  (i.e.  things  which  are  so  for- 
bidden as  being  immoral).49 

(b)  Penalty  prima  facie  imports  prohibition.  The  imposition  of  a  pen- 
alty by  the  legislature  on  any  specific  act  or  omission  is  prima  facie 
equivalent  to  an  express  prohibition.50 

These  rules  are  established  by  the  case  of  Bensley  v.  Bignold  (f), 
which  decided  that  a  printer  could  not  recover  for  his  work  or  ma- 
terials when  he  had  omitted  to  print  his  name  on  the  work  printed, 
as  then  required  by  statute  (g).  It  was  argued  that  the  contract 
was  good,  as  the  Act  contained  no  specific  prohibition,  but  only  a 
direction  sanctioned  by  a  penalty.  But  the  Court  held  unanimously 
that  this  was  untenable,  and  a  party  could  not  be  permitted  to  sue  on 
a  contract  where  the  whole  subject-matter  was  "  in  direct  violation 
of  the  provisions  of  an  Act  of  Parliament."  And  Best  J.  said  that 
the  distinction  between  mala  prohibita  and  mala  in  se  was  long  since 

(e)  Field,  J.,  4  Q.  B.  D.  at  p.  224.     {g)    See  now  32  &  33  Viet.  c.  24. 

(f)  (1822)  5  B.  &  Aid.  335,  24  R. 
E.  401. 

« Bank  v.  Owens,  2  Pet.  527,  539;  Gibbs  v.  Baltimore  Gas  Co.,  130  U.  S. 
396;  Penn  v.  Bornman.  102  111.  523,  530;  Greenough  v.  Balch,  7  Me.  461; 
White  v.  Buss,  3  Cush.  448;  Downing  v.  Ringer,  7  Mo.  585;  Hill  v.  Spear,  50 
N.  H.  253,  277;  Rossrnan  r.  MeParland,  9  Ohio  St.  369,  379;  Holt  v.  Green, 
73  Pa.  198;  Melchoir  v.  McCartv,  31  Wis.  252. 

50  Clarke  v.  Insurance  Co.,  1  Story,  109,  122;  Swann  v.  Swann,  21  Fed.  Rep. 
299;  Woods  v.  Armstrong,  54  Ala.  150;  Harrison  v.  Jones,  80  Ala.  412; 
Campbell  v.  Segars,  81  Ala.  259;  Youngblood  v.  Birmingham  Trust  Co.,  95 
Ala.  521;  Berka  v.  Woodward,  125  Cal.  119;  Funk  r.  Gallivan,  49  Conn.  124; 
Dillon  v.  Allen,  46  la.  299;  Durgin  v.  Dyer,  68  Me.  143;  Roby  v.  West,  4  N.  H. 
285;  Brackett  v.  Hoyt,  29  N.  H.  264;  Gregory  v.  Wilson,  36  N.  J.  L.  315; 
Covington  v.  Threadgill,  88  N.  C.  186;  Bloom  v.  Richards,  2  Ohio  St.  387, 
395;  Pennsylvania  Co.  v.  Wentz,  37  Ohio  St.  333,  338;  Connell  v.  Kitchens, 
20  S.  C.  430;  Elkins  v.  Parkhurst,  17  Vt.  105;  Bancroft  v.  Dumas,  21  Vt.  456. 


400  UNLAWFUL   AGEEEMENTS. 

exploded.     The  same  doctrine  has  repeatedly  been  enounced  in  later 

cases. 

294]     *Thus,  for  example,  by  the  Court  of  Exchequer: 

"  Where  the  contract  which  the  plaintiff  seeks  to  enforce,  be  it  express 
or  implied,  is  expressly  or  by  implication  forbidden  by  the  common  or 
statute  law,  no  court  will  lend  its  assistance  to  give  it  effect.  It  is 
equally  clear  that  a  contract  is  void  if  prohibited  by  a  statute  though 
the  statute  inflicts  a  penalty  only,  because  such  a  penalty  implies  a 
prohibition  "  (h) . 

It  is  needless  to  discuss  the  "  policy  of  the  law "  when  it  is  dis- 
tinctly enunciated  by  a  statutory  prohibition  (i).51 

(c)  But  absence  of  penalty  does  not  alter  express  prohibition.  Con- 
versely, the  absence  of  a  penalty,  or  the  failure  of  a  penal  clause  in  the 
particular  instance,  will  not  prevent  the  Court  from  giving  effect  to 
a  substantive  prohibition  (Jc).52 

(d)  What  may  not  be  done  directly  must  not  be  done  indirectly— Booth  v. 
Bank  of  England.  What  the  law  forbids  to  be  done  directly  cannot 
be  made  lawful  by  being  done  indirectly. 

In  Booth  v.  Bank  of  England  (I)  a  joint-stock  bank  procured 
its  manager  to  accept  certain  bills  on  the  understanding  that  the 
bank  would  find  funds,  these  bills  being  such  as  the  bank  itself  could 
not  have  accepted  without  violating  the  privileges  of  the  Bank  of  Eng- 
land. It  was  held  by  the  House  of  Lords,  following  the  opinion  of  the 
judges,  that  this  proceeding  "  must  equally  be  a  violation  of  the  rights 
and  privileges  of  the  Bank  of  England,  upon  the  principle  that  what- 
ever is  prohibited  by  law  to  be  done  directly  cannot  legally  be  effected 
by  an  indirect  and  circuitous  contrivance :"  for  tbe  acceptor  was 
merely  nominal,  and  the  bills  were  in  fact  meant  to  circulate  on  the 
credit  of  the  bank. 

Bank  of  U.  S.  v.  Owens.  In  Bank  of  United  States  v.  Owens  (m)53 
(Supreme  Court,  U.S)  the  charter  of  the  bank  forbade  the  taking  of 

(h)    Cope   v.    Rowlands    (1836)    2  parte  Neilson   (1853)    3  D.  M.  &  G. 

M.  &  W.  149,  157,  46  R.  R.  532,  539.  556,  566. 

Cp.   Chambers  v.   Manchester  &  Mil-  (k)    Sussex  Peerage  case  (1844)  11 

ford  Ry.  Co.  (1864)  5  B.  &  S.  588,  33  CI.  &  F.  at  pp.  148-9. 
L.  J.  Q.  B.  268;  Re  Cork  &  Youghal  (I)    (1840)   7  CI.  &  F.  509,  540,  51 

Ry.  Co.   (1869)   L.  B.  4  Ch.  748,  758,  R.  R.  36,  upholding  Bank  of  England 

30  L.  J.  Ch.  277.  v.   Anderson    (1836)    2   Keen   328,   3 

(i)    See   per   Lord   Cranworth,   Ex  Bing.  N.  C.  589,  44  R.  R.  271. 

(m)    (1829)  2  Peters  527. 

51  Bank  v.  Stegall,  41  Miss.  142,  183;  Covington  v.  Threadgill,  88 
N.  C.  186. 

MMelchoir  r.  McCarty,  31  Wis.  252. 

53  See  also  Workingmen's  Bkg.  Assoc,  v.  Rautcnberg,  103  111.  460 ;  Clarke 
v.  Lincoln  Lumber  Co.,  59  Wis.  655. 


PROHIBITORY    STATUTES.  401 

a  *greater  rate  of  interest  than  six  per  cent.,  but  did  not  say  [295 
that  a  contract  should  be  void  in  which  such  interest  was  taken.  A 
note  payable  in  gold  was  discounted  by  a  branch  of  the  bank  in  a 
depreciated  local  paper  currency  at  its  nominal  value,  so  that  tin- 
real  discount  was  much  more  than  six  per  cent.  The  Court  held  this 
transaction  void,  though  there  was  no  express  prohibition  of  an  agree- 
ment to  take  higher  interest,  and  though  the  charter  spoke  only  of 
taking,  not  of  reserving  interest.  Parts  of  the  judgment  are  as  fol- 
lows :  "A  fraud  upon  a  statute  is  a  violation  of  the  statute."  "  It 
cannot  be  permitted  by  law  to  stipulate  for  the  reservation  of  that 
which  it  is  not  permitted  to  receive.  In  those  instances  in  which 
Courts  are  called  upon  to  inflict  a  penalty  it  is  necessarily  other- 
wise ;  for  then  the  actual  receipt  is  generally  necessary  to  consummate 
the  offence.  But  when  the  restrictive  policy  of  a  law  alone  is  in  con- 
templation, we  hold  it  to  be  an  universal  rule  that  it  is  unlawful  to 
contract  to  do  that  which  it  is  unlawful  to  do." 

"  There  can  be  no  civil  right  where  there  can  be  no  legal  remedy, 
and  there  can  be  no  legal  remedy  for  that  which  is  itself  illegal 
.  .  .  .  there  is  no  distinction  as  to  vitiating  the  contract  between 
malum  in  se  and  malum  prohibitum"  (n). 

The  cases  are  similar  in  principle  in  Mdiich  transactions  have  been 
held  void  as  attempts  to  evade  the  bankruptcy  law:  thus,  to  take  only 
one  example,  a  stipulation  that  a  security  shall  be  increased  in  the 
event  of  the  debtor's  bankruptcy,  or  any  provision  designed  for  the 
like  purpose  and  having  the  like  effect,  is  void  (o). 

*  Where  conditions  prescribed  for  conduct  of  particular  trade,  &c,  [296 
non-observance  of  them.  When  conditions  are  prescribed  by  statute  for 
the  conduct  of  any  particular  business  or  profession,  and  such  con- 
ditions are  not  observed,  agreements  made  in  the  course  of  such 
business  or  profession — 

(e)    Avoids  agreements  if  the  conditions  are  for  general  public  purposes. 

Are  void  if  it  appears  by  the  context  that  the  object  of  the  legislature 
in  imposing  the  condition  was  the  maintenance  of  public  order  or 

(w)  2  Peters  536,  539.  be  shown,  to  vitiate  a  transaction  on 
(o)  Ex  parte  Mackay  (1873)  L.  R.  this  ground,  that  the  provision  was 
8  Ch.  643,  42  L.  J.  Bk.  68 ;  Ex  parte  inserted  in  contemplation  of  bank- 
Williams  (1877)  7  Ch.  Div.  138,  ruptcy  and  for  the  purpose  of  defeat- 
where  the  device  used  was  the  attorn-  ing  the  bankruptcy  law:  Ex  parte 
ment  of  the  debtor  to  his  mortgagee  Voisey  (1882)  21  Ch.  Div.  442,  461, 
at  an  excessive  rent;  Ex  parte  Ja-ch-  52  L.  J.  Ch.  121. 
son  (1880)   14  Ch.  Div.  725.    It  must 

26 


402  UNLAWFUL   AGREEMENTS. 

safety  or  the  protection  of  the  persons  dealing  with  those  on  whom 
the  condition  is  imposed  :54 

(f)  Not  if  for  merely  administrative  purposes.  Are  valid  if  no  specific 
penalty  is  attached  to  the  specific  transaction,  and  if  it  appears  that 
the  condition  was  imposed  for  merely  administrative  purposes,  e.g. 
the  convenient  collection  of  the  revenue.55 

Illustrations.  The  following  are  instances  illustrating  this  distinc- 
tion : — 

Agreement  Void. 

Ritchie  v.  Smith  (1848)  6  C.  B.  462,  18  L.  J.  C.  P.  9.  The  owner  of  a 
licensed  house  underlet  part  of  it  to  another  person,  in  order  that  he  might 

54  Law  v.  Hodson,  11  East,  300;  Little  r.  Poole,  9  B.  &  C.  192;  Forster  v. 
Taylor,  5  B.  &  Ad.  887;  Miller  v.  Amnion,  145  U.  S.  421;  Hawkins  v.  Smith, 

2  Cr.  C.  C.  173;  Thompson  v.  Milligan,  2  Cr.  C.  C.  173;  Lang  i\  Lynch,  38 
Fed.  Pep.  489;  Gunter  v.  Leckey,  30  Ala.  591;  Pacific  Guano  Co.  v.  Mullen. 
66  Ala.  582;  Merriman  r.  Knox,  99  Ala.  93;  Gardner  v.  Tatum,  81  Cal.  370; 
Kleckley  v.  Leyden,  63  Ga.  215;  Johnston  r.  McConnell,  65  Ga.  129;  Lorentz 
v.  Conner,  69  Ga.  761;  Tedrick  r.  Hiner,  61  111.  189;  East  St.  Louis  v.  Freels, 
17  111.  App.  33S;  Hustis  i:  Picklands,  27  111.  App.  270;  Richardson  v.  Brix,  94 
la.  626;  Dolson  i.  Hope,  7  Kan.  161;  Vannoy  v.  Patton,  5  B.  Mon.  248; 
Mabry  i\  Bullock,  7  Dana,  337;  Bull  v.  Harragan,  17  B.  Mon.  349;  Buxton 
v.  Hamblen.  32  Me.  448;  Durgin  c.  Dyer,  68  Me.  143;  Richmond  v.  Foss,  77 
Me.  590;  Black  r.  Security  Mut.  Asso'c,  95  Me.  35;  Miller  v.  Post,  1  Allen, 
434;  Libby  r.  Downey,  5  Allen,  299;  Wheeler  r.  Russell,  17  Mass.  257;  Hewes 
r.  Platts,  12  Gray,  143;  Smith  v.  Arnold.  106  Mass.  269;  Sawyer  v.  Smith, 
109  Mass.  220;  Eaton  r.  Kcgan,  114  Mass.  433;  Prescott  f.  Battersby,  119 
Mass.  285;  Loranger  i\  Jardine,  56  Mich.  51S;  Solomon  v.  Dreschler,  4  Minn. 
278;  Bisbee  v.  McAllen,  39  Minn.  143;  Buckley  r.  Humason,  50  Minn.  195; 
Prav  v.  Burbank,  10  N.  H.  377;  Lewis  v.  Welch,  14  N.  H.  294;  Caldwell  r. 
Wentworth,  14  N.  II.  431;  Doe  v.  Burnham,  31  N.  H.  426;  Griffith  v.  Wells. 

3  Denio,  226;  Covington  v.  Threadgill,  88  N.  C.  186;  Holt  v.  Green,  73  Pa. 
198;  Johnson  v.  Hulings,  103  Pa.  498;  Swing  r.  Munson,  191  Pa.  5S2;  McCon- 
nell v.  Kitchens.  20  S.  C.  430;  Stephenson  r.  Ewing,  87  Tenn.  46;  Bancroft  r. 
Dumas,  21  Vt.  456;  Gorsuth  v.  Butterfield,  2  Wis.  237.  See  also  Singer  Mfg. 
Co.  v.  Draper,  103  Tenn.  262. 

Cp.  Harris  r.  Runnels,  12  How.  79 ;  The  Manistee,  5  Biss.  381 ;  The  Charles 
E.  Wisewall.  74  Fed.  Rep.  802;  Pangborn  c.  Westlake,  36  la.  547;  Coombs  r. 
Emery,  14  Me.  404;  Ritchie  v.  Boynton,  114  Mass.  431;  People's  Bank  v.  Ala- 
bamaR.  Co.,  65  Miss.  365;  Houck  v.  Wright,  77  Miss.  476;  Drake  r.  Siebold, 
81  Hun,  178;  Strong  v.  Darling,  9  Ohio  201;  Niemeyer  v.  Wright,  75  Va.  239; 
National  Distilling  Co.  v.  Cream  City  Importing  Co.,  86  Wis.  352. 

B5  In  the  following  cases  it  was  held  to  afford  no  defense  to  a  contract  that 
it  was  made  in  violation  of  a  revenue  law: 

Johnson  p.  Hudson,  11  East,  180;  Brown  v.  Duncan,  10  B.  &  C.  93 ;  Smith 
r.  Mawhood,  14  M.  &  W.  452;  Larned  v.  Andrews,  106  Mass.  435;  Mandlebaum 
v.  Gregovitch,  ]  7  Nev.  87 ;  Corning  v.  Abbott,  54  N.  H.  469 ;  Ruckman  v. 
Bergholz,  37  N.  J.  L.  437;  Woodward  i\  Stearns,  10  Abb.  Pr.  N.  S.  395  (see 
also  Griffith  v.  Wells,  3  Denio,  226)  ;  Rahter  v.  First  Nat.  Bank,  92  Pa.  393 
(see  also  Hertzler  »:.  Geigley,  196  Pa.  419)  ;  Aiken  v.  Blaisdell,  41  Vt.  655. 
But  see  contra,  Creekmore  v.  Chitwood,  7  Bush,  317  ;  Harding  r.  Hagar,  60 
Me.  340;  63  Me.  515  (but  see  Randall  v.  Tuell,  89  Me.  442,  448)  ;  Curran  r. 
Downs,  3  Mo.  App.  468 ;  Hall  v.  Bishop,  3  Daly,  109 ;  Best  r.  Bauder,  29  How. 
Pr.  489;  Condon  r.  Walker,  1  Yeates,  483;  Sewell  v.  Richmond,  Taylor  (U.  C. 
K.  B.)  423;  Mullen  v.  Kerr,  6  U.  C.  Q.  B.  (O.  S.)   171. 


PROHIBITORY   STATUTES.  403 

there  deal  in  liquor  on  his  own  account  under  color  of  his  lessor's  licence 
and  without  obtaining  a  separate  licence.  This  agreement  was  void,  its 
purpose  being  to  enable  one  of  the  parties  to  infringe  an  Act  passed  for 
the  protection  of  public  morals :  ( the  licensing  Acts  are  of  this  nature,  and 
not  merely  for  the  benefit  of  the  revenue,  for  this  reason,  that  licenses  are 
not  to  be  had  as  a  matter  of  right  by  paying  for  them ) .  For  the  same 
reason  and  also  because  there  is  a  specific  penalty  for  each  offence  against 
the  licensing  law,  it  seems  that  a  sale  of  liquor  in  an  unlicensed  house  is 
void  (p).     Hamilton  v.  Grainger  (1859)  5  H.  &  N.  40. 

Taylor  y.  Croioland  Gas  Co.  (1854)  10  Ex.  299,  23  L.  J.  Ex.  254.  A 
penalty  being  imposed  by  statute  on  unqualified  persons  acting  as  convey- 
ancers (g),  the  Court  held  that  the  object  was  not  merely  the  gain  to  the 
revenue  from  the  duties  on  certificates,  but  the  protection  of  the  public 
from  unqualified  practitioners;  an  unqualified  person  was  therefore  not 
allowed  to  recover  for  work  of  this  nature.  Cp.  Leman  v.  Houseley  (1874) 
L.  R.  10  Q.  B.  66,  44  L.  J.  Q.  B.  22. 

Fergusson  v.  Norman  (1838)  5  Bing.  N.  C.  76,  50  R.  R.  613.  When  a 
'pawnbroker  lent  money  without  complying  with  the  requirements  of  the  [297 
statute,  the  loan  was  void  and  he  had  no  lien  on  the  pledge (r) . 

In  Stevens  v.  Gourley  (1859)  7  C.  B.  N.  S.  99,  29  L.  J.  C.  P.  1,  a  builder 
was'  not  allowed  to  recover  the  price  of  putting  up  a  wooden  shed  contrary 
to  the  regulations  imposed  by  the  Metropolitan  Building  Act,  18  &  19  Vict. 
c.  122.  The  only  question  in  the  case  was  whether  the  structure  was  a. 
building  within  the  Act.  But  note  that  here  the  prohibition  was  for  a 
public  purpose,  namelv,  to  guard  against  the  risk  of  fire. 

Barton  v.  Piggott  (1874)  L.  R.  10  Q.  B.  86.  By  5  &  6  Wm.  4,  c.  50,  s.  46, 
a  penalty  is  imposed  on  any  surveyor  of  highways  who  shall  have  an  interest 
in  any  contract,  or  sell  materials,  &c.  for  work  on  any  highway  under  his 
care,  unless  he  first  obtain  a  licence  from  two  justices.  The  effect  of  this 
is  that  an  unlicensed  contract  by  a  surveyor  to  perform  work  or  supply 
materials  for  any  highway  under  his  care  is  absolutely  illegal,  and  there 
is  no  discretion  to  allow  payments  in  respect  of  it. 

Contract  not  Avoided.56 

Bailey  v.  Harris  (1849)  12  Q.  B.  905,  18  L.  J.  Q.  B.  115.  A  contract 
of  sale  is  not  void  merely  because  the  goods  are  liable  to  seizure  and 
forfeiture  to  the  Crown  under  the  excise  laws. 

Smith  v.  Mawhood  (1845)  14  M.  &  W.  452,  15  L.  J.  Ex.  149.  The  sale 
of   an   exeiseable    article    is    not    avoided   by   the    seller   having   omitted    to 

(p)   For  the  penal  enactments  now  (1872;    35   &  36  Vict.   c.   93,  s.  51), 

in  force  see  the  Licensing  Acts,  1872-  enacts    that    an    offence    against   the 

1874.  Act  by  a  pawnbroker,   not  being  an 

(q)  Now  by  33  &  34  Vict.  c.   97,  offence   against   any  provision   relat- 

s.  60.  ing  to  licences,   shall   not   avoid  the 

(r)   The  present  Pawnbrokers  Act  contract  or  deprive  him  of  his  lien. 

56 "  The  Revised  Statutes  of  the  United  States  respecting  national  banks 
provide  that  a  bank  shall  not  lend  to  an}'  one  person,  corporation,  or  firm 
a  sum  exceeding  one-tenth  part  of  the  capital  stock  actually  paid  in,  and 
that  national  banks  shall  not  take  real  estate  as  collateral  security  except 
for  debts  previously  contracted;  and  it  has  been  repeatedly  held  that  contracts 
made  in  contravention  of  the  statute  are  not  void.  Gold- Mining  Co.  v.  Na- 
tional Bank,  96  TJ.  S.  640;  National  Bank  v.  Matthews,  98  TJ.  S.  621;  National 
Bank  v.  Whitney,  103  U.  S.  99;  Reynolds  v.  Crawfordsville  National  Bank, 
112  U.  S.  405. 

"  Where  the  officers  of  a  saving  bank  invest  its  funds  in  a  manner  forbidden 
by  statute,  such  illegal  action  of  the  officers  does  not  impair  the  validity  of 
the  investment.  Holden  v.  Upton,  134  Mass.  177."  Bowditch  v.  New  England 
Ins.  Co.,  141  Mass.  292,  294. 

Similar  decisions  under  various  banking  laws  are:     Savings  Bank  v.  Burns, 


404  UNLAWFUL   AGREEMENTS. 

paint  up  his  name  on  the  licensed  premises  as  required  by  6  Geo.  4, 
e.  18,  s.  25.  Probably  this  decision  would  govern  the  construction  of 
the  very  similar  enactment  in  the  Licensing  Act,  1872  (35  &  36  Vict, 
c.  94,  s.  11.) 

Smith  v.  Undo  (1858)  4  C.  B.  N.  S.  395,  in  Ex.  Ch.  5  C.  B.  N.  S.  587, 
27  L.  J.  C.  P.  196,  335.  One  who  acts  as  a  broker  in  the  City  of  London 
without  being  licensed  under  6  Ann.  c.  68  (Rev.  Stat.:  al.  16)  and  57 
Geo.  3,  c.  ]x.  (s)  cannot  recover  any  commission,  but  a  purchase  of  shares 
made  by  him  in  the  market  is  not  void;  and  if  he  has  to  pay  the  purchase- 
money  by  the  usage  of  the  market,  he.  can  recover  from  his  principal  the 
money  so  paid. 

And  in  general  an  agreement  which  the  law  forbids  to  be  made  is 
298]  void  if  made.  But  an  agreement  forbidden  by  *statute  may  be 
saved  from  being  void  by  the  statute  itself,  and  on  the  other  hand  an 
agreement  made  void  or  not  enforceable  by  statute  is  not  necessarily 
illegal.  An  agreement  may  be  forbidden  without  being  void,  or  void 
without  being  forbidden. 

(g)    Agreement  not  void  though  forbidden,  if  statute  expressly  so  provides. 

Where  a  statute  forbids  an  agreement,  but  says  that  if  made  it  shall 
not  be  void,  then  if  made  it  is  a  contract  which  the  Court  must 
enforce.57 

By  1  &  2  Vict.  c.  106,  it  is  unlawful  for  a  spiritual  person  to  engage 
in  trade,  and  the  ecclesiastical  Court  may  inflict  penalties  for  it. 
But  by  s.  31  a  contract  is  not  to  be  void  by  reason  only  of  being 
entered  into  by  a  spiritual  person  contrary  to  the  Act.  It  was  con- 
tended without  success  in  Lewis  v.  Bright  (t)  that  this  proviso  could 
not  apply  when  the  other  party  knew  with  whom  he  was  dealing. 
But  the  Court  held  that  the  knowledge  of  the  other  party  was  imma- 
terial; the  legislature  meant  to  provide  against  the  scandal  of  such 
a  defence  being  set  up.     And  Erie  J.  said  that  one  main  purpose  of 

{s)   These  Acts  are  repealed  as  to  Brokers'   Relief   Act,   1870,   33   &   34 

the  power  of  the  city  court  to  make  Vict.  c.  pp. 

rules,  &c,  but  not  as  to  the  necessity  (t)    (1S~5)   4  K.  &  B.  917,  24  L.  J. 

of    brokers    being    admitted,    by    the  Q.  B.   191. 
somewhat   obscurely   framed   London 

104  Cal.  473;  Union  Mining  Co.  v.  Rocky  Mountain  Nat.  Bank,  1  Col.  531; 
Voltz  v.  National  Bank,  158  111.  532;  Benton  County  Bank  v.  Boddicker,  105 
la.  548;  Lester  r.  Howard  Bank,  33  Md.  556;  Allen  t.  First  Nat.  Bank,  23 
Ohio  St.  97;  First  Nat.  Bank  v.  Smith,  8  S.  Dak.  7;  Wroten's  Assignee  v. 
Armat,  31  Gratt.  228. 

So  in  the  case  of  insurance  companies.  Bowditeh  v.  New  England  Ins.  Co., 
141  Mass.  292;  Ohio  Ins.  Co.  v.  Merchants'  Ins.  Co.,  11  Humph.  1.  Se3  fur- 
ther, 2  Cook  on  Corporations  (5th  ed.),  1625  et  seg. 

In  this  connection  may  well  be  considered  many  decisions  in  regard  to  con- 
tracts of  foreign  corporations  forbidden  by  law  to  enter  into  such  contracts. 
See  2  Cook  on  Corporations   (5th  ed.),  1677. 

67McMahon  r.  Borden,  39  Conn.  316;  Pangborn  v.  Westlake,  36  la.  546; 
Vining  v.  Bricker,  14  Ohio  St.  331. 


WAGERS  AND   GAMING.  405 

the  law  was  to  make  people  perform  their  contracts,  and  in  this  case 
it  fortunately  could  be  carried  out. 

(h)    Agreement  may  be  simply  not  enforceable,  but  not  otherwise  unlawful. 

Where  no  penalty  is  imposed,  and  the  intention  of  the  legislature 
appears  to  be  simply  that  the  agreement  is  not  be  be  enforced,  there 
neither  the  agreement  itself  nor  the  performance  of  it  is  to  be  treated 
as  unlawful  for  any  other  purpose.58 

Modern  legislation  has  produced  some  very  curious  results  of  this 
kind.  In  several  cases  the  agreement  cannot  even  be  called  void,  being 
good  and  recognizable  by  the  law  for  some  purposes  or  for  every  pur- 
pose other  than  that  of  creating  a  right  of  action.  These  cases  are 
reserved  for  a  special  chapter  (u) . 

*Wagers— Void,  but  not  absolutely  illegal— Fitch  v.Jones.       In  the  [299 

case  of  wagers  the  agreement  is  null  and  void  by  8  &  9  Vict.  c.  109, 
s.  18,  and  money  won  upon  a  wager  cannot  be  recovered  either  from  the 
loser  or  from  a  stake-holder  (with  a  saving  as  to  subscriptions  or  con- 
tributions for  prizes  or  money  to  be  awarded  "  to  the  winner  of  any 
lawful  game,  sport,  pastime,  or  exercise " ;  the  saving  extends  only  to 
cases  where  there  is  a  real  competition  between  two  or  more  per- 
sons (a;),59  and  the   "subscription  or  contribution"  is  not  money 

(u)    See  Ch.  XIII.,  On  Agreements  ited  by  them    (that  is,  as  leges  per- 

of    Imperfect    Obligation.      The    dis-  fectae)    whether  it  weTe  so  expressed 

tinction  between  an  enactment  which  or  not. 

imposes  a  penalty  without  making  the  ( x )  E.g.  a  wager  that  a  horse  will 
transaction  void,  and  one  which  trot  eighteen  miles  in  an  hour  is  not 
makes  the  forbidden  transaction  void,  within  it,  as  there  can  be  no  winner 
is  expressed  in  Roman  law  by  the  in  the  true  sense  of  the  clause:  Bat- 
terras  minus  quam  perfecta  lex  and  son  v.  Newman  (1876)  1  C.  P.  Div. 
perfecta  lex.  Ulp.  Reg.  1  §  2,  cp.  Sav.  573.  Nor  a  so-called  competition 
Syst.  4.  550.  A  constitution  of  Theo-  where  the  event  is  determined  by 
dosius  and  Valentinian  (Cod.  1.  14.  chance  or  by  a  choice  so  arbitrary  as 
de  leg.  5)  enjoined  that  all  prohibi-  to  be  equivalent  to  chance :  Barclay  v. 
tory  enactments  were  to  be  construed  Pearson  (the  "missing  word"  case) 
as  avoiding  the  transactions  prohib-  [1893]  2  Ch.  154,  62  L.  J.  Ch.  636. 

58  Adopted  by  the  court  in  Chapman  v.  County  of  Douglas,  107  U.  S.  348, 
356;   Johnson  v.  Meeker,  1  Wis.  436. 

59  Contests  of  speed  for  "  purses,  prizes,  or  premiums,''  are  not  bets  or 
wagers.  Harris  v.  White,  81  N.  Y.  532;  .Alvord  v.  Smith,  63  Ihd.  58;  Molk 
v.  Daviess  County  Assoc,  12  Ind.  App.  542 ;  Delier  i\  Plymouth  Soc,  57  la. 
481;  Wilkinson  v.  Stitt,  175  Mass.  581;  Misner  v.  Knapp.  13  Oreg.  279; 
Ballard  v  Brown,  67  Vt.  586;  Porter  v.  Day,  71  Wis.  296;  Gates  v.  Tinning, 
5  U.  C.  Q.  B.  540.  See  also  People  v.  Fallon,  152  N.  Y.  12.  Contra,  Comly 
v.  Hillegass,  94  Pa.  132.  And  see  Stone  v.  Clay,  61  Fed.  Rep.  889  (C.  C.  A.)  ; 
West  v.  Carter,  129  111.  249;  Morgan  v.  Beaumont,  121  Mass.  7. 

Ferguson  v.  Coleman,  3  Rich.  L.  99  was  an  action  on  an  instrument,  dated 
31st  January,  1843,  whereby  the  defendant  promised  "to  pay  on  the  first  of 
January,  1844,  to  W.  S.  Ferguson  or  bearer,  nine  hundred  and  two  dollars, 


406  UNLAWFUL   AGREEMENTS. 

deposited  with  a  stake-holder  by  way  of  wager)  (y).  Wagers  were 
not  as  such  unlawful  or  unenforceable  at  common  law  :60  and  since  the 

(y)  Biggie  v.  Biggs  (1877)  2  Ex.  v.  Hill  (1879)  (J.  C.)  5  App  Ca.  342, 
Div.  422,  46  L.  J.  Ex.  721;   Trimble       49  L.  J.  P.  C.  49. 

fifty-eight  cents,  if  cotton  should  rise  to  eight  cents  by  the  first  November 
next,  and  if  not,  to  pay  five  hundred  dollars,  for  value  received."  This  instru- 
ment was  given  in  part  payment  of  a  tract  of  land  which  the  defendant  had 
purchased  of  the  plaintiff,  and  the  condition  happened.  It  was  held  that  the 
contract  was  not  a  wager  and  the  plaintiff  recovered.  Ace.  Plumb  v.  Camp- 
bell, 129  111.  101;  Wolf  v.  National  Bank,  178  111.  85;  Phillips  v.  Gil- 
ford, 104  la.  458;  Kirkpatriek  v.  Bonsall,  72  Pa.  155.  See  also  United  States 
v.  Olney,  1  Abb.  (TJ.  S.)  275;  Lynch  t.  Rosenthal,  144  Ind.  86;  Dion  v. 
St.  John  Baptiste  Soc,  82  Me.  319;  Miller  v.  Eagle,  &c.  Ins.  Co.,  2  E.  D. 
Smith,  268;  Dunham  v.  St.  Croix  Mfg.  Co.,  34  N.  Bruns.  24.3. 

oo  Johnson  v.  Fall,  6  Cal.  359;  Ross  v.  Green,  4  Harringt.  308;  Dewees  v. 
Miller,  5  Harringt.  347;  Smith  i\  Smith,  21  111.  244;  Beadles  v.  Bless,  27  111. 
320;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219,  223;  Campbell  v.  Richardson.  10 
Johns.  406;  Harris  c.  White,  81  N.  Y.  532,  544;  Shepperd  v.  Sawyer,  2  Mur- 
phey,  26;  McElroy  v.  Carmichael,  6  Tex.  454. 

"  In  Irwin  v.  Williar,  110  U.  S.  499,  510,  the  Supreme  Court  of  the  United 
States  says  of  wagering  contracts :  '  In  England,  it  is  held  that  the  contracts, 
although  wagers,  were  not  void  at  common  law,  and  that  the  statute  has  not 
made  them  illegal,  but  only  non-enforceable  (Thacker  v.  Hardy,  ubi  supra), 
while  generally,  in  this  country,  all  wagering  contracts  are  held  to  be  illegal 
and  void  as  against  public  policy.  Dickson's  Executor  v.  Thomas,  97  Pa. 
278;  Gregory  r.  Wendell,  40  Mich.  432;  Lyon  v.  Culbertson,  83  111.  33; 
Melchert  1'.  American  Union  Telegraph  Co.,  3  McCrary,  521;  S.  C,  11  Fed. 
Rep.  193  and  note ;  Barnard  v.  Backhaus,  52  Wis.  593  :  Kingsbury  v.  Kirwan, 
77  N.  Y.  612;  Story  v.  Saloman,  71  N.  Y.  420;  Love  r.  Harvey,  114  Mass. 
80.'  "  Harvey  r.  Merrill,  150  Mass.  1,  10.  See  also  in  accord,  Edgell  v.  Mc- 
Laughlin, 6  Whart.  176;  Rice  v.  Gist,  1  Strobh.  L.  82;  Collamer  v.  Dav,  2 
Vt.  "144. 

"  But  when  the  broker  is  privy  to  the  unlawful  design  of  the  parties,  and 
brings  them  together  for  the  very  purpose  of  entering  into  an  illegal  agree- 
ment, he  is  particeps  criminis,  and  cannot  recover  for  services  rendered  or 
losses  incurred  bv  himself  on  behalf  of  either  in  forwarding  the  transaction.'' 
Irwin  d.  Williar,"  110  U.  S.  499,  510.  In  Harvey  v.  Merrill,  150  Mass.  1,  11, 
the  court  quoted  this  language  with  approval,  and  added  "  This  was  decided  in 
Embrey  v.  Jemison,  131  U.  S.  336.  See  also  Kahn  v.  Walton,  46  Ohio  St.  195: 
Cothran  v.  Ellis,  125  111.  496;  Fareira  v.  Gabell,  89  Pa.  89;  Crawford  v. 
Spencer,  92  Mo.  498;  Lowry  i\  Dillman,  59  Wis.  197;  Whitesides  r.  Hunt, 
97  Ind.  191;  First  Nat.  Bank  v.  Oskaloosa  Packing  Co.,  66  la.  41;  Rumsey 
r.  Berry,  65  Me.  570. 

"  It  is  not  denied  that  wagering  contracts  are  void  by  the  common  law  of 
Massachusetts;  but  it  is  argued  that  they  are  not  illegal,  and  that,  if  one 
pays  money  in  settlement  of  them  at  the  request  of  another,  he  can  recover 
it  of  the  person  at  whose  request  he  pays  it.  It  is  now  settled  here  that 
contracts  which  are  void  at  common  law,  because  they  are  against  public 
policy,  like  contracts  which  are  prohibited  by  statute,  are  illegal  as  well  as 
void.  They  are  prohibited  by  law  because  they  are  considered  vicious,  and  it 
is  not  necessary  to  impose  a  penalty  in  order  to  render  them  illegal.  Bishop 
r.  Palmer,  146  Mass.  469 ;  Gibbs  v.  Consolidated  Gas  Co.,  130  U.  S.  396.  The 
weight  of  authority  in  this  country  is,  we  think,  that  brokers  who  knowingly 
make  contracts  that  are  void  and  illegal  as  against  public  policy,  and  advance 
money  on  account  of  them  at  the  request  of  their  principals,  cannot  recover 
either  the  money  advanced  or  their  commissions,  and  we  are  inclined  to 
adopt  this  view  of  the  law.  Embrey  v.  Jemison,  131  U.  S.  336,  ubi  supra,  and 
the  other  cases  there  cited." 

To  the  citations  of  the  court  may  be  added  Re  Green,  7  Biss.  338-  Bartlett 


WAGERS  AND  GAMING.  407 

statute  does  not  create  any  offence  or  impose  any  penalty,  a  man  may 
still  without  violating  any  law  make  a  wager,  and  if  ho  loses  it  pay 
the  money  or  give  a  note  for  the  amount  (z).  The  consideration  for 
a  note  so  given  is  in  point  of  law  not  an  illegal  consideration,  but 
merely  no  consideration  at  all.  The  difference  is  important  to  the 
subsequent  holder  of  such  a  note.  If  the  transaction  between  the 
original  parties  were  fraudulent  or  in  the  proper  sense  illegal,  the 
burden  of  proof  would  be  on  the  holder  to  show  that  he  was  in  fact  a 
holder  for  value  ;61  but  here  the  ordinary  presumption  in  favour  of  the 
holder  of  a  negotiable  instrument  is  not  excluded  (a).  At  common 
law  "  if  a  party  *loses  a  wager  and  requests  another  to  pay  it  [300 
for  him,  he  is  liable  to  the  party  so  paying  it  for  money  paid  at  his 
request"  (b)  ;62  but  the  Gaming  Act,  1892,  makes  all  such  payments 
irrecoverable  (c),  as  also  a  loan  of  money  to  be  used  for  a  wager,  and 
to  be  repaid  only  if  the  borrower  wins  (d). 

Attempts  have  been  made  to  evade  the  operation  of  the  principal 
Act  in  gambling  transactions  for  "  differences  "  in  stocks  by  colourable 
provisions  for  the  completion  of  purchase  and  delivery  or  receipt  of 
the  stocks.  Whether  the  intention  of  the  parties  was  really  to  buy 
and  sell,  or  to  wager  on  the  price  of  the  stocks,  is  a  question  of  fact 
on  which  the  verdict  of  a  jury  will  not  be  disturbed  if  on  the  agree- 

(z)   As  to  British  India  see  Queen-  ments    of    Lord    Campbell    C.J.    and 

Empress    v.     Narottamdds    Motirdm  Erie  J. 

(1889)   I.  L.  E.  13  Bom.  681,  a  curi-  (b)    Rosewarne   v.   Billing    (1863) 

ous  case  on  the  common  Indian  sport  15  C.  B.  N.  S.  316,  33  L.  J.  C.  P.  55. 

of  "rain-gambling."  (c)    55  Vict.  c.  9,  Tatam  v.  Reeve, 

(a)   Fitch  v.  Jones    (1885)    5  E.  &  [1893]   1  Q.  B.  44,  62  L.  J.  Q.  B.  30. 

B.  238,  24  L.  J.  Q.  B.  293.  see  judg-  (d)    Carney  v.   Plimmer   [1897]    1 

Q.  B.  634,  66  L.  J.  Q.  B.  415,  C.  A. 

r.  Smith,  4  McCrary,  388;  Kirkpatrick  v.  Adams,  20  Fed.  Bep.  287;  Ponder 
v.  Jerome  Hill  Cotton  Co.,  100  Fed.  Rep.  373  (C.  C.  A.)  ;  Hawley  v.  Bibb, 
69  Ala.  52;  Phelps  v.  Holderness,  56  Ark.  300;  Nat.  Bank  of  Augusta  v. 
Cunningham,  75  Ga.  366;  Samuels  v.  Oliver,  130  111.  73;  Foss  v.  Cuinmings, 
149  111.  353;  Pope  v.  Hanke,  155  111.  617;  Davis  V.  Davis,  119  Ind.  511;  Peo- 
ple's Savings  Bank  v.  Gifford,  108  la.  277;  Stewart  v.  Schall,  65  Md.  289; 
Mohr  v.  Miesen,  47  Minn.  228 ;  Rogers  v.  Marriott.  59  Neb.  759 :  Baldwin  v. 
Flagg,  38  N.  J.  Eq.  219;  Fareira  v.  Gabell,  89  Pa.  89;  Dickson's  Exr.  v. 
Thomas,  97  Pa.  278;  Winward  v.  Lincoln,  23  E.  I.  476;  Barnard  v.  Backhaus, 
52  Wis.  593 ;  Everingham  r,  Meighan,  55  Wis.  354.  Cp.  Kent  v.  Miltenberger, 
13  Mo.  App.  503. 

«l  1  Daniel  on  Neg.  Inst.,  §§  166,  198,  815. 

62Thacker  v.  Hardy,  4  Q.  B.  D.  685.  Ace.  Jones  v.  Ames,  135  Mass.  431; 
Warren  v.  Hewitt,  45  Ga.  501,  as  to  transactions  unenforceable,  but  not  un- 
lawful by  the  laws  of  Massachusetts  and  Georgia  respectively.  Even  where 
the  transaction  is  unlawful,  the  broker  may  recover  for  money  expended  in 
payment  of  losses  at  the  principal's  request.  Roundtree  v.  Smith,  108  U.  S. 
269;  Lehman  v.  Strassberger,  2  Woods,  554,  563;  Williams  v.  Carr,  80  N.  C. 
294;  Marshall  v.  Thurston,  3  Lea,  740. 


408  UNLAWFUL   AGREEMENTS. 

merit  as  a  whole  there  is  evidence  of  a  gambling  intention  (e).  Nor 
will  provisions  of  this  kind  validate  an  agreement  which  is  otherwise 
a  gambling  agreement  on  the  face  of  it  (f).63 

(e)  Universal  Stock  Exchange,  Ltd.  (f)    Re  Gieve  [1899]    1  Q.  B.  794, 

v.  Strachan  [1896]  A.  C.  166,  65  L.  J.       68  L.  J.  Q.  B.  509,  C.  A. 
Q.  B.  429. 

63  A  purchase  on  margin  is  not  necessarily  a  gambling  transaction.  Uni- 
versal Stock  Exchange  v.  Stevens,  66  L.  T.  N.  S.  612;  Forget  c,  Ostigny, 
[1895]  A.  C.  318;  Union  Nat.  Bank  r.  Carr,  15  Fed.  Rep.  438;  Clews  c.  Jamie- 
son,  182  U.  S.  461;  Hatch  v.  Douglas,  48  Conn.  116;  Skiff  v.  Stoddard,  63 
Conn.  198;  Corbett  o.  Underwood,  83  111.  324;  Oldershaw  v.  Knowles,  101  111. 
117;  Perin  v.  Parker,  126  111.  201;  Fisher  r.  Fisher,  113  Ind.  474;  Sondheim 
r.  Gilbert,  117  Ind.  71;  Ball  i:  Campbell,  30  Kan.  177;  Sawyer  v.  Taggart, 
14  Bush,  727;  Durant  v.  Burt,  98  Mass.  161;  Bullard  v.  Smith,  139  Mass. 
492;  Bingham  v.  Scott,  177  Mass.  208;  Clay  v.  Allen,  63  Miss.  426;  Stenton 
v.  Jerome,  54  N.  Y.  480;  Gruman  r.  Smith,  81  N.  Y.  25;  Minor  v.  Beveridge, 
141  X.  Y.  399;  Hopkins  v.  O'Kane,  169  Pa.  47S;  Taylor's  Estate,  192  Pa. 
304,  309,  313;  Smyth  v.  Field,  194  Pa.  550;  Winward  r.  Lincoln,  23  R.  I.  476. 

But  by  statute  contra  in  California,  Cashman  ;;.  Root,  89  Cal.  373 ;  Wetmore 
v.  Barrett,  103  Cal.  246;  Sheehy  v.  Shinn,  103  Cal.  325;  Rued  v.  Cooper,  119 
Cal.  463;  Parker  v.  Otis,  130  Cal.  322. 

Unless  forbidden  by  statute  a  contract  of  option  is  valid.  Union  Nat.  Bank 
r.  Carr,  15  Fed.  Rep.  438;  Hanna  r.  Ingram,  93  Ala.  482;  Godman  r.  Meixsel, 
65  Ind.  32;  Mason  v.  Payne,  47  Mo.  517;  Pieronnet  v.  Lull,  ]0  Neb.  457; 
Bigelow  r.  Benedict,  70  N.  Y.  202;  Harris  r.  Turnbridge,  83  N.  Y.  93;  Lester 
i\  Buel,  49  Ohio  St.  240,  252 ;  Kirkpatrick  !'.  Bonsall.  72  Pa.  155. 

See  as  to  the  construction  of  the  Illinois  statute,  Wolcott  v.  Heath,  78  111. 
433;  Logan  r.  Musick,  81  111.  415;  Schneider  r.  Turner,  130  111.  28;  Ames 
v.  Moir,  130  111.  582;  Corcoran  r.  Lehigh  Coal  Co.,  138  111.  390;  Preston  r. 
Smith,  156  111.  359.  Cp.  Wolf  v.  National  Bank  of  Illinois,  178  111.  85;  Schlee 
v.  Guckenheimer,  179  111.  593;  Ubben  r.  Binnian,  182  111.  508;  Loeb  t.  Stern, 
198  111.  371. 

"  If,  in  a  formal  contract  for  the  purchase  and  sale  of  merchandise  to  be 
delivered  in  the  future  at  a  fixed  price,  it  is  actually  the  agreement  of  the 
parties  that  the  merchandise  shall  not  be  delivered  and  the  price  paid,  but 
that,  when  the  stipulated  time  for  performance  arrives,  a  settlement  shall 
be  made  by  a  payment  in  money  of  the  difference  between  the  contract  price 
and  the  market  price  of  the  merchandise  at  that  time,  this  agreement  makes 
the  contract  a  wagering  contract."     Harvey  r.  Merrill,  150  Mass,  1,  6. 

Numerous  decisions  to  this  effect  are  collected  in  14  Am.  &  Eng.  Encyc.  of 
Law  (2d  ed.),  609-611.  And  see  cases  in  this  note  passim.  In  some  juris- 
dictions contracts  to  sell  in  the  future  stock  or  merchandise  which  the  seller 
did  not  own  at  the  time  of  the  contract  are  made  illegal  without  reference  to 
any  intention  that  there  shall  be  no  delivery.  See  Fortenbury  v.  State.  47 
Ark.  188;  Johnston  v.  Miller,  67  Ark.  172;  Branch  i:  Palmer.  65  Ga.  210; 
Moss  r.  Exchange  Bank,  102  Ga.  808;  Singleton  v.  Bank  of  Montieello,  113 
Ga.  527;  Lemonius  v.  Mayer,  71  Miss.  514;  Dillard  r.  Brenner,  73  Miss.  130; 
Violett  v.  Mangold,  27  So.  Rep.  (Miss.)  875;  Connor  v.  Black,  119  Mo.  126: 
132  Mo.  150;  Edwards  Brokerage  Co.  r.  Stevenson,  160  Mo.  516;  Staples  v. 
Gould,  9  X.  Y.  520;  Gist  v.  Western  Union  Tel.  Co.,  45  S.  C.  344;  Riordan  v. 
Doty,  50  S.  C.  537;  Saunders  r.  Phelps  Co.,  53  S.  C.  173. 

In  Harvey  v.  Merrill,  supra,  the  court  continued:  "If,  however,  it  is 
agreed  by  the  parties  that  the  contract  shall  be  performed  according  to  its 
terms  if  either  party  requires  it,  and  that  either  party  shall  have  a  right 
to  require  it,  the  contract  does,  not  become  a  wagering  contract,  because  one 
or  both  the  parties  intend,  when  the  time  for  performance  arrives,  not  to 
require  performance,  but  to  substitute  therefor  a  settlement  by  the  payment 
of  the  difference  between  the  contract  price  and  the  market  price  at  that 


WAGERS  AND  GAMING.  409 

Under  another  modern  statute  (5  &  6  Wm.  4,  c.  41,  s.  1)  securities 
for  money  won  at  gaming  or  betting  on  games,  or  lent  for  gaming  or 
betting,  are  treated  as  given  for  an  illegal  consideration  (<7).64 

Lotteries  are  forbidden  by  penal  statutes  (h). 

It  would  be  inappropriate  to  the  general  purpose  of  this  work,  as 
well  as  impracticable  within  its  limits,  to  enter  in  detail  upon  the 
contents  or  construction  of  the  statutes  which  prohibit  or  affect  va- 
rious kinds  of  contracts  by  regulating  particular  professions  and  occu- 
pations or  otherwise.  *It  has  been  attempted,  however,  to  make  [301 
some  collection  of  them  in  the  appendix  (i). 

Agreements  in  derogation  of  private  Acts  of  Parliament  not  necessarily  bad. 
The  rules  and  principles  of  law  which   disallow  agreements  whose 

{g)    The  statute  does  not  affect  a  money   deposited  with   a   stakeholder 

loan  of  money  to  pay  a  bet  previously  or  agent,  see  pp.*382,  *383,  below 
lost:    Ex  parte   Pyke    (1878)    8    Ch.  (h)  See  note  G.  in.  Appendix.   Vari- 

Div.  754,  47  L.  J.  Bk.   100.      [Other-  ous  innocent  and  not  uncommon  ways 

wise  now  in  England  under  the  Gam-  of  raising   money   for   charitable   ob 

ing    Act    of    1892.    Tatam    v.    Reeve  jets    are   probably   within   the   letter 

[1893]  1  Q.  B.  44.]     As  to  recovering  of  these  Acts. 

(t)    See  Note  G. 

time.  Such  an  intention  is  immaterial,  except  so  far  as  it  is  made  a  part 
of  the  contract,  although  it  need  not  be  made  expressly  a,  part  of  the  contract." 

And  the  actual  settlement  of  a  contract  by  the  payment  of  differences  doe3 
not  prove  the  contract  to  have  been  illegal.  Tomblin  v.  Cullen,  69  la.  229. 
Cp.  Boyd  v.  Hanson,  41  Fed.  Rep.  174.  It  is  at  least  certain  that  "  if  either 
party  contracted  in  good  faith,  he  is  entitled  to  the  benefit  of  his  contract, 
no  matter  what  may  have  been  the  secret  purpose  or  intention  of  the  other 
partv."  Pixley  v.  Bovnton,  79  111.  351,  354;  Clews  r.  Jamieson,  182  TJ.  S.  461; 
Clarke  v.  Foss,  7  Biss.  540;  Bartlett  v.  Smith,  13  Fed.  Rep.  263;  Kirkpatrick 
v.  Adams,  20  Fed.  Rep.  287;  Hentz  v.  Jewell,  20  Fed.  Rep.  592;  Bennett  r. 
Covington,  22  Fed.  Rep.  816;  Bangs  c.  Hornick,  30  Fed.  Rep.  97;  Lehman 
v.  Feld,  37  Fed.  Rep.  852;  Hill  v.  Levy,  98  Fed.  Rep.  94;  Parker  v.  Moore,  125 
Fed.  Rep.  807;  Johnston  v.  Miller,  67  Ark.  172;  Logan  v.  Musick,  81  III.  415; 
Scanlon  e.  Warren,  169  111.  142;  Vigel  v.  Gatton,  61  111.  App.  98;  Whiteside? 
v.  Hunt,  97  Ind.  191;  Sondheim  t.  Gilbert,  117  Ind.  71;  Murry  v.  Ocheltree, 
59  la.  435;  Sawyer  v.  Taggart,  14  Bush,  727;  Rumsey  v.  Berrv,  65  Me.  570,  573; 
Dillaway  u.  Alden,  S8  Me.  230;  Barnes  v.  Smith,  159  Mass.  344;  Davy  i. 
Bangs,  174  Mass.  238;  Gregory  v.  Wendell,  40  Mich.  432;  Donovan  v.  Daiber, 
124  Mich.  49;  Clay  v.  Allen,  63  Miss.  426;  Cockrell  i.  Thompson,  85  Mo.  510; 
Crawford  P.  Spencer,  92  Mo.  498;  Edwards  Brokerage  Co.  v.  Stevenson,  160 
Mo.  516;  Deierling  v.  Sloop,  67  Mo.  App.  446;  Rogers  r.  Marriott,  59  Neb. 
759;  Amsden  v.  Jacobs,  75  Hun,  911;  affd.  without,  opinion,  148  N.  Y.  762; 
Dows  v.  Glaspel,  4  N.  Dak.  251. 

64  Under  similar  statutes  in  this  country  it  is  generally  held  that  a  loan 
of  money  to  pay  a  debt  previously  lost  is  not  affected.  Armstrong  v.  American 
Bank,  133  U.  S.  433,  469;  Sampson  f.  Camperdown  Mills,  82  Fed.  Rep.  833. 
837;  White  r.  Yarborough,  16  Ala.  109;  Roberts  v.  Blair,  11  Col.  64;  Bower 
r.  Webber,  69  la.  286;  Jones  v.  Sevier,  1  Litt.  50;  English  v.  Young,  10 
B  Mon.  141;  Greathouse  v.  Thrcfckmorton,  7  J.  J.  Marsh.  16;  Ballard  v. 
Green,  118  N.  C.  390;  Krake  V.  Alexander,  86  Va.  206.  And  see  Poindexter 
r.  Davis,  67  N.  C.  112.  Cp.  Hanauer  v.  Doane,  12  Wall.  342,  345;  White  v. 
Wilson's  Adm.,  100  Ky.  367;  Scollans  v.  Flynn,  120  Mass.  271;  Schoenberg  v. 
Adler,  105  Wis.  645.  There  is  nothing  unlawful  in  paying  a  claim  void  for 
illegality.     Lauten  v.  Rowan,  59  N.  H.  215. 


410  UNLAWFUL   AGREEMENTS. 

object  is  to  contravene  or  evade  an  Act  of  Parliament  do  not  apply 
to  private  Acts,  so  far  as  these  are  in  the  nature  of  agreements  be- 
tween parties.  If  any  of  the  persons  interested  make  arrangements 
between  themselves  to  waive  or  vary  provisions  in  a  private  Act 
relating  only  to  their  own  interests,  it  cannot  be  objected  to  such 
an  agreement  that  it  is  in  derogation  of,  or  an  attempt  to  repeal  the 
Act(i-). 

B.  Agreements  contrary  to  morals  or  good  manners. 

Practically  this  means  only  sexual  morality.  It  is  not  every  kind  of 
immoral  object  or  intention  that  will  vitiate  an  agreement  in  a  court 
of  justice.  When  we  call  a  thing  immoral  in  a  legal  sense  we  mean 
not  only  that  it  is  morally  wrong,  but  that  according  to  the  common 
understanding  of  reasonable  men  it  wo  aid  be  a  scandal  for  a  court 
of  justice  to  treat  it  as  lawful  or  indifferent,  though  it  may  not 
come  within  any  positive  prohibition  or  penalty.  What  sort  of  things 
fall  within  this  description  is  in  a  general  way  obvious  enough.  And 
the  law  might  well  stand  substantially  as  it  is,  according  to  modern 
decisions  at  any  rate,  upon  this  ground  alone.  Some  complication 
has  been  introduced,  however,  by  the  influence  of  ecclesiastical  law, 
which  on  certain  points  has  been  very  marked,  and  which  has  cer- 
tainly brought  in  a  tendency  to  treat  these  cases  in  a  peculiar  man- 
ner, to  mix  up  the  principles  of  ordinary  social  morality  with 
considerations  of  a  different  kind,  and  with  the  help  of  those  con- 
siderations to  push  them  sometimes  to  extreme  conclusions.  Having 
regard  to  the  large  powers  formerly  exercised  by  spiritual  Courts  in 
302]  the  control  of  opinions  and  conduct,  *and  even  now  technically 
not  abolished,  it  seems  certain  that  everything  which  our  civil  Courts 
recognize  as  immoral  is  an  offence  against  ecclesiastical  law.  Perhaps, 
indeed,  the  converse  proposition  is  theoretically  true,  so  far  as  the 
ecclesiastical  law  is  not  directly  contrary  to,  the  common  law  (I). 
But  this  last  question  may  be  left  aside  as  merely  curious. 

As  a  matter  of  fact  sexual  immorality,  which  formerly  was  and  in 
theory  still  is  one  of  the  chief  subjects  of  ecclesiastical  jurisdiction, 
is  the  only  or  almost  the  only  kind  of  immorality  of  which  the  com- 
mon law  takes  notice  as  such.  Probably  drunkenness  would  be  on  the 
same  footing.  It  is  conceived,  for  example,  that  a  sale  of  intoxicating 
liquor  to  a  man  who  then  and  there  avowed  his  intention  of  making 

(k)     Ravin    v.     Eoylahe    Ry.    Co.  (I)    Cp.  Lord  Westburv's  remarks 

(1865)    L.  R.   1   Ex.  9,  35  L.  J.  Ex.       in  Hunt  v.  Hunt    (1861-2)    4  D.  F. 
52.       Cp.     and    dist.     Shaw's    claim.       &  .J.  at  pp.  *226-8,  *233. 
(1875)  L.  R.  10  Ch.  177,  44  L.  J.  Ch. 
670. 


IMMORAL    AGREEMENTS.  411 

himself  or  others  drunk  with  it  would  be  void  at  common  law.  The 
actual  cases  of  sale  of  goods  and  the  like  for  immoral  purposes,  on 
whose  analogy  this  hypothetical  one  is  put,  depend  on  the  principles 
applicable  to  unlawful  transactions  in  general,  and  are  accordingly 
reserved  for  the  last  part  of  this  chapter.  Putting  apart  for  the 
present  these  cases  of  indirectly  immoral  agreements,  as  they  may  be 
called,  we  find  that  agreements  are  held  directly  immoral  in  the 
limited  sense  above  mentioned,  on  one  of  two  grounds :  as  providing 
for  or  tending  to  illicit  cohabitation,  or  as  tending  to  disturb  or 
prejudice  the  status  of  lawful  marriage  ("in  derogation  of  the  mar- 
riage contract,"  as  it  is  sometimes  expressed). 

Illicit  cohabitation  —  If  future,  an  illegal  consideration:  if  past,  no  consid- 
eration. With  regard  to  the  first  class,  the  main  principle  is  this. 
The  promise  or  expectation  of  future  illicit  cohabitation  is  an  unlaw- 
ful consideration,  and  an  agreement  founded  on  it  is  void.65  Past 
cohabitation  is  not  an  unlawful  consideration;  indeed,  there  may  in 
some  circumstances  be  a  moral  obligation  on  the  man  to  provide  for 
the  woman;  but  the  *general  rule  applies  (m)  that  a  past  exe-  [303 
cuted  consideration,  whether  such  as  to  give  rise  to  a  moral  duty  or 
not,  is  equivalent  in  law  to  no  consideration  at  all.  An  agreement 
made  on  no  other  consideration  than  past  cohabitation  is  therefore  in 
the  same  plight  as  any  other  merely  voluntary  agreement.  If  under 
seal  it  is  binding  and  can  be  enforced  (n),e6  otherwise  not  (o).67  The 
existence  of  an  express  agreement  to  discontinue  the  illicit  cohabita- 
tion, which  is  idle  both  in  fact  (as  an  agreement  which  neither  party 

(m)    But  the  rule  is  modern    (Ch.  pudicitiae    comes    from    this    period. 

IV.  p.   *181   above),   and  the   earlier  Praemium     pudoris,     however,     was 

cases  on  this  subject  belong  to  a  time  used  in  a  perfectly  innocent  sense  in 

when  a  different  doctrine  prevailed;  the  old  law  of  dower:  Co.  Lit.  31a. 
they  therefore  discuss  matters  which  (n)  Gray  v.  Hathias  (1800)  5  Ves. 

in  the  modern  view  are  simply  irrele-  286,  5  R.  R.  48. 

vant,   e.g.   the   previous   character   of  (o)    Beaumont  v.  Reeve    (1846)    8 

the    parties.      The   phrase   praemium  Q.  B.  483,  15  L.  J.  Q.  B.  141. 

65  Walker  v.  Gregory,  36  Ala.  180 ;  Wallace  v.  Rappleye,  103  111.  229,  249 ; 
Wilson  v.  Ensworth,  85  Ind.  399;  Massey  r.  Wallace,  32  S.  C.  149.  See  also 
Brown  v.  Tuttle,  80  Me.  162.  A  promise  of  marriage  made  in  consideration 
of  the  promisee's  surrendering  her  person  to  the  promisor  is  void.  Hanks 
v.  Nagles,  54  Cal.  51;  Boigneres  v.  Boulon,  54  Cal.  146;  Baldy  v.  Stratton,  11 
Pa.  316;  Goodall  v.  Thurman,  1  Head,  209;  Burke  v.  Shaver,  92  Va.  345. 
Cp.  Kurtz  v.  Frank,  76  Ind.  594. 

*6  Brown  v.  Kinsey,  81  N.  C.  245.  See  also  Brightman  v.  Bates,  175  Mass 
105,  109. 

«TDrenr>an  v.  Douglas,  102  111.  341;  Wallace  v.  Rappleye,  103  111.  229; 
Bunn  r.  Winthrop,  1  Johns.  Ch.  329;  Singleton  v.  Brernar,  Harper  201 
Contra,  Shenk  v.  Mingle,  13  S.  &  R.  29. 


412  UNLAWFUL   AGREEMENTS. 

could  break  alone)  and  in  law- — or  the  fact  of  the  defendant  having 
previously  seduced  the  plaintiff,  which  "  adds  nothing  but  an  executed 
consideration  resting  on  moral  grounds  only," — can  make  no  differ- 
ence in  this  respect  (o). 

Judgment  of  Lord  Selborne,  Ayerst  v.  Jenkins.  The  manner  in  which 
these  principles  are  applied  has  been  thus  stated  by  Lord  Sel- 
borne : — 

"  Most  of  the  older  authorities  on  the  subject  of  contracts  founded  on 
immoral  consideration  are  collected  in  the  note  to  Benyon  v.  Nettlefold  (p). 
Their  results  may  be  thus  stated:  1.  Bonds  or  covenants  founded  on  past 
cohabitation,  whether  adulterous  (q),  incestuous,  or  simply  immoral,  are 
valid  in  law  and  not  liable  (unless  there  are  other  elements  in  the  case)  to 
be  set  aside  in  equity.  2.  Such  bonds  or  covenants,  if  given  in  considera- 
tion of  future  cohabitation,  are  void  in  law  (r),  and  therefore  of  course 
also  void  in  equity.  3.  Relief  cannot  be  given  against  any  such  bonds 
or  covenants  in  equity  if  the  illegal  consideration  appears  on  the  face  of 
the  instrument  (s) .  4.  If  an  illegal  consideration  does  not  appear  on  the 
face  of  the  instrument  the  objection  of  particeps  cnminis  will  not  prevail 
against  a  bill  of  discovery  in  equity  in  aid  of  the  defence  to  an  action  at 
304]  *law  (t),  [this  is  of  no  consequence  in  England  since  the  Judicature 
Acts].  5.  Under  some  (but  not  under  all)  circumstances  when  the  considera- 
tion is  unlawful,  and  does  not  appear  on  the  face  of  the  instrument,  relief  may 
be  given  to  a  particeps  criminis  in  equity"  («). 

The  exception  alluded  to  in  the  last  sentence  is  probably  this :  that 
"  where  a  party  to  the  illegal  or  immoral  purpose  comes  himself 
to  be  relieved  from  the  obligation  he  has  contracted  in  respect  of  it, 
he  must  state  distinctly  and  exclusively  such  grounds  of  relief  as  the 
Court  can  legally  attend  to  "  (x).  He  must  not  put  his  case  on  the 
ground  of  an  immoral  consideration  having  in  fact  failed,  or  com- 
plain that  the  instrument  does  not  correctly  express  the  terms  of  an 
immoral  agreement  (y). 

Where  a  security  is  given  on  account  of  past  cohabitation,  and  the 
illicit  connection  is  afterwards  resumed,  or  even  is  never  broken  off, 
the  Court  will  not  presume  from  that  fact  alone  that  the  real  con- 
to)    Beaumont  v.  Reeve    (1846)    8       v.  Lord  Howden   (1837)   3  My.  &  Cr. 
Q.  B  483,  15  L.  J.  Q.  B.  141.  97,  102,  45  R.  R.  225,  226. 

(p)    (1850)   3  Mac.  &  G.  94,  100.  (r)  Benyon  v.  Nettlefold   (1850)   3 

(</)    Knye  v.  Moore   (1822)    1   Sim.       Mac.  &  G.  94. 
&  St.  64.  (u)  Ayerst  v.  Jenkins  (1873)  L.  R. 

(r)    Walker  v.   Perkins    (1764)    3       16  Eq.  275,  282,  42  L.  J.  Ch.  699. 
Burr.  1568.  (cc)     Batty    v.    Chester     (1842)     5 

(s)   Gray  v.  Mnthias  (1800)   5  Ves.       Beav.  103,  109. 
286,    5   R.    R.    48;    Smyth   v.    Griffin  (y)  Semble,  relief  will  not  be  given 

(1842)  13  Sim.  245,  14  L.  J.  Ch.  28,  if  it  appears  that  the  immoral  con- 
appears  to  be  really  nothing  else  than  sideration  has  been  executed:  Sismey 
an  instance  of  he  same  rule.  The  v.  Eley  (1849)  17  Sim.  1,  18  L.  J.  Ch. 
rule  is  or  was  a  general  one :  Simpson  350 :  but  the  case  is  hardly  intelligi- 
ble. 


SBPAEATION   DEEDS.  413 

sideration  was  future  as  well  as  past  cohabitation,  nor  therefore  treat 
the  deed  as  invalid  (z).68 

There  existed  a  notion  that  in  some  cases  the  legal  personal  repre- 
sentative of  a  party  to  an  immoral  agreement  might  have  it  set  aside, 
though  no  relief  would  have  been  given  to  the  party  himself  in  his 
lifetime :  but  this  has  been  pronounced  "  erroneous  and  contrary  to 
law"  (a).  An  actual  transfer  of  property,  which  is  on  the  face  of  it 
"  a  completed  voluntary  gift,  valid  and  irrevocable  in  law  "  and  con- 
fers an  absolute  beneficial  interest,  cannot  be  afterwards  impeached 
either  by  the  settlor  or  by  his  representatives,  though  in  fact  made 
on  an  immoral  consideration  (a).69  *But  it  by  no  means  fol-  [305 
lows  that  the  Court  will  enforce  the  trusts.  It  may  have  to  direct 
the  trustees  whom  to  pay,  and  will  then  disregard  any  disposition 
which  is  in  fact  founded  on  an  immoral  consideration  (c).  Thus  a 
settlement  in  the  form  of  an  ordinary  marriage  settlement  in  contem- 
plation of  a  marriage  (as  with  a  deceased  wife's  sister)  not  allowed 
by  English  law  is  treated,  as  regards  trusts  for  the  so-called  wife,  as 
made  on  an  immoral  consideration,  and  the  Court  will  pronounce  such 
trusts  invalid  if  applied  to  by  the  trustees  for  directions,  though  it 
would  not  set  aside  the  settlement  at  the  instance  of  the  settlor  (d). 

Proviso  for  reconciliation  in  quasi  separation  deed  is  void.  Where  parties 
who  have  been  living  together  in  illicit  cohabitation  separate,  and  the 
man  covenants  to  pay  an  annuity  to  the  woman,  with  a  proviso  that 
the  annuity  shall  cease  or  the  deed  shall  be  void  if  the  parties  live 
together  again,  there  the  covenant  is  valid  as  a  simple  voluntary 
covenant  to  pay  an  annuity,  but  the  proviso  is  wholly  void.  It  makes 
no  difference,  of  course,  if  the  parties,  being  within  the  prohibited 
degrees  of  affinity,  have  gone  through  the  form  of  marriage,  and  the 
deed  is  in  the  ordinary  form  of  a  separation  deed  between  husband 
and  wife  (e).  When  the  parties  are  really  married  such  a  proviso 
is  usual  but  superfluous,  for  the  deed  is  in  any  case  avoided  by  the 

(z)  Gray  v.  Mathias  (1800)  5  Ves.  (c)  Phillips  v.  Probyn  [1899]  1  Ch. 

286,  5  R.  R.  48 ;  Hall  v.  Palmer  3  Ha.  811,  68  L.  J.  Ch.  401. 
532;   Yallance  V.  Blagden    (1884)    26  (d)  Phillips  v.  Probyn,  last  note. 

Ch.  D.  353.  (e)    Ex  parte  Naden  (1874)    L.  R. 

(a)  Ayerst  v.  Jenkins  (1873)  L.  R.  9  Ch.  670,  43  L.  J.  Bk.  121. 
16  Eq.  275,  281,  284,  42  L.  J.  Ch.  690. 

68  Brown  v.  Kinsey,  81  N.  C.  245.     Cp.  Trovinger  v.  McBurney,  5  Cow.  253. 

69  Hill  V.  Freeman,  73  Ala.  200;  Marksbury  v.  Taylor,  10  Bush,  519; 
Antoine  v.  Smith,  40  La.  Ann.  560;  White  r.  Hunter,  23  N.  H.  128;  Gisaf  v. 
Neval,  81  Pa.  354;  Denton  r.  English.  2  Nott  &  MeC.  581;  Bivins  v.  Jarnigan, 
69  Tenn.  282 ;  Fletcher  v.  Warren,  7  Gratt.  1,  16. 


414  UNLAWFUL   AGREEMENTS. 

parties  afterwards  living  together  (/).70  This  brings  us  to  the 
second  branch  of  this  topic,  namely  the  validity  of  separation  deeds 
and  agreements  for  separation. 

Separation  deeds  in  general  —  Hunt  v.  Hunt.  The  history  of  the  subject 
will  be  found  very  clearly  set  forth  in  Lord  Westbury's  judgment  in 
Hunt  v.  Hunt  (g).71  From  the  ecclesiastical  point  of  view  marriage 
was  a  sacrament  creating  an  indissoluble  relation.  The  duties 
306]  *attaching  to  that  relation  were  "  of  the  highest  possible  religi- 
ous obligation  "  and  paramount  to  the  will  of  the  parties.  In  ecclesi- 
astical Courts  an  agreement  or  provision  for  a  voluntary  separation 
present  or  future  was  simply  an  agreement  to  commit  a  continuing 
breach  of  duties  with  which  no  secular  authority  could  meddle,  and 
therefore  was  illegal  and  void. 

For  a  long  while  all  causes  touching  marriage  even  collaterally 
were  claimed  as  within  the  exclusive  jurisdiction  of  those  courts. 
The  sweeping  character  and  the  gradual  decay  of  such  claims  have 
already  been  illustrated  by  cases  we  have  had  occasion  to  cite  from 
the  Year  Books  in  other  places.  In  later  times  the  ecclesiastical  view 
of  marriage  was  still  upheld,  so  far  as  the  remaining  ecclesiastical 
jurisdiction  could  uphold  it  (h),  and  continued  to  have  much  influ-> 
ence  on  the  opinions  of  civil  Courts ;  the  amount  of  that  influence 
is  indeed  somewhat  understated  in  Lord  Westbury's  exposition.  But 
the  common  law,  when  once  its  jurisdiction  in  such  matters  was  set- 
tled, never  adopted  the  ecclesiastical  theory  to  the  full  extent.  A 
contract  providing  for  and  fixing  the  terms  of  an  immediate  separa- 
tion is  treated  like  any  other  legal  contract,  only  the  ordinary  rule 
that  the  wife  cannot  contract  with  her  husband  without  the  inter- 
vention of  a  trustee  is  dispensed  with  in  these  cases  (i).  Being  good 
and  enforceable  at  law,  the  contract  is  also  good  and  enforceable  in 

(f)     Westmeath    v.    Salisbury    or  the  husband:   see  per  Lord  Selborne, 

Westmeath  (1820-1)  5  Bli.  N.  S.  339,  8  App.  Ca.  at  p.  421. 
]  Dow.  &  CI.  519,  35  R.  R.  54.  (h)  See  4  D.  F.  &  J.  235-8. 

{g)   (1861-2)  4D.F.4  J.  221.  The  (i)  P.  *84,  above,  McGregor  v.  Me- 

case  was  taken  to  the  House  of  Lords,  Gregor   (1888)   21  Q.  B.  Div.  424,  57 

but  the  proceedings  came  to  an  end  L.  J.  Q.  B.  268. 
without  any  decision  by  the  death  of 

70  Wells  r.  Stout,  9  Cal.  479,  498;  Chapman  v.  Gray,  8  Ga.  341,  349; 
Garland  v.  Garland,  50  Miss.  694;  Shethar  v.  Gregory,  2  Wend.  422;  Carsor: 
v.  Murray,  3  Paige,  483.  See  also  Kehr  v.  Smith,  20  Wall.  3-1;  Zimmer  v. 
Settle,  124  N.  Y.  37.     Cp.  Rowell  r.  Rowell,  [1900]   1  Q.  B.  9. 

But  not  if  the  agreement  for  separation  itself  provides  to  the  contrary. 
Walker  v.  Walker,  9  Wall.  743 ;  Walker  v.  Beal,  3  Cliff.  155 ;  Daniels  v.  Bene- 
dict, 97  Fed.  Rep.  367   (C.  C.  A.).     And  see  Hitner's  Appeal,  54  Pa.  110. 

71  See  also  15  Harv.  L.  Rev.  638. 


SEPARATION    DEEDS.  415 

equity,  nor  is  there  any  reason  for  refusing  to  enforce  it  by  any  of  the 
peculiar  remedies  of  equity.  In  Hunt  v.  Hunt  the  husband  was  re- 
strained from  suing  in  the  Divorce  Court  for  restitution  of  conjugal 
rights  in  violation  of  his  covenant  in  a  separation  deed  (fc),  on  the 
authority  of  the  decision  of  the  House  of  Lords  (I),  which  had  already 
established  *that  the  Court  may  order  specific  performance  of  [307 
an  agreement  to  execute  a  separation  deed  containing  such  a  cove- 
nant. The  case  may  be  taken  as  having  put  the  law  on  a  consistent 
and  intelligible  footing,  though  not  without  overruling  a  great  num- 
ber of  pretty  strong  dicta  of  various  judges  in  the  Court  of  Chancery 
and  even  in  the  House  of  Lords  (in) ;  and  it  has  been  repeatedly  fol- 
lowed (n).12    But  an  agreement  by  the  wife  not  to  oppose  proceed- 

(k)    This  covenant  could  not  then  ( Lord  Lyndhurst ) .    Most  of  these  are 

be    pleaded    in    the    Divorce    Court,  to  be  found  cited  in  the  argument  in 

which  held  itself  bound  by  the  former  Wilson   v.   Wilson.     And   even   since 

ecclesiastical  practice  to  take  no  no-  that    case    Vansittart    v.    Vansittart 

tice  of  separation  deeds.  (1858)  2  De  G.  &  J.  at  p.  255   (Lord 

(I)   Wilson  v.  Wilson   (1854)    1  H.  Chelmsford). 

L.  C.  538.  (n)  Besant  v.  Wood  (1879)   12  Ch. 

(m)     In    St.    John    v.     St.    John  D.  at  p.  623;  Sweet  v.  Sweet   [1895] 

(1803-5)     11    Ves.    526,    &e,    West-  1  Q.  B.  12,  64  L.  J.  Q.  B.  108:  Mar- 

meath  v.  Westmeath   (1820-1)    1  Jac.  shall  v.  Marshall   (1879)   5  P.  D.  19, 

142   (Lord  Eldon)  ;  Worrall  v.  Jacob,  48  L.  J.  P.  49.     A  like  covenant  on 

(1816-7)  3  Mer.  268  (Sir  W.  Grant);  the  wife's  behalf  by  a  trustee  is  bind- 

Warrender  v.  Warrender  (1835)  2  CI.  ing  on  her,  Clark  v.  Clark,  10  P.  Div. 

*   F.   527    (Lord    Brougham),   561-2  188. 

T2  That  agreements  for  separation  are  not  void  as  being  against  public 
policy  is  generally  held  in  this  country.  Walker  v.  Walker,  9  Wall.  743; 
Bowers  v.  Hutchinson,  67  Ark.  15;  Wells  v.  Stout,  0  Cal.  479;  Nichols  v. 
Palmer,  5  Day,  47;  Boland  i\  O'Neil,  72  Conn.  217;  Chapman  v.  Gray,  8  Ga. 
341;  Reed  v.  Beazley,  1  Blackf.  97;  Goddard  r.  Beebe,  4  Greene  (la.)  126; 
Loud  v.  Loud,  4  Bush.  453 ;  Helms  r.  Franciscus,  2  Bland's  Ch.  544 ;  Fox  v. 
Davis,  113  Mass.  255;  Grime  v.  Borden,  166  Mass.  198;  Bailey  v.  Dillon,  186 
Mass.  244;  Carson  v.  Murray,  3  Paige,  483;  Galusha  r.  Galusha,  116  N.  Y. 
635;  Clark  v.  Fosdick,  118  N.  Y.  7;  Duryea  e.  Bliven,  122  N.  Y.  567;  Hunger- 
ford  v.  Hungerford,  161  N.  Y.  550,  553;  Bettle  v.  Wilson,  14  Ohio,  257;  Hen- 
derson i:  Henderson,  37  Oreg.  141;  Dillinger's  Appeal.  35  Pa.  357;  Biery  v. 
Steckel,  194  Pa.  445;  Squires  v.  Squires,  53  Vt.  208.  But  see  Foote  v. 
Nickerson,  70  N.  H.  496;  Friedman  r.  Bierman,  43  Hun,  387;  Whitney  p. 
Whitney,  4  N.  Y.  App.  Div.  597 ;  Poillon  v.  Poillon,  49  N.  Y.  App.  Div.  341 ; 
Baum  v.  Baum,  109  Wis.  47.  See  especially  the  careful  opinion  in  Foote  v. 
Nickerson. 

Although  in  some  states  an  agreement  for  separation,  made  directly 
between  husband  and  wife,  without  the  intervention  of  a  trustee,  is  void 
(Phillips  p.  Meyers,  82  111.  67;  Scherer  v.  Scherer,  23  Ind.  App.  384;  Simpson 
*'.  Simpson,  4  Dana,  140;  Rogers  r.  Rogers,  4  Paige,  516;  Carter  v.  Carter, 
14  S.  &  M.  59;  Buchner  v.  Ruth,  13  Rich.  157,  160),  the  law  of  many  states 
has  so  far  removed  the  incapacity  of  the  parties  as  to  make  such  agree- 
ments valid.  Jones  v.  Clifton,  101  U.  S.  225,  229;  Daniels  v.  Benedict, 
97  Fed.  Rep.  367,  376;  Dutton  v.  Dutton,  30  Ind.  452;  Hutchins  v.  Dixon,  11 
Md.  29,  40;  Randall  i-'.  Randall,  37  Mich.  563;  Roll  v.  Poll,  51  Minn.  353;  Steb- 
bins  v.  Morris,  19  Mont.  115;  Carpenter  v.  Osborn,  102  N.  Y.  552;  Thomas  v. 


416  UNLAWFUL   AGREEMENTS. 

ings  for  a  divorce  pending  at  the  suit  of  the  husband  is  void,  being 
not  only  in  derogation  of  the  marriage  contract,  but  a  collusive  agree- 
ment to  evade  the  due  administration  of  justice  (o). 

Consideration  for  agreements  for  separation  deeds.  We  have  seen  that 
when  it  is  sought  to  obtain  the  specific  performance  of  a  contract  the 
question  of  consideration  is  always  material,  even  if  the  instrument 
is  under  seal.  Generally  it  is  part  of  the  arrangement  in  these  cases 
that  the  trustees  shall  indemnify  the  husband  against  the  wife's  debts, 
and  this  is  an  ample  consideration  for  a  promise  on  the  husband's 
part  to  make  provision  for  the  wife,  and  of  course  also  for  his  under- 
taking to  let  her  live  apart  from  him,  enjoy  her  property  separately, 
&c.  (p).  But  this  particular  consideration  is  by  no  means  necessary. 
The  trustee's  undertaking  to  pay  part  of  the  costs  of  the  agreement 
will  do  as  well.73  But  if  the  agreement  is  to  execute  a  separation  deed 
containing  all  usual  and  proper  clauses,  this  includes,  it  seems,  the 
usual  covenant  for  indemnifying  the  husband,  so  that  the  usual  con- 
308]  sideration  is  *in  fact  present  (q).  In  the  earlier  cases,  no 
doubt,  it  was  supposed  that  the  contract  was  made  valid  in  substance 
as  well  as  in  form  only  by  the  distinct  covenants  between  the  hus- 
band and  the  trustee  as  to  indemnity  and  payment,  or  rather  that 
these  were  the  only  valid  parts  of  the  contract.  But  since  Wilson  v. 
Wilson  (r)  and  Hunt  v.  Hunt  such  a  view  is  no  longer  tenable :  in 
Lord  Westbury's  words  "the  theory  of  a  deed  of  separation  is  that  it 
is  a  contract  between  the  husband  and  wife  through  the  intervention  of 
a  third  party,  namely  the  trustees,  and  the  husband's  contract  for 
the  benefit  of  the  wife  is  supported  by  the  contract  of  the  trustees  on 
her  behalf"  (s). 

Minor  points  as  to  separation  deeds.  A  covenant  not  to  sue  for  resti- 
tution of  conjugal  rights  cannot  be  implied,  and  in  the  absence  of 

(o)   Hope  v.  Hope   (1857)   8  D.  M.  the  remarks  in  the  House  of  Lords  in 

&  G.  731,  745,  26  L.  J.  Ch.  417.  a  subsequent  appeal  as  to  the  frame 

(p)    See  Dav.  Conv.  5,  pt.  2,  1079.  of  the  deed,  Wilson  v.  Wilson  (1854) 

(q)    Gibbs  v.  Handing  (1870)   L.  R.  5  H.  L.  C.  40;  and  by  Lord  Westbury, 

5  Ch.  336,  39  L.  J.  Ch.  374.  4  D.  F.  &  J.  234. 

(r)    On  the  effect  of  that  case  see  (s)  4  D.  F.  &  J.  240. 

Brown,  10  Ohio  St.  247;  Garver  r.  Miller,  16  Ohio  St.  527;  Hutton  v.  Hutton's 
Admr.,  3  Pa.   100. 

The  fact  that  husband  and  wife  are  living  apart,  pursuant  to  an  agree- 
ment for  separation,  is  not  a  bar  to  a  suit  for  divorce.  J.  G.  r.  H.  G.,  33 
Md.  401 ;  TCremelberg  v.  Kremelberg,  52  Md.  553 :  Franklin  r.  Franklin.  154 
Mass.  515;  Anderson  v.  Anderson,  1  Edw.  Ch.  380;  Fosdick  r.  Fosdick,  15 
E.  I.  130. 

73  The  wife's  release  of  her  right  to  claim  alimony  is  a.  sufficient  considera- 
tion.   Bratton  v.  Massey,  15  S.  C.  277. 


SEPARATION   DEEDS.  417 

such  a  covenant  the  institution  of  such  a  suit  does  not  discharge  the 
other  party's  obligations  under  the  separation  deed  (I).  Subsequent 
adultery  does  not  of  itself  avoid  a  separation  deed  unless  the  other 
party's  covenants  are  expressly  qualified  to  that  effect  (w).74  A 
covenant  by  the  husband  to  pay  an  annuity  to  trustees  for  the  wife 
so  long  as  they  shall  live  apart— or,  since  the  Married  Women's 
Property  Act,  to  the  wife  herself — remains  in  force  notwithstanding 
a  subsequent  dissolution  of  the  marriage  on  the  ground  of  the  wife's 
adultery  (x)  ;T5  but  it  seems  it  would  be  void  if  future  adultery  were 
contemplated  at  the  time  (y).  The  concealment  of  past  misconduct 
between  the  marriage  and  the  separation  may  render  the  arrangement 
voidable,  and  so  may  subsequent  misconduct,  if  the  circumstances 
show  that  the  separation  *was  fraudulently  procured  with  the  [309 
present  intention  of  obtaining  greater  facilities  for  such  miscon- 
duct (2). 

A  separation,  or  the  terms  of  a  separation,  between  husband  and 
wife  cannot  lawfully  be  the  subject  of  an  agreement  for  pecuniary 
consideration  between  the  husband  and  a  third  person.  But  in  the 
case  of  Jones  v.  Waite  (a)  it  was  decided  by  the  Exchequer  Chamber 
and  the  House  of  Lords  that  the  husband's  execution  of  a  separation 
deed  already  drawn  up  is  a  good  and  lawful  consideration  for  a 
promise  by  a  third  person. 

A  separation  deed,  as  we  have  above  said,  is  avoided  by  subsequent 
reconciliation  and  cohabitation  (6).  If  it  were  not  so,  but  could 
remain  suspended  in  order  to  be  revived  in  the  event  of  a  renewed 
separation,  it  might  become  equivalent  to  a  contract  providing  for  a 

(t)  Jee  v.  Thurlow   (1824)   2  B.  &  (a)    (1842)    1  Bing.  N.  C.  656,  in 

C.  547,  26  E.  R.  453.  Ex.  Ch.  5  Bing.  N.  C.  341.  in  H.  L. 

(u)     lb.;     Evans     v.     Carrington  9  CI.  &  F.  101,  50  R.  R.  705.     In  the 

(1860)  2  D.  F.  &  J.  481,  30  L.  J.  Ch.  Ex  Ch.  both  Lord  Abinger  and  Lord 

364.  Denman  dissented. 

(cc)    Charlesworth  v.   Holt    (1873)  (b)    See  also  Westmeath  v.   Salis- 

L.   R.    9    Ex.   38,   43    L.    J.    Ex.   25;  bury  (1831)  5  Bli.  N.  S.  339,  35  R.  R. 

Sweet  v.  Sweet  [1895]  1  Q.  B.  12,  64  54.      Questions    may    arise    whether 

L.  J.  Q.  B.  108.  particular    terms    are    part    of    the 

(y)    Fearon   v.    Earl  of   Aylesford  agreement  for  separation,  and  there- 

(1884)   14  Q.  B.  Div.  792,  53  L.  J.  Q.  fore  subject  to  be  so  avoided,  or  are 

B.  410.  of  a  permanent  and  independent  na- 

(»)  Evans  v.  Carrington,  note  (it),  ture:    see  Nicol  v.  Niool    (1886)    31 

and  per  Cotton  L.J.  14  Q.  B.  D.  at  p.  Ch.  Div.  524,  55  L.  J.  Ch.  437. 
795. 

74  Sweet  v.  Sweet,  [1895]  1  Q.  B.  12;  Dixon  r.  Dixon,  23  N.  J.  Eq.  :H6; 
24  N.  J.  Eq.  133;  Lister  i\  Lister,  35  N.  J.  Eq.  49,  57.  Nor  does  the  divorce 
and  subsequent  marriage  of  the  wife.  Baker  v.  Cooper,  7  S.  &  R.  500.  Cp.  Al- 
bee  v.  Wyman,  10  Gray,  222.    And  see  Galusha  v.  Galusha,  1  ]  6  N.  Y.  635. 

75Kremelberg  v.  Kremelberg,  52  Md.  553. 
27 


418  UNLAWFUL   AGREEMENTS. 

contingent  separation  at  a  future  time:  and  such  a  contract,  as  will 
immediately  be  seen,  is  not  allowable.  However,  a  substantive  and 
absolute  declaration  of  trust  by  a  third  person  contained  in  a  separa- 
tion deed  has  been  held  not  to  be  avoided  by  a  reconciliation  (c). 

Agreements  for  future  separation  void.  As  to  all  agreements  or  pro- 
visions for  a  future  separation,  whether  post-nuptial  (d)  or  ante- 
nuptial (e)  (/),  and  whether  proceeding  from  the  parties  themselves 
or  from  another  person  (/),T6  it  remains  the  rule  of  law  thati 
310]  *they  can  have  no  effect.  If  a  husband  and  wife  who  have  been 
separated  are  reconciled,  and  agree  that  in  case  of  a  future  separation 
the  provisions  of  a  former  separation  deed  shall  be  revived,  this  agree- 
ment is  void  (f).  A  condition  in  a  marriage  settlement  varying  the 
disposition  of  the  income  in  the  event  of  a  separation  is  void  (g).  So 
is  a  limitation  over  (being  in  substance  a  forfeiture  of  the  wife's 
life  interest)  in  the  event  of  her  living  separate  from  her  husband 
through  any  fault  of  her  own :  though  it  might  be  good,  it  seems, 
if  the  event  were  limited  to  misconduct  such  as  would  be  a  ground  for 
divorce  or  judicial  separation  (h). 

Likewise  a  deed  purporting  to  provide  for  an  immediate  separation 
is  void  if  the  separation  does  not  in  fact  take  place:  for  this  shows 
that  an  immediate  separation  was  not  intended,  but  the  thing  was  in 
truth  a  device  to  provide  for  a  future  separation  (i).  Nor  can  such 
a  deed  be  supported  as  a  voluntary  settlement  (h). 

Reason  of  the  distinction.  The  distinction  rests  on  the  following 
ground : — An  agreement  for  an  immediate  separation  is  made  to  meet 
a  state  of  things  which,  however  undesirable  in  itself,  has  in  fact 
become  inevitable.  Still  that  state  of  things  is  abnormal  and  not  to 
be  contemplated  beforehand.     "It  is  forbidden  to  provide  for  the 

(c)  Ruffles  v.  Alston  (1875)  L.  R.  841;  note  that  this  and  the  case  last 
19  Eq.  539,  44  L.  J.  Ch.  388.  cited  were  after  Wilson  v.  Wilson. 

(d)  Marquis  of  Westmeath  v.  Mar-  (f)  See  note    (d),  last  *page. 
chioness    of    Westmeath    (1820-1)     1  (g)  See  note    (f),  last  *page. 
Dow.  &  CI.  519,  541;    Westmeath  v.            (ft.)  See  note  (e)   last  *page. 
Salisbury  (1831)  5  Bli.  N.  S.  339,  35            (i)    Bindley  v.   Marquis   of  West- 
's.. R.  54.  meath  (1827)  6  B.  &  C.  200,  30  R.  R. 

(0)  B.  v.  W.  ( 1857 )  3  K.  &  J.  382.  290 ;     confirmed     by    Westmeath    v. 

Some   of   the   reasons   given    in   this  Salisbury    (1831)    5   Bli.   N.   S.   339, 

ease    (at  p.   386)    cannot  since  Hunt  395-7,  35  R.  R.  54,  55. 
v.  Bunt  be  supported.  (fc)  Bindley  v.  Mulloney  (1869)  L. 

(f)       Cartwright      v.     Cartwright  R.  7  Eq.  343. 
(1853)  3  D.  M.  &  G.  982,  22  L.  J.  Ch. 

to  People  r.  Mercein,  8  Paige,  47,  68;  Gaines'  Admrx.  v.  Poor,  3  Met.  (Ky.) 
503,  506-507. 


IMMORAL   PUBLICATIONS.  419 

possible  dissolution  of  the  marriage  contract,  which  the  policy  of  the 
law  is  to  preserve  intact  and  inviolate"  (Z).  Or  in  other  words,  to 
allow  validity  to  provisions  for  a  future  separation  would  be  to  allow 
the  parties  in  effect  to  make  the  contract  of  marriage  determinable 
on  conditions  fixed  beforehand  by  themselves  (m). 

*  Immoral  publications:  Being  criminal  offences,  these  are  contrary  [311 
to  positive  law.  It.  is  a  well-established  rule  that  no  enforceable  right 
can  be  acquired  by  a  blasphemous,  seditious,  or  indecent  publication, 
whether  in  words  or  in  writing,  or  by  any  contract  in  relation 
thereto  («) ;  but  it  does  not  really  belong  to  the  present  head.  The 
ground  on  which  the  cases  proceed  is  that  the  publication  is  or  would  be 
a  criminal  offence;  not  merely  immoral,  but  illegal  in  the  strict  sense. 
The  criminal  law  prohibits  it  as  malum  in  se,  and  the  civil  law  takes 
it  from  the  criminal  law  as  malum  prohibitum,  and  refuses  to  recog- 
nize it  as  the  origin  of  any  right  (o).  Then  the  decisions  in  equity 
profess  simply  to  follow  the  law  by  refusing  in  a  doubtful  case  to 
give  the  aid  of  equitable  remedies  to  alleged  legal  rights  until  the 
existence  of  the  legal  right  is  ascertained  (p).  It  would  perhaps 
be  difficult  to  assert  as  an  abstract  proposition  that  a  Court  adminis- 
tering civil  justice  might  not  conceivably  pronounce  a  writing  or  dis- 
course immoral  which  yet  could  not  be  the  subject  of  criminal  pro- 
ceedings.   But  we  do  not  know  of  such  a  jurisdiction  having  ever  in 

(J)   3  K.  &  J.  382.  Joseph    v.    McCowsky,    96    Cal.    518; 

(to)   Agreements  between  husband  Laird  v.  Wilder,  9  Bush,  131;  Siegert 

and  wife  contemplating  a  future  ju-  v.  Abbott,  61  Md.  276;  McConnell  v. 

dicial      separation       (separation      de  Reed,  128  Mass.  477 ;  Koehler  v.  Saun- 

corps)   are  void  in  French  law:  Sirey  ders,  122  N  Y.  73;  Prince's  Mfg.  Co. 

&  Gilbert  on  Code  Nap.  art.  1133,  no.  r.  Prince's  Paint  Co.   135  N.  Y.  24; 

55.  Buckland  v.   Rice,   40   Ohio   St.   526; 

(n)  A  somewhat  analogous  ques-  Palmer  v.  Harris,  60  Pa.  156;  Sim- 
tion  is  raised  by  deceptive  trade  mons  Medicine  Co.  v.  Mansfield  Drug 
marks.  A  trade  mark  likely  to  de-  Co.  93  Tcnn.  84.  Nor  will  a  con- 
ceive the  public  will  not  be  regis-  tract  be  enforced  which  has  for  its  ob- 
tered:  Eno  v.  Dunn  (1890)  15  App.  ject  the  sale  of  articles  innocent  in 
Ca.  252,  63  L.  T.  6.  [Nor  protected  themselves  but  intended  to  be  used  in 
by  a  court  of  equity.  See  Manhattan  such  a  way  as  to  deceive  or  defraud 
Medicine  Co.  v.  Wood,  108  V.  S.  218 ;  the  public.  Church  v.  Proctor,  66 
Holzapfel's  Co.  v.  Rahtjen's  Co.  183  Fed.  Rep.  240  (C.  C.  A.)  ;  Materne 
U.  S.  1 ;  Alaska  Packing  Assoc,  v.  v.  Horwitz,  101  N.  Y.  469.] 
Alaska  Imp.  Co.  60  Fed.  Rep.  103;  (o)  E.g.  Stochdale  v.  Omuhyn 
California  Fig  Syrup  Co.  v.  Putnam,  (1826)  5  B.  &  C.  173,  29  R.  R.  207. 
69  Fed.  Rep.  740  (C.  C.  A.);  (cp.  tp)  Southey  v.  Sherwood  (1817)  2 
Worden  v.  California  Fig  Syrup  Co.  Mer.  435;  Lworence  v.  Smith  (1822) 
102  Fed.  Rep.  334  (C.  C.  A.))  ;  Ray-  Jac.  471,  23  R.  R.  123.  For  a  full 
mond  v.  Royal  Baking  Powder  Co.  85  account  of  the  cases  see  Shortt  on 
Fed.  Rep.  231 ;  Dadirrian  v.  Yacubian,  the  Law  relating  to  Works  of  LiteTa- 
98  Fed.  Rep.  872,  876:  Wrisley  Co.  v.  ture  and  Art,  pp.  3-11,  2nd  ed.  1884. 
Iowa  Soap   Co.    104  Fed.   Rep.   548; 


420  UNLAWFUL   AGREEMENTS. 

fact  been  exercised ;  and  considering  the  very  wide  scope  of  the  crim- 
.  inal  law  in  this  behalf  (q),  it  seems  unlikely  that  there  should  arise 
any  occasion  for  it.  Some  expressions  are  to  be  found  which  look  like 
claims  on  the  part  of  purely  civil  Courts  to  exercise  a  general  moral 
censorship  apart  from  any  reference  to  the  criminal  law.  But  these 
are  overruled  by  modern  authority.  At  the  present  day  it  is  not  true 
that  "the  Court  of  Chancery  has  a  superintendency  over  all  books, 
and  might  in  a  summary  way  restrain  the  printing  or  publishing 
312]  any  that  contained  reflections  on  religion  *or  morality,"  as  was 
once  laid  down  by  Lord  Macclesfield ;  or  that  "  the  Lord  Chancellor 
would  grant  an  injunction  against  the  exhibition  of  a  libellous 
picture,"  as  was  laid  down  by  Lord  Ellenborough  (r).  On  the  whole 
it  seems  that  for  all  practical  purposes  the  civil  law  is  determined  by 
and  co-extensive  with  the  criminal  law  in  these  matters :  the  question 
in  a  given  case  is  not  simply  whether  the  publication  be  immoral, 
but  whether  the  criminal  law  would  punish  it  as  immoral. 

Contracts  as  to  slaves  in  V.  S.  held  void  in  some  States  though  lawful  when 
made.  A  very  curious  doctrine  of  legal  morality  was  started  in  some 
of  the  United  States  after  the  abolition  of  slavery.  It  was  held  that 
the  sale  of  slaves  being  against  natural  right  could  be  made  valid 
only  by  positive  law,  and  that  no  right  of  action  arising  from  it  could 
subsist  after  the  determination  of  that  law.77  The  Supreme  Court  of 
Louisiana  in  particular  adjudged  that  contracts  for  the  sale  of  persons, 
though  made  in  the  State  while  slavery  was  lawful,  must  be  treated 
as  void :  but  the  Supreme  Court  of  the  U.  S.  did  not  hold  itself  bound 
by  this  view  on  appeal  from  the  Circuit  Court,  and  distinctly  refused 
to  adopt  it,  thinking  that  neither  the  Constitutional  Amendment  of 

(q)    See  Russell  on  Crimes,  Bk.  2,  something  like  the  older  view  seems 

c.    24,   and    Stephen's    Digest   of   the  to  be  involved  in  Cowan  v.  Milboum 

Criminal  Law,  artt.  91-95,  161,  172.  (1867)   L.  R.  2  Ex.  230,  36  L.  J.  Ex. 

(r)    Emperor  of  Austria  v.  Day  &  124,  but  see  contra  the  summing  up 

Kossuth  (1861)  3  D.  P.  &  J.  217,  238,  of    Lord    Coleridge    C.J.    in    Reg.    v. 

30  L.  J.  Ch.  690.     As  to  blasphemous  Ramsey  &  Foote,  15  Cox,  C.  C.  231, 

or      quasi-blasphemous      publications  484,  489. 

"Osborn  v.  Nicholson,  1  Dill.  219;  Buckner  v.  Street,  1  Dill.  248;  Shorter 
r.  Cobb,  39  Ga.  285;  Wainwright  v.  Bridges,  19  La.  Ann.  234;  Rodriguez  v. 
Bienvenu,  22  La.  Ann.  300.  Where  the  highest  court  of  a  State  so  decides  on 
general  principles  of  public  policy  or  morality,  the  Supreme  Court  of  the 
United  States  has  no  power  of  review.  Palmer  v.  Marston,  14  Wall.  10;  Dela- 
ware Navigation  Co.  v.  Reybold,  142  U.  S.  636.  But  it  has  power  where 
the  decision  of  the  State  court  is  based  upon  a  constitutional  or  legislative 
enactment,  passed  after  the  contract  was  made.  Delmas  v.  Insurance  Co.,  14 
Wall.  661. 


public  policy;  wagers.  421 

1865,  nor  anything  that  had  happened  since,  avoided  a  contract  good 
in  its  inception  (s).78 

C.  Agreements  contrary  to  public  policy. 

Of  the  doctrine  of  public  policy  in  general.  Before  we  go  through  the 
different  classes  of  agreements  which  are  void  as  being  of  mischievous 
tendency  in  some  one  of  certain  different  ways,  something  must  be 
said  on  the  more  general  question  of  the  judicial  meaning  of  "  pub- 
lic *policy."  That  question  is,  in  effect,  whether  it  is  at  the  [313 
present  time  open  to  courts  of  justice  to  hold  transactions  or  disposi- 
tions of  property  void  simply  because  in  the  judgment  of  the  Court 
it  is  against  the  public  good  that  they  should  be  enforced,  although 
the  grounds  of  that  judgment  may  be  novel.  The  general  tendency 
of  modern  ideas  is  no  doubt  against  the  continuance  of  such  a  juris- 
diction. On  the  other  hand  there  is  a  good  deal  of  modern  and  even 
recent  authority  which  makes  it  difficult  to  deny  its  continued  exist- 
ence. 

Its  extension  by  anxiety  of  Courts  to  discourage  wagers,  while  wagers  as 
such  were  valid  contracts.  As  a  matter  of  history,  there  seems  to  be 
little  doubt  that  the  doctrine  of  public  policy,  so  far  as  regards  its 
assertion  in  a  general  form  in  modern  times,  if  not  its  actual  origin, 
arose  from  wagers  being  allowed  as  the  foundation  of  actions  at  com- 
mon law.  Their  validity  was  assumed  without  discussion  until  the 
judges  repented  of  it  too  late.  Eegretting  that  wagers  could  be  sued 
on  at  all  (t),  they  were  forced  to  admit  that  wagering  contracts  as 
such  were  not  invalid,  but  set  to  work  to  discourage  them  so  far  as 
they  could.  This  they  did  by  becoming  "  astute  even  to  an  extent 
bordering  upon  the  ridiculous  to  find  reasons  for  refusing  to  enforce 
them"  in  particular  cases  (w). 

Thus  a  wager  on  the  future  amount  of  hop  duty  was  held  void, 
because  it  might  expose  to  all  the  world  the  amount  of  the  public 
revenue,  and  Parliament  was  the  only  proper  place  for  the  discussion 

(s)  Boyce  v.  Tabb   (1873)   18  Wall.  all  wagers  on  events  in  which  the  par- 

546.      Cp.    White  v.   Hart,    13   Wall.  ties  had  no  interest. 
646;    Osborn    v.    Nicholson,    ib.    654  [u)  Per  Parke  B.  Egerton  v.  Earl 

(1871).  Brownlow    (1853)    4  H.   L.   C.   at  p. 

(£)  Good  v.  Elliott  (1790)   3  T.  R.  124;    per    WUliams    J.    ib.    77;    per 

693,  1  R.  R.  803,  where  Buller  J.  pro-  Alderson  B.  ib.  109. 
posed  (without  success)   to  hold  void 

78  White  v.  Hart,  13  Wall.  646;  Osborn  v.  Nicholson,  IS  Wall.  654;  Round- 
tree  v.  Baker,  52  111.  241;  Bradford  v.  Jenkins,  41  Miss.  328;  Calhoun  v. 
Calhoun,  2  S.  C.  283;  Taylor  r.  Mayhew,  11  Heisk.  596.  See  also  Sterling 
Remedy  Co.  v.  Wyckoff,  154  Ind.  437. 


422  UNLAWFUL   AGREEMENTS. 

of  such  matters  (x).  Where  one  proprietor  of  carriages  for  hire 
in  a  town  had  made  a  bet  with  another  that  a  particular  person 
would  go  to  the  assembly  rooms  in  his  carriage,  and  not  the  other's, 
it  was  thought  that  the  bet  was  void,  as  tending  to  abridge  the  free- 
dom of  one  of  the  public  in  choosing  his  own  conveyance,  and  to  ex- 
314]  pose  him  to  "the  inconvenience  of  being  impor*tuned  by  rival 
coachmen"  (y).  A  wager  on  the  duration  of  the  life  of  Xapoleon 
was  void,  because  it  gave  the  plaintiff  an  interest  in  keeping  the  king's 
enemy  alive,  and  also  because  it  gave  the  defendant  an  interest  in 
compassing  his  death  by  means  other  than  law"  n  warfare  (2). 

Later  remarks  on  these  decisions.     This  was  probably  the  extreme  case, 

and  has  been  remarked  on  as  of  doubtful  authority  (a).     But  the 

Judicial   Committee  held  in   1848,  on  an  Indian  appeal    (the   Act 

8  &  9  Vict.  c.  109,  not  extending  to  British  India),  that  a  wager  on 

the  price  of  opium  at  the  next  Government  sale  of  opium  was  not 

illegal  (b).     The  common  law  was  thus  stated  by  Lord  Campbell  in 

delivering  the  judgment: — 

"  I  regret  to  say  that  we  are  bound  to  consider  the  common  law  of 
England  to  be  that  an  action  may  be  maintained  on  a  wager,  although 
the  parties  had  no  previous  interest  in  the  question  on  which  it  is  laid,  if 
it  be  not  against  the  interests  or  feelings  of  third  persons,  and  does  not 
lead  to  indecent  evidence,  and  is  not  contrary  to  public  policy.  I  look  with 
concern  and  almost  with  shame  on  the  subterfuges  and  contrivances  and 
evasions  to  which  judges  in  England  long  resorted  in  struggling  against 
this  rule"  (c). 

It  may  surely  be  thought  doubtful  whether  decisions  so  produced 
and  so  reflected  upon  can  in  our  own  time  be  entitled  to  any  regard 
at  all.  But  it  has  been  said  that  they  establish  a  distinction  of  im- 
portance between  cases  where  the  parties  "have  a  real  interest  in 
the  matter,  and  an  apparent  right  to  deal  with  it"  and  where  they 
"have  no  interest  but  what  they  themselves  create  by  the  contract;" 
that  in  the  former  case  the  agreement  is  void  only  if  "  directly  op- 
posed to  public  welfare,"  but  in  the  latter  "  any  tendency  whatever 
315]  to  public  mischief"  will  *render  it  void  (d).     It  is  difficult  to 

(x)    Atherfold  v.  Beard    (1788)    2  in  the  Privy  Council  in  the  case  next 

T.  R.  610,  1  R.  R.  556.  cited,  6  Moo.  P.  C.  312. 

(y)   Eltham  v.  Kingsman  (1818)   1  (6)  By  the  Indian  Contract  Act,  s. 

B.   &  Aid.   683,    19   R.  R.   417:   this,  30,  agreements  by  way  of  wager  are 

however,   was   not   strictly  necessary  now  void,  with  an  exception  in  favour 

to  the  decision.  of  prizes  for  horse-racing  of  the  value 

(z)     Gilbert    v.    Sykes     (1812)     16  of  Rs.  500  or  upwards. 
East,  150,  14  R.  R.  327.  (c)     Ramloll    Thackoorseydass    v. 

(a)    By  Alderson  B.  in  Egerton  v.  Soojumnull     Dliondmull      (1848)      6 

Earl  Brovmlow,  4  H.  L.  C.   109,  and  Moo.   P.   C.  300,   310. 

(d)    (1853)  4  H.  L.  C.  148. 


PUBLIC    POLICY.  423 

accept  this  distinction,  or  at  any  rate  to  see  to  what  class  of  contracts 
other  than  wagers  it  applies.  In  the  case  of  a  lease  for  lives  (to 
take  an  instance  often  used)  the  parties  "  have  no  interest  but  what 
they  themselves  create  by  the  contract "  in  the  lives  named  in  the 
lease :  they  have  not  any  "  apparent  right  to  deal  with  "  the  length 
of  the  Sovereign's  or  other  illustrious  persons'  lives  as  a  term  of  their 
contract :  yet  it  has  never  been  doubted  that  the  contract  is  perfectly 
good. 

Egerton  v.  Brownlow.  The  leading  modern  authority  on  the  general 
doctrine  of  "  public  policy "  is  the  great  case  of  Egerton  v.  Earl 
Brownlow  (e).  By  the  will  of  the  seventh  Earl  of  Bridgewater  a 
series  of  life  interests  (/)  were  limited,  subject  to  provisoes  which 
were  generally  called  conditions,  but  were  really  conditional  limita- 
tions by  way  of  shifting  uses  upon  the  preceding  estates  (g).  The 
effect  of  these  was  that  if  the  possessor  for  the  time  being  of  the 
estates  did  not  acquire  the  title  of  Marquis  or  Duke  of  Bridgewater, 
or  did  accept  any  inferior  title,  the  estates  were  to  go  over.  The 
House  of  Lords  held  by  four  to  one,  in  accordance  with  the  opinion 
of  two  judges  (h)  against  eight  (i),  that  the  limitations  were  void 
as  being  against  public  policy. 

Opinions  of  judges.  The  whole  subject  was  much  discussed  in  the 
opinions  on  both  sides.  The  greater  part  of  the  judges  insisted  on 
such  considerations  as  the  danger  of  limiting  dispositions  of  prop- 
erty on  speculative  notions  of  impolicy  (h) ;  the  vague  and  unsatis- 
factory character  of  a  jurisdiction  founded  on  general  opinions  of 
political  expedience,  as  distinguished  *from  a  legitimate  use  of  [316 
the  policy,  or  rather  general  intention,  of  a  particular  law  as  the 
key  to  its  construction,  and  the  confusion  of  judicial  and  legislative 
functions  to  which  the  exercise  of  such  a  jurisdiction  would  lead  (I) ; 
and  the  fallacy  of  supposing  an  object  unlawful  because  it  might 
possibly  be  sought  by  unlawful  means,  when  no  intention  to  use  such 
means  appeared  (m).    On  the  other  hand  it  was  pointed  out  that  these 

(e)  4  H.  L.  C.  1-250.  W   Pollock  C.B.  and  Piatt  B. 

(f)  Not  estates  of  freehold  with  re-  (i)  Crompton,  Williams,  Cress- 
mainder  to  first  and  other  sons  in  tail  well,  Talfourd,  Wightman,  and  Erie 
in  the  usual  way,  but  a  chattel  inter-  J.J.,  Alderson  and  Parke  BB.  Coler- 
est  for  99  years,  if  the  taker  should  idge  J.  thought  the  limitations  good 
so  long  live,  remainder  to  the  heirs  in  part  only. 

male  of  his  body.     See  Dav.  Conv.  3,  (k)  Crompton  J.  at  p.  68. 

pt.  1,  351.  (I)    Alderson  B.  4  H.  L.  C.  at  p. 

(g)  See  Lord  St.  Leonards'  judg-       106;  Parke  B.  at  p.  123. 

merit,  ■*  H.  L.  C.  at  p.  208.  (m)    Williams  J.  at  p.  77;   Parke 

B.  at  p.  124. 


424  UNLAWFUL   AGEEEMENTS. 

limitations  held  out  "  a  direct  and  powerful  temptation  to  the  exer- 
cise of  corrupt  means  of  obtaining  the  particular  dignity "  (n) ; 
that  besides  this  the  restraint  on  accepting  any  other  dignity,  even 
if  it  did  not  amount  to  forbidding  a  subject  to  obey  the  lawful  com- 
mands of  the  Sovereign  (o),  tended  in  possible  events  to  set  private 
interest  in  opposition  to  public  duty  (p) ;  and  that  the  provisoes  as  a 
whole  were  fitted  to  bias  the  political  and  public  conduct  of  the  per- 
sons interested,  and  introduce  improper  motives  into  it  (q),  and  also 
to  embarrass  the  advisers  of  the  Crown,  and  influence  them  to  recom- 
mend the  grant  of  a  peerage  or  of  promotion  in  the  peerage  for 
reasons  other  than  merit  (r). 

Opinions  in  House  of  Lords.  Lord  Lyndhurst,  Lord  Brougham,  Lord 
Truro,  and  Lord  St.  Leonards  adopted  this  view.  Lord  Cranworth 
dissented,  adhering  to  his  opinion  in  the  Court  below  (s),  and  made 
the  remark  (which  is  certainly  difficult  to  answer)  that  the  Thellusson 
will,  which  the  Courts  had  felt  bound  to  uphold,  was  much  more 
clearly  against  public  policy  than  this.  The  fullest  reasons  on  the 
side  of  the  actual  decision  are  those  of  Pollock  C.B.  and  Lord  St. 
317]  Leonards.  Their  ^language  is  very  general,  and  they  go  far  in 
the  direction  of  claiming  an  almost  unlimited  right  of  deciding  cases 
according  to  the  judge's  view  of  public  policy  for  the  time  being. 
Lord  St.  Leonards  mentioned  the  fluctuations  of  the  decisions  on 
agreements  in  restraint  of  trade  as  showing  that  rules  of  common 
law  have  been  both  created  and  modified  by  notions  of  public  policy  (t). 
He  also  said  that  each  case  was  to  be  decided  upon  principle,  but 
abstract  rules  werenot  to  be  laid  down  (u).  If  this  means  only  that 
the  Court  is  to  be  guided  by  recognized  principles,  but  will  not  and 
cannot  bind  itself  by  verbal  definition,  and  in  the  application  of  con- 
stant principles  must  have  due  regard  to  any  new  or  special  facts, 
the  proposition  is  correct  and  important,  though  by  no  means  con- 
fined to  this  topic ;  but  if  it  means  to  say  that  the  court  may  lay  down 

(n)    Piatt  B.   at   p.   99;   Lord  St.  (p)    Pollock  C.B.  at  p.  151. 

Leonards  at  p.  232;   Lord  Brougham  {q)  Lord  Lyndhurst  at  p.  163. 

at  p.  172.  (r)     Pollock    C.B.    and    Lord    St. 

(o)    On   this   point  the  prevailing  Leonards,  supra. 
opinion,   on   the   whole,   was    that   a  (s)   1  Sim.  N.  S.  464. 

subject  cannot  refuse  a  peerage   [cp.  (t)    See  as  to  ttie  variation  of  the 

5  Ric.  2.  St.  2,  c.  4] ,  but  cannot  be  "  policy    of    the     law "     in     general, 

compelled  to  accept  it  by  any  particu-  Evanturel  v.  Evanturel  (1874)   L.  R. 

lar  title,  or  at  all  events  cannot  be  6  P.  C.  at  p.  29,  43  L.  J.  P.  C.  58. 
compelled  to  accept  promotion  by  any  («)   At  pp.  238-9. 

particular  new  title  if  he  is  a  peer 
already. 


PUBLIC    POLICY.  425 

new  principles  of  public  policy  without  any  warrant  even  of  analogy, 
it  seems  unwarranted. 

Effect  of  the  decision  itself.  But  the  ratio  decidendi  of  the  case  does 
not  in  truth  seem  to  require  any  of  these  wide  assertions  of  judicial 
discretion.  The  limitations  in  question  were  held  bad  because  they 
amounted  in  effect  to  a  gift  of  pecuniary  means  to  be  used  in  obtain- 
ing a  peerage,  and  offered  a  direct  temptation  to  the  improper  use  of 
such  means,  and  the  improper  admission  of  private  motives  of  in- 
terest in  political  conduct:  in  short,  because  in  the  opinion  of  the 
Court  they  had  a  manifest  tendency  to  the  prejudice  of  good  govern- 
ment and  the  administration  of  public  affairs.  But  it  is  perfectly  well 
recognized  that  transactions  which  have  this  character  are  all  alike 
void,  however  different  in  other  respects.  Such  are  champerty  and 
maintenance,  the  compounding  of  offences,  and  the  sale  of  offices. 
The  question  in  the  particular  case  was  whether  there  was  an  ap- 
parent tendency  to  mischiefs  of  this  kind,  or  only  a  remote  possi- 
bility of  inconvenient  consequences.  The  decision  did  not  *create  [318 
a  new  kind  of  prohibition,  but  affirmed  the  substantial  likeness  of 
a  very  peculiar  and  unexampled  disposition  of  property  to  other 
dispositions  and  transactions  already  known  to  belong  to  a  forbidden 
class. 

Egerton  v.  Earl  Brownlow,  however,  is  certainly  a  cardinal  au- 
thority for  one  rule  which  applies  in  all  cases  of  "  public  policy " : 
namely  that  the  tendency  of  the  transaction  at  the  time,  not  its  actual 
result,  must  be  looked  to.79  It  was  urged  in  vain  that  the  will  of 
the  seventh  Earl  of  Bridgewater  had  in  fact  been  in  existence  for 
thirty  years  without  producing  any  visible  ill  effects  (x). 

The  prevailing  modern  view  is  expressed  by  the  following  remarks 
of  the  late  Sir  G.  Jessel : — 

"  It  must  not  be  forgotten  that  you  are  not  to  extend  arbitrarily  those 
rules  which  say  that  a  given  contract  is  void  as  being  against  public  policy, 
because  if  there  is  one  thing  which  more  than  another  public  policy 
requires,  it  is  that  men  of  full  age  and  competent  understanding  shall 
have  the  utmost  liberty  of  contracting,  and  that  their  contracts,  when  en- 
fa;)  Cp.  Da  Costa  v.  Jones  (1778)  notwithstanding  it  did  not  appear 
Cowp.  729.  Wager  on  sex  of  third  that  the  person  had  made  any  objec- 
person  void,  as  offensive  to  that  peT-  tion,  and  the  cause  had  in  fact  been 
son  and  tending  to  indecent  evidence:        tried  without  any  indecent  evidence. 

79  See  United  States  r.  Knight  Co.,  156  U.  S.  16;  More  v.  Bennett,  140  Til. 
69;  Chapin  v.  Brown,  83  la.  156;  Anderson  v.  Jett,  89  Ky..  375;  Fuller  v. 
Dame.  18  Pick.  472;  Richardson  v.  Crandall,  48  N.  Y.  348,  362;  Judd  V.  Har- 
rington, 139  N.  Y.  110;  People  v.  Sheldon,  139  N.  Y.  251;  People  /;.  Milk 
Exch.,  145  N.  Y.  267;  Central  Salt  Co.  v.  Guthrie,  35  Ohio  St.  672;  Holladay 
v.  Patterson,  5  Oreg.  177,  180. 


426  UNLAWFUL   AGREEMENTS. 

tered  into  freely  and  voluntarily,  shall  be  held  sacred  and  shall  be  enforced 
by  courts  of  justice.  Therefore,  you  have  this  paramount  public  policy  to 
consider — that  vou  are  not  lightly  to  interfere  with  this  freedom  of  con- 
tract "  (y). so 

The  wide  discretion  formerly  claimed  by  the  judges  in  the  some- 
what analogous  field  of  the  law  of  conspiracy  has  been  finally  dis- 
credited by  the  House  of  Lords  as  well  as  the  Court  of  Appeal  in  the 
Mogul  Steamship  Co.'s  case  (z). 

We  now  proceed  to  the  several  heads  of  the  subject. 

(a.)  Public  policy  as  touching  external  relations  of  the  State.  First,  as  to 
matters  concerning  the  commonwealth  in  its  relations  with  foreign 
powers. 

319]  "  On  the  principles  of  the  English  law  it  is  not  competent  to 
any  "  domiciled  British  (a)  "  subject  to  enter  into  a  contract  to  do 
anything  which  may  be  detrimental  to  the  interests  of  his  own 
country  "  (b). 

An  agreement  may  be  void  for  reasons  of  this  kind  either  when 
it  is  for  the  benefit  of  an  enemy,  or  when  the  enforcement  of  it  would 
be  an  affront  to  a  friendly  State. 

Trading  with  enemy.  As  to  the  first  and  more  important  branch  of 
this  rule :  "  It  is  now  fully  established  that,  the  presumed  object  of 
war  being  as  much  to  cripple  the  enemy's  commerce  as  to  capture  his 
property,  a  declaration  of  war  imports  a  prohibition  of  commercial 
intercourse  and  correspondence  with  the  inhabitants  of  the  enemy's 
country,  and  that  such  intercourse,  except  with  the  license  of  the 
Crown,  is  illegal"  (c).81 

(y)   Printing  and  Numerical  Regis-  Bell  v.  Reid  (1813)   1  M.  4  S.  726,  14 

tcring  Co.  v.  Sampson    (1875)    L.  R.  R.  R.  557. 

19  Eq.  462,  44  L.  J.  Ch.  705.  (6)    7  E.  &  B.  782. 

(z)  Mogul  Steamship  Co.  v.  H'Gre-  (c)   Esposito  v.  Boivden  (1857)    (in 

gor,  Cow  &  Co.   [1892]   A.  C.  25,  61  Ex.  Ch.)   7  E.  &  B.  763,  779,  24  L.  J. 

L.  J.  Q.  B.  295.  Q.  B.   210;   Kershaw  v.   Kelsey,   100 

(a)    The    rule    does    not   apply   to  Mass.  561. 
British    subjects    domiciled    abroad: 

80  Approved  in  Tullis  v.  Jacson,  [1892]  3  Ch.  441,  445;  Badische  Co.  v. 
Sdhott,  T1892]  3  Ch.  447,  452;  Underwood  v.  Barker,  [1899]  1  Ch.  300,  305, 
308;  Baltimore  Ry.  Co.  v.  Voigt,  176  U.  S.  498,  505;  United  States  r.  Trans- 
Missouri  Assoc,  58  Fed.  Rep.  58,  59;  United  States  Co.  v.  Provident  Co.,  64 
Fed.  Rep.  946,  949;  National  Co.  r.  Union  Hospital  Co..  45  Minn.  272; 
Diamond  Match  Co.  r.  Roeber,  106  N.  Y.  473,  482 ;  Reece  v.  Kyle,  49  Ohio  St. 
475,  487;  McCandless  v.  Allegheny  Steel  Co.,  152  Pa.  139,  151. 

81 "  The  law  of  nations,  as  judicially  declared,  prohibits  all  intercourse  be- 
tween citizens  of  the  two  belligerents,  which  is  inconsistent  with  the  state  of 
war  between  their  countries ;  and  this  includes  any  act  of  voluntary  sub- 
mission to  the  enemy,  or  receiving  his  protection ;  as  well  as  any  act  or  con- 
tract which  tends  to  increase  his  resources;   and  every  kind  of  trading  or 


TRADING   WITH   ENEMIES.  427 

Potts  v.Bell.  The  case  of  Potts  v.  Bell  (d),  decided  by  the  Ex- 
chequer Chamber  in  1800,  is  the  leading  authority  on  this  subject. 
The  following  points  were  there  decided: 

It  is  a  principle  of  the  common  law  (e)  that  trading  with  an 
enemy  without  licence  from  the  Crown  is  illegal. 

Purchase  of  goods  in  an  enemy's  country  during  the  war  is  trading 
with  the  enemy,  though  it  be  not  shown  that  they  were  actually  pur- 
chased from  an  enemy:82  and  an  insurance  of  goods  so  purchased  is 
void. 

As  to  insurances  originally  effected  in  time  of  peace :  "  When  a 
British  subject  insures  against  captures,  the  law  infers  that  the  con- 
tract contains  an  exception  of  captures  made  by  the  government  of 
his  own  country"  (/).  There  is  no  rule  of  public  policy  to  prevent 
insurance  of  a  subject  of  a  foreign  State  against  "  arrests  of  all 
kings,  princes,  and  peoples"  from  including  seizure  by  that 
*State  before,  though  shortly  before,  the  outbreak  of  war  with  [32Q 
Great  Britain,  where  the  policy  is  sued  on  after  the  war  is  over  (g). 

Effect  of  war  on  subsisting  contracts.  The  effect  of  the  outbreak  of 
war  upon  subsisting  contracts  between  subjects  of  the  hostile  states 
varies  according  to  the  nature  of  the  case.  It  may  be  that  the  con- 
tract can  be  lawfully  performed  by  reason  of  the  belligerent  govern- 
ments or  one  of  them  having  waived  their  strict  rights:  and  in  such 
case  it  remains  valid.    In  Clementson  v.  Blessig  (h)  goods  had  been 

(d)  (1800)  8  T.  R.  548,  5  R.  E.  (g)  Driefontein  Consolidated  Gold 
452.  Mines  v.  Janson  [1901]   2  K.  B.  419, 

(e)  In  the  Admiralty  it  was  70  L.  J.  K.  B.  881,  C.  A.,  diss. 
already    beyond  question:  see     the  Vaughan  Williams,  L.J. 

series' of  precedents  cited  in  Potts  v.  (h)    (1855)   11  Ex.  135,  and  on  the 

Bell.  subject  generally   see   the   reporters' 

(f)  Furtado  v.  Rodgers   (1802)  3  B.  note,  pp.  141-5. 
&  P.  191,  200,  6  R.  R.  752;  Ex  parte 

Lee  (1806)   13  Ves.  64. 

commercial  dealing  or  intercourse,  whether  by  transmission  of  money  or 
goods  or  orders  for  the  delivery  of  either,  between  the  two  countries, 
whether  directly  or  indirectly,  or  through  the  intervention  of  third  per- 
sons or  partnerships,  or  by  insurances  upon  trade  with  or  by  the  enemy." 
Kershaw  V.  Kelsey,  100  Mass.  561,  572-3;  Scholfield  v.  Eichelberger,  7  Pet. 
586;  Cappell  v.  Hall,  7  Wall.  542,  554;  United  States  v.  Grossmayer,  9  Wall. 
72;  Montgomery  v.  United  States,  15  Wall.  395;  United  States  v.  Quigley, 
103  U.  S.  595;*  Carson  v.  Dunham,  121  U.  S.  421;  The  Rapid,  8  Cr.  155; 
Phillips  v.  Hatch,  1  Dill.  571;  Habricht  v.  Alexander's  Exrs.,  1  Woods,  413; 
Perkins  v.  Rogers,  35  Ind.  124;  Hill  v.  Baker.  32  la.  302;  Hennen  v.  Oilman, 
20  La.  Ann.  241;  Shaklett  v.  Polk,  51  Miss.  378,  391;  Rhodes  v.  Summerhill, 
4  Heisk.  204;  1  Kent.  66.  The  particular  contracts,  however,  relating  to  real 
estate,  in  Kershaw  v.  Kelsey,  100  Mass.  561,  and  Brown  r.  Gardner.  4  Lea, 
145,  were  held  to  be  lawful.    See  also  Williams  v.  Paine,  169  U.  S.  55.  72. 

82  Contra,  Briggs   v.  United   States,    143   U.   S.   346.     See  also   Briggs   v. 
Walker,  171  U.  S.  466. 


428  UNLAWFUL   AGREEMENTS. 

ordered  of  the  plaintiff  in  England  by  a  firm  at  Odessa  before  the 
declaration  of  war  with  Eussia.  By  an  Order  in  Council  six  weeks 
were  given  after  the  declaration  of  war  for  Eussian  merchant  vessels 
to  load  and  depart,  and  the  plaintiff  forwarded  the  goods  for  ship- 
ment in  time  to  be  lawfully  shipped  under  this  order :  it  was  held  that 
the  sale  remained  good.83 

If  the  contract  cannot  at  once  be  lawfully  performed,  then  it  is 
suspended  during  hostilities  (i)  unless  the  nature  or  objects  of  the 
contract  be  inconsistent  with  a  suspension,  in  which  case  "the  effect 
is  to  dissolve  the  contract  and  to  absolve  both  parties  from  further 
performance  of  it"  (fc).84    The  outbreak  of  a  war  dissolves  a  partner- 

(t)    Esc  parte  Boussmaker    (1806)  Q.    B.    153.      [Hanger    v.    Abbott,    6 

13  Ves.  71,  9  E.  R.  142.  Wall.  532,  536.]     A  contract  to  carry 

(k)    Esposito  v.  Bou-den   (1857)    7  goods  has  been  held  to  be  only  sus- 

E.  &  B.  763,  7S3,  27  L.  J.  Q.  B.   17  pended     by     a    temporary    embargo, 

(in   Ex.   Ch. )    revg.  s.   c.   4  E.   &  B.  though   it  lasted  two  years:    Hadley 

963,  24  L.  J.  Q.  B.  210.     For  a  later  v.  Clarke  (1799)   8  T.  R.  259,  4  R.  R. 

application    of    the    same    reason    of  641.      Sed   qu.    is  not   this  virtually 

convenience,     cp.     Oeipel     v.     Smith  overruled  by  Esposito  v.  Bowdenf 
(1872)    L.  R.  7   Q.  B.  404,  41   L.  J. 

83  Although  a  state  of  war  actually  existed  before  April  23,  1861,  yet  a 
partnership  between  a  resident  of  New  York,  and  other  parties,  residems  of 
Louisiana,  was  not  dissolved  by  the  late  Civil  War  as  early  as  that  date,  and 
all  the  members  of  the  firm  were  bound  by  its  acceptance  of  a  bill  of  exchange 
bearing  date  and  accepted  on  that  day,  and  payable  one  year  thereafter;  the 
Act  of  Congress  of  July  13,  1861,  and  the  President's  proclamation  of  August 
16,  1861,  issued  under  its  authority,  exhibiting  "  a  clear  implication  that  before 
the  first  was  enacted,  and  the  second  was  issued,  commercial  intercourse  was 
not  unlawful;  that  it  had  been  permitted."     Matthews  v.  McStea,  !'l  U.  S.  7. 

84  See  Odlin  v.  Insurance  Co.,  2  Wash.  C.  C.  312;  Baylies  i.  Fettyplaee,  7 
Mass.  325;  McBride  (:.  Insurance  Co.,  5  Johns.  299;  Palmer  V.  Lori.lard,  16 
Johns.  34S.  In  Statham  v.  Insurance  Co.,  93  U.  S.  24,  the  court  was  called 
upon  to  pass  upon  the  effect  of  the  non-payment  of  the  stipulated  annual 
premium  in  a  policy  of  life  insurance  conditioned  to  be  void  on  non-pay- 
ment of  the  premium,  where  the  failure  to  pay  was  caused  by  the  inter- 
vention of  war  between  the  territories  in  which  the  insurance  company  and 
the  assured,  respectively,  resided,  which  made  it  unlawful  for  them  to  hold 
intercourse.  A  majority  of  the  court  held:  1.  That  such  a  policy  "is  not 
an  insurance  from  year  to  year  like  a  common  fire  policy,  but  the  premiums 
constitute  an  annuity,  the  whole  of  which  is  the  consideration  for  the  entire 
insurance  for  life;  and  the  condition  is  a  condition  subsequent,  making  by  its 
non-performance  the  policy  void.''  2.  That  time  is  of  the  essence  of  the  con- 
tract, and  a  failure  to  pay  involves  an  absolute  forfeiture,  but  that,  under 
the  circumstances,  if  the  company  insisted  on  a  forfeiture  the  assured  was 
entitled  to  the  equitable  value  of  the  policy  arising  from  the  premiums 
actually  paid,  i.  e.,  the  difference  between  the  cost  of  a  new  policy,  and  the 
present  value  of  the  premiums  yet  to  be  paid  on  the  forfeited  policy  when 
the  forfeiture  occurred.  Cp.  Crawford  v.  Insurance  Co.,  S.  C.  Tenn.  5  C.  L.  J. 
100;  Abell  v.  Insurance  Co.,  18  W.  Va.  400.  3.  That  the  doctrine  of  revival 
of  contracts  suspended  during  the  war  "  cannot  be  invoked  to  revive  a 
contract  which  it  would  be  unjust  or  inequitable  to  revive — as  where  (as 
here),  time  is  of  the  essence  of  the  contract,  or  the  parties  cannot  be  made 
equal."  Waite,  C.  J.,  and  Strong,  J.,  dissented,  holding  that  failure  to 
pay  the  annual  premium,  when  it  matured,  put  an  end  to  the  policy,  not- 
withstanding the  default  was  occasioned  by  the  war.  Aec.  Tait  v.  Insurance 
Co.,   1  Flipp.  288;   Worthington  v.   Insurance  Co.,   41  Conn.  372;   Dillard  v. 


TRADING   WITH   ENEMIES.  429 

ship  previously  existing  between  subjects  of  the  two  hostile  coun- 
tries (Z).85 

*In  Esposito  v.  Bowden  (h),  a  neutral  ship  was  chartered  to  [321 
proceed  to  Odessa,  and  there  load  a  cargo  for  an  English  freighter,  and 
before  the  ship  arrived  there  war  had  broken  out  between  England 
and  Eussia,  and  continued  till  after  the  time  when  the  loading  should 
have  taken  place:  here  the  contract  could  not  be  performed  without 
trading  with  the  enemy,  and  in  such  a  case  it  is  convenient  that  it 
should  be  dissolved  at  once,  so  that  the  parties  need  not  wait  in- 
definitely for  the  mere  chance  of  the  war  coming  to  an  end,  or  its 
otherwise  becoming  possible  to  perform  the  contract  lawfully. 

Bills  of  exchange  between  England  and  hostile  country.  Questions  have 
arisen  on  the  validity  of  bills  of  exchange  drawn  on  England  in  a 
hostile  country  in  time  of  war.  Here  the  substance  of  the  transaction 
has  to  be  looked  at,  not  merely  the  nationality  of  the  persons  who 
are  ultimately  parties  to  an  action  on  the  bill.  Where  a  bill  was  drawn 
on  England  by  an  English  prisoner  in  a  hostile  country,  this  was  held 
a  lawful  contract,  being  made  between  English  subjects;  and  by  the 
necessity  of  the  case  an  indorsement  to  an  alien  enemy  was  further 
held  good,  so  that  he  might  well  sue  on  it  after  the  return  of 
peace  (m).     But  a  bill  drawn  by  an  alien  enemy  on  a  domiciled 

{I)  Griswold  v.  Waddington  (1818)  that  in  the  circumstances  the  assured 
15  Johns.  (Sup.  Ct.  N.  Y. )  57,  in  were  entitled  to  the  surrender  value 
error  16  ib.  438.  In  New  York  Life  of  their  policies  at  the  date  of  the 
Insurance  Co.  v.  Statham  (1876)  93  first  default.  But  the  opinions  that 
U.  S.  24,  a  curious  question  arose  as  the  contract  was  avoided  without 
to  the  effect  of  the  Civil  War  on  life  compensation,  and  that  it  revived  at 
policies  effected  by  residents  in  the  the  end  of  the  war,  also  found  sup- 
Southern  States  with  a  company  in  port. 

the  North.     It  was  held  by  the  ma-  (k)  See  note  (k)  last  page, 

jority  of  the  Court  that,  the  premi-  (m)  Antoine  v.  Morshead  (1815)  6 

urns  having  been  unpaid  during  the  Taunt.  237,  16  R.  R.  610;  cp.  Daubuz 

war,  the  policies  were  avoided;    but  v.  Morshead  (1815)  ib.  332,  16  R.  R. 

623. 

Insurance  Co.,  44  Ga.  119.  Clifford  and  Hunt,  JJ.,  dissenting,  held  that 
the  contract  was  only  suspended  during  the  war,  and  revived  when  peace 
ensued.  Ace.  Hamilton  v.  Insurance  Co.,  9  Blatchf.  234;  Insurance  Co.  v. 
Clopton,  7  Bush,  179;  Statham  v.  Insurance  Co.,  45  Miss.  581;  Insurance 
Co.  v.  Hilliard,  37  N.  J.  L.  444;  Cohen  v.  Insurance  Co.,  50  N.  Y.  610;  Sands 
v.  Insurance  Co.,  50  N.  Y.  626;  Insurance  Co.  v.  Warwick,  20  Gratt.  614; 
Insurance  Co.  v.  Atwood's  Admx.,  24  Gratt.  497 ;  Insurance  Co.  v.  Duerson,  28 
Gratt.  630. 

85  The  William  Bagaley,  5  Wall.  377;  Matthews  v.  McStea,  91  U.  S.  7,  9; 
Hubbard  r.  Matthews,  54  N.  Y.  43,  407;  Taylor  r.  Hutehins,  25  Gratt.  536. 
If  a  creditor  has  an  agent  in  the  country  of  the  enemy  payment  by  the 
debtor  resident  there  to  the  agent  is  lawful.  Ward  v.  Smith,  7  Wall.  447; 
Kershaw  v.  Kelsey,  100  Mass.  561,  573;  Buchanan  r.  Curry,  19  Johns.  137; 
Rodgers  v.  Bass,  46  Tex.  505;  Hale  v.  Wall,  22  Gratt.  424.  And  so  is  the 
investment  there  by  the  agent  of  money  in  his  hands.  Barton  Co.  Commrs. 
v.  Newell,  64  Ga.  699. 


430  UNLAWFUL   AGREEMENTS. 

British  subject,  and  indorsed  to  a  British  subject  residing  in  the 
enemy's  country,  was  held  to  give  no  right  of  action  even  after  the 
end  of  the  war:  for  this  was  a  direct  trading  with  the  enemy  on  the 
part  of  the  acceptor  (n).86  It  seems  proper  to  observe  that  these 
cases  must  be  carefully  distinguished  from  those  which  relate  only  to 
the  personal  disability  of  an  alien  enemy  to  sue  in  our  Courts  during 
the  war  (o).87 

322]  *Hostilities  against  friendly  nation  cannot  be  subject  of  lawful  con- 
tract. On  the  other  hand,  an  agreement  cannot  be  enforced  in  England 
which  has  for  its  object  the  conduct  of  hostilities  against  a  power 
at  peace  with  the  English  government,  at  all  events  by  rebellious 
subjects  of  that  power  who  are  endeavouring  to  establish  their  inde- 
pendence, but  have  not  yet  been  recognised  as  independent  by  Eng- 
land. This  was  laid  down  in  cases  arising  out  of  loans  contracted 
in  this  country  on  behalf  of  some  of  the  South  American  Kepublics 
before  they  had  been  officially  recognized. 

"  It  is  contrary  to  the  law  of  nations,  which  in  all  cases  of  international 
law  is  adopted  into  the  municipal  code  of  every  civilized  country,  for 
persons  in  England  to  enter  into  engagements  to  raise  money  to  support 
the  subjects  of  a  government  in  amity  with  out  own  in  hostilities  against 
their  government,  and  no  right  of  action  can  arise  out  of  such  a  transac- 
tion "  (p).86 

(n)   Willison  v.  Patteson  (1817)   7  Sparenburgh  v.  Bannatyne    (1797)    1 

Taunt.   439,   18  R.  R.   525.     The  cir-  B.  &  P.  163,  4  R.  R.  772. 
cumstances  of  the  indorsement  seem  (p)    Best    C.J.    De    Wiitz   v.    Hen- 

immaterial.  dricks    (1824)    2  Bing.  314,  27  R.  R. 

(o)    Such  are  McGonnell  v.  Hector  660.    Cp.  Thompson  v.  Powles  (1828) 

3  B.  &  P.  113,  6  R.  R.  724;  Brandon  2  Sim.  194,  where  the  language  seems 

v.  Xesbitt   (1794)   6  T.  R.  23,  3  R.  R.  unnecessarily  wide. 
109.     As   to   prisoners   of   war   here, 

86  Williams  v.  Bank,  2  Woods,  501;  Tarleton  ».  Bank,  49  Ala.  229;  Woods 
v.  Wilder,  43  N.  Y.  164;  Lacy  i.  Sugarman,  12  Heisk.  354;  Bilgerry  v. 
Branch  19  Gratt.  393,  418;  Moon  v.  Foster,  19  Gratt.  433,  n.  Cp.  United 
States  v.  Barker,  1  Paine  C.  C.  156;  Haggard  v.  Conkwright,  7  Bush,  16. 
A  bill  drawn  by  an  alien  enemy  upon  the  subject  or  citizen  of  the  adverse 
country,  in  favor  of  a  neutral,  will,  if  no  illegal  use  of  it  be  intended,  be  good 
in  favor  of  the  neutral  against  the  drawer,  and  against  the  drawee  if  he  become 
acceptor.     Story  on  Bills,  §  104. 

87  That  during  a  war,  foreign  or  civil,  an  action  cannot  be  prosecuted  by  an 
enemy,  residing  in  the  enemy's  territory,  but  must  be  stayed  until  the  return 
of  peace,  see  Lamar  v.  Micou,  112  TJ.  S.  452,  464;  Perkins  v.  Rogers,  35  Ind. 
124;  Norris  v.  Doniphan,  4  Met.  (Ky.)  385;  Wheelan  v.  Cook,  29  Md.  1; 
Kershaw  e.  Kelsey,  100  Mass.  561,  563;  Bell  v.  Chapman,  10  Johns.  183, 
Sanderson  v.  Morgan.  39  N.  Y.  231.  But,  if  sued,  he  may  defend  in  the  forum 
in  which  he  is  assailed.  McVeigh  v.  United  States,  11  Wall.  259;  Windsor 
v.  McVeigh,  93  U.  S.  274,  277;  Seymour  i:  Bailey,  66  111.  288;  Buford  v. 
Speed,  11  Bush.  338;  Haymond  r.  Camden,  22  W.  Va.  180. 

88Kennett  r.  Chambers,  14  How.  38;  Pond  v.  Smith,  4  Conn.  297. 

A  covenant  in  a  deed  not  to  convey  or  lease  land  to  a,  Chinaman  has  been 
held  void,  as  contrary  to  the  public  policy  of  the  government  and  in  contra- 
vention of  its  treatv  with  China.    Gandolfo  v.  Hartman,  49  Fed.  Rep.  181. 


TRADING    WITH    ENEMIES.  431 

The  Supreme  Court  of  the  United  States  has  held,  however,  that 
an  assignment  of  shares  in  a  company  originally  formed  for  a  pur- 
pose of  this  kind  was  so  remotely  connected  with  the  original  illegality 
of  the  loan  as  not  to  be  invalid  between  the  parties  to  it  (q). 

Neutral  trade  with  belligerents  is  at  risk  of  capture  only,  not  unlawful. 

It  is  not  a  "municipal  offence  by  the  law  of  nations"  for  citizens 
of  a  neutral  country  to  carry  on  trade  with. a  blockaded  port  —  that  is, 
the  courts  of  their  own  country  cannot  be  expected  to  treat  it  as 
illegal  (though  of  course  it  is  done  at  the  risk  of  seizure,  of  which 
seizure,  if  made,  the  neutral  trader  or  bis  government  cannot  com- 
plain) :  and  agreements  having  such  trade  for  their  object — e.  g.  a 
joint  adventure  in  blockade  running — are  accordingly  valid  and  en- 
forceable in  the  courts  of  the  neutral  state  (r) . 

*There  were  decisions  on  this  topic  of  aiding  or  trading  with  [323 
enemies  in  the  American  Supreme  Court  in  cases  arising  out  of  the 
Civil  War  (s).89 

Exceptional  treatment  of  foreign  revenue  laws.  It  is  admtted  as  a 
thing  required  by  the  comity  of  nations  that  an  agreement  to  con- 

(q)    McBlair  v.   Gibbes   (1854)    17  (s)    See  Texas  v.  White  (1868)    7 

Howard,  232.  Wallace,    700     (where,    however,    the 

(r)  Ex  parte  Chavasse  (1865)  4  D.  chief     points    are     of    constitutional 

J.    &    S.    655,    see    Lord    Westbury's  law);   Hanauer  v.  Doane    (1870)    12 

judgment:    The  Helen    (1875)    L.  R.  ib.   342.     Sprott  v.   U.  S.    (1874)    20 

1  Ad.  &  Ecc.  1,  34  L.  J.  Ad.  2,  and  Wall.    459    [and    see   also,    Walker's 

American     authorities     there    cited;  Exrs.    v.   United    States,    106    U.    S. 

Kent,  Comm.  3,  267.     [1  ib.  142  and  413]    goes    beyond   anything    in   our 

n.  l.j  books,    and   the    dissent   of    Field   J. 

seems  well  founded. 

89  Contracts  made  during  the  late  Civil  War,  in  one  of  the  Confederate 
States,  payable  in  Confederate  money,  if  not  made  for  the  purpose  of 
giving  it  currency,  or  otherwise  aiding  the  rebellion,  are  not,  because  thus 
payable,  invalid.  Thorington  v.  Smith,  8  Wall.  1;  The  Confederate  Note  Case, 
19  Wall.  548,  556;  Railroad  Co.  v.  King,  91  U.  S.  3;  Effinger  v.  Kenney,  115 
U.  S.  566;  Baldy  v.  Hunter,  171  U.  S.  388;  Houston,  &c.  R.  Co.  v.  Texas,  177 
U.  S.  66,  95;  Whitfield  v.  Riddle,  52  Ala.  467 ;  Young  v.  Mitchell,  33  Ark.  222; 
Forchheimer  v.  Holly,  14  Fla.  239;  Rodes  v.  Patillo,  5  Bush,  271;  Rivers  v. 
Moss'  Assignee,  6  Bush,  600;  White  v.  White,  50  La.  Ann.  104;  Green  v. 
Sizer,  40  Miss.  530;  Rodgers  r.  Bass,  46  Tex.  505;  Naff  v.  Crawford,  1 
Heisk.  Ill;  Sherfy  v.  Argenbright,  1  Heisk.  128.  See  also  Massie  v.  Byrd, 
87  Ala.  672.     Contra,  Denney  v.  Johnson,  26  La.  Ann.  55. 

As  to  the  revisory  power  of  the  Supreme  Court  of  the  United  States  over  the 
decision  of  a  State  court  on  this  question,  see  Delmas  p.  Insurance  Co.,  14  Wall. 
661;  Dugger  v.  Bocock,  104  U.  S.  596;  supra,  p.  *311,  n.  77. 

But  bonds  issued  for  the  purpose  of  supporting  the  war  levied  by  the  Confed- 
erate States  do  not  constitute  a  lawful  consideration  for  a  promissory  noie, 
although  they  were  used  as  a  circulating  medium  in  the  common  and  ordinarv 
business  transactions  of  the  people.     Hanauer  v.  Woodruff,  15  Wall.  439. 

And  in  Branch  v.  Haas,  16  Fed.  Rep.  53,  it  was  decided  that  an  agreement 
long  after  the  war  to  buy  and  sell  such  bonds  was  void ;  sed  quaere. 


432  UNLAWFUL   AGREEMENTS. 

travene  the  laws  of  a  foreign  countr}-  would  in  general  be  unlawful.90 
But  it  is  said  that  revenue  laws  (in  practice  the  most  important  cases) 
are  excepted,  and  that  "no  country  ever  takes  notice  of  the  revenue 
laws  of  another"  (t). 

As  a  general  proposition,  however,  this  is  disapproved  by  most 
modern  writers  as  contrary  to  reason  and  justice  (u).    It  should  be 

(t)    Lord  Mansfield  in  Holmcm  v.  («)   E.g.  Kent,  Comm.  3,  263-266; 

Johnson   (1775)   1  Cowp.  341.  Dicey,  Conflict  of  Laws,  562. 

so  Graves  v.  Johnson,  156  Mass.  211  (again  before  the  court  in  179  Mass. 
53)  was  an  action  for  the  price  of  intoxicating  liquors,  which  were  sold  and 
delivered  in  Massachusetts  by  the  plaintiffs  to  the  defendant,  a  Maine  hotel- 
keeper,  with  a  view  to  their  being  resold  by  the  defendant  in  Maine,  against 
the  laws  of  that  State.     Holmes,  J.,  delivering  the  opinion  of  the  court,  said : 

"  The  question  is  to  be  decided  on  principles  which  we  presume  would 
prevail  generally  in  the  administration  of  the  common  law  in  this  coun- 
try. Not  only  should  it  be  decided  in  the  same  way  in  which  we  should 
expect  a  Maine  court  to  decide  upon  a  Maine  contract  presenting  a  simi- 
lar question,  but  it  should  be  decided  as  we  think  that  a  Maine  court 
ought  to  decide  this  very  case  if  the  action  were  brought  there.  It  is 
noticeable,  and  it  has  been  observed  by  Sir  F.  Pollock,  that  some  of  the 
English  cases  which  have  gone  farthest  in  asserting  the  right  to  disre- 
gard the  revenue  laws  of  a  country  other  than  that  where  the  contract 
is  made  and  is  to  be  performed,  have  had  reference  to  the  English  reve- 
nue laws.  Holman  t;.  Johnson,  1  Cowp.  341;  Pollock,  Con.  (5th  ed.), 
308.     See  also  M'Intyre  v.  Parks,  3  Met.  207. 

"  The  assertion  of  that  right,  however,  no  doubt  was  in  the  interest  of 
English  commerce  (Pelleeat  v.  Angell,  2  Cr.,  M.  &  P.  311,  313),  and 
has  not  escaped  criticism  (Story,  Conn.  Laws,  §§  257,  264,  note  3,  Kent 
Com.  265,  266,  and  Wharton,  Confl.  Laws,  §  484 ) ,  although  there  may 
be  a  question  how  far  the  actual  decisions  go  beyond  what  would  have 
been  held  in  the  case  of  an  English  contract  affecting  only  English  laws. 
.See  Hodgson  v.  Temple,  5  Taunt.  181 ;  Brown  r.  Duncan,  10  B.  &  C.  93,  98,  99; 
Harris  v.  Runnels,  12  How.  79,  83,  84. 

"  Of  course  it  would  be  possible  for  an  independent  State  to  enforce  all 
contracts  made  and  to  be  performed  within  its  territory,  without  regard 
to  how  much  they  might  contravene  the  policy  of  its  neighbors'  laws. 
But  in  fact  no  State  pursues  such  a  course  of  barbarous  isolation.  As 
a  general  proposition,  it  is  admitted  that  an  agreement  to  break  the 
laws  of  a  foreign  country  would  be  invalid.  Pollock,  Con.  (5th  ed. ), 
308.  The  courts  are  agreed  on  the  invalidity  of  a  sale  when  the  con- 
tract contemplates  a  design  on  the  part  of  the  purchaser  to  resell  con- 
trary to  the  laws  of  a  neighboring  State,  and  requires  an  act  on  the 
part  of  the  seller  in  furtherance  of  the  scheme.  Wavmell  v.  Reed,  5  T.  R. 
599;  Gaylord  r.  Soragen,  32  Vt.  110;  Fisher  r.  Lord,  63  N.  H.  514;  Hull 
r.  Ruggles,  56  N.  Y.  424,  429.  [See  also  Cambioso  v.  Maffitt,  2  Wash.  C.  C. 
98 ;  Kohn  v.  Renaisance.  5  La.  Ann.  25  ;  Ivey  v.  Lalland,  42  Miss.  444 ;  Roceo 
v.  Frapoli,  50  Neb.  665;  Rosenbaum  v.  United  States  Co.,  60  N.  J.  L.  294, 
64  N.  J.  L.  34,  65  N.  J.  L.  255 ;  Marshall  v.  Sherman,  148  N.  Y.  9,  25.] 

"  On  the  other  hand,  plainly,  it  would  not  be  enough  to  prevent  a. 
recovery  of  the  price  that  the  seller  had  reason  to  believe  that  the  buyer 
intended  to  resell  the  goods  in  violation  of  law;  he  must  have  known  the 
intention  in  fact.  Finch  v.  Mansfield,  97  Mass.  89,  92 ;  Adams  v.  Coulliard, 
102  Mass.  167,  173.  As  in  the  case  of  torts,  a  man  has  a  right  to  expect 
lawful  conduct  from  others.  In  order  to  charge  him  with  the  consequences 
of  the  act  of  an  intervening  wrongdoer,  you  must  show  that  he  actually  con- 
templated the  act.     Hayes  v.  Hyde  Park*  153  Mass.  514,  515,  516." 


FOREIGN    REVENUE    AND    STAMP    LAWS.  433 

noted  that  our  Courts,  so  far  as  they  have  acted  upon  it,  have  done 
so  to  the  prejudice  of  our  own  revenue  quite  as  much  as  to  that  of 
foreign  states.  Thus  a  complete  sale  of  goods  abroad  by  a  foreign 
vendor  is  valid,  and  the  price  may  be  recovered  in  an  English  Court, 
though  he  knew  of  the  buyer's  intention  to  smuggle  the  goods  into 
England.  "  The  subject  of  a  foreign  country  is  not  bound  to  pay 
allegiance  or  respect  to  the  revenue  laws  of  this"  (x).  But  it  is  ad- 
mitted that  an  agreement  to  be  performed  in  England  in  violation  of 
English  revenue  laws  would  be  void — as  if,  for  example,  the  goods 
were  to  be  smuggled  by  the  seller  and  so  delivered  in  England.  And 
a  subject,  domiciled  in  the  British  dominions  (though  not  in  Eng- 
land or  within  the  operation  of  English  revenue  laws)  cannot  recover 
in  an  English  Court  the  price  of  goods  sold  by  him  to  be  smuggled 
into  England  (y)  ;  and  even  a  foreign  vendor  cannot  recover  *if  [324 
he  has  himself  actively  contributed  to  the  breach  of  English  revenue 
laws,  as  by  packing  the  goods  in  a  manner  suitable  and  to  his  knowl- 
edge intended  for  the  purpose  of  smuggling  (z). 

The  cases  upholding  contracts  of  this  ldnd,  whether  as  against  our 
own  or  as  against  foreign  laws,  would  probably  not  be  now  extended 
beyond  the  points  specifically  decided  by  them,  and  perhaps  not  al- 
together upheld  (a).  There  is  one  modern  case  which  looks  at  first 
sight  like  an  authority  for  saying  that  our  Courts  pay  no  regard  to 
foreign  shipping  registration  laws :  but  it  really  goes  upon  a  different 
principle,  and,  besides,  the  law  of  the  United  States  was  not  properly 
brought  before  the  Court  (6). 

Foreign  stamp  laws.  As  to  instruments  which  cannot  be  used  in  their 
own  country  for  want  of  a  stamp,  it  is  now  settled  that  regard  will 
be  paid  by  the  Courts  of  other  States  to  the  law  which  regulates 
them,  and  the  only  question  is  as  to  the  real  effect  of  that  law.  If 
it  is  a  mere  rule  of  local  procedure,  requiring  the  stamp  to  make  the 
instrument  admissible  in  evidence,  a  foreign  Court,  not  being  bound 
by  such  rules  of  procedure,  will  not  reject  the  instrument  as  evi- 
dence :  it  is  otherwise  if  the  local  law  "  makes  a  stamp  necessary  to 

(x)    Holman  V.  Johnson    (1775)    1  (a)    It  must  be   remembered   that 

Cowp.  341;  Pellecat  V.  Angell  (1835)  the  general  law  as  to  sale  of  goods, 

2  C.  M.  &  R.  311-3,  41  R.  R.  723,  per  &c,   which  the  seller  knows  will   be 

Lord  Abinger  C.B.  used   for   an   unlawful   purpose,   was 

(y)    Olugas  V.  Penaluna    (1791)    4  not  fully  settled  at  the  date  of  these 

T.  R.  466,  2  R.  R.  442.     It  seems,  but  authorities.    [See  infra,  p.  *369,  note 

it  is  not  quite  certain,  from  this  case,  42.] 

that  mere  knowledge  of  the   buyer's  (6)   Sharp  v.  Taylor  (1849)   2  Ph. 

intention  would  disentitle  him.  801,  see  Lindley  on  Partnership,  115. 

(a)    Waymell  v.  Reed   (1794)   5  T. 
R.  599,  2  R.  R.  675. 
28 


434  UNLAWFUL   AGREEMENTS. 

the  validity  of  the  instrument,"    i.   e.  a  condition  precedent  to  its 
having  any  legal  effect  at  all  (c).91 

(b.)  Public  policy  as  touching  internal  government.  As  to  matters  touch- 
ing good  government  and  the  administration  of  justice. 

Corrupt  or  improper  influence  on  public  officers  or  legislature.  It  is  need- 
less to  produce  authorities  to  show  that  an  agreement  whose  object 
is  to  induce  any  officer  of  the  State,  whether  judicial  or  executive, 
325]  to  act  partially  or  *corruptly  in  his  office,  must  in  any  civilized 
country  be  void.  But  an  agreement  which  has  an  apparent  tendency 
that  way,  though  an  intention  to  use  unlawful  means  be  not  ad- 
mitted, or  even  be  nominally  disclaimed,  will  equally  be  held  void.82 
The  case  of  Egerton  v.  Earl  Brownlow,  of  which  an  account  has  been 
given  a  few  pages  above,  was  decided  on  the  principle  that  all  transac- 
tions are  void  which  create  contingent  interests  of  a  nature  to  put  the 
pressure  of  extraneous  and  improper  motives  upon  the  counsels  of 
the  Crown  or  the  political  conduct  of  legislators. 

Marshall  v.  Baltimore,  &c,  Co.  A  decision  in  the  American  Supreme 
Court  which  happens  to  be  of  nearly  the  same  date  shows  that  an 
agreement  is  void  which  contemplates  the  use  of  underhand  means  to 
influence  legislation.  In  Marshall  v.  Baltimore  and.  Ohio  Railroad 
Co.  (d)  the  nature  of  the  agreement  sued  on  appeared  by  a  letter 
from  the  plaintiff  to  the  president  of  the  railway  board,  in  which 
he  proposed  a  plan  for  obtaining  a  right  of  way  through  Virginia 
for  the  company  and  offered  himself  as  agent  for  the  purpose.  The 
letter  pointed    (though  not  in  express  terms)   to  the  use   of  secret 

(c)    See   Dicey,    Conflict   of  Laws,  (d)    (1853)   16  Howard,  314. 

716,     717;     Bristow    v.     Secqueville 
(1850)  5  Ex.  275,  19  L.  J.  Ex.  289. 

91  See  Fant  v.  Miller,  17  Gratt.  47. 

92McMullen  v.  Hoffman,  174  U.  S.  639,  647;  Brown  v.  First  Bank,  137 
Ind.  655,  668;  Lucas  v.  Allen,  80  Ky.  681;  Womaek  c.  Loran,  Ct.  App.  Ky. 
8  C.  L.  J.  332;  O'Hara  v.  Carpenter,  23  Mich.  410;  Caton  v.  Stewart,  76 
N.  C.  357;   Weber  v.  Shay,  56  Ohio  St.  116;  Spalding  r.  Ewing,  149  Pa.  375. 

An  agreement  to  pay  for  services  in  soliciting  and  procuring  the  discharge 
of  one  drafted  into  the  army  (Bowman  v.  Coffroth,  59  Pa.  St.  19.  Cp.  O'Hara 
r.  Carpenter,  23  Mich.  410),  or  a  pardon  for  a  convict  is  unlawful  and  void. 
State  v.  Johnson,  52  Ind.  197,  205;  Deering  v.  Cunningham,  63  Kan.  174; 
Wildey  v.  Collier,  7  Md.  273;  Kribben  v.  Haycraft,  26  Mo.  396;  Hatzfield 
r.  Gulden,  7  Watts,  152.  See  also  Haines  v.  Lewis,  54  la.  301,  stated  infra,, 
p.  *329,  n.  1.  Contra,  Formby  V.  Pryor,  15  Ga.  258;  Bird  v.  Breedlove. 
24  Ga.  623;  Thompson  v.  Wharton.  7  Bush.  503;  Moyer  v.  Cantieny,  41 
Minn.  242;  Chadwick  v.  Knox,  31  N.  H.  226.  The  ease  of  Thompson  v. 
Wharton  was,  however,  put  on  the  ground  that  the  conviction  was  by  a  court- 
unauthorized  hv  law. 


AGREEMENTS  FOR  CORRUPT  INFLUENCE.  435 

influence  on  particular  members  of  the  legislature :  and  it  referred 
to  an  accompanying  document  which  explained  the  nature  of  the 
plan  in  more  detail.  This  document  contained  the  following  pas- 
sage : — "  I  contemplate  the  use  of  no  improper  means  or  appliances  in 
the  attainment  of  your  purpose.  My  scheme  is  to  surround  the  legis- 
lature with  respectable  agents,  whose  persuasive  arguments  may  in- 
fluence the  members  to  do  you  a  naked  justice.  This  is  all  I  require — 
secrecy  from  motives  of  policy  alone — because  an  open  agency  would 
furnish  ground  of  suspicion  and  unmerited  invective,  and  might 
weaken  the  impression  we  seek  to  make."  The  arrangement  was  to  be 
as  secret  as  practicable:  the  company  was  to  have  but  one  ostensible 
agent,  who  was  to  choose  such  *and  so  many  sub-agents  as  he  [326 
thought  proper:  and  the  payment  was  to  be  contingent  on  success. 
The  actual  contract  was  made  by  a  resolution  of  the  directors,  ac- 
cording to  which  agents  were  to  be  employed  to  "  superintend  and 
further"  the  contemplated  application  to  the  legislature  of  Virginia 
"and  to  take  all  proper  measures  for  that  purpose;"  and  their  right 
to  any  compensation  was  to  be  contingent  on  the  passing  of  the  law. 
The  Supreme  Court  held,  first,  that  it  was  sufficiently  clpar  that  the 
contract  was  in  fact  made  on  the  footing  of  the  previous  communica- 
tions, and  was  to  be  carried  out  in  the  manner  there  proposed;  and 
secondly,  that  being  so  made  it  was  against  public  policy  and  void. 

"  It  is  an  undoubted  principle  of  the  common  law  that  it  will  not  lend 
its  aid  to  enforce  a  contract  to  do  an  act  that  is  illegal,  or  which  is  incon- 
sistent with  sound  morals  or  public  policy;  or  which  tends  to  corrupt  or 
contaminate,  by  improper  influences,  the  integrity  of  our  social  or  political 
institutions.  .  .  .  Legislators  should  act  from  high  considerations  of 
public  duty.  Public  policy  and  sound  morality  do  therefore  imperatively 
require  that  courts  should  put  the  stamp  of  their  disapprobation  on  every 
act  and  pronounce  void  every  contract  the  ultimate  [qu.  immediate?]  or 
probable  tendency  of  which  would  be  to  sully  the  purity  or  mislead  the 
judgments  of  those  to  whom  the  high  trust  of  legislation  is  confided.'' 
[The  judgment  then  points  out  that  persons  interested  in  the  results  of 
pending  legislation  have  a  right  to  urge  their  claims  either  in  person  or 
by  agents,  but  in  the  latter  case  the  agency  must  be  open  and  acknowl- 
edged.] "Any  attempts  to  deceive  persons  intrusted  with  the  high  func- 
tions of  legislation  by  secret  combinations,  or  to  create  or  bring  into  operation 
undue  influences  of  any  kind,  have  all  the  effects  of  a  direct  fraud  on  the 
public"  (e). 

And  the  result  of  the  previous  authorities  was  stated  to  be — 

"  1st.  That  all  contracts  for  a  contingent  compensation  for  obtaining 
legislation,  or  to  use  personal  or  any  secret  or  sinister  influence  on  legisla- 
tors are  (f)  void  by  the  policy  of  the  law.93 

(e)      (1853)     16    Howard,    at    pp.  (f)  "  Is "  by  a  clerical  error  in  the 

334-5.  report. 

»3  On  the  other  hand,  as  stated  in  Trist  v.  Child,  21  Wall.  441,  "an 
agreement    express    or    implied    for    purely    professional    services    is    valid. 


436  UNLAWFUL   AGREEMENTS. 

"  2nd.  Secrecy  as  to  the  character  under  which  the  agent  or  solicitor 
acts  tends  to  deception  and  is  immoral  and  fraudulent,  and  where  the 
327]  ''agent  contracts  to  use  secret  influences,  or  voluntarily  without  contract 
with  his  principal  uses  such  means,  he  cannot  have  the  assistance  of  a 
court  to  recover  compensation. 

"  3rd.  That  what  in  the  technical  vocabulary  of  politicians  is  termed 
'log-rolling'  (g)  is  a  misdemeanor  at  common  law  punishable  by  indict- 
ment "  ( h ) . 

So  in  a  later  case  (i)  an  agreement  to  prosecute  a  claim  before 
Congress  by  means  of  personal  influence  and  solicitations  of  the  kind 
known  as  "  lobby  service  "  has  been  held  void.94 

(</)    Arrangements    between    mem-  (!)   Trisi  v.  Child  (1874)   21  Wall, 

bers  for  the  barter  of  votes  on  private  441.      See,    too,   Hequire   v.    Corwine 

bills.  (1879)   101  U.  S.  108. 

(h)    16  Howard,  336. 

Within  this  category  are  included,  drafting  the  petition  to  set  forth  the 
claim,  attending  to  the  taking  of  testimony,  collecting  facts,  preparing  argu- 
ments, and  submitting  them,  orally  or  in  writing,  to  a  committee  or  other 
proper  authority,  and  other  services  of  like  character.  All  these  things  are 
intended  to  reach  only  the  reason  of  those  sought  to  be  influenced.  They 
rest  on  the  same  principle  of  ethics  as  professional  services  rendered  in  a 
court  of  justice,  and  are  no  more  exceptional." 

Salinas  r.  Stillman,  66  Fed.  Rep.  677  (C.  C.  A.)  ;  Bergen  v.  Frisbie,  125  Cal. 
168;  Barry  1:  Capen,  151  Mass.  99;  Chesebrough  v.  Conover,  140  N.  Y.  382; 
Yates  1:  Robertson,  80  Va.  475;  Houlton  v.  Nichol,  93  Wis.  393.  See  also 
Davis  v.  Commonwealth,  164  Mass.  241. 

94  Providence  Tool  Co.  v.  Novris.  2  Wall.  45 ;  Oscanvan  v.  Arms  Co.,  103 
U.  S.  261  ;  Findlay  v.  Pertz,  66  Fed.  Rep.  427  (C.  C.  A".)  ;  Hayward  1:  Nord- 
berg  Mfg.  Co.,  85  Fed.  Rep.  4  (C.  C.  A.)  ;  Hunt  i\  Test,  8  Ala.  713;  Weed  v. 
Black,  2  McArthur  (D.  C),  268;  Doane  1.  Chicago  City  R.  R.  Co.,  160  111. 
22;  Bermudez  Co.  r.  Crichfield,  62  111.  App.  221;  174  111.  466;  Elkhart  County 
Lodge  v.  Crary,  98  Ind.  238;  Kansas,  &c.  Ry.  Co.  v.  McCoy,  8  Kan.  543;  Mc- 
Bratney  v.  Chandler,  22  Kan.  692;  Deering  v.  Cunningham,  63  Kan.  174; 
Wood  v.  McCann,  9  Dana,  366;  Wfldey  v.  Collier,  7  Md.  273;  Houlton  c. 
Dunn,  60  Minn.  26;  Richardson  v.  Scott's  Bluff  County,  59  Neb.  400;  Lyon 
v.  Mitchell,  36  N.  Y.  235;  Mills  v.  Mills,  40  N.  Y.  546;  Veazey  r.  Allen,  173 
N.  Y.  359;  Winpenny  v.  French,  18  Ohio  St.  469;  Sweeney  v.  McLeod,  15 
Oreg.  330;  Clippinger  v.  Hepbaugh,  5  W.  &  S.  315;  Spalding  v.  Ewing,  149 
Pa.  375;  Powers  1:  Skinner,  34  Yt.  274;  Bryan  r.  Reynolds,  5  Wis.  200; 
Chippewa  Valley  Co.  v.  Chicago,  &c.  Co.,  75  Wis.  224;  Houlton  v.  Nichol,  93 
Wis.  393,  accord.  See  also  Washington  Irrigation  Co.  v.  Krutz,  119  Fed.  Rep. 
279  (C.  C.  A.)  ;  Brown  v.  First  Nat.  Bank,  137  Ind.  655;  Thompson  r.  Whar- 
ton, 7  Bush,  563 ;  Buck  v.  First  Nat.  Bank,  27  Mich.  293 ;  McDonald  v.  Buck- 
staff,  56  Neb.  88;  28  Am.  L.  Rev.  211;  38  Cent.  L.  J.  123. 

Cp.  B.  S.  Green  Co.  v.  Blodgett,  159  111.  169;  Beal  1:  Polhemus,  67  Mich. 
130;  Southard  v.  Boyd,  51  N.  Y.  177. 

An  agreement  among  parties  petitioning  for  the  improvement  of  a  street,  by 
which  a  few  individuals,  desirous  of  causing  the  improvement  to  be  made,  pro- 
cure the  signatures  of  others  to  the  petition  by  promising  to  pay  a  considera- 
tion therefor,  is  contrary  to  public  policy.  Doane  r.  Chicago  Ry.  Co.,  160  111. 
22  (see  also  Farson  v.  Fogg,  205  111.  326);  Maguire  v.  Smock,  42  Ind.  1; 
Howard  v.  F.  I.  Church  of  Baltimore,  18  Md.  451.  Cp.  Makemson  v.  Kauffman, 
34  Ohio  St.  444.  455. 

An  agreement,  the  consideration  of  which  is  a  stipulated  opposition  to  public 
improvements,  is  illegal.  Corns  v.  Clouser,  137  Ind.  201;  Slocum  r.  Wooley, 
43  N.  J.  Eq.  451. 

An  agreement  of  neighbors  to  paj'  owners  of  a  building  a  sum  of  money 


AGREEMENTS  FOR  CORRUPT  INFLUENCE.  437 

'  Otherwise  of  contract  by  person  interested  to  withdraw  opposition.  But  as 
it  is  open  to  a  landowner  or  other  interested  person  to  defend  his 
interest  by  all  lawful  means  against  proposed  legislation  from  which 
he  apprehends  injury,  so  it  is  open  to  him  to  withdraw  or  compromise 
his  claims  on  any  terms  he  thinks  fit.  There  is  no  reason  against 
bargains  of  this  kind  any  more  than  against  a  compromise  of  dis- 
puted civil  rights  in  ordinary  litigation.  And  the  lawfulness  of  such 
an  agreement  is  not  altered  if  it  so  happens  that  the  party  is  himself 
a  member  of  the  legislature.  In  the  absence  of  anything  to  show 
the  contrary,  he  is  presumed  to  make  the  agreement  solely  in  his 
character  of  a  person  having  a  valuable  interest  of  his  own  in  the 
matter,  and  he  is  not  to  be  deprived  of  his  rights  in  that  character 
merely  because  he  is  also  a  legislator  (k).  "A  landowner  cannot  be 
restricted  of  his  rights  because  he  happens  to  be  a  member  of  Parlia- 
ment" (I).  This  may  seem  anomalous:  but  it  must  be  remembered 
that  in  practice  there  is  little  chance  of  a  conflict  between  duty  and 

(fc)      Simpson     v.     Lord     Howden  (I)    Kindersley    V.-C.    in    Earl    of 

(1839-42)  2  P.  &  D.  714,  10  A.  &  E.  Shrewsbury  v.  N.  Staffordshire  Ry. 
793,  9  CI.  &  F.  61,  50  R.  R.  555.  Co.    (1865)    L.  R.  1  Eq.  593,  613,  35 

L.  J.  Ch.  156. 

in  consideration  of  the  renting  of  the  building  by  the  owners  to  the  govern- 
ment at  a  nominal  rent  for  a  post-office  was  held  not  illegal  in  Fearnley  v. 
De  Mainville,  5  Col.  App.  441.  See  also  Beal  v.  Polhemus,  67  Mich.  130. 
Contra,  Woodman  v.  Innes,  47  Kan.  26. 

"A  promise  to  pay  money  to  one  through  whose  land  a  road  has  been  laid 
out,  for  withdrawing  his  opposition  to  opening  it,  is  a  valid  consideration  on 
which  an  action  may  be  sustained."  Weeks  r.  Lippencott,  42  Pa.  474. 
Contra,  Smith  v.  Applegate,  3  Zabr.  352.  And  see  Pingry  v.  Washburn,  1 
Aiken,  264. 

A  contract  by  which  the  directors  of  a  railroad  company  agree  not  to  es- 
tablish a,  station  or  freight  depot  within  a  certain  distance  of  a  point  on  its 
line  is  against  public  policy  and  unlawful.  Beasly  v.  Texas,  &c.  Ry.  Co.,  191 
U.  S.  492;  Railroad  Co.  v.  Tavlor,  6  Col.  1;  Railroad  Co.  v.  Mathers,  71  111. 
592;  104  111.  257;  Williamson  v.  Railroad  Co.,  53  la.  126;  Railroad  Co.  r. 
Byan,  11  Kan.  602.  And  so  also  is  an  agreement  in  consideration  of  money 
or  property  paid,  or  given,  to  a  shareholder  or  director,  to  procure  the  es- 
tablishment of  a  station  at  a,  particular  place.  Bestor  v.  Wathen,  60  III. 
138;   Fuller  v.  Dame,  18  Pick.  472.     Cp.  Railroad  Co.  v.  Seeley,  45  Mo.  212. 

But  a  promise  by  the  railway  company,  for  a  benefit  conferred  upon  it,  to 
build  its  line  to,  or  through,  a  particular  point  is  not  per  se  unlawful.  Davis 
v.  Williams,  121  Ala.  542;  First  Bank  v.  Hendrie,  49  la.  402;  Berryman  v. 
Trustees,  14  Bush,  755;  Griswold  v.  Minneapolis,  &c.  Ry.  Co.,  97  N.  W.  Rep. 
538  (N.  Dak.)  ;  Railroad  Co.  v.  Ralston,  41  Ohio  St.  573.  Cp.  Holladay  v. 
Patterson,  5  Oreg.  177. 

See  also  Woodstock  Iron  Co.  v.  Richmond  Extension  Co.,  129  U.  S.  643; 
New  Haven  v.  New  Haven  R.  Co.,  62  Conn.  252 ;  Florida  Central  Co.  r.  State, 
31  Fla.  482;  Doane  v.  Chicago  Ry.  Co.,  160  111.  22;  Gray  r.  Chicago  Ry.  Co., 
189  111.  400;  Lyman  v.  Suburban  R.  Co.,  190  111.  320;  Chicago  Ry.  Co.  v. 
Coburn,  91  Ind.  557;  Louisville  Ry.  Co.  v.  Sumner,  106  Ind.  55;  Heirs  of 
Burney  v.  Ludeling,  47  La.  Ann.  73,  96;  Lum  v.  McEwen,  56  Minn.  278; 
Montclair  Academy  v.  North  Jersey  Ry.  Co.,  65  N.  J.  L.  328;  Levy  r.  Tatum, 
43  S.  W.  Rep.  940   (Tex.  Civ.  App.)  ;  Horner  v.  Chicago  Ry.  Co.,  38  Wis.  165. 


438  UNLAWFUL    AGREEMENTS. 

interest,  as  the  legislature  generally  informs  itself  on  these  matters 
by  means  of  committees  proceeding  in  a  quasi-judicial  manner.  Of 
course  it  would  he  improper  for  a  member  personally  interested  to 
sit  on  such  a  committee. 

328]  *Sale  of  offices,  &c,  at  common  law.  On  similar  grounds  it  is  said 
that  the  sale  of  offices  (which  is  forbidden  by  statutes  extending  to  al- 
most every  case)  is  also  void  at  common  law  (m) .  However,  there  may 
be  a  lawful  partnership  in  the  emoluments  of  offices,  although  a  sale 
of  the  offices  themselves  or  a  complete  assignment  of  the  emoluments 
would  be  unlawful  (n).95  The  same  principles  are  applied  to  other 
appointments  which  though  not  exactly  public  offices  are  concerned 
with  matters  of  public  interest.  "  Public  policy  requires  that  there 
shall  be  no  money  consideration  for  the  appointment  to  an  office  in 
which  the  public  are  interested  :96  the  public  will  be  better  served  by 
having  persons  best  qualified  to  fill  offices  appointed  to  them;  but  ' 

(m)      Hanington     v.     Ru     Chastel  (n)    Sterry  v.   Clifton    (1850)    9  C. 

(1781)  2  Swanst.  159,  n.\  Hopkins  v.       B.  110,  19  L.  J.  C.  P.  237. 
Prescott  (1847)   4  C.  B.  578,  16  L.  J. 
C.  P.  259,  pel-  Coltman  J. 

95  Outen  v.  Rodes,  3  A.  K.  Marsh.  432 ;  Lewis  v.  Knox,  2  Bibb,  453 ;  Stroud 
!'.  Smith,  4  Houst.  448;  Robertson  v.  Robinson,  65  Ala.  610;  Groton  v.  Wald- 
borough,  11  Me.  306;  Eddy  r.  Capron,  4  R.  I.  394;  Meredith  v.  Ladd,  2  N.  H. 
517;  Carleton  (.  Whitcher,  5  N.  H.  196;  Filson's  Trustees  i:  Himes,  5  Pa.  452; 
Bowers  v.  Bowers,  26  Pa.  74;  Ferris  v.  Adams,  23  Vt.  136. 

88  An  agreement  by  which  a  candidate  for  office  receives  from  another  money 
to  aid  in  securing  his  election,  and  in  consideration  thereof  promises  to  share 
with  him  a  portion  of  the  emoluments  of  the  office,  is  against  public  policy  and 
void.    Martin  v.  Wade,  37  Cal.  168.     And  see  Gaston  c.  Drake,  14  Nev.  175. 

So  also  is  an  agreement  between  two  candidates  for  the  same  office,  that  one 
shall  withdraw  and  the  other,  if  successful  in  the  attempt  to  obtain  the  office, 
shall  divide  the  fees  with  him.  Gray  i:  Hook,  4  N.  Y.  449;  Hunter  v.  Nolf, 
71  Pa.  282. 

Where  a  candidate  for  public  office  pledged  himself,  if  elected,  to  perform  the 
duties  of  the  office  for  a  sum  less  than  half  the  fees  allowed  by  law,  whereby 
voters  were  induced  to  vote  for  him,  and  he  received  a  majority  of  the  votes 
cast,  his  election  was  declared  invalid  as  against  public  policy.  State  r.  Col- 
lier, 72  Mo.  13;  Carrothers  v.  Russell,  53  la.  346;  State  v.  Elting,  29  Kan. 
397,  399;  State  v.  Purdy,  36  Wis.  213.  See  also  Foley  v.  Speir,  100  N.  Y. 
£52. 

An  agreement  by  an  officer  whose  compensation  is  fixed  by  law  to  accept 
smaller  compensation  was  held  illegal  in  Brown  r.  First  Bank,  137  Ind.  655 ; 
Peters  v.  Davenport.  104  la.  625;  Willemin  v.  Bateson,  63  Mich.  309;  Galla- 
her  v.  Lincoln,  63  Neb.  339. 

A  note  executed  in  consideration  of  the  payee's  agreement  to  resign  a 
public  office  in  favor  of  the  maker  and  use  his  influence  to  secure  the  latter's 
appointment  as  his  successor  is  void.  Meacham  r.  Dow,  32  Vt.  721.  See  also 
Edwards  r.  Randle,  63  Ark.  318. 

A  promise  of  reward  for  using  influence  to  procure  the  promisor's  election 
or  appointment  to  public  office  is  void.  Conner  r.  Center,  15  Tnd.  App.  690; 
Faurie  v.  Morin's  Syndics,  4  Mart.  39 ;  Nichols  r.  Mudgett.  32  Vt.  546. 

In  Meguiro  v.  Corwine,  101  U.  S.  108,  a  contract  was  held  illegal  in  which 


SALE    OF   OFFICES.  439 

if  money  may  be  given  to  those  who  appoint,  it  may  be  a  temptation 
to  them  to  appoint  improper  persons."  Therefore  the  practice  which 
had  grown  up  in  the  last  century  of  purchasing  commands  of  ships 
in  .the  East  India  Company's  service  was  held  unlawful,  no  less  on 
this  ground  than  because  it  was  against  the  Company's  regulations  (o). 

In  like  manner  a  secret  agreement  to  hand  over  to  another  per- 
son the  profits  of  a  contract  made  for  the  public  service,  such  as  a 
Post  Office  contract  for  the  conveyance  of  mails,  is  void  (p).97 

Nevertheless  many  particular  offices,  and  notably  subordinate  offices 
in  the  courts  of  justice,  were  in  fact  saleable  and  the  subject  of  sale 
by  custom  or  otherwise  until  quite  modern  times.  But  the  commis- 
sion of  an  officer  in  the  army  could  not  be  the  subject  of  a  valid  pledge 
even  under  the  old  system  of  purchase  (q.) 

Assignments  of  salaries.  For  like  reasons  certain  assignments  of 
salaries  and  pensions  have  been  held  void,  as  tending  to  defeat  the 
public  objects  for  which  the  original  grant  was  intended.98     Thus 

(o)   Blackford    v.    Preston    (1799)  (g)   G oily er  v.  Fallon   (1823)   T.  & 

8  T.  R.  89,  93,  4  R.  R.  598.  R.  459. 

(p)  Osborne  v.  Williams  (1811)   18 
Ves.  379,  11  R.  R.  218. 

the  defendant's  testator  in  consideration  of  assistance-  rendered  by  the  plain- 
tiff in  securing  the  testator's  appointment  as  special  counsel  of  the  United 
States  in  certain  litigations  agree  to  divide  his  fees  with  the  plaintiff.  See 
also  Schloss  t>.  Hewlett,  81  Ala.  260;  Edwards  v.  Randle,  63  Ark.  318; 
Martin  v.  Wade;  37  Cal.  168;  Conner  v.  Canter,  15  Ind.  App.  690;  Glover  v. 
Taylor,  38  La.  Ann.  634;  Harris  v.  Chamberlain,  126  Mich.  280;  Dickson  v. 
Kittson,  75  Minn.  168;  Gray  r.  Hook,  4  N.  Y.  449;  Basket  v.  Moss,  115  N.  C. 
448;  Hunter  v.  Nolf,  71  Pa.  282;  Whitman  v.  Ewin,  39  S.  W.  Rep.  742 
(Tenn.  Oh.);  Willis  v.  Compress  Co..  66  S.  W.  Rep.  472  (Tex.  Civ.  App.); 
Meacham  v.  Dow,  32  Vt.  71. 

A  promise  by  a  shareholder  or  director  of  a  corporation  for  a  pecuniary 
consideration  to  procure  one  to  be  appointed  an  officer  of  the  corporation.  West 
17.  Camden,  135  U.  S.  507 ;  Noel  v.  Drake,  28  Kan.  265 ;  Guernsey  v.  Cook,  120 
Mass.  501;  Cone  v.  Russell,  48  N.  J.  Eq.  208.  Cp.  Greenwell  v.  Porter,  [1902] 
1  Ch.  530;  Flaherty  v.  Cary,  62  N.  Y.  App.  Div.  116,  affd.,  without  opinion,  172 
N.  Y.  646;  or  to  vote  for  a  particular  person  as  manager,  Woodruff  v.  Went- 
worth,  133  Mass.  309.  Cp.  Jones  v.  Williams,  139  Mo.  I;  or  a  promise  to 
pay  a  director  to  resign,  Forbes  v.  McDonald,  54  Cal.  98,  is  void.  But  see 
Barnes  v.  Brown,  80  N.  Y.  527. 

A  contract  with  a,  director  or  manager  of  a  corporation  to  induce  the  cor- 
poration to  take  a  certain  line  of  conduct  is  illegal.  Lum  V.  McEwen,  56  Minn. 
278 ;  Attawav  v.  Third  Bank,  93  Mo.  485. 

sr  See  Ashburner  v.  Parrish,  81  Pa.  52.     Cp.  Gordon  v.  Dalby,  30  la.  223. 

98  The  assignment  by  a  public  officer  of  a  portion  of  his  salary  not  yet  due 
is  void.  Shannon  v.  Bruner,  36  Fed.  Rep.  147;  Schloss  v.  Hewlett,  81  Ala. 
266;  King  v.  Hawkins,  16  Pac.  Rep.  434  (Ariz.)  ;  Bangs  r.  Dunn,  66  Cal.  72; 
Lewis  v.  Denver,  9  Col.  App.  328;  Holt  v.  Thurman,  111  Ky.  84;  State  v. 
Williamson,  118  Mo.  146;  Beal  v.  McVicker,  8  Mo.  App.  202;  Swenk  r. 
Wvkoff,  46  N.  J.  Eq.  560;  Bliss  v.  Lawrence,  58  N.  Y.  442;  Bowery  Bank  r. 
Wilson,  122  N.  Y.  478;  Billings  v,  O'Brien,  14  Abb.  Pr.  N.  S.  238;  National 
Bank  v.  Fink,  86  Tex.  303.     And  see  Field  v.  Chipley,  79  Ky.  260;  Sandwich 


440  UNLAWFUL   AGREEMENTS. 

329]  *military  pay  and  judicial  salaries  are  not  assignable.  The  rule 
is  that  "  a  pension  for  past  services  may  be  aliened,  but  a  pension  for 
supporting  the  grantee  in  the  performance  of  future  duties  is  in- 
alienable " :  and  therefore  a  pension  given  not  only  as  a  reward  for 
past  services,  but  for  the  support  of  a  dignity  created  at  the  same 
time  and  for  the  same  reason,  is  inalienable  (r).  But  an  assign- 
ment by  the  holder  of  a  public  office  of  a  sum  equivalent  to  a  propor- 
tionate part  of  salary,  and  secured  to  his  legal  personal  representa- 
tives on  his  death  by  the  terms  of  his  appointment,  is  not  invalid, 
such  a  sum  being  simply  a  part  of  his  personal  estate  like  money 
secured  by  life  insurance  (s).90  A  clergyman  having  cure  of  souls 
is  not,  as  such,  a  public  officer  for  the  purpose  of  this  rule  (t).  A 
mortgage  by  an  officer  of  the  Customs  of  his  disposable  share  in  the 
"  Customs  Annuity  and  Benevolent  Fund  "  created  by  a  special  Act 
has  been  unsuccessfully  disputed  as  contrary  to  the  policy  of  the 
Act  (u). 

"  Stifling  prosecutions  "  —  Williams  v.  Bayley.  Agreements  for  the  pur- 
pose of  "stifling  a  criminal  prosecution"  are  void  as  tending  to  ob- 
struct the  course  of  public  justice.1    An  agreement  made  in  considera- 

(r)  Davis  v.  Duke  of  Marlborough  (s)   Arbuthnot  v.  'Norton  (1846)   5 

(1818)   1  Swanst.  74,  79,  53  R.  R.  29,  Moo.  P.  C.  219. 

31.     Cp.  Arbuthnot  v.  Norton  (1846)  (t)  Re  Mirams  [1891]  1  Q.  B.  594, 

5  Moo.  P.  C.  219.     And  see  authori-  00  L.  J.  Q.  B.  397. 

tie9  collected  in  the  notes  to  Ryall  v.  (u)   Maclean's  trusts   (1874)   L.  R. 

Rowles  (1749)   in  2  Wh.  &  T.  L.  C.  19  Eq.  274. 

Mfg.   Co.  v.   Krake,   66  Minn.    110;   Spencer  v.  Morris,   67   N.   J.  L.   500,  54 
L.  R.  A.  566,  n.     Contra.  State  r.  Hastings,  15  Wis.  75. 

The  principle  has  been  applied  to  private  trusts;  hence  the  commissions 
of  an  executor  until  liquidated  in  the  manner  prescribed  by  law  are  not  as- 
signable.   Re  King's  Est.,  110  Mich.  203;  Re  Worthington,  141  N.  Y.  9. 

89  In  this  country  the  pensions  of  soldiers  and  sailors  cannot  be  assigned. 
U.  S.  Rev.  Stat.,  §  4745.  Nor  attached.  lb.,  §  4747.  But  this  exemption 
protects  the  money  only  until  transmitted  to  the  pensioner.  When  once  in 
his  hands  it  is  liable  to  seizure.  Mcintosh  v.  Aubrey,  185  U.  S.  122;  Johnson 
v.  Elkins,  90  Kv.  163.     See  further,  31  Cent.  L.  J.  324. 

i  Lound  ; .  Grimwade,  39  Ch.  D.  605 ;  Windhill  Board  of  Health  v.  Vint,  45 
Ch.  D.  351;  Jones  v.  Merioneth  Building  Soc,  [1891]  2  Ch.  587,  [1892]  1  Ch. 
173;  United  States  Fidelity  Co.  v.  Charles,  131  Ala.  658;  Kirkland  r.  Ben- 
jamin, 07  Ark.  480;  McMahon  v.  Smith,  47  Conn.  221:  Chandler  r.  Johnson, 
39  Ga.  85;  Goodwin  i:  dwell,  56  Ga.  566;  Jones  e.  Dannenberg  Co.,  112  Ga. 
420;  Henderson  r.  Palmer,  71  111.  579;  Reed  v.  McKee,  42  la.  689;  Smith  v. 
Steely,  80  la.  738;  Friend  v.  Miller,  52  Ivan.  139;  Kimbrough  r.  Lane,  11 
Bush,  556;  Shaw  v.  Reed,  30  Me.  105;  Taylor  r.  Jaques.  106  Mass.  291;  Gor- 
ham  v.  Kpvcs,  S.  C.  Mass.;  Snider  v.  Willey,  33  Mich.  483;  Sumner  r.  Sum- 
ner, 54  Mo.  340;  Baker  i;.  Farris,  61  Mo.  389;  Shaw  v.  Spooner.  9  N.  H.  197; 
Havnes  P.  Rudd,  102  N.  Y.  372 ;  Buffalo  Press  Club  i>.  Greene.  26  N.  Y.  Supp. 
525;  33  N.  Y.  Supp.  286;  Lindsav  v.  Smith,  78  N.  C.  328;  Insurance  Co.  r. 
Hull,  51  Ohio  St.  270;  Riddle  v.  Hall,  99  Pa.  115;  Roll  r.  Raguet.  4  Ohio,  400; 
Raguet  r.  Roll,  7  Ohio   (pt.  1),  76;  Wright  v.  Rindskopf,  43  Wis.  344.     See 


COMPOUNDING  OFFEXCKS.  441 

tion  ostensibly  of  the  giving  up  of  certain  promissory  notes,  the 
notes  in  fact  having  forged  indorsements  upon  them,  and  the  real 
consideration  appearing  by  the  circumstances  to  be  the  forbearance 
of  the  other  party  to  prosecute,  was  held  void  on  this  ground  in  the 
House  of  Lords.  The  principle  of  the  law  as  there  laid  clown  by  Lord 
Westbury  is  "  That  you  shall  not  make  a  trade  of  a  felony  "  (a;) . 

(x)    Williams  v.  Bayley   (1866)    L.  R.  1  H.  L.  200,  220,  35  L.  J.  Ch.  717. 

also  Weber  v.  Shay,  56  Ohio  St.  116;  City  National  Bank  v.  Kusworm,  88 
Wis.  188;  Mack  v.  Prang,  104  Wis.  1,  26  L.  R.  A.  48. 

Cp.  Allen  v.  Dunham,  92  Tenn.  257,  269;  Loud  v.  Hamilton,  45  L.  R.  A.  400 
(Tenn.). 

If  a  prosecution  is  pending  when  the  agreement  was  made  it  is  immaterial 
that  no  crime  had  ill  fact  been  committed,  Manning  v.  Columbian  Lodge,  57 
X.  J.  Eq.  338,  340;  Koons  v.  Vauconsant,  129  Mich.  260;  but  if  no  prosecution 
had  been  begun  the  weight  of  authority  is  that  the  agreement  is  not  illegal. 
Plant  v.  Gunn,  2  Woods,  372;  Manning  v.  Columbian  Lodge,  57  N.  J.  Eq.  338; 
Steuben  Co.  Bank  v.  Mathewson,  5  Hill,  249;  Catlin  v.  Henton,  9  Wis.  476. 
But  see  contra,  Koons  c.  Vauconsant,  129  Mich.  260. 

A  promise  to  pay  one  for  using  his  influence  to  have  criminal  proceedings 
dismissed  is  void.  Rhodes  v.  Neal,  64  Ga.  704 ;  Rieketts  v.  Harvey,  78  Ind. 
152;  Averbeck  r.  Hall,  14  Bush,  505;  Ormerod  v.  Dearman,  100  Pa.  561; 
Barron  r.  Tucker,  53  Vt.  338.  So  is  an  agreement  to  indemnify  another  for 
becoming  bail  for  one  arrested  for  a  crime  so  as  to  enable  the  latter  to  flee 
from  justice;  Dunkin  c.  Hodge,  46  Ala.  523;  Baehr  v.  Wolff,  59  111.  470.  Or 
an  agreement  by  a  fugitive  from  justice  about  to  be  surrendered  for  extra- 
dition, to  pay  money  in  consideration  of  forbearance  to  prosecute  the  proceed- 
ings against  him.  Dixon  v.  Olmstead,  9  Vt.  310;  Pay  v.  Oatley,  6  Wis.  42. 
Or  a  promise  to  pay  money  in  consideration  of  not  searching  the  house  of  a 
thief  for  stolen  goods  until  the  next  day.  Merrill  v.  Carr,  60  N.  H.  114.  Or  in 
consideration  of  a  promise  to  sign  a  petition  to  the  judge  for  clemency  in  the 
sentence  of  a  prisoner.     Buck  v.  Bank,  27  Mich.  293. 

"A  contract  conditioned  for  the  execution  and  deposit  of  certain  promissory 
notes  by  one  under  sentence  for  the  commission  of  a  crime,  to  be  delivered  to 
the  prosecuting  witness  upon  certain  conditions,  one  of  which  was  that  the 
maker  should  receive  a,  pardon,  or  be  acquitted  on  a  new  trial,  is  illegal  and 
void,  as  against  public  policy."  Haines  v.  Lewis,  54  la.  301.  And  see  Commrs. 
of  Guilford  Co.  v.  March,  89  N.  C.  268. 

A  promise  to  pay  one  wanted  as  a  witness  in  a  criminal  proceeding  for  keep- 
ing out  of  the  jurisdiction  of  the  court,  so  as  to  evade  service  of  process  upon 
him,  is  void.  Bierbauer  v.  Wirth,  10  Biss.  60;  Valentine  t.  Stewart,  15  Cal. 
387.  So  is  a  promise  to  pay  an  attorney  for  procuring  the  release  from  jail 
of  a  witness  against  the  promisor  in  order  thaj;  he  might  be  removed  and  his 
testimony  not  obtained.     Crisup  v.  Grosslight,  79  Mich.  380. 

But  "  in  all  offenses  which  involve  damages  to  an  injured  party  for  which 
he  may  maintain  an  action,  it  is  competent  for  him,  notwithstanding  they  are 
also  of  a  public  nature,  to  compromise  or  settle  his  private  damage  in  any 
way  he  may  think  fit."  Keir  v.  Leeman,  9  Q.  B.  371,  375:  Flower  r.  Sadler, 
10  Q.  B.  D.  572;  McClatchie  v.  Haslam,  65  L.  T.  691;  Paige  r.  Hieronymus, 
192  111.  546;  Powell  v.  Flanary,  109  Ky.  342;  Thorn  v.  Pinkham,  84  Me.  101; 
Beath  v.  Chapoton,  115  Mich.  506;  Cass  County  Bank  v.  Brickner,  34  Neb.  516; 
Barrett  r.  Weber,  125  N.  Y.  18;  Portner  v.  Kirschner,  169  Pa.  472. 

And  an  agreement  on  the  part  of  a  prosecuting  officer  in  consideration  of 
testimony  by  one  jointly  charged  with  a  crime  to  recommend  a  nol.  pros,  to  the 
court  is  not  illegal.  Nickelson  v.  Wilson,  60  N.  Y.  362;  Rogers  v.  Hill  22 
R.  I.  496. 


442  UNLAWFUL    AGREEMENTS. 

Keir  v.  Leeman.  However  the  principal  direct  authority  must  still 
330]  be  *sought  in  the  earlier  case  of  Keir  v.  Leeman  (y).  The 
Court  of  Queen's  Bench  there  said: — 

"  The  principle  of  law  is  laid  down  by  Wilmot  C.J.  in  Collins  v.  Blan- 
tem  (z)  that  a  contract  to  withdraw  a  prosecution  for  perjury  and  consent  to 
give  no  evidence  against  the  accused  is  founded  on  an  unlawful  consideration 
and  void.  On  the  soundness  of  this  decision  no  doubt  can  be  entertained, 
whether  the  party  accused  were  innocent  or  guilty  of  the  crime  charged.  If 
innocent,  the  law  was  abused  for  the  purpose  of  extortion ;  if  guilty,  the  law 
was  eluded  by  a  corrupt  compromise  screening  the  criminal  for  a  bribe.  [The 
eases  are  then  reviewed.]  We  shall  probably  be  safe  in  laying  it  down  that 
the  law  will  permit  a  compromise  of  all  offences,  though  made  the  subject  of 
criminal  prosecution,  for  which  offences  the  injured  party  might  sue  and 
recover  damages  in  an  action.  It  is  often  the  only  manner  in  which  he  can 
obtain  redress.  But  if  the  offence  is  of  a.  public  nature  no  agreement  can  be 
valid  that  is  founded  on  the  consideration  of  stifling  a  prosecution  for  it"  (a). 

Accordingly  the  Court  held  that  an  indictment  for  offences  includ- 
ing riot  and  obstruction  of  a  public  officer  in  the  execution  of  his 
duty  cannot  be  legally  the  subject  of  a  compromise.  The  judgment 
of  the  Exchequer  Chamber  (&)  affirmed  this,  but  showed  some  dis- 
satisfaction even  with  the  limited  right  of  compromise  admitted  in 
the  Court  below.  The  Court  of  Appeal  has  since  held  that  the  com- 
promise of  any  public  misdemeanor,  from  whatever  motive,  is  il- 
legal (c),  though  where  there  is  a  choice  of  a  civil  or  criminal  remedy 
a  compromise  of  criminal  as  well  as  civil  proceedings  may  be 
lawful  (d).2 

There  need  not  be  an  express  agreement  not  to  prosecute.  An 
understanding  to  that  effect,  shown  by  the  circumstances  to  be  part 
331  ]  of  the  transaction,  will  be  enough.  *And,  since  the  defence  of 
illegality  in  cases  of  this  kind  is  allowed  on  public  grounds,  it  must 

(y)    (1844)    6  Q.  B.  308,   13  L.  J.  the  supposed  offence  being  an  act  not 

Q.  B.  259,  in  Ex.  Ch.  9  Q.  B.  371,  15  criminally  punishable?     See  per  Fry 

L.  J.  Q.  B.  360.  J.  8  Ch.  D.  at  p.  477.    It  is  submitted 

(z)   1  Sm.  L.  C.  369,  382  (355,  365,  that  the  agreement  would  be  void  for 

10th  ed. ).  want  of  consideration. 

(o)  Aec.  in  Chibb  v.  Hutson  (1865)  (6)   9  Q.  B.  at  p.  392. 

18  C.  B.  N.  S.  414,  held  that  forbear-  (c)    Windhill  Local  Board  v.  Vint 

ance  to  prosecute  a  charge  of  obtain-  (1890)   45  Ch.  Div.  351,  59  L.  J.  Ch. 

ing  money  bv   false   pretences   is   an  608. 

illegal  consideration.     What  if  there  (d)  Fisher  &  Co.  v.  Apollinaris  Co. 

is  no  real  ground  for  a  prosecution,  (1875)   10  Ch.  297,  44  L.  J.  Ch.  500. 

2  Price  v.  Summers,  2  South.  578;  Geier  r.  Shade,  109  Fa.  180;  Fay  v. 
Oatley,  6  Wis.  42,  59  (obiter).  But  see  contra,  Jones  v.  Bice.  18  Pick. 
440;  Partridge  v.  Hood,  120  Mass.  403;  Lindsay  r.  Smith,  78  N.  C.  328; 
Gray  v.  Seigler,  2  Strobh.  117;  Corley  r.  Williams.  1  Bailey,  588;  Vincent 
v.  Groom,  1  Yerg.  430 :  Bowen  v.  Buck',  28  Vt.  308.  See  also  State  r.  Carver, 
69  N.  H.  216;  Pearce  r.  Wilson,  111  Pa.  14;  Brown  v.  McCreight,  187  Pa.  181. 


COMPOUNDING   OFFENCES.  443 

be  allowed  even  if  the  Court  thinks  it  discreditable  to  the  party  set- 
ting it  up  (e). 

It  is  not  compounding  felony  for  a  person  whose  name  has  been 
forged  to  a  bill  to  adopt  the  forged  signature3  and  advance  money  to 
the  forger  to  enable  him  to  take  up  the  bill.  It  is  doubtful  whether 
a  security  given  by  the  forger  for  such  advance  is  valid:  but  he  can- 
not himself  actively  dispute  it  (on  the  principle  potior  est  conditio 
defendentis,  of  which  afterwards)  nor  can  his  trustee  in  bankruptcy, 
who  for  this  purpose  is  in  no  better  position  than  himself,  as  there 
is  in  any  case  no  offence  against  the  bankrupt  laws  (/).4 

An  agreement  by  an  accused  person  with  his  bail  to  indemnify  him 
against  liability  on  his  recognizances  is  illegal,  as  depriving  the  public 
of  the  security  of  the  bail  (g)  :5  and  so  is  the  like  agreement  of  a 
third  person  (ft).6 

18  Eliz.  c.  5.  The  compounding  of  offences  under  penal  statutes  is 
expressly  forbidden  by  18  Eliz.  c.  5,  s.  5. 

Compromise  of  election  petition.  An  election  petition,  though  not  a 
criminal  proceeding,  is  a  proceeding  of  a  public  character  and  in- 

(e)  Jones  v.  Merionethshire  Build-  (1884)  14  Q.  B.  D.  32;  Ex  parte 
ing  Society  [1892]  1  Ch.  173,  61  L.  J.  Caldecott  (1876)  4  Ch.  Div.  150,  46 
Ch.  138,  C.  A.  L.  J.  Bk.  14. 

(f)  Otherwise  where,  after  an  act  (g)  Herman  v.  Jeuchner  (1885)   15 
of  bankruptcy,  the  bankrupt's  money  Q.  B.  Div.  561,  54  L.  J.  Q.  B.  340. 
has  been  paid  for  stifling  a  prosecu-  (h)    Consolidated  Exploration  and 
tion :  there  the  trustee  can  recover  it:  Finance  Co.  v.  Musgrave  [1900]  1  Ch. 
Ex  parte  Wolverhampton  Banking  Co.  37,  69  L.  J.  Ch.  11. 

3  That  one  may  adopt  and  ratify  his  forged  signature,  see  Bank  r.  Mott,  33 
Conn.  95 ;  Livings  v.  Wiler,  32  111.  387 ;  Hefner  v.  Vandolah,  62  111.  483 ;  Fay 
v.  Slaughter,  194  111.  157,  167;  Bank  v.  Keene,  53-  Me.  103;  Bank  v.  Crafts, 
4  Allen,  477;  Wellington  v.  Jackson,  121  Mass.  157;  Fitzpatrick  v.  School 
Commrs.,  7  Humph.  224.  See  also  Campbell  r.  Campbell,  133  Cal.  33; 
Ofenstein  r.  Bryan,  20  App.  D.  C.  1;  Smith  v.  Tramel,  68  la.  488;  Myer  v. 
Wegener,  114  la.  74;  Carthage  Bank  v.  Butterbaugh,  116  la.  657;  Forsythe 
v.  Bonta,  5.  Bush,  547.  Contra,  that  public  policy  forbids  sanctioning  a 
ratification  of  a  forged  signature.  Brook  v.  Hook,  L.  R.  6  Ex.  89 ;  Barry  v. 
Kirkland,  52  Pac.  Bep.  771  (Ariz.);  Henry  v.  Heeb,  114  Ind.  275  (but  see 
Neal  r.  First  Bank,  26  Ind.  App.  503 )  ;  Workman  v.  Wright,  33  Ohio  St.  405 ; 
McHugh  v.  County  of  Schuylkill,  67  Pa.  391 ;  Shisler  v.  Vandike,  92  Pa.  447 ; 
Henry,  etc.,  A3sn.  v.  Walton,  181  Pa.  201;  Marks  v.  Schram,  109  Wis.  452. 
See  also  Crawford,  Neg.  Inst.  Act,  §  42.     See  also  infra,  p.  856,  n.  18. 

*  See  on  the  other  hand,  Laing  v.  McCall,  50  Vt.  657,  which,  it  is  submitted, 
was  wrongly  decided.     Cp.  Ward  v.  Allen,  2  Met.  53. 

s  United  States  v.  Simmons,  47  Fed.  Rep.  577.  See  also  United  States  r. 
Ryder,  110  U.  S.  729.  But  see  contra,  Simpson  r.  Roberts,  35  Ga.  180; 
Maloney  v.  Nelson,  144  N.  Y.  182,  12  N.  Y.  App.  Div.  545,  158  N.  Y.  351 ; 
Reynolds  v.  Harrell,  2  Strob.  87. 

In  Bing  v.  Willey,  146  Pa.  381,  an  agreement  to  pay  a  bondsman  for  be- 
coming suretv  on  a  bond  given  to  obtain  a  liquor  license  was  held  valid. 

6  Contra,  Maloney  v.  Nelson,  12  N.  Y.  App.  Div.  545,  158  N.  Y.  351. 


444  UNLAWFUL   AGREEMENTS. 

terest  which  may  have  penal  consequences;  and  an  agreement  for 
pecuniary  consideration  not  to  proceed  with  an  election  petition  is 
void  at  common  law,  as  its  effect  would  be  to  deprive  the  public  of 
the  benefit  which  would  result  from  the  investigation  (?'). 

In  like  manner  an  agreement  for  the  collusive  conduct  of  a  divorce 
332]  suit  is  void  (fc),7  and  agreements  not  to  expose  *immoral  con- 

(?)   Coppock  v.  Bower  (1838)   4  M.  (fc)   Hope  v.  Hope  (1857)   8  D.  M. 

6  W.  361,  51  R.  R.  627.  G.  731.  26  L.  J.  Ch.  417. 

TViser  v.  Bertrand,  14  Ark.  267;  Beard  i:  Beard,  65  Cal.  354;  Loveren 
o.  Loveren,  106  Cal.  509;  Smutzer  v.  Stimson,  9  Col.  App.  326;  Goodwin 
r.  Goodwin,  4  Day,  343;  Stilson  v.  Stilson,  46  Conn.  15;  Birch  v.  Anthony, 
109  Ga.  349;  Everhart  i:  Puekett,  73  Ind.  409;  Stokes  v.  Anderson, 
118  Ind.  533;  Poison  v.  Stewart,  167  Mass.  211;  Belden  v.  Munger,  5  Minn. 
211;  Adams  r.  Adams,  25  Minn.  72;  Sayles  v.  Sayles,  21  N.  H.  312;  Cross  v. 
Cross,  58  N.  H.  373;  Phillips  v.  Thorp,  10  Oreg.  494;  Stoutenburgh  v.  Ly- 
brand,  13  Ohio  St.  228;  Kilborn  r.  Field,  78  Pa.  194;  Irvin  r.  Irvin,  169  Pa. 
529;  James  v.  Steere,  16  R.  I.  367;  Palmer  r.  Palmer,  72  Pac.  Rep.  (Utah)  3; 
Baum  r.  Baum,  109  Wis.  47.  Compare  Greenhood,  484  et  seq.;  Gibbons  r. 
Gibbons,  54  S.  W.  Rep.  (Ivy.)  710;  Parsons  v.  Parsons,  62  S.  W.  Rep.  (Ky.) 
719.  Where  a  divorce  has  been  fraudulently  obtained,  a  subsequent  agree- 
ment between  the  parties  that  it  shall  not  be  disturbed  is  against  public  policy 
and  void.  Comstock  i\  Adams,  23  Kan.  513.  See  also  Evans  r.  Evans,  93  Ky. 
510;  Blank  v.  Nohl,  112  Mo.  1.59.  So  also  is  an  agreement  between  the  over- 
seers of  the  poor  and  a  husband  whose  wife  is  supported  as  a  town  charge  that 
(hey  will  refrain  from  making  opposition  to  a  libel  for  divorce  filed  by  the 
husband  against  the  wife.  Weeks  i\  Hill,  38  N.  H.  199.  But  a  promise  made 
in  consideration  of  a  wife's  dismissing  a  suit  for  divorce  begun  by  her  is 
lawful.  McClure  v.  McClure,  100  Cal.  339;  Barbour  v.  Barbour,  49  N.  J.  Eq. 
429;  Phillips  v.  Meyers,  82  111.  67;  Adams  v.  Adams,  91  N.  Y.  381;  cp.  Fisher 
r.  Koontz,  110  la.  498;  Merrill  p.  Peaslee,  146  Mass.  460;  Copeland  v.  Boaz, 
9  Baxt.  223;  Oppenheimer  v.  Collins,  115  Wis.  283\  See  also  60  L.  R.  A.  n. 
'An  action  may  be  maintained  by  a  woman  upon  a  promissory  note  given  to 
her  by  her  former  husband,  after  she  has  obtained  a  divorce  from  him,  in  pur- 
suance of  a  written  agreement  made  before  the  divorce,  and  conditioned  upor. 
the  divorce  being  decreed,  and  which  was  called  to  the  attention  of  the  court 
granting  the  divorce,  by  the  terms  of  which  agreement,  which  were  carried  out 
by  each  party,  she  was  to  convey  her  land  to  him,  and  give  a  release  of  all  her 
rights  of  dower  and  homestead,  and  he  was  to  give  her  a  sum  of  money  and 
the  note  in  suit,  which  were  to  be  accepted  instead  of  alimony."  Chapin  r. 
Chapin,  135  Mass.  393.  But  as  to  analogous  agreements  made  before  divorce 
obtained,  and  not  called  to  the  attention  of  the  court,  see  Speck  v.  Dausman, 

7  Mo.  App.  165;  Hamilton  r.  Hamilton.  89  111.  349. 

An  agreement  by  a  woman  with  her  counsel  in  a  suit  for  divorce  to  allow 
them  for  compensation  for  their  services  in  the  suit  a  portion  of  the  alimony 
which  might  be  awarded  is  void.  Newman  v.  Freitas,  129  Cal.  283 ;  Lynde  v. 
Lynde,  64  N.  J.  Eq.  736;  Jordan  v.  Westerman,  62  Mich.  170. 

An  agreement  by  a  wife  to  support  her  husband,  in  consideration  of  a  con- 
veyance by  him  to  her,  is  void.  Corcoran  v.  Corcoran,  119  Ind.  138.  As  is  an 
agreement  to  pav  a  wife  for  performing  duties  as  a,  wife.  Miller  v.  Miller,  78 
la.  177;  Randall  v.  Randall,  37  Mich.  564;  Michigan  Trust  Co.  v.  Chapin,  106 
Mich.  384. 

A  contract  to  marry  a  woman  when  the  promisor's  present  wife  is  divorced 
is  void.  Leupert  i.  Shields,  14  Col.  App.  404.  Or  when  his  present  wife  is 
dead.  Xoice  !'.  Brown,  38  N.  J.  L.  228.  See  also  Paddock  v.  Robinson,  63  111. 
99.    Cp.  Brown  v.  Odill,  104  Tenn.  250. 


AGREEMENTS    TO    ARBITRATE.  445 

duct  (I),8  and  to  conduct  criminal  proceedings  against  a  third  per- 
son in  such  a  way  that  the  name  of  a  party  who  was  in  fact  involved 
in  the  transaction  should  not  be  mentioned  (m)  have  been  held  void 
as  against  public  policy.9 

Secret  agreement  as  to  conduct  of  winding-up.  A  shareholder  in  a  com- 
pany which  was  in  course  of  compulsory  winding-up  agreed  with  other 
shareholders,  who  were  also  creditors,  in  consideration  of  being  in- 
demnified by  them  against  all  future  calls  on  his  shares,  that  he  would 
help  them  to  get  an  expected  call  postponed  and  also  support  their 
claim ;  it  was  held  that  "  such  an  agreement  amounts  to  an  interfer- 
ence with  the  course  of  public  justice  " :  for  the  clear  intention  of  the 
Winding-up  Acts  is  that  the  proceedings  should  be  taken  with  reason- 
able speed  so  that  the  company's  affairs  may  be  settled  and  the  share- 
holders relieved;  and  therefore  any  secret  agreement  to  delay  pro- 
ceedings to  the  prejudice  of  the  other  shareholders  and  creditors  is 
void  (n).  This  comes  near  to  the  eases  of  secret  agreements  with 
particular  creditors  in  bankruptcy  or  composition:  and  those  cases 
do  in  fact  rest  partly  on  this  ground.  But  the  direct  fraud  on  the 
other  creditors  is  the  chief  element  in  them,  and  we  have  therefore 
spoken  of  them  under  an  earlier  head  (p.  *279). 

Agreements  for  reference  to  arbitration,  how  far  valid  at  common  law. 
Agreements  to  refer  disputes  to  arbitration  are,  or  rather  were,  to  a 
certain  extent  regarded  as  encroachments  on  the  proper  authority  of 
courts  of  justice  by  the  substitution  of  a  "  domestic  forum  "  of  the 
parties'  own  making.  At  common  law  such  an  agreement,  though 
so  far  valid  that  an  action  can  be  maintained  for  a  breach  of  it  (o),10 

{.I)    Brown  v.  Brine    (1875)    1   Ex.  (n)    Elliott  v.   Richardson    (1870) 

D.  5,  45  L.  J.  Ex.  129.  L.  R.  5  C.  P.  744,  748-9,  per  Willes 

(m)  Loundv.  Grimwade  (1888)   39       J.  39  L.  J.  C.  P.  340. 
Ch.  D.  605,  57  L.  J.  Ch.  725.  (o)    Livingston  v.   Ralli    (1855)    5 

E.  &  B.  132,  24  L.  J.  Q.  B.  269. 

8  Case  v.  Smith,  107  Mich.  416. 

9  An  agreement  to  pay  a  witness,  who  could  not  be  required  by  subpoena  to 
attend  a  trial,  a  certain  sum  to  be  present  at  the  trial,  which  was  to  be  reduced 
one-half  if  the  party  promising  lost  the  case  is  unlawful.  Dawkins  v.  Gill,  10 
Ala.  206.  And  see  Brown  r.  First  Bank,  137  Ind.  655;  Thomas  v.  Caulkett,  57 
Mich.  392.  An  agreement  to  procure  witnesses  to  swear  to  a  certain  state  of 
facts  is  against  public  policy.  Patterson  -v.  Conner,  48  Cal.  369 ;  Goodrich  r. 
Tenney,  144  111.  422;  Quirk  v.  Muller,  14  Mont.  467.  But  see  Casserleigh  v. 
Wood,  14  Col.  App.  265;  Wellington  v.  Kelly,  84  N.  Y.  543. 

A  contract  for  the  sale  of  bonds  on  condition  that  the  purchaser  shall  bring 
a  feigned  suit  to  test  their  validity  is  void.  Van  Horn  v.  Kitteltas  County 
112  Fed.  Rep.  1. 

io  Donegal  v.  Verner,  6  Ir.  Rep.  C.  L.  504;  Hamilton  v.  Home  Ins  Co  137 
U.  S.  370,  385;  Hill  v.  More,  40  Me.  515,  523,  ace.     See  also  Nute  v.  Hamilton 


446 


UNLAWFUL   AGREEMENTS. 


does  not  "oust  the  ordinary  jurisdiction  of  the  Court  "—that  is. 
333]  cannot  be  set  up  as  a  bar  to  an  action  brought  in  *the  ordinary 
way  to  determine  the  very  dispute  which  it  was  agreed  to  refer.11 
Xor  could  such  an  agreement  be  specifically  enforced  (p),12  or  used 
as  a  bar  to  a  suit  in  equity  (q).13  It  is  said  however  "that  a  special 
covenant  not  to  sue  may  make  a  difference"  (q). 

Practically  enforceable  under  Arbitration  Act.  And  the  law  has  not 
been  directly  altered  (q)  ;  but  the  Common  Law  Procedure  Act,  1854, 
now  superseded  by  the  Arbitration  Act,  1889  (52  &  53  Vict.  c.  49), 
gave  the  Courts  a  discretion  to  stay  proceedings  in  actions  or  suits  on 
the  subject-matter  of  an  agreement  to  refer,  which  amounts  in 
practice  to  enabling  them  to  enforce  the  agreement :  and  this  discre- 
tion has  as  a  rule  been  exercised  by  Courts  both  of  law  (r)  and  of 
equity  (s)  in  the  absence  of  special  circumstances,  such  a  case  where 

(p)    Street  v.  Rigby  (1802)   6  Ves.  (r)    Randegger  v.   Holmes    (1866) 

815,  818.  L.   R.    1   C.   P.   679;    Seligmann  v.  Le 

(q)   Cooke  v.  Cooke  (1867)  L.  R.  4  Boutillier   (1866)    ib.  681. 
Eq.   77,  867,   30  L.   J.   Ch.  480.     By  (s)    Willesford  v.   Watson    (1873) 

Scots    law   a   reference   excludes    the  L.  R.  14  Eq.  572,  8  Ch.  473,  42  L.  J. 

jurisdiction   only  if   it   is   to  named  Ch.  447  ;  Pleics  v.  Baker  ( 1873 )  L.  R. 

arbitrators,     see    Eamlyn    &    Co.    V.  16  Eq.  564,  43  L.  J.  Ch.  212. 
Talisker  Distillery  [1894]  A.  C.  202. 

Mut.  Ins.  Co.,  6  Gray,  174,  181;  Union  Ins.  Co.  v.  Central  Trust  Co..  157  N.  Y. 
633;  Gray  !\  Wilson,  4  Watts,  39,  41.  Cp.  Myers  v.  Jenkins,  63  Ohio  St.  101, 
102.  But  only  nominal  damages  are  recoverable.  Leake  on  Contracts  (4th 
ed.),  676;  Munson  v.  Straits  of  Dover  S.  S.  Co.,  99  Fed.  Rep.  787;  102  Fed. 
Rep.  (C.  C.  A.)  926. 

il  See  cases  cited  infra,  n.  15. 

On  this  'principle  it  was  held  that  an  agreement  by  a  foreign  insurance  com- 
pany, in  pursuance  of  a  State  statute,  exacting  the  promise  as  a  condition  of 
the  right  to  do  business  in  the  State,  that  if  sued  in  a  State  court  it  would  not 
remove  the  suit  into  the  Federal  court  was  void.  Insurance  Co.  *'.  Morse,  20 
Wall.  445.  See  also  Southern  Pac.  Co.  c.  Denton,  146  U.  S.  202;  Mutual 
Reserve  Assn.  r.  Cleveland  Woolen  Mills,  82  Fed.  Rep.  508 ;  Hobbs  v.  Insurance 
Co.,  56  Me.  417;  Nute  v.  Insurance  Co.,  6  Gray,  174;  Quimbv  r.  Insurance  Co., 
58  N.  H.  494;  Railroad  Co.  v.  Cary,  28  Ohio  St.  208;  Needy  v.  German  Ins. 
Co.,  197  Pa.  460. 

A  provision  in  a  contract  made  in  Italy  that  suit  upon  it  should  be  brought 
only  in  Italy  was,  however,  held  valid  in  Mittenthal  v.  Mascagni,  183  Mass. 
19.     See  further,  58  Cent.  L.  J.  66. 

A  stipulation  in  a  policy  on  which  one  hundred  underwriters  were  severally 
liable  that  the  assured  should  not  sue  more  than  one  at  one  time,  and  that  the 
decision  in  such  an  action  should  be  decisive  as  to  the  liability  of  all,  was 
upheld,  and  a  plea  held  good  which  set  forth  that  the  action  was  brought  in 
violation  of  the  agreement.  New  Jersey  Works  v.  Ackerman,  39  N.  Y.  Supp. 
585. 

12  Tobey  r.  County  of  Bristol,  3  Story,  800;  Grievance  Committee  i>.  Brown, 
61  Fed.  Rep.  541,  543;  King  i\  Howard,  27  Mo.  21;  St.  Louis  r.  St.  Louis 
Gaslight  Co.,  70  Mo.  69,  104;  Smith  v.  Railroad  Co.,  36  N.  H.  458,  487; 
Greason  v.  Keteltas,  17  N.  Y.  491,  496;  Conner  v.  Drake,  1  Ohio  St.  166; 
Grosvenor  v.  Flint,  20  R.  I.  21. 

13  Miles  v.  Schmidt,  168  Mass.  339. 


AGREEMENTS    TO    ARBITRATE.  447 

a  charge  of  fraud  is  made,  and  the  party  charged  with  it  desires  the 
inquiry  to  be  public  (t),  or  where  the  defendant  appeals  to  an  arbi- 
tration clause  not  in  good  faith,  but  merely  for  the  sake  of  vexation 
or  delay  (u),  or  is  otherwise  not  really  ready  and  willing  to  arbi- 
trate (x).  A  question  whether  on  the  true  construction  of  an  arbi- 
tration clause  the  subject-matter  of  a  particular  dispute  falls  within 
it  is  itself  to  be  dealt  with  by  the  arbitrator,  if  it  appears  from  the 
nature  of  the  case  and  the  terms  of  the  provisions  for  arbitration 
that  such  was  *the  intention  of  the  parties.  Otherwise  it  must  [334 
be  decided  by  the  Court  (y).u 

And  when  the  question  is  whether  an  agreement  containing  an 
arbitration  clause  is  or  is  not  determined,  that  question  is  not  one 
for  arbitration,  since  the  arbitration  clause  itself  must  stand  or  fall 
with  the  whole  agreement  (z). 

Special  statutory  arbitration  clauses.  Certain  statutory  provisions  for 
the  reference  to  arbitration  of  internal  disputes  in  friendly  and  build- 
ing societies  have  been  decided  (after  some  conflict)  to  be  compulsory 
and  to  exclude  the  ordinary  jurisdiction  of  the  Courts  (a) .  The  Kail- 
way  Companies  Arbitration  Act,  1859,  is  also  compulsory  (&). 

(t)    Russell  v.  Russell    (1880)    14  (»)  Per  James  L.J.  in  Llanelly  Ry. 

Ch.  D.  at  p.  476  (Jessel  M.R.).  &  Dock  Co.  v.  L.  &  N.  W.  Ry.  Go. 

(«)  L.  R.  14  Bq.  578;  Witt  V.  Cor-  (1873)  L.  R.  8  Ch.  at  p.  948. 

coran    (1871)   L.  R.  8  Ch.  476,  n.,  L.  {a)  Wright  v.  Monarch  Investment 

R.  16  Eq.  571.    The  enactment  applies  Building  Society  (1877)  5  Ch.  D.  726, 

only  where  there  is  at  the  time  of  ae-  46  L.   J.   Ch.   649;    Hack   v.   London 

tion  brought   an  existing   agreement  Provident  Building  Society  (1883)  23 

for    reference    which    can   be   carried  Ch.  Div.  103,  52  L.  J.  Ch.  542 ;  Mu- 

into  effect:   Randell,  Saunders  &  Co.  nicipal     Building     Society    v.     Kent 

v.  Thompson  (1876)   1  Q.  B.  Div.  748,  (1884)  9  App.  Ca.  260,  53  L.  J.  Q.  B. 

45  L.  J.   Q.  B.  713.     Not  where  the  290;    Bache  v.   Billingham    [1894]    1 

arbitration  clause  does  not  cover  the  Q.  B.  107,  63  L.  J.  M.  C.  1,  C.  A.   (an 

'  whole     subject-matter:      Turncich     v.  improper  award,  otherwise  within  the 

Sartoris   (1889)    43  Ch.  Div.  150,  62  Act,    cannot   be    treated    as    a    mere 

L.  T.  209.     Nor  when  the  matter  in  nullity) .      Not    so    where    the    real 

difference  is  a  question  of  pure  law:  question  is  whether  a  party  claiming 

Clegg  v.   Clegg    (1890)    44   Ch.   Div.  against-  the  society  is   a  member   of 

200,  59  L.  J.  Ch.  520.  the  society  at  all :  Prentice  V.  London 

(x)  See  the  principle  and  limits  of  (1875)    L.  R.  10  C.  P.  679,  44  L.  J. 

the  exception  explained  in  the  C.  A. :  C.  P.  353.     See  the  Building  Societies 

Parry  v.   Liverpool  Malt   Co.    [1900]  Act,   1884,  47   &  48  Vict.   c.  41,  and 

1  Q.  B.  339,  69  L.  J.  Q.  B.  161.  Western  Suburban,  dc.  Co.  v.  Martin 

(y)  Piercy  v.  Young  (1879)  14  Ch.  (1886)  17  Q.  B.  Div.  609,  55  L.  J.  Q. 

Div.  200,  208,  per  Jessel  M.R.  qual-  B.  382. 

ifying  the  apparent  effect  of   Willes-  (b)   Watford  &  Richmansworth  Ry. 

ford  v.  Watson   (1873)    L.  R.  8  Ch.  Co.  v.  L.  &  N.  W.  Ry.  Co.   (1869)  L. 

473.  R.  8  Eq.  231,  38  L.  J.  Ch.  449. 

14  Knickerbocker  Ice  Co.  v.  Smith,  147  Pa.  248. 


448  UXXAWJb"CL    AGREEMENTS. 

Agreement  of  parties  may  make  right  of  action  conditional  on  arbitration. 

Moreover  parties  may  if  they  choose  make  arbitration  a  condition 
precedent  to  any  right  arising  at  all,  and  in  that  case  the  foregoing 
rules  are  inapplicable :  as  where  the  contract  is  to  pay  such  an  amount 
as  shall  be  determined  by  arbitration  or  found  due  by  the  certificate 
of  a  particular  person  (c).15     Whether  this  is  in  fact  the  contract, 

(c)   Scott  v.  Avery   (1855-0)   5  H.  ety  (1875-6)   1  Q.  B.  D.  563;  Scott  v. 

L.   C.   811,   25    L.   J.    Ex.    303,   which  Corporation  of  Liverpool  (1858)  3De 

does  not  overrule  the  former  general  G.  &  J.  334,  28  L.  J.  Ch.  236.     Cp. 

law  on  the  subject,  see  the  judgments  Collins   v.    Locke    (1879)     (J.    C.)    4 

of  Brett  J.  and  Kelly  C.B.  in  Ex.  Ch.  App.  Ca.  674,  689,  48  L.  J.  P.  C.  68. 
in   Edwards   v.   Aoerayron,   d-c.    Soci- 

15  In  Viney  v.  Bignold,  20  Q.  B.  D.  172,  Wills,  J.,  said:  "The  principle  on 
which  cases  such  as  the  present  ought  to  be  decided  is  very  clear,  and  it  is 
this.  The  court  must  look  and  see  what  the  covenant  is.  If  there  is  a  cove- 
nant to  pay  the  amount  of  the  loss,  accompanied  by  a  collateral  provision  that 
1he  amount  shall  be  ascertained  by  arbitration,  such  arbitration  is  not  a  con- 
dition precedent  to  the  maintenance  of  an  action  on  the  covenant;  but  if  the 
parties  have  covenanted  that  the  liability  is  only  to  arise  after  the  amount  has 
been  adjusted  by  arbitration,  then  such  adjustment  is  a  condition  precedent 
to  the  right  to  recover."  Elliott  v.  Royal  Ex.  Ass.,  L.  R.  2  Ex.  237;  Dawson 
•l'.  Fitzgerald,  1  Ex.  D.  257;  Collins  v.  Locke,  4  A.  C.  674;  Babbage  v.  Coul- 
burn,  9  Q.  B.  D.  235;  Caledonian  Ins.  Co.  r.  Gilmour,  [1893]  A.  C.  85;  Trainor 
e.  Phoenix  Fire  Ass.  Co.,  65  L.  T.  S25 ;  Manchester  Ship  Canal  Co.  r.  Pearson, 
[1900]  2  Q.  B.  606;  Spurrier  r.  La  Cloche,  [1902]  A.  C.  446  ace.  Compare 
Edwards  r.  Aberayron  Ins.  Soc,  1  Q.  B.  D.  563. 

A  test  apparently  intended  to  be  similar  to  that  adopted  by  the  English 
courts  was  adopted  in  the  following  cases:  Hamilton  v.  Home  Ins.  Co.,  137 
U.  S.  370;  Crossley  v.  Conn.  Ins.  Co.,  27  Fed.  Rep.  30;  Kahnweiler  v.  Phoenix 
Ins.  Co.,  57  Fed.  Rep.  562 ;  67  Fed.  Rep.  486 ;  Connecticut  Ins.  Co.  v.  Hamilton. 
59  Fed.  Rep.  258;  Mutual  Ins.  Co.  r.  Alvord,  61  Fed.  Rep.  755;  Old  Saucelito 
Co.  v.  Commercial  Ass.  Co.,  66  Cal.  253 :  Adams  r.  South  British  Ins.  Co.,  70 
Cal.  198;  Carroll  v.  Girard  Ins.  Co.,  72  Cal.  297;  Denver,  &c.  R.  R.  Co.  r. 
Riley,  7  Col.  494;  Denver,  &c.  Co.  v.  Stout,  8  Col.  61;  Union  Pac.  Co.  r. 
Anderson,  11  Col.  293;  Hanover  Fire  Ins.  Co.  v.  Lewis,  28  Fla.  209;  Liverpool 
Ins.  Co.  r.  Creighton,  51  Ga.  95;  Southern  Ins.  Co.  i.  Turnley,  100  Ga.  296; 
Birmingham  Ins.  Co.  v.  Pulver,  126  111.  329,  338;  Lesure  Lumber  Co.  v.  Mutual 
Fire  Ins.  Co.,  101  Iowa,  514;  Zalesky  v.  Home  Ins.  Co.,  102  Iowa,  613;  Read 
v.  State  Ins.  Co.,  103  Iowa,  307;  Dee  v.  Key  City  Ins.  Co.,  104  Iowa,  167; 
Fisher  r.  Merchants'  Ins.  Co.,  95  Me.  486 ;  Chippewa  Lumber  Co.  r.  Phenix 
Ins.  Co.,  80  Mich.  116;  Guthat  v.  Gow,  95  Mich.  527;  Boots  v.  Steinberg,  100 
Mich.  134;  YVeggner  v.  Greenstine,  114  Mich.  310;  Gasser  r.  Sun  Fire  Office, 
42  Minn.  315;  Mosness  r.  German-American  Ins.  Co.,  50  Minn.  341;  Levine  v. 
Lancashire  Ins.  Co.,  60  Minn.  138;  Wolff  v.  Liverpool  Ins.  Co.,  50  N.  J.  L. 
453;  Delaware  &  H.  C.  Co.  v.  Penn.  Coal  Co.,  50  N.  Y.  250;  Seward  v. 
Rochester,  109  N.  Y.  169;  National  Co.  v.  Hudson  River  Co.,  170  N.  Y.  439; 
Keefe  v.  National  Soc,  4  N.  Y.  App.  Div.  392 ;  Spink  v.  Co-operative  Ins.  Co., 
25  N.  Y.  App.  Div.  484;  Van  Note  r.  Cook,  55  N.  Y.  App.  Div.  55;  Pioneer 
Mfg.  Co.  v.  Phoenix  Ass.  Co.,  106  N.  C.  28  (see,  however.  Pioneer  Mfg.  v. 
Phoenix  Ass.  Co.,  110  N.  C.  176;  Uhrig  v.  Williamsburg  Ins.  Co.,  116  N.  C. 
491)  ;  Monongahela  Nav.  Co.  v.  Fenlon,  4  W.  &  S.  205;  Reynolds  r.  Caldwell, 
51  Pa.  298;  Gowen  r.  Pierson,  166  Pa.  258;  Chandley  r.  Cambridge  Springs. 
200  Pa.  230,  232;  Scottish  Ins.  Co.  r.  Clancy,  71  Tex.  5;  American  Ins.  Co.  v. 
Bass  Bros.,  90  Tex.  380,  382:  Van  Home  1\  Watrous,  10  Wash.  525;  Zindorf 
Co.  r.  Western  Co.,  27  Wash.  31  (conf.  Winsor  v.  German  Soc,  72  Pac.  Rep. 
66)  ;  Chapman  r.  Rockford  Ins.  Co.,  89  Wis.  572.     Sec  also  Randall  v.  Phoenix 


MAIXTHXAXCIS    AXD    CHAMPERTY.  449 

or  it  is  an  absolute  contract  to  pay  in  the  first  instance,  with  a  col- 
lateral provision  for  reference  in  case  of  difference  *as  to  the  [335 
amount,  is  a  question  of  construction  on  which  there  have  been  more 
or  less  conflicting  opinions  (d). 

Maintenance  and  champerty.  We  now  come  to  a  class  of  transactions 
which  are  specially  discouraged,  as  tending  to  pervert  the  due  course 
of  justice  in  civil  suits. 

These  are  the  dealings  which  are  held  void  as  amounting  to  or 
being  in  the  nature  of  champerty  or  maintenance.  The  principle  of 
the  law  on  this  head  has  been  defined  to  be  "  that  no  encouragement 
should  be  given  to  litigation  by  the  introduction  of  parties  to  enforce 
those  rights  which  others  are  not  disposed  to  enforce"  (e).  Main- 
tenance is  properly  a  general  term'  of  which  champerty  is  a  species. 
Their  most  usual  meanings  (together  with  certain  additions  and 
distinctions  now  obsolete)  are  thus  given  by  Coke: — 

"  First,  to  maintain  to  have  part  of  the  land  or  anything  out  of 

{d)   Elliott  v.  Royal  Exchange  As-  (e)  By  Lord  Abinger  in  Prosser  V. 

surance  Co.    (1867)   L.  R.  2  Ex.  237,       Edmonds   (1835)    1  Y.  &  C.  Ex.  481, 
36  L.  J.  Ex.  129;  Dawson  v.  Fitzger-       497,  41  R.  R.  322,  334. 
aid  (1876)   1  Ex.  Div.  257,  revg.  s.  c. 
L.  R.  9  Ex.  7,  45  L.  J.  Ex.  893. 

Ins.  Co.,  10  Mont.  362;  Kahn  r.  Traders'  Ins.  Co.,  4  Wyo.  419.  Tn  many  of 
these  cases,  however,  the  court  considered  not  only  the  question  whether  the 
provision  for  arbitration  was  expressed  as  a  condition  precedent  or  as  a  col- 
lateral promise,  but  also  the  question  whether  the  agreement  for  arbitration 
related  to  the  liability  under  the  contract  or  to  the  amount  of  damages. 

In  a  number  of  jurisdictions  an  agreement  to  arbitrate,  though  expressed  in 
the  form  of  a  condition  precedent,  is  void  if  it  concerns  more  than  the  amount 
of  damages  recoverable,  as  distinguished  from  the  existence  of  a  right  of  action. 
Dickson  Mfg.  Co.  v.  American  Locomotive  Co.,  119  Fed.  Rep.  488;  Meaher 
v.  Cox,  37  Ala.  201;  Western  Ass.  Co.  V.  Hall,  112  Ala.  318;  Bauer  v.  Samson 
Lodge,  102  Ind.  262;  Supreme  Council  v.  Garrigus,  104  Ind.  133;  Louisville, 
&c.  Rv.  Co.  v.  Donnegan,  111  Ind.  179;  Supreme  Council  r.  Forsinger,  125  Ind. 
52;  McCoy  r.  Able,  131  Ind.  417;  Ison  v.  Wright,  55  S.  W.  Rep.  (Ky.)  202; 
Robinson  v.  Georges  Ins.  Co.,  17  Me.  131;  Stephenson  v.  Piscataqua  Ins.  Co., 
56  Me.  419  (but  see  Fisher  r.  Merchants'  Ins.  Co.,  95  Me.  486)  ;  White  v. 
Middlesex  R.  Co.,  135  Mass.  216;  Miles  v.  Schmidt,  168  Mass.  339  (ep.  Lam- 
son  Co.  i).  Prudential  Ins.  Co.,  171  Mass.  433)  ;  Phoenix  Ins.  Co.  r.  Zlotky,  92 
N.  W.  Rep.  (Neb.)  736;  Hartford  Ins.  Co.  v.  Hon,  92  N.  W.  Rep.  (Neb.)  742; 
Leach  v.  Republic  Ins.  Co.,  58  N.  H.  245 ;  Baltimore,  &c.  R.  R.  Co.  r.  Stankard, 
56  Ohio  St.  224;  Myers  v.  Jenkins,  63  Ohio  St.  101;  Ball  r.  Doud,  26  Oreg. 
14;  Grav  v,  Wilson,  4  Watts,  39;  Commercial  Union  Ass.  Co.  v.  Hocking,  115 
Pa.  407;  Yost  v.  Dwelling-House  Ins.  Co.,  179  Pa.  381;  Penn  Plate  Glass  Co. 
v.  Spring  Garden  Ins.  Co.,  189  Pa.  255 ;  Needy  v.  German-American  Ins.  Co., 
197  Pa.  460;  Peyin  v.  Societe  St.  Jean  Baptiste,  21  R.  I.  81;  Daniher  v.  Grand 
Lodge,  10  Utah,  110;  Kinney  r.  Baltimore,  &c.  Association,  35  W.  Va.  385 
(conf.  Baer's  Sons  Co.  v.  Cutting  Fruit  Packing  Co.,  43  W.  Va.  359).  See 
also  Edwards  v.  Aberayron  Ins.  Co.,  1  Q.  B.  D.  563,  and  the  Michigan,  Minne- 
sota, and  New  York  decisions  cited  in  the  first  part  of  this  note;  also  Green- 
hood  on  Public  Policy,  467  et  seq.  and  cases  cited;  11  Harv.  L.  Rev.  234. 

29 


450  UNLAWFUL   AGREEMENTS. 

the  land  or  part  of  the  debt,  or  any  other  thing  in  plea  or  suit;  and 
this  is  called  cambipartia   [champart,  campi  pariiiio~\,  champertie." 

The  second  is  "  when  one  maintaineth  the  one  side  without  having 
any  part  of  the  thing  in  plea  or  suit"  (/).  Champerty  may  accord- 
ingly be  described  as  "  maintenance  aggravated  by  an  agreement  to 
have  a  part  of  the  thing  in  dispute  "(g). 

Agreements  falling  distinctly  within  these  descriptions  are  punish- 
able under  certain  statutes  (h).  It  has  always  been  considered,  how- 
336]  ever,  that  champerty  and  maintenance  *are  offences  at  common 
law,  and  that  the  statutes  only  declare  the  common  law  with  addi- 
tional penalties  (t).16 

Relation  of  the  statutes  to  the  common  law,  and  modern  policy  of  the  law. 

Whether  by  way  of  abundant  caution  or  for  other  reasons,  the  law 
was  in  early  times  applied  or  at  any  rate  asserted  with  extreme  and 
almost  absurd  severity  (k).  It  was  even  contended,  as  we  had  occa- 
sion to  see  in  the  last  chapter,  that  the  absolute  beneficial  assign- 
ment of  a  contract  was  bad  for  maintenance.  The  modern  cases, 
however,  proceed  not  upon  the  letter  of  the  statutes  or  of  the  defi- 
nitions given  by  early  writers,  but  upon  the  real  object  and  policy 
of  the  law,  which  is  to  repress  that  which  Knight  Bruce  L.J.  spoke 
of  as  "  the  traffic  of  merchandising  in  quarrels,  of  huckstering  in 
litigious  discord,"  which  decent  people  hardly  require  legal  knowledge 
to  warn  them  from,  and  which  makes  the  business  and  profit  of 
"  breedbates,  barretors,  counsel  whom  no  Inn  will  own,  and  solicitors 
estranged  from  every  roll"  (I).  On  the  other  hand  the  Courts  have 
not  deemed  themselves  bound  to  permit  things  clearly  within  the 
mischief  aimed  at  any  more  than  to  forbid  things  clearly  without  it. 
They  have  in  fact  taken  advantage  of  the  doctrine  that  the  statutes 
are  only  in  affirmance  of  the  common  law  to  treat  them  as  giving 
indications  rather  than  definitions;  as  bearing  witness  to  the  general 

if)    Co.   Lit.   368   6.     Every   chain-  3,  c.  4;   1  Ric.  2,  c.  4;  7  Ric.  2,  c.  15; 

perty  is  maintenance,  2  Ro.  Ab.  119  R.  and    32   H.   8,    c.   9,    of   which   more 

(g)   Bovill,  arg.  in  Sprye  v.  Porter  presently. 
(1856)    7  E.  &  B.  58,  26  L.  J.  Q.  B.  (i)  Pechell  v.  Watson  (1841)  8  M. 

64.  &  W.  691,  700;  2  Ro.  Ab.  114  D. 

(h)    3   Ed.   1    (Stat.  Westm.   1)    c.  (fc)      See     Bacon's     Abridgement. 

25;    13    Ed.    1     (Stat.    Westm.    2),    c.  Maintenance,  A.    (5,250). 
49;    28   Ed.    1,  st.    1,  c.   11;    Stat,   de  (I)    Reynell  v.  Sprye    (1852)    1   D. 

Conspiratoribus,  temp,  incert;  20  Ed.  M.  &  G.  at  pp.  680,  686. 

i«Gilman  v.  Jones,  87  Ala.  691;  Thompson  t'.  Reynolds,  73  111.  11;  Brown 
v.  Beauchamp,  5  T.  B.  Mon.  413,  416;  Thurston  v.  Percival,  1  Pick.  415; 
Backus  v.  Byron,  4  Mich.  535;  Sedgwick  r.  Stanton,  14  N.  Y.  289,  295;  Key 
r.  Vattier,  1'Ohio,  132;  Martin  i.  Clarke,  8  R.  I.  389.  But  see  p.  451,  ad.  fin., 
note  17. 


MAINTENANCE    AND    CHAMPERTY.  451 

"  policy  of  the  law  "  but  not  exhausting  or  restricting  it.  It  is  not 
considered  necessary  to  decide  that  a  particular  transaction  amounts 
to  the  actual  offence  of  champerty  or  maintenance  in  order  to  dis- 
allow it  as  a  ground  of  civil  rights :  it  will  be  void  as  "  savouring  of 
maintenance  "  if  it  clearly  tends  to  the  same  kind  of  mischief. 

Of  maintenance  pure  and  simple,  an  important  head  in  the  old 
books,  there  are  very  few  modern  examples  (m)  ;  *almost  all  [337 
the  decisions  illustrate  the  more  special  rule  against  champerty, 
namely  that  "  a  bargain  whereby  the  one  party  is  to  assist  the  other 
in  recovering  property,  and  is  to  share  in  the  proceeds  of  the  action, 
is  illegal"  (m1).  On  this  head  the  rules  now  established  appear  to 
be  as  follows:17 

(m)    One  is  Bradlaugh  v.   Newde-  (m1)    Per  Blackburn  J.  Eutley  v. 

gate   (1883)    11  Q.  B.  D.  1,  52  L.  J.  Hutley    (1873)    L.   R.   8    Q.   B.    112. 

Q.  B.  454.    More  lately  it  has  been  de-  Champerty  is  apt  to  be  complicated 

cided  that  charity  is  excuse  enough  with  undue  influence,  see  Reynell  v. 

for   maintaining   a   stranger's    action  Sprye,  next  page,  and  James  v.  Kerr 

even  without  reasonable  ground.   Ear-  ( 1889 )  40  Ch.  D.  449. 
ris  v.   Brisco    (1886)    17   Q.   B.   Div. 
504. 

it  In  Massachusetts  and  New  Hampshire,  at  least,  a  contract  of  an  attorney 
for  a  share  of  the  proceeds  of  litigation  as  a  fee  is  illegal.  Ackert  v.  Barker, 
131  Mass.  436;  Blaisdell  v.  Ahem,  144  Mass.  393;  Joy  v.  Metcalf,  161  Mass. 
014;  Davis  r.  Commonwealth,  164  Mass.  241;  Hadlock  v.  Brooks,  178  Mass. 
425 ;  Butler  r.  Legro,  62  N.  H.  350.  But  in  most  jurisdictions  such  a  contract 
is  not  illegal  unless  the  attorney  also  agrees  to  prosecute  the  litigation  at  his 
own  expense.  McPherson  r.  Cox,  96  U.  S.  404;  Jeffries  v.  Mutual  Ins.  Co., 
110  U.  S.  305;  Peck  v.  Heurich,  167  U.  S.  624;  Muller  v.  Kelly,  116  Fed.  Rep. 
545;  Keiper  v.  Miller,  68  Fed.  Rep.  627;  Swanston  v.  Morning  Star  Mining 
Co.,  13  Fed.  Rep.  215;  Wheeler  v.  Pounds,  24  Ala.  472;  Stanton  v.  Haskin,  1 
McArthur  (D.  C),  558;  Johnson  v.  Van  Wyck,  4  D.  C.  App.  294;  Moses  v. 
Bagley,  55  Ga-  283 ;  Meeks  v.  Dewberry,  57  Ga.  263 ;  Taylor  v.  Hinton.  66  Ga.. 
743;  Johnson  v.  Hilton,  96  Ga.  577;  Coleman  v.  Billings,  89  111.  183;  Phillips 
v.  South  Park  Ins.  Co.,  119  111.  626;  Geer  r.  Frank,  179  111.  570;  Coquillard  v. 
Bearss,  21  Ind.  479;  Hart  v.  State,  120  Ind.  83;  Jewel  v.  Neidy,  61  la.  299; 
Wallace  v.  Chicago,  &e.  Ry.  Co.,  112  la.  565;  Atchison,  &c.  Railroad  Co.  v. 
Johnson,  29  Kan.  218,  227;  Aultman  v.  Waddle,  40  Kan.  195;  Million  r. 
Ohnsorg,  10  Mo.  App.  432;  Duke  v.  Harper,  66  Mo.  51;  Coughlin  v.  Railroad 
Co.,  71  1ST.  Y.  443;  Weakly  v.  Hall,  13  Ohio,  167;  Brown  v.  Ginn,  66  Ohio  St. 
316;  Chester  Co.  v.  Barber,  97  Pa.  455;  Perry  v.  Dicken,  105  Pa.  83;  Martin 
v.  Clarke,  8  R.  I.  389;  Havney  v.  Coyne,  10  Heisk.  339;  Nelson  v.  Evans,  21 
Utah,  202;  Hamilton  v.  Gray,  67  Vt.  233;  Nickels  v.  Kane's  Adm.,  82  Va.  309; 
Stearns  v.  Felker,  28  Wis.  594;  Allard  v.  Lamirande.  29  Wis.  502;  Dockerv  V. 
McLellan,  93  Wis.  381.  See  also  Casserleigh  v.  Wood,  119  Fed.  Rep.  ',308 
(C.  C.  A.) 

If  the  agreement  provides  that  the  owner  of  the  right  of  action  shall  not 
compromise  or  settle  the  claim,  the  provision  has  been  held  in  some  cases  to 
make  the  contract  illegal.  Foster  v.  Jacks,  4  Wall.  334 ;  North  Chicago  R.  R. 
Co.  v.  Ackley,  171  111.  100;  Elwood  V.  Wilson,  21  la.  523;  Boardman  v. 
Thompson,  25  la.  487;  Huber  v.  Johnson,  68  Minn.  74.  But  see  Hoffman  v. 
Vallejo,  45  Cal.  564;  P.,  C,  C.  &  St.  L.  Ry.  Co.  r.  Volkert,  58  Ohio  St.  363; 
Ryan  r.  Martin,  16  Wis.  57;  Kusterer  i\  Beaver  Dam,  56  Wis.  471. 

In  some  jurisdictions  even  though  the  attorney  contracts  for  a  share  of  the 
proceeds  of  litigation  and  also  to  prosecute  the  litigation  at  his  own  expense 


452  UXLAWiXL    AGREEMENTS. 

(a.)  Rules  as  to  champerty.  An  agreement  to  advance  funds  or  sup- 
ply evidence  with  or  without  professional  assistance  (or,  it  seems,  pro- 
fessional assistance  only)  (n)    for  the  recovery  of  property  in  con- 

(n)   Per  Jessel  M.R.  Re  Attorneys  the  real  meaning  of  it  was  that  the 

and  Solicitors  Act    (1875)    1   Ch.  D.  solicitors  should  find  the  funds.     Cp. 

573,  44  L.  J.  Ch.  47,  where  the  agree-  Grell  v.  Levy   (1864)    16  C.  B.  N.  S. 

ment  was  to  pay  the  solicitors  in  the  73,   and  Strange  v.  Brennan    (1846) 

event  of  success  a  percentage  of  the  cited  p.  339,  below, 
property     recovered;     but     probably 

the  contract  is  not  therefore  illegal.  Taylor  v.  Bemiss,  110  U.  S.  42;  Hoffman 
r.  Vallejo,  45  Cal.  564;  Richardson  i\  Rowland,  40  Conn.  565;  Metropolitan 
Ins.  Co.  v.  Fuller,  61  Conn.  252;  Fowler  r.  Collan,"102  N.  Y.  335;  Browne  v. 
West,  9  N.  Y.  App.  Div.  135;  Brown  f.  Bigne,  21  Oreg.  260;  Bentinek  v.  Frank- 
lin, 38  Tex.  458;  Stewart  c.  H.  &  T.  C.  Ry.  Co.,  62  Tex.  246.  See  also  Bayard 
r.  MeLane,  3  Har.  (Del.)  139;  Schomp  v.  Schenck,  40  N.  J.  L.  195.  Compare 
Huber  v.  Johnson.  68  Minn.  74;  Van  Vleck  l:  Van  Vleck,  21  N.  Y.  App.  Div. 
272;  Badger  r.  Celler,  41  N.  Y.  App.  Div.  599. 

Compensation  on  the  basis  of  quantum  meruit  has  sometimes  been  allowed 
an  attorney  who  has  rendered  services  under  a  champertous  agreement. 
Holloway  v.  Lowe,  1  Ala.  246;  Elliott  „.  McClelland,  17  Ala.  206;  Goodman  v. 
Walker,  30  Ala.  482,  500;  Rust  v.  Larue,  4  Litt.  411;  Caldwell  v.  Shepherd,  6 
T.  B.  Jlon.  389;  Gammons  i.  Johnson,  69  Minn.  4S8;  Stearns  v.  Felker,  28 
Wis.  594.  See  also  Merritt  v.  Lambert,  10  Paige,  352;  affd.,  2  Denio,  607. 
But  see,  involving  a.  contrary  principle,  Ackert  r.  Barker,  131  Mass.  436; 
Gammons  r.  Johnson,  76  Minn.  76 ;  Butler  r.  Legro,  62  N.  H.  350 ;  Mundav 
v.  Whisscuhurst,  90  ST.  C.  458.  See  also  Pince  r.  Beattie.  32  L.  J.  Ch.  734"; 
Grell  r.  Levy,  16  C.  B.  N.  s.  73;  Willemin  r.  Bateson,  63  Mich.  309. 

It  seems  anomalous  that  one  should  be  allowed  to  recover  for  the  value  of 
services  rendered  under  an  unlawful  agreement. 

That  an  action  is  being  prosecuted  under  a  champertous  agreement  with 
counsel  is  no  defense  to  the  suit.  Hilton  v.  Woods,  4  Eq.  432;  Bumes  t*. 
Scott,  117  U.  S.  582;  Courtright  i:  Bumes,  3  McCrary,  60;  Sibley  v.  Alba,  95 
Ala.  191;  Missouri  Pac.  Ry.  Co.  v.  Smith,  60  Ark.  221;  Gage  f.  Downev,  79 
Cal.  140;  Robinson  v.  Beall,  26  Ga.  17;  Ellis  v.  Smith,  112  Ga.  480;  Torrence 
c.  Shedd.  112  111.  466;  Stearns  v.  Reidv,  135  111.  119;  Gage  v.  Du  Puy,  137  111. 
652;  Burton  r.  Perry,  146  111.  71;  Allen  v.  Frazee,  85  Ind.  283;  Zeigler  v. 
Mize,  132  Ind.  403;  Small  v.  Railroad  Co.,  55  la.  582;  Bowser  r.  Patrick,  65 
S.  W.  Rep.  (Kv.)  824;  Gilkeson  Co.  v.  Bond,  44  La.  Ann.  481;  Brinlev  r. 
Whiting,  5  Pick.  348;  Robertson  v.  Blewett,  71  Miss.  409;  Bent  r.  Priest,  86. 
Mo.  475;  Bick  ■('.  Overfelt,  88  Mo.  App.  139;  Chamberlain  v.  Grimes,  42  Neb. 
701;  Taylor  r.  Gil  man,  58  N.  H.  417;  Connecticut  Ins.  Co.  t.  Way,  62  N.  H. 
622;  Whitney  r.  Kirtland,  27  N.  J.  Eq.  333;  Hall  v.  Gird,  7  Hill,  586; 
Pennsylvania  Co.  r.  Lombardo,  49  Ohio  St.  1;  Potter  v.  Ajax  Mining  Co.,  22 
Utah,  273;  Davis  c.  Settle,  43  W.  Va.  17.  See  also  Euneau  r.  Rieger,  105 
Mo.  682;   Cooke  /'.  Pool,  25  S.  C.  593. 

Contra,  Keiper  v.  Miller,  63  Fed.  Rep.  627;  70  Fed.  Rep.  128;  Greenman  r. 
Cohee,  61  Ind.  201;  Stewart  v.  \Velch,  41  Ohio  St.  483;  Webb  v.  Armstrong,  5 
Humph.  379;  Barker  v.  Barker,  14  Wis.  131;  Kelly  v.  Kelly,  86  Wis.  170. 
See  also  Brown  r.  Ginn,  66  Ohio  St.  316. 

A  scheme  to  work  up  a  large  number  of  cases  against  a  railroad  company 
for  its  failure  to  fence  and  to  take  in  payment  for  services  a  share  of  the 
proceeds  of  the  litigation  was  held  illegal  in  Gammons  r.  Johnson,  76  Minn. 
76,  and  Gammons  r.  Gulbranson,  78  Minn.  21,  though  a  similar  agreement 
with  a  single  litigant  would  not  have  been  held  champertous.  See  also 
Alpers  r.  Hunt,  86  Cal.  78;  Hirschbach  r.  Ketehum,  5  N.  Y.  App.  Div.  324. 
Compare  Metropolitan  Ins.  Co.  r.  Fuller,  61  Conn.  252;  Vocke  v.  Peters,  58 
111.  App.  338;  Wheeler  r.  Harrison,  94  Md.  147. 


MAINTENANCE    AND    CHAMPERTY.  453 

sideration  of  a  remuneration  contingent  on  success  and  proportional 
to  or  be  paid  out  of  the  property  recovered  is  void  (o). 

(/3.)  A  solicitor  cannot  purchase  the  subject-matter  of  a  pending 
suit  from  his  client  in  that  suit  (p)  ;18  but  he  may  take  a  security  upon 
it  for  advances  already  made  and  costs  already  due  in  the  suit  (q).10 

{)■■)  Except  in  the  case  last  mentioned,  the  purchase  of  property 
the  title  to  which  is  disputed,  or  which  is  the  subject  of  a  pending 
suit,  or  an  agreement  for  such  purchase,  is  not  in  itself  unlawful  (r)  : 
but  such  an  agreement  is  unlawful  and  void  if  the  real  object  of  it 
is  only  to  enable  the  purchaser  to  maintain  the  suit  (s). 

*We  proceed  to  deal  shortly  with  these  propositions  in  order.  [338 

a.  Agreement  to  furnish  money  or  evidence  for  litigation  for  share  of 
property  recovered  is  void.  This  rule  was  laid  down  in  very  clear  terms 
by  Tindal  C.J.  in  Stanley  v.  Jones  (t),  which  seems  to  be  the  first 
of  the  modern  cases  at  law. 

"A  bargain  by  a  man  who  has  evidence  in  his  own  possession  respecting  a 
matter  in  dispute  between  third  persons  and  who  at  the  same  time  professes 
to  have  the  means  of  procuring  more  evidence,  to  purchase  from  one  of  the 
contending  parties,  at  the  price  of  the  evidence  which  he  so  possesses  or  can 
procure,  a  share  of  the  sum  of  money  which  shall  be  recovered  by  means  of 
the  production  of  that  very  evidence,  cannot  be  enforced  in  a.  Court  of  law."  20 

It  is  quite  immaterial  for  this  purpose  whether  any  litigation  is 
already  pending  or  not,  although  the  offence  of  maintenance  is  prop- 
to)  Stanley  v.  Jones  (1831)  7  Bing.       420 j  Knight  v.  Bowyer   (1858)    2  De 
369,  33  R.  R.  513;  Reynell  v.  Sprye       G.  &  J.  421.  444,  27  L.  J.  Ch.  521. 
(1852)    1  D.  M.  G.  660,  21  L.  J.  Ch.  (s)   Prosser  v.  Edmonds    (1835)    1 

633;  Sprye  v.  Porter  (1852)  7  E.  &  Y.  &  C.  Ex.  Eq.  481,  41  R.  R.  322; 
B.  58,  26  L.  J.  Q.  B.  64;  Hutley  v.  Harrington  v.  Long  (1833-4)  2  My. 
Eutley  (1873)  L.  R.  8  Q.  B.  112,  42  &  K.  590,  39  R.  R.  304;  De  Hoghton 
L.  J.  Q.  B.  52.  v.   Money    (1866)    L.   R.  2   Ch.    164; 

(p)  Wood  v.  Dovmes  (1811)  18  Ves.       Seear  v.   Laicson    (1880)    15   Ch.   D. 

120,  11  R.  R.  160;  Simpson  v.  Lamb  426,  49  L.  J.  Bk.  69,  where  the  pre- 
(1857)   7  E.  &  B.  84,  20  L.  J.  Q.  B.        cise  extent  of  the  doctrine  is  treated 

121.  as  doubtful;  Guy  v.  Churchill  (1888) 
(q)    Anderson  v.  Radcliffe    (1858)        40  Ch.  D.  481,  58  L.  J.  Ch.  345. 

(Ex.  Ch.)  E.  B.  &  E.  806,  29  L.  J.  Q.  (t)    (1831)  7  Bing.  369,  377,  33  R. 

B.  128.  R.  513,  520. 

(r)  Hunter  v.  Daniel  (1845)  4  Ha. 

18  Elmore  v.  Johnson,  143  111.  513;  West  v.  Raymond,  21  Ind.  305;  Colgan 
V.  Jones,  44  ST.  J.  Eq.  274;  Berrien  v.  McLane,  1  Hoffm.  Ch.  421,  424.  See 
also  Herr  v.  Payson,  157  111.  244;  Cunningham  v.  Jones,  37  Kan.  477;  Olson 
v.  Lamb,  56  Neb.  104.  Contra,  Mitchell  r.  Colby,  95  la.  202;  Yeamans  v. 
James,  27  Kan.  195;  Dunn  v.  Record,  63  Me.  17;  Vanasse  v.  Reid,  111  Wis. 
303.     The  question  was  left  open  in  Rogers  P.  Marshall,  3  McCrarv,  76. 

WMott  v.  Harrington,   12  Vt.   199. 

20  A  promise  of  remuneration  contingent  upon  success,  made  to  one  not  a 
stranger  in  interest  to  the  litigation  for  furnishing  evidence  to  sustain  a  de- 
fense, was  enforced  in  Wellington  v.  Kelly,  84  N.  Y-  543.  Cp.  infra,  p.  445, 
n.  9. 


454  UNLAWFUL   AGREEMENTS. 

erly  maintaining  an  existing  suit,  not  procuring  one  to  be  com- 
menced. It  is  obvious  that  the  mischief  is  even  greater  in  the  case 
where  a  person  is  instigated  by  the  promise  of  indemnity  in  the  event 
of  failure  to  undertake  litigation  which  otherwise  he  would  have 
not  thought  of.  If  a  person  who  is  in  actual  possession  of  certain 
definite  evidences  of  title  proposes  to  deliver  them  to  the  person  whose 
title  they  support  on  the  terms  of  having  a  certain  share  of  any  prop- 
erty that  may  be  recovered  by  means  of  these  evidences,  there  being  no 
suit  depending,  and  no  stipulation  for  the  commencement  of  any, 
this  is  not  unlawful;  for  litigation  is  not  necessarily  contemplated  at 
all,  and  in  any  case  there  is  no  provision  for  maintaining  any  liti- 
gation there  may  be  (u). 

Verbal  evasions  ineffectual.  But  it  is  in  vain  to  put  the  agreement  in 
such  a  form  if  these  terms  are  only  colourable  (x),  and  the  real  agree- 
339]  ment  is  to  supply  evidence  *generally  for  the  maintenance 
of  an  intended  suit:  the  illegal  intention  may  be  shown,  and  the 
transaction  will  be  held  void  (y).  Still  less  can  the  law  be  evaded 
by  slighter  variations  in  the  form  or  manner  of  the  transaction:  for 
instance,  an  agreement  between  solicitor  and  client  that  the  solicitor 
shall  advance  funds  for  carrying  on  a  suit  to  recover  possession  of  an 
estate,  and  in  the  event  of  success  shall  receive  a  sum  above  his 
regular  costs  "  according  to  the  interest  and  benefit "  acquired  by 
the  possession  of  the  estate,  is  as  much  void  as  a  bargain  for  a  specific 
part  of  the  property  (2).  So  where  a  solicitor  was  to  have  a  percent- 
age of  the  fund  recovered  in  a  suit,  it  was  held  to  be  not  the  less 
champerty  because  he  was  not  himself  (and  in  fact  could  not  be)  the 
solicitor  in  the  suit,  but  employed  another  (a).  A  solicitor  cannot 
refuse  to  account  to  his  client  and  submit  to  taxation  of  his  costs  on 
the  ground  that  the  business  for  which  he  was  retained  involved 
champerty  or  maintenance  (i). 

An  agreement  by  a  solicitor  with  a  client  simply  to  charge  nothing 
for  costs  in  a  particular  action  is  not  champerty  (c). 

(u)  Sprye  v.  Porter  (1856)  7  E.  &  (a)  Strange  v.  Brennan  (1846)  15 
B.  58,  26  L.  J.  Q.  B.  64.  Sim.  346,  2  C.  P.  Cooper  (temp.  Cot- 
fa?)  As  a  matter  of  fact,  it  is  dim-  tenham)  1,  15  L.  J.  Ch.  389.  The 
cult  to  suppose  that  they  could  ever  agreement  was  made  with  a  solicitor 
be  otherwise.  in  Ireland,  not  being  a  solicitor  of  the 
(y)  Sprye  v.  Porter  (1856)  7  E.  &  English  Court  of  Chancery,  and  the 
B.  58,  26  L.  J.  Q.  B.  64;  cp.  Rees  v.  fund  to  be  recovered  was  in  England. 
De  Remardy  [1896]  2  Ch.  137,  65  (6)  Re  Thomas,  Jaquess  v.  Thomas 
L.  J.  Ch.  656,  where  there  was  a  de-  [1S94]  1  Q.  B.  747. 
liberate  endeavour  to  conceal  the  real  (c)  Jr-nninqs  v.  Johnson  (1873) 
intention.  L.  R.  8  C.  P.  425. 

(c)  Earle  v.  Eopwood   (1801)   9  C. 
B.  N.  S.  566,  30  L.  J.  C.  P.  217. 


PURCHASE   OP   THINGS    IN    LITIGATION.  455 

j3.  Solicitor  in  suit  cannot  purchase  subject-matter  of  the  suit  from  his 
client'.  This  rule  came  to  be  laid  down  in  a  somewhat  curious  way: 
In  11  ood  v.  Dowries  (d)  Lord  Eldon  set  aside  a  purchase  by  a  solicitor 
from  his  client  of  the  res  litigiosa,  partly  on  the  ground  of  mainte- 
nance. But  it  is  to  be  noted  as  to  this  ground  that  the  agreement  for 
sale  was  in  substitution  for  a  previous  agreement  which  clearly 
amounted,  and  which  the  parties  had  discovered  to  amount,  *to  [340 
maintenance :  and  the  Court  appears  to  have  inferred  as  a  fact  that 
it  was  all  one  illegal  transaction,  and  the  sale  merely  colourable  (e). 
The  other  ground,  which  alone  would  have  been  enough,  was  the 
presumption  of  undue  influence  in  such  a  transaction,  arising  from 
the  fiduciary  relation  of  solicitor  and  client  (of  which  we  shall  speak 
in  a  subsequent  chapter).  The  Court  of  Queen's  Bench,  however,  in 
Simpson  v.  Lamb  (/)  followed  Wood  v.  Dowries,  as  having  laid  down 
as  a  matter  of  the  "  policy  of  the  law  "  the  positive  rule  above  stated. 
In  Anderson  v.  Radcliffe  (g),  unanimous  judgments  in  both  the 
Q.  B.  and  the  Ex.  Ch.  added  the  qualification  that  a  conveyance  by 
way  of  security  for  past  expenses  is  nevertheless  good.  The  Court 
of  Exchequer  Chamber  showed  a  decided  opinion  that  Simpson  v. 
Lamb  had  gone  too  far,  but  without  positively  disapproving  it.  In 
Knight  v.  Bowyer,  again,  Turner  L.J.  said:  "  I  am  aware  of  no  rule 
of  law  which  prevents  an  attorney  from  purchasing  what  anybody 
else  is  at  liberty  to  purchase,  subject,  of  course,  if  he  purchases  from 
a  client,  to  the  consequences  of  that  relation"  (h).  But  the  case 
before  the  Court  was  not  the  purchase  by  a  solicitor  from  his  client  of 
the  subject-matter  of  a  suit  in  which  he  was  solicitor;  Simpson  v. 
Lamb,  therefore,  was  only  treated  as  distinguishable  (h).  The  case 
must  at  present  be  considered  a  subsisting  authority,  but  anomalous, 
and  not  likely  to  be  at  all  extended. 

y.  Purchase  of  subject-matter  of  litigation  not  in  itself  unlawful.  As 
to  the  purchase  of  things  in  litigation  in  general,  the  authorities 
cannot  all  be  reconciled  in  detail.  But  the  distinction  which  runs 
through  them  all  is  to  this  effect.  The  question  in  every  case  is 
whether  the  real  object  be  *to  acquire  an  interest  in  property  for  [341 

(d)  (1811)    18  Ves.  120,  11  R.  R.        preserve   the    full    statement    of    the 
160.  facts  (18  Ves.  p.  122)  with  which  the 

(e)  Cp.  Sprye  v.  Porter,  last  page.        judgment  opened. 

In  Wood  v.  Dowries  the  parties  do  not  (f )    ( 1857)    7  E.  &  B.  84,  20  L.  J. 

seem  to  have  even  kept  the  original  Q.  B.  121. 

and  real  agreement  off  the  face  of  the  (g)    (1858)  E.  B.  &  E.  806,  28  L.  J. 

transaction  in  its  ultimate  shape.     See  ().  B.  32,  29  ib.  128. 

18  Ves.  p.  123,  11  R.  R.  162.  It  is  to  (ft.)  (1858)  2  De  G.  &  J.  at  p.  445. 

be  regretted  that  the  reporter  did  not 


456  UNLAWFUL    AGREEMENTS. 

the  purchaser,  or  merely  to  speculate  in  litigation  on  the  account 
either  of  the  vendor  and  purchaser  jointly  or  of  the  purchaser  alone. 
It  is  not  unlawful  to  purchase  an  interest  in  property  though  adverse 
claims  exist  which  make  litigation  necessary  for  realizing  that  in- 
terest : 

But  is  unlawful  if  the  real  intention  is  to  acquire  a  mere  right  to  sue. 

But  it  is  unlawful  to  purchase  an  interest  merely  for  the  purpose  of 
litigation.  In  other  words,  the  sale  of  an  interest  to  which  a  right  to 
sue  is  incident  is  good  (i)  ;21  but  the  sale  of  a  mere  right  to  sue  is 
bad  (h). 

A  man  who  has  conveyed  property  by  a  deed  voidable  in  equity 
retains  an  interest  not  only  transmissible  by  descent  or  devise,  but 
disposable  inter  vivos,  without  such  disposition  being  champerty.  But 
''  the  right  to  complain  of  a  fraud  is  not  a  marketable  commodity," 
and  an  agreement  whose  real  object  is  the  acquisition  of  such  a  right 
cannot  be  enforced  (I).22  In  like  manner,  a  creditor  of  a  company 
may  well  assign  his  debt,  but  he  cannot  sell  as  incident  to  it  the 
right  to  proceed  with  a  winding-up  petition  (»;).- 

The  payment  of  the  price  being  made  contingent  on  the  recovery 
of  the  property  is  probably  under  any  circumstances  a  sufficient,  but 
is  by  no  means  a  necessary,  condition  of  the  Court  being  satisfied  that 
the  real  object  is  to  traffic  in  litigation.  If  the  purchase  is  made  while 
a  suit  is  actually  pending,  the  circumstance  of  the  purchaser  indem- 
342]  nifyiug  the  vendor  against  costs  may  be  material,  *but  is  not 

(i)    Dickinson   v.    Burrell    (1866)  (I)  Prosser  v.  Edmonds,  last  note ; 

L.  R.  1  Eq.  337,  342,  35  L.  J.  Ch.  371.  De  Hoghton  v.  Money   (1866)  L.  R.  2 

(k)  lb.;  Prosser  v.  Edmonds  (1835)  Ch.  164,  169.     Cp.  Hill  v.  Boyle  (1867) 

1  Y.  &  C.  Ex.  481,  41  R.  R.  322.    Dist.  L.  R.  4  Eq.  260,  and  qu.  whether  the 

Guy  v.   Churchill    (1888)    40   Ch.  D.  right  to  cut  down  an  absolute  convey- 

481,    56    L.   J.    Ch.    670;    bankrupt's  anee  to  a  mortgage  be  saleable :  Seear 

right  of  action  assigned  by  the  trus-  v.  LoAcson  (1880)   15  Ch.  Div.  426,  49 

tee  to   one   creditor    (in   fact   acting  L.  J.  Bk.  69. 

for  himself  and  others),  who  was  to  (m)  Paris  Skating  Rink  Co.  (1877) 

keep   three-fourths    of   the   proceeds ;  5  Ch.  Div.  959. 
held    justifiable    as    a    beneficial    ar- 
rangement for  the  creditors. 

2iTraer  r.  Clews,  115  U.  S.  528;  Edmunds  r.  Illinois  Central  R.  Co.,  80 
Fed.  Rep.  78;  National  Bank  v.  Hancock,  100  Va.  101. 

22Hinchman  i\  Kelley,  49  Fed.  Rep.  492;  Marshall  v.  Means,  12  Ga.  61; 
Norton  v.  Tuttle,  60  111.  130;  Illinois  Land  Co.  v.  Spever,  138  111.  137; 
Storrs  v.  St.  Luke's  Hospital.  ISO  111.  368.  374:  Brush  r.  Sweet,  38  Mich.  574; 
Dickinson  v.  Seaver,  44  Mich.  624;  Smith  v.  Thompson,  94  Mich.  381;  Mor- 
rison r.  Deadrick,  10  Humph.  342;  Crocker  v.  Bellange,  6  Wis.  645;  M.  &  M. 
Railroad  Co.  r.  M.  &  W.  Railroad  Co.,  20  Wis.  174;  J.  V.  Farwell  Co.  r. 
Wolf,  96  Wis.  10.  A  right  of  action  for  damages  from  deceit  is  not  assign- 
able. Dayton  v.  Fargo,  45  Mich.  153;  Zabriskie  ('.  Smith,  13  N.  Y.  322.  See 
further  44  L  R.  A.  177- 


PURCHASE    OF    THINGS    IN    LITIGATION.  457 

alone  enough  to  show  that  the  bargain  is  in  truth  for  maintenance  (n). 
But  the  only  view  which  on  the  whole  seems  tenable  is  that  it  is  a 
question  of  the  real  intention  to  be  collected  from  the  facts  of  each 
case,  for  arriving  at  which  few  or  no  positive  rules  can  be  laid  down. 
There  is  no  champerty  in  an  agreement  to  enable  the  bona  fide 
purchaser  of  an  estate  to  recover  for  rent  due  or  injuries  done  to  it 
previously  to  the  purchase  (o). 

Purchase  of  shares  in  company  with  intention  to  sue  company  or  directors 
at  one's  own  risk  not  maintenance.  It  has  been  decided  in  several  mod- 
ern eases  that  the  purchase  of  shares  in  a  company  for  the  purpose 
of  instituting  a  suit  at  one's  own  risk  lo  restrain  the  governing  body 
of  the  company  from  acts  unwarranted  by  its  constitution  cannot  be 
impeached  as  savouring  of  maintenance  (p).  It  was  recognized  as 
long  ago  as  21  Ed.  III.,  that  a  purchase  of  property  pending  a  suit 
affecting  the  title  to  it  is  not  of  itself  champerty :  "  If  pending  a  real 
action  a  stranger  purchases  the  land  of  tenant  in  fee  for  good  con- 
sideration and  not  to  maintain  the  plea,  this  is  no  champerty"  (q). 

Stat.  32  H.  VIII.  c.  9.    None  shall  buy,  sell,  or  bargain  for  any  right  in  lands 

unless  the  seller  hath  been  in  possession  or  taken  the  profits  for  one  year. 

The  statute  32  H.  VIII.  c.  9,  "Against  maintenance  and  embracery, 

buying  of  titles,  &c."  after  reciting  the  mischiefs  of  "maintenance 

embracery  champerty  subornation  of  witnesses  sinister  labour  buying 

of  titles  and  pretensed  rights  of  persons  not  being  in  possession," 

and   confirming   all   existing   statutes    against  maintenance,    enacts 

that: 

"  No  person  or  persons,  of  what  estate  degree  or  condition  so  ever  he  or 
*they  be,  shall  from  henceforth  bargain  buy  or  sell,  or  by  any  ways  or  [343 
means  obtain  get  or  have,  any  pretensed  rights  or  titles,  or  take  promise  grant 
or  covenant  to  have  any  right  or  title  of  any  person  or  persons  in  or  to  any 
manors  lands  tenements  or  hereditaments,  but  if  such  person  or  persons  which 
shall  so  bargain  sell  give  grant  covenant  or  promise  ■  the  same  their  ante- 
cessors or  they  by  whom  he  or  they  claim  the  same  have  been  in  possession 
of  the  same  or  of  the  reversion  or  remainder  thereof  or  taken  the  rents  or 
profits  thereof  by  the  space  of  one  whole  year  next  before  the  said  bargain 
covenant  grant  or  promise  made.-' 

Penalty  and  saving.  The  penalty  is  forfeiture  of  the  whole  value  of 
the  lands  (s.  2),  saving  the  right  of  persons  in  lawful  possession  to 

(n)    Harrington  v.  Long    (1833-4)  locus  standi  to  set  aside  a  deed  for 

2  M.  &  K.  590,  39  R.  R.  304,  as  cor-  fraud. 

rected  by  Knight  v.  Bowyer,  note   (r)  (0)    Per  Cur.    (Ex.  Ch.)    Williams 

p.    *337,   and    see    Hunter   v.    Daniel  v.  Protheroe  (1829)   5  Bing.  309,  314, 

(1845)  4  Ha.  at  p.  430.    But  the  true  30  R.  R.  608,  613. 

ground  of  the  case  seems  the  same  as  (p)  See  Bloxam  v.  Metrop.  Ry.  Go. 

in  Prosser  v.  Edmonds  and  De  Hogh-  (1868)  L.  R.  3  Ch.  at  p.  353. 

ton  v.  Money,  namely,  that  the  real  (q)  2  Ro.  Ab.  113  B. ;  Y.  B.  21  E. 

object   was   to  give   the   purchaser   a  III.,  10,  pi.  33  [cited  as  52  in  Rolle]  ; 


458  UNLAWFUL   AGREEMENTS. 

buy  in  adverse  claims  (s.  4).23  There  is  no  express  saving  of  grants 
or  leases  by  persons  in  actual  possession  who  have  been  so  for  less 
than  a  year:  but  either  the  condition  as  to  time  applies  only  to  re- 
ceipt of  rents  or  profits  without  actual  possession,  or  at  all  events 
the  intention  not  to  touch  the  acts  of  owners  in  possession  is 
obvious  (r). 

Dealings  held  within  the  statute  — Agreement  to  recover  and  divide  property. 

This,  like  the  other  statutes  against  maintenance  and  champerty,  is 
said  to  be  in  affirmance  of  the  common  law  (s).  It  "is  formed  on 
the  view  that  possession  should  remain  undisturbed.  Dealings  with 
property  by  a  person  out  of  possession  tend  to  disturb  the  actual  pos- 
session to  the  injury  of  the  public  at  large"  (t).  It  is  immaterial 
whether  the  vendor  out  of  possession  has  in  truth  a  good  title  or 
not  (s).  An  agreement  between  two  persons  out  of  possession  of 
lands,  and  both  claiming  title  in  them,  to  recover  and  share  the 
lands,  is  contrary  to  the  policy  of  this  statute,  if  not  champerty  at 
common  law;  therefore  where  co-plaintiffs  had  in  fact  conflicting 
344]  interests,  and  it  *was  sought  to  avoid  the  resulting  difficulty  as 
to  the  frame  of  the  suit  by  stating  an  agreement  to  divide  the  prop- 
erty in  suit  between  them,  this  device  (which  now  would  in  any  case 
be  disallowed  on  more  general  grounds)  (u)  was  unavailing;  for  such 
an  agreement,  had  it  really  existed,  would  have  been  unlawful,  and 
would  have  subjected  the  parties  to  the  penalties  of  the  statute  (x). 

Sale  of  term  by  administrator  out  of  possession.      Where  after  the  death 
of  a  lessee  a  stranger  had  entered,  and  remained  many  years  in  posses- 

but  in  50  Ass.  323,  pi.  3,  the  general  force  a  forfeiture  under  the  statute 

opinion   of   the    Serjeants    is    contra.  the  plaintiff  must  show  that  the  pur- 

Cp.  4  Kent,  Comm.  449.  chaser   knew   the   title   to   be   "  pre- 

(r)    By  Mountague   C.J.   Partridge  tensed"-  Kennedy  v.  Ly 'ell  (1885)   15 

v.  Strange,  Plowd.  88,  cited  in  Doe  d.  Q.  B.  D.  491,  53  L.  T.  466. 

Williams   v.   Evans    (1845)     1    C.   B.  (s)  See  last  note. 

717,  io.  89,  14  L.  J.  C.  P.  237.     See  {t)    Per  Lord  Redesdale,  Cholmon- 

further    Jcnldns    v.    Jones    (1882)     9  deley  v.  Clinton  (1821)  4  Bligh,  at  p. 

(J.  B.  Div.  128,  51  L.  J.  Q.  B.  438,  as  75. 

to  the  meaning  of  "  pretensed  rights  "  (u)  See  Coolce  v.  Cooke  (1864)  4  D. 

and    the    limited    application    of    the  J.   &   S.   704;    Pryse  v.  Pryse    (1872) 

statute  at  the  present  time.     A  right  L.  R.  15  Eq.  86,  42  L.  J.  Ch.  253. 

or   title   which   is   grantable   undeT   8  (x)    Cholmondelcy  v.  Clinton  (1821) 

&  9  Vict.   c.   106,  is  not  now   "pre-  4  Blich,  1,  43,  82,  per  Lord  Eldonand 

tensed  "   merely  because   the  grantor  Lord  Redesdale. 
has  never  been  in  possession.     To  en- 

23  In  most  of  the  States  of  this  country  a  conveyance  by  one  who  has  a 
lawful  claim  to  land  held  adversely  by  another  is  valid ;  for  the  decisions  in 
those  States  where  such  conveyances  are  prohibited,  see  the  notes  to  Ryall  v. 
Rowles.  2  L.  C.  Eq.  (4th  Am.  ed.)  1631  et  seq.;  Chevalier  v.  Carter,  124 
Ala.  520. 


SALE   OF   EXPECTANCY.  459 

sion,  a  sale  of  the  term  by  the  administrator  of  the  lessee  was  held 
void  as  contrary  to  the  statute,  although  in  terms  it  only  forbids  sales 
of  pretended  rights,  &c,  under  penalties,  without  expressly  making 
them  void  (y). 

Sale  of  non-litigious  expectancy.  But  the  sale  of  a  contingent  right  or 
a  mere  expectancy,  not  being  in  the  nature  of  a  claim  adverse  to 
any  existing  possession,  is  not  forbidden.  The  sale  of  a  man's  pos- 
sible interest  as  the  devisee  of  a  living  owner,  on  the  terms  that  he 
shall  return  the  purchase-money  if  he  does  not  become  the  devisee,  is 
not  bad  either  at  common  law  as  creating  an  unlawful  interest  in  the 
present  owner's  death,  or  as  a  bargain  for  a  pretended  title  under  the 
statute  (z).24 

(y)     Doe    d.    Williams    v.    Evans  on,   quite  in   the   spirit  of   our   own 

(1845)   1  C.  B.  717,  14  L.  J.  C.  P.  237.  statute,  to  forbid  in  general  terms  all 

Cp.   above  as  to  the  construction  of  dealings     "in     alienis    rebus    contra 

prohibitory    statutes    in    general,    p.  domini    voluntatem " :     C.    2.     3,    de 

296.  pactis,    30.     By  the   Code  Napoleon, 

(s)   Cook  v.  Field   (1850)    15  Q.  B.  art.    1600     (followed   by   the    Italian 

460,  19  L.  J.  Q.  B.  441.     [Cp.  Lowry  Civil  Code,  art.  1460).     "On  ne  peut 

v.  Spear,  7  Bush,  451.]     By  the  civil  vendre   la  succession   d'une   personne 

law,     however,     such     contracts     are  vivante,  meme  de  son  eonsentement :  " 

regarded     as     contra     oonos     mores.  cp.  791,  1130.    In  Roman  law  the  rule 

"  Huiusmodi  pactiones  odiosae  viden-  that  the  inheritance  of  a  living  per- 

tur  et  plenae  tristissimi  et  periculosi  son  could  not  be  sold  is  put  only  on 

eventus,"   we   read    in   a    rescript   of  the  technical  ground  "  quia  in  z  arum 

Justinian   on   an   agreement   between  natura  non  sit  quod  venierit " :  D.  18. 

expectant  co-heirs  as  to  the  disposal  4.    de  hered.   vel   actione  vendita,    1, 

of  the  inheritance.    The  rescript  goes  and  see  eod.  tit.  7-11. 

24  The   conveyance  by  one   of  his   possible   interest  as   devisee   of   a  living 
owner,  or  heir  of  his  ancestor,  is  the  conveyance  of  a  naked  possibility,  and 
ineffectual  to  pass  any  interest  at  law.     Wheeler's  Exrs.  v.  Wheeler,  2  Met. 
(Ky.)   474;  Needles'  Exr.  v.  Needles,  7  Ohio  St.  432;  Hart  v.  Gregg,  32  Ohio 
St.   502;   Re  Lennig's  Est.,   182   Pa.   485.     But  if  the  conveyance  was   with 
warranty   it   will   operate   by   way   of   estoppel.     Rosenthal   v.   Mayhugh,    33 
Ohio  St.  155,  158.     And  equity  will  give  effect  to  the  conveyance  as  an  agree- 
ment to  convey,  which  will  be  specifically  enforced  as   soon  as  the  grantor 
has  acquired  power  to  perform  it,  if  the  consideration  given  was  fair  and  no 
undue  advantage  was  taken.     Parsons   r.  Ely,  45  111.  232 ;   Galbraith  r.  Mc- 
Lain,  84  111.  379;  Kershaw  r.  Kershaw,  102  111.  307;  Longshore  r.  Longshore, 
200  111.  470;   Gary  v.  Newton,  201  111.   170;   Clendenning  v.  Wyatt,  54  Kan. 
523;  Bacon  v.  Bonham,  33  N.  J.  Eq.  614;  Stover  v.  Eyclesheimer,  4  Abb.  App. 
Dec.  309;  Martin  v.  Marlow,  65  N.  C.  695;  McDonald  v.  McDonald,  5  Jones 
Eq.  211;   Bayler  v.  Commonwealth,  40  Pa.  37;  Power's  Appeal,  63  Pa.  443; 
Re  Fritz's  Est.,   160  Pa.   156;    Re  Kuhn's  Est.,   163   Pa.   438;    Fitzgerald  v. 
Vestal,  4  Sneed,  258;   Steele  v.  Frierson,  85  Tenn.  430;   Hale  r.  Hollon,  90 
Tex.  427;  Fuller  v.  Parmenter,  72  Vt.  362.     In  Abel  v.  Boynton,  7  Mass.  112, 
it  was  held  that  "  a  contract  made  by  an  heir  to  convey,  on  the  death  of  his 
ancestor,  living  the  heir,,  a  certain  undivided  part  of  what  shall  come  to  the 
heir  by  descent,  distribution,  or  devise,  is  a  fraud  upon  the  ancestor,   pro- 
ductive of  public  mischief,  and  void  as  well  at  law  as  in  equity."     In  Fitch 
V.  Fitch,  8  Pick.  480;  Trull  v.  Eastman,  3  Met.  121;  Curtis  v.  Curtis,  40  Me. 
24,  and  Jenkins  v.  Stetson,  9  Allen.  128,  it  was  held  that  such  a  contract  is 
valid  if  made  with  the  consent  of  the  ancestor.     See  also  McClure  v.  Raben 


460  UNLAWFUL   AGREEMENTS. 

Proceedings  in  lunacy  not  within  the  rules  against  champerty.  Proceed- 
ings in  lunacy  seem  not  to  be  within  the  general  rules  as  to  champerty, 
345]  as  they  are  not  analogous  to  ordinary  *litigation,  and  then- 
object  is  the  protection  of  the  person  and  property  of  the  lunatic, 
which  is  in  itself  to  be  encouraged ;  and  "  this  object  would  in  many 
cases  be  impeded  rather  than  promoted  by  holding  that  all  agree- 
ments relative  to  the  costs  of  the  proceedings  or  the  ultimate  division 
of  the  property  were  void"  (a). 

Maintenance  in  general.  As  to  maintenance  in  general,  maintenance 
in  the  strict  and  proper  sense  is  understood  to  mean  only  the  main- 
tenance of  an  existing  suit,  not  procuring  the  commencement  of  a 
new  one.  But  the  distinction  is  in  practice  immaterial  even  in  the 
criminal  law  (b).  It  is  of  more  importance  that  a  transaction  cannot 
be  void  for  champerty  or  maintenance  unless  it  be  "  something  against 
good  policy  and  justice,  something  tending  to  promote  unnecessary 
litigation,  something  that  in  a  legal  sense  is  immoral,  and  to  the 
constitution  of  which  a  bad  motive  in  the  same  sense  is  necessary  "  (c). 
Therefore,  for  example,  a  transaction  cannot  be  bad  for  maintenance 
whose  object  is  to  enable  a  principal  or  other  person  really  interested 
to  assert  his  rights  in  his  own  name  (c).  Nor  is  it  maintenance  for 
several  persons  to  agree  to  prosecute  or  defend  a  suit  in  the  result  of 
which  the3r  have,  or  reasonably  believe  they  have,  a  common  inter- 
346]   est  (d).25    But  a  bargain  to  have  a  share  of  *property  to  be 

(a)  Persse  v.  Persse  (1840)  7  CI.  &  champerty  is  not  in  force  in  India, 

F.  279,  316,  51  R.  R.  22,  29,  per  Lord  and   documents  which   set  up  agree- 

Cottenham.  ments  to  share  the  subject  of  litiga- 

(6)  See  Wood  v.  Dotcnes  (1811)  18  tion,  if  recovered,  in  consideration  of 

Ves.  at  p.  125,  11  R.  R.  164.  supplying  funds  to  carry  it  on,  are 

(e)     Fischer    v.    Kamala    Naicker  not  in  themselves  opposed  to  public 

(1860)     8   Moo.    Ind.    App.    170,    187.  policy ;  but  such  documents  should  be 

This  is  not  necessarily  applicable  in  jealously  scanned,  and,  when  found  to 

England,  being  said  with  reference  to  be   extortionate    and    unconscionable, 

the  law  of  British  India,  where  the  they  are   inequitable   as   against  the 

English     laws     against    maintenance  party  against  whom  relief  is  sought, 

and  champerty  are  not  specifically  in  and    effect    should    not   be    given    to 

force:    see   Ram    Coomar   Coondoo   v.  them":     Kunwar    Ram    Lai    v.    Nil 

Chunder   Canto   Mooter jee    (1876)    2  Kanth  (1893)  L.  R.  20  Ind.  App.  112, 

App.    Ca.    186,   207-9,   and   the   later  115. 

judgment  cited  below.     But  it  fairly  (d)  Findonv.  Parker  (1843)  11  M. 

represents    the    principles    on    which  &  W.  675,  12  L.  J.  Ex.  444;  Plating 

English     judges    have    acted    in    the  Co.    v.    Farquharson    (1881)     17    Ch. 

modern  cases.     "The  English  law  of  Div.  49.     Cp.  2  Ro.  Ab.  115  G. 

125  Ind.  439,  133  Ind.  507 :  Alves  v.  Schlesinger,  81  Kv.  290 ;  McCall's  Adm. 
«.  Hampton,  98  Kv.  166;  Fuller  v.  Parmenter,  72  Vt.  362.  See  13  Yale 
L.  J.  228. 

25  Thompson  i.  Marshall,  36  Ala.  504:  Vaughn  v.  Marable,  64  Ala.  60;  Allen 
!'.  Frazee.  85  Ind.  283;  Bartholomew  Co.  Commrs.  r.  Jameson,  86  Ind.  154: 
Jewel  r.  Neidy,  61  la.  299;  Call  r.  Calef,  13  Met.  362;  Tillman  v.  Searcy,  7 
Humph.  337;  Dorwin  v.  Smith.  35  Vt.  69;  Lewis  v.  Brown,  36  W.  Va]  1; 
Davies  v.  Stowell,  78  Wis.  334;  Gilbert-Arnold  Co.  v.  Superior,  93  Wis.  194. 


CUSTODY    OF    CHILDREN.  461 

recovered  in  a  suit  in  consideration  of  maintaining  the  suit  by  the 
supply  of  money  and  evidence  is  not  saved  from  being  champerty  by 
the  party's  having  a  mere  collateral  interest  in  the  result  of  the 
suit  (e).  Where  a  person  sues  for  a  statutory  penalty  as  a  common 
informer,  it  is  maintenance  to  indemnify  him  against  costs  (/). 

Certain  relations  will  justify  maintenance,  but  not  champerty.  Lineal  kin- 
ship in  the  first  degree  or  apparent  heirship,  and  to  a  certain  extent, 
it  seems,  any  degree  of  kindred  or  affinity,  or  the  relation  of  master 
and  servant,  may  justify  acts  which  as  between  strangers  would  be 
maintenance:26  but  blood  relationship  will  not  justify  champerty  (g). 

(c)  Public  policy  as  to  legal  duties  of  individuals.  As  to  matters  touch- 
ing legal  (and  possibly  moral)  duties  of  individuals  in  the  perform- 
ance of  which  the  public  have  an  interest. 

Agreements  as  to  custody  or  education  of  children.  Certain  kinds  of 
agreements  are  or  have  been  considered  unlawful  and  void  as  pro- 
viding for  or  tending  to  the  omission  of  duties  which  are  indeed 
duties  towards  individuals,  but  such  that  their  performance  is  of 
public  importance.  To  this  head  must  be  referred  the  rule  of  law 
that  a  father  cannot  by  contract  deprive  himself  of  the  right  to  the 
custody  of  his  children  (h)27  or  of  his  discretion  as  to  their  education. 
He  "  cannot  bind  himself  conclusively  by  contract  to  exercise  in  all 
events  in  a  particular  way  rights  which  the  law  gives  him  for  the 
benefit  of  his  children  and  not  for  his  own."  And  an  agreement  to 
that  effect — such  as  an  agreement  made  before  marriage  between  a 
husband   and  wife   of   different   religions   that  boys   shall   be   edu- 

(e)   Hutley  v.  Hutley  (1873)  L.  R.  (g)    Hutley  v.  Hutley,  supra.     See 

8  Q.  B.  112,  42  L.  J.  Q.  B.  52.     But  2  Ro.  Ab.  115,  116. 
the  interest  of  a  bankrupt's  creditors  (h)    Re   Andrews    (1873)    L.   R.   8 

is  more  than   "collateral":    Guy   v.  Q.  B.   153,  sub  nom.  Re  Edwards,  42 

Churchill    (1888)    40   Ch.  D.   481,  56  L.  J.  Q.  B.  99,  and  authorities  there 

L.  J.  Ch.  670.  collected. 

if)  Bradlaugh  v.  Newdegate  (1883) 
11  Q.  B.  D.  1,  52  L.  J.  Q.  B.  454. 

26  Proctor  r.  Cole,  104  Ind.  373;  Perrine  v.  Dunn,  3  Johns.  Ch.  508,  519; 
Thallhimer  v.  Brinkerhoff,  3  Cow.  623,  647;  Gilleland  v.  Failing,  5  Den.  308; 
Barnes  v.  Strong,  1  Jones  Eq.  100;  Wright  v.  Cain,  93  N.  C.  296;  Re  Evans, 
22  Utah,  366;  Barker  v.  Barker,  14  Wis.  131.  And  one  may  lawfully  give 
money  to  a  poor  man  to  enable  him  to  carry  on  his  suit.  Harris  v.  Brisco, 
17  Q.  B.  D.  504;  Perrine  v.  Dunn,  supra;  State  v.  Chitty,  1  Bailey,  379,  401; 
Sherley  v.  Riggs,  11  Humph.  53,  57. 

27  in  re  Besant,  11  Ch.  D.  508,  519;  Queen  v.  Bernardo.  23  Q.  B.  D.  305; 
Johnson  r.  Terry,  94  Conn.  259,  263;  Brooke  v.  Logan,  112  Ind.  183;  Chapsky 
v.  Wood.  26  Kan.  650 ;  Gates  v.  Renfroe,  7  La.  Ann.  569 ;  Matter  of  Scarritt, 
76  Mo.  565;  Albert  v.  Perry,  1  McCarter,  540. 


4G2  UNLAWFUL    AGREEMENTS. 

347]  cated  *in  the  religion  of  the  father,  and  girls  in  the  religion 
of  the  mother — cannot  be  enforced  as  a  contract  (i).28 

After  the  father's  death  the  Court  has  a  certain  discretion.  The 
children  are  indeed  to  be  brought  up  in  his  religion,  unless  it  is  dis- 
tinctly  shown  by  special  circumstances  that  it  would  be  contrary  to 
the  infant's  benefit  (k).  When  such  circumstances  are  in  question, 
however,  the  Court  may  inquire  "  whether  the  father  has  so  acted 
that  he  ought  to  be  held  to  have  waived  or  abandoned  his  right  to 
have  his  children  educated  in  his  own  religion  " ;  and  in  determining 
this  the  existence  of  such  an  agreement  as  above  mentioned  is  mate- 
rial (I).  The  father's  conduct  in  giving  up  the  maintenance,  con- 
trol, or  education  of  his  children  to  others  may  not  only  leave  the 
Court  free  to  make  after  his  death  such  provision  as  seems  in  itself 
best ;  it  may  preclude  him  even  from  asserting  his  rights  in  his 
lifetime  (to).29 

Such  agreements  in  separation  deeds.  Clauses  in  separation  deeds  or 
agreements  for  separation  purporting  to  bind  the  father  to  give  up  the 
general  custody  of  his  children  or  some  of  them,  have  for  the  like 
reasons  been  held  void;  and  specific  performance  of  an  agreement 
to  execute  a  separation  deed  containing  such  clauses  has  been  re- 
fused («).  In  one  case,  however,  such  a  contract  can  be  enforced; 
namely,  where  there  has  been  such  misconduct  on  the  father's  part 
that  the  Court  would  have  interfered  to  take  the  custody  of  the 
children  from  him  in  the  exercise  of  the  appropriate  jurisdiction  and 
on  grounds  independent  of  contract.  The  general  rule  is  only  that 
the  custody  of  children  cannot  be  made  a  mere  matter  of  bargain, 
348]  not  *that  the  husband  can  in  no  circumstances  bind  himself  not 
to  set  up  his  paternal  rights  (o). 

(i)   Andrews  v.  Salt    (1873)   L.  R.  2  Be  G.  t  J.  249,  250.  27  L.  J.  Ch. 

8  Ch.  622,  636.  222.      As   to   the   validity    of   partial 

(k)    Hawksworth    v.    Hawksworth  restrictions    of   the   husband's    right, 

(1871)   L.  R.  6  Ch.  539,  40  L.  J.  Ch.  Hamilton  v.   Hector    (1871)    L.  R.  6 

534.  Ch.  701,  L.  R.  13  Eq.  511,  40  L.  J.  Ch. 

(1)  Andrews  v.  Salt  (1873)  L.  R.  8  692. 

Ch.  at  p.  637.  (o)   Swift  v.  Swift   (1865)   4  D.  F. 

(m)     Lyons    v.    Blenkin     (1820-1)  &  J.  710,  714,  34  L.  J.  Ch.  209,  394, 

Jac.  245,  255.  263,  23  R.  R.  38.  and  see  the  remarks  in  L.  R.  6  Ch. 

(n)  Vansittart  v.  Vansittart  (1858)  705,  L.  R.   13  Eq.  520. 

28/?e  Nevin,   [1891]   2  Ch.  299. 

29  See  Smart  r.  Smart,  [1892]  A.  C.  425;  United  States  v.  Sauvage,  91  Fed. 
Rep.  490;  Bonnett  r.  Bonnett,  61  la.  199;  Chapsky  r.  Wood,  26  Kan.  650; 
Matter  of  O'Neal,  3  A.  L.  Rev.  578;  Pool  v.  Gott,  14  Law  Rep.  269;  Sturte- 
vant  v.  State,  15  Neb.  459  ;  Clark  r.  Bayer,  32  Ohio  St.  299 ;  Enders  v.  Enders, 
164  Pa.  266;  Hoxie  v.  Potter,  16  R.  I.  374;  Merritt  r.  Swimley,  82  Va.  433; 
Stringfellow  v.  Somerville,  95  Va.  701;  Green  v.  Campbell,  35  W.  Va.  698; 


RESTRICTIVE  AGREEMENTS.  463 

36  &  37  Vict.  c.  i2,  s.  2.     The  law  on  this  point  is  now  modified  by 

the  Act  36  &  37  Vict.  c.  12,  which  enacts  (s.  2)  that 

"No  agreement  contained  in  any  separation  deed  between  the  father  and 
mother  of  an  infant  or  infants  shall  be  held  to  be  invalid  by  reason  only  of  its 
providing  that  the  father  of  such  infant  or  infants  shall  give  up  the  custody 
or  control  thereof  to  the  mother:  Provided  always,  that  no  Court  shall  en- 
force any  such  agreement  if  the  Court  shall  be  of  opinion  that  it  will  not  be 
for  the  benefit  of  the  infant  or  infants  to  give  effect  thereto." 

This  Act  does  not  enable  a  father  to  delegate  his  general  rights 
and  powers  as  regards  his  infant  children  (p). 

Mother  of  illegitimate  child.  The  mother  of  an  illegitimate  child  has 
parental  duties  and  rights  recognized  by  the  law  (q),  and  cannot 
deprive  herself  of  them  by  contract  (r). 

Doctrine  as  to  separation  deeds  in  general  based  on  same  ground.  The  ob- 
jections formerly  entertained  (as  we  have  seen)  first  against  separa- 
tion deeds  in  general,  and  afterwards  down  to  quite  recent  times 
against  giving  full  effect  to  them  in  courts  of  equity,  were  based  in 
part  upon  the  same  sort  of  grounds :  and  so  are  the  reasons  for  which 
agreements  providing  for  a  future  separation  have  always  been  held 
invalid.  For  not  the  parties  alone,  but  society  at  large  is  interested 
in  the  observance  of  the  duties  incident  to  the  marriage  contract,  as 
a  matter  of  public  example  and  general  welfare. 

So  as  to  sale  of  offices.  Considerations  of  the  same  kind  enter  into 
the  policy  of  the  law  with  respect  to  the  sale  of  offices,  also  spoken  of 
above.  Such  transactions  clearly  involve  the  abandonment  or  eva- 
sion of  distinct  legal  duties. 

Insurance  of  seamen's  wages.  On  similar  grounds,  again,  seamen's 
wages,  or  any  *remuneration  in  lieu  of  such  wages,  cannot  be  [349 
the  subject  of  insurance  at  common  law  (s).  The  reason  of  this  is 
said  to  be  "  that  if  the  title  to  wages  did  not  depend  upon  the  earning 
of  freight  by  the  performance  of  the  voyage,  seamen  would  want  one 
great  stimulus  to  exertion  in  times  of  difficulty  and  danger"  (t). 
This  reason,  however,  is  removed  in  England  by  the  Merchant  Ship- 

(p)  Re  Besant  (1879)   11  Ch.  Div.  (r)    Humphrys  v.   Polak   [1901]    2 

508,  518,  48  L.  J.  Ch.  497.  K.  B.  385,  70  L.  J.  K.  B.  752,  C.  A. 

(?)    Bwnwdo  v.   MoHugh   [1891]  (s)  Webster  v.  Be  Tastet  (1797)  7 

A.  C.  388,  61  L.  J.  Q.  B.  721.  T.  R.  157,  4  R.  R.  402. 

(t)  Kent,  Coram.  3.  269. 

Cunningham  v.  Barnes,  37  W.  Va.  746;  Fletcher  v.  Hickman,  50  W.  Va.  244; 
Re  Goodenough,  19  Wis.  274;  Sheers  v.  Stein,  75  Wis.  44.  The  right  of  the 
father  is  the  secondary,  the  best  interest  and  welfare  of  the  child,  the  par- 
amount question.    See  further,  27  L.  R.  A.  56,  n. 


464  UNLAWFUL   AGEEEMKXTS. 

ping  Act,  1894  (57  &  58  Vict.  c.  60,  s.  157),  which  makes  the  right 
to  wages  independent  of  freight  being  earned.  The  question  has  not 
yet  presented  itself  for  decision  whether  the  rule  founded  upon  it  is 
to  he  considered  as  removed  also. 

Agreements  against  social  duty.  It  has  never  been  decided,  but  it 
seems  highly  probable,  that  agreements  are  void  which  directly  tend  to 
discourage  the  performance  of  social  and  moral  duties.  Such  would 
be  a  covenant  by  a  landowner  to  let  all  his  cultivable  land  lie  waste, 
or  a  clause  in  a  charter-party  prohibiting  deviation  even  to  save 
life  («). 

(d)  Public  policy  as  to  freedom  of  individual  action.  As  to  agreements 
unduly  limiting  the  freedom  of  individual  action. 

There  are  certain  points  in  which  it  is  considered  that  the  choice 
and  free  action  of  individuals  should  be  as  unfettered  as  possible. 
As  a  rule  a  man  may  bind  himself  to  do  or  omit,  or  procure  another 
to  do  or  omit,  anything  which  the  law  does  not  forbid  to  be  done  or 
left  undone.  The  matters  as  to  which  this  power  is  specially  limited 
on  grounds  of  general  convenience  are : — 

( a )   Marriage. 

(/?)   Testamentary  dispositions. 

(r)   Trade. 

(a)  Marriage.  Marriage  is  a  thing  in  itself  encouraged  by  the 
law;  the  marriage  contract  is  moreover  that  which  of  all  others 
350]  *should  be  the  result  of  full  and  free  consent. 

"  Marriage  brokage "  agreements  void.  Certain  agreements  are  there- 
fore treated  as  against  public  policy  either  for  tending  to  impede  this 
freedom  of  consent  and  introduce  unfit  and  extraneous  motives  into 
the  contracting  of  particular  marriages,  or  for  tending  to  hinder 
marriage  in  general.  The  first  class  are  the  agreements  to  procure 
or  negotiate  marriages  for  reward,  which  are  known  as  marriage 
brokage  contracts.  All  such  agreements  are  void  (x),30  and  services 
rendered  without  request  in  procuring  or  forwarding  a  marriage  (at 
all  events  a  clandestine  or  improper  one)  are  not  merely  no  consider- 

(«)   Per  Cockburn  C.J.  5  C.  P.  D.  (x)   E.g.  Cole  v.   Gibson   (1756)    1 

at  p.  305.  Ves.    Sr.   503.      See   Story,   Eq.   Jur. 

§  260  sqq. 

30  Morrison  v.  Rogers,  115  Cal.  252;  Hellen  v.  Anderson,  83  111.  App.  506; 
Johnson  v.  Hunt,  81  Kv.  321;  State  r.  Towle,  80  Me.  287;  Boynton  v.  Hub- 
bard. 7  Mass.  112,  118';  Fuller  v.  Dame,  18  Pick.  472,  481;  Ancliff  J.  June, 
81  Mich.  477;  Duval  v.  Wellman,  124  N.  Y.  156;  Crawford  v.  Russell,  62 
Barb.  92;  Jangraw  r.  Perkins,  56  Atl.  Rep.  532   (Vt). 


RESTRAINT   OF   MARRIAGE.  465 

ation,  but  an  illegal  consideration,  for  a  subsequent  promise  of  reward, 
which  promise,  even  if  under  seal,  is  therefore  void  (y).  The  law 
is  said  to  be  comparatively  modern  on  this  head:  but  it  has  already 
ceased  to  be  of  any  practical  importance  (z). 

Agreement  in  general  restraint  of  marriage  void.  We  pass  on  to  the 
second  class,  agreements  "  in  restraint  of  marriage "  as  they  are 
called.  An  agreement  by  a  bachelor  or  spinster  not  to  marry  at  all 
is  clearly  void  (a) ;  so,  it  seems,  would  be  a  bare  agreement  not  to 
marry  within  a  particular  time  (i)-31  In  Lowe  v.  Peers  (c)  a  cove- 
nant not  to  marry  any  person  other  than  the  covenantee  was  held 
void.  A  promise  to  marry  nobody  but  A.  B.  cannot  be  construed  as  a 
promise  to  marry  A.  B.  and  is  thus  in  mere  restraint  of  marriage :  and 
even  if  it  could,  it  was  thought  doubtful  whether  an  unilateral  cove- 
nant to  marry  A.  B.  would  be  valid,  A.  B.  not  being  bound  by  any 
reciprocal  promise  (d).  -Lord  Mansfield  threw  out  the  *opinion  [351 
(not  without  followers  in  our  own  time)  (e),  that  even  the  ordinary 
contract  by  mutual  promises  of  marriage  is  not  free  from  mischievous 
consequences.  The  decision  was  affirmed  in  the  Exchequer  Chamber, 
where  it  was  observed  that : — 

"  Both  ladies  and  gentlemen  .  .  .  frequently  are  induced  to  promise 
not  to  marry  any  other  persons  but  the  objects  of  their  present  passion ; 
and  if  the  law  should  not  rescind  such  engagements  they  would  become 
prisoners  for  life  at  the  will  of  most  inexorable  jailors — disappointed 
lovers"  (f).82 

(y)  Williamson  v.  Gihon  (1805)   2  (b)  Hartley  v.  Rice  (1808)  10  East, 

Sch.  &  L.  357.  22,  10  R.  R.  228   (a  wager) . 

(z)   In  the  Roman  law  these  con-  (c)    (1768)  4  Burr.  2225,  in  Ex.  Ch. 

tracts  were  good  apart  from  special  Wilm.  364. 

legislation:    they  were  limited  as  to  (d)   But  of  this  qu. :  for  a  refusal 

amount    (though  with  an  expression  by  A.  B.  to  marry  on  request  within 

of  general  disapproval)   by  a  consti-  a  reasonable  time  would  surely  dis- 

tution  preserved  only  in  a  Greek  epi-  charge  the  promisor  on  general  prin- 

tome:     C.  5.  1.  de  sponsalibus,  &c.  6.  ciples.     Cp.  Cock  v.  Richards   (1805) 

The  Austrian  Code  agrees  with  our  10  Ves.  429.  8  R.  B.  23. 
law  (§879).  (e)    4  Burr.  2230;    per  Martin  B. 

(a)  Lowev.  Peers  (1768)  Wilmot,  Hall  v.  Wright  (1858)   E.  B.  &  E.  at 

371:  where  it  is  said  that  it  is  a  con-  p.  788,  29  L.  J.  Q.  B.  at  p.  49. 
tract    to    omit    a    moral    duty,    and  (f)  Wilm.  371. 

"tends  to  depopulation,  the  greatest 
of  all  political  sins." 

31  State  v.  Towle,  80  Me.  287;  Sterling  v.  Sinnickson,  2  South.  756.  A 
contract  to  pay  a  sum  of  money  on  condition  that  the  payee  do  not  marry 
within  a  given  time,  and  if  he  do,  then  to  pay  a  certain  sum  per  day  during 
the  time  he  shall  have  remained  unmarried  is  illegal  and  void.  White  v. 
Equitable  Nuptial  Benefit  Union,  76  Ala.  251;  Chalfant  v.  Payton,  91  Ind. 
202.     Cp.  Jones  v.  Jones,  1  Col.  App.  28. 

In  King  v.  King,  63  Ohio  St.  363,  it  was  held  that  a  promise  not  to  marry 
though  void  was  not  illegal,  and  having  been  performed  entitled  the  promisor 
to  the  agreed  consideration. 

32  Conrad  v.  Williams,  6  Hill,  444.     But  see  Brown  v.  (Mill,  104  Tenn.  250. 

30 


466  UNLAWFUL   AGREEMENTS. 

Covenant  not  to  revoke  will.  A  covenant  not  to  revoke  a  will  is  not  void 
as  being  a  covenant  not  to  marry,  though  the  party's  subsequent  mar- 
liage  would  revoke  the  will  by  operation  of  law.  As  a  covenant  not  to 
revoke  the  will  in  any  other  way  it  is  good;  but  the  party's  marriage 
gives  no  ground  of  action  as  for  a  breach  (g).33 

As  to  conditions  in  restraint  of  marriage.  In  the  absence  of  any  known 
express  decision,  it  may  be  gathered  from  the  analogy  of  the  cases 
on  conditions  in  restraint  of  marriage  (which  hardly  occur  except 
in  wills)  that  a  contract  not  to  marry  some  particular  person,  or 
any  person  of  some  particular  class,  would  be  good  unless  the  real 
intention  appeared  to  be  to  restrain  marriage  altogether;  and  that 
a  contract  by  a  widow  or  widower  not  to  marry  at  all  would  prob- 
ably be  good  (h). 

The  rule  against  such  conditions,  at  first  adopted  from  the  eccles- 
iastical courts  on  grounds  of  public  policy,  has  been  so  modified  in  its 
application  by  courts  of  equity  that  it  can  now  be  treated  only  as  an 
arbitrary  rule  of  construction  (i).  By  the  law  of  France  promises  of 
352  ]  marriage  are  *invalid,  "  comme  porfant  atteinte  a  la  liberte 
illimitee  qui  doit  exister  dans  les  manages  " :  nevertheless  if  actual 
special  damage  (prejudice)  can  be  shown  to  have  resulted  from  non- 
fulfilment  of  the  promise,  the  amount  of  it  can  be  recovered,  it  would 
seem  as  due  ex  delicto  rather  than  ex  contractu  (fc). 

(/?.)  Agreement  to  influence  testator.  An  agreement  to  use  influence 
with  a  testator  in  favour  of  a  particular  person  or  object  is  void  (I).3* 
On  the  other  hand,  it  is  well  established  that  a  man  may  validly  bind 
himself  or  his  estate  by  contract  to  make  any  particular  disposition 
(if  in  itself  lawful)  by  his  own  will  (m).35    Such  contracts  were  not 

(a)  Robinson  v.  Ommanney  (1883)  (I)  Debenham  v.  Ox  (1749)   1  Ves. 

21   Ch.   D.   780,  23   Ch.  Div.   285,   52  Sr.  276. 
L.  J.  Ch.  440.  (m)   De  Beil  v.  Thomson  (1841)   3 

(h)  See  Scott  v.  Tyler  (1788)  in  2  Beav.  469,  s.  c.  nom.  Hammersley  v. 
Wh.  &  T.  L.  C.  and  notes;  and,  as  Baron  de  Beil  (1845)  12  CI.  &  F.  45; 
to  a  supposed  difference  between  the  Brookman's  trusts  (1869)  L.  R.  5  Ch. 
rules  applicable  to  real  and  personal  182.  39  L.  J.  Ch.  138.  Whether  » 
estate,  Jlr.  Cyprian  Williams  in  L.  Q.  covenant  to  exercise  a  power  of  testa- 
It.  xii.  36.  mentary  appointment  in  a  particular 

(i)  See  per  Jessel  M.  R.  Bellairs  v.  wav  be  valid,  quaere:  Thacker  v.  Key 

Bellairs  (1874)   L.  R.  18  Eq.  510,  516,  (1869)    L.   R.   8   Eq.   408;    Bulteel  v. 

43  L.  J.  Ch.  669.    The  last  case  on  the  Plummer    (1870)    6  Ch.  D.   160;   per 

subject  is  In  re  Nourse  [1899]  1  Ch.  Brett  L.J.  Palmer  v.  Locke  (1880)  15 

63,  68  L.  J.  Ch.  15.  Ch.  Div.  at  p.  300. 

(k)   See  notes  in  Sirey  and  Gilbert 
on  Code  Civ.  art.  1142,  Nos.  11-19. 

33  Gall  v.  Gall,  64  Hun,  600. 

34  Fuller  v.  Dame,  18  Pick.  472.  481. 

35  Robinson  v.  Handel],  3  Cliff.  169;  Bolman  r.  Overall,  80  Ala.  457;  Hud- 
son v.  Hudson,  87  Ga.  678;  Vanvactor  ?'.  State,  113  fnd.  276;  Bird  i.  Jacobus, 


RESTRAINT   OF  TRADE.  467 

recognized  by  Eoinan  law  (n),  and  even  a  gift  inter  vivos  of  all  the 
donor's  after-acquired  property  would  have  been  bad  as  an  evasion 
of  the  rule :  but  in  the  modern  law  of  Germany,  as  with  us,  a  con- 
tract of  this  sort  (Erbvertrag)  is  good  (o). 

( y. )    Agreements  in  restraint  of  trade. 

General  principle:  Restrictive  agreements  allowed  if  reasonable  in  interest 
of  parties,  and  not  injurious  to  public.  This  class  of  cases  presents  a 
singular  example  of  the  common  law,  without  aid  from  legislation  and 
without  any  manifest  discontinuity,  having  practically  reversed  its 
older  doctrine  in  deference  to  the  changed  conditions  of  society  and 
the  requirements  of  modern  commerce.  The  original  principle  is 
that  a  man  ought  not  to  be  allowed  to  restrain  himself  by  contract 
from  exercising  any  lawful  *craft  or  business  at  his  own  dis-  [353 
cretion  and  in  his  own.  way.  It  is  still  true  that  "  all  interference 
with  individual  liberty  of  action  in  trading,  and  all  restraints  of 
trade  of  themselves,  if  there  is  nothing  more,  are  contrary  to  public 
policy,  and  therefore  void."  So  the  rule  is  expressed  by  Lord  Mac- 
naghten  in  what  is  now  the  governing  decision  (p).  "  But,"  he  con- 
tinues, "there  are  exceptions:  restraints  of  trade  and  interference 
with  individual  liberty  of  action  may  be  justified  by  the  special  cir- 
cumstances of  a  particular  case."  The  exceptions  were  introduced  with 
much  hesitation,  and  were  long  supposed  to  be  confined  within  in- 
flexible limits.     But  the  former  attempts  at  strict  definition  have 

(re)   Stipulatio  hoc  modo  concepta:  (o)    Savigny,   Syst.  4,    142-5;    and 

Si   heredem  me  non   feceris,   tantum  now  by  German   Civil   Code,   s.   2274 

dare  spondes  ?  inutilis  est,  quia  contra  sqq.,  subject  to  requirements  of  form, 
bonos  mores  est  haec  stipulatio.     D.  (p)    Nordenfelt   v.    Maocim-Norden- 

45.  1.  de  v.  o.  61.  felt,  cC-c.  Co.  [1894]  A.  C.  535,  565. 

113  la.  194;  McGuire  v.  McGuire,  11  Bush,  142;  Wellington  v.  Apthorp,  145 
Mass.  73;  Carmichael  v.  Carmichael,  72  Mich.  76;  Newton  v.  Newton,  46 
Minn.  33 ;  Wright  v.  Tinsley,  30  Mo.  389 ;  Gupton  v.  Gupton,  47  Mo.  37 ;  Sut- 
ton v.  Havden,  62  Mo.  101;  Johnson  v.  Hubbeil,  2  Stockt.  332;  Schutt  v.  Mis- 
sionary S*oc,  41  N.  J.  Eq.  115;  Pflugar  v.  Pultz,  43  N.  J.  Eq.  440;  Parsell  v. 
Stryker,  41  N.  Y.  480;  Hall  v.  Gilman,  77  N.  Y.  App.  Div.  458;  Logan  v.  Mc- 
Ginnis,  12  Pa.  27;  Rivers  (•.  Rivers'  Exrs.,  3  Desaus.  190;  Smith  v.  Pierce,  65 
Vt.  200;  Bryson  v.  McShane,  48  W.  Va.  126.  Cp.  Brewer  v.  Hieronymus,  19 
Ky.  L.  Rep.  645. 

Such  a  promise  may  be  specifically  enforced.  See  Barrett  v.  Geisinger,  179 
111.  240;  Bolman  v.  Overall,  80  Ala.  457;  Hall  v.  Gilman,  77  N.  Y.  App.  Div. 
458;  Emery  v.  Darling,  50  Ohio  St.  160;  Fogel  v.  Church,  48  S.  C.  86.  And 
see  1  Ames,  Eq.  Jur.  146,  n. 

If  a  contract  is  made  to  devise  particular  real  estate  and  afterwards  the 
promisor  conveys  it  away,  the  promisee  may  sue  at  once.  Synge  v.  Synge, 
[1894]   1  Q.  B.'467;  Whitnev  v.  Hay,  181  TJ.  S.  77. 

A  voluntary  covenant  that  the  covenantor's  executors  shall  rjay  a  certain 
sum  on  the  death  of  the  covenantor  is  valid.    Krell  r.  Codman,  154  Mass.  454. 


468  UNLAWFUL   AGREEMENTS. 

proved  inapplicable.  As  the  law  is  now  laid  down,  "  it  is  a  sufficient 
justification,  and  indeed  the  only  justification,  if  the  restriction  is 
reasonable — reasonable,  that  is,  in  reference  to  the  interests  of  the 
parties  concerned  and  reasonable  in  reference  to  the  interests  of  the 
public,  so  framed  and  so  guarded  as  to  afford  adequate  protection  to 
the  party  in  whose  favour  it  is  imposed,  while  at  the  same  time  it  is 
in  no  way  injurious  to  the  public."  36 

36  Recent  American  cases  on  the  question  of  covenants  by  the  seller  of  a 
business  or  by  an  employee  not  to  engage  in  the  same  business  generally 
follow  the  modern  English  rule  that  the  validity  of  the  covenant  depends 
upon  the  reasonableness  of  the  restraint,  in  view  of  what  was  fairly 
necessary  to  protect  the  covenantee.  Fisheries  Co.  v.  Lennen,  116  Fed. 
Rep.  217;  Harrison  r.  Glucose  Co.,  116  Fed.  Rep.  304  (C.  C.  A.);  National 
Co.  v.  Haberman,  120  Fed.  Rep.  415;  S.  Jarvis  Adams  Co.  v.  Knapp, 
121  Fed.  Rep.  34;  Thibodeau  v.  Hildreth,  124  Fed.  Rep.  892  (C.  C.  A.); 
Gregory  v.  Spieker,  110  Cal.  150;  Ryan  v.  Hamilton,  205  111.  191;  Eisel 
r.  Hayes,  141  Ind.  41;  Swigert  v.  Tilden,  121  la.  650;  Davis  v.  Brown, 
98  Ky.  475;  Anchor  Electric  Co.  v.  Hawkes,  171  Mass.  101  (modify- 
ing earlier  Massachusetts  decisions)  ;  Buck  v.  Coward,  122  Mich.  530;  Kron- 
schnabel-Smith  Co.  v.  Kronschnabel,  87  Minn.  230;  Bancroft  v.  Union  Em- 
bossing Co.,  72  N.  H.  402;  Althen  r.  Vreeland,  (N.  J.  Eq.)  36  Atl.  Rep.  479; 
Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473;  Tode  r.  Gross,  127  N.  Y.  480; 
Magnolia  Metal  Co.  v.  Price,  65  N.  Y.  App.  Div.  276;  Cowan  r.  Fairbi other, 
118  N.  C.  406;  Shute  v.  Heath,  131  N.  C.  281;  Hulen  v.  Earel,  (Okl.)  73  Pac. 
Rep.  927;  Herreshoff  r.  Boutineau,  17  R.  I.  3;  Tillinghast  v.  Boothby,  20 
R.  I.  59. 

But  in  Lufkin  Rule  Co.  v.  Fringeli,  57  Ohio  St.  596,  the  court  held  that 
a  covenant  by  the  seller  of  a  business  that  he  will  not  engage  in  the  same 
business  in  the  United  States  for  a  period  of  twenty-five  years  was  invalid 
as  necessarily  tending  to  create  a  monopoly  whether  it  was  necessary  or  not 
to  the  reasonable  enjoyment  of  the  good-will  purchased.  See  also  Lanzit 
v.  J.  W.  Sefton  Mfg.  Co.,  184  111.  326;  Union  Strawboard  Co.  v.  Bonfield, 
193  111.  420;  United  States  r.  Mallinckrodt  Works,  83  Mo.  App.  6;  Mal- 
Hnckrodt  Works  v.  Nemnich,  169  Mo.  388 ;  Berlin  Works  v.  Perry,  71  Wis. 
495. 

An  agreement  between  competitors  to  restrict  production,  maintain  prices, 
or  limit  competition  in  any  other  way  than  by  the  purchase  of  the  business 
of  one  of  the  competitors  is  illegal.  Urmston  v.  Whitelegg,  63  L.  T.  N.  S.  455; 
Gibbs  v.  Baltimore  Gas  Co.,  130  U.  S.  408;  United  States  v.  Joint  Traffic  Assoc, 
171  U.  S.  505;  Oliver  r.  Gilmore,  52  Fed.  Rep.  562;  United  States  v.  Trans- 
Missouri  Freight  Assoc,  58  Fed.  Rep.  58,  166  U.  S.  290;  National  Harrow  Co. 
r.  Quick,  67  Fed.  Rep.  130;  National  Harrow  Co.  v.  Hench,  76  Fed.  Rep.  667; 
Santa  Clara  Co.  v.  Haves,  76  Cal.  387;  Pacific  Co.  r.  Adler,  90  Cal.  110; 
Craft  v.  McConoughy,  79  111.  346;  People  r.  Chicago  Gas  Co.,  130  111.  268; 
Bishop  i".  American  Preservers'  Co.,  157  111.  284;  Anderson  v.  Jett,  89  Ky. 
375;  Houston  v.  Kentlinger,  91  Ky.  333;  ^Etna  Ins.  Co.  ;:.  Commonwealth,  106 
Ky.  864,  879;  India  Association  v.  Kock,  14  La.  Ann.  168;  Fabaeker  r.  Bryant, 
46  La.  Ann.  820;  Richardson  v.  Buhl,  77  Mich.  632;  Lovejoy  r.  Michels,  88 
Mich.  15;  Clark  v.  Needham,  125  Mich.  130;  Mobile  R.  Co.  v.  Postal  Tel.  Co., 
76  Miss.  731;  State  v.  Nebraska  Distilling  Co.,  29  Neb.  700;  De  Witt 
Co.  v.  New  Jersey  Co.,  14  N.  Y.  Supp.  277 ;  Arnot  v.  Pittston  Coal  Co.,  68 
N.  Y.  558;  Leonard  r.  Poole,  114  N.  Y.  371;  People  v.  North  River  Sugar 
Refg.  Co.,  121  N.  Y.  582;  Judd  r.  Harrington,  139  N.  Y.  105;  Cummings  v. 
Union  Stone  Co.,  164  N.  Y.  401 ;  Cohen  v.  Berlin  Envelope  Co.,  166  N.  Y.  292; 
Culp  p.  Love.  127  N.  C.  457;  Central  Salt  Co.  v.  Guthrie,  35  Ohio  St.  666; 
Emery  r.  Ohio  Candle  Co..  47  Ohio  St.  320;  Morris  Run  Coal  Co.  r.  Barclay 
Coal  Co.,  68  Pa.  173;  Nester  i.  Continental  Brewing  Co.,.161  Pa.  473;  Mai- 


RESTRAINT  OF  TRADE.  469 

No  universal  test  can  be  assigned  for  ascertaining  what  is  reason- 
able, not  even  the  rule  formerly  accepted  that  the  restraint  con- 
tracted for  must  be  limited  in  space,  or  in  some  sense  not  in  "  general 
restraint  of  trade."  The  precise  object  of  the  contract,  and  the 
nature  and  extent  of  the  business  interest  to  be  protected,  must  be 
considered  in  every  case.  The  kinds  of  contracts  involving  restraint 
of  trade  which  usually  occur  in  modern  practice   are  agreements 

lory  r.  Hanaur  Oil  Works,  86  Tenn.  598;  Texas  Oil  Co.  r.  Adoue,  83  Tex.  650; 
Queen  Ins.  Co.  v.  Texas,  86  Tex.  250;  Milwaukee  Assoc,  r.  Niezerowski,  95 
Wis.  129. 

Cp.  Herriman  v.  Menzies,  115  Cal.  16;  Stovall  v.  MeCutchen,  (Ky.  App.) 
54  S.  W.  Rep.  969;  Central  Shade  Roller  Co.  v.  Cushman,  143  Mass.  353; 
Gloucester  Glue  Co.  v.  Russia  Cement  Co.,  154  Mass.  92;  Star  Publishing  Co. 
v.  Associated  Press,  159  Mo.  410;  Oakdale  Mfg.  Co.  v.  Garst,  18  R.  I.  484. 

An  agreement  by  a  railway  company  to  give  a  single  telegraph  company  the 
exclusive  right  of  establishing  a  line  of  telegraphic  communication  along  its 
road  is  void,  being  both  in  restraint  of  trade,  and  contrary  to  the  policy  of 
§  5263,  Rev.  Stat.  U.  S.  United  States  r.  Union  Pac.  Rv.  Co.,  160  U.  S.  1; 
W.  U.  Tel.  Co.  v.  B.  &  S.  Ry.  Co.,  3  McCrary,'  130;  W.  U.  Tel.  Co.  P.  A.  U. 
Tel.  Co.,  9  Biss.  72;  W.  U.  Tel.  Co.  v.  Nat.  Tel.  Co.,  19  Fed.  Rep.  660;  W.  U. 
Tel.  Co.  v.  Balto.,  etc.,  Tel.  Co.,  23  Fed.  Rep.  12 ;  Mobile  R.  Co.  v.  Postal  Tel. 
Co.,  76  Miss.  731.  And  see  W.  Va.  Transp.  Co.  v.  Pipe  Line  Co.,  22  W.  Va. 
600;  W.  U.  Tel.  Co.  v.  A.  U.  Tel.  Co.,  65  Ga.  160;  St.  Louis,  &c.  R.  Co.  V. 
Postal  Tel.  Co.,  173  111.  508. 

But  a  railroad  company  may  grant  a  sleeping-car  company  the  exclusive 
right  for  a  number  of  years  to  furnish  drawing-room  and  sleeping  cars  on  its 
line.     Chicago,  &c.  R.  Co.  v.  Pullman  Co.,  139  U.  S.  79. 

A  covenant  in  a  lease  that  the  lessee  will  sell  on  the  leased  premises  no 
beer  except  that  manufactured  by  a  certain  brewing  company  was  held  not 
illegal  in  Ferris  v.  American  Brewing  Co.,  155  Ind.  539.  See  also  Clay  v. 
Powell,  85  Ala.  538;  Sutton  v.  Head,  86  Ky.  156;  Herpolsheimer  v.  Funke, 
95  N.  W.  Rep.  687  (Neb.).  Cp.  Crawford  v.  Wick,  18  Ohio  St.  190;  Fuqua 
v.  Pabst  Co.,  90  Tex.  298. 

An  agreement  between  parties  to  deal  exclusively  with  one  another  may 
also  be  valid.  Donnell  v.  Bennett,  22  Ch.  D.  835;  Chesapeake  Fuel  Co.  v. 
United  States,  115  Fed.  Rep.  610  (C.  C.  A.);  Keith  r.  Herschberg  Co.,  48 
Ark.  138;  Schwalm  r.  Holmes,  49  Cal.  665;  Brown  v.  Rounsavell,  78  111. 
589 ;  Trentman  v.  Wahrenberg,  30  Ind.  App.  304 ;  Roller  v.  Ott,  14  Kan.  609 ; 
Saddlery  Mfg.  Co.  v.  Hillsborough  Mills,  68  N.  H.  216;  New  York  Rock  Co. 
v.  Brown,  61  N.  J.  L.  536;  George  v.  East  Tenn.  Co.,  15  Lea,  455.  Cp.  Walsh 
v.  Association,  97  Mo.  App.  280. 

And  many  agreements  in  regard  to  articles  manufactured  under  a  patent 
or  a  secret  process  are  sustained  though  their  object  is  to  keep  up  prices  or 
maintain  a  monopoly.  Fowle  r.  Park,  131  U.  S.  88;  Bement  r.  National  Har- 
row Co.,  186  U.  S.  70;  United  States  Raisin  Co.  v.  Griffin,  126  Fed.  Rep.  364; 
Garst  v.  Harris,  177  Mass.  72;  Standard  Co.  v.  St.  Louis  Co.,  177  Mo.  559; 
Tode  v.  Gross,  127  N.  Y.  480;  Walsh  v.  Dwight,  40  N.  Y.  App.  Div.  513:  Park 
v.  National  Assoc,  175  N.  Y.  1.  Cp.  Merz  Capsule  Co.  v.  Capsule  Co.,  67  Fed 
Rep.  414. 

The  Federal  Congress  and  a  number  of  States  have  passed  statutes  reinforc- 
ing and  extending  the  common  law  rules  against  restraint  of  trade,  and  fre- 
quently making  it  a  criminal  offense  to  enter  into  such  contracts.  These  stat- 
utes and  the  decisions  upon  them  are  collected  in  64  L.  R.  A.  689,  n. 

The  objection  to  contracts  in  restraint  of  trade  seems  applicable  to  com- 
binations of  workers  to  raise  the  price  for  their  services.  Moore  v.  Bennett, 
140  111.  69;  Milwaukee  Masons'  Assoc,  v.  Niezerowski,  95  Wis.  129.  But  the 
contest  in  such  nfatters  has  generally  been  whether  such  bargains  and  the 


■170  UNLAWFUL   AGREEMENTS. 

by  the  seller  of  a  business  not  to  compete  with  the  buyer,  by  a  partner 
or  retiring  partner  not  to  compete  with  the  firm,  and  by  a  servant  or 
agent  not  to  compete  with  his  master  or  employer  after  the  termina- 
tion of  the  service  or  employment.  Obviously  the  measure  of  reason- 
able restrictions  to  protect  the  buyer,  continuing  partners,  or  em- 
354]  ployer  *in  the  case  of  a  business  with  national  or  world-wide 
connections  will  be  larger  than  in  the  case  of  a  merely  local  trade 

means  used  to  carry  them  out  are  tortious  or  criminal,  a  question  entirely 
distinct  from  the  validity  of  the  contract. 

"An  agreement  between  two  or  more  persons  that  one  shall  bid  for  the 
benefit  of  all  upon  property  about  to  be  sold  at  public  auction,  which  they 
desire  to  purchase  together,  either  because  they  propose  to  hold  it  together 
or  afterwards  to  divide  it  into  such  parts  as  they  wish  individually  to  hold, 
neither  desiring  the  whole,  or  for  any  similar  honest  or  reasonable  pur- 
pose, is  legal  in  its  character  and  will  be  enforced.  Gibbs  v.  Smith,  _  115 
Mass.  592,  593;  Kearney  v.  Taylor,  15  How.  494,  519;  Jenkins  v.  Frink,  30 
Cal.  586;  Switzer  r.  Skiles,  8  111.  529;  Hunt  v.  Elliott,  80  Ind.  245;  Smith 
v.  Ullman,  58  Md.  183;  Phippen  v.  Stiekney,  3  Met.  384;  Stillwell  v.  Glass- 
cock, 91  Mo.  658;  Murphy  v.  De  France,  105  Mo.  53;  Whalen  v.  Brennan, 
34  Neb.  129;  Gulick  v.  Webb,  41  Neb.  706;  Olson  v.  Lamb,  56  Neb.  104; 
Bellows  v.  Russell,  20  N.  H.  427;  Huntington  v.  Bardwell,  46  N.  H.  492; 
National  Bank  v.  Sprague,  20  N.  J.  Eq.  159,  168;  De  Baun  v.  Brand,  61 
N.  J.  L.  624;  Marsh  v.  Russell,  66  N.  Y.  228;  Marie  v.  Garrison,  83  N.  Y. 
14;  Smith  r.  Greenlee.  2  Dev.  L.  126;  Goode  r.  Hawkins,  2  Dev.  Eq.  393; 
Breslin  r.  Brown,  24  Ohio  St.  565;  Smull  v.  Jones,  6  W.  &  S.  122;  Maffet 
u.  Ijams,  103  Pa.  266 ;  McMinn's  Legatees  r.  Phipps,  3  Sneed.  196 ;  James  r. 
Fulcrod,  5  Tex.  512;  Flanders  r.  Wood,  83  Tex.  277;  Dailey  v.  Hollis,  27  Tex. 
Civ.  App.  570;  Barnes  v.  Morrison,  97  Va.  372.  Compare  Woodruff  r. 
Berry,  40  Ark.  251;  Marshalltown  Stone  Co.  v.  Des  Moines  Brick  Co.,  114 
la.  574.  "  But  such  agreement,  if  made  for  the  purpose  of  preventing  compe- 
tition and  reducing  the  price  of  the  property  to  be  sold  below  its  fair  value, 
is  against  public  policy  and  in  fraud  of  the  just  rights  of  the  party  offering  it. 
and  therefore  illegal."  Gibbs  r.  Smith,  115  Mass.  592,  593;  Hyer  r.  Rich- 
mond Traction  Co.,  80  Fed.  Rep.  (C.  C.  A.)  839;  168  U.  S.  471;  McMullen 
v.  Hoffman,  174  U.  S.  639;  Atlas  Nat.  Bank  r.  Holm,  71  Fed.  Rep.  489 ;  Swan 
v.  Chorpenning,  20  Cal.  182;  Ray  v.  Mackin,  100  111.  246;  Devine  v.  Harkness, 
117  111.  145;  Conway  v.  Garden  Citv  Co.,  190  111.  89;  Hunter  v.  Pfeiffer, 
108  Ind.  197;  Clark  r.  Stanhope,  109  ivy.  521;  Gardiner  v.  Morse,  25  Me.  140; 
Weld  v.  Lancaster,  56  Me.  453;  Hanna'r.  Fife,  27  Mich.  172;  Boyle  v.  Adams, 
50  Minn.  255;  Wooton  r.  Hinkle,  20  Mo.  290;  Miltenberger  v.  Morrison,  39 
Mo.  71;  Pendleton  v.  Asbury,  104  Mo.  App.  723;  Goble  v.  O'Connor,  43  Neb. 
49;  McClellan  r.  Citizens'  Bank,  60  Neb.  90;  Gulick  v.  Ward,  5  Halst.  87; 
Brooks  v.  Cooper,  50  N.  J.  Eq.  761 ;  Kenny  p.  Lembeck,  53  N.  J.  Eq.  20;  Jones 
v.  Caswell,  3  Johns.  Cas.  29;  Doolin  r.  Ward,  6  Johns.  194;  Wilbur  v.  How, 
8  Johns.  444;  Thompson  v.  Davies,  13  Johns.  112;  People  r.  Stephens,  71 
N.  Y.  527;  Hopkins  v.  Ensign,  122  N.  Y.  144;  Baird  v.  Sheehan,  166  N.  Y. 
631;  Coverly  v.  Terminal  Warehouse  Co.,  83  N.  Y.  Supp.  (App.  Div.)  369; 
Ingram  v.  Ingram,  4  Jones  L.  188;  King  v.  Winants,  71  N.  C.  469;  Kine  v. 
Turner,  27  Oreg.  356;  Saxton  v.  Seiberling,  48  Ohio  St.  554,  562;  Barton 
v.  Benson,  126  Pa.  431:  Hay's  Estate,  159  Pa.  381;  Dud'ey  r.  Odom,  5  S.  C. 
131;  Wilson  v.  Wall,  99  Va.  353,  356;  Ralphsnyder  r.  Shaw,  45  W.  Va.  680, 
ace.  See  also  Fenner  r.  Tucker,  6  R.  I.  551;  Herndon  r.  Gibson,  38  S.  C. 
357,  20  L.  R.  A.  545,  n.  Compare  Breslin  v.  Brown.  24  Ohio  St.  565.  The 
Enelish  authorities,  however,  seem  opposed  to  the  American  decisions.  Ga.lton 
v.  Emuss,  1  Coll.  Ch.  243;  Re  Carew's  Estate,  26  Beav.  187;  Heffer  r.  Martyn, 
36  L.  J.  Ch.  372 ;  Chattock  v.  Muller,  8  Ch.  D.  177.  Compare  Levi  v.  Levi, 
6  C.  &  P.  239. 


RESTRAINT   OF   TRADE.  471 

or  practice.  What  is  reasonable  in  the  particular  case  is  a  question 
of  law  for  the  Court.  Examples  will  be  given  presently.  Meanwhile 
something  must  be  said  of  the  early  history  and  intermediate  forms 
of  the  doctrine. 

Medieval  feeling:  The  Chandlers  of  Norwich,  1299-1300.  In  the  middle 
ages  there  was  a  general  feeling,  apparently  popular  and  not  derived 
from  learned  sources,  against  all  agreements  which  tended  to  mo- 
nopoly or  keeping  up  prices.  At  the  end  of  the  thirteenth  century  all 
the  chandlers  of  Norwich  were  presented  by  the  court  leet  "  pro 
quadam  convencione  inter  eos  facta  videlicet  quod  nullus  eorum  ven- 
deret  lib  ram  candele  minus  quam  alter'"  (q). 

The  Dyer's  case,  1415.  In  the  well-known  Dyer's  case  in  2  H.  V.  5, 
pi.  26,  the  action  was  debt  on  a  bond  conditioned  that  the  defendant 
should  not  use  his  craft  of  a  dyer  in  the  same  town  with  the  plaintiff 
for  half  a  year :  a  contract  which  would  now  be  clearly  good  if  made 
upon  valuable  consideration.  The  defence  was  that  the  condition 
had  been  performed.  To  this  Hull  J.  said  :  "  To  my  mind  you  might 
have  demurred  to  him  that  the  obligation  is  void,  because  the  con- 
dition is  against  the  common  law;  and  per  Dieu  if  the  plaintiff  were 
here  he  should  go  to  prison  till  he  had  made  fine  to  the  King  "  (r) . 
This  was  not  and  could  not  be  more  than  a  dictum,  and  the  parties 
proceeded  to  issue  on  the  question  whether  the  condition  had  in  fact 
been  performed  or  not. 

The  Blacksmith's  case,  1 587-1 588.  Hull's  opinion,  however,  was  ap- 
proved by  all  the  Justices  of  the  C.  P.  in  a  blacksmith's  case  in  29 
Eliz.,  of  which  we  have  two  reports  (s).  It  does  not  appear  in  either 
case  what  was  the  real  occasion  or  consideration  of  the  contract. 
*For  aught  the  reports  show  it  may  have  been  the  ordinary  [355 
transaction  of  a  sale  of  goodwill  or  the  like  (t). 

Historical  connection  of  the  doctrine  with  medieval  regulation  of  trade. 
It  has  been  plausibly  suggested  by  a  learned  American  writer  that 
the  medieval  doctrine  is  connected  with  the  rules  and  customs  for- 

(q)  Leet  Jurisdiction  of  the  City  of  odd  mistake  of  putting  South  Minims 

Norwich,  Seld.  Soc.  1892,  p.  52.  in  Surrey. 

(r)   This  Hill  or  Hull,  Justice  of  (t)     The    explanations    offered    by 

C.   P.,    is    to   be    distinguished   from  Lord  Macclesfield  in  Mitchel  v.  Rey- 

Huls,  who  sat  in  K.  B.  till  3  H.  V.  nolds,  1  Sm.  L.  C.  at  p.  399,  and  Sir 

His  expletive  has  been  wrongly  sup-  W.  Follett  wrg.  in  Hitchcock  v.  Coker, 

posed  to  be  unique  in  the  reports.    In  6  A.  &  E.  at  p.  447,  45  R.  R.  at  p.  529, 

the  earlier  Year  Books  it  is  not  un-  are   merely   conjectural   attempts    to 

common.  find  in  the  Year  Book  a  modern  point 

(s)  Moore,  242,  pi.  379,  fuller  in  2  of  view  which  is  not  there. 
Leo.  210.     Moore's  report  makes  the 


472  UNLAWFUL   AGREEMENTS. 

bidding  a  man  to  exercise  any  trade  to  which  he  had  not  been  duly 
apprenticed  and  admitted:  so  that  if  he  covenanted  not  to  exercise 
his  own  trade,  he  practically  covenanted  to  exercise  none — in  other 
words  not  to  earn  his  living  at  all  (u).  Indeed,  by  the  statute  5  Eliz. 
c.  4,  which  consolidated  earlier  Acts  of  the  same  kind,  not  only  the 
common  labourer,  but  the  artificer  in  any  one  of  various  trades,  was 
compellable  to  serve  in  his  trade  if  unmarried  or  under  the  age  of  '30 
years,  and  not  a  forty-shilling  freeholder  or  copyholder  or  "worth 
of  his  own  goods  the  clear  value  of  ten  pounds."  An  agreement  by 
a  person  within  the  statute  not  to  exercise  his  own  trade  might  there- 
fore be  deemed,  at  any  rate  if  unlimited,  to  amount  to  an  agreement 
to  omit  a  legal  duty. 

Absolute  freedom  of  trade  asserted  by  Coke  as  old  common  law.  At  the 
same  time  absolute  freedom  of  trade  is  positively  asserted  as  the 
normal  state  of  things  always  assumed  and  upheld  by  the  common 
law.  It  was  resolved  in  the  Ipswich  Tailors'  case  (x)  that  at  the 
common  law  no  man  could  be  prohibited  from  working  in  any  lawful 
trade :  and  it  was  said  that 

"  The  statute  of  5  Eliz.  c.  4,  which  prohibits  every  person  from  using 
or  exercising  any  craft  mystery  or  occupation,  unless  he  has  been  an  appren- 
tice by  the  space  of  seven  years,  was  not  enacted  only  to  the  intent  that  work- 
men should  be  skilful,  but  also  that  youth  should  rot  be  nourished  in  idleness, 
but  brought  up  and  educated  in  lawful  sciences  and  trades;  and  thereby  it 
appears,  that  without  an  act  of  parliament  (y)  none  can  be  prohibited  from 
working  in  any  lawful  trade." 

356]  And  certain  ordinances,  by  which  the  tailors  of  Ipswich  *for- 
bade  any  one  to  exercise  the  trade  of  a  tailor  there  until  he  had 
presented  himself  to  the  master  and  wardens  and  satisfied  them  of  his 
qualification,  were  held  void,  inasmuch  as 

"  Ordinances  for  the  good  order  and  government  of  men  of  trades  and 
mysteries  are  good,  but  not  to  restrain  any  one  in  his  lawful  mystery." 

Modern  applications:  Hilton  v.  Eckersley.  This  principle  is  still  in 
force  as  regards  agreements  and  combinations  among  members  of 
trades  not  made  for  the  protection  of  purchasers  for  value,  but  by 
way  of  systematic  denial  of  each  contracting  party's  ordinary  dis- 
cretion in  managing  his  affairs. 

An  agreement  between  several  master  manufacturers  to  regulate 
their  wages  and  hours  of  work,  the  suspending  of  work  partially  or 
altogether,  and  the  discipline  and  management  of  their  establishments, 

(«)  Parsons  on  Contracts,  2.  255.  (y)  So  again  in  the  case  of  Monopo- 

(a)  (1615)   11  Co.  Rep.  53  a,  54  6.       lies  (1602)   11  Co.  Rep.  87  6. 


RESTRAINT   OF   TRADE.  473 

by  the  decision  of  a  majority  of  their  number,  is  in  general  restraint 
of  trade  as  depriving  each  one  of  them  of  the  control  of  his  own  busi- 
ness, and  is  therefore  not  enforceable  (2).  It  makes  no  difference 
that  the  object  of  the  combination  is  alleged  to  be  mutual  defence 
against  a  similar  combination  of  workmen.  The  case  decides  on 
the  whole  that  neither  an  agreement  for  a  strike  nor  an  agreement 
for  a  lock-out  is  enforceable  by  law.  The  Court  of  Exchequer  Cham- 
ber thus  expressed  the  general  principle  in  the  course  of  their 
judgment : — 

"  Prima  facie  it  is  the  privilege  of  a  trader  in  a  free  country,  in  all  mat- 
ters not  contrary  to  law,  to  regulate  his  own  mode  of  carrying  it  [his  trade] 
on  according  to  his  own  discretion  and  choice.  If  the  law  h.as  in  any  mat- 
ter regulated  or  restrained  his  mode  of  doing  this,  the  law  must  be  obeyed. 
But  no  power  short  of  the  general  law  ought  to  restrain  his  free  discre- 
tion" (a). 

On  like  grounds  a  restrictive  agreement  between  the  *mem-  [357 
bers  of  a  trade  society  as  to  the  employment  by  any  one  member  of 
travellers  and  other  persons  who  had  left  the  service  of  any  other 
has  been  disallowed  (b). 

It  is  not  an  unlawful  restraint  of  trade  for  several  persons  carrying 
on  the  same  business  in  the  same  place  to  agree  to  divide  the  business 
among  themselves  in  such  a  way  as  to  prevent  competition,  and  pro- 
visions reasonably  necessary  for  this  purpose  are  not  invalid  because 
they  may  operate  in  partial  restraint  of  the  parties'  freedom  to  exer- 
cise their  trade.  But  a  provision  that  if  other  persons,  strangers  to 
the  contract,  do  not  employ  in  particular  cases  that  one  of  the  con- 
tracting parties  to  whom  as  between  themselves  the  business  is 
assigned  by  the  agreement,  then  none  of  the  others  will  accept  the 
employment,  is  bad  (c). 

Reasons  for  not  allowing  unqualified  restraint.  The  reasons  for  the  rule 
are  set  forth  at  large  in  the  leading  case  of  Mitchel  v.  Reynolds  (d), 

(2)  Hilton  v.  Eckersley  (1855-6)  6  who  has  left  the  service  of  another 

E.  &  B.  47,  in  Exch.  Ch.  ib.  66,  24  member,  without  the  consent  in  writ- 

L.  J.  Q.  B.  353,  25  ib.  199.    The  dicta  ing  of  his  late  employer,  until  after 

there,  so  far  as  they  suggest  that  the  the  expiration  of  two  years  from  his 

agreement  would  be  a  criminal  offence  leaving  such  service." 
at  common  law,  are  overruled  by  Mo-  (c)  Collins  v.  Locke  (1879)    (J.  C.) 

qui  Steamship  Co.  v.  M'Oregor,  Gow  4  App.  Ca.  674,  688,  48  L.  J.  P.  C.  68 ; 

&  Co.  [1892]  A.  C.  25,  61  L.  J.  Q.  B.  Jones  v.  North   (1875)   L.  R.  19  Eq. 

295.  426,  44  L.  J.  Ch.  388,  a  case  not  free 

(a)  6  E.  &  B.  at  pp.  74-5.  from    difficulties    on    other    grounds, 

(b)  Mineral  Water  Bottle,  dc.  So-  and  apparently  not  fully  argued  or 
ciety  v.   Booth    (1887)    36    Ch.   Div.  considered  on  this  point. 

465.     The  terms   were:     "No  mem-  (d)   (1711)   1  P.  Wms.  181,  and  in 

ber  of  the  society  shall  employ  any       1  Sin.  L.  C. 
traveller,  carman,  or  outdoor  employi, 


474  UNLAWFUL   AGREEMENTS. 

and  at  a  more  recent  date  (1837)  were  put  more  concisely  by  the 
Supreme  Court  of  Massachusetts,  who  held  a  bond  void  which  was 
conditioned  that  the  obligor  should  never  carry  on  or  be  concerned 
in  iron  founding: — 

"  1.  Such  contracts  injure  the  parties  making  them,  because  they  dimin- 
ish their  means  of  procuring  livelihoods  and  a,  competency  for  their  families. 
They  tempt  improvident  persons  for  the  sake  of  gain  to  deprive  themselves 
of  the  power  to  make  future  acquisitions.  And  they  expose  such  persons  to 
imposition  and  oppression. 

2.  They  tend  to  deprive  the  public  of  the  services  of  men  in  the  employments 
and  capacities  in  which  they  may  be  most  useful  to  the  community  as  well 
as  themselves. 

358]  *3.  They  discourage  industry  and  enterprise,  and  diminish  the  products  of 
ingenuity  and  skill. 

4.  They  prevent  competition  and  enhance  prices. 

5.  They  expose  the  public  to  all  the  evils  of  monopoly"  (e). 

For  allowing  particular  restraint.  The  qualified  admission  of  restraints 
has  been  commonly  spoken  of  as  an  exception  to  the  general  policy 
of  the  law.  But  it  seems  better  to  regard  it  rather  as  another  branch 
of  it.  Public  policy  requires  on  the  one  hand  that  a  man  shall  not 
by  contract  deprive  himself  or  the  state  of  his  labour,  skill  or  talent; 
and  on  the  other  hand,  that  he  shall  be  able  to  preclude  himself  from 
competing  with  particular  persons  so  far  as  necessary  to  obtain  the 
best  price  for  his  business  or  knowledge,  when  he  chooses  to  sell  it. 
Eestriction  which  is  reasonable  for  the  protection  of  the  parties  in 
such  a  case  is  allowed  by  the  very  same  policy  that  forbids  restrictions 
generally,  and  for  the  like  reasons  (/). 

Admission  of   restrictive  covenants  on  sale  of  business  in   17th   century. 

In  the  early  part  of  the  seventeenth  century  the  majority  of  the 
judges  concluded  that  the  policy  of  the  law  was  not  opposed  to  the 
seller  of  a  business  making  the  sale  effectual  by  undertaking  not  to 
compete  with  the  buyer.  For  that  purpose,  "  for  a  time  certain  and 
in  a  place  certain  a  man  may  be  well  bound  and  restrained  from  using 
of  his  trade"  (g),  provided  that  it  is  upon  a  valuable  considera- 
tion (h).  Restrictions  extending  to  Newgate  Market,  in  London,  and 
the  whole  of  country  towns,  such  as  Basingstoke  and  Newport  (Isle 

(e)  Alger  v.  Thacker  (1837)  19  v.  Lorson t  (1869)  L.  R.  9  Eq.  345,  at 
Pick.  51,  54.     Agreements  which  aim       p.  353. 

at   creating   a   monopoly,    or   raising  (g)     Rogers    v.    Parry     (1614)     2 

the  price  of  either  goods  or  labour,  Bulst.  136,  Coke's  opinion  adopted  by 

have  been  constantly  held  void  in  the  the  Court. 

U.  S.     See  Frank  J.  Goodnow,  Trade  (h)   To  same  effect,  Broad  v.  Jol- 

Combinations  at  Common  Law,  Pol.  lyfe,  Cro.  Jac.  596 ;  Bragg  v.  Stanner, 

Sci.  Quart,  xii.  212.  Palm.  172,  and  see  Parker  C.J.'s  ob- 

(f)  James  V.-C.  Leather  Cloth  Co.  servation  on  the  report  of  Rogers  v. 

Parry,  1  Sm.  L.  C.  at  p.  394. 


RESTRAINT  OF  TRADE.  475 

of  Wight),  were  allowed,  but  it  was  said  that  such  a  promise  cannot  be 
good  "if  the  Restraint  be  general  throughout  England"  (i).  [359 

Mitchel  v.  Reynolds:  Limit  in  space  thought  necessary.  These  author- 
ities were  confirmed  in  1711  by  Mitchel  v.  Reynolds  (Tc),  the  earliest 
case  usually  referred  to,  and  it  was  settled  that  if  a  particular  re- 
strictive contract,  on  the  circumstances  brought  before  the  Court, 
"appears  to  be  a  just  and  honest  contract,"  it  will  be  upheld.  At 
that  time,  however,  and  long  afterwards,  it  was  taken  for  granted 
that  such  a  contract  could  in  no  case  be  reasonable  unless  limited, 
at  any  rate,  in  space.  "  Where  the  restraint  is  general,  not  to  exer- 
cise a  trade  throughout  the  kingdom,"  it  was  thought  that  it  must 
be  bad  as  matter  of  law.  "  What  does  it  signify  to  a  tradesman  in 
London  what  another  does  at  Newcastle?"  (I). 

Fixed  rule  of  limits  now  held  unsuitable  to  modern  conditions.  At  this  day 
we  have  no  difficulty  in  seeing  that  it  may  signify  very  much  to 
a  merchant  in  London  what  another  is  doing  not  only  at  Newcastle, 
but  at  Singapore  or  San  Francisco.  Fortunately  no  positive  and 
direct  decision  stood  in  the  way  of  the  law  being  authoritatively  de- 
clared by  the  House  of  Lords  in  a  form  suited  to  the  conditions  of 
modern  trade  and  communications. 

Before  the  middle  of  the  nineteenth  century  it  was  settled  that, 
although  a  valuable  and  not  merely  colourable  consideration  there 
must  be,  even  if  the  contract  is  under  seal,  the  Court  will  not  attempt 
to  estimate  the  adequacy  of  the  consideration  in  this  more  than  in  any 
other  class  of  cases  (m). 

Gradually  the  question  whether  the  restriction  imposed  was  on  the 
whole  commensurate,  in  point  of  law,  with  the  benefit  conferred,  be- 
came the  only  question  seriously  discussed. 

And  now  the  dicta  which  apparently  bound  contracts  of  *this  [360 
kind  within  hard  and  fast  rules  must  be  taken  not  as  general  proposi- 
tions of  law,  but  as  applications  of  the  general  principle  of  reason- 
ableness to  conditions  of  fact  which  at  the  time  might  well  seem  to  be 
permanent,  but  which  have  passed  away. 

In  the  leading  case  before  the  House  of  Lords,  an  inventor  and 
manufacturer  of  guns  and  ammunition,  doing  business  with  military 
authorities  in  various  parts  of  the  world,  sold  his  business  to  a  com- 

(i)  Prugnellv.  Gosse,  Aleyn,  67.  Eq.  518,  43  L.  J.  Ch.  659.     Formerly 

(it)  1  Sm.  L.  C.  391.  it  was  thought   (it  would  seem  from 

(I)  1  Sm.  L.  C.  at  pp.  391,  397.  some  expressions  in  the  earlier  cases) 

(m)    Hitchcock  v.  Coker   (1837)    6  that  where  the  contract  was  by  deed 

A.  &  E.  438,  45  R.  R.  522   (Ex.  Ch.)  ;  the  consideration  must  appear  on  the 

Gravely  v.  Barnard  (1874)   L.  R.  18  face  of  the  deed. 


476  UNLAWFUL    AGREEMENTS. 

pany,  and  covenanted  not  to  compete  with  the  company  in  that  part 
of  the  business  for  twenty-five  years :  this  was  held  not  too  wide  in  the 
circumstances,  though  a  distinct  covenant  not  to  engage  in  any  busi- 
ness competing  with  that  for  the  time  being  carrisd  on  by  the  com- 
pany was  disallowed  (n). 

Detailed  examples  (formerly  treated  as  special  exceptions).  Meanwhile 
various  relaxations  of  the  supposed  fixed  rule  as  to  limits  had  been 
sanctioned.  These  are  now  nothing  else  than  special  illustrations  of 
the  broader  principle ;  but  as  such  they  are  still  useful  and  instructive. 
A  limit  of  time  is  not  necessary  to  make  an  agreement  in  restraint  of 
trade  valid,  and  it  is  not  of  itself  sufficient  (o).  It  has  never  been 
doubted  that  ■  a  partner  may  bind  himself  absolutely  not  to  compete 
361  ]  with  the  firm  during  the  partnership :  so  may  a  servant  in  a 
trade  bind  himself  absolutely  not  to  compete  with  the  master  during 
his  time  of  service  (p).  A  contract  not  to  divulge  a  trade  secret  need 
not  be  qualified,  and  a  man  who  enters  into  such  a  contract  may  to 
the  same  extent  bind  himself  not  to  carry  on  a  manufacture  which 
would  involve  disclosure  of  the  process  intended  to  be  kept  secret  (q). 
Indeed  it  has  been  said  that  "  sales  of  secret  processes  are  not  within 
the  principle  or  the  mischief  of  restraints  of  trade  at  all"  (r).  An 
undertaking  by  a  tradesman  purchasing  goods  from  the  manufacturers 
not  to  sell  them  below  specified  prices,  and  not  to  sell  to  any  retail 
trader  without  taking  a  similar  agreement  from  him,  is  not  in  re- 
straint of  trade;  for  the  manufacturers,  not  being  bound  to  mak?  or 

(n)    Nordenfelt  v.   Uaxim-Norden-  sumption   in   fact   against   a  restric- 
felt,  &c.  Co.  [1894]  A.  C.  535,  63  L.  J.  tion  without  limit  of  space  being  rea- 
ch. 908,  affirming  S.  C.  nom.  Maxim-  sonably  required  for  the  protection  of 
Nordenfelt,    &c.    Go.    v.     Nordenfelt  the  promisee,  but  there  was  no  deci- 
[1893]  1  Ch.  630,  62  L.  J.  Ch.  273.    In  sion  or  principle  to  make  that  pre- 
the  C.  A.  Bowen  L.J.  endeavoured,  in  sumption  applicable  to  the  different 
an  elaborate  judgment,  to  show  that  state  of  facts  produced  by  the  nature 
the  common  law  rule  in  its  old  form  of   modern    trade   and   traffic.     Lord 
was  still  in  force,  though  the  excep-  Watson,   Lord   Ashbourne,   and  Lord 
tions   were  extended.     In  the  H.   L.  Morris,  without  precisely  concurring 
Lord  Herschell,  thinking  this  histori-  in  this,  appear  to  have  agreed  in  sub- 
cally  correct,  concluded  on  the  whole  stance  with  Lord  Macnaghten. 
that  the  old  rule  had  become  "  inap-  (o)  Hitchcock  v.  Coker  (1837)  6  A. 
plicable    to    the     altered    conditions  &  E.  438,  45  R.  R.  522,  Ex.  Ch. 
which  now  prevail."   [1894]   A.  C.  at  (p)   Wallis  v.  Day   (1837)   2  M.  & 
p.    548.      Lord    Macnaghten    thought  W.  273,  46  R.  R.  602. 
Lord  Bowen's  distinctions  too  refined,  (q)    Leather  Cloth  Co.  v.  Lorsont 
justified  the  decisions  in  equity  which  (1869)  L.  R.  9  Eq.  345,  at  p.  353. 
Lord  Bowen  had  criticized  for  disre-  (r)    Bowen  L.J.  Maxim-Nordenfelt 
garding  the  common  law  rule,  and  de-  Co.  v.   Nordenfelt    [1893]    1  Ch,  630, 
nied  that  there  had  ever  really  been  a  660 :  but  qu.  whether  this  distinction 
hard  and  fast  rule  of  law.    Down  to  a  be  now  necessary, 
recent  time  there  was  a  strong  pre- 


RESTRAINT  OF   TRADE.  477 

sell  their  goods  at  all,  or  to  sell  to  this  or  that  person,  are  entitled  to 
sell  on  their  own  terms  (s). 

General  reasonableness  of  restriction  in  particular  cases.  Whether  the  re- 
striction contracted  for  in  any  particular  case  be  reasonable  is  a  ques- 
tion not  of  fact  but  of  law,  and  evidence  of  persons  in  the  trade  as 
to  what  they  think  reasonable  is  not  admissible  (i).  A  covenant  not 
to  carry  on  "  any  business  whatsoever,"  within  however  narrow  limits 
of  time  and  space,  is  manifestly  unreasonable.  Nor  will  the  Court 
construe  it  as  if  limited  to  the  particular  business  which  is  really  in 
question  (u).  But  a  covenant  not  to  "deal  or  transact  business" 
with  customers  of  the  covenantees  or  of  their  successors  may  be  con- 
fined by  the  context  to  business  of  the  same  kind  as  that  carried  on 
by  them  at  the  date  of  the  agreement  (x).  A  covenant  to  retire, 
without  expressed  limit  in  space  or  time,  from  a  partnership,  and  "  so 
far  as  the  law  allows,  from  the  trade  *or  business  thereof  in  all  [362 
its  branches/'  is  bad  for  unreasonableness  if  the  words  "  so  far  as  the 
law  allows  "  are  surplusage,  and  bad  for  uncertainty  if  they  are  not ; 
the  parties  cannot  throw  on  the  Court  the  task  of  settling  their  agree- 
ment for  them  (y) .  A  restrictive  clause  is  not  reasonable  if  it  has  the 
effect  of  making  the  covenantee  the  sole  judge  whether  a  new  busi- 
ness undertaken  by  the  covenantor  competes  with  his  own  or  not  (z). 
A  restrictive  covenant  which  contains  or  may  be  read  as  containing 
distinct  undertakings  bounded  by  different  limits  of  space  or  time,  or 
different  in  subject-matter,  may  be  good  as  to  part  and  bad  as  to 
part  (a).  There  is  not  any  such  rule  as  that  a  covenant  in  restraint 
of  trade  is  presumed  to  be  bad,  and  the  party  relying  on  it  must  justify 
it.  "You  are  to  construe  the  contract  and  then  see  whether  it  is 
legal"  (6). 

What  amounts  of  restriction  have  been  held  reasonable  or  not  for 
the  circumstances  of  different  kinds  of  business  is  best  seen  in  the 
tabular  statement  of  cases  (down  to  1854)  subjoined  to  the  report  of 
Avery  v.  Lang  ford  (c).  It  may  be  convenient  to  add  the  later  de- 
cisions in  the  same  form. 

(s)  Ellimcm,  Sons  &  Go.  v.  (Jarring-  (z)  Perls  v.  Saalfeld  [1892]  2  Ch. 

ton  £  Son  [1901]  2  Ch.  275.  149,  61  L.  J.  Ch;  409,  C.  A. 

(*)  Haynes  v.  Doman  [1899]  2  Ch.  (a)   See  Baines  v.  Geary  (1887)  35 

13,  68  L.  J.  Ch.  419,  C.  A.  Ch.  D.  154,  and  authorities  there  col- 

(u)  Baker  v.  Hedgecock   (1888)   39  lected;  Mawim-Nordenfelt  Co.  v.  Nor- 

Ch.  D.  520,  57  L.  J.  Ch.  889;  Perls  v.  denfelt  [1893]  1  Ch.  630,  62  L.  J.  Ch. 

Saalfeld  [1892]   2  Ch.   149,  61   L.  J.  273,  C.  A.  (no  further  appeal  on  this 

Ch.  409,  C.  A.  point). 

(a;)   Mills  v.  Dunham  [1891]  1  Ch.  (o)  Mills  v.  Dunham  [1891]   1  Ch. 

576.  60  L.  J.  Ch.  362,  C.  A.  576,  587,  per  Lindley  L.J.;   Badische 

(y)  Davies  v.  Davies  (1887)  36  Ch.  Anilin,  rfo.  Fabrik  v.  Schott  [1892]  3 

Piv'.  359,  56  L.  J.  Ch.  962.  Ch.  447.  61  L.  J.  Ch.  698. 

(c)  (1854)  Kay,  667,  23  L.  J.  Ch.  837. 


478 


UNLAWFUL   AGREEMENTS. 


363] 


^Restriction  held  Reasonable. 


Name  and  Date  of 
Case. 


1855.  Bendy  V.  Hen 
derson  (d),  11  Ex 
194,  24  L.  J.  Ex 
324. 


1856.  Jones  v.  Lees 
1  H.  &  N.  189,  26 
L.  J.  Ex.  9. 


1857.       Benwell     v. 

Inns,      24      Beav. 

307,  26  L.  J.   Ch. 

663. 
1859.      Mum-ford    v. 

Gething,    7    C.    B. 

N.    S.    805,    29    L 

J.  C.  P.  105. 


1861.  Harms  v.  Par- 
sons, 32  Beav. 
328,  32  L.  J.  Ch. 
247. 

1863.  ClarJcson  v. 
Edge,  33  Beav. 
227,  33  L.  J.  Ch. 
443. 

1869.  Catt  v.  Tourle, 
L.  R.  4  Ch.  654, 
38  L.  J.  Ch.  665. 


1869.  Leather  Cloth 
Go.  v.  Lorsont 
if),  L.  R.  9  Eq. 
345,   39   L.   J.   Ch. 


1874.  Gravely  V. 
Barnard,  L.  R.  18 
Eq.  518,  43  L.  J. 
Ch.  659. 

1875.  Printing  and 
Numerical  Reg- 
istering Co,  v. 
Sampson,  L.  R.  19 
Eq.  462,  44  L.  J. 
Ch.  705. 


Trade  or  Business. 


Solicitor. 


Manufacture  or  sale 
of  slubbing  and 
roving  frames  not 
fitted  with  plain- 
tiff's patent  in- 
vention. 

Cowkeeper,  milkman, 
milk-seller,  o  r 

milk-carrier. 

Travelling     in  lace 

trade      for  any 

house   other  than 
plaintiffs'. 


Horse-hair  manufac- 
turer. 


Gas  meter  manu- 
facturer and  gas 
engineer. 

Covenant  by  pur- 
chaser of  land 
that  vendor 
should  have  ex- 
elusive  right  of 
supplying  beer. 

Manufacture  or  sale 
of  patent  leather 
cloth. 


Surgeon. 


Agreement  by  ven- 
dor of  patent  to 
assign  to  pur- 
chaser all  after- 
acquired  patent 
rights  of  like 
nature. 


Extent   of  Restric- 
tion in  Time. 


21  years  from  de- 
termination of  de 
fendant's  employ 
ment  as  managing 
clerk  to  plaintiff. 


Continuance  of  de 
fendant's  licence 
from  plaintiff  to 
use  and  sell  the 
patented  inven 
tion. 

Continuance  of  de 
fendant's  service 
with  plaintiff  and 
24  months  after. 

Unlimited. 


Unlimited. 


Ten  years. 


Unlimited. 


Unlimited. 


So  long  as  plaintiff 
or  his  assigns 
should  carry  on 
business. 

Lifetime  of  vendors. 


Extent  of  Restric- 
tion in  Space. 


21  miles  from  parish 
of  Tormoham, 
Torquay. 


England?    (not  lim- 
ited in  terms). 


Three  miles  from 
Charles  Street, 
Grosvenor  Sq. 

"Any  part  of  the 
same  ground," 
i.e.,  the  district  in 
which  defendant 
was  employed  as 
traveller  for 

plaintiffs. 

200  miles  from  Bir- 
mingham (e). 


20  miles  from  Great 
Peter  St.,  West- 
minster. 

Any  public  house 
erected  on  the 
land. 


Europe ;  but  to  be 
construed  as  = 
(ireat  Britain,  or 
United  Kingdom, 
semble.  see  L.  R. 
9  Eq.  at  p.  351 
in). 

Parish  of  Newick 
and  ten  miles 
round,  excepting 
the  town  of 
Lewes. 

Europe  (h). 


(d)  Whether  an  agreement,  not  to 
reside  at  a  given  place  as  well  as  not 
to  carry  on  business  be  good,  quasre. 

(e)  In  Leake  on  Contracts,  3rd  ed. 
637,  the  words  "  not  reasonable," 
used  with  reference  to  this  case,  must 
be  a  clerical  error  for  "  not  unreason- 
able." 

(f)  See  p.  *361,  above. 

(g)  Cp.  Diamond  Match  Co.  v. 
Roeher  (1887)   106  N.  Y.  473,  60  Am. 


Rep.  464,  where  a  restriction  cover- 
ing the  whole  territory  of  the  United 
States  except  Montana  and  Nevada 
was  held  not  too  wide.  "  The  bound- 
aries of  the  States  [i.e.  the  municipal 
jurisdictions  of  New  York  or  other  in- 
dividual States]  are  not  those  of 
trade  and  commerce,  and  business  is 
restrained  within  no  such  limit." 
( h )  See  last  note. 


RESTRAINT  OF  TRADE. 


479 


*Restriction  held  Reasonable. 

[364 

Name  and  Date  of 
Case. 

Trade  or  Business. 

Extent  of   Restric- 
tion in  Time. 

Extent   of  Restric- 
tion in  Space. 

1875.           May      v. 

Solicitor     (covenant 

Unlimited. 

London,      Middlesex 

O'Neill,      W.      N. 

in     clerk's     arti- 

and   Essex ;    and 

179,  44  L.  J.  Ch. 

cles). 

unlimited     as     to 

660. 

acting  lor  clients 
of  plaintiff's  firm, 
or  any  one  who 
had      been      such 

client   during   the 

term   of  the  arti- 

cles. 

1879.  Davey  v.  Shan- 

Outfitter and  tailor. 

Unlimited       (taken 

Five      miles      from 

non,  4  Ex.  D.  81, 

by    the    Court   as 

Devonport. 

48   L.   J.   Ex.   469 

for  joint  lives  of 

(no    objection 

plaintiff    and    de- 

taken). 

fendant)  . 

1880.     Rousillon    v. 

Travelling  in  cham- 

Two     years      after 

Unlimited. 

Rousillon,   14   Ch. 

pagne  trade  :  set- 

leaving  plaintiff's 

D.    351,   49   L.    J. 

ting  up  or  enter- 

service as  to  trav- 

Ch. 339. 

ing   into   partner- 

elling :      ten      as 

ship       in       same 

to  dealing  on  own 

trade. 

account. 

1891.  Mills  v.  Dun- 

Travelling  in    food, 

Unlimited. 

Unlimited. 

ham,  [1891]  1  Ch. 

antiseptic       busi- 

(= England    and 

576,  60  L.  J.  Ch. 

ness. 

Wales,      see     per 

362,  C.  A. 

Lindley  L.  J. 
[1891]  1  Ch. 
585). 

1892.  Rogers  v.  Mad- 

Travelling    in    beer, 

Two   years. 

100  miles  from  Car- 

docks,    [1892]     3 

&c. 

diff. 

Ch.  346,  62  L.  J. 

Ch.  219,  67  L.  T. 

829,  C.  A. 

1892.    Nordenfelt  v. 

Manufacture         o  f 

25    years   from    the 

Unlimited:    the 

Maxim  -  Nordem- 

guns,  gun  mount- 

incorporation     of 

breach      assigned 

felt     Guns      and 

ings       and       car- 

the company. 

was  in   Belgium. 

Ammunition     Co., 

riages,       gunpow- 

11894] A.  C.  535. 

der,         explosives 
and      ammunition 
[and,     with     cer- 
tain     exceptions, 
any     other     busi- 
ness    carried     on 
by   the  company : 
semole,    this    was 
too  wide]. 

1896.     Duoowski  v. 

Dairymen. 

Indefinite  time  : 

No      definition      of 

Goldstein,    [1896] 

continuance        of 

space,     but     held 

1  Q.  B.  478,  65  L. 

service  and  after. 

limited  by  context 

J.  Q.  B.  397. 

to  actual  locality 
of   business. 

1898.    W.  Rooinson 

Enamelled      hollow- 

Three     years     from 

150       miles       from 

&     Co.,     Ltd.     v. 

ware  dealers. 

time  of  dismissal 

Wolverhampton. 

Beuer,    [1898]    2 

from      company's 

Ch.  451,  67  L.  J. 

service. 

Ch.  644,  C.  A. 

1899.   Underwood  & 

Hay       and       straw 

One  year :  carrying 

United        Kingdom, 

Son     v.      Barter, 

merchants. 

on,     serving,     or 

France,    Belgium, 

[1899]  1  Ch.  300, 

being      agent      In 

Holland,    Canada. 

68  L.  J.  Ch.  201, 

business. 

0,  A. 

1899.      Haynes     v. 

Hardware  manufac- 

Unlimited:        work- 

Radius         of         25 

Doman,   [1899]    2 

turer. 

ins  or  serving  in 

miles. 

Ch.   13,   68   L.   J. 

same      kind       of 

Ch.  419,  C.  A. 

business. 

480 


UNLAWFUL   AGREEMENTS. 


365] 


^Restriction  held  Unreasonable. 


Name  and  Date  of 
Case. 


1872.  Allsopp  V. 
Wheatcroft,  L.  R 
15  Eq.  59,  42  L. 
J.    Ch.    12  (i). 


1898.  Ehrman  v. 
Bar  tholomew, 
U898]  1  Ch.  671, 
67  L.  J.  Ch.  319. 


Trade  or  Business. 


Extent   of   Restric- 
tion in  Time. 


Extent  of  Restric- 
tion   In    Space. 


"  Shall  not  directly 
or  indirectly  sell 
procure  orders  for 
the  sale,  or  rec- 
ommend, or  be  in 
any  wise  con 
cerned  or  en 
gaged  in  the  sale 
or  recommenda- 
tion  .  .  of  any 
Burton  ale,  &c, 
or  of  any  ale,  &c, 
brewed  at  Burton 
or  offered  for 
sale  as  such," 
other  than  ale, 
&c,  brewed  by 
plaintiffs. 

Traveller  for  wine 
merchant. 


During  defendant's 
service  with 
plaintiffs  and  two 
years   after. 


Terms  as  to  time 
and  place  not  in 
question:  the 
undertaking  was 
not  to  "  engage  or 
employ  himself  in 
any  other  busi- 
ness" during  the 
continuance  o  f 
the  agreement, 
which  was  not 
necessarily  con- 
fined to  the  con- 
tinuance of  the 
service. 


Unlimited. 


Measurement  of  distances.  It  is  now  settled,  after  some  little  uncer- 
tainty, that  distances  specified  in  contracts  of  this  kind  are  to  be 
measured  as  the  crow  flies,  i.  e.,  in  a  straight  line  on  the  map,  neg- 
lecting curvature  and  inequalities  of  surface.  This  is  only  a  rule 
of  construction,  and  the  parties  may  prescribe  another  measurement  if 
they  think  fit,  such  as  the  nearest  mode  of  access  (k). 

A  certain  number  of  recent  decisions  are  only  on  the  construction 
of  words  describing  the  business  to  be  restricted  (I). 

366]    *  Indian  Contract  Act.     In  British  India  the  language  of  the  Con- 
tract Act  (m)  has  been  literally  construed  by  the  Courts  so  as  to  make 


(t)  This  appears  to  be  in  direct 
conflict  with  Bousillon  v.  Rousillon, 
last  page,  which  seems  to  stand  con- 
firmed by  the  decision  of  the  H.  L.  in 
Nordenfelt's  case,  or  rather  (the  sub- 
ject-matter being  very  different)  by 
the  reasons  given  for  it. 

(k)  Mouflet  v.  Cole  (1872)  L.  R.  7 
Ex.  70.  in  Ex.  Ch.  8  Ex.  32,  42  L.  J. 
Ex.  8.  As  to  what  amounts  to  a 
breach   of  covenant  not  to   carry  on 


business  within  certain  limits,  see 
Brampton  v.  Beddoes  ( 1863 )  13  C.  B. 
N.  S.  538. 

(I)  Such  are  Stuart  v.  Diplock 
(1889)  43  Ch.  Div.  343,  59  L.  J.  Ch. 
142;  Fitz  v.  Ilea  [1893]  1  Ch.  77,  62 
L.  J.  Ch.  258. 

(m)  "Every  agreement  by  which 
any  one  is  restrained  from  exercising 
a  lawful  profession,  trade,  or  business 
of  any  kind  is  to  that  extent  void  "  - 


RESTRAINT  OF   TRADE.  481 

the  rule  much  more  stringent  than  in  England,  and  agreements  not 
to  compete  with  former  employers,  or  the  like,  have  been  disallowed, 
notwithstanding  that  they  would  certainly  have  been  upheld  at  com- 
mon law  (n).  It  seems  very  doubtful  whether  any  such  result  was 
contemplated  by  the  framers  of  the  Act,  and  amendment  may  be 
desirable. 

Contract  to  serve  for  life  not  invalid.  It  is  clear  law  that  a  contract  to 
serve  in  a  particular  business  for  an  indefinite  time,  or  even  for  life, 
is  not  void  as  in  restraint  of  trade  or  on  any  other  ground  of  public 
policy  (o).  It  would  not  be  competent  to  the  parties,  however,  to 
attach  servile  incidents  to  the  contract,  such  as  unlimited  rights  of 
personal  control  and  correction,  or  over  the  servant's  property  (p).37 

Contract  for  exclusive  service  must  be  mutual.  It  is  undisputed  that  an 
agreement  by  A.  to  work  for  nobody  but  B.  in  A.'s  particular  trade, 
even  for  a  limited  time,  would  be  void  in  the  absence  of  a  reciprocal 
obligation  upon  B.  to  employ  A.  (q).  But  a  promise  by  B.  to  employ 
A.  may  be  collected  from  the  whole  tenor  of  the  agreement  between 
them,  and  so  make  the  agreement  good,  without  any  express  words 
to  that  effect  (r).38 

*D.  The  judicial  treatment  of  unlawful  agreements  in  general.  [367 

Thus  far  of  the  various  specific  grounds  on  which  agreements  are 
held  unlawful.  It  remains  for  us  to  give  as  briefly  as  may  be  the 
rules' which  govern  our  Courts  in  dealing  with  them,  and  which  are 
almost  without  exception  independent  of  the  particular  ground  of 
illegality.    The  general  principle  that  an  unlawful  agreement  cannot 

o.  27:  express  exceptions  follow  as  to  Cod.  Nap.  1780:   On  ne  peut  engager 

agreements  on  the  sale  of  the  good-  ses  services  qu'  a  temps',  ou  pour  une 

will  and  agreements  between  partners.  entreprise  determinee :    so  the  Italian 

(»)    Madhub   Chunder  Poramanick  Code,   1628.     The  German  Civil  Code 

v.  Rajcoomar  Pas  (1874)   14  B.  L.  R.  recognizes  them,   s.   624;    but  a   con- 

76;  Brahmaputra  Tea  Co.  v.  Scarth  tract    for    personal    service    for    any 

(1885)  I.  L.  R.  11  Cal.  545.  term   over   five  years   may   after   the 

(o)   Wallis  v.  Day   (1837)   2  M.  &  first  five  years'  be  determined  by  the 

W.  273,  46  R.  R.   602.     The  law  of  employer  by  six  months'  notice. 

Scotland  is  apparently  the  same  ac-  (q)  See  next  note,  and  cp.  the  simi- 

cording  to  the  modern  authorities.  lar  doctrine  as  to  promises  of  mar- 

(p)    See    Hargrave's    argument    in  riage,  supra. 

Sommersett's  case  (1771-2)  20  St.  Tr.  (r)  Pilkington  v.  Scot*   (1846)    15 

49,  66,  and  Bowen  L.J.  36  Ch.  Div.  at  M.  &  W.  657,  15  L.  J.  Ex.  329.     Cp. 

p.  393.     By  the  French  law  indefinite  Hartley  v.  Cummings   ( 1847 )   5  C.  B. 

contracts  of  service  are  not  allowed:  247,  17  Ij.  J.  C.  P.  84. 

37  Davits  r.  Davies,  36  Ch.  D.  359,  393:  Parsons  v.  Trask,  7  Gray,  473. 
88  Cp.  Palmer  v.  Stebbins,  3  Pick.  188. 
31 


482  UNLAWFUL    AGREEMENTS. 

be  enforced  is  not  a  sufficient  guide.  We  still  have  to  settle  more 
fully  what  is  meant  by  an  unlawful  agreement.  For  an  agreement 
is  the  complex  result  of  distinct  elements,  and  the  illegality  must 
attach  to  one  or  more  of  those  elements  in  particular.  It  is  material 
whether  it  be  found  in  the  promise,  the  consideration,  or  the  ultimate 
purpose.  There  are  questions  of  evidence  and  procedure  for  which 
auxiliary  rules  are  needed  within  the  bounds  of  purely  municipal 
law.  Moreover,  when  the  jurisdictions  within  which  a  contract  is 
made,  is  to  be  performed,  and  is  sued  upon,  do  not  coincide,  it  has 
to  be  ascertained  by  what  local  law  the  validity  of  the  contract  shall 
be  determined,  or  there  may  be  a  "  conflict  of  laws  in  space  " :  again, 
if  the  law  be  changed  between  the  time  of  making  the  contract  and 
the  time  of  performance  there  may  be  "  conflict  of  laws  in  time." 

This  general  division  is  a  rough  one,  but  will  serve  to  guide  the 
arrangement  of  the  following  statement. 

Unlawfulness  of  agreement  as  determined  by  particular  elements. 

1.  Independent  promises,  some  lawful  and  some  unlawful.  A  lawful 
promise  made  for  a  lawful  consideration  is  not  invalid  by  reason 
only  of  an  unlawful  promise  being  made  at  the  same  time  and  for 
the  same  consideration. 

In  Pigot's  case  (s)  it  was  resolved  that  if  some  of  the  covenants  of 
368]  an  indenture  or  of  the  conditions  indorsed  *upon  a  bond  are 
against  law,  and  some  good  and  lawful,  the  covenants  or  conditions 
which  are  against  law  are  void  ab  initio  and  the  others  stand  .good. 
Accordingly  "from  Pigot's  case  (I)  to  the  latest  authorities  it  has 
always  been  held  that  when  there  are  contained  in  the  same  instru- 
ment distinct  engagements  by  which  a  party  binds  himself  to  do  cer- 
tain acts,  some  of  which  are  legal  and  some  illegal  at  common  law, 
the  performance  of  those  which  are  legal  may  be  enforced,  though 
the   performance   of   those   which   are   illegal   cannot "  («).29     And 

(s)   (1615)   11  Co.  Rep.  276.  1826,  which  contains  parts  11,  12,  and 

(t)   Referred  to  in  the  report  as  6       13. 
Co.  Rep.  26;  it  is  really  in  vol.  6,  ed.  (u)  Bank  of  Australasia  v.  Breillat 

(1847)  6  Moo.  P.  C.  152,  201. 

3»Gelpcke  v.  Dubuque,  1  Wall.  221;  McCullough  v.  Virginia,  172  U.  S. 
102,  115;  W.  U.  Tel.  Co.  v.  B.  &  S.  W.  Ry.  Co.,  3  MeCrary,  130;  Sims  v. 
Alabama  Brewing  Co.,  132  Ala.  311;  Osgood  v.  Bander,  75  la.  550;  Presbury 
v.  Fisher,  18  Mo.  50;  Erie  Ry.  Co.  ads.  Union  L.  &  E.  Co.,  35  N.  J.  L.  240; 
Leavitt  v.  Palmer,  3  N.  Y.  li),  37 ;  Ohio  r.  Board  of  Education,  35  Ohio  St. 
519,  527;  Pennsylvania  Co.  r.  Wentz,  37  Ohio  St.  333.  339.  Contra,  Santa 
Clara  Co.  v.  Hayes,  76  Cal.  387 ;  Lindsay  v.  Smith,  78  N.  C.  328. 

In  the  case  of  an  alternative  promise,  one  branch  of  which  is  lawful,  and  the 


UNLAWFUL    CONSIDERATION.  483 

where  a  transaction  partly  valid  and  partly  not  is  deliberately  sepa- 
rated by  the  parties  into  two  agreements,  one  expressing  the  valid 
and  the  other  the  invalid  part;  there  a  party  who  is  called  upon 
to  perform  his  part  of  that  agreement  which  is  on  the  face  of  it  valid 
cannot  be  heard  to  say  that  the  transaction  as  a  whole  is  unlawful  and 
void  (x). 

It  was  formerly  supposed  that  where  a  deed  is  void  in  part  by 
statute  it  is  void  altogether:  but  this  is  not  so.  "Where  you  cannot 
sever  the  illegal  from  the  legal  part  of  a  covenant,  the  contract  is 
altogether  void ;  but  where  you  can  sever  them,  whether  the  illegality 
be  created  by  statute  or  by  the  common  law,  you  may  reject  the  bad 
part  and  retain  the  good  "  (y). 

2.  Unlawful  consideration  or  part  of  consideration  avoids  the  whole  agree- 
ment. If  any  part  of  a  single  consideration  for  a  promise  or  set  of 
promises  is  unlawful,  the  whole  agreement  is  void.40 

(x)  Odessa  Tramways  Co.  v.  Men-  C.  P.  at  p.  250;  and  see  Royal  Ex- 
del  (1878)  8  Ch.  Div.  235,  47  L.  J.  change  Assurance  Corporation  v.  Sjor- 
Ch.  505.  forsakrings  Aktiebolaget  Vega  [1901] 

(y)     Per    Willes    J.    Pickering    v.  2  K.  B.  567,  573,  70  L.  J.  K.  B.  874. 
llfracom.be  By.   Co.    (1868)    L.  R.   3 

other  unlawful,  the  lawful  branch  can  be  enforced.  Hanauer  v.  Gray,  25 
Ark.  350. 

A  contract  in  restraint  of  trade  may  be  divisible,  and  hence  valid  in 
part,  and  void  in  part.  Price  v.  Greene,  16  M.  &  W.  346;  Dubowski  v.  Gold- 
stein, [1896]  1  Q.  B.  478;  Havnes  v.  Doman,  [1899]  2  Ch.  13,  24;  Oregon 
S.  N.  Co.  v.  Winsor,  20  Wall.  64;  W.  U.  Tel.  Co.  v.  B.  &  S.  W.  Ry.  Co.,  3 
McCrary,  130;  Dean  v.  Emerson,  102  Mass.  480;  Peltz  v.  Eiehele,  62  Mo.  171; 
Lange  v.  Werk,  2  Ohio  St.  520;  Smith's  Appeal,  113  Pa.  579.  Cp.  More  v. 
Bonnet,  40  Cal.  251;  Pranz  v.  Bieler,  126  Cal.  176;  Pishell  v.  Gray,  60 
N.  J.  L.  5. 

40Pettit's  Adm'r  v.  Pettit's  Distributees,  32  Ala.  288;  Railroad  Co.  v. 
Taylor,  6  Col.  1;  Chandler  v.  Johnson,  39  Ga.  85;  Ramsey's  Est.  v.  Whitbeek, 
183  III.  550;  James  v.  Jellison,  94  lnd.  292;  Baird  v.  Boehmer,  77  la.  622; 
Koster  v.  Seney,  99  la.  584;  Gerlach  v.  Skinner,  34  Kan.  86;  Collins  r.  Mur- 
rell,  2  Met.  (Ky.)  163;  Kimbrough  v.  Lane,  11  Bush,  556;  Perkins  v.  Cum- 
raings,  2  Gray,  258;  Bishop  v.  Palmer,  146  Mass.  469;  Stewart  v.  Thayer, 
168  Mass.  519,  170  Mass.  560;  Snider  t*.  Willey,  33  Mich.  483;  Carleton  v. 
Whitcher,  5  N.  H.  196;  Bixby  v.  Moore,  51  N.  H.  402;  Bank  v.  King,  44  N.  Y. 
87;  Filson's  Trustees  c.  Himes,  5  Pa.  452;  Pearce  r.  Wilson,  111  Pa.  14; 
Sullivan  v.  Horgan,  17  R.  I.  109 ;  Columbia  Carriage  Co.  r.  Hatch,  19  Tex.  Civ. 
App.  120;  Foley  r.  Speir,  100  N.  Y.  552;  Woodruff  v.  Hinman,  11  Vt.  592;' 
Covington  v.  Threadgill,  88  N.  C.  186;  McQuade  v.  Rosecrans,  36  Ohio  St.  442. 
Cp.  Pierce  v.  Pierce,  17  lnd.  App.  107. 

When  a  note  is  given  in  payment  of  an  account,  some  of  the  items  of  which 
are  legal  and  some  illegal,  although  an  action  would  still  lie  for  so  much  of  the 
account  as  is  made  up  of  lawful  items,  the  note  itself  is  entirely  void.  That  the 
plaintiff  cannot  recover  on  the  note  to  the  extent  of  the  lawful  items,  although 
they  are  distinctly  severable  from  the  unlawful,  see  Pacific  Guano  Co.  v.  Mul- 
len, 66  Ala.  582;  Deering  v.  Chapman,  22  Me.  488;  Cotton  ».  McKenzie  57 
Miss.  418;  Carleton  v.  Woods,  28  N.  H.  290;  Widoe  v.  Webb,  20  Ohio  St   431 


484  UNLAWFUL    AGREEMENTS. 

This  rule  assumes  the  consideration  not  to  be  severable,  and  in 
such  a  case  it  is  impossible  to  assign  a  lawful  consideration  to  the 
369]  promise  or  any  of  the  promises  induced  *by  it  (2).  In  other 
words,  where  independent  promises  are  in  part  lawful  and  in  part 
unlawful,  those  which  are  lawful  can  be  enforced;  but  where  any 
part  of  an  entire  consideration  is  unlawful,  all  promises  founded  upon 
it  are  void.41 

3.  Agreement  is  void  whose  immediate  object  is  unlawful.  When  the  im- 
mediate object  of  an  agreement  is  unlawful  the  agreement  is  void. 

This  is  an  elementary  proposition,  for  which  it  is  nevertheless  rather 
difficult  to  find  unexceptionable  words.  We  mean  it  to  cover  only 
those  cases  where  either  the  agreement  could  not  be  performed  without 
doing  some  act  unlawful  in  itself,  or  the  performance  is  in  itself  law- 
ful, but  on  grounds  of  public  policy  is  not  allowed  to  be  made  a 
matter  of  contract.  The  statement  is  material  chiefly  for  the  sake 
of  the  contrasted  class  of  cases  under  the  next  rule. 

(z)  See  Jones  v.  Waits,  5  Bing.  N.  C.  341,  356,  50  B.  E.  at  p.  707. 

The  contrary  was  decided  in  Shaw  v.  Carpenter,  54  Vt.  155,  and  Hynds  v. 
Hays,  25  Ind.  31.  Yundt  c.  Eoberta,  5  S.  &  E.  139,  and  Frazier  r.  Thompson, 
2  W.  &  S.  235,  which  are  also  frequently  cited  as  having  decided  that  a  re- 
covery pro  lanto  may  be  had  on  the  note,  did  not  really  involve  any  question 
of  illegality. 

It  is  no  defense  to  an  action  on  a  note  given  in  part  payment  of  an  account 
that  part  of  the  account  is  for  goods  sold  in  violation  of  law,  if  the  items  for 
poods  lawfully  sold  exceed  the  amount  of  the  note.  Warren  v.  Chapman.  105 
Mass.  87. 

If  one  of  two  considerations  be  void  for  insufficiency  only,  the  other  will 
support  the  contract.  Pierce  v.  Pierce,  17  Ind.  App.  107 ;  King  v.  King,  63 
Ohio  St.  363,  369. 

41  A  puzzle  arising  as  to  bilateral  contracts  in  the  application  of  the  first 
two  rules  stated  in  the  text  may  be  thus  stated:  If  A.  promise  to  give  B. 
$100,  and  B.  promise  in  consideration  thereof  to  do  two  acts,  one  lawful  and 
the  other  unlawful,  by  rule  1,  if  A.  sue  it  might  seem  that  he  could  enforce 
so  much  of  B.'s  promise  as  is  lawful ;  but  by  rule  2,  if  B.  sue,  he  could  not 
recover  at  all,  and  A.'s  promise  is  declared  void.  But  in  such  an  agreement 
the  sole  consideration  of  the  promise  or  promises  on  one  side  is  the  promise 
c-r  promises  on  the  other;  if,  then,  A.'s  promise  is  void,  there  is  no  considera- 
tion for  either  part  of  B.'s  promise.  The  agreement  therefore  is  totally  void 
for  lack  of  consideration  as  distinguished  from  illegal  consideration.  If.  how- 
ever, A.  performed  his  promise  by  paying  the  money  he  could  sue  on  B.'s  law- 
ful promise,  while  if  B.  performed  and  A.  did  not,  B.  could  not  recover  any- 
thing. It  may  be  further  that  if  A.  elected  to  sue  on  B.'s  lawful  promise  and 
to  take  a  judgment  upon  it  alone,  this  should  operate  as  an  assent  on  A.'s  part 
to  an  agreement  to  pay  the  $100  for  B.'s  lawful  promise,  and  thereby  both 
parties  become  bound,  A.  to  pay  $100  and  B.  to  perform  his  lawful  promise 
only.  See  Kearnev  r.  Whitehead  Colliery  Co..  [180.3]  1  Q.  B.  700;  More  v. 
Bonnet,  40  Cal.  251;  Sidall  v.  Clark.  89  Cal.  321:  Hynds  v.  Hays,  25  Ind.  31; 
Bishop  v.  Palmer.  146  Mass.  469;  Fishell  v.  Gray,  60  N.  J.  L.  5;  Lindsay  v. 
Smith,  78  N.  C.  328;   12  Harv.  L.  Eev.  424. 


UNLAWFUL    OBJECT.  485 

4.  Where  immediate  object  not  unlawful,  effect  of  unlawful  intention  of 
one  or  both  parties.  When  the  immediate  object  or  consideration  of 
an  agreement  is  not  unlawful,  but  the  intention  of  one  or  both  parties 
in  making  it  is  unlawful,  then — 

If  the  unlawful  intention  is  at  the  date  of  the  agreement  common 
to  both  parties,  or  entertained  by  one  party  to  the  knowledge  of  the 
other,  the  agreement  is  void. 

If  the  unlawful  intention  of  one  party  is  not  known  to  the  other 
at  the  date  of  the  agreement,  there  is  a  contract  voidable  at  the  option 
of  the  innocent  party  if  he  discovers  that  intention  at  any  time  before 
the  contract  is  executed. 

What  constitutes  unlawful  intention  in  such  cases.  Here  it  is  necessary 
to  consider  what  sort  of  connection  of  the  subject-matter  of  the  agree- 
ment with  an  unlawful  plan  or  purpose  is  enough  to  show  an  unlawful 
intention  that  will  vitiate  the  agreement  itself.  This  is  not  al- 
ways *easy  to  determine.  In  the  words  of  the  Supreme  Court  [370 
cf  the  United  States: — 

"  Questions  upon  illegal  contracts  have  arisen  very  often  both  in 
England  and  in  this  country;  and  no  principle  is  better  settled  than 
that  no  action  can  be  maintained  on  a  contract  the  consideration  of 
which  is  either  wicked  in  itself  or  prohibited  by  law.  How  far  this 
principle  is  to  affect  subsequent  or  collateral  contracts,  the  direct  and 
immediate  consideration  of  which  is  not  immoral  or  illegal,  is  a  ques- 
tion of  considerable  intricacy"  (a). 

Intention  to  put  property  purchased,  &c,  to  unlawful  use.  We  have  in 
the  first  place  a  well  marked  class  of  transactions  where  there  is  an 
agreement  for  the  transfer  of  property  or  possession  for  a  lawful 
consideration,  but  for  the  purpose  of  an  unlawful  use  being  made  of  it. . 
All  agreements  incident  to  such  a  transaction  are  void;  and  it  does 
not  matter  whether  the  unlawful  purpose  is  in  fact  carried  out  or 
not  (5).  The  later  authorities  show  that  the  agreement  is  void,  not 
merely  if  the  unlawful  use  of  the  subject-matter  is  part  of  the  bar- 
gain, but  if  the  intention  of  the  one  party  so  to  use  it  is  known  to 
the  other  at  the  time  of  the  agreement  (c).42    Thus  money  lent  to 

(a)  Armstrong  v.  Toler  (1826)  11  Turner  (1839)  5  Bing.  N.  C.  666,  in 
Wheat,  at  p.  272.  Ex.  Ch.  6  to.  324. 

(6)    Qas   Light   and   Coke   Go.   v.  (c)  Pearce  v.  Brooks  (1866)  L.  E. 

1  Ex.  213,  35  L.  J.  Ex.  134. 

42  The  weight  of  authority  in  this  country  does  not  support  so  severe  a  rule. 
In  Graves  v.  Johnson,  179  Mass.  53,  Holmes,  C.  J.,  delivering  the  opinion  of 
the  court,  said: 

"  In  our  opinion  a  sale  otherwise  lawful  is  not  connected  with  subsequent 


486  UNLAWFUL    AGREEMENTS. 

unlawful  conduct  by  the  mere  fact  that  the  seller  correctly  divines  the  buyer's 
unlawful  intent,  closely  enough  to  "make  the  sale  unlawful." 

"  It  may  be  that,  as  in  the  case  of  attempts  (Commonwealth  v.  Peaslee,  177 
Mass.  267;  Commonwealth  v.  Kennedy,  170  Mass.  18,  22),  the  line  of  prox- 
imity will  vary  somewhat  according  to  the  gravity  of  the  evil  apprehended, 
Steele  v.  Curie,  4  Dana,  381,  385-388;  Hanauer  v.  Doane,  12  Wall.  342,  446; 
Bickel  v.  Sheets,  24  Ind.  1,  4.  [See  also  Green  v.  Collins,  3  Cliff.  494;  Tracy 
v.  Talmage,  14  N.  Y.  162,  215],  and  in  different  courts  with  regard  to  the 
same  or  similar  matters.  Compare  Hubbard  v.  Moore,  24  La.  Ann.  591; 
Michael  v.  Bacon,  49  Mo.  474,  with  Pearee  v.  Brooks,  L.  R.  1  Ex.  213.  But 
the  decisions  tend  more  and  more  to  agree  that  the  connection  with  the  unlaw- 
ful act  in  cases  like  the  present  is  too  remote.  M'Intyre  r.  Parks,  3  Met.  207 ; 
Sortwell  i\  Hughes,  1  Curt.  C.  C.  244,  247;  Green  v.  Collins,  3  Cliff.  494; 
Hill  v.  Spear,  50  N.  H.  253;  Tracy  v.  Talmage,  14  N.  Y.  162;  Distilling  Co. 
v.  Nutt,  34  Kan.  724,  729 ;  Webber  v.  Donnelly,  33  Mich.  469 ;  Tuttle  v.  Hol- 
land, 43  Vt.  542;  Braunn  v.  Keally,  146  Pa.  519,  524;  Wallace  v.  Lark,  12 
S.  C.  576,  578;  Rose  r.  Mitchell,  6  Col.  102;  Jameson  v.  Gregory,  4  Met. 
(Ky.)  363,  370;  Bickel  v.  Sheets,  Hubbard  r.  Moore,  and  Michael  v.  Bacon, 
■ubi  supra." 

In  accord  with  the  view  thus  expressed  that  mere  knowledge  of  an  illegal 
purpose  does  not  bar  recovery,  see  Longnecker  r.  Shields,  1  Col.  App.  264; 
Eager  Co.  v.  Burke,  74  Conn.  534;  Singleton  v.  Bank  of  Monticello.  113  Ga. 
527;  Sondheim  r.  Gilbert,  117  Ind.  71;  Jackson  r.  City  Bank,  125  Ind.  347; 
Brunswick  v.  Valleau,  50  la.  120;  Feineman  r.  Sachs,  33  Kan.  621;  Tyler 
v.  Carlisle,  79  Me.  210;  Gambs  r.  Sutherland's  Est.,  101  Mich.  355;  Chamber- 
lin  !'.  Fisher,  117  Mich.  428;  Anheuser-Busch  Assoc,  r.  Mason,  44  Minn.  318; 
Wagner  v.  Breed,  29  Neb.  720;  Delavina  P.  Hill,  65  N.  H.  94;  Brvson  v.  Haley, 
68  N.  H.  337 ;  Amey  v.  Granite  State  Ins.  Co.,  68  N.  H.  446 ;  W'augh  r.  Beck, 
114  Pa.  422;  Bishop  v.  Honey,  34  Tex.  2.52;  McKinnev  r.  Andrews,  41  Tex. 
?G3;  Gaylord  v.  Soragen,  32  Vt.  110.  See  also  Cor'bin  v.  Wachhorst,  73 
Cal.  411. 

But  see  contra,  Milner  v.  Patton,  49  Ala.  423;  Oxford  Iron  Co.  v.  Spradley, 
51  Ala.  171;  Ware  v.  Jones,  61  Ala.  288;  Lewis  v.  Latham,  74  N.  C.  283.  And 
compare  Lang  v.  Lynch,  38  Fed.  Rep.  489;  Plank  v.  Jackson,  128  Ind.  424; 
Williamson  v.  Baley,  78  Mo.  636;  Fisher  r.  Lord,  63  N.  H.  514;  Jones  v.  Sur- 
prise, 64  N.  H  243  (cp.  Durkee  p.  Moses,  67  N.  H.  115)  ;  Hull  v.  Ruggles,  56 
N,  Y.  424;  Arnot  r.  Pittston  Coal  Co.,  68  N.  Y.  558;  Materne  v.  Horwitz,  101 
N.  Y.  469;  Spurgeon  v.  McElwain,  6  Ohio,  442;  Mordecai  v.  Dawkins,  9 
Rich.  L.  262;  Oliphant  v.  Markham,  79  Tex.  543;  Aiken  r.  Blaisdell,  41  Vt. 
655;  Mound  v.  Barker,  71  Vt.  253. 

At  all  events  mere  reasonable  cause  of  belief  without  actual  knowledge, 
on  the  part  of  the  seller  of  the  goods,  that  the  purchaser  buys  for  an  unlawful 
use,  does  not  prevent  recovery  of  the  price.  See  Ramsev  v.  Smith,  138  Ala. 
333;  Brunswick  r.  Valleau,  50  la.  120;  Ely  r.  Webster,  102  Mass.  304;  Adams 
v.   Coulliard,  102  Mass.  167. 

But  if  the  vendor  does  anj'thing  beyond  making  the  sale  to  aid 
the  unlawful  purpose  of  the  vendee,  he  cannot  recover.  Kohn  v.  Melcher,  43 
Fed.  Rep.  641  •  Feineman  r.  Sachs,  33  Kan.  621;  Banchor  v.  Mansel,  47  Me.  58; 
Foster  v.  Thurston,  11  Cush.  322:  Storz  r.  Finklestein,  48  Neb.  27;  Skiff  v. 
Johnson,  57  N.  H.  475;  Fisher  p.  Lord,  63  N.  H.  514;  Hull  v.  Ruggles,  56 
N.  Y.  425;  Arnot  r,  Pittston  Coal  Co.,  68  N.  Y.  558;  Chimene  r.  Pennington, 
79  S.  W.  Rep.  63  (Tex.  Civ.  App.)  ;  Gaylord  v.  Soragen,  32  Vt.  110:  Aiken  v. 
Blaisdell,  41  Vt.   655. 

A  common  application  of  this  principle  is  in  regard  to  leases  and  sales  to 
proprietors  of  houses  of  prostitution.  See  Ramsey  p.  Smith,  138  Ala.  333: 
Postelle  r.  Rivers,  112  Ga.  850;  Hubbard  r.  Moore, '24  La.  Ann.  591;  Sampson 
v.  Townsend,  25  La.  Ann.  78;  Mahood  r.  Tealza,  26  La.  Ann.  108:  McDonald 
p.  Born  (Mich.),  97  N.  W.  Rep.  693:  Anheuser-Busch  Brewing  Assoc,  r.  Mason, 
44  Minn.  318;  Sprague  r.  Rooney,  82  Mo.  493,  104  Mo.  349;  Ernst  I'.  Crosby, 
140  N.  Y.  364;  Bishop  c.  Honey,  34  Tex.  245;  Reed  r.  Brewer,  90  Tex.  144; 
Hunstock  r.  Palmer,  4  Tex.  Civ.  App.  459;  Standard  Furniture  Co.  v.  Van 
Alstine,  22  Wash.  670. 


UNLAWFUL   USE   OF   SUBJECT   MATTER.  487 

be  used  in  an  unlawful  manner  cannot  be  recovered  (i).43  It  is  true 
that  money  lent  to  pay  bets  can  be  recovered,  but  that,  as  we  have 
seen,  is  because  there  is  nothing  unlawful  in  either  making  a  bet 
or  paying  it  if  lost,  though  the  payment  cannot  be  enforced.44  If 
goods  are  sold  by  a  vendor  who  knows  that  the  purchaser  means  to 
apply  them  to  an  illegal  or  immoral  purpose,  he  cannot  recover  the 
price:  it  is  the  same  of  letting  goods  on  hire  (e).  If  a  building  is 
demised  in  order  to  be  used  in  a  manner  forbidden  by  a  Building  Act, 
the  lessor  cannot  recover  on  any  covenant  in  the  lease  (/)  .45  And  in 
like  manner  if  the  lessee  of  a  house  *which  to  his  knowledge  is  [371 
used  by  the  occupiers  for  immoral  purposes  assigns  the  lease,  know- 
ing that  the  assignee  means  to  continue  the  same  use,  he  cannot  re- 
cover on  the  assignee's  covenant  to  indemnify  him  against  the  cove- 
nants of  the  original  lease  (<7).46  It  does  not  matter  whether  the 
seller  or  lessor  does  or  does  not  expect  to  be  paid  out  of  the  fruits  of 
the  illegal  use  of  the  property  (h). 

Option  of  party  innocent  in  the  first  instance  to  avoid  the  contract  on  dis- 
covering such  intention.  An  owner  of  property  who  has  contracted  to 
sell  or  let  it,  but  finds  afterwards  that  the  other  party  means  to  use 
it  for  an  unlawful  purpose,  is  entitled  (if  not  bound)  to  rescind  the 
contract;  nor  is  he  bound  to  give  his  reason  at  the  time  of  refusing  to 

(d)  Cannanv.  Bryce  (1819)  3  B.  &  Turner  (1839)  5  Bing.  N.  C.  666,  in 
Aid.  179,  22  R.  R.  342.  Ex.  Ch.  6  ib.  324. 

(e)  Pearce  v.  Brooks  (1866)  L.  R.  (g)  Smith  v.  White  (1866)  L.  R.  1 
1  Ex.  213,  35  L.  J.  Ex.  134.  Eq.  626,  35  L.  J.  Ch.  454. 

if)     Gas    Light    and    Coke    Co.    v.  (h)   See  note  (e),  ante. 

43  If  loaned  for  the  purpose  of  furthering  the  illegal  transaction.  Insurance 
Co.  v.  Spradley,  46  Ala.  98;  Plank  r.  Jackson,  128  Ind.  424;  Tyler  v.  Carlisle, 
79  Me.  210;  White  v.  Buss,  3  Cush.  448;  Virden  v.  Murphy,  78  Miss.  515; 
Plumer  v.  Smith,  5  N.  H.  553;  Cutler  r.  Welsh,  43  N.  H,  497;  Ruckman  v. 
Brvan,  3  Den.  340;  Critcher  v.  Holloway,  64  N.  C.  526;  Waugh  v.  Beck,  114 
Pa.  422.  Cp.  Hanover  Bank  t\  First  Bank,  109  Fed.  Rep.  421  (C.  C.  A.) .  But 
that  mere  knowledge  by  the  lender  of  the  borrower's  illegal  purpose  will  not 
prevent  a  recovery  is  held  in  Jackson  v.  City  Bank,  125  Ind.  347 ;  Tyler  v. 
Carlisle,  79  Me.  210;  Walker  v.  Jeffries,  45  Miss.  160;  Howell  v.  Stewart,  54 
Mo.  400;  Jones  v.  Bank,  9  Heisk.  455;  MeGavock  v.  Puryear,  6  Coldw.  34; 
Henderson  v.  Waggoner,  2  Lea,  133;  Lewis  v.  Alexander,  51  Tex.  578. 

44  But  see  ante,  p.  406,  n.  60. 

45  If  a  building  be  let  with  intent  that  it  should  be  used  for  an  unlawful 
purpose,  the  lessor  cannot  recover  the  rent.  Dougherty  v.  Seymour,  16  Col. 
289;  Ralston  v.  Boady,  20  Ga.  449;  Edelmuth  v.  McGarren,  4  Daly,  467; 
Ernst,  v.  Crosby,  140  N.  Y.  364;  Hunstock  v.  Palmer,  4  Tex.  Civ.  App.  459. 

Bare  knowledge  by  the  lessor  of  the  lessee's  intended  unlawful  use  of  the 
premises  will  not  prevent  his  recovering  rent.  Taylor  v.  Levy,  24  Atl.  Rep. 
608  (Md.  C.  A.)  ;  Updike  v.  Campbell.  4  E.  D.  Smith.  570;  Miller  r.  Maguire, 
18  R.  I.  770.  Cp.  Lyman  v.  Townsend.  24  La.  Ann.  625;  Ernst  v.  Crosby,  140 
N.  Y.  364;  Burton  v.  Dupree,  19  Tex.  Civ.  App.  275  (statutory). 

46  See  Riley  v.  Jordan,  122  Mass.  231. 


488  UNLAWFUL    AGREEMENTS. 

perform  it.  He  may  justify  the  refusal  afterwards  by  showing  the 
unlawful  purpose,  though  he  originally  gave  no  reason  at  all,  or 
even  a  different  reason  (i).47 

An  executed  transfer  of  possession  remains  good.  But  a  completely  exe- 
cuted transfer  of  property  or  an  interest  in  property,  though  made  on 
an  unlawful  consideration,  or,  it  is  conceived,  for  an  unlawful  pur- 
pose known  to  both  parties,  is  valid,  and  cannot  afterwards  be  set 
aside  (/).48  And  an  innocent  party  who  discovers  the  unlawful  in- 
tention of  the  other  after  the  contract  has  been  executed  is  not  en- 
titled to  treat  the  transaction  as  void  and  resume  possession  (fc).  As 
with  contracts  voidable  on  other  grounds,  this  rule  applies,  it  is  con- 
ceived, only  where  an  interest  in  possession  has  been  given  by  con- 
veyance or  delivery.  The  vendor  who  has  sold  goods  so  as  to  pass  the 
general  property,  but  without  delivery,  or  the  lessor  who  has  exe- 
cuted a  demise  to  take  effect  at  a  future  day,  might  rescind  the  con- 
372]  tract  and  stand  remitted  to  his  ^original  right  of  possession  on 

(t)  Coioanv.  Milbourn  (1867)  L.  R.  217;  but  this  seems  unsupported:  see 

2  Ex.  230,  36  L.  J.  Ex.  124;   see  per  L.  R.  4  Q.  B.  311,  315. 
Bramwell  B.  ad  fin.  (k)   Feret  v.  Hill   (1854)    15  C.  B. 

(;)  Ayerst  v.  Jenkins  (1873)  L.  R.  207,  23  L.  J.  C.  P.  185,  where  an  in- 

16   Eq.   275,   42   L.   J.   Ch.    690.     As  terest  in  realty  had  passed  and  the 

to  chattels,  contra  per  Martin  B.  in  re-entry  was  forcible;  but  semble,  the 

Pearce  v.  Brooks   (1866)   L.  R.  1  Ex.  lease  was  voidable  in  equity. 

«  Church  v.  Proctor,  66  Fed.  Rep.  240,  244  (C.  C.  A.).  But  see  O'Brien 
v.  Brietenbach,  1  Hilt.  304. 

48  St.  Louis,  &c.  R.  Co.  v.  Terre  Haute,  &c.  R.  Co.,  145  U.  S.  393,  407 ;  Trust 
Co.  v.  Bear  Valley  Co.,  112  Fed.  Rep.  690,  702;  Hubbard  v.  Sayre,  105  Ala.  440; 
Johnston  i:.  Allen,  22  Fla.  224;  Adams  v.  Barrett,  5  Ga.  404,  414;  Railroad 
Co.  v.  Mathers,  71  111.  592,  598;  Dumont  v.  Dufore,  27  Ind.  263;  Corns  v. 
Clouser,  13-7  Ind.  201;  Setter  v.  Alvey,  15  Kan.  157;  Ratcliffe  v.  Smith,  13 
Bush,  172;  Levet  v.  His  Creditors,  22  La.  Ann.  105;  Worcester  v.  Eaton,  11 
Mass.  368;  Atwood  v.  Fisk,  101  Mass.  363;  Bryant  r.  Peck,  154  Mass.  460; 
Traders'  Bank  t\  Steere,  165  Mass.  389;  Reed  v.  Bond,  96  Mich.  134;  Brower  v. 
Fass,  60  Neb.  590 ;  Thompson  v.  Williams,  58  N.  H.  248 ;  Rosenbaum  v.  Hayes, 
10  N.  Dak.  311;  Moore  r.  Adams,  8  Ohio,  372;  Thomas  v.  Cronise,  16  Ohio,  54; 
Booker  v.  Wingo,  29  S.  C.  116;  Beer  v.  Landman,  88  Tex.  450;  Dixon  v.  Olm- 
stead,  9  Vt.  310 ;  Cohn  r.  Heimbauch,  86  Wis.  176.  But  see  Savings  Bank  v. 
National  Bank,  38  Fed.  Rep.  800 ;  Harrison  v.  Hatcher,  44  Ga.  638 ;  Kirkpatrick 
v.  Clark.  132  111.  342;  Lockren  v.  Rustan,  9  N.  Dak.  43;  Drinkall  v.  Movius 
Bank,  11  N.  Dak.  10;  Still  v.  Buzzell,  60  Vt.  47S;  Heckman  t?.  Swartz,  50 
Wis.  267. 

In  a  series  of  cases  in  Ohio  growing  out  of  a  note,  secured  by  mortgage 
of  real  estate,  given  to  stifle  a  prosecution,  the  decisions  were  as  follows: 
In  an  action  on  the  note  the  payee  was  held  not  entitled  to  recover  on  account 
of  the  illegality  of  the  consideration.  Roll  v.  Raguet,  4  Ohio,  400.  The  same 
result  was  reached  in  a  proceeding  by  scire  facias  on  the  mortgage.  Raguet 
v.  Roll,  7  Ohio,  pt.  1,  76.  The  mortgagee  then  brouglit  ejectment  on  the  mort- 
gage, the  condition  having  been  broken,  and  recovered  a  judgment  for  posses- 
sion of  the  land.  Raguet  r.  Roll,  7  Ohio.  pt.  2,  70;  (ace.  Williams  v.  Engle- 
brecht,  37  Ohio  St.  383 ) .  Subsequently  the  mortgagor  was  allowed  to  redeem. 
Cowles  v.  Raguet,  14  Ohio,  38. 


TRANSACTION    UNLAWFUL    AS    A    WHOLE.  489 

learning  the  unlawful  use  of  the  property  designed  by  the  purchaser 
or  lessee  (I). 

Insurance  void  where  voyage  illegal  to  knowledge  of  owner.  On  the  same 
principle  an  insurance  on  a  ship  or  goods  is  void  if  the  voyage  covered 
by  the  insurance  is  to  the  knowledge  of  the  owner  unlawful  (which 
may  happen  by  the  omission  of  the  statutory  requirements  enacted  for 
the  protection  of  seamen  and  passengers,  as  well  as  in  the  case  of 
trading  with  enemies  or  the  like) .  "  Where  the  object  of  an  Act 
of  Parliament  is  to  prohibit  a  voyage,  the  illegality  attaching  to  the 
illegal  voyage  attaches  also  to  the  policy  covering  the  voyage,"  if  the 
illegality  be  known  to  the  assured.  But  acts  of  the  master  or  other 
persons  not  known  to  the  owner  do  not  vitiate  the  policy,  though 
they  may  be  such  as  to  render  the  voyage  illegal  (m).49 

Agreements  connected  with  but  subsequent  to  an  unlawful  transaction. 
An  agreement  may  be  made  void  by  its  connexion  with  an  unlawful 
purpose,  though  subsequent  to  the  execution  of  it. 

To  have  that  effect,  however,  the  connexion  must  be  something  more 
than  a  mere  conjunction  of  circumstances  into  which  the  unlawful 
transaction  enters  so  that  without  it  there  would  have  been  no  oc- 
casion for  the  agreement.  It  must  amount  to  a  unity  of  design  and 
purpose  such  that  the  agreement  is  really  part  and  parcel  of  one 
entire  unlawful  scheme.  This  is  well  shown  by  some  cases  decided 
in  the  Supreme  Court  of  the  United  States,  and  spreading  over  a 
considerable  time.  They  are  the  more  *worth  special  notice  as  [373 
they  are  unlike  anything  in  our  own  books. 

Cases  in  United  States  Supreme  Court.  In  Armstrong  v.  Toler  (n)  the 
point,  as  put  by  the  Court  in  a  slightly  simplified  form,  was  this :  "A. 
during  a  war  contrives  a  plan  for  importing  goods  on  his  own  ac- 

(l)   Cp.  Cowan  v.  Milboum  (1867)  cotton  from  the  Confederate  Govern- 

L.  R.  2  Ex.  230;  36  L.  J.  Ex.  124.  ment,    knowing    that    the    purchase- 

(m)  Wilson  v.  Rankin  (1865)  L.  R.  money  would  be  applied  in  support  of 

1  Q.  B.  162,  35  L.  J.  Q.  B.  203   (Ex.  the  rebellion,  eould  not  be  recognized 

Ch.)  ;    Dudgeon  v.   Pembroke    (1874)  by  the  U.   S.  courts  as  owner  of  the 

L.  R.  9  Q.  B.  581,  at  p.  585,  43  L.  J.  cotton:  diss.  Field  J.  on  the  grounds 

Q.  B.  220,  per  Quain  J.  and  authori-  (which    seem    right)    that   it   was   a 

ties  there  referred  to.    Cp.  further,  on  question  not  of  contract  but  of  own- 

the  general  head  of  agreements  made  ership,  and  that  in  deciding  on  title 

with  an  unlawful  purpose,  Hanauer  v.  to  personal  property  the  de  facto  gov- 

Doane    (1870)    2    Wallace,    342.      In  ernment   existing    at    the    time    and 

Sprott  v.  U.  8.  (1874)  20  ib.  459   [see  place  of  the  transaction  must  be  re- 

also  Walker's  Exrs.  v.  U.  8.,  106  TJ.  S.  garded. 

413],    it  was   held   that  a  buyer   of  (»)   (1826)    11  Wheaton,  258,  269. 

49  3  Kent,  262.  And  see  Kelly  v.  Insurance  Co.,  97  Mass.  288;  Johnson  v. 
Insurance  Co.,  127  Mass.  555,  cases  of  contracts  of  insurance  against  fire. 


490  UNLAWFUL    AGREEMENTS. 

count  from  the  country  of  the  enemy,  and  goods  are  sent  to  B.  by 
the  same  vessel.  A.  at  the  request  of  B.  becomes  surety  for  the  pay- 
ment of  the  duties  [in  fact  a  commuted  payment  in  lieu  of  confisca- 
tion of  the  goods  themselves]  which  accrue  on  the  goods  of  B.,  and  is 
compelled  to  pay  them;  can  he  maintain  an  action  on  the  promise 
of  B.  to  return  this  money?"  The  answer  is  that  he  can,  for  the 
"  contract  made  with  the  government  for  the  payment  of  duties  is  a 
substantive  independent  contract  entirely  distinct  from  the  unlawful 
importation."  60  But  it  would  be  otherwise  if  the  goods  had  been 
imported  on  a  joint  adventure  by  A.  and  B.  In  McBlaif  v.  Gibbes  (o) 
an  assignment  of  shares  in  a  company  was  held  good  as  between  the 
parties  though  the  company  had  been  originally  formed  for  the  un- 
lawful purpose  of  supporting  the  Mexicans  against  the  Spanish  Gov- 
ernment before  the  independence  of  Mexico  was  recognized  by  the 
United  States.  In  Miltenberger  v.  Cooke  (p)  the  facts  were  these. 
In  1866  a  collector  of  United  States  revenue  in  Mississippi  took  bills 
in  payment  when  he  ought  to  have  taken  coin,  his  reason  being  that 
the  state  of  the  country  made  it  still  unsafe  to  have  much  coin  in 
hand.  In  account  with  the  government  he  charged  himself  and  was 
charged  with  the  amount  as  if  paid  in  coin.  Then  he  sued  the  ac- 
ceptors on  the  bills,  and  it  was  held  there  was  no  such  illegality  as 
to  prevent  him  from  recovering.  If  the  mode  of  payment  was  a 
breach  of  duty  as  against  the  Federal  government,  it  was  open  to 
the  government  alone  to  take  any  objection  to  it. 

Fisher  v.  Bridges.  We  return  to  our  own  Courts  for  a  case  where  on 
374]  the  *other  hand  the  close  connexion  with  an  illegal  design  was 
established  and  the  agreement  held  bad.  In  Fisher  v.  Bridges  (q) 
the  plaintiff  sued  the  defendant  on  a  simple  covenant  to  pay  money. 
The  defence  was  that  the  covenant  was  in  fact  given  to  secure  pay- 
ment of  part  of  the  purchase-money  of  certain  leasehold  property 

(o)    (1854)    17  Howard,  232.  (q)    (1853)   2  E.  &.  B.  118.  22  L.  J. 

(p)   (1873)   18  Wallace,  421.  Q.  B.  270;  in  Ex.  Ch.  3  E.  &  B.  642, 

23  L.  J.  Q.  B.  276. 

so  Though  a  corporation  is  an  unlawful  combination  or  is  carrying  on  some 
illegal  business  it  may  recover  on  its  lawful  contracts.  Dickerman  v.  North- 
iWTrust  Co.,  176  U.  S.  181;  Connolly  r.  Union  Pipe  Co.,  184  U.  S.  540:  The 
Charles  E.  Wiswall,  86  Fed.  Rep.  671  (C.  C.  A.)  ;  Dennehv  r.  MeNulta,  86  Fed. 
Rep.  325  (C.  C.  A.)  ;  Willey  v.  National  Paper  Co.,  70  111.  App.  543;  Barton 
i\  Mulvane.  59  Kan.  313;  Globe  Tobacco  Warehouse  Co.  v.  Leach,  19  Ky.  L. 
Rep.  1287;  Houck  r.  Wright,  77  Miss.  476;  Tavlor  v.  Bell  Soap  Co.,  45  ST.  Y. 
Supp.  939 ;  National  Distilling  Co.  v.  Cream  City  Co.,  8B  Wis.  352.  See  also 
General  Electric  Co.  v.  Wise,  1 19  Fed.  Rep.  922.  Contra,  National  Lead  Co.  r. 
S.  E.  Grote  Co.,  89  Mo.  App.  247  (statutory)  ;  Pasteur  Vaccine  Co.  r.  Burkey, 
22  Tex.  Civ.  App.  232  (statutory).  Cp.  Delaware,  &e.  R.  Co.  v.  Frank,  110 
Fed.  Rep.  689;  Sinsheimer  v.  Garment  Workers,  77  Hun,  215. 


SECURITIES    FOE    PAYMENT,    WHEN    VOID.  491 

assigned  by  the  plaintiff  to  the  defendant  in  pursuance  of  an  unlawful 
agreement  that  the  land  should  be  resold  by  lottery  contrary  to  the 
statute  (r).  The  Court  of  Queen's  Bench  held  unanimously  that  the 
covenant  was  good,  as  there  was  nothing  wrong  in  paying  the  monej", 
even  if  the  unlawful  purpose  of  the  original  agreement  had  in  fact 
been  executed:  and  the  case  was  likened  to  a  bond  given  in  con- 
sideration of  past  cohabitation.  But  the  Court  of  Exchequer  Chamber 
unanimously  reversed  this  judgment,  holding  that  the  covenant  was 
in  substance  part  of  an  illegal  transaction,  whether  actually  given  in 
pursuance  of  the  first  agreement  or  not.  "  It  is  clear  that  the  cove- 
nant was  given  for  payment  of  the  purchase-money.  It  springs  from 
and  is  a  creature  of  the  illegal  agreement ;  and  as  the  law  would  not 
enforce  the  original  contract,  so  neither  will  it  allow  the  parties  to  en- 
force a  security  for  the  purchase-money  which  by  the  original  bargain 
was  tainted  with  illegality."  They  further  pointed  out  that  the  case  of 
a  bond  given  for  past  cohabitation  was  not  analogous,  inasmuch  as 
past  cohabitation  is  not  an  illegal  consideration  but  no  consideration  at 
all.  But  "if  an  agreement  had  been  made  to  pay  a  sum  of  money 
in  consideration  of  future  cohabitation,  and  after  cohabitation,  the 
money  being  unpaid,  a  bond  had  been  given  to  secure  that  money,  that 
would  be  the  same  case  as  this;  and  such  a  bond  could  not  under  such 
circumstances  be  enforced." 

Principle  of  the  judgment.  Some  of  the  language  used  may  have  been 
"vague  in  itself  and  dangerous  as  a  precedent"  (s).  The  de-' 
cision,  *  however,  does  not  appear  to  require  anything  wider  [375 
than  this — that  where  a  claim  for  the  payment  of  money  as  on  a 
simple  contract  would  be  bad  on  the  ground  of  illegality,  a  subse- 
quent security  for  the  same  payment,  whether  given  in  pursuance  of 
the  original  agreement  or  not,  is  likewise  not  enforceable :  or,  more 
shortly — 

5.  Security  for  payments  under  unlawful  agreement  is  equally  void  with 
the  original  agreement.  Any  security  for  the  payment  of  money  under 
an  unlawful  agreement  is  itself  void,  even  if  the  giving  of  the  security 
was  not  part  of  the  original  agreement. 

To  this  extent  at  least  the  principle  of  Fisher  v.  Bridges  has  been 
repeatedly  acted  on  (t).51    In  Geere  v.  Mare  (t)  a  policy  of  assurance 

(r)  12  Geo.  2,  e.  28,  s.  1.  v.  Mare  (1863)  2  H.  &  C.  339,  33  L.  J. 

(s)   1  Sm.  L.  C.  377.  Ex.  50;  Clay  v.  Ray   (1864)    17  C.  B. 

(t)    Grwme  v.   Wroughton    (1855)  N.  S.  188. 
11  Ex.   146,  24  L.  J.  Ex.  265;   Geere 

51  Morris  v.  Norton,  75  Fed.  Rep.  912,  927;  Marden  r.  Phillips,  103  Fed.  Rep. 
196;  Clement's  Appeal,  52  Conn.  464;  Blasdel  v.  Fowle,  120  Mass.  447;  Coul- 


492  UNLAWFUL    AGREEMENTS. 

was  assigned  by  deed  as  a  further  security  for  the  payment  of  a  bill 
of  exchange.  The  bill  itself  was  given  to  secure  a  payment  by  way  of 
fraudulent  preference  to  a  particular  creditor,  and  accepted  not  by  the 
debtor  himself  but  by  a  third  person.  It  was  held,  both  on  principle 
and  on  the  authority  of  Fisher  v.  Bridges,  that  the  deed  could  not  be 
enforced.  Again  in  Clay  v.  Bay  (u)  two  promissory  notes  were  secretly 
given  by  a  compounding  debtor  to  a  creditor  for  a  sum  in  excess  of 
the  amount  of  the  composition.  Judgment  was  obtained  in  an  action 
on  one  of  these  notes.  In  consideration  of  proceedings  being  stayed 
and  the  notes  given  up  a  third  person  gave  a  guaranty  to  the  creditor 
for  the  amount :  it  was  held  that  on  this  guaranty  no  action  could  be 
maintained. 

It  seems  doubtful  whether  this  principle  would  apply  to  a  security 
for  money  payable  under  an  agreement  of  which  the  performance  was 
not  unlawful,  though  the  agreement,  on  grounds  of  public  policy,  were 
not  enforceable. 

This  is  a  convenient  place  to  state  a  rule  of  a  more  special  kind 
376]  which  has  already  been  assumed  in  the  discussion  of  *  various 
instances  of  illegality,  and  the  necessity  of  which  is  obvious :  namely : — • 

5a.  Bond  with  unlawful  condition  void.  If  the  condition  of  a  bond 
is  unlawful,  the  whole  bond  is  void  (x). 

Rules  of  Evidence  and  Procedure  touching  Unlawful  Agreements. 

6.  Illegality  may  be  shown  by  extrinsic  evidence.  Extrinsic  evidence 
is  always  admissible  to  show  that  the  object  or  consideration  of  an 
agreement  is  in  fact  illegal. 

(«)   17  C.  B.  N.  S.  188.  (as  if  the  condition  were  merely  im- 
(x)    Co.  Lit.  206  b,  Shepp.  Touch.  possible)  :  but  this  distinction  is  now 
372 :  where  it  is  said  that  if  the  mat-  clearly  not  law :  see  Duvergier  v.  Fet- 
ter of  the  condition  be  only   malum  loirs  ( 1830 )  10  B.  &  C.  826. 
prohibitum,  the  obligation  is  absolute 

ter  v.  Robinson,  14  S.  &  M.  18;  Minzesheimer  i\  Doolittle,  60  N.  J.  Eq.  394; 
Griffiths  v.  Sears,  112  Pa.  523;  Given's  Appeal,  121  Pa.  260;  Edwards  r. 
Skirving,  1  Brev.  548.  Cp.  Hoyt  v.  Cross,  108  N.  Y.  76;  Swan  v.  Scott,  11 
S.  &  R.  155 ;  Bly  v.  Bank,  79  Pa.  453. 

An  award  on  an  illegal  contract  was  held  void  in  Hall  v.  Kimmer.  61  Mich. 
269.  And  a  judgment  was  held  void  and  execution  enjoined  in  Kmmerson  ('. 
Townsend,  73  Md.  224.  But  this  decision  seems  inconsistent  with  the  estab- 
lished principle  that  equity  will  aid  neither  party  to  an  illegal  contract  if  both 
are  in  pari  delicto.  Sample  r.  Barnes,  14  How.  70;  Garrison  r.  Burns,  98  Ga. 
762;  Minzesheimer  r.  Doolittle,  60  N.  J.  Eq.  394:  Sharp  v.  Stalker,  63  N.  J. 
Eq.  596;  Lawton  r.  Estes,  167  Mass.  181;  Beer  r.  Landman,  88  Tex.  450;  Rock 
r.  Matthews,  35  W.  Va.  531.  Where  the  parties  are  not  in  pari  delicto  relief 
is  granted.  See  infra,  p.  *384.  Equitable  relief  in  Hulhorst  i>.  Seharner,  15 
Neb.  57 ;  James  v.  Roberts,  18  Ohio,  548.  See  also  Insurance  Co.  v.  Hull,  51 
Ohio  St.  270,  280. 


EVIDENCE   OF    UNLAWFUL    INTENTION.  493 

This  is  an  elementary  rule  established  by  decisions  both  at  law  (y) 
and  in  equity  (z).  Even  a  document  which  for  want  of  a  stamp  would 
not  be  available  to  establish  any  right  is  admissible  to  prove  the  illegal 
nature  of  the  transaction  to  which  it  belongs  (a). 

6a.  Where  unlawful  intention  is  alleged  it  must  be  shown  to  have  existed 
at  date  of  agreement.  But  where  the  immediate  object  of  the  agree- 
ment (in  the  sense  explained  above)  is  not  unlawful,  we  have  to  bear 
in  mind  a  qualifying  rule  which  has  been  thus  stated : 

"  When  it  is  sought  to  avoid  an  agreement  not  being  in  itself  unlawful  on 
the  ground  of  its  being  meant  as  part  of  an  unlawful  scheme  or  to  carry  out 
an  unlawful  object,  it  must  be  shown  that  such  was  the  intention  of  the 
parties  at  the  time  of  making  the  agreement  "   ( 6 )  .52 

Evidence  of  unlawful  intention.  The  fact  that  unlawful  means  are  used 
in  performing  an  agreement  which  is  prima  facie  lawful  and  capable 
of  being  lawfully  performed  does  not  of  itself  make  the  agreement 
unlawful  (c).63  This  or  other  subsequent  conduct  of  the  *par-  [377 
ties  in  the  matter  of  the  agreement  may  be  evidence,  but  evidence  only, 
that  a  violation  of  the  law  was  part  of  their  original  intention,  and 
whether  it  was  so  is  a  pure  question  of  fact  (d).  The  omission  of 
statutory  requisites  in  carrying  on  a  partnership  business  is  consistent 
with  the  contract  of  partnership  itself  being  lawful ;  but  if  it  is  shown 
as  a  fact  that  there  was  from  the  first  a  secret  agreement  to  carry  on 
the  business  in  an  illegal  manner,  the  whole  must  be  taken  as  one 
illegal  transaction  (e).     Again,  it  is  no  answer  to  a  claim  for  an 

(y)    Collins  v.  Blantern   (1767)    1  merely    inoperative,    and    leaves    the 

Sm.  L.  C.  original    contract    in    force:    City    of 

(«)   Beynell  v.  Sprye   (1852)    1  D.  Memphis  v.  Brown  (1873)  20  Wallace 

M.  &  G.  060,  672,  21  L.  J.  Ch.  633,  (Sup.  Ct.  U.  S.)  289. 
per  Knight-Bruce  L.J.  (d)  Fraser  v.  Hill  (1853)   1  McQu. 

(a)  Coppooh  v.  Bower  (1838)  4  M.  392. 
&  W.  361,  51  R.  R.  627.  (e)  Armstrong  v.  Armstrong  ( 1834) 

(6)  LordHowdenv.  Simpson  (1839)  3  M.  &  K.  45,  64,  13  L.  J.  Ch.  101,  41 

10  A.  &  E.  793,  818,  50  R.  R.  555,  573.  R.   R.   10 ;   8.   C.   nom.   Armstrong   v. 

(c)  A  subsequent  agreement  to  vary  Lewis   (1834)   in  Ex.  Ch.  2  Cr.  &  M. 

the   performance   of  a   contract  in  a  274,  297. 
way  that  would  make  it  unlawful  is 

52  Church  v.  Proctor,  66  Fed.  Rep.  240  (C.  C.  A.)  ;  Pape  v.  Wright,  116  lnd. 
502,  507;  Sawver  v.  Taggart,  14  Bush,  727,  734;  Wall  v.  Schneider,  59  Wis. 
352,  359. 

The  correctness  of  this  rule  seems,  however,  questionable.  Public  policy  cer- 
tainly requires  that  the  illegal  intent  whenever  conceived  should  not  be  carried 
into  execution.  According  to  the  rule  stated  in  the  text,  an  innocent  party 
may  be  bound  to  aid  the  execution  of  an  illegal  purpose  or  be  liable  for  breach 
of  contract.  There  seems  no  theoretical  difficulty  in  saying  that  the  change 
of  purpose  subsequent  to  the  formation  of  the  contract  gives  rise  to  a  defence 
which  did  not  previously  exist.     See  infra,  p.  514. 

53  Barry  v.  Capen,  151  Mass.  99,  100;  Fox  v.  Rogers,  171  Mass.  546;  Drake 
v.  Lauer,  93  N.  Y.  App.  Div.  86. 


494  UNLAWFUL    AGBEEMENTS. 

account  of  partnership  profits  that  there  was  some  collateral  breach 
of  the  law  in  the  particular  transaction  in  which  they  were  earned  (/). 
Where  a  duly  enrolled  deed  inter  vivos  purported  to  create  a  rent- 
charge  for  charitable  purposes,  but  the  deed  remained  in  the  grantor's 
keeping,  no  vjayment  was  made  during  his  lifetime,  nor  was  the  exist- 
ence of  the  deed  communicated  to  the  persons  interested,  and  the 
conduct  of  the  parties  otherwise  showed  an  understanding  that  the 
deed  should  not  take  effect  till  after  the  grantor's  death,  it  was  set 
aside  as  an  evasion  of  the  Mortmain  Act  (g).  Again,  an  agreement  is 
not  unlawful  merely  because  something  remains  to  be  done  by  one 
of  the  parties  in  order  to  make  the  performance  of  the  agreement  or 
of  some  part  of  it  lawful,  such  as  obtaining  a  licence  from  the 
Crown  (h).  On  the  same  principle  it  is  not  illegal  for  a  highway 
board  to  give  a  licence  to  a  gas  company  to  open  a  highway  within 
378]  the  board's  jurisdiction,  for  it  must  *be  taken  to  mean  that  they 
are  to  do  it  so  as  not  to  create  a  nuisance  (i). 

Waugh  v.  Morris  — Materiality  of  ignorance  of  the  law.  In  Waugh  v. 
Morris  (Tc)  it  was  agreed  by  charter-party  that  a  ship  then  at  Trou- 
ville  should  go  thence  with  a  cargo  of  hay  to  London,  and  all  cargo 
was  to  be  brought  and  taken  from  the  ship  alongside.  Before  the 
date  of  the  charter-party  an  Order  in  Council  had  been  made  and 
published  under  the  Contagious  Diseases  (Animals)  Act,  1869,  pro- 
hibiting the  landing  of  hay  from  France  in  this  country.  The  par- 
ties did  not  know  of  this,  and  the  master  learnt  it  for  the  first  time  on 
arriving  in  the  Thames.  In  the  result  the  charterer  took  the  cargo 
from  alongside  the  ship  in  the  river  into  another  vessel  and  exported 
it,  as  he  lawfully  might,  but  after  considerable  delay.  The  ship- 
owner sued  him  for  demurrage,  and  he  contended  that  the  contract 
was  illegal  (though  it  had  in  fact  been  lawfully  performed),  as  the 
parties  had  intended  it  to  be  performed  by  means  which  at  the  time 
of  the  contract  were  unlawful,  viz.  landing  the  hay  in  the  port  of 
London.     The  Court  however  refused  to  take  this  view.    It  was  true 

(f)  Sharp  v.  Taylor  (1849)  2  Ph.  (h)  Sewell  v.  Royal  Exch.  Assur- 
801.  Still  less  where  the  illegal  acts  ance  Co.  (1813)  4  Taunt.  856;  Haines 
were  done  by  the  partner  against  v.  Busk  (1814)  5*6.521;  ep.  Porter's 
whom  the  account  is  sought,  without  case,  1  Co.  Rep.  25  a,  the  like  as  to  a 
the    sanction    or    knowledge)    of    the  condition  in  a  devise. 

other:   Thwaites  v.  Coulthwaite  [1896]  (i)    Edgware    Highway    Board    v. 

1  Ch.  496,  65  L.  J.  Ch.  238.  Harrow  Gas  Co.  ( 1874)  L.  R.  10  Q.  B. 

(g)  Way  v.  East,  2  Drew.  44,  23        92,  44  L.  J.  Q.  B.  1. 

L.  J.  Ch.  109.  (k)    (1873)    L.  R.  8  Q.  B.  202,  42 

L.  J.  Q.  B.  57. 


IGNORANCE    OF    ILLEGALITY.  495 

that  the  plaintiff  contemplated  and  expected  that  the  hay  would  be 
landed,  as  that  would  be  the  natural  course  of  things.  But  the  land- 
ing was  no  part  of  the  contract,  and  if  the  plaintiff  had  had  before 
him  the  possibility  of  the  landing  being  forbidden,  he  would  probably 
have  expected  the  defendant  not  to  break  the  law;  as  in  fact  he  did 
not,  for  no  attempt  was  made  to  land  the  goods. 

"  We  quite  agree  that  where  a  contract  is  to  do  a  thing  which  cannot  be 
performed  without  a  violation  of  the  law  it  is  void,  whether  the  parties  knew 
the  law  or  not.  But  we  think  that  in  order  to  avoid  a  contract  which  can  be 
legally  performed  on  the  ground  that  there  was  an  intention  to  perform  it 
in  an  illegal  manner,  it  is  necessary  to  show  that  there  was  the  wicked  in- 
tention to  break  the  law;  and  if  this  be  so,  the  knowledge  of  what  the  law  is 
becomes  of  great  importance"     (I).5* 

(I)    (1873)  L.  R.  8  Q.  B.  207-8. 

54  An  agreement  to  marry  will  sustain  an  action,  though  the  defendant  at 
the  time  of  the  agreement  was  married  to  a  third  person,  if  the  plaintiff  was 
ignorant  of  that  fact.  Wild  v.  Harris,  7  C.  B.  999;  Daniel  r.  Bowles,  2  C.  & 
P.  553;  Millward  v.  Littlewood,  5  Ex.  552;  Paddock  v.  Robinson,  63  111.  99, 
100;  Davis  v.  Pryor,  3  Ind.  Ty.  396;  Kelley  v.  Riley,  106  Mass.  339;  Stevenson 
v.  Pettis,  12  Phila.  468;  Coover  v.  Davenport,  1  Heisk.  368,  ace.  In  Blatt- 
macher  v.  Saal,  29  Barb.  22,  and  Pollock  v.  Sullivan,  53  Vt.  507,  it  was  held 
that  an  action  of  tort  for  deceit  would  lie,  but  not  an  action  for  breach  of 
contract. 

In  other  cases  where  the  illegality  of  a  contract  results  from  facts  unknown 
to  the  plaintiff,  he  is  allowed  relief.  Hotchkiss  v.  Dickson,  2  Bligh,  348; 
Congress  Spring  Co.  v.  Knowlton,  103  U.  S.  49;  Pullman  Palace  Car  Co.  v. 
Central  Transportation  Co.,  65  Fed.  Rep.  158;  Mobile,  &c.  R.  R.  Co.  v.  Dis- 
mukes,  94  Ala.  131  (but  see  Gulf,  &c.  Ry.  Co.  v.  Hedey,  158  IT.  S.  98; 
Southern  Ry.  Co.  v.  Harrison,  119  Ala.  539;  Gerber  v.  Wabash  R.  R.  Co.,  63 
Mo.  App.  145 ;  Wyrick  v.  Missouri,  &c.  Ry.  Co.,  74  Mo.  App.  406 )' ;  Musson  r. 
Pales,  10  Mass.  332;  Emery  v.  Kempton,  2  Gray,  257;  Beram  v.  Kruscal,  18 
N,  Y.  Misc.  479;  Rosenbaum  v.  United  States  Credit  Co.,  65  N.  J.  L.  255; 
Burkholder  v.  Beetem's  Adm.,  65  Pa.  496.  See  also  Harse  v.  Pearl  Life  Ass. 
Co.,  [1903j  2  K.  B.  92;  Cranson  v.  Goss,  107  Mass.  439;  Fox  v.  Rogers,  171 
Mass.  546;  Miller  v.  Hirschberg,  27  Oreg.  522.  Compare  Webster  v.  Sanborn, 
47  Me.  471;  Rocco  v.  Frapoli,  50  Neb.  665. 

On  the  same,  principle,  though  a  promise  to  indemnify  one  from  the  conse- 
quences of  doing  an  act  which  is  necessarily  illegal  is  unenforceable,  Green- 
hood  on  Public  Policy,  210  et  seg.,  where  the  legality  of  the  act  depends  on 
extrinsic  facts  unknown  to  the  promisee,  the  promise  will  be  enforced. 
Arundel  v.  Gardiner,  Cro.  Jac.  652;  Fletcher  c.  Harcot,  Winch,  48;  Merri- 
weather  v.  Nixon,  8  T.  R.  186;  Betts  v.  Gibbons,  2  A.  &  E.  57;  Elliston  r 
Berrvman,  15  Q.  B.  205;  Moore  v.  Appleton,  26  Ala.  633;  Stark  v.  Ranev,  18 
Cal.  *622;  Lerch  v.  Gallup,  67  Cal.  595;  Marcy  v.  Crawford,  16  Conn. '549 ; 
Higgins  v.  Russo,  72  Conn.  238 ;  Wolfe  v.  McClure.  79  111.  564 ;  Marsh  r.  Gold, 

2  Pick.  284;  Train  v.  Gold,  5  Pick.  379;  Avery  v.  Halaev.  14  Pick.  174;  C.  F. 
Jewett  Co.  v.  Butler,  159  Mass.  532;  Shotwell  v.  Hamblin,  23  Miss.  156; 
Forinquet  v.  Tegarden,  24  Miss.  96;  Moore  v.  Allen,  25  Miss.  363:  McCartney 
f.  Shepard,  21  Mo.  573:  Harrington's  Adm.  v.  Crawford,  136  Mo.  467,  472; 
Allaire  v.  Ouland,  2  Johns.  Cas.  54;  Coventry  v.  Barton,  17  Johns.  142;  Trus- 
tees v.  Galatian,  4  Cow.  346;  Chamberlain  p.  Beller,  18  N.  Y.  115;  Ives  v. 
Jones,  3  Ired.  538;  Miller  v.  Rhodes,  20  Ohio  St.  494;  Mays  v.  Joseph,  34 
Ohio  St.  22;  Comm.  r.  Vandyke,  57  Pa.  34;  Jamison  r.  Calhoun.  2  Speer.  19; 
Davis  v.  Arledge,  3  Hill,  170;  Hunter  v.  Agee,  5  Humph.  57;  Ballard  r.  Pope, 

3  TJ.  C.  Q.  B.   317;   Robertson  v.  Broadfoot,   11  U.  C.  Q.  B.  407.     See  also 


496  UNLAWFUL    AGREEMENTS. 

379  ]  *  Where  agreement  prima  facie  unlawful,  not  enough  to  show  mere  pos- 
sibility of  lawful  performance.  But  on  the  other  hand  where  an  agree- 
ment is  prima  facie  illegal,  it  lies  on  the  party  seeking  to  enforce  it  to 
show  that  the  intention  was  not  illegal.  It  is  not  enough  to  show 
a  mere  possibility  of  the  agreement  being  lawfully  performed  in  par- 
ticular contingent  events.  "  If  there  be  on  the  face  of  the  agreement 
an  illegal  intention,  the  burden  lies  on  the  party  who  uses  expressions 
prima  facie  importing  an  illegal  purpose  to  show  that  the  intention 
was  legal "  (m). 

As  to  recovering  back  money  or  property.  We  now  come  to  the  rule, 
which  we  will  first  state  provisionally  in  a  general  form,  that  money 
or  property  paid  or  delivered  under  an  unlawful  agreement  cannot  be 
recovered  back.55 

This  rule  (which  is  subject  to  exceptions  to  be  presently  stated)  is 
the  chief  part,  though  not  quite  the  whole,  of  what  is  meant  by  the 
maxim  In  pari  delicto  potior  est  condicio  defendentis  («•).  To  some 
extent  it  coincides  with  the  more  general  rule  that  money  voluntarily 
paid  with  full  knowledge  of  all  material  facts  cannot  be  recovered 
back.  However  the  principle  proper  to  this  class  of  cases  is  that 
persons  who  have  entered  into  dealings  forbidden  by  the  law  must 
not  expect  any  assistance  from  the  law,  save  so  far  as  the  simple 
refusal  to  enforce  such  an  agreement  is  unavoidably  beneficial  to  the 

(m)  Holland  v.  Hall  (1817)   1  B.  &  quamquam  etiam  so  non  sit  perpetua 

Aid.  53,  18  R.  R.  428,  per  Abbott  J. ;  causa  .      .   idem  dicenduni  est,  quia 

Allkins  v.   Jupe    (1877)    2   C.   P.   D.  statim  contra  mores  sit ":  D.  45,  1  de 

375,  46  L.  J.  C.   P.   824.     The  same  v.  o.  35  §  1. 

principle   is  expressed  in   a   different  («)    Cp.   D.   50,    17,   de  reg.   mris, 

form   by   Paulus:    "Item   quod  leges  154,   C.  4,   7,   de   condict.   ob  turpem 

fieri  prohibent,  si  perpetuam  causam  causam,  2. 
servaturum  est,  cessat  obligatio   .   .   . 

Vandiver  r.  Pollak,  97  Ala.  467;  107  Ala.  547;  Union  Stave  Co.  r.  Smith,  116 
Ala.  416;  Griffiths  v.  Hardenbergh,  41  N.  Y.  464. 

55  Dent  r.  Ferguson,  132  U.  S.  50 ;  Dunkin  r.  Hodge,  46  Ala.  523 ;  Branham 
v.  Stallings,  21  Col.  211;  Thompson  o.  Cummings,  68  Ga.  124;  Tobey  v.  Robin- 
son, 99  111.  224;  Winchester  Co.  r.  Veal,  145  Ind.  506;  Myers  r.  Meinrath,  101 
Mass.  366;  Hooker  r.  De  Palos,  28  Ohio  St.  251;  Perkins  v.  Savage,  15  Wend. 
412;  Singer  Co.  v.  Draper,  103  Tenn.  262;  Miller  r.  Larson,  19  Wis.  463. 

One  who  has  given  his  negotiable  note  to  compound  a  crime,  and  has  been 
compelled  to  pay  the  note  to  a  bona  fide  purchaser  thereof,  cannot  recover  the 
money  so  paid  from  him  to  whom  the  note  was  given.  Haynes  v.  Rudd,  83 
N".  Y.  251. 

One  of  several  cotenants  who  has  participated  in  an  attempted  fraud 
whereby  the  estate  was  sold  to  another  cotenant  for  the  non-payment  of  taxes 
cannot  obtain  the  aid  of  a  court  of  equity  to  recover  from  the  purchaser  what 
he  has  lost.     Lawton  r.  Estes,  167  Mass.  181. 


WHEN    PAYMENTS    CAN    BE   RECOVERED.  497 

party  sued  upon  it.    As  it  is  sometimes  expressed,  the  Court  is  neutral 
between  the  parties.    The  matter  is  thus  put  by  Lord  Mansfield : 

"  The  objection,  that  a  contract  is  immoral  or  illegal  as  between  plaintiff 
and  defendant,  sounds  at  all  times  very  ill  in  the  mouth  of  the  defendant. 
It  is  not  for  his  sake,  however,  that  the  objection  is  ever  allowed,  but  it 
*is  founded  in  general  principles  of  policy,  which  the  defendant  has  the  ad-  [380 
vantage  of  contrary  to  the  real  justice  as  between  him  and  the  plaintiff,  by 
accident,  if  I  may  say  so.  The  principle  of  public  policy  is  this:  ex  dolo 
malo  non  oritur  actio.  No  Court  will  lend  its  aid  to  a  man  who  founds  his 
oause  of  action  upon  an  immoral  or  an  illegal  act.  If  from  the  plaintiff's  own 
stating  or  otherwise  the  cause  of  action  appears  to  arise  ex  turpi  causa,  or 
the  transgression  of  a  positive  law  of  this  country,  there  the  Court  says  he  has 
no  right  to  be  assisted.  It  is  upon  that  ground  the  Court  goes;  not  for  the 
sake  of  the  defendant,  but  because  they  will  not  lend  their  aid  to  such  a  plain- 
tiff. So  if  the  plaintiff  and  defendant  were  to  change  sides,  and  the  defend- 
ant was  to  bring  his  action  against  the  plaintiff,  the  latter  would  then  have 
the  advantage  of  it;  for  where  botn  are  equally  in  fault,  potior  est  conditio 
defendentis  "  ( 0 ) . 

Plaintiff  can't  recover  where  his  own  unlawful  conduct  is  part  of  his  own 
case.  The  test  for  the  application  of  the  rule  is  whether  the  plain- 
tiff can  make  out  his  case  otherwise  than  "  through  the  medium  and 
by  the  act  of  an  illegal  transaction  to  which  he  was  himself  a 
party"  (p).56  It  is  not  confined  to  the  case  of  actual  money  pay- 
ments, though  that  is  the  most  common.  Where  the  plaintiff  had 
deposited  the  half  of  a  bank  note  with  the  defendant  by  way  of  pledge 
to  secure  the  repayment  of  money  due  for  wine  and  suppers  supplied 
by  the  defendant  in  a  brothel  and  disorderly  house  kept  by  the  de- 
fendant for  the  purpose  of  being  consumed  there  in  a  debauch,  and 
for  money  lent  for  similar  purposes,  it  was  held  that  the  plaintiff 
could  not  recover,  as  it  was  necessary  to  his  case  to  show  the  true 
character  of  the  deposit  (q).  The  Court  inclined  also  to  think,  but 
did  not  decide,  that  the  plaintiff's  case  must  fail  on  the  more  general 
ground  that  the  delivery  of  the  note  was  an  executed  contract  by 

(0)     Holmcm    v.    Johnson     (1775)  on  a  bailment  of  the  half-note  to  be 

Cowp.  341,  343.  re-delivered  on   request,   and   in   det- 

(p)  Taylor  v.  Chester  (1869)  L.  R.  inue.     Pleas,   in   effect,   that    it   was 

4  Q.  B.  309,  314,  38  L.  J.  Q.  B.  225.  deposited  by  way  of  pledge  to  secure 

(?)  This  is  apparent  by  the  course  money  due.    Replication,  the  immoral 

of  the  pleadings ;  the  declaration  was  character  of  the  debt  as  above. 

56  This  test  "  is  too  narrow  in  its  terms,  and  excludes  many  cases  where  the 
plaintiff  might  establish  his  case  independently  of  the  illegal  transaction,  and 
yeif  would  find  his  demand  tainted  by  that  transaction."  Hanauer  v.  Woodruff. 
15  Wall.  439,  443.  See  also  Coppell  v.  Hall,  7  Wall.  542 ;  Jefferson  v.  Biirhans, 
85  Fed.  Rep.  949;  Samp?on  1;.  Shaw,  101  Mass.  145,  152;  Baltimore  &  Ohio  R. 
Co.  v.  Diamond  Coal  Co.,  61  Ohio  St.  242,  252;  Johnson  v.  Hulings,  103  Pa. 
498. 

32 


498  UNLAWFUL    AGREEMENTS. 

which  a  special  property  passed,  and  that  such  property  must  re- 
main (O-57 

381  ]  *The  rule  is  not  even  confined  to  causes  of  action  ex  contractu. 
An  action  in  tort  cannot  be  maintained  when  the  cause  of  action 
springs  from  an  illegal  transaction  to  which  the  plaintiff  was  a  party, 
and  that  transaction  is  a  necessary  part  of  his  case  (s). 

Independently  of  the  special  grounds  of  this  rule,  a  completely 
executed  transfer  of  property,  though  originally  made  upon  an  unlaw- 
ful consideration  or  in  pursuance  of  an  unlawful  agreement,  is  after- 
wards valid  and  irrevocable  (t). 

The  rule  is  not  applicable  in  the  following  classes  of  cases,  most  of 
which  however  cannot  properly  be  called  exceptions. 

Duty  of  agents  and  trustees  to  account  to  principals  notwithstanding  collat- 
eral illegality.  An  agent  is  not  discharged  from  accounting  to  his 
principal  by  reason  of  past  unlawful  acts  or  intentions  of  the  principal 
collateral  to  the  matter  of  the  agency.  If  A.  pays  money  to  B.  for  the 
use  of  C,  B.  cannot  justify  a  refusal  to  pay  over  to  C.  by  showing 
that  it  was-  paid  under  an  unlawful  agreement  between  A.  and 
C.  (m).58    Again,  if  A.  and  B.  make  bets  at  a  horse-race  on  a  joint 

(r)     Compare    Esc    parte    Caldecott  501,  513,  15  L.  J.  C.  P.  125,  a  peculiar 

(1876)    4  Ch.  Div.  150,  46  L.  J.  Bk.  and  apparently  solitary  example. 
14,   p.    *331,   above;    Begbie  v.   Phos-  (t)  Ay  erst  v.  Jenkins  (1873)   L.  R. 

phate  Sewage  Co.   (1875)   L.  R.  10  Q.  16  Eq.  275,   42   L.  J.   Ch.   690.     Cp. 

B.  491,  500,  affd.  in  C.  A.  1  Q.  B.  D.  M'Callan   v.    Mortimer    (1842)     (Ex. 

iv.  679.  Ch.)  9  M.  &  W.  636. 

(s)  Fivaz  v.  Xicholls  (1846)  2  C.  B.  (u)   Ten-ant  v.  Elliott   (1797)    1  B. 

&  P.  3,  4  R.  R.  755. 

57 "  One  who  has  voluntarily  made  a  pledge  to  secure  the  payment  of  an 
illegal  demand  against  him  is  not  afterwards  entitled  to  reclaim  the  same 
without  payment  of  "the  demand."  King  c.  Green,  6  Allen,  139;  Harris 
v.  Woodruff,  124  Mass.  205.  Cp.  Marden  v.  Phillips,  103  Fed.  Rep.  196; 
Dempsey  i.  Harm,  12  Atl.  Rep.  27,  20  W.  N.  C.  266  (Pa.). 

58  Kinsman  v.  Parkhurst,  IS  How.  2S9.  293;  McMullen  v.  Hoffman,  174  U.S. 
639,  660,  669;  Caldwell  v.  Harding,  1  Lowell,  326;  Barker  c.  Parker,  23  Ark. 
390;  First  Bank  v.  Leppel,  9  Col.  594;  Brady  v.  Horvath,  167  111.  610;  Willson 
f.  Owen,  30  Mich.  474;  Roselle  v.  Beckemeier,  134  Mo.  380;  Porter  r.  Sherman 
County  Banking  Co.,  40  Neb.  274;  Evans  r.  Trenton,  24  N.  J.  L.  764;  Merritt 
v.  Millard,  4  Keyes,  208;  Woodworth  v.  Bennett,  43  :~.  Y.  273;  Norton  v. 
Blinn,  39  Ohio  St.  145;  Geurinck  v.  Alcott,  66  Ohio  St.  94;  Floyd  v.  Patter- 
son, 72  Tex.  202;  Lovejoy  r.  Kaufman,  16  Tex.  Civ.  App.  377;  Lemon  v.  Gross- 
kopf,  22  Wis.  447;  Kiewert  v.  Rindskopf,  46  Wis.  481;  Heckman  v.  Doty,  86 
Wis.  1,  14.  Cp.  Pittsburg  Carbon  Co.  v.  McMillin,  119  N.  Y.  46;  Emery  v. 
Ohio  Candle  Co.,  47  Ohio  St.  320.  An  agent  cannot  retain  against  his  princi- 
pal the  proceeds  of  goods  sold  in  an  unlawful  traffic.  Planter's  Bank  v.  Union 
Bank,  16  Wall.  483;  Bibb  i\  Miller,  11  Bush,  306,  310;  Gilliam  r.  Brown,  43 
Miss.  641;  Lestapies  v.  Ingraham,  5  Pa.  71;  Hertzler  v.  Geigley,  196  Pa.  419; 
Anderson  r.  Monerief.  3  Desaus.  124 :  Tate  r.  Pesues,  28  S.  C.  463 ;  Lovejoy  r. 
Kaufman,  16  Tex.  Civ.  App.  377;  Baldwin  r.  Potter,  46  Vt.  402.  See  also 
Taylor  v.  Pells,  113  111.  145;  Andrew  v.  Brewing  Assoc,  74  Miss.  362.     But 


WHEN    PAYMENTS    CAN    BE   RECOVERED.  499 

account  and  B.  receives  the  winnings,  A.  can  recover  his  share  of  the 
money  or  sue  on  a  bill  given  to  him  by  B.  for  it  :59  here  indeed  there 
is  no  illegality  in  the  proper  sense  (x).  *For  the  same  reason  [382 
an  agent  employed  to  bet  and  collect  winnings  is  bound  to  account 
to  his  principal  for  what  he  collects,  though  the  losers  could  not  have 
been  compelled  to  pay  (y).  But,  by  statute,  such  an  agent  cannot 
recover  from  his  principal  either  any  money  paid  by  him  in  respect 
of  losses  or  any  reward  or  commission  for  his  services;  nor  can  one 
who  pays  bets  at  the  loser's  request  recover  the  money,  whether  he 
was  employed  in  making  the  bets  or  not  (z).     In  like  manner  the 

(x)  Johnson  v.  Lansley  (1852)  12  held  that  the  principal  could  not  re- 
C.  B.  468.  And  where  B.  uses  moneys  pudiate;  in  Perry  v.  Barnett  (1885) 
of  his  own  and  A.'s  in  betting,  on  the  15  Q.  B.  Div.  388,  54  L.  J.  Q.  B.  466, 
terms  of  dividing  winnings  in  certain  it  was  held  that,  if  he  did  not  know 
proportions,  A.  can  sue  B.  on  a  cheque  the:  usage  of  the  Stock  Exchange,  he 
given  for  his  share  of  winnings:  Bees-       could. 

ton  v.  Beeston  (1875)   1  Ex.  D.  13,45  (y)    Bridger  v.  Savage    (1884)    15 

L.  J.  Ex.  230.  Cp.  and  dist.  Higgin-  Q.  B.  Div.  363,  54  L.  J.  Q.  B.  464: 
son  v.  Simpson  (1877)  2  C.  P.  D.  76,  the  contract  of  agency  is  not  a  gam- 
46  L.  J.  C.  P.  192,  where  the  trans-  ing  or  wagering  contract.  This  does 
action  in  question  was  held  to  be  in  not  seem  to  be  affected  by  the  Gaming 
substance  a  mere  wager.  A  fine  dis-  Act,  1892.  But  he  cannot  be  liable 
tinction  has  been  taken  in  two  cases  for  failing  to  make  bets  or  collect 
of  purchase  of  bank  shares  through  winnings,  for  the  collection  is  preca- 
brokers,  where  the  contract  note  rious:  Cohen  v.  Kittell  (1889)  22  Q. 
omitted  to  specify  the  numbers  of  the  B.  D.  681,  58  L.  J.  Q.  B.  241. 
share's  as  required  by  Leeman's  Act,  (z)  The  Gaming  Act,  1892,  55  Vict. 

30  &  31  Viet.  c.  29,  s.  1.  The  brokers,  c.  9,  amending  8  and  9  Vict.  c.  109,  as 
if  they  had  not  completed  the  con-  interpreted  (qu.  whether  rightly)  by 
tracts,  might  have  been  declared  de-  Read  v.  Anderson  (1884)  13  Q.  B. 
faulters  and  expelled  from  the  Stock  Div.  779,  53  L.  J.  Q.  B.  532 ;  Tatam  v. 
Exchange.  In  Seymour  v.  Bridge  Reeve  [1893]  1  Q.  B.  44,  62  L.  J.  Q.  B. 
(1885)  14  Q.  B.  D.  460,  Mathew  J.  30.  Semh le,  the  plaintiff  could  not  re- 
see  Lanahan  v.  Patterson,  1  Plippin,  410;  O'Bryan  v.  Fitzpatriek,  48  Ark.  487; 
Nave  v.  Wilson,  12  Ind.  App.  38;  Udall  v.  Metcalf,  5  N.  H.  396;  Kirk  v. 
Morrow,  6  Heisk.  445;  Mexican  Banking  Co.  v.  Lichtenstein,  10  Utah,  338; 
Buck  v.  Albee,  26  Vt.  184;  Lemon  v.  Grosskopf,  22  Wis.  447.  Where  the 
defendant  was  employed  by  the  plaintiffs  to  draw  an  illegal  lottery,  and 
fraudulently  induced  the  plaintiffs  to  believe  that  a  certain  ticket  had  drawn 
a  prize,  and  to  pay  the  amount  of  such  prize  to  one  who  held  the  ticket  and 
received  the  money  for  the  defendant,  it  was  held  that  the  illegality  of  the 
lottery  was  not  a  defense  to  an  action  for  money  had  and  received;  Catts  v, 
Phalen,  2  How.  376.  And  see  Martin  v.  Hodge,  47  Ark.  378;  Phalen  v.  Clark, 
19  Conn.  421 ;  Martin  v.  Richardson,  94  Ky.  183.  Cp.  Kitchen  v.  Greenabaum, 
61  Mo.  110.  Where  the  beneficiary  in  an  unlawful  policy  of  life  insurance,  by 
fraudulently  representing  that  he  whose  life  was  insured  had  died,  induces  the 
insurer  to  pay  him  the  amount  of  the  policy,  the  unlawfulness  of  the  contract 
of  insurance  will  not  prevent  a  recovery  by  the  insurer  of  the  money  thus 
fraudulently  obtained.  Insurance  Co.  v.  Elliott,  7  Sawyer,  17,  5  Fed.  Rep.  225. 
Where  the  president  of  a  bank  fraudulently  induced  a  purchaser  to  buy  bond3 
of  the  bank,  the  purchaser  was  allowed  to  recover  the  money  paid  though  the 
sale  of  the  bonds  by  the  bank  was  illegal.  National  Bank  v.  Petri'e,  189  U.  S. 
423.     See  also  Webb  v.  Fulchire,  3  Ired.  L.  485. 

89  Owen  v.  Davis,  1  Bailey,  315.     But  see  Northrup  v.  Bufflngton,  171  Mass. 
468,  471. 


500  UNLAWFUL    AGREEMENTS. 

right  to  an  account  of  partnership  profits  is  not  lost  by  the  particular 
transaction  in  which  they  were  earned  having  involved  a  breach  of 
the  law  (a).60  Nor  can  a  trustee  of  property  refuse  to  account  to  his 
cestui  que  trust  on  grounds  of  this  kind  :61  a  trust  was  enforced  where 
the  persons  interested  were  the  members  of  an  unincorporated  trad- 
ing association,  though  it  was  doubtful  whether  the  association  itself 
was  not  illegal  (&).  So,  if  A.  with  B.'s  consent  effects  a  policy  for 
his  own  benefit  on  the  life  and  in  the  name  of  B.,  having  himself 
no  insurable  interest,  the  policy  and  the  value  of  it  belong,  as  between 
them,  to  A.  (c).62    If  a  man  entrusts  another  as  his  agent  with  money 

cover  even  if  he  did  not  know  that  the  main  object  of  the  partnership  is  un- 

payments  he  made  at  the  defendant's  lawful:      Thwaites     v.      Coulthwaite 

request  were  for  bets.    The  Act  is  not  [1896]  1  Ch.  496,  65  L.  J.  Ch.  238. 
retrospective:    Knight  v.  Lee    [1893]  (b)  Sheppard  v.  Oxenford  ( 1855 )  1 

1  Q.  B.  41,  62  L.  J.  Q.  B.  28.  K.  &  J.  491. 

(a)   Sharpy.  Taylor   (1849)   2  Ph.  (c)   Worthington  v.  Curtis   (1875) 

801.    Of  course  it  is  not  so  where  the  1  Ch.  Div.  419,  45  L.  J.  Ch.  259. 

60  In  Brooks  v.  Martin,  2  Wall.  70,  it  was  held  that  after  the  objects  of  a 
partnership,  formed  for  the  purpose  of  engaging  in  a  traffic,  confessedly 
illegal,  have  been  fully  accomplished  a  partner  in  whose  hands  the  profits  are 
cannot  refuse  to  account  for  and  divide  them.  The  court  relied  mainly  on  the 
authority  of  Sharp  i.  Taylor,  saying:  "  It  will  be  at  once  perceived  that  the 
principle  is  the  same  in  both  cases,  and  that  the  analogy  in  the  facts  is  so 
close  that  any  rule  on  the  subject  which  should  govern  the  one  ought  also  to 
control  the  other."  Ace.  Wann  r.  Kelly,  5  Fed.  Rep.  584;  Cook  r.  Sherman, 
20  Fed.  Rep.  167;  Robison  v.  M'Cracken,  52  Fed.  Rep.  730;  Crescent  Co.  v. 
Bear,  23  Fla.  50;  Willson  v.  Owen,  30  Mich.  474;  Gilliam  v.  Brown,  43  Mis. 
641;  Hatch  i>.  Hanson,  46  Mo.  App.  323;  Manchester  Ry.  Co.  v.  Concord  Ry. 
Co.,  66  N.  H.  600;  Pfeuffer  v.  Maltby,  54  Tex.  454;  Patty  v.  City  Bank,  15 
Tex.  Civ.  App.  475;  McDonald  r.  Lund,  13  Wash.  412.  It  is  submitted  that 
this  is  unpleasantly  analogous  to  Everet  v.  Williams,  supra,  p.  *275. 
Brooks  v.  Martin  is  now  practically  overruled.  McMullen  r.  Hoffman,  174 
U.  S.  639,  668.  And  see  the  observations  of  Jesgel,  M.  R„  upon  Sharp  v.  Taylor, 
in  Sykes  v.  Beadon,  11  Ch.  D.  170,  195;  also  Cambioso  i:  Maffitt,  2  Wash.  C.  C. 
98;  Chicago  Rv.  Co.  r.  Wabash  By.  Co.,  61  Fed.  Rep.  993  (C.  C.  A.)  > 
Craft  v.  McConbughy,  79  111.  346;  Northrup  v.  Phillips,  99  111.  449 :  Hunter  v. 
Pfeiffer,  108  Ind.  197;  Central  Trust  Co.  r.  Respass,  23  Ky.  L.  Rep.  1905; 
Snell  v.  Dwight,  120  Mass.  9;  Roselle  e.  McAuliffe,  141  Mo."  36;  Morrison  v. 
Bennett,  20  Mont.  560;  Gould  r.  Kendall,  15  Neb.  549;  Todd  r.  Rafferty's 
Admrs.,  30  N.  J.  Eq.  254;  Watson  r.  Murray,  23  N.  J.  Eq.  257;  Woodworth 
e.  Bennett,  43  N.  Y.  273;  Leonard  v.  Poole,  114  N.  Y.  371:  King  v.  Winants, 
71  N.  C.  469;  Emery  v.  Ohio  Candle  Co.,  47  Ohio  St.  320;  Patterson's  Appeal 
(S.  C,  Pa.)  13  W.  N".  Cas.  154;  Read  v.  Smith,  60  Tex.  379;  Wiggins  v. 
Bisso,  92  Tex.  219;  Watson  v.  Fletcher,  7  Gratt.  1;  Atwater  v.  Manville,  106 
Wis.  64. 

If  a  partnership  carries  on  a  legal  and  also  an  illegal  business,  equity  will 
adjust  the  affairs  of  the  legal  business.  Anderson  v.  Powell,  44  la.  20; 
Central  Trust  Co.  v.  Respass,  23  Ky.  L.  Rep.  1905. 

In  Jackson  r.  Brick  Assoc,  53  Ohio  St.  303,  it  was  held  that  in  contempla- 
tion of  law  an  association  formed  for  an  illegal  purpose  is  not  a  partnership, 
and  therefore  cannot  sue  in  its  associate  name,  as  partnerships  in  Ohio  are 
allowed  to  do  bv  statute.     Op.  Tavlor  r.  Bell  Soap  Co.,  45  N.  Y.  Supp.  939. 

61  Hazard  r.  Billon,  34  Fed.  Rep.  485. 

62  Cp.  Ruth  v.  Katterman,  112  Pa.  251. 


WHEN    PAYMENTS    CAN    BE    RECOVERED.  501 

to  be  paid  for  an  unlawful  purpose,  he  may  recover  it  at  any  time  be- 
fore it  is  actually  so  paid ;  or  even  if  the  agent  does  pay  it  after  having 
been  warned  not  to  do  so  (d) ;  the  reason  is  that  *whether  [383 
the  intended  payment  be  lawful  or  not  an  authority  may  always 
be  countermanded  as  between  the  principal  and  agent  so  long  as  it 
is  not  executed  (e).63  It  is  the  same  where  the  agent  is  authorized 
to  apply  in  an  unlawful  manner  any  part  of  the  moneys  to  be  received 
by  him  on  account  of  the  principal;  he  must  account  for  so  much  of 
that  part  as  he  has  not  actually  paid  over  (e).  The  language  of  the 
statute  8  &  9  Vict.  c.  109,  s.  18,  which  says  that  no  money  can  be  re- 
covered "  which  shall  have  been  deposited  in  the  hands  of  any  person 
to  abide  the  event  upon  which  any  wager  shall  have  been  made  "  does 
not  prevent  either  party  from  repudiating  the  wager  at  any  time 
either  before  or  after  the  event  and  before  the  money  is  actually  paid 
over  and  recovering  his  own  deposit  from  the  stakeholder  (/).64  Also 

(d)  Hastelow  V.  Jackson  (1828)   8  terms,  5  App.  Ca.  342,  49  L.  J.  P.  C. 
B.  &  C.  221,  226,  32  R.  R.  369,  373.  49.      Cp.   Barclay  v.  Pearson    [1893J 

(e)  Bone  v.  Ekless   (1860)   5  H.  &  2  Ch.  154.    This  is  not  affected  by  the 
N.  925,  29  L.  J.  Ex.  438.  Gaming    Act,     1892 :     0' Sullivan    v. 

if)    Biggie  v.  Biggs    (1877)    2  Ex.  Thomas  [1895]   1  Q.  B.  698,  64  L.  J. 

Div.  422,   46  L.   J.   Ex.   721;    Hamp-  Q.     B.     398;     Shoolbred    v.     Roberts 

den  v.  Walsh  (1876)   1  Q.  B.  D.  189;  [1899]    2   Q.   B.   560,   68  L.   J.   Q.   B. 

45    L.    J.    Q.    B.    238,    where   former  998;   confirmed  by  C.  A.  in  Burge  v. 

authorities  are  collected  and  consid-  Ashley    and    Smith    [1900]    1    Q.    B. 

ered:  Trimble  v.  Hill  (1879)    (J.  U.)  744,  69  L.  J.  Q.  B.  538. 
on   a   colonial    statute   in    the   same 

63Wassermann  v.  Sloss,  117  Cal.  425;  Hardy  v.  Jones,  63  Kan.  8;  Sampson 
v.  Shaw,  101  Mass.  145;  Bank  v.  Wallace,  61  N.  H.  24;  Lester  v.  Buel,  49  Ohio 
St.  240,  255;  Peters  v.  Grim,  149  Pa.  163;  Smith  v.  Blachley,  188  Pa.  550; 
Kiewert  v.  Rindskopf,  46  Wis.  481;  Wells  v.  McGeoch,  71  Wis.  196.  Cp.  Mor 
gan  v.  Groff,  5  Den.  364. 

64  Lewis  v.  Bruton,  74  Ala.  317;  Thornhill  v.  O'Rear,  108  Ala.  299;  Wheeler 
v.  Spencer,  15  Conn.  28;  Hale  v.  Sherwood,  40  Conn.  332;  Colson  v.  Meyers, 
80  Ga.  499;  Petillon  v.  Hippie,  90  111.  420;  Frybarger  v.  Simpson,  11  Ind.  59; 
Burroughs  v.  Hunt,  13  Ind.  178;  Adkins  v.  Flemming,  29  la.  122;  Pollock 
v.  Agner,  54  Kan.  618;  Hutchings  v.  Stilwell,  18  B.  Mon.  776;  Stacey  v.  Poss, 
19  Mc.  335:  McDonough  v.  Webster,  68  Me.  530;  Gilmore  v.  Woodcock,  69  Me. 
188,  70  Me.  494;  Fisher  r.  Hildreth,  117  Mass.  558;  Morgan  v.  Beaumont,  121 
Mass.  7;  Whitwell  v.  Carter,  4  Mich.  329;  Wilkinson  v.  Tousley,  16  Minn.  263; 
Pabst  Brewing  Co.  v.  Liston,  80  Minn.  473;  Weaver  v.  Harlan,  48  Mo.  App. 
319;  White  v.  Gilleland,  93  Mo.  App.  310;  Deaver  t.  Bennett,  29  Neb.  812; 
Perkins  v.  Eaton,  3  N.  H.  152;  Hoit  v.  Hodge,  6  N.  H.  104;  Hensler  v.  Jen- 
nings, 62  N.  J.  L.  209;  Stoddard  v.  McAuliffe,  81  Hun,  524;  affirmed  without 
opinion,  151  N.  Y.  671;  Wood  v.  Wood,  3  Murph.  172;  Forrest  v.  Hart,  3 
Murph.  458;  Dunn  r.  Drummond,  4  Okla.  461;  Willis  v.  Hoover,  9  Oreg.  418; 
Conklin  v.  Conway,  18  Pa.  329;  Dauler  v.  Hartley,  178  Pa.  23;  McGrath  v. 
Kennedy,  15  R.  I.  209;  Bledsoe  r.  Thompson.  6  Rich.  L.  44;  Guthman  v. 
Parker,  3  Head,  234;  Lillard  v.  Mitchell,  37  S.  W.  Rep.  702  (Tenn.)  ;  Lewy  v. 
Crawford,  5  Tex.  Civ.  App.  293 ;  Tarleton  v.  Baker,  18  Vt.  9 :  West  v.  Holmes, 
26  Vt.  530.  See  also  Shoolbred  v.  Roberts,  [1899]  2  Q.  B.  560,  [1900]  2  Q.  b! 
497;  Trenery  v.  Goudie,  106  la.  693;  Jones  v.  Cavanaugh,  149  Mass.  124! 
But  in  Sutphin  v.  Crozer,  32  N.  J.  L.  360,  it  was  held  that  no  action  could  be 


502  UNLAWFUL    AGREEMENTS. 

it  does  not  apply  to  money  or  other  valuables  deposited  by  way  of 
security  or  "  cover  "  for  the  performance  of  a  wagering  agreement  (g). 

Money  recoverable  back,  where  agreement  not  executed.  Where  money 
has  been  paid  under  an  unlawful  agreement,  but  nothing  else  done 
in  performance  of  it,  the  money  may  be  recovered  back.  But  in  the 
decision  which  establishes  this  exception  it  is  intimated  that  it  prob- 
ably would  not  be  allowed  if  the  agreement  were  actually  criminal 
or  immoral  (h).  In  general,  "if  money  is  paid  or  goods  delivered 
for  an  illegal  purpose,  the  person  who  has  so  paid  the  money  or  de- 
livered the  goods  may  recover  them  back  before  the  illegal  purpose  " — ■ 
or  rather,  before  any  material  part  of  it — (i)  "is  carried  out;65  but 
384]  if  he  waits  *till  [some  material  part  of]  the  illegal  purpose 
is  carried  out,  or  if  he  seeks  to  enforce  the  illegal  transaction,  in 
neither  case  can  he  maintain  an  action"  (h).    And  the  action  cannot 

(g)   Universal  Stock  Exchange,  Ld.  Q.  B.  Div.  742,  59  L.  J.  Q.  B.  288;  cp. 

v.    Strachan    (No.    1)     [1896]    A.    C.  Herman  v.  Jeuchner   (1885)    15  Q.  B. 

166,  65  L.  J.  Q.  B.  428.  Div.  561,  54  L.  J.  Q.  B.  340. 

(h)    Tappenden  v.   Randall    (1801)  (k)     Per    Mellish    L.J.     Taylor    v. 

2  B.  &  P.  467,  5  R.  R.  662.  Bowers    (1876)    1  Q.  B.  Div.  291,  at 

(i)Kearley  v.   Thomson    (1890)    24  p.  300. 

maintained  by  either  party  against  the  stakeholder  to  recover  money  illegally 
staked. 

In  a  few  States  demand  must  be  made  upon  the  stakeholder  before  the 
wager  has  been  decided.  Johnston  r.  Russell,  37  Cal.  670;  Davis  v.  Holbrook, 
1  La.  Ann.  176;  Hickerson  v.  Benson,  8  Mo.  8;  Connor  v.  Black,  132  Mo.  150, 
154.  In  Missouri  this  doctrine  has  been  enacted  by  statute.  See  Weaver  v. 
Harlan,  48  Mo.  App.  319;  White  v.  Gilleland,  93  Mo.  App.  310;  Dooley  v. 
Jackson,  104  Mo.  App.  21. 

If  a  stakeholder  pays  the  winner,  before  receiving  notice  of  repudiation  of 
the  wager,  he  is  not  liable.  Colson  v.  Meyers.  80  Ga.  499;  Frybarger  v.  Simp- 
son, 11  Ind.  59;  Adkins  «>.  Flemming,  29  la.  122;  Goldberg  v.  Feiga,  170 
Mass.  146;  Riddle  v.  Perry,  19  Neb.  505;  Bates  r.  Lancaster,  10  Humph.  134. 
Unless  made  so  bv  statute,  see  Hensler  r.  Jenning-s,  62  N.  J.  L.  209 ;  Ruckman 
v.  Pitcher,  1  N.  Y.  392 ;  20  N.  Y.  9 ;  Columbia  Bank  v.  Holdeman,  7  W.  &  S. 
233 ;  Harnden  v.  Melby,  90  Wis.  5. 

Repudiation  must  be  absolute.  A  notification  not  to  pay  the  winner  until 
further  notice  was  held  insufficient.  Trenery  r.  Goudie,  106  la.  693.  See  also 
Maher  v.  Van  Horn,  15  Col.  App.  14.  But  see  Pabst  Brewing  Co.  v.  Liston,  80 
Minn.  473. 

If  notwithstanding  notice  not  to  do  so,  the  stakeholder  pays  the  money  to 
the  winner,  the  loser  may  recover  his  deposit  from  the  winner.  McKee  v. 
Manice,  11  Cush.  357;  Love  v.  Harvey,  114  Mass.  80.  But  if  after  the  wager 
is  decided  against  one  of  the  parties,  he,  contending  that  he  is  the  winner,  de- 
mands the  whole  deposit  and  forbids  its  payment  to  the  other  party,  he  cannot, 
after  payment  of  the  whole  deposit  to  the  other  partv,  recover  from  the  stake- 
holder for  the  amount  deposited  by  himself.  Ockerson  r.  Crittenden,  62  la. 
297;  Patterson  v.  Clark,  126  Mass.' 531.  But  see  Hale  v.  Sherwood,  40  Conn. 
332 ;  Perkins  v,  Hvde,  6  Yerg.  288. 

65  Spring  Co.  r.  Knowlton.  103  U.  S.  49  (S.  C.  contra,  57  N.  Y.  518)  ;  Block 
v.  Darling,  140  U.  S.  234;  Wassermann  v.  Sloss,  117  Cal.  425;  De  Leonis  v. 
Walsh,  140  Cal.  175;  White  r.  Bank.  22  Pick.  181:  Skinner  v.  Henderson,  10 
Mo.  205 ;  Brown  v.  Timmany,  20  Ohio,  81. 


WHEN    PAYMENTS    CAN    BE    RECOVERED.  503 

be  maintained  by  a  party  who  has  not  given  previous  notice  that  he 
repudiates  the  agreement  and  claims  his  money  back  (I).  In  Taylor 
v.  Bowers  (I1)  A.  had  delivered  goods  to  B.  under  a  fictitious  assign- 
ment for  the  purpose  of  defrauding  A.'s  creditors.  B.  executed 
a  bill  of  sale  of  the  goods  to  C,  who  was  privy  to  the  scheme,  with- 
out A.'s  assent.  It  was  held  that  A.  might  repudiate  the  whole 
transaction  and  demand  the  return  of  the  goods  from  C.  In  Byrnes 
v.  Hughes  (m),  a  case  somewhat  of  the  same  kind,  the  plaintiff  had 
assigned  certain  leasehold  property  to  a  trustee  with  the  intention  of 
defeating  his  creditors;  afterwards  under  an  arrangement  with  his 
creditors  he  sued  for  the  recovery  of  the  property,  having  undertaken 
to  pay  them  a  composition  in  case  of  success.  The  Court  held  that, 
as  the  illegal  purpose  had  not  been  executed,  he  was  entitled  to  a  re- 
conveyance. It  will  be  observed  however  that  the  plaintiff  was  in 
effect  suing  as  a  trustee  for  his  creditors,  so  that  the  real  question 
was  whether  the  fraud  upon  the  creditors  should  be  continued  against 
the  better  mind  of  the  debtor  himself.  The  cases  above  mentioned 
as  to  recovering  money  from  agents  or  stakeholders  are  also  put  partly 
on  this  ground,  which  however  does  not  seem  necessary  to  them  (n). 

Parties  not  in  pari  delicto.  In  certain  cases  the  parties  are  said  not 
to  be  in  pari  delicto,  namely  where  the  unlawful  agreement  and 
the  *payment  take  place  under  circumstances  practically  [385 
amounting  to  coercion.68 

(U)    (1876)   1  Q.  B.  Div.  291.  was    doubted,   decides    only    this:    A 

(I)   Palyart  v.  Leckie   (1817)   6  M.  man    cannot    sue    a    stakeholder    for 

&  S.  290,  18  R.  R.  381.  the  whole  of  the  sweepstakes  he  has 

(to)     (1870)    L.   R.   9  Eq.   475,   39  won  in  a  lottery,  and  then  reply  to 

L.  J.  Ch.  304.  the  objection  of  illegality  that  if  the 

(to)  Hasteloio  v.  Jackson   (1828)   8  whole  thing  is  illegal  he  must  at  all 

B.  &  C.  221,  32  R.  R.  369.     Mewing  events  recover  his  own  stake.     Alle- 

v.  Hellings   (1845)    14  M.  &  W.  711,  gans  contraria  non  est  audiendus. 
15   L.   J.   Ex.    168,   where   that   case 

66  Or  where  the  law,  the  violation  of  which  constitutes  the  illegality  in  the 
transaction,  was  intended  for  the  coercion  of  one  party  only,  or  the  protection 
of  the  other.  Thomas  v.  Richmond,  12  Wall.  349 ;  Parkersburg  v.  Brown,  106 
U.  S.  487,  503;  Logan  County  Bank  v.  Townsend,  139  U.  S.  67;  Scotten  v. 
State,  51  Ind.  52;  Deming  v.  State,  23  Ind.  416;  Smart  v.  White,  73  Me.  332; 
White  v.  Bank,  22  Pick.  181;  Morville  v.  Amer.  Tract  Soc,  123  Mass.  129, 
137  138;  Manchester  R.  Co.  v.  Concord  R.  Co.,  66  N.  H.  100,  131;  Schermer- 
horn  v.  Talman,  14  N.  Y.  93,  123;  Tracy  v.  Talmage,  14  N.  Y.  162,  181,  199; 
Oneida  Bank  v.  Ontario  Bank,  21  N.  Y.  490;  Bateman  v.  Robinson,  12  Neb. 
508;  Duval  v.  Wellman,  124  N.  Y.  156;  Webb  v.  Fulchire,  3  Ired.  L.  485; 
Reinhard  v.  City,  49  Ohio  St.  257;  Insurance  Co.  r.  Hull,  51  Ohio  St.  270; 
Smith  v.  Blachley,  188  Pa.  550. 

"  The  cases  in  which  the  courta  will  give  relief  to  one  of  the  parties  on  the 
ground  that  he  is  not  in  pari  delicto  form  an  independent  class  entirely  dis- 
tinct from  those  cases  which  rest  upon  a  disaffirmance  of  the  contract  before  it 


504  UNLAWFUL    AGREEMENTS. 

Purchase  of  creditor's  assent  to  composition.  The  chief  instances  of 
this  kind  in  courts  of  law  have  been  payments  made  by  a  debtor  by 
way  of  fraudulent  preference  to  purchase  a  particular  creditor's  as- 
sent to  his  discharge  in  bankruptcy  or  to  a  composition.  The  leading 
modern  case  is  Atkinson  v.  Denby  (o).67  There  the  defendant,  one 
of  plaintiff's  creditors,  refused  to  accept  the  composition  unless  he 
bad  something  more,  and  the  plaintiff  paid  him  50Z.  before  he  exe- 
cuted the  composition  deed.  It  was  held  that  this  money  could  be 
recovered  back.  "  It  is  true,"  said  the  Court  of  Exchequer  Chamber, 
"  that  both  are  in  delicto,  because  the  act  is  a  fraud  upon  the  other 
creditors,  but  it  is  not  par  delictum,  because  the  one  has  the  power 
to  dictate,  the  other  no  alternative  but  to  submit."  On  the  same 
ground  money  paid  for  compounding  a  penal  action  contrary  to  the 
statute  of  Elizabeth  may  be  recovered  back  (p).  But  where  a  bill  is 
given  by  way  of  fraudulent  preference  to  purchase  a  creditor's  assent 
to  a  composition,  and  after  the  composition  the  debtor  chooses  to  pay 
the  amount  of  the  bill,  this  is  a  voluntary  payment  which  cannot  be 
recovered  (q). 

Like  doctrine  of  equity.  In  equity  the  application  of  this  doctrine  has 
been  the  same  in  substance,  though  more  varied  in  its  circumstances. 
The  rule  followed  by  courts  of  equity  was  thus  described  by  Knight 
Bruce,  L.J. :  "  Where  the  parties  to  a  contract  against  public  policy 
or  illegal  are  not  in  pari  delicto  (and  they  are  not  always  so)  and 
where  public  policy  is  considered  as  advanced  by  allowing  either,  or 
at  least  the   more  excusable  of  the  two,  to   sue   for  relief  against 

(o)    (I860)  6  H.  &  N.  778,  30  L.  J.  (p)    Williams  v.  Medley   (1807)    8 

Ex.  361,  in  Ex.  Ch.   7  H.  &  N.  934,  East,  378,  9  R.  R.  473. 

31  L.  J.   Ex.    362:    the   chief  earlier  (q)  Wilson  v.  Ray   (1839)   10  A.  * 

ones  are  Smith  v.  Bromley    (1760)   2  E.  82,  50  R.  R.  341. 
Doug.   695;    Smith  v.   Cuff    (1817)    6 
M.  &  S.  160,  18  R.  R.  340. 

is  executed.  It  is  essential  to  both  classes  that  the  contract  be  merely  malum 
prohibitum.  If  malum  in  se  the  courts  will  in  no  case  interfere  to  relieve 
cither  party  from  any  of  its  consequences.  But  where  the  contract  neither  in- 
volves moral  turpitude  nor  violates  any  general  principle  of  public  policy,  and 
money  or  property  has  been  advanced  upon  it,  relief  will  be  granted  to  the 
party  making  the  advance.  1.  Where  he  is  not  in  pari  delicto;  or,  2.  In  some 
eases  where  he  elects  to  disaffirm  the  contract  while  it  remains  executory.  In 
eases  belonging  to  the  first  of  these  classes,  it  is  of  no  importance  whether  the 
contract  has  been  executed  or  not;  and  in  those  belonging  to  the  second  it  is 
equally  unimportant  that  the  parties  are  in  pari  delicto."  Per  Selden,  J.,  in 
Tracy'  v.  Talmage,  14  N.  Y.  162,  181. 

67  See  also  Bean  r.  Brookmire,  2  Dillon,  108;  Bean  v.  Amsinck,  10  Blatchf. 
301 ;  Brown  v.  Everett,  &e.  Co.,  Ill  Ga.  404;  Crossley  v.  Moore,  40  N.  J.  L.  27. 
But  a  payment  made  by  a  third  party  not  nearly  related  to  the  debtor  cannot 
be  recovered  back.     Solinger  v.  Earle,  82  N.  Y.  393. 


WHEN    PAYMENTS    CAN    BE   RECOVERED.  505 

the  transaction,  relief  is  given  to  him,  as  we  know  from  various 
*authorities,  of  which  Osborne  v.  Williams  [see  below]  is  [386 
one"  (r).68 

Special  grounds  of  relief.  On  this  principle  relief  was  given  and  an 
account  decreed  in  Osborne  v.  Williams  (s),  where  the  unlawful  sale 
of  the  profits  of  an  office  was  made  by  a  son  to  his  father  after  the 
son  had  obtained  the  office  in  succession  to  his  father  and  upon  his 
recommendation,  so  that  he  was  wholly  under  his  father's  control  in 
the  matter.  In  Reynell  v.  Sprye  (t)  an  agreement  bad  for  champerty 
was  set  aside  at  the  suit  of  the  party  who  had  been  induced  to  enter  . 
into  it  by  the  other's  false  representations  that  it  was  a  usual  and 
proper  course  among  men  of  business  to  advance  costs  and  manage 
litigation  on  the  terms  of  taking  all  the  risk  and  sharing  the  prop- 
erty recovered.  In  a  later  case  a  mortgage  to  secure  a  loan  of  money 
which  in  fact  was  lent  upon  an  immoral  consideration  was  set  aside  at 
the  suit  of  the  borrower  on  the  ground  that  the  interest  of  others 
besides  parties  to  the  corrupt  bargain  was  involved  (u) .  A  wider  ex- 
ception is  made,  as  we  have  seen  above,  in  the  case  of  agreements  of 
which  the  consideration  is  future  illicit  cohabitation  between  the 
parties.  Apart  from  this  particular  class  of  cases,  it  is  submitted  that 
the  rule  and  its  qualifications  may  be  stated  to  this  effect: 

7.  Statement  of  the  rule  as  qualified.  Money  paid  or  property  deliv- 
ered under  an  unlawful  agreement  cannot  be  recovered  back,  nor  the 
agreement  set  aside  at  the  suit  of  either  party — 

unless  nothing  has  been  done  in  the  execution  of  the  unlawful 
purpose  beyond  the  payment  or  delivery  itself  (and  the  agreement  is 
not  positively  criminal  or  immoral?); 

or  unless  the  agreement  was  made  under  such  circumstances  as  be- 
tween the  parties  that  if  otherwise  lawful  it  *would  be  voidable  [387 
at  the  option  of  the  party  seeking  relief  (x) ; 

(r)   Reynell  v.  Sprye   (1852)    1  D.  (u)  W.  v.  B.  (1863)   22  Beav.  574. 

M.  &  G.  660,  at  p.  679.  (<»)  This  form  of  expression  is  not 

(s)    (1811)    18  Ves.  379,   11  R.  R.  positively  warranted  by  the  authori- 

218.  ties,  but  is  submitted  as  fairly  rep- 

( * )  1  D.  M.  &  G.  660,  679.  resenting  the  result. 

us  See  also  Be  Chambrun  v,  Schermerhorn,  59  Fed.  Rep.  504,  508 ;  Lighthall 
r.  Moore,  2  Col.  App.  554;  Baehr  v.  Wolff,  59  111.  470;  Herrick  v.  Lynch,  150 
111.  283;  Norton  v.  Norton,  74  la.  161;  Deatley's  Heirs  v.  Murphy,  3  A.  K. 
Marsh.  472;  Harper  v.  Harper,  85  Ky.  160;  Belding  i\  Smythe,  138  Mass.  530; 
Barnes  v.  Brown,  32  Mich.  146;  Crawford  v.  Osmun,  70  Mich.  561;  Peek  v. 
Peek,  101  Mich.  394;  Poston  v.  Balch.  69  Mo.  115;  O'Conner  v.  Ward,  60 
Miss.  1025;  Hulhorst  v.  Scharner,  15  Neb.  57;  Ford  V.  Harrington,  16  N.  Y. 
285;  Boyd  v.  De  la  Montagnie,  73  N.  Y.  498;  Place  v.  Hayward,  117  N.  Y. 
487.  495;  Duval  v.  Wellman,  124  N.  Y.  156;  Pinkston  v.  Brown,  3  Jones  Eq. 
494;  James  v.  Roberts,  18  Ohio,  548.     Cp.  Roman  v.  Mali,  42  Md.  513. 


506  UNLAWFUL    AGREEMENTS. 

or,  in  the  case  of  an  action  to  set  aside  the  agreement,  unless  in  the 
judgment  of  the  Court  the  interests  of  third  persons  require  that  it 
should  be  set  aside. 

8.  Conflict  of  laws.  Where  a  difference  of  local  laws  is  in  question, 
the  lawfulness  of  a  contract  is  to  be  determined  by  the  law  govern- 
ing the  substance  of  the  contract  (y). 

Exception  1. — An  agreement  entered  into  by  a  citizen  in  violation 
of  a  prohibitory  law  of  his  own  state  cannot  in  any  case  be  enforced 
in  any  court  of  that  state. 

Exception  2. — An  agreement  contrary  to  common  principles  of  jus- 
tice or  morality,  or  to  the  interests  of  the  state,  cannot  in  any  way  be 
enforced. 

What  we  here  have  to  do  with  is  in  truth  a  fragment  of  a  much 
larger  subject,  namely,  the  consideration  of  the  local  law  governing 
obligations  in  general  (z). 

The  main  proposition  is  well  established,  and  it  would  be  idle  to 
388]  attempt  in  this  place  any  abridgment  or  restate*ment  of  what 
is  said  upon  it  by  writers  on  Private  International  Law.  The  first 
exception  is  a  simple  one.  The  municipal  laws  of  a  particular  state, 
especially  laws  of  a  prohibitory  kind,  are  as  a  rule  directed  only  to 
things  done  within  its  jurisdiction.  But  a  particular  law  may  posi- 
tively forbid  the  subjects  of  the  state  to  undertake  some  particular 
class  of  transactions  in  any  part  of  the  world :  and  where  such  a  law 
exists,  the  courts  of  that  state  must  give  effect  to  it.  A  foreigner 
cannot  sue  in  an  English  court  on  a  contract  made  with  a  British 

(y)  According  to  the  modern  au-  to  acts  to  be  done  there"  :  Dicey, 
thorities  (see  especially  Hamlyn  J-  op.  cit.  572.  [See  also  9  Harv.  L. 
Co.  v.  Talisker  Distillery  [1894]  A.  Rev.  371;  3  Beale,  Cases  on  the  Con- 
C.  202 )  the  question  is  really  by  flict  of  Laws,  539  et  seq.~\ 
what  law  the  parties  intended  the  (s)  For  the  treatment  of  it  in  this 
contract  to  be  governed:  Dicey,  Con-  connexion,  see  Savigny,  Syst.  8.  269 
flict  of  Laws,  540.  The  auxiliary  —278  (§  374  C.)  ;  Story,  Conflict  of 
rules'  for  ascertaining  that  intention,  Laws,  §§  243  sqq.,  258  sqq. ;  Dicey, 
and  so  fixing  the  "  proper  law  of  the  op.  cit.  chaps.  24,  25.  Mr.  West- 
contract."  which,  however,  are  pre-  lake,  Priv.  Intern.  Law,  3rd  ed.  259, 
sumptions,  and  not  fixed  rules  of  260.  states  the  rules  thus :  Where  a 
law,  are  that  "  the  -proper  law  of  a  contract  contemplated  the  violation 
contract  is  indeed  primd  facie  the  of  English  law,  it  cannot  be  enforced 
law  of  the  country  where  it  is  made  here,  notwithstanding  that  it  may 
(lex  loci  contractus)  ;  yet  when  a  have  been  valid  by  its  proper  law. 
contract  is  made  in  one  country,  but  Where  a  contract  conflicts  with  what 
is  wholly  or  partially  to  be  per-  are  deemed  in  England  to  be  essen- 
formed  in  another,  then  great  weight  tial  public  or  moral  interests,  it  can- 
will  be  given  to  the  law  of  the  place  not  be  enforced  here,  notwithstand- 
of  performance  (lex  loci  solutionis),  ing  that  it  may  have  been  valid  by 
as  being  probably  the  proper  law  of  its  proper  law. 
the  contract,  in  regard,  at  any  rate, 


CONFLICT   OF   LAWS.  507 

subject,  and  itself  lawful  at  the  place  where  it  was  made,  if  it  is  such 
that  British  subjects  are  forbidden  by  Act  of  Parliament  to  make  it 
anywhere  (a) .  It  may  be  doubted  whether  such  a  contract  would  be 
recognized  even  by  the  courts  of  the  state  where  it  was  made,  unless 
the  prohibition  were  of  so  hostile  or  restrictive  a  character  as  between 
the  two  states  as  not  to  fall  within  the  ordinary  principles  of  comity 
{e.g.  if  the  rules  of  a  people  skilled  in  a  particular  industry  should 
forbid  them  to  exercise  or  teach  that  industry  abroad).  The  authori- 
ties already  cited  (pp.  *289,  *290,  above)  as  to  marriages  within  the 
prohibited  degrees  contracted  abroad  by  British  subjects  may  also  be 
usefully  consulted  as  illustrating  this  topic. 

The  second  exception  is  by  no  means  free  from  difficulties  touch- 
ing its  real  meaning  and  extent  (&).  There  is  no  means  free  from 
difficulties  touching  its  real  meaning  and  extent  (&).  There  is  no 
doubt  that  an  agreement  will  not  necessarily,  though  it  will  generally, 
be  enforced  if  lawful  according  to  its  proper  local  law.  The  reasons 
for  which  the  court  may  nevertheless  refuse  to  enforce  it  have  been 
variously  expressed  by  judges  and  text-writers,  and  sometimes  in  very 
wide  language.69 

(a)    Santos   v.    Illidge    (1860)    in  which  is  void  by  the  law  of  England, 

Ex.  Ch.,  8  C.  B.  N.  S.  at  p.  874,  29  but  valid  by  the  law  of  the  country 

L.   J.    C.    P.    at   p.    350,    per    Black-  where  the  matter  is  transacted,  is  a 

burn  J.  great  question :  "  per  Wilmot  J.  Rob- 

(6)  "Whether  an  action  can  be  inson  v.  Bland  (1760)  2  Burr.  1083. 
supported  in  England  on  a  contract 

69  In  Watson  v.  Murray,  23  N.  J.  Eq.  257,  a  bill  by  a  partner  in  a  lottery 
firm  against  his  copartners  for  an  account  was  dismissed.  Lotteries  in  New 
Jersey  are  declared  common  and  public  nuisances;  the  sale  of  a  ticket  in  a 
lottery,  whether  erected  or  opened  in  New  Jersey  or  any  other  State,  is  a  misde- 
meanor. The  court  said :  "  Putting  the  case  in  its  best  possible  shape,  and 
assuming  that  all  the  contracts  and  transactions  involved  in  it  occurred  in 
States  where  they  were  toleratd  by  law,  my  opinion  is  that  this  court  will  not 
undertake  to  enforce  or  administer  them."  But  see,  on  the  other  hand,  Mcln- 
tyre  v.  Parks,  3  Met.  207 ;  Commonwealth  v.  Bassford,  6  Hill,  526 ;  Thatcher  v. 
Morris,  11  N.  Y.  437;  Ormes  v.  Dauchy,  82  N.  Y.  443. 

In  Oscanyan  v.  Arms  Co.,  103  TJ.  S.  261,  277,  the  court  denied  any  validity 
to  a  promise  made  in  this  country  to  compensate  one  officer  of  the  Turkish 
government  for  improperly  influencing  the  official  action  of  another,  even  as- 
suming that  by  the  law  of  Turkey  such  a  contract  would  be  lawful. 

"A  contract,  valid  elsewhere,  will  not  be  enforced  if  it  is  condemned  by 
positive  law,  or  is  inconsistent  with  the  public  policy  of  the  country,  the  aid 
of  whose  tribunals  is  invoked  for  the  purpose  of  giving  it  effect."  Union  L.  & 
E.  Co.  r.  Railway  Co.,  37  N.  J.  L.  23,  25. 

A  contract  "  will  not  be  enforced  if  it  involves  anything  immoral,  contrary 
to  general  policy,  or  violative  of  the  conscience  of  the  State  called  on  to  give  it 
effect."     Eubanks  v.  Banks,  34  Ga.  407. 

A  contract,  valid  by  the  law  governing  it,  by  its  terms  excusing  a  carrier 
from  the  consequences  of  its  negligence  was  held  enforceable  in  a  State  where 
such  provisions  are  not  allowed  to  be  made  in  Fonseca  v.  Cunard  S.  S.  Co., 


508  UNLAWFUL    AGREEMENTS. 

389]  *  Transactions  contrary  to  common  principles  of  civilized  nations  not 
recognized.  It  may  be  taken  for  granted  that  the  courts  of  a  civilized 
state  cannot  give  effect  to  rights  alleged  to  be  valid  by  some  local  law, 
but  arising  from  a  transaction  plainly  repugnant  to  the  ius  gentium  in 
its  proper  sense — the  principles  of  law  and  morality  common  to  civil- 
ized nations.  In  other  words  a  local  law  cannot  be  recognized,  though 
otherwise  it  would  be  the  proper  law  to  look  to,  if  it  is  in  derogation 
of  all  civilized  laws  (c).  This  indeed  seems  a  fundamental  assump- 
tion in  the  administration  of  justice,  in  whatever  forum  and  by  what- 
ever procedure.  Likewise  it  is  clear  that  no  court  can  be  bound  to 
enforce  rights  arising  under  a  system  of  law  so  different  from  its 
own,  and  so  unlike  anything  it  is  accustomed  to,  that  not  only  its 
administrative  means,  but  the  legal  conceptions  which  are  the  founda- 
tion of  its  procedure,  and  its  legal  habit  of  mind  (d),  so  to  speak,  are 

(c)  It  has  been  laid  down  that  con-  U.   S.  261,  277;   and  this  not  in  the 

tracts  to  bribe  or  corruptly  influence  interest   of   the    foreign   government, 

officers    of    a    foreign    government —  but  for  the  sake  of  morality  and  the 

even  if  not  prohibited  by  the  law  of  dignity  of  law  at  home, 
that    government — will    not    be    en-  {d)    In   German   one   might   speak 

forced   in   the   courts   of   the   United  without     any     strangeness     of     the 

States:    Oseanyan   v.    Arms   Go.    103  Rechtsbewusstsein  of  the   Court. 

153  Mass.  553;  O'Regan  v.  Cunard  S.  S.  Co.,  160  Mass.  356;  Forepaugh  v. 
Delaware  R.  Co.,  128  Pa.  217;  Fairchild  v.  Philadelphia  P.  Co.,  148  Pa.  527 
(cp.  Hughes  v.  Pennsylvania  R.  Co.,  202  Pa.  222).  But  see  contra,  The 
Guildhall,  58  Fed.  Rep.  79;  The  Glenmavis,  69  Fed.  Rep.  472;  Chicago,  &c. 
R.  Co.  v.  Gardiner,  51  Neb.  70.     See  also  The  Kensington,  183  U.  S.  263. 

A  gambling  contract,  though  valid  where  made,  was  held  not  enforceable  in 
another  State  where  such  contracts  were  illegal  in  Pope  is.  Hanke,  155  111. 
617;  Minzesheimer  v.  Doolittle,  60  N.  J.  Eq.  394;  Gooch  v.  Faucett,  122  N.  C. 
270;  Winward  v.  Lincoln,  23  R.  I.  476;  Gist  t>.  Telegraph  Co.,  45  S.  C.  344. 

An  assignment  in  violation  of  the  law  or  policy  of  the  jurisdiction  where  the 
property  is  situated,  it  is  everywhere  agreed,  will  not  be  enforced  there.  Se- 
curity trust  Co.  v.  Dodd,  173  U.  S.  624,  628 ;  Barnett  v.  Kinney,  2  Idaho,  706 
(see  s.  c.  147  U.  S.  476)  ;  Townsend  v.  Coxe,  151  111.  62;  Barth  v.  Iroquois 
Furnace  Co.,  63  111.  App.  323;  Whithed  r.  J.  Walter  Thompson  Co.,  86  111.  App. 
76;  Moore  r.  Church,  70  la.  208;  Franzen  v.  Hutchinson,  94  la.  95;  Ex  parte 
Dickinson,  29  S.  C.  453;  Ayres  v.  Desportes,  56  S.  C.  544.  Compare,  however, 
the  following  cases  where  preferential  assignments  were  upheld,  though  prefer- 
ences were  not  allowed  by  the  lex  fori:  Barnett  v.  Kinney,  147  TJ.  S.  476; 
Atherton  v.  Low,  20  Fed.  Rep.  894;  Train  V.  Kendall,  137  Mass.  366;  Frank 
v.  Bobbitt,  155  Mass.  112;  Moore  v.  Bonnell.  31  N.  J.  L.  90;  Fuller  v.  Steig- 
litz,  27  Ohio  St.  355. 

"  No  people  are  bound  or  ought  to  enforce,  or  hold  valid  in  their  courts  of 
justice,  any  contract  which  is  injurious  to  their  public  rights,  or  offends  their 
morals,  or  contravenes  their  policy,  or  violates  a  public  law."  2  Kent,  458. 
And  see  also  Rousillon  v.  Rousillon,  14  Ch.  D.  351,  369;  Clark  v.  Tanner,  100 
Ky.  275;  Roger  v.  Raines,  100  Ky.  295;  Greenwood  v.  Curtis,  6  Mass.  358, 
378;  Mittenthal  v.  Mascagni,  183  Mass.  19,  22;  Ivey  v.  Lalland,  42  Miss.  444; 
Lemonius  r.  Mayer,  71  Miss.  514;  Smith  v.  Godfrey,  28  N.  H.  379;  Flagg  v. 
Baldwin,  38  N.  J.  Eq.  219;  Commonwealth  r.  Bassford,  6  Hill,  526;  Bank  of 
China  v.  Morse,  168  N.  Y.  458;  Kanaga  v.  Taylor,  7  Ohio  St.  134,  142;  Bank  v. 
Davidson.  18  Oreg.  57;  Wight  v.  Rindskopf,  43  Wis.  344;  Rose  v.  Kimberly 
Co.,  89  Wis.  545. 


CONFLICT   OF   LAWS.  509 

wholly  unfitted  to  deal  with  them.70  For  this  reason  the  English 
Divorce  Court  cannot  entertain  a  suit  founded  on  a  Mormon  marriage. 
Apart  from  the  question  whether  such  marriages  would  be  regarded 
by  our  courts  as  immoral  iure  gentium  (e),  the  matrimonial  law  of 
England  is  wholly  inapplicable  to  polygamy,  and  the  attempt  to  ap- 
ply it  would  lead  to  manifest  absurdities  (/).71  Practically  these 
difficulties  can  hardly  arise  except  as  to  rights  derived  from  family 
relations.  One  can  hardly  imagine  them  in  the  proper  region  of 
contracts. 

Opposition  to  municipal  principles  of  law  not  enough.  Again,  judicial  ob- 
servations are  to  be  found  which  go  to  the  further  extent  of  saying 
that  no  court  will  enforce  *anything  contrary  to  the  particular  [390 
views  of  justice,  morality  or  policy  whereon  its  own  municipal  juris- 
prudence is  founded.  And  this  doctrine  is  supported  by  the  general 
acceptance  of  text-writers,  which  in  this  department  of  law  must 
needs  count  for  more  than  in  any  other,  owing  to  its  comparative 
poverty  in  decisive  authorities.72 

Contract  for  sale  of  slaves  enforced  in  Santos  v.  Illidge.  But  a  test  ques- 
tion is  to  be  found  in  the  treatment  of  rights  arising  out  of  slavery 

(e)    That   is,   among   Western   na-  (f)    Hyde  v.  Hyde  &  Woodmansee 

tions.     The  recognition  of  Hindu  and  (I860)   L.  R.  1  P.  &  D.  130,  35  L.  J. 

Mahometan     law     in     British     India  Mat.  57. 
stands  on  wholly  different  ground. 

70  In  Hughes  v.  Klingender,  14  La.  Ann.  845,  it  was  held  that  a  contract 
executed  in  England  by  which  a  ship  was  transferred  to  a  trustee  to  secure 
the  rights  of  a  third  person,  the  vendor  retaining  possession  of  the  ship,  could 
not  be  enforced  in  Louisiana  to  defeat  the  rights  acquired  by  an  attachment 
under  the  laws  of  that  State,  having  no  analogy  to  any  mode  known  to  its  law 
of  affecting  personal  property  for  the  security  of  debts.  "  The  comity  of 
nations  extends  only  to  enforce  obligations,  contracts,  and  rights  under  those 
provisions  of  the  law  of  other  countries  which  are  analogous  or  similar  to  those 
of  the  State  where  the  litigation  arises." 

71  As  to  polygamous  or  incestuous  marriages,  see  United  States  v.  Rodgers, 
109  Fed.  Rep.  886  (see  note  15  Harv.  L.  Rev.  315);  Stevenson  v.  Gray,  17 
B.  Mon.  193,  208;  Sutton  v.  Warren,  10  Met.  451;  Commonwealth  v.  Lane,  113 
Mass.  458,  463;  Hutchins  v.  Kimmell,  31  Mich.  126,  134:  True  v.  Ranney,  21 
K.  H.  52,  55;  State  v.  Ross,  76  N.  C.  242,  245-6;  State  v.  Brown,  47  Ohio  St. 
102,  109. 

72  Supra,  note  69,  and  infra,  passim.  In  Hill  v.  Spear,  50  N.  H.  253,  which 
turned  upon  the  right  to  recover  the  price  of  liquor  sold  in  New  York 
where  the  sale  of  liquors  is  lawful,  but  with  knowledge  on  the  part  of  the 
seller  that  they  were  bought  for  the  purpose  of  an  unlawful  resale  in  New 
Hampshire,  the  court  say,  at  p.  274 :  "  This  court  will  and  ought  to  be  reluc- 
tant to  enforce  contract  manifestly  against  public  policy ;  but  when  the  public 
policy  of  the  country  is  not  uniform,  but  different  in  neighboring  localities, 
and  variable  in  all,  it  would  seem  to  be  assuming  rather  too  much  to  hold  and 
insist  that  our  notions  of  public  policy  are  and  must  be  infallible  to  the  ex- 
clusion of  the  opinions  and  views  of  other  enlightened  communities,  and  the 
subversion  of  commercial  comity."  And  see  Swann  v.  Swann,  21  Fed.  Rep. 
299;  Brown  r.  Browning,  15  R.  1  422. 


510  UNLAWFUL    AGREEMENTS. 

by  the  courts  of  a  free  country :  and  for  England  at  least  the  decision 
of  the  Exchequer  Chamber  in  Santos  v.  Illidge  (<?)  has  given  such 
an  answer  to  it  as  makes  the  prevailing  opinion  of  the  books  untenable. 
Slavery  is  as  repugnant  to  the  principles  of  English  law  as  anything 
can  well  be  which  has  been  so  far  admitted  by  any  other  civilized 
system  that  any  serious  question  of  the  conflict  of  laws  could  arise 
upon  it.  There  is  no  doubt  that  neither  the  status  of  slavery  nor  any 
personal  right  of  the  master  or  duty  of  the  slave  incident  thereto 
can  exist  in  England  (7i),  or  within  the  protection  of  English  law  (t). 
But  it  long  remained  uncertain  how  an  English  court  would  deal  with 
a  contract  concerning  slaves  which  was  lawful  in  the  country  where  it 
was  made  and  to  be  performed.  Passing  over  earlier  and  indecisive 
authorities  (fc),  we  find  Lord  Mansfield  assuming  that  a  contract  for 
the  sale  of  a  slave  may  be  good  here  (I).  On  the  other  hand,  Best  J. 
thought  no  action  "  founded  upon  a  right  arising  out  of  slavery " 
would  be  maintainable  in  the  municipal  courts  of  this  country  (m).73 
In  Santos  v.  Illidge  (g)  a  Brazilian  sued  an  English  firm  trading  in 
Brazil  for  the  non-delivery  of  slaves  under  a  contract  for  the 
39 1  ]  *sale  of  them  in  that  country,  which  was  valid  by  Brazilian  law. 
The  only  question  discussed  was  whether  the  sale  was  or  was  not  under 
the  circumstances  made  illegal  by  the  operation  of  the  statutes  against 
slave  trading:  and  in  the  result  the  majority  of  the  Exchequer  Cham- 
ber held  that  it  was  not.  It  was  not  even  contended  that  at  common 
law  the  Court  must  regard  a  contract  for  the  sale  of  slaves  as  so 
repugnant  to  English  principles  of  justice  that,  wherever  made,  it 
could  not  be  enforced  in  England.  Nor  can  it  be  suggested  that  the 
point  was  overlooked,  for  it  appears  to  have  been  marked  for  argu- 
ment. Perhaps  it  is  a  matter  for  regret  that  it  was  not  insisted  upon, 
and  an  express  decision  obtained  upon  it:  but  as  it  is,  it  now  seems 
impossible  to  say  that  purely  municipal  views  of  right  and  wrong 

(g)    (1860)    8  C.  B.  N.  S.  861,  29  Forbes  v.  Cochrane  (1824)  2  B.  &  C. 

L.  J.   C.  P.   348,  revg.  s.  c.  in  court  448,  26  R.  R.  402. 
below,  6  C.  B.  N.  S.  841,  28  L.  J.  C.  (k)     They    are    collected    in    Har- 

p.  317.  grave's     argument     in     Sommersett's 

(7t)    Sommersett's  case  (1771-2)  20  case. 
St.  T.  1.  (?)   20  St.  Tr.  79. 

(*)    Vis.  on  board  an  English  ship  (m)   Forbes  v.  Cochrane   (1824)   2 

of  war  on  the  high  seas  or  in  hostile  B.  &  C.  at  p.  469,  26  R.  R.  418.     To 

occupation      of     territorial      waters,  same  effect  Story,  §  259,  in  spite  of 

American  authority  being  adverse. 

73  See  dissenting  opinion  of  Sedgwick,  J.,  in  Greenwood  v.  Curtis,  6  Mass. 
358.  That  an  action  will  lie  in  a  State  where  slavery  never  existed  to  recover 
the  price  of  a  slave  in  a  sale  made  in  a  State  where  such  sale  was  lawful,  see 
Osborn  v.  Nicholson,  13  Wall.  654,  656,  per  Swayne,  J.;  Roundtree  v.  Baker, 
52  111.  241;  Commonwealth  v.  Aves.  18  Pick.  193,  215,  per  Shaw,  C.  J. 


CONFLICT   OF   LAWS.  511 

can  prevail  against  the  recognition  of  a  foreign  law.  Moreover,  apart 
from  this  decision,  the  cases  in  which  the  dicta  relied  upon  for  the 
wider  doctrine  have  occurred  have  in  fact  been  almost  always  deter- 
mined on  considerations  of  local  law,  and  in  particular  of  the  law 
of  the  place  where  the  contract  was  to  be  performed. 

Earlier  cases  considered  with  reference  to  the  general  doctrine.  Thus 
in  Robinson  v.  Bland  (n)  the  plaintiff  sued  (1)  upon  a  bill  of  ex- 
change drawn  upon  England  to  secure  money  won  at  play  in  France ; 
(2)  for  money  won  at  play  in  Prance;  (3)  for  money  lent  for  play  at 
the  same  time  and  place.  As  to  the  bill,  it  was  held  to  be  an  English 
bill;  for  the  contract  was  to  be  performed  by  payment  in  England, 
and  therefore  to  be  governed  by  English  law.  Eor  the  money  won, 
it  could  not  have  been  recovered  in  a  French  court  of  justice  (o),  and 
so  could  not  in  any  case  be  sued  for  here;  but  as  to  the  money  lent, 
the  loan  was  lawful  in  France  and  therefore  recoverable  here.74  Wil- 
mot  J.  said  that  an  action  could  be  maintained  in  some  coun- 
tries *by  a  courtesan  for  the  price  of  her  prostitution,  but  cer-  [392 
tainly  would  not  be  allowed  in  England,  though  the  cause  of  action 
arose  in  one  of  those  countries.75  Probably  no  such  local  law  now 
exists.  But  if  it  did,  and  if  it  were  attempted  to  enforce  it  in  our 
courts,  we  could  appeal,  not  to  our  own  municipal  notions  of  morality, 
but  to  the  Eoman  law  as  expressing  the  common  and  continuous  un- 
derstanding of  civilized  nations.  Such  a  bargain  is  immoral  iure 
gentium. 

In  Quarrier  v.  Colston  (i?)76  it  was  held  that  money  lent  by  one 
English  subject  to  another  for  gaming  in  a  foreign  country  where 
such  gaming  was  not  unlawful  might  be  recovered  in  England.  This, 
as  well  as  the  foregoing  case,  is  not  inconsistent  with  the  rule  that 
the  law  of  the  place  of  performance  is  to  be  followed.  It  must  be 
taken,  no  doubt,  that  the  parties  contemplated  payment  in  England. 
Then,  what  says-^the  law  of  England?  Money  lent  for  an  unlawful 
use  cannot  be  recovered.  Then,  was  this  money  lent  for  an  unlawful 
use?    That  must  be  determined  by  the  law  existing  at  the  time  and 

(ji)    (1760)   2  Burr.  1077.  clined  to  take  notice  of  an  extraor- 

(o)   Nor,  under  the  circumstances,  dinary    and    extra-legal    jurisdiction 

in    the    marshal's    court    of    honour  of  that  sort. 

which  then  existed;  but  it  seems  the  (q)   (1842)  1  Ph.  147. 

Court  would   in   any   case   have   de- 

1*  Scott  it.  Duffy,  14  Pa.  18. 

IS  Ace.  per  Chase,  C.  J.,  in  De  Sobry  r.  De  Laistre,  2  H.  &  J.  191,  288;  per 
Parsons,  C.  J.,  in  Greenwood  v,  Curtis,  6  Mass.  358,  379. 
76  See  also  Sondheim  v.  Gilbert,  117  Ind.  71. 


512  UNLAWFUL    AGREEMENTS. 

place  at  which  the  money  was  to  be  used  in  play.  That  law  not  being 
shown  to  prohibit  such  a  use  of  it,  there  was  no  unlawful  purpose 
in  the  loan,  and  there  was  a  good  cause  of  action,  not  merely  by  the 
local  law  (which  in  fact  was  not  before  the  Court)  (r),  but  by  the  law 
of  England.  These  cases  do  show,  however,  that  the  English  law 
against  gaming  is  not  considered  to  be  founded  on  such  high  and 
general  principles  of  morality  that  it  is  to  override  all  foreign  laws, 
or  that  an  English  court  is  to  presume  gaming  to  be  unlawful  by  a 
foreign  law  (s).77 

393]  *In  Hope  v.  Hope  (t)  an  agreement  made  between  a  husband 
and  wife,  British  subjects  domiciled  in  France,  provided  for  two  things 
which  made  the  agreement  void  in  an  English  court:  the  collusive 
conduct  of  a  divorce  suit  in  England,  and  the  abandonment  by  the 
husband  of  the  custody  of  his  children.  It  is  worth  noting  that  at 
the  time  of  the  suit  the  husband  was  resident  in  England,  and  it 
does  not  seem  clear  that  he  had  not  recovered  an  English  domicil. 
Knight  Bruce  L.J.  put  his  judgment  partly  on  the  ground  that  an 
important  part  at  least  of  the  provisions  of  the  document  was  to  be 
carried  into  effect  in  England.  Turner  L.J.  did  say  in  general  terms 
that  a  contract  must  be  consistent  with  the  laws  and  policy  of  the 
country  where  it  is  sought  to  be  enforced,  and  he  appears  to  have 
thought  the  provision  as  to  the  custody  of  the  children  was  one  that 
an  English  court  must  absolutely  refuse  to  enforce,  whether  to  be 
performed  in  England  or  not,  and  whether  by  a  domiciled  British 
subject  or  not.  But  this  is  neither  required  by  the  decision  nor  recon- 
cilable with  Santos  v.  Illidge. 

In  Grell  v.  Levy  (u)  an  agreement  was  made  in  Prance  between  an 
English  attorney  and  a  French  subject  that  the  attorney  should  re- 

(r)   The  local  law  might  conceiva-  Natur) —  i.e.   must  be  applied  with- 

bly,  without   making  gaming  unlaw-  out    regard   to    local    law    by    every 

ful,  reduce  debts  for  money  lent  at  court  within  their  allegiance,  but  are 

play  to  the  rank  of  natural   obliga-  not  to  be  regarded  by  any  court  out- 

tions  or  debts  of  honour  not  enforce-  side  it.     Syst.  8.  276.     The  old  usury 

able  by  legal  process :   if  the  view  in  laws  were  without  doubt  supposed  to 

the  text  be  correct,  the  existence  of  express     the     dictates     of     universal 

such  a  law  would  make  no  difference'  Christian  moralitv. 

in  the  English  court.  (t)    (1857)   8  D.  M.  &  G.  T31 ;  per 

(s)     Contra    Savigny,    who    thinks  Knight   Bruce    L.J.    at   p.    740;    per 

laws  relating  to   usury   and   gaming  Turner  L.J.  at  p.  743. 

must  be  reckoned  strictly  compulsory  («.)    (1864)   16  C.  B.  N.  S.  73. 
(von     streng     positiver,     zwingender 

n  Gambling  contracts,  though  valid  where  made,  were  refused  enforcement 
on  account  of  the  lex  fori  in  Pope  v.  Hanke.  155  111.  617;  Minzesheimer  r. 
Doolittle.  60  N.  J.  Eq.  394:  Gooch  r.  Faucett.  122  N.  C.  270;  Winward  v. 
Lincoln.  23  R.  I.  476 ;  Gist  v.  Telegraph  Co.,  45  S.  C.  344. 


CONFLICT   OF    LAWS.  513 

cover  a  debt  for  the  client  in  England  and  keep  half  of  it.  Our  rules 
against  champerty  are  not  known  to  the  French  law:  but  here  the 
agreement  was  to  be  performed  in  England  by  an  officer  of  an  Eng- 
lish court  (x).7S  Perhaps,  indeed,  the  English  law  governing  the  re- 
lations and  mutual  rights  of  solicitor  and  client  may  be  regarded 
as  a  law  of  English  procedure ;  and  in  that  character,  of  course,  private 
arrangements  cannot  acquire  any  greater  power  to  vary  it  by  being 
made  abroad  (y). 

*As  to  agreements  against  public  interest  of  state.  As  for  agree-  [394 
ments  contrary  to  the  public  interests  of  the  state  in  whose  courts  they 
are  sued  upon,  it  is  obvious  that  the  courts  must  refuse  to  enforce  them 
without  considering  any  foreign  law.  The  like  rule  applies  to  the 
class  of  agreements  in  aid  of  hostilities  against  a  friendly  state  of 
which  we  have  already  spoken.  In  practice,  however,  an  agreement 
of  this  kind  is  more  likely  than  not  to  be  unlawful  everywhere.  Thus 
an  agreement  made  in  New  York  to  raise  a  loan  for  insurgents  in 
China  would  not  be  lawful  in  England ;  but  it  would  also  not  be  lawful 
in  New  York,  and  for  the  same  reason.  It  might  possibly  happen 
on  the  other  hand  that  the  United  States  should  recognize  such  in- 
surgents while  they  were  not  recognized  by  England ;  and  in  that  case 
the  courts  of  New  York  would  regard  the  contract  as  lawful,  but 
ours  would  not. 

It  should  be  borne  in  mind  that  the  foregoing  discussion  has  noth- 
ing to  do  with  the  formal  validity  of  contracts,  which  is  governed  by 
other  rules  (expressed  in  a  general  way  by  the  maxim  locus  regit 
actum) ;  and  also  that  all  rules  as  to  the  conflict  of  laws  depend  on 
practical  assumptions  as  to  the  conduct  to  be  expected  at  the  hands 
of  civilized  legislatures  and  tribunals.  It  is  in  theory  perfectly  com- 
petent to  the  sovereign  power  in  any  particular  state  to  impose  any 
restrictions,  however  capricious  and  absurd,  on  the  action  of  its  own 
municipal  courts ;  and  even  to  municipal  courts,  in  the  absence  of  any 
paramount  directions,  to  pay  as  much  or  as  little  regard  as  they  please 
to  any  foreign  opinion  or  authority. 

(x)  Per  Erie  C.J.  at  p.  79.  (y)   See  judgment  of  Williams  J. 

78  See  Berrien  r.  McLane,  1  Hoff.  Ch.  421,  427;  Giddings  v.  Eastman,  1 
Clarke,  19.  A  contract,  assumed  to  be  unlawful  for  champerty  by  the  law  of 
Connecticut,  made  in  that  State,  to  be  performed  in  New  York,  where  it  waa 
lawful,  was  held  valid  in  the  former  State  in  Richardson  v.  Rowland,  40  Conn. 
565.     But  see  Blackwell  v.  Webster,  29  Fed.  Rep.  614. 

33 


514  UNLAWFUL    AGREEMENTS. 

9.  Where  performance  becomes  unlawful,  contract  dissolved.  Where 
the  performance  of  a  contract  lawful  in  its  inception  is  made  unlawful 
by  any  subsequent  event,  the  contract  is  thereby  dissolved  (z).79 
395]  "'Explanation. — Where  the  performance  is  subsequently  for- 
bidden by  a  foreign  law,  it  is  deemed  to  have  become  not  unlawful  but 
impossible  (a). 

This  rule  does  not  call  for  any  discussion.  It  is  admitted  as  certain 
in  A  tkinson  v.  Ritchie  (&),  and  is  sufficiently  illustrated  by  the  modern 
case  of  Esposito  v.  Boivden  (c),  of  which  some  account  has  already 
been  given.  It  applies  to  negative  as  well  as  to  affirmative  promises. 
"  It  would  be  absurd  to  suppose  that  an  action  should  lie  against  par- 
ties for  doing  that  which  the  legislature  has  said  they  shall  be  obliged 
to  do"  (d).  To  the  qualification  we  shall  have  to  return  in  the  fol- 
lowing chapter  on  Impossibility. 

10.  Otherwise  law  at  date  of  agreement  governs.  Otherwise  the  valid- 
ity of  a  contract  is  generally  determined  by  the  law  as  it  existed  at 
the  date  of  the  contract. 

This  is  a  wider  rule  than  those  we  have  already  stated,  as  it  ap- 
plies to  the  form  as  well  as  to  the  substance  of  the  contract,  and  not 
only  to  the  question  of  legality  but  to  the  incidents  of  the  contract 
generally  (e).  It  is  needless  to  seek  authority  to  show  that  an  orig- 
inally lawful  contract  cannot  become  in  itself  unlawful  by  a  subse- 
quent change  in  the  kw  (/).80 

Quaere  when   agreement  made  in  ignorance  of  its  illegality,  and  perform- 
ance afterwards  becomes  lawful.     It  does  not  seem  certain,  however,  that 
the  converse  proposition  would  always  hold  good.     Perhaps  the  par- 
ts)   Atkinson  v.  Ritchie    (1809)    10  (6)   See  note   (z) ,  ante. 
Bast,  530,   10  B.  B.  372;   Esposito  v.  (c)   Ibid. 

Bowden    (1S57)    4   E.    &   B.   903,   24  (it)     Wynn    v.    Shropshire    Union 

L.  J.  Q.  B.  210;  in  Ex.  Ch.  7  E.  &  B.       Rys.  &  Canal  Co.    (1850)    5  Ex.  420, 
703,  27  L.  J.  Q.  B.  17,  p.  *319,  supra.       440. 

(«)    Barker  V.    Hodgson    (1814)    3  (e)   Sav.  Syst.  §  392   (8.  435). 

M.  &  S.  267,  15  E.  E.  485;  Jacobs  v.  (f)    See  Boyce  v.  Tabb    (1873)    18 

Credit  Lyonnais  (1884)   12  Q.  B.  Div.        Wallace    (Sup.  Ct.  U.  S.)    546,  supra, 
589,  53  L.  J.  Q.  B.  156.  p.  *312. 

ra  Gates  r.  Goodloe,  101  U.  S.  612,  619-621;  Gray  r.  Sims,  3  Wash.  C.  C. 
276,  280;  United  States  r.  Dietrich,  126  Fed.  Sep.  671;  Chicago  v.  Eailroad 
Co.,  105  111.  73;  Jamieson  r.  Indiana  Gas  Co.,  128  Ind.  555;  Brown  ■.'.  Delano, 
12  Mass.  370;  Cordes  v.  Miller,  39  Mich.  581  (with  this  case  last  cited  cp. 
David  v.  Eyan,  47  la.  642)  ;  Bradford  r.  Jenkins,  41  Miss.  328;  Bullard  v. 
Northern  Pac.  Ey.  Co.,  10  Mont.  168;  Hillyard  v.  Mutual  Benefit  Ins.  Co.,  35 
N.  J.  L.  415,  418,  422;  Brick  Presb.  Church  v.  New  York,  5  Cow.  538;  Balti- 
more, &c.  E.  Co.  v.  O'Donnell,  49  Ohio  St.  489. 

80  Anheuser-Busch  Co.  v.  Bond,  66  Fed.  Eep.  653  (C.  C.  A.)  ;  Stephens  v. 
Southern  Pac.  Rv.  Co.,  109  Cal.  86. 


CONFLICT  OF   LAWS  IN    TIME.  515 

ties  might  be  entitled  to  the  benefit  of  a  subsequent  change  in  the 
law  if  their  actual  intention  in  making  the  contract  was  not  unlaw- 
ful.81 

The  question  may  be  put  as  follows  on  an  imaginary  case,  which 
the  facts  of  Waugh  v.  Morris  (g)  show  to  be  quite  within  the  bounds 
of  possibility.  A.  and  B.  make  *an  agreement'  which  by  reason  [396 
of  a  state  of  things  not  known  to  them  at  the  time  is  not  lawful.  That 
state  of  things  ceases  to  exist  before  it  comes  to  the  knowledge  of  the 
parties,  and  before  the  agreement  is  performed,  but  A.  refuses  to  per- 
form the  agreement  on  the  ground  that  it  was  unlawful  when  made. 
Is  this  agreement  a  contract  on  which  B.  can  sue  A.  ?  Justice  and 
reason  seem  to  call  for  an  affirmative  answer,  and  the  analogy  of 
Waugh  v.  Morris  (h),  where  the  court  looked  to  the  actual  knowledge 
and  intention  of  the  parties  at  the  time  of  the  contract,  is  also  in  its 
favour. 

Contract  conditional  on  performance  becoming  lawful.  Apart  from  this  a 
contract  which  provides  for  something  known  to  the  parties  to  be  not 
lawful  at  the  time  being  done  in  the  event,  and  only  in  the  event,  of  its 
being  made  lawful,  is  free  from  objection  and  valid  as  a  conditional 
contract  (i)  :  unless,  indeed,  the  thing  were  of  such  a  kind  that  its 
becoming  lawful  could  not  be  properly  or  seriously  contemplated  (fc).s2 

(g)    (1873)    L.  R.  8  Q.  B.  202,  42  Mayor  of  Norivich  v.  Norfolk  Ry.  Go. 

L.  J.  Q.  B.  57;  supra,  p.  *378.  (1855)   4  E.  &  B.  397,  24  L.  J.  Q.  B. 

(h)    Last  note.  105,  supra,  p.  *276. 

(i)    Taylor   v.    Chichester   &    Mid-  (7c)    Cp.   D.    18.    1.   de   cont.   empt. 

hurst  Rj/.   Co.    (1867)    L.  R.  4  H.  L.  34  §  2    (Paulus).     Liberum  hominem 

628,  640,  645,  39  L.  J.  Ex.  217;   cp.  seientes    emere    non    possumus;     sed 

si  In  Graham  v.  Chicago,  &c.  Ry.  Co.,  53  Wis.  473,  484,  the  court  said:  "  The 
lawfulness  of  an  act  done  depends  upon  the  laws  in  force  at  the  time  it  is 
done ;  and,  if  unlawful  when  done,  it  does  not  become  lawful  by  a  subsequent 
change  of  the  law  which  renders  such  act  lawful  thereafter.  Bailey  v.  Mogg, 
4  Denio,  60;Roby  v.  West,  4  N.  H.  285;  Jaques  17.  Withy,  1  H.  Bl.  65;  Fletcher 
v.  Peck,  6  Craneh,  87 ;  Conley  v.  Palmer,  2  N.  Y.  182. 

"  This  court  has  enforced  this  rule  to  its  full  extent  in  cases  of  contracts 
void  at  the  time  they  were  made,  under  the  Usury  Law  and  the  law  prohibiting 
a  party  from  recovering  for  liquor  bills.  Gorsuth  v.  Butterfield,  2  Wis.  237; 
Root  v.  Pinnev,  11  Wis.  84;  Wood  v.  Lake.  13  Wis.  84;  Lee  v.  Peekham,  17 
Wis.  383;  Morton  v.  Rutherford,  IS  Wis.  298;  Meiswinkle  v.  Jung,  30  Wis. 
361 ;  Austin  v.  Burgess,  36  Wis.  186."' 

The  same  doctrine  was  applied  in  Fulton  v.  Day,  63  Wis.  112,  to  the  case  of 
a  note  given  after  the  repeal  of  the  United  States  Bankruptcy  Law  of  1867  in 
ienew.il  of  a  note  made  void  bv  that  statute. 

Cp.  Hartford  Fire  Ins.  Co.  v.  Chicago,  &c.  Ry.  Co.,  62  Fed.  Rep.  904. 

For  other  applications  of  the  principle  see  Woods  v.  Armstrong,  54  Ala.  150; 
Mitchell  v.  Doggett,  1  Fla.  356;  Robinson  n.  Barrows,  48  Me.  186;  Webber  v. 
Howe,  36  Mich.  150;  Handv  v.  St.  Paul  Globe  Co.,  41  Minn.  188;  Anding  v. 
Levy,  57  Miss.  51,  58;  Nichols  V.  Poulson,  6  Ohio  St.  305;  Gilliland  r.  Phillips, 
1  S.  C   152. 

S2In  Noice  v.  Brown,  38  N.  J.  L.  228;  39  N.  J.  L.  133,  the  defendant,  being 


516  UNLAWFUL    AGREEMENTS. 

General  results  as  to  knowledge  of  parties.  It  may  be  useful  to  collect 
here  in  a  separate  form,  the  results  of  the  foregoing  discussion,  so  far 
as  they  show  in  what  circumstances  and  to  what  extent  the  knowledge 
of  the  parties  is  material  on  the  question  of  illegality. 

«.  If  the  immediate  object  of  agreement  be  unlawful,  the  knowl- 
edge of  either  or  both  parties  is  immaterial  (I)  :  except,  perhaps, 
397  ]  where  the  agreement  is  made  in  good  faith  and  in  *ignorance  of 
a  state  of  things  making  it  unlawful :  and  in  this  case  it  is  submitted 
for  the  reasons  above  given  that  the  agreement  becomes  valid  if  that 
state  of  things  ceases  to  exist  in  time  for  the  agreement  to  be  law- 
fully performed  according  to  the  original  intention. 

fi .  A.  makes  an  agreement  with  B.  the  execution  of  which  would  in- 
volve an  unlawful  act  on  B.'s  part  (e.  g.  a  breach  of  B.'s  contract  with 
C). 

If  A.  does  not  know  this,  there  is  a  good  contract,  and  A.  can  sue 
B.  for  a  breach  of  it,  though  B.  cannot  be  compelled  to  perform  it  or 
may  be  restrained  (m)  from  performing  it.  We  may  say  if  we  like 
that  B.  is  deemed  to  warrant  that  he  can  lawfully  perform  his  con- 
tract. 

The  contract  is  voidable  at  A.'s  option  on  the  ground  of  fraud, 
if  B.  has  falsely  stated  or  actively  concealed  the  facts,  but  not  other- 
wise (n). 

nee  talis   emptio   aut   stipulatio   ad-  invalid  by  the  local  law,  but  executed 

mittenda  est;  cum  servus  erit,  quam-  the  agreement  containing  that  clause 

vis  dixerimus,  futuras  res  emi  posse ;  for  what  it  might  be  worth.     Noth- 

nec  enim  fas  est  eiusmodi  casus  ex-  ing  decided  in  the  case  turned  upon 

spectare.  this  rather  curious  state  of  facts. 

(()    A   strong   illustration   of   this  (m)   Jones  v.  North   (1875)   L.  E. 

will  be  found   in  Wilkinson  v.  Lou-  19  Eq.  426,  44  L.  J.  Ch.  388. 
donsack    (1814)    3   M.   &   S.    117,   15  (»)    Beachey  v.  Broion    (1860)    E. 

R.  R.  438.     In  South  African  Brew-  B.  &  E.  796,  29  L.  J.  Q.  B.  105  ;  but 

eries  v.   King    [1899]    2   Ch.   173,   68  one  can  never  be  quite  safe  in  draw- 

L.  J.  Ch.  530,  in  C.  A.   [1900]   1  Ch.  ing   any   general    conclusion    from   a 

273,    69    L.    J.    Ch.    171,   the    parties  decision   on    the   contract   to  marry, 

were  advised  that  a  clause  of  their  And  cp.  D.   18.   1.  de  cont.  empt.  34 

agreement    was,    or    might    be    held,  §  3. 

a  married  man,  and  living  apart  from  his  wife,  and  in  expectation  of  a  divorce 
from  her  by  force  of  a  bill  then  pending,  promised  the  plaintiff  to  marry  her 
in  a  reasonable  time  after  such  divorce  should  have  been  obtained.  The  con- 
tract was  held  void,  and  Beasley,  C.  J.,  said: 

"  I  cannot  see  the  faintest  semblance  of  legality  in  the  promise  here  laid. 
It  is  wholly  fallacious  to  suppose  that  a  contract  is  not  illegitimate  if  the 


KNOWLEDGE    OF    PARTIES.  517 

If  A.  does  know  the  facts,  the  agreement  is  void. 

y.  A.  makes  an  agreement  with  B.  who  intends  by  means  of  the 
agreement  or  of  something  to  be  obtained  or  done  under  it  to  effect 
an  unlawful  or  immoral  purpose. 

If  A.  does  not  know  of  this  purpose,  there  is  a  contract  voidable 
at  his  option  when  he  discovers  it. 

If  he  does  know  of  it,  the  agreement  is  void.83 

act  agreed  to  be  done  would  not  be  illegal  at  the  time  of  its  contemplated  per- 
formance. Such  is  not  the  law.  A  contract  is  totally  void,  if,  when  it  is  made, 
it  is  opposed  to  morality  or  public  policy."  See  also  Paddock  v.  Robinson,  63 
111.  99;  Leupert  v.  Shields,  60  Pac.  Rep.  193  (Col.  App.).  Compare  Brown  v. 
Odill,  104  Tenn.  250. 

S3  See  also  supra,  pp.  494,  496. 


".18 


IMPOSSIBLE    AGREEMENTS. 


398] 


*CHAPTER  VIII. 

Impossible  Agreements. 


PAGE. 

Performance  of  agreement  may 
be  impossible  in  itself,  by  law, 
or  in  fact  (i.  a.,  by  reason  of 
particular   state   of    facts), 

General  statement  of  law, 

Agreement  impossible  in  itself  is 
void, 

Practical  impossibility, 

Logical   impossibility, 

Impossibility  merely  relative  to 
promisor  no  excuse, 

Agreements   impossible   in   law, 

Performance  becoming  impossible 
by  law, 

Buying  one's  own  property, 

Impossibility  in  fact  no  excuse 
where  contract  absolute, 

Performance  forbidden  by  for- 
eign law. 

Obligation  to  pay  rent  when 
premises  accidentally  de- 
stroyed, 

Exceptions  in  cases  of  events  not 
contemplated  by   the   contract,  534 

Performance    dependent    on    spe- 
cific thing  existing,  536 
Appleby  v.  Meyers,  537 

Impossibility  at  date  of  contract 
from  existing  state  of  things 
not  known  to  the  parties,  539 


518 
520 

520 

522 
522 

523 

524 

525 
520 


530 


530 


Sale  of  cargo  already  lost:  Cou- 
turier v.  Hastie, 

Covenants  to  work  mines,  etc., 
Clifford  v.  Watts, 

Construction  of  express  excep- 
tions in  certain  contracts, 

Performance  dependent  on  life  or 
health  of  promisor, 
Robinson  v.  Davison, 

Anomalous  decision  on  contract 
to  marry  in  Hall  v.  Wright, 

Limits  of  rule  as  to  personal  ser- 
vices, 

Rights  already  acquired  under 
contract  not  discharged  by  sub- 
sequent impossibility, 

Substituted  contracts, 

Impossibility  by  default  of  either 
party :  such  default  of  prom- 
isor is  equivalent  to  breach  of 
contract, 

Default  of  promisee  discharges 
promisor, 

Alternative  contracts  where  one 
alternative  is  or  becomes  im- 
possible, 

Conditional  contracts, 

Impossible  conditions  in  bonds : 
peculiar  treatment  of  them, 

Indian  Contract  Act  on  impos- 
sible agreements, 


540 

541 

542 

543 
544 

540 

547 


548 
540 


549 


549 


552 
554 


555 


558 

Performance  of  agreement  may  be  impossible  in  itself.  An  agreement 
may  be  impossible  of  perf  ormanee  at  the  time  when  it  is  made,  and  this 
in  various  ways. 

It  may  be  impossible  in  itself;  that  is,  the  agreement  itself  may 
involve  a  contradiction,  as  if  it  contains  promises  inconsistent  with 
one  another  or  with  the  date  of  the  agreement.  Or  the  thing  con- 
tracted for  may  be  contrary  to  the  course  of  nature,  "  quod  naiura 
fieri  non  concedit"  (a). 

As  if  a  man  should  undertake  to  make  a  river  run  up. hill;  to  make 
two  spheres  of  the  same  substance,  but  one  twice  the  size  of  the  other, 
of  which  the  greater  should  fall  twice  as  fast  as  the  smaller  when 
(o)  D.  45.  1.  de  v.  o.  35  pr. 


IMPOSSIBLE    AGREEMENTS.  519 

they  were  both  dropped  from  a  height;  or  to  construct  a  perpetual 
motion  (6). 

It  may  be  impossible  by  law.  It  may  be  impossible  by  law,  as  being 
inconsistent  with  some  legal  principle  or  institution. 

As  in  the  cases  already  considered  in  Chap.  V.  of  attempts  to 
enable  a  stranger  to  a  contract  to  sue  upon  it  by  agreement  of  the 
parties;  or  as  if  a  man  should  give  a  bond  to  secure  a  simple  con- 
tract with  a  collateral  agreement  that  the  simple  contract  debt  should 
not  be  merged  (c),  or  should  covenant  to  create  a  new  manor. 
*  Again  it  is  the  general  rule  of  law  that  a  man  may  contract  for  [399 
the  sale  of  a  specific  thing  which  is  not  his  own  at  the  time.  But  if  the 
thing  be  already  the  buyer's  own,  or  cannot  be  the  subject  of  private 
ownership  at  all  (as  the  site  of  a  public  building,  the  Crown  jewels, 
a  ship  in  the  Eoyal  Navy)  (d),  the  agreement  is  impossible  in  law. 

Or  in  fact.  It  may  be  impossible  in  fact  by  reason  of  the  existence 
of  a  particular  state  of  things  which  makes  the  performance  of  the 
particular  contract  impossible.  As  where  the  contract  is  to  go  to 
a  certain  island  and  there  load  a  full  cargo  of  guano,  but  there  is  not 
enough  guano  there  to  make  a  cargo  (e)  :  or  a  lessee  covenants  to  dig 
not  less  than  1,000  tons  of  a  certain  kind  of  clay  on  the  land  demised 
in  every  year  of  the  term,  but  there  is  no  such  clay  on  the  land  (/). 

Or  may  become  impossible  in  law  or  in  fact  —  According  to  modern  author- 
ities the  rules  are  rules  of  construction.  Moreover  the  performance  of  a 
contract  which  was  possible  in  its  inception  may  become  impossible 
in  either  the  second  or  third  of  these  ways.  The  strong  and  concur- 
rent tendency  of  the  modern  authorities  is  to  avoid  laying  down  abso- 
lute rules  in  any  case,  and  to  give  effect  as  far  as  possible  to  the  real 
intention  of  the  parties— in  other  words,  to  treat  the  subject  as  one  to 
be  governed  by  rules  of  construction  rather  than  by  rules  of  law.  As 
evidence  of  intention  in  such  matters  is  very  seldom  forthcoming, 
the  Court  has  to  fall  back  on  its  own  view  of  what  reasonable  men 

(6)     Of   these    particular   impossi-  (d)    In  Roman  law  "quorum  com- 

bilities   the   second   was  supposed   to  mercium    non    sit,    ut    publica    quae 

be  an  elementary  fact  before  Galileo  non  in  pecunia  populi  sed  in  publico 

made  the  experiment;    the  last  con-  usu      habeantur,      ut      est      Campus 

tinues  to  be  now  and  then  attempted  Martius."  D.  18.   1.  de  cont.  empt.  6 

by    persons    who    know    mechanical  pr. 

handicraft  without   mechanical  prin-  (e)  Hills  v.  Sughrue  (1846)    15  M. 

ciples:  we  choose  the  examples  as  all  &  W.  253. 
the  more  instructive  on  that  account.  (f)   Clifford  v.  Watts   (1870)   L.  R. 

(c)   See  Owen  v.  Eomcm  (1851)   3  5  C.  P.  577,  40  L.  J.  C.  P.  36. 
Mac.  &  G.  378,  407-411. 


520  IMPOSSIBLE    AGREEMENTS. 

would  intend  if  they  had  thought  of  the  contingency.  Still  actual 
intention  will  prevail  if  and  so  far  as  it  can  be  ascertained.  Before 
proceeding  to  details  we  may  give  an  outline  of  the  results. 

1.  General  statement.  An  agreement  is  void  if  the  performance  of 
it  is  either  impossible  in  itself  or  impossible  by  law. 

400]  *When  the  performance  of  an  agreement  becomes  impossible 
by  law,  the  agreement  becomes  void. 

2.  An  agreement  is  not  void  merely  by  reason  of  the  performance 
being  impossible  in  fact,  nor  does  it  become  void  by  the  performance 
becoming  impossible  in  fact  without  the  default  of  either  party,  un- 
less according  to  the  true  intention  of  the  parties  the  agreement  was 
conditional  on  its  performance  being  or  continuing  possible  in  fact. 

Such  an  intention  is  presumed  where  the  performance  depends  on 
the  existence  of  a  specific  thing,  or  on  the  life  or  health  of  a  party 
who  undertakes  personal  services  by  the  contract. 

3.  If  the  performance  of  any  promise  becomes  impossible  in  fact 
by  the  default  of  the  promisee,  the  promisor  is  discharged,  and  the 
promisee  is  liable  to  him  under  the  contract  for  any  loss  thereby 
resulting  to  him. 

If  it  becomes  impossible  by  the  default  of  the  promisor,  the  promisor 
is  liable  under  the  contract  for  the  non-performance. 

1.  Agreement  impossible  in  itself  is  void  for  lack  of  animus  contrahendi. 
On  the  first  and'  simplest  rule — that  an  agreement  impossible  in  itself 
is  void — there  is  little  or  no  direct  authority,  for  the  plain  reason 
that  such  agreements  do  not  occur  in  practice;  but  it  is  always  as- 
sumed to  be  so.  Strictly  this  is  not  an  absolute  rule  of  law,  but  rests 
on  the  ground  that  the  impossible  nature  of  the  promise  shows  that 
there  was  no  real  intention  of  contracting  and  therefore  no  real 
agreement.  Brett  J.  said  in  Clifford  v.  Watts  (g)  :  "I  think  it  is 
not  competent  to  a  defendant  to  say  that  there  is  no  binding  con- 
tract, merely  because  he  has  engaged  to  do  something  which  is 
physically  impossible.  I  think  it  will  be  found  in  all  the  cases  where 
that  has  been  said,  that  the  thing  stipulated  for  was,  according  to  the 
state  of  knowledge  of  the  day,  so  absurd  that  the  parties  cannot  be 
401  ]  supposed  to  have  so  contracted."  The  *same  view  is  also  dis-. 
tinctly  given  in  the  Digest  (h).     It  seems  to  follow  then  that  the 

(g)    (1870)  L.  E.  5  C.  P.  p.  55S.  consensu     agitur,    omnium    voluntas 

(h)    D.   44   7.    de   obi.  et   act.    31.  spectetur;    quorum    procul    dubio   in 

Non    solum    stipulationes     .     .     sed  huiusmodi    actu    talis    cogitatio    est, 

etiam   eeteri  quoque  contractus     .     .  ut  nihil   agi   existiment   apposita  ea 

impossibili      condicione      interposita  condicione   quam   sciant   esse    impos- 

aeque    nullius    momenti    sunt,    quia  sibilem. 
in  ea  re,  quae  ex  duorum  pluriumve 


ABSOLUTE    IMPOSSIBILITY.  521 

question  is  not  whether  a  thing  is  absolutely  impossible  (a  question 
not  always  without  difficulty),  but  whether  it  is  such  that  reasonable 
men  in  the  position  of  the  parties  must  treat  it  as  impossible  (i). 

A  thing  is  not  impossible  because  not  known  to  be  possible.  On  the  other 
hand  a  thing  is  not  to  be  deemed  impossible  merely  because  it  has 
never  yet  been  done,  or  is  not  known  to  be  possible.  "  Cases  may  be 
conceived,"  says  Willes  J.  in  the  case  last  cited,  "  in  which  a  man  may 
undertake  to  do  that  which  turns  out  to  be  impossible,  and  yet  he 
may  still  be  bound  by  his  agreement.  I  am  not  prepared  to  say 
that  there  may  not  be  cases  in  which  a  man  may  have  contracted  to 
do  something  which  in  the  present  state  of  scientific  knowledge  may 
be  utterly  impossible,  and  yet  he  may  have  so  contracted  as  to  war- 
rant the  possibility  of  its  performance  by  means  of  some  new  dis- 
covery, or  be  liable  in  damages  for  the  non-performance,  and  cannot 
set  up  by  way  of  defence  that  the  thing  was  impossible."  Indeed  many 
things  have  become  possible  which  were  long  supposed  to  be  impos- 
sible; and  this  not  only  in  the  well-known  instances  of  mechanical 
invention  and  the  applications  of  scientific  discovery  to  the  arts  of 
life,  but  in  the  regions  of  pure  science  and  mathematics.  Formerly 
it  seemed  impossible  that  we  should  ever  have  direct  evidence  of  the 
physical  constitution  of  the  sun  and  fixed  stars:  we  now  have  much. 
In  the  earlier  edition  *of  this  book  the  case  of  an  agreement  [402 
to  make  a  practicable  flying  machine  was  propounded  with  some 
diffidence.  At  this  day  no  one  would  doubt  that,  whether  prudent  or 
not,  such  an  agreement  might  be  binding. 

In  testing  the  seriousness  and  validity  of  an  agreement  by  the 
presumed  intention  of  the  parties,  we  must  remember  that  they  are 
also  presumed  to  have  the  ordinary  knowledge  of  reasonable  men. 
Thus  the  Indian  Contract  Act  (s.  56,  illust.  a),  says  that  an  agree- 
ment to  discover  treasure  by  magic  is  void,  notwithstanding  that  in 
some  regions  at  least  of  British  India  the  parties  might  really  believe 
in  the  efficacy  of  magic  for  the  purpose.  If  a  promisee  believes  in 
the  possibility  of  the  performance  nominally  promised,  and  the  prom- 
isor does  not,  the  case  will  generally  be  reduced  to  one  of  fraud. 

(i)     In    Thornborow    v.    WHtacre  to   the    defendant's    ability,"    though 

(1706)  2  Ld.  Raym.  1164,  a  promise  it  was  urged  for  the  defendant  that 

to   deliver   two  grains   of   rye   on   a  "  all  the  rye  in  the  world  was  not  so 

certain  Monday,  and  four,  eight,  six-  much."    No  judgment  was  given,  the 

teen,  &e.,  on  alternate  Mondays  fol-  case  being   settled.     The   point  that 

lowing  for  a  year,  was  said  by  Holt  the  parties  could  not  have  been  in 

to  be  "only  impossible  with  respect  earnest  was  not  made. 


522  IMPOSSIBLE    AGREEMENTS. 

"  Practical  impossibility,"  i.  e.  extreme  cost  or  difficulty,  not  material. 
If  a  man  may  bind  himself  to  do  something  which  is  only  not  known 
to  be  impossible,  much  more  can  he  bind  himself  to  do  something 
which  is  known  to  be  possible,  however  expensive  and  troublesome. 
For  some  purposes  practical  impossibility  may  be  treated  as  equiva- 
lent to  absolute  impossibility:  a  ship  is  said  to  be  totally  lost  when 
it  is  in  this  sense  practically  impossible,  though  not  physically  impos- 
sible, to  repair  her  (fc).  But  this  does  not  apply  to  the  matter  now 
in  hand  (I).1 

Logical  impossibility  —  Repugnancy  between  different  parts  of  instrument. 
The  other  conceivable  cases  of  absolute  impossibility  may  be  very 
briefly  dismissed.  Inconsistent  or,  in  the  usual  technical  phrase,  re- 
pugnant promises  contained  in  the  same  instrument  cannot  of  course 
be  enforced :  this  however  is  rather  a  case  of  failure  of  that  certainty 
which,  as  we  saw  in  the  first  chapter,  is  one  of  the  primary  conditions 
for  the  formation  of  a  contract.  There  may  also  be  a  repugnancy 
403]  as  to  date,  as  if  a  man  promises  to  do  a  thing  *on  a  day  already 
past.  Practically,  however,  such  a  repugnancy  can  hardly  be  more 
than  apparent.  Either  it  is  a  mere  clerical  or  verbal  error,  in  which 
case  the  Court  may  correct  it  by  the  context  (m),2  or  it  arises  from 
the  terms  of  the  agreement  being  fixed  before  and  with  reference 
to  a  certain  time  but  not  reduced  into  writing  and  executed  as  a 
written  contract  till  afterwards.  In  such  a  case  it  must  be  deter- 
mined on  the  circumstances  and  construction  of  the  contract  whether 
the  stipulation  as  to  time  is  to  be  treated  as  having  ceased  to  be  part 
of  the  contract  (in  other  words,  as  having  been  left  in  the  statement 
of  the  contract  by  a  common  niistake),  or  as  still  capable  of  giving 

(k)   Moss  v.  Smith   (1850)   9  C.  B.  E.    &   B.    238,   24    L.    J.    Q.    B.   293, 

94,  103,  19  L.  J.  C.  P.  225.  where    a    note    payable    two    months 

(I)    See  per  Mellor  J.,  L.  P.  6  Q.  after    date,    and    made    in    January, 

B.  123,  per  Hannen  J.  ib.  127.     These  1855,  was  dated  by  mistake  1854,  but 

dicta  seem  to  go  even* beyond  what  is  across  it  was  written  "due  the  4th 

said    in    the   text,    but   are   probably  March,   1855."     The  Court  held  that 

limited  in  their  true  effect  to  what  is  this    sufficiently    corrected    the    mis- 

here  called  impossibility  in  fact.  take,  and  might  be  taken  as  a,  direc- 

(m)    See  Fitch  v.  Jones    (1855)    5  tion  to  read  5  for  4. 

1  A  contract  to  sell  salmon  packed  in  Alaska,  the  fish  to  be  "  exactly  like 
Puget  Sound  fancy  Sockeye  "  is  not  void  as  stipulating  for  the  impossible, 
though,  so  far  as  known  fish  of  that  sort  are  not  found  in  Alaska  at  the 
present  time;  for  the  country  is  known  to  be  still  unexplored,  and  if  such  fish 
are  not  there,  they  may  be  caught  elsewhere  and  packed  in  Alaska.  Reid  v. 
Alaska  Packing  Co.,  43  Oreg.  429.  See  also  Bennett  v.  Morse,  6  Col.  App. 
122;  Beebe  v.  Johnson.  19  Wend.  500;  Anderson  v.  Adams,  43  Oreg.  621;  Strat- 
ford Gas  Co.  ?•.  Stratford,  26  Ont.  App.  100. 

2  Or  rectify  the  contract  so  that  it  shall  express  the  intention  of  the 
parties.     Cameron  r.  White,  74  Wis.  425. 


RELATIVE    IMPOSSIBILITY.  523 

an  independent  right  of  action.  At  all  events  it  cannot  be  treated 
as  a  condition  precedent  so  as  to  prevent  the  rest  of  the  contract 
from  being  enforced  (n).3 

Promisor  not  excused  by  relative  impossibility,  i.  e.  not  having  the  means 
of  performance.  Leaving,  however,  this  rather  barren  discussion,  we 
come  to  a  qualification,  or  rather  explanation  of  more  practical  import- 
ance, which  follows  a  fortiori  from  the  principle  laid  down  by 
Willes  J.  Difficulty,  inconvenience,  or  impracticability  arising  out 
of  circumstances  merely  relative  to  the  promisor  will  not  excuse  him. 
"  Impossibility  may  consist  either  in  the  nature  of  the  action  in 
itself,  or  in  the  particular  circumstances  of  the  promisor.  It  is  only 
the  first  or  objective  kind  of  impossibility  that  is  recognized  as  such 
by  law.  The  second,  or  subjective  kind,  cannot  be  relied  on  by  the 
promisor  for  any  purpose,  and  does  not  release  him  from  the  ordinary 
consequences  of  a  wilful  non-performance  of  his  contract.  On  this 
last  point  the  most  obvious  example  is  that  of  the  debtor  who  owes  a 
sum  certain,  but  has  neither  money  nor  credit.  There  is  plenty  of 
money  in  the  world,  and  it  is  a  matter  *wholly  personal  to  the  [404 
debtor  if  he  cannot  get  the  money  he  has  bound  himself  to  pay  "  (o).4 

One  may  warrant  acts  of  third  persons,  or  natural  event  in  itself  possible. 
Therefore  a  man  is  not  excused  who  chooses  to  make  himself  answer- 
able for  the  acts  or  conduct  of  third  persons,  though  beyond  his  con- 
trol; or  even,  it  seems,  for  a  contingent  event  in  itself  possible  and 
ordinary  but  beyond  the  control  of  man.  It  has  been  said  that  a 
covenant  that  it  shall  rain  to-morrow  might  be  good  (p),  and  that 
"  if  a  man  is  bound  to  another  in  201.  on  condition  quod  pluvia  debet 
pluere  eras,  there  si  pluvia  non  pluit  eras  the  obligor  shall  forfeit  the 
bond,  though  there  was  no  default  on  his  part,  for  he  knew  not  that 
it  would  not  rain.  In  like  manner  if  a  man  is  bound  to  me  on  con- 
tra) Ball  v.  Cazenove  (1804)  4  (1855)  15  C.  B.  at  p.  619,  24  L.  J. 
East,  477,  7  R.  R.  611,  where  the  C.  P.  at  p.  106.  Per  Cur.  Baily  v. 
Court  agreed  to  this  extent,  but  dif-  Be  Crespigny  (1869)  L.  E.  4  Q.  B. 
fered  on  the  other  question.  at  p.  185.     But  qu.  would  not  such  a 

(o)   Savigriy,  Obi.  1.  384.  contract  be  a  mere  wager  in  almost 

(p)  By  Maule  J.  Canham  v.  Bwry      any  conceivable  circumstances? 

3  See  Stratford  Gas  Co.  v.  Stratford,  26  Ont.  App.  109. 

4  So  the  destruction  or  injury  of  a  vendor's  factory  does  not  excuse  per- 
formance of  a  contract  to  deliver  goods  at  a  stated  time,  if  the  contract  did 
not  require  the  goods  to  be  manufactured  in  that  factory.  Jones  v.  United 
States,  96  U.  S.  24;  Summers  v.  Hibbard,  153  111.  102;  Booth  v.  Spuyten 
Duyvil  Mill  Co.,  60  N.  Y.  487.  Nor  is  an  agreement  to  ship  goods  within  a 
reasonable  time  excused  by  the  inability  of  the  promisor  to  get  shipping  facili- 
ties owing  to  discrimination  against  him.  Eppens  v.  Littlejohn,  164  N.  Y. 
187.    See  also  Railroad  Co.  v.  Reichert,  58  Md.  261,  274. 


52-1  IMPOSSIBLE    AGREEMENTS. 

dition  that  the  Pope  shall  be  here  at  Westminster  to-morrow,  then  if 
the  Pope  comes  not  there  is  no  default  on  the  defendant's  part,  and 
yet  he  has  forfeited  the  obligation"  (q).  "  Generally  if  a  condition 
is  to  be  performed  by  a  stranger  and  he  refuses,  the  bond  is  forfeit, 
for  the  obligor  took  upon  himself  that  the  stranger  should  do  it "  (r). 
"  If  the  condition  be  that  the  obligor  shall  ride  with  I.  S.  to  Dover 
such  a  day,  and  I.  S.  does  not  go  thither  that  day;  in  this  case  it 
seems  the  condition  is  broken,  and  that  he  must  procure  I.  S.  to  go 
thither  and  ride  with  him  at  his  peril"  (s).  Where  the  condition  of 
a  bond  was  to  give  such  a  release  as  by  the  Court  should  be  thought 
meet,  it  was  held  to  be  the  obligor's  duty  to  procure  the  judge  to 
devise  and  direct  it  (t).  If  a  lessee  agrees  absolutely  to  assign  his 
lease,  the  lease  containing  a  covenant  not  to  assign  without  licence, 
the  contract  is  binding  and  he  must  procure  the  lessor's  consent  v  a ) . 
405  ]  But  *on  the  sale  of  shares  in  a  company,  on  the  Stock  Exchange 
at  all  events,  the  vendor  is  not  bound  to  procure  the  directors'  assent, 
though  it  may  be  required  to  complete  the  transfer  (x),  and  it  seems 
at  least  doubtful  whether  he  is  bound  in  any  case  (y). 

Agreement  impossible  in  law  is  void.  Where  an  agreement  is  impos- 
sible by  law  there  is  no  doubt  that  it  is  void  :5  for  example,  a  promise 
by  a  servant  to  discharge  a  debt  due  to  his  master  is  void,  and  there- 
fore no  consideration  for  a  reciprocal  promise  (2)  ;  though,  by  the 
rule  last  stated,  a  promise  to  procure  his  master  to  discharge  it  would 
(in  the  absence  of  any  fraudulent  intention  against  the  master)  be 
good  and  binding.  And  when  the  performance  of  a  contract  becomes 
wholly  or  in  part  impossible  by  law,  the  contract  is  to  that  extent 
discharged.6 

(q)    Per  Brian  C.J.  Mich.   22   Ed.  J.  C.  P.  100.    [Cp.   Beebe  v.  Johnson, 

IV.  26.     The  whole  discussion  there  19  Wend.  500.] 

is    curious,    and   well   worth   perusal  (x)   Stray  v.  Russell   (1859)   Q.  B. 

in  the  book  at  large.     Note  Brian's  &  Ex.  Ch.  1  E.  &  E.  888,  916,  28  L.  J. 

change  of  opinion  as  to  the  plea  in  Q.  B.  279,  29  L.  J.  Q.  B.  115. 

the  case  at  bar,  ad  fin.  (y)  Lindley  on  Companies,  491. 
(r)  Ro.  Ab.  1.  452,  L.  pi.  6.  (,-)  Harvey  v.  Oibbons  (1674)  2 
(s)  Shepp.  Touchst.  392.  Lev.  161.  It  is  called  an  illegal  con- 
(t)  lain b's  case,  5  Co.  Rep.  23  6.  sideration,  but  such  verbal  con- 
(m)  Lloyd  v.  Crispe  (1813)  5  fusions  are  constant  in  the  early  re- 
Taunt.  249.  14  R.  R.  744;  cp.  Canham  ports. 

v.  Barry   (1855)    15  C.  B.  597,  24  L. 

5  Stevens  r.  Coon,  1  Pinney  (Wis.),  356. 

6  Avery  i>.  Bowden,  5  E.  &  B.  714;  Reid  v.  Hoskins,  5  E.  &  B.  729;  Commis- 
sioners v.  Young,  59  Fed.  Rep.  96,  108;  Knox  v.  Childersburg  Land  Co.,  86 
Ala.  180;  Dunham  v.  New  Britain,  55  Conn.  378;  Scovill  r.  McMahon,  62  Conn. 
378;  Kuhn  r.  Freeman,  15  Kan.  423;  Gammon  v.  Blaisdell,  45  Kan.  221;  Theo- 
bald v.  Burleigh,  66  N.  H.  574;  Brick  Church  v.  New  York,  5  Cow.  538;  Kaiser 


IMPOSSIBILITY    IN    LAW.  525 

When  performance  becomes  impossible  by  law,  promisor  is  excused  —  Baily 
v.  De  Crespigny.  A  good  instance  of  this  is  Baily  v.  De  Crespigny  (a). 
There  a  lessor  covenanted  with  the  lessee  that  neither  he  nor  his  heirs 
nor  his  assigns  would  allow  any  building  (with  certain  small  excep-  > 
lions)  on  a  piece  of  land  of  the  lessor's  fronting  the  demised  prem- 
ises. Afterwards  a  railway  company  purchased  this  piece  of  land 
under  the  compulsory  powers  of  an  Act  of  Parliament,  and  built  a 
station  upon  it.  The  lessee  sued  the  lessor  upon  his  covenant;  but 
the  Court  held  that  he  was  discharged  by  the  subsequent  Act  of 
Parliament,  which  put  it  out  of  his  power  to  perform  it.  And  this 
was  agreeable  to  the  true  intention,  for  the  railway  company  coming 
in  under  compulsory  powers,  "  whom  he  [the  covenantor]  could  not 
bind  by  any  stipulation,  as  he  could  an  assignee  chosen  by  himself," 
was  "a  new  kind  of  assign,  such  as  was  not  in  the  contemplation  of 
the  parties  when  the  contract  was  *entered  into."  Nor  was  it  [406 
material  that  the  company  was  only  empowered  by  Parliament,  not 
required,  to  build  a  station  at  that  particular  place  (6).7  As  the 
American  phrase  concisely  puts  it,  a  covenant  of  warranty  does  not 
extend  to  the  State  in  the  exercise  of  its  eminent  domain  (c).  If  a 
subsequent  Act  of  Parliament  making  the  performance  of  a  contract 
impossible  were  a  private  Act  obtained  by  the  contracting  party  him- 
self, he  might  perhaps  remain  bound  by  his  contract  as  if  he  had  made 

(a)    (1869)   L.  R.  4  Q.  B.   180,  38  (c)      See      Oslorn     v.      Nicholson 

L.  J.  Q.  B.  98.  (1871)   13  Wall,  at  p.  657. 

(6)    (1869)   L.  E.  4  Q.  B.  186. 

v,  Richardson,  5  Daly,  301;  Jones  v.  Judd,  4  N.  Y.  412;  Burkhardt  v.  Georgia 
School  Township,  9  S.  Dak.  315.  Compare  Klauber  r.  Street  Ry.  Co.,  95  Cal. 
353;  Newport  News  Co.  v.  McDonald  Brick  Co.'s  Assignee,  59  S.  W.  Rep. 
332   (Ky.)  ;  Baker  v.  Johnson,  42  N.  Y.  126. 

A  provision  in  a  contract  of  insurance  that  no  action  shall  be  maintain- 
able on  it  unless  begun  within  twelve  months  next  after  the  occurrence  of  the 
loss  does  not,  in  case  of  war  between  the  countries  of  the  contracting  parties, 
operate  like  a  Statute  of  Limitations,  by  letting  the  term  open  and  expand  it- 
self, so  as  to  receive  within  it  the  term  of  legal  disability  created  by  the  war, 
and  then  close  together  at  each  end  of  that  period,  so  as  to  complete  itself,  as 
though  the  war  had  never  occurred,  but  having  become  impossible  of  perform- 
ance by  law,  is  wholly  discharged.     Semmes  ('.  Insurance  Co.,  13  Wall.  158. 

"  Where,  by  the  terms  of  a  contract  for  work  and  labor,  the  full  price  is  not 
to  be  paid  until  the  work  is  completed,  and  a  complete  performance  becomes 
impossible  by  act  of  the  law,  the  contractor  may  recover  for  the  work  actually 
done  at  the  full  prices  agreed  upon."    Jones  v.  Judd,  4  N.  Y.  411. 

To  discharge  the  contract  the  law  must  make  performance  impossible,  not 
merely  more  expensive  or  burdensome.    Baker  v.  Johnson,  42  N.  Y.  126. 

Where  the  law  prevents  performance  of  a  contract  for  a  limited  time  only 
the  obligation  of  the  contract  is  suspended  but  not  discharged.  Sherman 
County  v.  Howard,  98  N.  W.  Rep.  666  (Neb.). 

TKuhn  v.  Freeman,  15  Kan.  423;  Gammon  r.  Blaisdell,  45  Kan.  221;  Hitch- 
cock v.  Bacon,  118  Pa.  272. 


526  IMPOSSIBLE    AGREEMENTS. 

the  performance  impossible  by  his  own  act8  (of  which  afterwards)  : 
but  where  the  Act  is  a  public  one,  its  effect  in  discharging  the  contract 
cannot  be  altered  by  showing  that  it  was  passed  at  the  instance  of  the 
party  originally  bound  (d).9 

Buying  one's  own  property.  The  case  of  a  man  agreeing  to  buy  that 
which  is  already  his  own  is  a  peculiar  one.  Here  the  performance  is 
impossible  in  law;  and  the  agreement  may  be  regarded  as  void  not 
only  for  impossibility  but  for  want  of  consideration.  But  this  class 
of  cases  is  by  its  nature  strictly  limited.  No  man  will  knowingly  pay 
for  what  belongs  to  him  already.  If  on  the  other  hand  the  parties 
are  in  doubt  or  at  variance  as  to  what  their  rights  are,  any  settlement 
which  they  come  to  in  good  faith,  whatever  its  form,  has  the  char- 
acter of  a  compromise.  There  remain  only  the  cases  in  which  the 
parties  act  under  a  common  mistake  as  to  their  respective  rights. 
The  presence  of  the  mistaken  assumption  is  the  central  point  on 
which  the  whole  transaction  turns,  and  is  decisive  in  fixing  its  true 
nature.  Hence  it  is  the  most  conspicuous  element  in  practice,  and 
these  cases  are  treated  as  belonging  not  to  the  head  of  Impossibility 
but  to  that  of  Mistake.  Under  that  head  we  recur  to  them  in  the 
next  chapter.  It  is  hardly  needful  to  add  that  a  contract  for  the 
407]  sale  of  some*thing  which  the  seller  has  not  at  the  time  is  per- 
fectly good  if  the  thing  is  capable  of  private  ownership.  The  effect 
of  the  contract  is  that  he  binds  himself  to  acquire  a  lawful  title  to 
it  by  the  time  appointed  for  completing  the  contract. 

Exposition  of  same  principles  in  Roman  law.  The  general  principles 
above  considered  are  well  brought  together  in  the  Digest,  in  a  pas- 
sage from  a  work  of  Venule ius  (e)  on  Stipulations.  "  Illud  inspicien- 
dum  est,  an  qui  centum  dari  promisit  confestim  teneatur,  an  vero 
eesset  obligatio  donee  pecuniam-conficere  (f)   possit.     Quid  ergo  si 

(d)    Brown   v.    Mayor    of    London  (r)     See    Roby's    Introduction,    p. 

(1861)    9  C.  B.  N.  S.   726,  30  L.  J.       clxxxiii. 

C.  P.  225,  in  Ex.  Ch.   13  C.  B.  X.   S.  (f)       Mommsen's      correction      for 

828,  31  L.  J.  C.  P.  280.  jonferre,   which   would   mean    "  pay  " 

or  "  contribute,"  not  "  procure." 

8  So  decided  in  Re  Companies'  Acts,  117  L.  T.  60. 

9  "  The  corporation  of  the  city  of  New  York  conveyed  lands  for  the  purposes 
of  a,  church  and  cemetery,  with  a,  covenant  for  quiet  enjoyment;  and  after- 
wards, pursuant  to  a  power  granted  by  the  Legislature,  passed  a  by-law  prohib- 
iting the  use  of  these  lands  as  a  cemetery.  Held,  that  this  was  not  a  breach 
of  the  covenant  which  entitled  to  damages,  but  it  was  a  repeal  of  the  covenant." 
Brick  Presb.  Church  v.  New  York,  5  Cow.  538.  See  also  Board  of  Commission- 
ers r.  Young,  59  Fed.  Rep.  96,  108;  Dunham  v.  New  Britain,  55  Conn.  378; 
Seovill  v.  McMahon,  62  Conn.  378. 

Interference  by  writ  sued  out  by  a  private  litigant  does  not  create  impossi- 
bility caused  by  operation  of  law.    Klauber  v.  Street  Ry.  Co.,  95  Cal.  353\ 


IMPOSSIBILITY    IN    LAW.  527 

neque  domi  habet  neque  inveniat  creditorem  ?  Sed  haec  recedtint  ab 
impediments  naturali  et  respiciunt  ad  faeultatem  dandi  (g).  .  .  . 
Et  generaliter  causa  difficultatis  ad  ineommodum  promissoris,  non  ad 
impedimentum  stipulatoris  pertinet  [i.e.  inconvenience  short  of  impos- 
sibility is  no  answer].  .  .  .  Si  ab  eo  stipulates  sim,  qui  efficere 
non  possit,  cum  alii  possibile  sit,  iure  factam  obligationem  Sabinus 
scribit."  He  goes  on  to  say  that  a  legal  impossibility,  e.g.  the  sale  of 
a  public  building,  is  equivalent  to  a  natural  impossibility.  .  .  . 
'Nee  ad  rem  pertinet  quod  ius  mutari  potest  et  id  quod  nunc  im- 
possible est  postea  possibile  fieri ;  non  enim  secundum  futuri  temporis 
ius  sed  secundum  praesentis  aestimari  debet  stipulatio  "  (h)  :  (as  if 
it  should  be  contended  that  a  covenant  to  create  a  new  manor  is  not  a 
covenant  for  a  legal  impossibility,  because  peradventure  the  statute  of 
Quia  emptor es  may  be  repealed.)  All  this  is  in  exact  accordance 
with  English  law. 

2.  Performance  impossible  in  fact:  no  excuse  where  contract  is  absolute. 
We  now  come  to  the  cases  where  the  performance  of  an  agreement  is 
not  impossible  in  its  own  nature,  but  impossible  in  fact  by  [408 
reason  of  the  particular  circumstances.  It  is  a  rule  admitted  by  all 
the  authorities,  and  supported  by  positive  decisions,  that  impossibil- 
ity of  this  kind  is  in  itself  no  excuse  for  the  failure  to  perform  an 
unconditional  (i)  contract,  whether  it  exists  at  the  date  of  the  contract, 
or  arises  from  events  which  happen  afterwards  (k).  Thus  an  abso- 
lute contract  to  load  a  full  cargo  of  guano  at  a  certain  island  was  not 
discharged  by  there  not  being  enough  guano  there  to  make  a  cargo  (I) : 
and  where  a  charter-party  required  a  ship  to  be  loaded  with  usual 
despatch,  it  was  held  to  be  no  answer  to  an  action  for  delay  in  loading 
that  a  frost  had  stopped  the  navigation  of  the  canal  by  which  the 
cargo  would  have  been  brought  to  the  ship  in  the  ordinary  course  (m). 

(g)  For  the  explanation  of  a  not  on  the  unusual  incident  of  the  char- 
very  clear  illustration  which  follows  ter-party  providing  that  the  cargo 
here,  and  is  omitted  in  our  text,  see  was  to  be  found  by  the  owner.  "  He 
Sav.  Obi.  1.  385.  is  to  receive  freight  at  a  high  rate, 

(h)   D.  45.  1.  de  v.  o.  137.  <■§  4-6.  and  it  looks  very  much  like  a   con- 

(i)    It    may    be    shown,    and    not  tract    for    supplying   guano    at   that 

necessarily    by    the    presence    of    ex-  price:"  Parke  B.  at  p.  261.     And  see 

press  saving  words,  that  the  fact  or  Anson,  330,  331. 

event   was   outside   the    risks   under-  (m)    Kearon,  v.  Pearson    (1861)    7 

taken    by    the    promisor:     in    other  H.   &  N.   386,    31    L.   J.   Ex.    1.      So 

words  that  the  contract  was  not  un-  where   a   given    number    of    days    is 

conditional.  allowed  to  the  charterer  for  unload- 

(h)  Atkinson  v.  Ritchie  (1809)    10  ing,  he   is  held  to  take  the  risk   of 

East,  530.  10  R.  R.  372.  any  ordinary  vicissitudes  which  may 

(I)  Hills  V.  Sughrue  (1846)    15  M.  cause  delay:     Thiis  v.  Byers    (1876) 

&  W.  253.     This  case  turned  in  part  1  Q.  B.  D.  244,  45  L.  J.  Q.  B.  511. 


528  IMPOSSIBLE    AGREEMENTS. 

Still  le*s  will  unexpected  difficulty  or  inconvenience  short  of  impos- 
sibility serve  as  an  excuse.10 

A  fortiori  where  only  inconvenient  or  impracticable.  Where  insured 
premises  were  damaged  by  fire  and  the  insurance  company,  having  an 

10  The  Harriman,  9  Wall.  161;  Jones  v.  United  States,  96  TJ.  S.  24,  29;  Rail- 
Tray  Co.  v.  Hoyt,  149  U.  S.  1,  14;  Railway  Co.  v.  Hooper,  160  U.  S.  514;  United 
States  v.  Gleason,  175  U.  S.  588,  602;  Lumberman's  Co.  v.  Gilchrist,  55  Fed. 
Rep.  677;  Robson  v.  Mississippi  Logging  Co.,  61  Fed.  Rep.  889,  69  Fed.  Rep. 
773;  Merriwether  v.  Lowndes  Co.,  89  Ala.  362;  Klauber  v.  Street  Ry.  Co.,  95 
Cal.  353;  Bacon  v.  Cobb,  45  111.  47;  Summers  v.  Hibbard,  153  111.  102;  Wernli 
r.  Collins,  87  Fa.  548;  Jackson  v„  Cveswell,  94  la.  713;  Bates  Machine  Co.  v. 
Norton  Iron  Works,  68  S.  W.  Rep.  423  ( Ky. )  ;  Adams  v.  Nichols,  19  Pick. 
275;  Bank  i\  Burt,  5  Allen,  113 1  Nieal  v.  Fitch,  115  Mich.  15;  Anderson  v. 
May,  50  Minn.  280;  Harrison  v.  Railwav  Co.,  74  Mo.  364;  Knapman  Whiting 
Co.  v.  Middlesex  Water  Co.,  64  N.  J.  L.'  240 ;  Harmony  v.  Bingham,  12  N.  Y. 
99 ;  Booth  r.  Spuyten  Duyvil  Co.,  60  N.  Y.  487 ;  Ward  v.  Hudson  River  Bg.  Co., 
125  N.  Y.  230;  Hanthorn  v.  Quinn,  42  Oreg.  1 :  Hand  r.  Baynes,  4  Whart.  204; 
Du  Bois  r.  Water  Works  Co.,  176  Pa.  430:  Eddy  r.  Clement,  38  Vt.  486. 

Where  one  contracts  to  build  a  house  on  the  land  of  another,  and  perform- 
ance becomes  impracticable,  either  by  reason  of  a  latent  defect  in  the  soil,  or, 
the  contract  being  to  finish  and  deliver  the  house  by  a  day  named,  by  reason 
of  the  accidental  destruction  of  the  building  shortly  before  that  day,  he  is  not 
excused  from  performance ;  and  performance  not  being  excused  he  cannot  re- 
tain installments  paid  on  account.  Tompkins  v.  Dudley,  25  N.Y.  272;  Dermott 
v.  Jones.  2  Wall.  1;  Autcliff  v.  McAnally,  88  Ala.  507';  Green  v.  Wells,  2  Cal. 
584;  Clark  v.  Collier,  100  Cal.  256;  School  District  r.  Dauchy,  25  Conn.  530: 
Parker  v.  Scott,  82  la.  266 ;  Stees  i>.  Leonard,  20  Minn.  494 ;  Haynes  v.  Second 
Baptist  Church,  88  Mo.  285;  Leavitt  i:  Dover,  67  N.  11.  91:  Trustees  v.  Ben- 
nett, 3  Dutch.  513;  Lawing  r.  Rintles.  97  N.  C.  380;  Galyon  v.  Ketchen,  85 
Tenn.  55;  Burke  r.  Purifoy,  21  Tex.  Civ.  App.  202.  See  also  Brown  v.  Royal 
Ins.  Co.,  1  E.  &  E.  853;  Simpson  v.  United  States,  172  U.  S.  372;  Sehliess  r. 
Grand  Rapids,  131  Mich.  52;  Hanthorn  r.  Quinn,  42  Oreg.  1;  Filbert  r. 
Philadelphia,  181  Pa.  530;  Harlow  v.  Homestead,  194  Pa.  57. 

As  to  whether  accidental  calamitv  excuses  delay  in  completing  a  building,  see 
Pho?nix  Bridge  Co.  r.  United  State's.  38  Ct.  CI.  492;  Cannon  v.  Hunt,  113  Ga. 
501  ;  Cochran  r.  People's  Ry.  Co.,  131  Mo.  607;  Ward  r.  Hudson  River  Build- 
ing Co.,  1  Silvernail  (N.  Y.l,  341;  Reichenbaeh  v.  Sage,  13  Wash.  364;  Bentley 
1'.  State,  73  Wis.  416. 

In  Dermott  v.  Jones,  2  Wall.  1,  Jones  had  covenanted  for  the  erection  and 
complete  finishing  for  use  and  occupation,  by  a  day  fixed,  of  a  house  upon  the 
land  of  Miss  Dermott.  Owing  to  a  latent  defect  in  the  soil,  causing  the  founda- 
tion to  sink,  he  failed  to  make  part  of  the  building  fit  for  use  and  occupation. 
Miss  Dermott  was  compelled  to  take  that  part  down,  renew  the  foundation  with 
artificial  floats,  and  rebuild.  The  court  held  that  while  the  builder  was  not  ex- 
cused from  performance,  he  might  recover  in  indebitatus  assumpsit,  the  owner 
having  accepted  the  work,  but  that  the  latter  was  entitled  to  recoup  for  the 
damages  sustained  by  the  plaintiff's  deviations  from  the  contract,  both  as  to 
the  manner  and  time  of  performance. 

In  Butterfield  v.  Byron,  153  Mass.  517,  it  appeared  that  the  plaintiff  was  to 
do  the  grading,  excavating,  stone  work,  brick  work,  painting,  and  plumbing  for 
a  frame  hotel  and  the  defendant  was  to  do  the  remainder  of  the  work  of  build- 
ing. When  almost  completed  the  building  was  struck  by  lightning.  The  court 
held  that  the  defendant  was  entitled  to  recover  for  the  value  of  the  work  which 
he  had  done  and  the  plaintiff  to  recover  back  any  payments  he  had  made. 
Neither  party  could  recover  damages  for  the  non-completion  of  the  hotel.  Cp. 
Chapman  r.  Beltz  Co.,  48  W.  Va.  1;  Vogt  v.  Hecker,  118  Wis.  306.  See  also 
Krause  r.  Crothersville,  162  Ind.  278.  65  L.  R.  A.  Ill;  Weis  v.  Devlin,  67  Tex. 
507 :  Cook  r.  McCabe,  53  Wis.  250. 


PRACTICAL    IMPOSSIBILITY.  529 

option  to  pay  in  money  or  reinstate  the  building,  elected  to  reinstate, 
but  before  they  had  done  so  the  whole  was  pulled  down  by  the  author- 
ity of  the  Commissioners  of  Sewers  as  being  in  a  dangerous  condi- 
tion; it  was  held  that  the  company  were  bound  by  their  election, 
and  the  performance  of  the  contract  as  they  had  elected  to  perform 
it  was  not  excused  (n).11  So  again  if  a  man  contracts  to  do 
*work  according  to  orders  or  specifications  given  or  to  be  given  [409 
by  the  other  contracting  party,  he  is  bound  by  his  contract,  although 
it  may  turn  out  not  to  be  practicable  to  do  the  work  in  the  time  or 
manner  prescribed.  In  Jones  v.  St.  John's  College  (Oxford)  (o)  the 
plaintiffs  contracted  to  erect  certain  farm  buildings  according  to 
plans  and  specifications  furnished  to  them,  together  with  any  altera- 
tions or  additions  within  specific  limits  which  the  defendants  might 
prescribe,  and  subject  to  penalties  if  the  work  were  not  finished 
within  a  certain  time.  And  they  expressly  agreed  that  alterations 
and  additions  were  to  be  completed  on  the  same  conditions  and  in 
the  same  time  as  the  works  under  the  original  contract,  unless  an 
extension  of  time  were  specially  allowed.  It  was  held  that  the 
plaintiffs,  having  contracted  in  such  terms,  could  not  avoid  the 
penalties  for  non-completion  by  showing  that  the  delaj'  arose  from 
alterations  being  ordered  by  the  defendants  which  were  so  mixed  up 
with  the  original  work  that  it  became  impossible  to  complete  the 
whole  within  the  specified  time  (p).  In  Thorn  v.  Mayor  of  Lon- 
don (q)  a  contractor  undertook  to  execute  works  according  to  speci- 
fications prepared  by  the  engineer  of  the  corporation.  It  turned 
out  that  an  important  part  of  the  works  could  not  be  executed  in 
the  manner  therein  described,  and  after  fruitless  attempts  in  which 
the  plaintiff  incurred  much  expense,  that  part  had  to  be  executed 
in  a  different  way.  It  was  held  that  no  warranty  could  be  implied 
on  the  part  of  the  corporation  that  the  plans  were  such  as  to  make 
the  work  in  fact  reasonably  practicable,  and  that  the  plaintiff  could 

(n)  Brown  v.  Royal  Insurance  Co.  murrer,  so  that  the  agreement  was 
(1859)  1  E.  &  E.  853,  28  L.  J.  Q.  B.  admitted  as  pleaded.  Such  an  agree- 
275,  diss.  Erie  J.  who  thought  such  ment  will  not  be  implied  or  inferred 
a  reinstatement  as  was  contemplated  from  ambiguous  terms :  Dodd  v. 
by  the  contract  (not  being  an  entire  Churton  [1897]  1  Q.  B.  563,  66  L.  J. 
rebuilding)     had    become    impossible       Q.   B.  477,  C.  A. 

by  the  act  of  the  law.  (q)    (1876)  L.  R.  9  Ex.  163,  in  Ex. 

(o)  (1870)  L.  R.  6  Q.  B.  115,  124,  Ch.  10  Ex.  112,  affd.  in  H.  L.  1  App. 
40  L.  J.  Q.  B.  80.  Ca.  120,  45  L.  J.  Ex.  487. 

(p)    This  case  was  argued  on  de- 
ll See  David  r.  Ryan,  47  la.  642;  Brady  v.  Insurance  Co.,  11  Mich.  451; 
Cordes  v.  Miller,  39  Mich.  581;  Fire  Assoc,  v.  Rosenthal,  108  Pa.  474. 

34 


530  IMPOSSIBLE   AGREEMENTS. 

not  recover  as  on  such  a  warranty  the  value  of  the  work  that  had 
been  thrown  away.12  The  judgments  in  the  House  of  Lords  leave 
410]  it  an  open  ^question  whether,  assuming  the  extra  work  thus 
caused  not  to  have  been  extra  work  of  the  kind  contemplated  by  the 
contract  itself  and  to  be  paid  for  under  it,  the  plaintiff  might  not 
have  recovered  for  it  as  on  a  quantum  meruit.  In  short,  it  is  ad- 
mitted law  that  generally  where  there  is  a  positive  contract  to  do  a 
thing  not  in  itself  unlawful,  the  contractor  must  perform  it,  or 
pay  damages  for  not  doing  it,  although  in  consequence  of  unfore- 
seen accidents  the  performance  of  his  contract  has  become  unex- 
pectedly burdensome  or  even  impossible  (r). 

Prohibition  by  foreign  law  is  impossibility  in  fact.  Where  the  perform- 
ance of  a  contract  becomes  impracticable  by  reason  of  its  being 
forbidden  by  a  foreign  law,  it  is  deemed  to  have  become  impossible 
not  in  law  but  in  fact.13  In  Barker  v.  Hodgson  (s)  intercourse 
with  the  port  to  which  a  ship  was  chartered  was  prohibited  on  ac- 
count of  an  epidemic  prevailing  there,  so  that  the  freighter  was  pre- 
vented from  furnishing  a  cargo;  but  it  was  held  that  this  did  not 
dissolve  his  obligation.  So  if  the  goods  are  confiscated  at  a  foreign 
port  that  is  no  answer  to  an  action  against  the  shipowner  for  not 
delivering  them  (t).  But  where  the  effect  of  a  foreign  law  is  to 
prevent  both  parties  from  performing  their  respective  parts  of  the 
contract,  both  are  excused  (u). 

Obligation  of  tenant  to  pay  rent  though  demised  premises  accidentally  de- 
stroyed. Certain  cases,  of  which  Paradine  v.  Jane  (x)  is  the  leading 
411]  one,  are  often  referred  to  upon  this  head.    The  *effect  of  them  is 

(r)    Taylor  v.   Caldwell    (1863)    3  [1803]   A.  C.  22,  62  L.  J.  Q.  B.  98. 

B.  &  S.  826,  833,  32  L.  J.  Q.  B.   104,  [Hand  r,  Baynes.  4  Whart.  204,  213.] 
166.     This  rule  does  not  extend,  how-  (s)   (1814)  3  M.  ■&  S.  267,  15  E.  R. 

ever,    beyond   express   contracts.      An  485,    cp.    Jacobs    v.    Credit    Lyonnais 

undertaking  to  be  answerable  for  de-  (1884)    12  Q.  B.  Div.  589,  53  L.  J. 

lay    caused   by   vis    maior,    or    other  Q.   B.   156,  where  the  exportation  of 

causes   beyond   the   contractor's    con-  the  cargo  contracted  for  was  forbid- 

trol  and  apart  from  any  default  on  den  by  local  law. 
his  part,  cannot  be  made  part  of  an  (t)   Spence  v.  Chodirick   (1847)    10 

implied  contract:  Ford  v.  Cotesirorth  Q.  B.  517,  16  L.  J.  Q.  B.  313. 
(1870)    (Ex.  Ch.)   L.  R.  5  Q.  B.  544,  («)    Cunningham  v.  Dunn    (1878) 

30  L.  J.  Q.  B.  188  ;  Hick  v.  Raymond  3   C.  P.  Div.  443. 

(x)    (164S)   Aleyn  26. 

12  Cp.  Schliess  v.  Grand  Rapids,  131  Mich.  52;  McKnight  Flintic  Stone  Co. 
r.  Mayor,  160  N.  Y.  72;  Dwyer  r.  Mayor,  77  N.  Y.  App.  Div.  224;  Filbert  v. 
Philadelphia,  181  Pa.  530;  Harlow  p.  Homestead,  194  Pa.  57;  Bentley  r.  State, 
73  Wis.  416. 

i3Ashmore  v..  Cox,  [1899]  1  Q.  B.  436;  Tweedie  Trading  Co.  p.  James  P. 
Macdonald  Co.,  114  Fed.  Rep.  985;  Beebe  v.  Johnson,  19  Wend.  500. 


SUPERVENING   ACCIDENT.  531 

that  the  accidental  destruction  of  a  leasehold  building,  or  the  tenant's 
occupation  being  otherwise  interrupted  by  inevitable  accident,  does 
not  determine  or  suspend  the  obligation  to  pay  rent  (y).1*  In  these 
cases,  however,  the  performance  of  the  contract  does  not  really  be- 
come impossible.  There  is  obviously  nothing  impossible  in  the  re- 
lation of  landlord  and  tenant  continuing  with  its  regular  incidents. 
We  must  be  careful  not  to  lose  sight  of  the  two  distinct  characters 
of  a  lease  as  a  contract  (or  assemblage  of  contracts)  and  as  a  con- 
veyance. There  is  a  common  misfortune  depriving  both  parties  to 
some  extent  of  the  benefit  of  their  respective  interests  in  the  property ; 
not  of  the  benefit  of  the  contract,  for  so  far  as  it  is  a  matter  of  con- 
tract, neither  party  is  in  a  legal  sense  disabled  from  performing  any 
material  part  of  it.  The  expense  of  getting  housed  elsewhere,  or 
the  loss  of  profits  from  a  business  carried  on  upon  the  premises, 
may  render  it  difficult  or  even  impracticable  for  the  tenant  to  go  on 
paying  rent.     But  it  does  not  render  the  payment  of  his  rent  im- 

(y)  Leeds  v.  Cheetham  (1827)  1  nis  (1859)  1  E.  &  E.  474,  28  L.  J. 
Sim.  146,  27  R.  R.  181;  Lofft  v.  Den-       Q.  B.  168. 

w  Osborn  v.  Nicholson,  13  Wall.  654,  660 ;  Viterbo  v.  Friedlander,  120  U.  S. 
707;  Warren  v.  Wagner,  75  Ala.  188;  Cook  v.  Anderson,  85  Ala.  9§;  Cowell 
v.  Lumley,  39  Cal.  151;  Robinson  v.  L'Engle,  13  Fla.  482;  Coy  v.  Downie,  14 
Fla.  544;  White  v.  Molyneux,  2  Ga.  124;  Leonard  v.  Boynton,  11  Ga.  109; 
Pope  v.  Garrard,  39  Ga.  471;  Fleming  v.  King,  100  Ga.  449;  Peck  v.  Ledwidge, 
25  111.  109;  Stubbings  v.  Evanston,  136  111.  37;  Smith  v.  McLean,  22  111.  App. 
451,  454;  Womack  v.  McQuarry,  28  Ind.  103;  Skillen  v.  Waterworks  Co.,  49 
Ind.  193,  198;  Harris  v.  Heackman,  62  la.  411;  Redding  v.  Hall,  1  Bibb,  536; 
Helburn  v.  Mofford,  7  Bush,  169 ;  Lamott  v.  Sterett,  1  Harr.  &  J.  42 ;  Fowler  v. 
Bott,  6  Mass.  63;  Kramer  v.  Cook,  7  Gray,  550,  553;  Lanpher  v.  Glenn,  37 
Minn.  4;  Gibson  v.  Perry,  29  Mo.  245;  Hallett  r.  Wylie,  3  Johns.  44;  Gates 
v.  Green,  4  Paige  Ch.  355;  Patterson  v.  Ackerson,  1  Edw.  Ch.  96;  Howard  v. 
Doolittle,  3  Duer,  464;  Graves  v.  Berdan,  26  N.  Y.  498,  500;  Hilliard  v.  New 
York,  &c.  Co.,  41  Ohio  St.  662;  Feiix  v.  Griffiths,  56  Ohio  St.  39;  Harrington 
v.  Watson,  11  Oreg.  143;  French  v.  Richards,  6  Phila.  547;  Diamond  v.  Harris, 
33  Tex.  634;  Arbenz  v.  Exley,  52  W.  Va.  476;  Cross  o.  Button,  4  Wis.  468. 
But  otherwise  in  Nebraska  and  South  Carolina.  Wattles  V.  South  Omaha  Co., 
50  Neb.  251;  Ripley  v.  Wightman,  4  McC.  447;  Coogan  v.  Parker,  2  S.  C.  255. 
And  perhaps  in  Kansas.  Whitaker  v.  Hawley,  25  Kan.  674.  Also  in  New  York 
and  Kentucky  by  statute.  N.  Y.  Laws  of  1860,  chap.  345;  Ky.  Stats.,  §  2297. 
See  Suydam  v.  Jackson,  54  N.  Y.  450;  Butler  v.  Kidder,  87  N.  Y.  98;  Edwards 
v.  McLean,  122  N.  Y.  302;  Craig  v.  Butler,  83  Hun,  286,  156  N.  Y.  672;  Wer- 
ner v.  Padula,  49  N.  Y.  App.  Div.  135,  167  N.  Y.  611;  Sun  Ins.  Office  v. 
Varble,  103  Ky.  758. 

A  lessee  who,  during  the  late  Civil  War,  was  dispossessed  by  the  military 
authorities  and  deprived  of  the  use  and  control  of  the  demised  premises,  his 
lessor  having  gone  within  the  lines  of  the  enemy,  was  held  to  be  discharged 
from  liability  to  the  lessor  for  the  rent  accruing  during  the  period  of  such  dis- 
possession. Gates  v.  Goodloe,  101  U.  S.  612.  And  see  Harrison  v.  Myer,  92 
U.  S.  Ill;  Coogan  v.  Parker,  2  S.  C.  255. 

It  is  held  in  this  country  that  the  lessee  of  apartments  in  a  building,  his 
lease  giving  him  no  interest  in  the  soil  uppn  which  the  building  stands,  is  re- 
leased from  his  covenant  to  pay  rent  by  the  accidental  destruction  of  the 


532  IMPOSSIBLE    AGREEMENTS. 

possible  in  any  other  sense  than  it  renders  the  payment  of  any  other 
debt  to  any  other  creditor  impossible  (z).  It  is  a  personal  and  rela- 
tive ''  causa  difficultatis ;''  which,  as  we  have  seen,  is  irrevelant  in  a 
legal  point  of  view.  The  lessee's  special  covenants,  if  such  there 
be,  to  paint  the  walls  at  stated  times  or  the  like,  do  become  impossible 
of  performance  by  the  destruction  of  their  subject-matter,  and  to 
that  extent,  no  doubt,  are  discharged  or  suspended  as  being  within 
the  rule  in  Taylor  v.  Caldwell,  which  we  shall  immediately  consider. 
Only  to  this  limited  extent  is  there  any  precise  resemblance  to  the 
wider  class  of  cases  where  the  performance  of  a  contract  becomes  in 
fact  impossible 

A   similar   question,   viz.,    whether    the    contract   is   really   unconditional. 

The  true  "analogy  is  in  the  nature  of  the  question  which  the  rule 
of  law  has  to  decide:  namely,  whether  the  contract  is  in  substance 
412]  and  effect  as  *well  as  in  terms  unconditional  and  without 
any  implied  exception  of  inevitable  accident.  We  shall  see  that  this 
is  always  the  real  question.  The  answer  being  here  determined  by 
Paradine  v.  Jane  (a),  it  was  held  in  the  later  cases  (b)  (about  which 
difficulties  are  sometimes  felt,  bat  it  is  submitted  without  solid 
reason)  that  it  is  not  affected  by  the  landlord  having  protected  himself 

(?)     See    per    Lord    Blackburn,    2  (6)    Leeds  v.   Cheetham    (1827)    1 

App.  Ca.  770.  Sim.  146,  27  B.  E.  181;  Loft  v.  Den- 

la)    Aleyn   26.  ms    (1859)    1  E.   &  E.   474,   28   L.   J. 

Q.  B.  168. 

edifice.  McMillan  v.  Solomon,  42  Ala.  356;  Ainsworth  v.  Eitt,  38  Cal.  89; 
Alexander  v.  Dorsey,  12  Ga.  12;  Womack  v.  McQuarrv,  28  Ind.  103;  Shaw- 
mut  Bank  v.  Boston,  118  Mass.  125,  128;  Graves  v.  Berdan,  29  Barb.  100; 
26  X.  Y.  498;  Hilliard  v.  New  York,  &c.  Co.,  41  Ohio  St.  662,  666;  Harring- 
ton <\  Watson,  11  Oreg.  143,  145;  Halm  v.  Baker  Lodge,  21  Oreg.  30,  34;  Con- 
necticut Ins.  Co.  r.  United  States,  21  Ct.  CI.  195,  201.  See  also  Waite  p. 
O'Neil,  76  Fed.  Eep.  408  (C.  C.  A.)  ;  Buerger  v.  Boyd,  25  Ark.  441;  Ainsworth 
v.  Mount  Moriah  Lodge,  172  Mass.  257;  Uhler  v,  Cowen,  199  Pa.  316  (with 
which  cp.  Foote  v.  Cincinnati,  11  Ohio,  408).  Kentucky  followed  the  English 
law  (Helburn  v.  MorTbrd,  7  Bush,  169),  until  the  rule  was  changed  by  statute. 
Ky.  Stat.,  §  2297 ;  Sun  Ins.  Office  r.  Varble,  103  Ky.  758. 

On  the  other  hand  the  lessee  is  not  entitled  to  rebuild  a  leased  room  after 
the  building  has  been  destroyed.  Hahn  v.  Baker  Lodge,  21  Oreg.  30.  See  also 
Utah  Optical  Co.  v.  Keith,  18  Utah,  464. 

The  special  rules  for  leased  apartments  are  applicable  when,  and  only 
when,  the  leased  premises  are  totally  destroyed.  Humiston  v.  Wheeler,  175 
111.  514.  See  also  Waite  v.  O'Neil,  76  Fed.  Eep.  408  (C.  C.  A.)  ;  Corrigan  v. 
City,  144  111.  537. 

In  Whitaker  r.  Hawley,  25  Kan.  674,  it  was  held  that  where,  by  a  single  in- 
strument, real  and  personal  property  were  leased  for  a  gross  rental,  the  person- 
alty being  a  substantial  part  of  the  leased  property,  upon  a  total  destruction  by 
accident,  the  lessee  was  entitled  to  an  abatement  of  the  rent  equal  to  the  pro- 
portionate rental  value  of  the  personalty.  But  see  Bussman  v.  Ganster,  72  Pa. 
285.     See  further,  9  Harv.  L.  Eev.  125-130. 


THE    CIVIL    LAW.  533 

by  an  insurance,  which  is  a  purely  collateral  contract  of  indemnity.15 
There  might  indeed  be  a  further  collateral  agreement  between  the 
kndlord  and  tenant  that  the  landlord  should  apply  the  insurance 
moneys  to  rebuilding  the  premises.  Such  an  agreement  would  be 
good  without  any  new  consideration  on  the  tenant's  part  beyond  his 
acceptance  of  the  lease,  and  probably  without  being  put  into  writ- 
ing (c).  On  the  other  hand  it  is  often  a  term  of  the  lease  that  the 
tenant  shall  keep  the  premises  insured  and  that  in  case  of  fire  the 
insurance  moneys  shall  be  applied  in  reinstatement.  There,  if  the 
landlord  has  insured  separately  without  the  knowledge  of  the  tenant, 
so  that  the  damage  is  apportioned  between  the  two  policies,  and  the 
amount  received  by  the  tenant  is  diminished,  the  tenant  is  entitled 
to  the  benefit  of  the  other  policy  also  (d). 

The  rule  of  the  civil  law  is  otherwise.  The  rule  or  presumption  might 
have  been  the  other  way,  as  it  is  by  the  civil  law,  where  it  is  an  inci- 
dent of  the  contract  to  pay  rent  that  it  is  suspended  by  inevitable 
accident  destroying  or  making  useless  the  thing  demised.  The  par- 
ticular event  on  which  Paradine  v.  Jane  was  decided,  eviction  by 
alien  enemies  (e),  is  expressly  dealt  *with  in  this  manner.    The  [41 3 

(c.)     Parol     collateral     agreements  (e)    Si    incursus   hostium   fiat,    D. 

have   been   held   good   in   Erskine   v.  19.    2.    locati    conducti,    15    §    2;    or 

Adeane    (1873)    L.  R.   8   Ch.  756,  42  even   reasonable  fear   of   it:    Si   quis 

L.    J.    Ch.    835;    Morgan    v.    Griffith  timoris      causa      emigrasset     .     .     . 

(1871)   L.  R.  6  Ex.  70,  40  L.  J.  Ex.  respondit,  si  causa  fuisset  cur  peric- 

46;  Angell  v.  Duke   (1875)   L.  R.  10  ulum     timeret,     quamvis     periculum 

Q.  B.  174,  44  L.  J.  Q.  B.  78 ;  De  Las-  vere   non   fuisset,   tamen  non   debeTe 

sailer.  Guildford  [1901]  2  K.  B.  215,  mereedem;  sed  si  eausa  timoris  iusta 

70  L.  J.  K.  B.  533,  C.  A.  non    fuisset,    nihilominus    debere,    B. 

{d)   Reynard  v.  Arnold   (1875)    L.  eod.  tit.  27,  §  1. 
R.  10  Ch.  386. 

15  Sheets  r.  Selden,  7  Wall.  416,  424;  Skillen  r.  Water  Works  Co.,  49  Ind. 
193,  198;  Carlson  v.  Presbyterian  Board,  67  Minn.  436;  Insurance  Co.  v. 
Hutchinson,  21  N.  J.  Eq.  107;  Kingsbury  v.  Westfall,  61  N.  Y.  356;  Piatt  v. 
Railroad  Co.,  108  N.  Y.  358;  Magaw  v.  Lambert,  3  Pa.  444;  Bussman  r. 
Ganster,  72  Pa.  285;  Hoy  v.  Holt,  91  Pa.  88,  90.  Cp.  Williams  i\  Lilley,  67 
Conn.  50. 

Where  the  tenant  covenants  to  keep  the  building  in  repair,  and  at  the  end  of 
the  term  to  deliver  it  up  in  as  good  condition  as  when  he  received  it,  though 
the  landlord  protects  himself  by  an  insurance,  if  the  building  is  destroyed  by 
fire,  the  tenant,  having  rebuilt  in  performance  of  his  covenant,  has  no  claim 
upon  the  insurance  money.  Ely  v.  Ely,  80  111.  532.  But  the  tenant  having  re- 
paired, the  insurance  company  can  recover  from  the  landlord  the  insurance 
which  it  has  paid.  Darrell  v.  Tibbitts,  5  Q.  B.  D.  560;  West  of  England  Ins. 
Co.  r.  Isaacs,  [1896]  2  Q.  B.  377;  [1897]  1  Q.  B.  226. 

In  Whitaker  v.  Hawley,  25  Kan.  674,  it  was  held  that  a  stipulation  in  the 
lease  that  the  lessee  should  insure  for  the  benefit  of  the  lessor  "  limits  and 
qualifies  the  promise  to  pay  rent,  and  that  as  the  former  becomes  operative  the 
latter  ceases  to  have  force." 

As  to  the  right  to  insurance  when  property  is  destroyed  pending  a  contract 
of  sale.    Ames,  Cas.  Eq.  Jur.  234,  n.;  15  Harv.  L.  Rev.  160. 


534  IMPOSSIBLE   AGREEMENTS. 

law  of  Scotland  follows  the  civil  law  (/),18  and  the  Irish  Landlord 
and  Tenant  Act  of  1860  gives  the  tenant  the  option  of  surrendering 
on  a  dwelling-house  "  or  other  building  constituting  the  substantial 
matter  of  the  demise "  being  by  fire  or  other  inevitable  accident 
destroyed  or  made  incapable  of  beneficial  occupation  (g).  Either 
way  the  rule  is  subject  to  any  special  agreement  of  the  parties;  the 
only  question  of  principle  is  which,  in  the  absence  of  such  agree- 
ment, is  the  better  distribution  of  the  hardship  that  must  to  some 
extent  fall  upon  both.  It  is  hard  for  a  tenant,  according  to  the 
English  rule,  to  pay  an  occupation  rent  for  a  burnt  out  plot  of 
ground.  It  is  hard  for  a  landlord,  according  to  the  Eoman  and 
Scottish  rule,  to  lose  the  rent  as  well  as  (it  may  be)  a  material  part 
of  the  value  of  the  reversion.  Either  party  may  be  insured ;  but  that, 
as  we  have  said,  is  not  of  itself  relevant  as  between  them. 

Exceptions  in  certain  cases  of  susbequent  impossibility.  So  far  the  gen- 
eral rule.  The  nature  of  the  exceptions  is  thus  set  forth  by  the  judg- 
ment of  the  court  in  Baily  v.  De  Crespigny : — 

"  There  can  be  no  doubt  that  a  man  may  by  an  absolute  contract  bind 
himself  to  perform  things  which  subsequently  become  impossible  or  to  pay 
damages  for  the  non-performance,  and  this  construction  is  to  be  put  upon  an 
unqualified  undertaking,  where  the  event  which  causes  the  impossibility  was 
or  might  have  been  anticipated  and  guarded  against  in  the  contract,  or  where 
the  impossibility  arises  from  the  act  or  default  of  the  promisor. 

"  But  where  the  event  is  of  such  a  character  that  it  cannot  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  the  contracting  parties  when  the 
contract  was  made,  they  will  not  be  held  bound  by  general  words  which,  though 
large  enough  to  include,  were  not  used  with  reference  to  the  possibility  of  the 
particular  contingency  which  afterwards  happens.  It  is  on  this  principle  that 
the  act  of  God  is  in  some  eases  said  to  excuse  the  breach  of  a  contract.  This 
is  in  fact  an  inaccurate  expression,  because,  where  it  is  an  answer  to  a  com- 
414]  plaint  of  an  alleged  breach  *of  contract  that  the  thing  done  or  left  undone 
was  so  by  the  act  of  God,  what  is  meant  is  that  it  was  not  within  the  con- 
tract"  (h). 

Events  not  within  the  contemplation  of  the  contract.  This  (as  well  as 
the  following  context,  which  is  too  long  to  quote)  well  shows  the 
modern  tendency  to  reduce  all  the  rules  on  this  subject  to  rules  of 
construction.17     By  the  modern  understanding   of  the  law  we  are 

if)    Per   Lord   Campbell,   Loft   v.  (</)  23  &  24  Vict.  c.  154,  s.  40. 

Dennis    (1859)    note    (6)    last   page;  (h)    (1869]  L.  R.  4  Q.  B.  at  p.  185. 

Bell,  Principles,  §  1208. 

16  See  Viterbo  v.  Friedlander,  120  U.  S.  707;  Gates  v.  Green,  4  Paige,  355; 
C'oogan  v.  Parker,  2  S.  C.  255. 

it  "  The  relief  afforded  to  the  party  in  the  eases  referred  to  is  not  based 
upon  exceptions  to  the  general  rule,  but  upon  the  construction  of  the  contract." 
Dexter  v.  Norton,  47  N.  Y.  62,  64. 

"  The  result  must  be  deemed  an  unexpressed  condition  of  their  agreement.'' 
People  v.  Insurance  Co.,  91  N.  Y.  174,  179.     See  also  Moore  t\  Sun  Printing 


ACT    OF   GOD.  535 

not  bound  to  seek  for  a  general  definition  of  "  the  act  of  God  "  or 
■vis  maior  (i),  but  only  to  ascertain  what  kind  of  events  were  within 
the  contemplation  of  the  parties,  including  in  the  term  "  event "  an 
existing  but  unascertained  state  of  facts.  This  is  yet  more  apparent 
if  one  attempts  to  frame  any  definition  of  the  term  "  act  of  God." 
It  is  said  to  be  generally  confined  to  events  which  cannot  be  foreseen, 
or  which  if  they  can  be  foreseen  cannot  be  guarded  against  (fc).  It 
does  not  include  every  inevitable  accident;  contrary  winds,  for  ex- 
ample, are  not  within  the  meaning  of  the  term  in  a  charter-party. 
Nor  is  the  reason  far  to  seek;  the  risk  of  contrary  winds,  though 
inevitable,  is  one  of  the  ordinary  risks  which  the  parties  must  be 
understood  to  have  before  them  and  to  take  upon  them  in  making 
such  a  contract :  therefore  it  is  said  that  the  event  must  be  not 
merely  accidental,  but  overwhelming  (I).  But  on  the  other  hand 
the  term  is  not  confined  to  unusual  events :  death,  for  example,  is 
an  "  act  of  God  "  as  regards  contracts  of  personal  service,  because 
in  the  particular  case  it  is  not  calculable.  Yet  the  fact  that  this  very 
event  is  not  only  certain  to  happen,  but  on  a  sufficiently  large 
average  is  calculable,  and  therefore  in  one  sense  can  be  guarded 
against,  is  the  foundation  of  the  whole  system  of  life  ^annuities  [41 5 
and  life  insurance  (m).  Again,  death  is  inevitable  sooner  or  later, 
but  may  be  largely  prevented  as  to  particular  causes  and  occasions. 
The  effects  of  tempest  or  of  earthquake  may  be  really  inevitable  by 
any  precaution  whatever.  But  fire  is  not  inevitable  in  that  sense. 
Precautions  may  be  taken  both  against  its  breaking  out  and  for  extin- 
guishing it  when  it  does  break  out.  We  cannot  arrive,  then,  at  any 
more  distinct  conception  than  this:  An  event  which,  as  between  the 
parties  and  for  the  purpose  of  the  matter  in  hand,  cannot  be  definitely 
foreseen  or  controlled.  In  other  words,  we  are  thrown  back  upon  the 
nature  and  construction  of  the  particular  contract  (n).18 

We  may  now  proceed  to  the  specific  classes  of  exceptional  cases. 

(i)  Both  these  terms  are  classical:  ers  of  Sewers  for  Essex  (1885)   14  Q. 

"Vis  maior,  quam  Graeci    Beno  ptau  B.  D.  561,  574. 

appellant."     Gaius  in  D.  19.  2.  locati  (I)  Per  Martin  B.  Oakley  v.  Ports- 

25  §  6.     Vis  maior  is  sometimes  the  mouth    &    Ri/de    Steam    Packet    Co. 

only  appropriate  term,  as  where  the  (1856)   11  Ex.  618.  22  L.  J.  Ex.  99. 
idea  is  applied  to  acts  of  a  human  (to)  As  the   medieval  adage  puts 

sovereign   power,   see   Mittelholner   V.  it,    "Nihil    morte    certius,    nihil    in- 

Fullarton  (1844)  6  Q.  B.  989,  1018.  certius  hora  mortis." 

{k)    Cave  J.  in  R.  v.  Commission-  (»)    As  to  what  is  such   an   "act 

Assoc,  101  Fed.  Rep.  591,  593;  Lorillard  v.  Clyde,  142  N.  Y.  456,  462;  Dolan 
r.  Rodgers,  149  N.  Y.  489;  Buffalo,  &c.  Co.  v.  Bellevue,  &c.  Co.,  165  N.  Y.  247; 
Lovering  v.  Buck  Mountain  Co.,  54  Pa.  291;  1  Columbia  L.  Bev.  529. 
18  See  Friend  r.  Woods,  6  Gratt.  189,  195. 


536  IMPOSSIBLE    AGREEMENTS. 

u.    Where  the  performance  depends  on  the  existence  of  a  specific  thing. 

Where  the  performance  of  the  contract  depends  on  the  existence 
of  a  specific  thing.  The  law  was  settled  on  this  head  by  Taylor  v. 
OaMivell  (o),  where  the  defendants  agreed  to  let  the  plaintiffs  have 
the  use  (o)  of  the  Surrey  Gardens  and  Music-hall  on  certain  days 
for  the  purpose  of  giving  entertainments.  Before  the  first  of  those 
days  the  music-hall  was  destroyed  by  fire  so  that  the  entertainments 
could  not  be  given,  and  without  the  fault  of  either  party.  The  Court 
held  that  the  defendants  were  excused,  and  laid  down  the  following 
principle :  "  Where  from  the  nature  of  the  contract  it  appears  that 
the  parties  must  from  the  beginning  have  known  that  it  could  not 
be  fulfilled  unless,  when  the  time  for  the  fulfillment  of  the  contract 
arrived,  some  particular  specified  thing  continued  to  exist,  so  that 
416]  when  entering  into  the  contract  they  must  *have  contemplated 
such  continued  existence  as  the  foundation  of  what  was  to  be  done; 
there  in  the  absence  of  any  express  or  implied  (p)  warranty  that 
the  thing  shall  exist,  the  contract  is  not  to  be  considered  a  positive 
contract,  but  subject  to  the  implied  condition  that  the  parties  shall 
be  excused  in  case,  before  breach,  performance  becomes  impossible 
from  the  perishing  of  the  thing  without  default  of  the  contractor."  19 
And  the  following  authorities  and  analogies  were  relied  upon : — 

The  civil  law,  which  implies  such  an  exception  in  all  cases  of 
obligation  de  certo  corpore  (q). 

of  God  "  as  will  make  an  exception  tween  the  parties :  the  whole  scope  of 

to  a   duty   imposed  not   specially  by  the  passage  being  that  it  is  not  to  be 

contract  but  bv  the  general  law,  see  implied  by  law. 

.Xichols    v.    ilarsland    (1876)     2    Ex.  (q)    D.  45.   1.  de  v.  o.  23,  33.     Cp. 

Div.   1,  46  L.  J.  Ex.   174;   Nugent  v.  also   D.   46.    3.   de   solut.    107.     Ver- 

Smith   (1876)    1  C.  P.  Div.  423,  444.  borum   obligatio   aut   naturaliter   re- 

45  L.  J.  C.  P.  697 ;  Commissioners  of  solvitur     aut    civiliter :     naturaliter, 

Hewers  v.   Reg.    (1886)    11   App.   Ca.  veluti     solutione,     aut     cum    res     in 

449.  stipulationem     deducta     sine     culpa 

(o)    (1863)   3  B.  &  S.  826,  32  L.  J.  promissoris    in    rebus    humanis    esse 

Q.   B.    164.     There  were   words  sufti-  desiit.     Pothier,  Obi.   §   149,  io.  Part 

cient  for   an  actual   demise,   but  the  3,    ch.    6,    §    649,    sqq.,    and    Contrat 

Court  held  that  the  manifest  general  de    Vente,    §    308,   sqq.   translated  in 

intention  prevailed  over  them.  Blackburn   on   Sale,    173    (249    in   2d 

(p)  That  is,  understood  in  fact  be-  ed.  by  Graham). 

19  See  The  Tornado,  108  TJ.  S.  342;  Arthur  v.  Blackman,  63  Fed.  Rep.  536; 
Fresno  Milling  Co.  v.  Fresno  C.  &  I.  Co.,  126  Cal.  64;  School  District  r. 
Dauchy,  25  Conn.  530;  Walker  v.  Tucker,  70  111.  527;  Price  v.  Pepper,  13 
Bush,  42;  Pinkham  r.  Libbey,  93  Me.  575;  Wells  v.  Calnan,  107  Mass.  514; 
Thomas  r.  Knowles,  128  Mass.  22;  Gilbert,  &c.  Co.  i:  Butler,  146  Mass.  82; 
Goldman  r.  Rosenberg,  116  N.  Y.  78;  Stewart  v.  Stone,  127  N.  Y.  500;  Young 
v.  Leary,  135  N.  Y.  569;  Dolan  v.  Rodgers,  149  N.  Y.  489;  Lovering  v.  Coal  Co., 
54  Pa.  291 ;  Huguenin  v.  Courtenay,  21  S.  C.  403 ;  McMillan  v.  Fox,  90  Wis.  173. 
Cp.  Board  of  Education  v.  Townsend,  63  Ohio  St.  514. 


DESTRUCTION    OF    SUBJECT-MATTER.  537 

The  cases  of  rights  or  duties  created  by  a  contract  of  a  strictly 
personal  nature  which,  though  the  contract  is  not  expressly  qualified, 
are  by  English  law  not  transmissible  to  executors. 

The  admitted  rule  of  English  law  that  where  the  property  in 
specific  chattels  to  be  delivered  at  a  future  day  has  passed  by  bargain 
and  sale,  and  the  chattels  perish  meanwhile  without  the  vendor's 
default,  he  is  excused  from  performing  his  contract  to  deliver;  and 
the  similar  rule  as  to  loans  of  chattels  and  bailments.  In  all  these 
eases,  though  the  promise  is  in  words  positive,  the  exception  is 
allowed  "because  from  the  nature  of  the  contract  it  is  apparent 
that  the  parties  contracted  on  the  basis  of  the  continued  existence  of 
the  particular  person  or  chattel."' 

Appleby  v.  Myers.  The  same  principle  was  followed  in  Appleby 
v.  Myers  (r).  There  the  plaintiffs  agreed  with  the  defendant  to  erect 
an  *engine  and  other  machinery  on  his  premises,  at  certain  [417 
prices  for  the  separate  parts  of  the  work,  no  time  being  fixed  cor 
payment.  While  the  works  were  proceeding,  and  before  any  part 
was  complete,  the  premises,  together  with  the  uncompleted  works  and 
materials  upon  them,  were  accidentally  destroyed  by  fire.  In  the 
Common  Pleas  it  was  held  that  the  plaintiffs  might  recover  the 
value  of  the  work  already  done  as  on  a  term  to  that  effect  to  be  im- 
plied in  the  nature  of  the  contract.  In  the  Exchequer  Chamber  the 
judgment  of  the  Common  Pleas  was  reversed.  It  was  admitted  that 
the  work  under  the  contract  could  not  be  done  unless  the  defendant's 
premises  continued  in  a  fit  state  to  receive  it.  It  was  also  admitted 
that  if  the  defendant  had  by  his  own  default  rendered  the  premises 
unfit  to  receive  the  work,  the  plaintiffs  might  have  recovered  the 
valve  of  the  work  already  done.20  But  it  was  held  that  the  Court 
below  were  wrong  in  thinking  that  there  was  an  absolute  promise 
or  warranty  by  the  defendant  that  the  premises  should  at  all  events 
continue  so  fit.  "  Where,  as  in  the  present  case,  the  premises  are 
,  destroyed  without  fault  on  either  side,  it  .is  a  misfortune  equally 
affecting  both  parties,  excusing  both  from  further  performance  of 
the  contract,  but  giving  a  cause  of  action  to  neither." 21     Another 

(r)     (1867)    L.  R.  2   C.  P.   651,  in  earned  nothing  when  the  vessel  was 

Ex.   Ch.  revg.   s.   c.    1    C.   P.   615,   36  accidentally  stranded  before  the  end 

L.  J.  C.  P.  331,  applied  in  a  towage  of  the  journey:    The   Madras    [1898] 

case  where  it  was  held  that  the  tug  P.  90. 

20  See  Gilbert  Mfg.  Co.  v.  Butler,  146  Mass.  82 ;  Sennott  i;  Mallin,  82  Pa.  333. 

21  In  this  country  recovery  for  the  work  done  is  generally  allowed.  Schwartz 
v.  Saunders,  46  111.  18;  Rawson  v.  Clark,  70  111.  656;  Clark  r.  Busse,  82  111. 
515;  Lord  v.  Wheeler,  1  Gray,  282;  Cleary  c.  Sohier,  120  Mass.  210;  Butter- 


538  IMPOSSIBLE   AGREEMENTS. 

argument  for  the  plaintiffs  was  that  the  property  in  the  work  done 
had  passed  to  the  defendant  and  was  therefore  at  his  risk  (s).  To 
this  the  Court  answered  that  it  was  at  least  doubtful  whether  it 
had;  and  even  if  it  had,  the  contract  was  still  that  nothing  should 
be  payable  unless  and  until  the  whole  work  was  completed. 

Contract  for  shipment  in  named  ship.  Similarly,  a  contract  for  the  de- 
418]  livery  of  cargo  to  be  ^shipped  at  Alexandria  in  a  named  ship 
during  a  certain  month  was  held  to  be  discharged  by  an  accident 
to  the  ship  which  stranded  her  in  the  Baltic  before  the  time  for 
performance;  in  other  words  the  contract  was  conditional  on  that 
ship  continuing  to  exist  as  a  cargo-carrying  ship  available  for  the 
performance  of  the  contract  (t). 

Saving  as  to  instalments  of  payment  already  earned.  Where  there  is  an 
entire  contract  for  doing  work  upon  specific  property,  as  fitting  a 
steamship  with  new  machinery,  for  a  certain  price,  but  the  price 
is  payable  by  instalments,  and  the  ship  is  lost  before  the  machinery 
has  been  delivered,  but  after  one  or  more  of  the  instalments  has  been 
paid,  the  further  performance  of  the  contract  is  excused,  but  the 
money  already  paid,  though  on  account  not  of  a  part,  but  of  the 
entire  contract,  cannot  be  recovered  back  («). 

(s)    In  the  case  cited  in  argument  (*)    Nickoll  &   Knight  v.   Ashton, 

from  Dalloz,   Jurisp.    Gen.    1861,   pt.  Edridge  &   Co.    [1901]   2   K.   B.   126, 

1.  105,  Ckemin  de  fer  du  Dauphine  v.  70  L.  J.  K.  B.  600,  C.  A. 
Viet    (1861)    where  railway  works  in  (u)      Anglo-Egyptian      Navigation 

course     of     construction     had     been  Co.  v.  Rennie    (1875)    L.  R.   10  C.  P. 

spoilt  by  floods,  the  Court  of  Cassa-  271,   44  L.   J.   C.  P.   130.     It  would 

tion    relied   on   the   distinction    that  seem  the  same  on  principle  where  the 

they   were   not   such   as   remained   in  whole  price  is  paid  in  advance.     See 

the   contractor's   disposition   till    the  Vangerow,  Farnl.  3.  234  sqq. ;  and  the 

whole  was  finished,  but  "  de  construe-  cases   on  contracts,   personal   service, 

tions  dont  les  materiaux  et  la  main  and  apprenticeship  cited  farther  on. 

d'reuvre   etaient   fournis   par   1'entre-  The  destruction  of  a  place  of  business 

preneur  et  qui  s'incorporaient  au  sol  does  not  discharge  a  continuing  con- 

du  proprietaire."  as  excluding  the  ap-  tract  to  carry  on  the  business  if  it  is 

plication  of  articles  1788-1790  of  the  capable   of  being  resumed   elsewhere: 

Code    Civil,    which    lay    down    a    rule  Turner  v.   Goldsmith   [1891]    1   Q.   B. 

similar  to  ihat  of  the  principal  case.  544,  60  L.  J.  Q.  B.  247,  C.  A. 

field  v.  Byron,  153  Mass.  517;  Angus  r.  Scully.  176  Mass.  357;  Haynes  r. 
Second  Baptist  Church,  88  Mo.  285  (cp.  Fairbanks  r.  Richardson  Drug  Co.,  42 
Mo.  App.  262;  Pike  Electric  Co.  r.  Richardson  Drug  Co..  42  Mo.  App.  262)  ; 
Niblo  v.  Binsse,  1  Keyes,  476:  Whclan  v.  Ansonia  Clock  Co.,  97  N.  Y.  293; 
Dolan  v.  Rodgers,  149  N.  Y.  489,  494;  Hayes  v.  Gross,  9  N.  Y.  App.  Div.  12; 
affd.,  without  opinion,  162  N.  Y.  610;  Hollis  r.  Chapman,  36  Tex.  1;  Weis  v. 
Devlin,  67  Tex.  507 ;  Clark  v.  Franklin,  7  Leigh,  1.  See  also  Bentley  v.  State, 
73  Wis.  416   (cp.  Vogt  r.  Hecker,  118  Wis.  306). 

But  see  contra,  Brumby  v.  Smith,  3  Ala.  123;  Clark  r.  Collier,  100  Cal.  256; 
Siegel  ?>.  Eaton  &  Prince  Co.,  165  111.  550;  Huyett  Mfg.  Co.  v.  Chicago  Edison 
Co.,  167  Til.  233;  Fairbanks  r.  Richardson  Drug  Co.,  42  Mo.  App.  262;  Pike 
Electric  Co.  v.  Richardson  Drug  Co.,  42  Mo.  App.  272;  Murphy  v.  Forget,  Rep. 
Jud.  Quebec,  19  C.  S.  135. 


NON-EXISTENCE    OE    SUBJECT-MATTER.  539 

Contract  for  future  specific  product.  The  same  doctrine  has  been  ap- 
plied where  the  subject-matter  of  the  contract  is  a  future  specific 
product  or  some  part  of  it.  In  March  A.  agreed  to  sell  and  B.  to 
purchase  200  tons  of  potatoes  grown  on  certain  land  belonging  to  A. 
In  August  the  crop  failed  by  the  potato  blight,  and  A.  was  unable 
to  deliver  more  than  80  tons :  the  Court  held  that  he  was  excused  as 
to  the  rest.  "  The  contract  was  for  200  tons  of  a  particular  crop 
in  particular  fields  "...  "  not  200  tons  of  potatoes  simply,  but 
200  tons  off  particular  land "  .  .  .  "  and  therefore  there  was 
an  implied  term  in  the  contract  that  each  party  should  be  free  if 
the  crop  perished  "  (x)  P 

Abolition  of  slave  status.  The  same  principle  is  involved  in  the  de- 
cision of  the  *Supreme  Court  of  the  United  States  that  a  war-  [41 9 
ranty  of  title  and  quiet  enjoyment  given  on  the  sale  of  a  slave  be- 
fore the  war  was  discharged  by  the  Thirteenth  Amendment  to  the 
Constitution  (y). 

Impossibility  at  date  of  contract  from  state  of  things  not  contemplated 
by  parties.  These  are  all  cases  of  the  performance  becoming  impos- 
sible by  events  which  happen  after  the  contract  is  made.  But  some- 
times the  same  kind  of  impossibility  results  from  the  present  existence 
of  a  state  of  things  not  contemplated  by  the  parties,  and  the  perform- 
ance is  excused  to  the  same  extent  and  for  the  same  reasons  as  if 
that  state  of  things  had  supervened.  Where  this  impossibility  con- 
sists in  the  absolute  non-existence  of  the  specific  property  or  interest 
in  property  which  is  the  subject-matter  of  the  agreement,  it  is  evi- 
dent that  the  agreement  would  not  have  been  made  unless  the  parties 
had  contemplated  the  subject-matter  as  existing.  Otherwise  it  would 
be  reduced  to  a  case  of  absolute  impossibility;  for  when  a  thing  is 
once  known  to  be  in  the  events  which  have  happened  impossible, 

(x)    Howell    v.    Goupland     (1876)  (y)  Osborn  V.  Nicholson  (1871)   13 

L.  E.  9  Q.  B.  462,  466,  46  L.  J.  Q.  B.       Wallace,  654. 
147,  affd.  in  C.  A.  1  Q.  B.  Div.  258, 
see  per  Cleasby  B.  at  p.  263. 

22  To  the  same  effect  are :  Browne  v.  United  States,  30  Ct.  CI.  124 ;  Ontario 
Fruit  Assoc,  v.  Cutting  Packing  Co.,  134  Cal.  21;  Losecco  t'.  Gregory,  108  La. 
648.  See  also  Bice  v.  Weber,  48  111.  App.  573.  But  where  the  crop  is  not 
required  by  the  contract  to  be  grown  on  particular  land,  the  contractor  is  not 
excused.  Anderson  v.  May,  50  Minn.  280;  Newell  r.  New  Holstein  Canning  Co., 
119  Wis.  635.  in  Summers  v.  Hibbard,  153  111.  102,  the  defendant  was  held  not 
excused  from  liability  on  a  contract  to  sell  goods  manufactured  at  a  particular 
mill  by  the  fact  that  machinery  in  the  mill  broke  down,  making  performance 
impossible.  But  where  the  mill  itself  was  destroyed  the  contractor  was  held 
excused.  Stewart  r.  Stone,  127  N.  Y.  500.  Cp.  Jones  v.  United  States,  96 
U.  S.  24;  Booth  v.  Spuyten  Duyvil  Co.,  60  N.  Y.  487.     Also  supra,  p.  528,  n.  10. 


540  IMPOSSIBLE    AGREEMENTS. 

it  is  the  same  as  if  it  had  been  in  its  own  nature  impossible.  Here, 
then,  the  agreement  of  the  parties  is  induced  by  a  mistaken  assump- 
tion on  which  they  both  proceed,  as  in  the  analogous  cases  noticed 
above  under  the  head  of  impossibility  in  law.  Here,  as  there,  it  is 
a  question  whether  impossibility  or  mistake,  or  both,  shall  be  as- 
signed as  the  ground  on  which  the  agreement  is  void.  And  here 
likewise,  according  to  our  authorities,  mistake  seems  to  be  the  ground 
assigned  by  preference.  It  is  not  so  much  the  impossibility  of  per- 
formance that  is  regarded  as  the  original  non-existence  of  the  state 
of  things  assumed  by  the  contracting  parties  is  the  basis  of  their 
contract.  The  main  thing  is  to  ascertain,  not  whether  the  agreement 
can  be  performed,  but  what  was  in  the  true  intention  and  contempla- 
tion of  the  parties  (.?).  If  it  appears  that  they  conceived  and 
420]  dealt  *with  something  non-existent  as  existing,  the  agreement 
breaks  down  for  want  of  any  real  contents.  Hence  these  cases  are 
treated  for  the  most  part  as  belonging  to  the  head  of  Mistake. 

It  may  be  that  the  peculiar  historical  conditions  of  English  law 
count  for  something  in  this.  Accident,  Fraud,  and  Mistake  were 
the  accustomed  descriptions  of  heads  of  equity  under  which  the  Court 
of  Chancery  gave  relief.  The  fiction  of  this  relief  being  something 
extraordinary,  and  as  it  were  supra-legal,  was  kept  up  in  form  long 
after  it  had  ceased  to  be  either  true  or  useful;  and  the  terms  Fraud 
and  Mistake  were  extended  far  beyond  any  reasonable  meaning  in 
order  to  support  the  jurisdiction  of  the  Court  in  a  great  variety  of 
cases  where  the  procedure  and  machinery  of  the  common  law  Courts 
were  inadequate  to  do  justice.  In  the  cases  now  before  us,  however, 
there  is  real  difficulty  in  drawing  the  line:  and  one  or  two  examples 
of  the  class  will  be  given  in  this  place. 

Sale  of  cargo  previously  lost.  In  the  leading  case  of  Couturier  v. 
Hasiie  (a),  decided  by  the  House  of  Lords  in  1856,  a  bought  note 
bad  been  signed  for  a  cargo  of  Indian  corn  described  as  "  of  fair 
average  quality  when  shipped  from  Salonica."  Several  days  before 
the  sale,  but  unknown  to  the  parties,  the  cargo,  then  on  the  voyage, 
was  found  to  be  so  much  damaged  from  heating  that  the  vessel  put 

(s)     See     especially    Couturier    v.  of  mind  of  the  parties  makes  no  dif- 

Bastie   (1856)   5  H.  L.  C.  673,  25  L.  ference.     It  is  at  least  doubtful,  as 

J.  Ex.   253.     Savigny    (Syst.  3.  303)  we  shall  have  opportunities  of  seeing, 

is  decidedly  against  error  being  con-  whether  this  position  be  true  in  Eng- 

sidered  the  ground  of  nullity  in  these  lish  law. 

eases:     but    chiefly    because,    as    he  (a)    (1856)  5  H.  L.  C.  673. 
holds,   the   knowledge  or  other  state 


IMPLIED    OE    EXPRESS    EXCEPTIONS.  541 

into  Tunis,  where  the  cargo  was  sold.  The  only  question  seriously 
disputed  was  what  the  parties  really  meant  to  deal  with,  a  cargo  sup- 
posed to  exist  as  such,  or  a  mere  expectation  of  the  arrival  of  a  cargo, 
subject  to  whatever  might  have  happened  since  it  was  shipped.  Lord 
Cranworth  in  the  House  of  Lords,  in  accordance  with  the  opinion 
of  nearly  all  the  judges,  held  *that  "what  the  parties  contem-  [421 
plated,  those  who  sold  and  those  who  bought,  was  that  there  was  an 
existing  something  to  be  sold  and  bought."  No  such  thing  existing, 
there  was  no  contract  which  could  be  enforced. 

Covenants  to  work  mines,  or  to  raise  minimum  amount.  When  a  lessee 
under  a  mining  lease  covenants  in  unqualified  terms  to  pay  a  fixed 
minimum  rent,  he  is  bound  to  pay  it  (&),23  though  the  mine  may  turn 
out  to  be  not  worth  working  or  even  unworkable.  But  it  is  other- 
wise with  a  covenant  to  work  the  mine24  or  to  raise  a  minimum 
amount.25  Where  a  coal  mine  was  found  to  be  so  interrupted  by  faults 
as  to  be  not  worth  working,  it  was  said  that  the  lessor  might  be  re- 
strained from  suing  on  the  covenant  to  work  it  on  the  terms  of  the 
lessee  paying  royalty  on  the  estimated  quantity  of  coal  which  re- 
mained unworked  (c). 

Clifford  v.  Watts.  A  similar  question  was  fully  dealt  with  in  Clifford 
v.  Watts  (d).  The  demise  was  of  all  the  mines,  veins,  etc.,  of  clay  on 
certain  land.  There  was  no  covenant  by  the  lessee  to  pay  any  mini- 
mum rent,  but  there  was  a  covenant  to  dig  in  every  year  of  the  term 

(6)   Mcurquis  of  Bute  v.  Thompson  (c)  Ridqway  v.  Sneyd,  last  note. 

(1844)   13  M.  &  W.  487,  17  L.  J.  Ex.  (d)    (1870)    L.  R.  5  C.  P.  577,  40 

95.     So  in  equity,  Ridgway  v.  Sneyd  L.  J.  C.  P.  36. 
(1854)   Kay,  627. 

23  Lehigh  Zinc  Co.  v.  Bamford,  150  U.  S.  665;  McDowell  v.  Hendrix,  67  Ind. 
513;  Valley  Citv  Milling  Co.  v.  Prange,  123  Mich.  211;  Wharton  v.  Stouten- 
burgh,  46  N.  J.  L.  151;  Timlin  v.  Brown,  158  Pa.  606.  Cp.  Monnett  v.  Potts, 
10  Ind.  App.  191;  Blake  v.  Lobb's  Estate,  110  Mich.  608;  Brick  Co.  v.  Pond, 
38  Ohio  St.  65. 

In  the  case  last  cited  A.,  by  an  agreement  in  writing,  "  leased  "  to  B.,  "  all 
the  clay  that  is  good  No.  1  fire  clay,  on  his  land  "  described,  for  a  term  of  three 
years  subject  to  the  conditions  that  B.  "  shall  mine,  or  cause  to  be  mined,  or 
pay  for,  not  less  than  2,000  tons  of  clay  every  year,  and  shall  pay  therefor 
twenty-five  cents  per  ton  for  every  ton  of  clay  monthly,  as  it  is  taken 
away,"  it  was  held  that  if  clay  of  the  quality  mentioned,  and  in  quantity  suf- 
ficient to  justify  its  mining,  could  not,  by  the  use  of  due  diligence,  be  found  on 
the  land,  then  there  was  no  obligation  to  pay  the  amount  agreed  on,  in  case 
of  failure  to  mine.  See  also  Muhlenberg  v.  Henning,  116  Pa.  138;  Boyer  v. 
Fulmer,  176  Pa.  282. 

24  Cook  v.  Andrews,  36  Ohio  St.  174.  See  also  Buchanan  v.  Layne,  95  Mo. 
App.  148. 

25  Ridgely  v.  Conswago  Iron  Co.,  53  Fed.  Rep.  988 ;  Gribben  r.  Atkinson,  64 
Mich.  651;  Muhlenberg  v.  Henning,  116  Pa.  138;  Boyer  v.  Fulmer,  176  Pa. 
282.    See  also  Bannan  v.  Graeff,  186  Pa.  648. 


542  IMPOSSIBLE    AGREEMENTS. 

not  less  than  1000  tons  nor  more  than  2000  tons  of  pipe  or  potter's 
clay.  An  action  was  brought  by  the  lessor  for  breach  of  this  covenant. 
Plea  (e),  to  the  effect  that  there  was  not  at  the  time  of  the  demise  or 
since  so  much  as  1000  tons  of  such  clay  under  the  lands,  that  the 
performance  of  the  covenant  had  always  been  impossible,  and  that  at 
the  date  of  the  demise  the  defendant  did  not  know  and  had  no  reason- 
able means  of  knowing  the  impossibility.  The  Court  held  that  upon 
the  natural  construction  of  the  deed  the  contract  was  that  the  lessee 
should  work  out  whatever  clay  there  might  be  under  the  land,  and 
the  covenant  sued  on  was  only  a  subsidiary  provision  fixing  the  rate 
at  which  it  should  be  worked.  The  tenant  could  not  be  presumed  to 
422  ]  warrant  that  clay  should  *be  found :  and  "  the  result  of  a 
decision  in  favour  of  the  plaintiff  would  be  to  give  him  a  fixed  mini- 
mum rent  when  he  had  not  covenanted  for  it  "  (f). 

Analogous  effect  of  express  exceptions  in  commercial  contracts.  In  cer- 
tain kinds  of  contracts,  notably  charter-parties,  it  is  usual  to  provide 
by  express  exceptions  for  the  kind  of  events  we  have  been  considering. 
It  is  not  within  our  province  to  enter  upon  the  questions  of  construc- 
tion which  arise  in  this  manner,  and  which  form  important  special 
topics  of  commercial  law.  However,  when  the  exception  of  a  certain 
class  of  risks  is  once  established,  either  as  being  implied  by  law  from 
the  nature  of  the  transaction,  or  by  the  special  agreement  of  the 
parties,  the  treatment  is  much  the  same  in  principle :  and  a  few  recent 
decisions  may  be  mentioned  as  throwing  light  on  the  general  law. 
Where  the  principal  part  of  the  contract  becomes  impossible  of  per- 
formance by  an  excepted  risk,  the  parties  are  also  discharged  from 
performing  any  other  part  which  remains  possible,  but  is  useless  with- 
out that  which  has  become  impossible  (g)-ie     It  is  a  general  prin- 

( e )  It  was  pleaded  as  an  equitable  Sughrue  (pp.  *399,  *400,  *408,  above), 
plea  under  the  C.  L.  P.  Act,  but  the  it  is  perhaps  enough  to  say  that  the 
Court  treated  the  defence  as  a,  legal  Court  of  Common  Pleas  as  consti- 
one.  tuted    in    1870    would    scarcely   have 

(f)  Per  Montague  Smith  J.  at  p.  arrived,  on  the  facts  of  Bills  v. 
587.  Cp.  and  dist.  Jervis  v.  Tomkin-  Sughrue,  at  the  same  result  as  the 
son  (1856)  1  H.  &  N.  195,  26  L.  J.  Court  of  Exchequer  in  1847:  but 
Ex.  41,  where  the  covenant  was  not  there  is  no  actual  conflict,  as  the 
only  to  get  2,000  tons  of  rock  salt  question  in  every  case  is  of  the  true 
per  annum,  but  to  pay  6d.  a  ton  intention  of  the  contract  taken  as  a 
for  every  ton  short,  and  the  lessees  whole,  and  the  contracts  in  these 
knew  of  the  state  of  the  mine  when  cases  are  of  quite  different  kinds, 
they  executed  the  lease.  As  to  the  (g)  Geipel  v.  Smith  (1872)  L.  R. 
relation  of  Clifford  v.  Watts  to  Hills  v.  7  Q.  B.  404,  411,  41  L.  J.  Q.  B.  153. 

26  Where  the  defendants  contracted  with  the  proprietors  of  a  theatre  to  fur- 
nish the  "  Wachtel  Opera  Troupe  "  to  give  a  certain  number  of  performances, 
Wachtel  being  the  leader  and  chief  attraction  of  the  company,  and  his  connec- 


PERSONAL    SEBVICBb.  543 

ciple  that  a  contract  is  not  to  be  treated  as  having  become  impossible 
oi'  performance  if  by  any  reasonable  construction  it  is  still  capable  in 
substance  of  being  performed  (h)  :27  but  on  the  other  hand  special 
exceptions  are  not  to  be  laid  hold  of  to  keep  it  in  force  contrary  to 
the  real  intention.  Thus  where  the  contract  is  to  be  performed  "  with 
all  possible  despatch,"  saving  certain  impediments,  the  party  for  whose 
benefit  the  saving  is  introduced  cannot  force  the  other  to  accept 
*performance  after  a  delay  unreasonable  in  itself,  though  due  to  [423 
an  excepted  cause,  if  the  manifest  general  intention  of  the  parties  is 
that  the  contract  shall  be  performed  within  a  reasonable  time,  if  at  all. 
The  saving  clause  will  protect  him  from  liability  to  an  action  for  the 
delay,  but  that  is  all :  the  other  party  cannot  treat  the  contract  as 
broken  for  the  purpose  of  recovering  damages,  but  he  is  not  prevented 
from  treating  it  as  dissolved  (i). 

Where  performance  depends  on  life  or  health  of  a  person.  Where  the 
contract  is  for  personal  services  of  which  the  performance  depends 
on  the  life  or  health  of  the  party  promising  them.  "All  contracts  for 
personal  services  which  can  be  performed  only  during  the  lifetime  of 
the  party  contracting  are  subject  to  the  implied  condition  that  he 
shall  be  alive  to  perform  them;  and  should  he  die,  his  executor  is 
not  liable  to  an  action  for  the  breach  of  contract  occasioned  by  his 
death"  (fc).28  Conversely,  if  the  master  dies  during  the  service,  the 
servant  is  thereby  discharged,  and  cannot  treat  the  contract  as  in 
force  against  the  master's  personal  representatives  (I).29    The  passage 

(h)   The  Teutonic,    (1872)    L.  R.  4  10  C.  P.  125,  144  sqq.,  44  L.  J.  C.  P. 

P.  C.  171,  182,  41  L.  J.  Ad.  67.     Cp.  27. 

Jones  v.   Holm    (1867)    L.  R.   2   Ex.  (fc)  Pollock  C.B.  in  Hall  v.  Wright 

335.  (1858)  E.  B.  &  E.  at  p.  793,  29  L.  J. 

(i)    Jackson  v.    Union  Marine  In-  Q.  B.  at  p.  51. 

surance  Co.   (1874)   in  Ex.  Ch.  L.  R.  {1)  Farrow  v.  Wilson  (1869)  L.  R. 

4  C.  P.  744,  38  L.  J.  C.  P.  326. 

iton  with  it  the  inducement  to  plaintiffs  to  enter  into  the  contract,  it  was 
held  "  that  the  presence  of  Wachtel  was  the  principal  thing  contracted  for, 
and  was  of  the  essence  of  the  contract;  that  plaintiffs  would  not  have  been 
bound  to  accept  the  services  of  the  troupe  without  him,"  and  that  the  illness 
of  Wachtel  having  incapacitated  him  to  perform  constituted  a  valid  excuse  for 
defendant's  failure  to  furnish  the  troupe.    Spalding  v.  Rosa,  7 1  N.  Y.  40. 

27  White  v.  Mann,  26  Me.  361;  Williams  v.  Vanderbilt,  28  N.  Y.  217. 

28  Marvel  v.  Phillips,  162  Mass.  399;  Siler  v.  Gray,  86  N.  C.  566;  Dickinson 
f.  Calahan,  19  Pa.  227.  Nor  can  the  executor  insist  that  the  other  party  shall 
accept  performance  by  himself  in  place  of  the  decedent.  Schultz  r.  Johnson's 
Adm'r,  5  B.  Mon.  497;  Blakely  e.  Sousa,  197  Pa.  305.  See  also  Baxter  v. 
Billings,  83  Fed.  Rep.  790. 

29  Harris  v.  Johnson,  98  Ga.  434;  Weedon  v.  Waterhouse,  10  Hawaii,  696: 
Lacy  v.  Getman.  119  N.  Y.  109;  Yerrington  v.  Greene,  7  R.  I.  589.  Cp.  Volk 
v.  Stowell,  9.8  Wis.  385. 

The  death  of  one  member  of  a  partnership  is  generally  held  to  dissolve  a 


544  IMPOSSIBLE    AGREEMENTS. 

now  cited  goes  on  to  suggest  the  extension  of  this  principle  to  the 
case  of  the  party  becoming,  without  his  own  default,  incapable  of 
fulfilling  the  contract  in  his  lifetime:  "A  contract  by  an  author 
to  write  a  book,  or  by  a  painter  to  paint  a  picture  within  a  reasonable 
time,  would  in  my  judgment  be  deemed  subject  to  the  condition  that 
if  the  author  became  insane,  or  the  painter  paralytic,  and  so  incapable 
of  performing  the  contract  by  the  act  of  God,  he  would  not  be  liable 
personally  in  damages  any  more  than  his  executors  would  be  if  he 
had  been  prevented  by  death."  This  view,  which  obviously  commends 
itself  in  point  of  reason  and  convenience,  is  strongly,  confirmed  by 
Taylor  v.  Caldwell  (supra,  p.  *415),  where  indeed  it  was  recog- 
424]  nized  *as  correct,  and  it  has  since  been  established  by  direct  de- 
cisions. 

Boast  v.  Firth.  In  Boast  v.  Firth  (m)  a  master  sued  the  father  of 
his  apprentice  on  his  covenant  in  the  apprenticeship  deed  that  the 
apprentice  should  serve  him,  the  plaintiff,  during  all  the  term.  The 
defence  was  that  the  apprentice  was  prevented  from  so  doing  by  per- 
manent illness  arising  after  the  making  of  the  indenture.  The  Court 
held  that  "  it  must  be  taken  to  have  been  in  the  contemplation  of  the 
parties  when  they  entered  into  this  covenant  that  the  prevention  of 
performance  by  the  act  of  God  should  be  an  excuse  for  non-perform- 
ance "  (n),  and  that  the  defence  was  a  good  one. 

Robinson  v.  Davison.  In  Robinson  V.  Davison  (o)  the  defendant's 
wife,  an  eminent  pianoforte  player,  was  engaged  to  play  at  a  concert. 
When  the  time  came  she  was  dsabled  by  illness.  The  giver  of  the 
entertainment  sued  for  the  loss  he  had  incurred  by  putting  off  the 
concert,  and  had  a  verdict  for  a  small  sum  under  a  direction  to  the 

(o)     (1871)    L.   R.    6   Ex.   269,   40 
L.  J.  Ex.  172. 


(m) 

(1868) 

L. 

R. 

4   C. 

P. 

1, 

38 

L. 

J.  C. 

P.  1. 

(n) 

Per    Montague 

Sm 

ith 

J. 

at 

P- 

7. 

contract  of  employment  made  with  the  firm.  Tasker  v.  Shepherd,  6  H.  &  N. 
575;  Cowasjee  Manabhoy  !'.  Lallbhoy  Vullubhoy,  3  Ind.  App.  200;  Brace  v. 
Calder,  [1895]  2  Q.  B.  253;  Hoey  v.  McEwan,  '5  Sess.  Cas.  (3d  Ser.),  814; 
Griggs  v.  Swift,  82  Ga.  392;  Greenburg  v.  Early,  30  Abb.  N.  C.  300,  303. 
But  see  Phillips  v.  Alhambra  Palace  Co.,  [1901]  1  Q.  B.  59;  Hughes  v.  Gross, 
166  Mass.  61;  Nickerson  v.  Russell,  172  Mass.  584;  Pereira  v.  Sayers,  5 
W.  &  S.  210. 

The  Louisiana  Civil  Code,  art.  2007,  provides  that  "  all  contracts  for  the 
hire  of  labor,  skill,  or  industry,  without  any  distinction,  whether  they  can 
be  performed  by  any  other  as  by  the  obligor,  unless  there  is  some  special 
agreement  to  the  contrary,  are  considered  as  personal  on  the  part  of  the 
obligor,  but  heritable  on  the  part  of  the  obligee."  See  Tete  v.  Lanaux,  45  La. 
Ann.  1343. 


PERSONAL    SERVICES.  545 

effect  that  the  performer's  illness  was  an  excuse,  but  that  she  was 
bound  to  give  the  plaintiff  notice  of  it  within  a  reasonable  time. 
The  sum  recovered  represented  the  excess  of  the  plaintiff's  expenses 
about  giving  notice  of  the  postponement  to  the  public  and  to  persons 
who  had  taken  tickets  beyond  what  he  would  have  had  to  pay  if  notice 
had  been  sent  him  by  telegraph  instead  of  by  letter.  The  Court  of 
Exchequer  upheld  the  direction  on  the  main  point.  The  reason  was 
thus  shortly  put  by  Bramwell  B.  "  This  is  a  contract  to  perform  a 
service  which  no  deputy  could  perform,  and  which  in  case  of  death 
could  not  be  performed  by  the  executors  of  the  deceased :  and  I  am  of 
opinion  that  by  virtue  of  the  terms  of  the  original  bargain  incapacity 
either  of  body  or  mind  in  the  performer,  without  default  on  his  or  her 
part,  is  an  excuse  for  non-performance"  (p).30 

The  contract  becomes  void,  not  only  voidable  at  option  of  party  disabled. 
The  same  judge  also  observed,  in  effect,  that  *the  contract  be-  [425 
comes  not  voidable  at  the  option  of  the  party  disabled  from  perform- 
ance, but  wholly  void.  Here  the  player  could  not  have  insisted  "  on 
performing  her  engagement,  however  ineffectually  that  might  have 
been,"  when  she  was  really  unfit  to  perform  it.  The  other  party's 
right  to  rescind  has  since  been  established  by  a  direct  decision  (q).sl 

Notice  should  be  given  to  the  other  party.  No  positive  opinion  was  ex- 
pressed on  the  other  point  as  to  the  duty  of  giving  notice.  But  it  may 
be  taken  as  correct  that  it  is  the  duty  of  the  party  disabled  to  give 
the  earliest  notice  that  is  reasonably  practicable.  Probably  notice 
reasonable  in  itself  could  not  be  required,  for  the  disabling  accident 
may  be  sudden  and  at  the  last  moment,  and  the  duty  must  be  limited 
to  cases  where  notice  can  be  of  some  use  (r).32  It  further  appears 
from  the  case  that  the  effect  of  an  omission  of  this  duty  is  that  the 
contract  remains  in  force  for  the  purpose  only  of  recovering  such 
damage  as  is  directly  referable  to  the  omission.     The  decision  also 

(p)    (1871)   L.  R.  6  Ex.  at  p.  277.  (r)    Cp.  the  doctrine  as  to  giving 

\q)    Poussard    v.    Spiers    &    Pond,       notice     of     abandonment     to     under- 

(1876)   1  Q.  B.  D.  410,  45  L.  J.  Q.  B.       writers,   Rcmkin   v.   Potter    (1872-3) 

621.  L.  R.  6  H.  L.  83,  121,  157,  42  L.  J. 

C.  P.  169. 

30  Dickey  v.  Linscott,  20  Me.  453;  Spalding  r.  Rosa,  71  N.  Y.  40;  Fenton  v. 
Clark,  11  Vt.  557,  563;  Green  f.  Gilbert,  21  Wis.  395. 

But  if  his  probable  physical  incapacity  could  be  foreseen  by  a  contractor  such 
incapacity  is  no  excuse.     Jennings  V.  Lyons,  39  Wis.  553. 

31  Leopold  v.  Salkey,  89  111.  412;  Johnson  v.  Walker,  155  Mass.  253;  Powell 
v.  Newell,  59  Minn.  406;  Raley  v.  Victor  Co.,  86  Minn.  438. 

32  Where  a  contract  of  service  is  terminable  on  giving  a  certain  number  of 
days  notice,  if  the  servant  becomes  incapacitated  to  perform  by  vi  majore, 
ihe  necessity  of  notice  is  dispensed  with.  Fuller  v.  Brown,  11  Met.  440; 
Hughes  v.  Wamsutta  Mills,  11  Allen,  201. 

35 


546  IMPOSSIBLE   AGREEMENTS. 

shows,  if  express  authority  be  required  for  it,  that  it  matters  not 
whether  the  disability  be  permanent  or  temporary,  but  only  whether 
it  is  such  as  to  prevent  the  fulfilment  of  the  particular  contract.  In 
the  event  of  the  disabled  party  having  suffered  from  the  breach  of 
contract  or  negligence  of  a  third  person,  and  being  entitled  to  a 
remedy  against  that  person,  a  question  of  subrogation  might  possibly 
arise,  but  this  does  not  appear  to  have  been  judicially  considered. 

Hall  v.  Wright:   anomalous  decision  on  the  contract  to  marry.       In  the 

earlier  and  very  peculiar  case  of  Hall  v.  Wright  (s)  the  question,  after 
some  critical  discussion  of  the  pleadings,  which  it  is  needless  to  follow, 
came  to  this:  "  Is  it  a  term  in  an  ordinary  agreement  to  marry,  that 
if  a  man  from  bodily  disease  cannot  marry  without  danger  to  his 
life,  and  is  unfit  for  marriage  from  the  cause  mentioned  at  the 
426]  time  *appointed,  he  shall  be  excused  marrying  then?  "  (t)  or  in 
other  words :  "  Is  the  continuance  of  health,  that  is,  of  such  a  state 
of  health  as  makes  it  not  improper  to  marry,"  an  implied  condition  of 
the  contract?  (u).  The  Court  of  Exchequer  Chamber  decided  by  four 
to  three  that  it  is  not,  the  Court  of  Queen's  Bench  having  been  equally 
divided.  The  majority  of  the  judges  relied  upon  two  reasons :  that 
if  the  man  could  not  marry  without  danger  to  his  life,  that  did  not 
show  the  performance  of  the  contract  to  be  impossible,  but  at  most 
highly  imprudent;  and  that  at  any  rate  the  contract  could  be  so  far 
performed  as  to  give  the  woman  the  status  and  social  position  of  a 
wife.  It  was  not  disputed  that  the  contract  was  voidable  at  her  option. 
"  The  man,  though  he  may  be  in  a  bad  state  of  health,  may  never- 
theless perform  his  contract  to  marry  the  woman,  and  so  give  her 
the  benefit  of  social  position  so  far  as  in  his  power,  though  he  may 
be  unable  to  fulfil  all  the  obligations  of  the  marriage  state;  and  it 
rests  with  the  woman  to  say  whether  she  will  enforce  or  renounce  the 
contract"  (x).  As  to  the  first  of  these  reasons,  the  question  is  not 
whether  there  is  or  not  an  absolute  impossibility,  but  what  is  the  true 
meaning  of  the  contract;  and  in  this  case  the  contract  is  of  such  a 
kind  that  one  might  expect  the  conditions  and  exceptions  implied  in 
strictly  personal  contracts  to  be  extended  rather  than  excluded  (y). 

(s)   (1858)  E.  B.  &  E.  746,  29  L.  J.  (y)   It  has  long  been  settled  that 

Q.  B.  43.  the  contract  to  marry  is  so  far  per- 

(t)    Per  Bramwell  B.  29  L.  J.  Q.  sonal  that  executors,  in  the  absence 

B.  45.  of    special    damage   to   the    personal 

(«)   Per  Pollock  C.B.  ib.  52.  estate,  cannot  sue  upon  it:  Chamber- 

(x)  The  case  is  thus  explained  and  lain  v.  Williamson   (1814)   2  M.  &  S. 

distinguished  by  Montague  Smith  J.  408,  15  R.  R.  295.     [Hovey  i\  Page, 

in  Boast  v.  Firth  (1868)   L.  R.  4  C.  55  Me.   142;   Flint  v.  Gilpin,  29  W. 

P.  8.  Va.    740.]      And    it    is    now    decided 


PERSONAL    SERVICES.  547 

As  to  the  second  reason,  it  cannot  be  maintained,  except  against  the 
common  understanding  of  mankind  and  the  general  treatment  of 
marriage  by  English  law,  that  the  acquisition  of  legal  or  social  posi- 
tion by  marriage  is  a  principal  or  independent  object  of  the  [427 
contract.  Unless  it  can  be  so  considered,  the  reason  cannot  stand 
with  the  principle  affirmed  in  Oeipel  v.  Smith  (z) ,  that  when  the 
mum  part  of  a  contract  has  become  impossible  of  performance  by  an 
excepted  cause,  it  must  be  treated  as  having  become  impossible  alto- 
gether. The  decision  itself  can  be  reviewed  only  by  a  court  of  ulti- 
mate appeal;  but  it  is  so  much  against  the  tendency  of  the  later 
cases  that  it  is  now  of  little  or  no  authority  beyond  the  point  actually 
decided,  which  for  the  obvious  reasons  indicated  in  some  of  the  judg- 
ments is  not  at  all  likely  to  recur  (a).33 

Limitation  of  the  rule  to  contracts  for  actual  personal  services.  The  rule 
now  before  us  applies  only  to  contracts  for  actual  personal  services. 
A  contract  of  which  the  performance  depends  less  directly  on  the 
promisor's  health  is  not  presumed  to  be  conditional.  If  a  man  cove- 
nants to  insure  his  life  within  a  certain  time,  he  is  not  discharged  by 
his  health  becoming  so  bad  before  the  end  of  that  time  as  to  make  his 
life  uninsurable  (6).  It  has  never  been  supposed  that  the  current  con- 
tracts of  a  manufacturing  firm  are  affected  in  law  by  the  managing- 
partner  being  too  ill  to  attend  to  business,  though  there  are  many 
kinds  of  business  in  which  the  proper  execution  of  an  order  may 
depend  on  the  supervision  of  a  particular  person.     And  in  general 

that  they  cannot,  except  perhaps  for  Grubb's    Admr.    v.    Suit,    32    Gratt. 

special    temporal    damage,    be    sued:  203.] 

Finlay  v.   Chirney    (1888)    20   Q.   B.  (g)    (1872)   L.  R.  7  Q.  B.  404,  41 

Div.  494,  57  L.  J.  Q.  B.  247.     [Web-  L.  J.  Q.  B.  153. 

ber  v.  St.  Paul  Ry.  Co.  97  Fed.  Rep.  (a)     See    Wharton    on    Contracts, 

140,  145;  Stebbins  v.  Palmer,  1  Pick.  §  324,  and  Allen  v.  Baker   (1882)   86 

71;  Smith  v.  Sherman,  4  Cush.  408;  N.  C.  91,  there  cited,  where  the  Su- 

Chase  v.  Pitz,  132  Mass.  359;   Wade  preme   Court   of  North   Carolina   ex- 

v.  Kalbfleisch,  58  N.  Y.   282;   Latti-  pressly  "declined    to    follow    Hall    v. 

more  v.   Simmons,   13   S.   &   R.    183;  Wright. 

Weeks     v.     Mays,     87     Tenn.     442;  (b)    Arthur  v.   Wynne    (1880)    14 

Ch.  D.  603,  49  L.  J.  Ch.  557. 

33  In  an  action  by  a  woman  for  breach  of  promise  to  marry,  it  is  a  defense 
either  that  the  woman  has  physical  defects  making  marriage  improper  which, 
if  existing,  were  unknown  to  the  defendant  at  the  time  the  engagement  was 
made  (Goddard  v.  Westcott,  82  Mich.  180;  Gring  v.  Lereh,  112  Pa.  244),  or 
that  the  defendant  himself  has  such  defects.  Vierling  v.  Bender,  113  la.  337, 
340;  Shackleford  v.  Hamilton,  93  Ky.  80;  Gardner  v.  Arnett,  (Ky.)  50  S.  W. 
Rep.  840;  Trammell  v.  Vaughan,  158  Mo.  214;  Allen  v.  Baker,  86  N.  C.  91; 
Sanders  P.  Coleman,  97  Va.  690. 

If  the  incapacity  is  but  temporary  the  defendant  is  entitled  to  postpone,  but 
not  to  repudiate  totally,  the  marriage.    Trammell  v.  Vaughan,  158  Mo.  214. 


548  IMPOSSIBLE    AGREEMENTS. 

terms  it  may  be  said  that  no  contract  which  may  be  performed  by  an 
agent  can  be  discharged  by  a  cause  of  this  kind,  unless  the  parties 
have  expressly  so  agreed!34 

Rights  already  acquired  under  the  contract  remain.  As  we  saw  in  the 
ea~e  of  contracts  falling  directly  within  the  rule  in  Taylor  v.  CaldiOell, 
so  in  the  case  of  contracts  for  personal  services  the  dissolution  of  the 
contract  by  subsequent  impossibility  does  not  affect  any  specific  right 
428]  already  acquired  under  it.  Where  there  is  *an  entire  contract 
of  this  kind  for  work  to  be  paid  for  by  instalments  at  certain  times, 
any  instalments  which  have  become  due  in  the  contractor's  lifetime 
remain  due  to  his  estate  after  the  contract  is  put  an  end  to  by  his 
death  (c).3B  In  like  manner  where  a  premium  has  been  paid  for 
apprenticeship,  and  the  master  duly  instructs  the  apprentice  for  a 
part  of  the  term  and  then  dies,  his  executors  are  not  bound  to  return 
the  premium  or  any  part  of  it  as  on  a  failure  of  consideration  (d). 

(c)  Stubbs  v.  Holywell  Ry.  Co.  mon  law  on  which  the  decision  in 
(1867)  L.  R.  2  Ex.  311,  36  L.  J.  Ex.  Hirst  v.  Tolson  (1850)  2  Mac.  &  G. 
166.  134,   19  L.  J.   Ch.   441,  purported  to 

(d)  Whincup  v.  Hughes  (1871)  be  founded.  Hirst  v.  Tolson  does  not, 
L,  R.  6  C.  P.  78,  40  L.  j.  C.  P.  104,  of  course,  establish  any  rule  of 
dissenting  from  the  view  of  the  com-  equity. 

34  The  enforced  dissolution  of  a  corporation  has  been  treated  as  analogous 
to  the  death  of  a  natural  person  and,  then-fore,  as  affording  a  defense  to  the 
obligation  of  a  contract  for  personal  services,  Maleolmson  v.  Wappoo  Mills, 
88  Fed.  Rep.  680;  People  v.  Globe  Ins.  Co.,  91  N.  Y.  174;  Lenoir  v.  Linville 
Improvement  Co.,  120  N.  C.  922.  But  if,  as  is  generally  the  case,  such  disso- 
lution is  due  to  the  impaired  financial  condition  of  the  corporation  or  to 
improper  management  of  the  corporate  affairs,  it  would  seem  that  the  disso- 
lution should  be  no  excuse,  and  such  is  the  law  in  New  Jersey.  Spader  v. 
Mural  Decoration  Co.,  47  N.  J.  Eq.  18;  Bolles  v.  Crescent  Drug  &  Chemical 
Co.,  53  N.  J.  Eq.  614;  Rosenbaum  v.  United  States  Credit  Co.,  61  N.  J.  L.  543. 

If  a  corporation  voluntarily  winds  up  business  it  is  liable  for  failing  to 
fulfill  its  contracts.  Re  London,  &c.  Co.,  L.  R.  7  Eq.  550;  Yelland's  Case, 
L.  R.  4  Eq.  350;  Re  Dale,  43  Ch.  D.  255;  Lovell  r.  St.  Louis  Ins.  Co.,  Ill  IT.  S. 
264;  Kalkhoff  i:  Nelson,  60  Minn.  284;  Tiffin  Glass  Co.  v.  Stoehr,  54  Ohio  St. 
157;  Seipel  -v.  Insurance  Co.,  84  Pa.  47;  Potts  v.  Rose  Valley  Mills,  167  Pa. 
310.  See  also  Ex  parte  Maclure,  L.  R.  5  Ch.  737;  Ritter  r.  Mutual  Life  Ins. 
Co.,  169  U.  S.  139. 

35  In  this  country  it  is  generally  held  that  where  one  engaged  under  an 
entire  contract  for  personal  services,  after  part  performance,  is  by  sickness 
disabled  from  fully  performing,  or  dies,  an  action  lies  in  his  favor,  or  his 
administrator's  as  the  case  may  be,  to  recover  on  account  of  the  work  actually 
performed,  but  as  to  the  measure  of  the  recovery  the  cases  are  not  harmonious. 
Coe  p.  Smith,  4  Ind.  79;  Hargrave  r.  Conroy,  19  N.  J.  Eq.  281 ;  Wolfe  v.  Howes, 

20  N.  Y.  197;  Clark  r.  Gilbert,  26  N.  Y.  279;  Parker  r.  Macomber,  17  R.  I. 
674;  Fenton  v.  Clark,  11  Vt.  557;  Hubbard  r.  Belden,  27  Vt.  645;  Patrick  v. 
Putnam,  27  Vt.  759.    See  also  Ryan  v.  Dayton.  25  Conn.  188;  Green  v.  Gilbert, 

21  Wis.  395,  .and  48  Cent.  L.  J.  250.  As  to  sickness,  which  it  was  held  plaintiff 
should  have  foreseen,  and  which,  therefore,  did  not  excuse  non-performance 
see  Jennings  v.  Lyons,  39  Wis.  553. 

Justifiable  fear  of  sickness  was  held  to  have  similar  effect  in  entitling  a 
workman  to  recover  for  services  performed,  though  he  had  only  partially  ful- 


IMPOSSIBILITY    BY    DEFAULT.  549 

Substituted  contract  becoming  impossible  of  performance.  Where  an  ex- 
isting contract  is  varied  or  superseded  by  a  subsequent  agreement,  and 
the  performance  of  that  agreement  becomes  impossible  (e.g.j  by  the 
death  of  a  person  according  to  whose  estimate  a  sum  is  to  be  assessed ) 
so  that  the  parties  are  no  longer  bound  by  it,  they  will  be  remitted 
to  the  original  contract  if  their  intention  can  thereby  be  substantially 
carried  out.  At  all  events  a  party  for  whose  benefit  the  contract  was 
varied,  and  who  but  for  his  own  delay  might  have  performed  it  as 
varied  before  it  became  impossible,  cannot  afterwards  resist  the  en- 
forcement of  the  contract  in  its  original  form  (e). 

3.  Impossibility  by  default  of  either  party.  We  now  come  to  the  case 
of  a  contract  becoming  impossible  of  performance  by  the  default  of 
either  party. 

Default  of  promisor  is  breach  of  contract.  Where  the  promisor  disables 
himself  by  his  own  default  from  performing  his  promise,  not  only 
is  he  not  excused  (for  which  indeed  authority  would  be  superfluous) 
but  his  conduct  is  equivalent  to  a  breach  of  the  contract,  although 
the  time  for  performance  may  not  have  arrived,  and  even  though  in 
contingent  circumstances  it  may  again  become  possible  to  perform 
it(/).36 

*  Default  of  promisee  discharges  promisor,  and  may  be  treated  as  [429 
breach.  On  the  other  hand,  where  the  promisor  is  prevented  from  per- 
forming his  contract  or  any  part  of  it  by  the  default  or  refusal  of  the 
promisee,  the  performance  is  to  that  extent  excused;37  and  moreover 

(e)  Firth  V.  Midland  Ry.  Co.  feoffment  of  that  manor  to  another 
(1875)  L.  R.  20  Eq.  100,  44  L.  J.  Ch.  before  the  feast,  you  have  forfeited 
313.  the    bond   notwithstanding   that   you 

(f)  1  Ro.  Ab.  448,  B.,  citing  21  have  the  land  back  before  the  feast, 
E.  IV.  54,  pi.  26 :  "  If  you  are  bound  having  once  disabled  yourself  from 
to  enfeoff  me  of  the  manor  of  D.  be-  making  the  said  feoffment,"  per 
fore  such  a   feast,  and  you  make  a  Choke  J. 

filled  his  contract.  Lakeman  v.  Pollard,  43  Me.  463.  So  fear  of  violence  from 
strikers.     Walsh  r.  Fisher,  102  Wis.  172. 

36  See  this  question  treated  more  at  length,  chap.  VI. 

3T  United  States  v.  Peck,  102  U.  S.  64;  Clearwater  !,-.  Meredith,  1  Wall.  25, 
39;  King,  &c.  Co.  v.  St.  Louis,  43  Fed.  Rep.  768;  Hood  v.  Hampton,  &c.  Co.,  100 
Fed.  Rep.  408,  413;  Railway  Co.  v.  Danforth,  112  Ala.  80;  McKee  v.  Miller, 
4  Blackf.  222;  Schulte  v.  Hennessy,  40  la.  3-52;  Marshall  v.  Craig,  1  Bibb, 
379.  386;  Parker  Vein  Coal  Co.  v.  O'Hern,  8  Md.  197:  Fredenburg  r.  Turner, 
37  Mich.  402;  Hammer  v.  Breidenbach,  31  Mo.  49;  Wilt  r.  Ogden,  13  Johns. 
56;  Stewart  v.  Keteltas,  36  N.  Y.  388;  Gallagher  v.  Nichols,  60  N.  Y.  438; 
Dannat  v.  Fuller,  120  N.  Y.  554;  Vandegrift  v.  Cowles  Engineering  Co.,  161 
N.  Y.  435;  Asheraft  v.  Allen,  4  Ired.  L.  96;  Sutton  v.  Tyrrell,  12  Vt.  79. 

One  who  prevents  the  performance  of  a  condition,  or  makes  it  impossible 
by  his  own  act,  cannot  take  advantage  of  the  non-performance.     Ruble  v. 


550  IMPOSSIBLE   AGREEMENTS. 

default  or  refusal  is  a  cause  of  action  on  which  the  promisor  may  re- 
cover any  loss  he  has  incurred  thereby  (<7),38  or  he  may  rescind  the 
contract  and  recover  back  any  money  he  has  already  paid  under  it  (h).S9 
Default  may  consist  either  in  active  interruption  or  interference  on 
the  part  of  the  promisee  (i),  or  in  the  mere  omission  of  something 
without  which  the  promisor  cannot  perform  his  part  of  the  con- 
tract (fc).40 

(g)   As  in  the  familiar  case  of  an  (k)   Where  a  condition  can  be  per- 

action    for    non-acceptance   of   goods,  formed  only  in  the  obligee's  presence, 

for  not   furnishing  a   cargo,   &c. ;    so  his  absence  is  an  excuse,   1  Ro.  Ab. 

with  a  special  contract,  e.g.,  Roberts  457,  U.     A  covenant  to  make  within 

v.  Bury  Comviissioners    (1869)   L.  R.  a  year   such   assurance  as  the   cove- 

4  C.  P.  755,  in  Ex.  Ch.  5  C.  P.  310,  nantee's  counsel   shall   devise  is   dis- 

39  L.  J.  C.  P.  129.  charged   if   the   covenantee   does   not 

(h)     Giles    v.    Edwards    (1797)     7  tender  an  assurance  within  the  year, 

T.  R.  181,  4  R.  R.  414.  ii.  446,  pi.  12. 

(i)    1  Ro.  Ab.  453,  N. 

Massey,  2  Ind.  636;  Leonard  v.  Smith,  80  la.  194;  Jones  v.  Walker,  13  B. 
Mon.  163;  Holt  r.  Silver,  169  Mass.  435;  Navigation  Co.  r.  Wilcox,  7  Jones 
L.  481;  Bright  v.  Taylor,  4  Sneed,  159;  Camp  v.  Barker,  21  Vt.  469;  Jones  r. 
Railroad  Co.,  14  W.  Va.  514. 

38  United  States  v.  Peck,  102  U.  S.  64;  Lovell  v.  Insurance  Co.,  Ill  U.  S. 
264;  Anvil  Mining  Co.  v.  Humble,  153  U.  S.  540,  552:  Kingman  V.  Western 
Mfg.  Co.,  92  Fed.  Rep.  486;  O'Connell  v.  Hotel  Co.,  90  Cal.  515;  Hawley  r. 
Smith,  45  Ind.  183,  202;  Black  v.  Woodrow,  39  Md.  194;  North  v.  Mallory,  94 
Md.  305;  Thompson  v.  Gaffey,  52  Neb.  317;  Smith  r.  Railroad  Co.,  36  N.  H. 
458,  493;  Nichols  r.  Scranton  Steel  Co.,  137  N.  Y.  471;  Kugler  r.  Wiseman,  20 
Ohio  St.  361;  Curtis  r.  Smith,  48  Vt.  116. 

39  United  States  r.  Behan,  110  U.  S.  338;  Seipel  v.  Insurance  Co.,  84  Pa. 
47.  He  may  rescind  the  contract  and  recover  the  value  of  what  he  has  done 
for  defendant's  benefit  in  performance  of  it.  Chicago  v.  Tillev,  103  U.  S.  146; 
Wells  v.  National  Life  Assoc,  99  Fed.  Rep.  222;  Joyce  r.  White,  95  Cal.  236; 
Adams  v.  Burbank,  103  Cal.  646;  Connelly  v.  Devoc,  37  Conn.  570;  Lake  Shore 
Ry.  Co.  l'.  Richards,  152  111.  59;  Western  Union  Co.  v.  Semmes,  73  Md.  9; 
North  i?.  Mallory,  94  Md.  305;  Moulton  v.  Trask,  9  Met.  577;  Canada  c. 
Canada,  6  Cush.  15;  Thompson  v.  Gaffev,  52  Neb.  317;  Wright  v.  Reusens,  133 
N.  Y.  298 ;  Greene  v.  Haley,  5  R.  I.  260 ;  Blood  v.  Enoa,  12"  Vt.  025 ;  Derby  r. 
Johnson,  21  Vt.  17.  Where  a  person  on  a  contract  of  sale  covenants  to  pay  a 
sum  whose  amount  is  to  be  contingent  on  certain  events,  and  is  to  be  ascer- 
tained by  arbitrators  to  be  selected  by  the  parties  respectively  to  the  con- 
tract, such  person,  if  he  prevent  any  arbitration,  may  be  sued  on  a.  quantum 
ralebat.     Humaston  v.  Telegraph  Co.,  20  Wall.  20.     See  further,  chap.  VI. 

40  Williams  r.  Bank,  2  Pet.  96,  102;  Eastern  Granite  Co.  v.  Heim,  89  la. 
698;  Majors  i.  Hickman,  2  Bibb,  217;  Gilbert  Mfg.  Co.  r.  Butler,  146  Mass. 
82,  84;  Howard  r.  American  Mfg.  Co.,  162  N.  Y.  347.  Where  the  defendant 
agreed  to  allow  the  plaintiff  to  dig  sand  on  the  former's  land  at  places  to  be 
designated  by  the  defendant:  Held,  that  a  refusal  to  designate  a  place  was  a 
breach  of  the  contract.  Warner  V.  Wilson,  4  Cal.  310;  Hurd  V.  Gill,  45  N.  Y 
341.  Where  the  giving  of  directions  by  defendant  as  to  how  certain  rails  which 
plaintiff  was  to  deliver  to  him  should  be  drilled,  was  to  be  performed  by  him 
before  plaintiff  could  proceed  with  a  proper  execution  of  the  contract,  the 
refusal  of  defendant  to  give  such  directions  was  held  to  be  of  itself  a  breach 
of  the  contract.  Pittsburgh  B.  S.  Rail  Co.  r.  Hinckley,  17  Fed.  Rep.  584; 
affirmed,  121  U.  S.  264.  And  see  Aller  v.  Pennell,  51  la.  537;  Butler  v.  Butler, 
77  N.  Y.  472. 


IMPOSSIBILITY    BY    DEFAULT.  551 

Roberts  v.  Bury  Commissioners,  &c.  The  principle,  in  itself  well  set- 
tled, is  illustrated  by  several  modern  cases.  Where  the  failure  of  a 
building  contractor  to  complete  the  works  by  the  day  specified  is 
caused  by  the  failure  of  the  other  parties  and  their  architect  to  supply 
plans  and  set  out  the  lands  necessary  to  enable  him  to  commence 
the  works,  "the  rule  of  law  applies  which  exonerates  one  of  the  two 
contracting  parties  from  the  performance  of  a  contract  when  the  per- 
formance of  it  is  prevented  and  rendered  impossible  by  the  wrongful 
act  of  the  other  contracting  party"  (I),  and  the  other  party  cannot 
take  advantage  of  a  provision  in  the  contract  making  it  determinable 
at  their  option  in  the  event  of  the  contractor  failing  in  the  due  per- 
formance of  any  part  of  his  undertaking  (I).41  So  where  it  is  a 
term  of  the  contract  that  the  contractor  shall  pay  penalties  for  any 
delay  in  the  *fulfilment  of  it,  no  penalty  becomes  due  in  respect  [430 
of  any  delay  caused  by  the  refusal  or  interference  of  the  other 
party  (m).42  Where  a  machine  is  ordered  for  doing  certain  work 
on  the  buyer's  land,  on  the  terms  that  it  is  to  be  accepted  only  if  it 
answers  a  certain  test;  there,  if  the  buyer  fails  to  provide  a  fit  place 
and  occasion  for  trying  the  machine,  and  so  deals  with  it  as  to  pre- 
vent a  fair  test  from  being  applied  according  to  the  contract,  he  is 
bound  to  accept  and  pay  for  the  machine  («). 

Cases  of  apprenticeship.  In  Raymond  v.  Minton  (o)  it  was  pleaded 
to  an  action  of  covenant  against  a  master  for  not  teaching  his  appren- 
tice that  at  the  time  of  the  alleged  breach  the  apprentice  would  not 
be  taught,  and  by  his  own  wilful  acts  prevented  the  master  from  teach- 
ing him.  This  was  held  a  good  plea,  for  "  it  is  evident  that  the  master 
cannot  be  liable  for  not  teaching  the  apprentice  if  the  apprentice 
will  not  be  taught." iS     An  earlier  and  converse  case  is  Ellen  v. 

{I)  Roberts  v.  Bury  Commissioners  (n)    iluckay  v.  Dick   (1881)   in  H. 

(1869)   L.  R.  5  C.  P.  310,  329.  L.    (Sc.)   6  App.  Ca.  251. 

(to)   Holme  v.  Ouppy   (1838)   3  M.  (o)     (1866)    L.   R.    1   Ex.   244,    35 

&  W.  387,  49  R.  R.   647;  Russell  v.  L.  J.  Ex.  153.     So  if  a  pawnbroker's 

Da  Bandeira    (1862)    13   C.  B.  N.  S.  apprentice      is      a      habitual      thief: 

149   32  L.  J.  C.  P   68.  Learoyd  v.  Brook  [1891]   1  Q.  B.  431, 

60  L.  J.  Q.  B.  373. 

*1  See  Van  Buren  v.  Digges,  il  How.  461 ;  McAndrews  v.  Tippett,  39  N.  J.  L. 
105;  Weeks  v.  Little,  89  N.  Y.  566;  Mansfield  v.  New  York  Central  R.  Co.,  102 
N.  Y.  205,  114  N.  Y.  331. 

*2Dodd  i:  Churton,  [1897]  1  Q.  B.  562;  Weeks  r.  Little,  89  N.  Y.  566. 

43  Where  A.  promised  B.  to  pay  him  two  hundred  dollars  annually  for  C.'s 
support  and  maintenance,  and  B.  promised  to  support  and  maintain  C,  but  C. 
refused  to  be  supported  by  B.,  it  was  held  that  no  action  would  lie  in  favor  of 
B.  against  A.  for  failure  to  pay.     Cornell  v.  Cornell,  96  N.  Y.  108.     See  also 


552  IMPOSSIBLE   AGREEMENTS. 

Topp  (p),  referred  to  by  the  reporters.  There  a  master  undertook 
to  teach  an  apprentice  several  trades;  it  was  held  that  on  his  giving 
up  one  of  them,  and  thus  making  the  complete  performance  of  his  own 
part  of  the  contract  impossible,  the  apprentice  was  no  longer  bound  to 
serve  him  in  any.  "  If  the  master  is  not  ready  to  teach  in  the  very 
trade  which  he  has  stipulated  [promised]  to  teach,  the  apprentice 
is  not  bound  to  serve."  A  case  of  the  same  sort  is  put  by  Choke  J.  in 
the  Year  Book,  22  Ed.  IV.,  26,  in  a  case  from  which  one  passage  has 
already  been  given. 

"  If  I  am  bound  to  Catesby  [then  another  judge  of  the  Common  Pleas] 
that  my  son  shall  serve  him  for  seven  years,  and  I  come  with  my  son  to 
Catesby,  and  offer  my  son  to  him,  and  he  will  not  take  him,  there  because  there 
431]  is  no  default  on  my  part  I  shall  not  forfeit  the  bond.  In  like  "manner 
if  he  took  my  son  and  afterwards  within  the  term  sent  him  away,  it  is  un- 
reasonable that  this  should  be  a  forfeiture." 

Alternative  contract  —  Where  one  thing  impossible,  the  possible  one  must 
be  performed.  Where  a  contract  is  in  the  alternative  to  do  one  of  two 
things  at  the  promisor's  option,  and  one  of  them  is  impossible,  the 
promisor  is  bound  to  perform  that  which  is  possible  (<?).44  We  find 
the  rule  clearly  stated  in  the  Digest  (»•).  Where  one  of  two  things 
contracted  for  in  the  alternative  subsequently  becomes  impossible, 
it  is  a  question  of  construction  for  which  no  positive  rule  can  be 
laid  down,  whether  according  to  the  true  intention  of  the  parties  the 
promisor  must  perform  the  alternative  which  remains  possible,  or  is  al- 
together discharged  (s).  It  was  held,  indeed,  in  Laughters  case  (t), 
that  where  the  condition  of  a  bond  is  for  either  of  two  things  to  be 

(p)    (1851)   6  Ex.  424,  442,  20  L.  J.  dari?    proinde    erit    atque    te    sisti 

Ex.  241.  solummodo  stipulatus  essem.     D.  45. 

(g)  Da  Costa  v.  Dans  (1778)   1  B.  1.  de  v.  o.  97  pr. 
&  P.  242,  4  R.  R.  795.  (s)    Barkworth  v.  Young    (1856)   4 

(r)     Si    ita    stipulatus    fuero:     te  Drew.  1,  25,  26  L.  J.  Ch.  153. 
sisti;    nisi    steteris,    hippocentaurum  (t)   5  Co.  Rep.  21  6. 

Jones  v.  Comer,  25  Ky.  L.  Rep.  773,  1104.  Cp.  Clancy  r.  Flusky,  187  111.  605; 
also  compare  decisions  in  which  a  school  teacher  was  held  to  be  entitled  to 
recover  the  stipulated  pay  though  the  school  was  necessarily  closed  on  account 
of  contagious  disease.  Gear  v.  Gray,  10  Ind.  App.  428;  Dewey  r.  Union 
School  Dist.,  43  Mich.  480.  The  decisions  of  Stewart  v.  Loring,  5  Allen,  306 ; 
School  District  r.  Howard,  98  N.  YV.  Rep.  606  (Neb.),  seem  opposed  in  principle 
and  are  sounder  decisions.  But  if  a  teacher  is  required  to  remain  in  readiness 
to  teach  whenever  the  school  shall  be  reopened  clearly  the  salary  must  be  paid. 
Libby  r.  Doug-las,  175  Mass.  128.  So,  if  the  schoolhouse  is  burned,  for  other 
accommodations  may  be  found.  Charlestown  t>.  Hav,  74  Ind.  127:  Smith  v. 
Pleasant  Plains  School  District,  69  Mich.  589;  Cashen  v.  Berlin  School  Dist., 
50  Vt.  30. 

a  Drake  r.  White.  117  Mass.  10;  State  v.  Worthington,  7  Ohio,  pt.  1, 
171;  Board  of  Education  V.  Townsend,  63  Ohio  St.  514. 


ALTERNATIVE    CONTRACTS.  553 

done  by  the  obligor,  and  one  of  them  becomes  impossible  by  the  act 
of  God,  he  is  not  bound  to  perform  the  other.45  But  this  is  to  be  ac- 
counted for  by  the  peculiar  treatment  of  bonds,  of  which  we  shall 
speak  presently,  the  right  of  election  being  part  of  the  benefit  of  the 
condition,  of  which  the  obligor  is  not  to  be  deprived.  And  even  as  to 
bends  the  general  proposition  has  been  denied  (s).  In  the  absence 
of  anything  to  show  the  intention  in  the  particular  case,  the  presump- 
tion should  surely  be  the  other  way,  namely,  that  the  promisor  should 
lose  his  election  rather  than  the  promisee  lose  the  whole  benefit  of 
the  contract.46  Where  either  the  promisor  or  the  promisee,  having  the 
right  under  a  contract  to  choose  which  of  two  things  shall  be  done, 
chooses  one  which  becomes  impossible  after  the  choice  is  determined, 
there  (on  authority  as  well  as  principle)  it  is  the  same  as  if  there  had 
been  from  the  first  a  single  unconditional  contract  to  do  that  thing  (u). 
In  *Eoman  law  the  presumption  seems  distinctly  in  favour  of  [432 
the  promisor  remaining  bound  to  do  what  is  possible  (x) ;  otherwise 
it  agrees  with  ours  (y). 

Effects  of  default.  The  exception  as  to  mora  in  the  extract  given 
in  the  note  shows  the  application  here  of  the  general  rule  as  to  im- 
possibility caused  by  acts  of  the  parties.  The  case  put  is  that  the 
creditor  has  made  his  election  (to  have  Stichus,  suppose)  but.  has  neg- 
lected or  refused  to  accept  Stichus :  now  if  Stichus  dies  he  cannot  de- 
mand Pamphilus.  It  is  the  same  as  if  there  had  been  a  single  promise. 
and  the  performance  made  impossible  by  the  promisee's  default.  The 
same  rule  is  given  in  another  passage  (z). 

(s)   Barkworth  v.  Young   (1856)   4  in    eo   mortuo,    quem    petitor    elegit; 

Drew.  1,  25,  26    L.  J.  Ch.  153.  tunc    enim     perinde    solus     ille    qui 

(u)  Broion  v.  Royal  Insurance  Co.  decessit  praebetur  ae  si  solus  in  ob- 

( 1859 )   p.  *408,  above.  ligationem    deductus    fuisset.      Quod 

(x)  Save  that  in  the  ease  of  an  si  promissoris  fuerit  electio,  de- 
alternative  obligation  to  deliver  spe-  functo  altero  (i.e.  before  election 
cine  objects  at  the  promisor's  elec-  made),  qui  superest  aeque  peti  potest, 
tion  he  still  has  an  election  in  D.  46.  3.  de  solut.  et.  lib.  95  pr.  He 
solutione,  as  it  is  said,  i.e.  he  may  at  proceeds  to  this  curious  question : 
his  option  pay  the  value  of  that  What  if  one  dies  by  the  debtor's  de- 
which  has  perished.  See  Vangerow,  fault  before  election  made,  and  after- 
Pand.  §  569,  note  2  (3.  22  sqq.) ,  wards  the  other  dies  without  his  de- 
where  the  subject  is  fully  worked  fault?  No  action  can  be  maintained 
out.  on    the    stipulation,    but    there    is    a 

(y)    Papinian   says:    Stichum   aut  remedy  by  doli  actio. 
Pamphilum,    utrum    ego   velim,   dare  (z)     Stipulatus    sum    Damam    aut 

spondesf    altero    mortuo,    qui     vivit  Erotem    servum    dari,    cum    Damam 

solus  petetur,  nisi  si  mora  facta  sit  dares,    ego    quominus    acciperem    in 

45  State  r.  Worthington,  7  Ohio,  pt.  1,  171,  172. 

*6Jacquinet  v.  Boutron,  19  La.  Ann.  30;  Mill  Dam  Foundry  v.  Hovey,  21 
Pick.  417,  443. 


554  IMPOSSIBLE   AGREEMENTS. 

Conditional  contracts.  There  is  yet  something  to  be  said  of  the  treat- 
ment of  conditional  contracts  where  the  condition  is  or  becomes  im- 
possible. A  condition  may  be  defined  for  the  present  purpose  as  an 
iigreement  or  term  of  an  agreement  whereby  the  existence  of  a  contract 
is  made  to  depend  on  a  future  contingent  event  assigned  by  the  will 
of  the  parties  (a). 

433]  The  condition  may  be  either  that  an  event  shall  or  that  *ii; 
nhall  not  happen,  and  is  called  positive  or  negative  accordingly.  Now 
the  event  which  is  the  subject-matter  of  the  condition,  instead  of 
being  really  contingent,  may  be  necessary  or  impossible,  in  itself  or  in 
law.  But  the  negation  of  a  necessary  event  is  impossible  and  the 
negation  of  an  impossible  event  is  necessary.  It  therefore  depends 
further  on  the  positive  or  negative  character  of  the  contingency 
whether  the  condition  itself  is  necessary  or  impossible. 

In  what  ways  condition  may  be  necessary  or  impossible.      Thus    we    may 
have  conditional  promises  with  conditions  of  these  kinds: 
Necessary : 
(«)  By  affirmation  of  a  necessity.    As  a  promise  to  pay  100L,  "if 
the  sun  shall  rise  to-morrow." 

(/3)   By  negation  of  an  impossibility:     "If  J.  S.  does  not  climb 
to  the  moon,"  or  "  if  my  executor  does  not  sue  for  my  debt  to  him." 
Impossible : 

(y)  By  affirmation  of  an  impossibility :  "  If  J.  S.  shall  climb  to 
the  moon,"  or  "  if  J.  S.  shall  create  a  new  manor." 

(<5)  By  negation  of  a  necessity :  "  If  the  sun  shall  not  rise  to-mor- 
row," or  "  if  my  personal  estate  shall  not  be  liable  to  pay  my 
debts"  (&). 

It  is  obvious  that  as  a  matter  of  logical  construction  the  forms 
(a)  and  (  /? )  are  equivalent  to  unconditional  promises,  ( y)  and  (8) 
to  impossible  or  nugatory  promises.  And  so  we  find  it  dealt  with  by 
the  Eoman  law  (c).     It  is  equally  obvious  that   (still  as  a  matter 

mora    fui;    mortuus    est    Dama;    an  (c)    "  Si   impossibilis   condicio   ob- 

putes     me     ex     stipulatu     actionem  ligationibus     adieiatur,     nihil     valet 

habere?           Respondit,         secundum  stipulatio.      Impossibilis   autem   con- 

Massurii    Sabini    opinionem    puto   te  dicio    habetur,    cui    natura    impedi- 

ex   stipulatu   agere  non   posse ;    nam  mento  est  quo  minus  existat,  veluli 

is  recte  existimabat,  si  per  debitorem  si  quis   ita  dixerit:    Si  digit  caelum 

mora   non   esset,   quominus    id   quod  attigero,    dare    spondes?    At    si    ita 

debebat       solveret.       continuo       eum  stipuletur :         Si    digito    caelum    non 

debito   liberari.      D.   45.    1.    de   v.   o.  attigero,    dare    spondes?    pure    facta 

105.  obligatio   intellegitur   ideoque   statim 

(o)   Savigny,  Svst.  §  116  (3.  121);  petere    potest."      I.    3.    19.    de    inut. 

Pothier,  Obi.  '§   199.  stipul.  §  11. 

(6)     Slightly    modified    from    Sa- 
vigny, Syst.  §  121    (3.  156,  158). 


CONDITIONS.  555 

of  logical  construction)  there  is  nothing  to  prevent  the  condition 
from  having  its  regular  effect  if  the  event  is  or  becomes  impossible 
in  fact.  For  example,  "if  A.  shall  dig  1000  tons  of  clay  on  B.'s 
land  *in  every  year  for  the  next  seven  years :"  here  there  may  [434 
not  be  so  much  clay  to  be  dug  or  A.  may  die  in  the  first  year.  But 
a  promise  so  conditioned  is  perfectly  consistent  and  intelligible  with- 
out importing  any  further  qualification  into  it;  and  it  is  obviously 
more  difficult  to  infer  that  some  further  qualification  was  intended 
,  than  in  the  case  of  a  direct  and  unconditional  contract  by  A.  himself 
to  dig  so  much  clay. 

Direct  covenants  or  promises  dependent  on  express  conditions  must 
be  construed  with  reference  to  these  general  principles :  beyond  this 
no  rule  can  be  given  except  that  effect  is  to  be  given  so  far  as  possible 
to  the  real  meaning  of  the  parties  (d). 

Treatment  of  conditions  in  English  law.  Practically  the  discussion  in 
our  books  of  conditions  and  their  effect  on  the  legal  transactions  into 
which  they  enter  is  limited  to  the  following  sorts  of  questions : 

1.  What  contracts  are  really  conditional,  or  in  technical  language, 
what  amounts  to  a  condition  precedent  (d)  : 

2.  The  effect  of  conditions  and  conditional  limitations  in  convey- 
ances at  common  law  and  under  the  Statute  of  Uses  (which  topics  are 
obviously  beyond  our  present  scope) : 

3.  The  effect  of  conditions  in  bonds.  This  form  of  contract  is 
now  used  only  for  certain  special  purposes,  but  was  formerly  of  gen- 
eral application,  insomuch  that  almost  all  the  older  learning  on  the 
construction  and  performance  of  contracts  is  to  be  found  under  the 
head  of  conditions.  Here  there  are  some  peculiarities  which  call  for 
our  attention  in  this  place. 

Bonds  —  Difference  between  the  technical  form  and  the  real  meaning  of  the 
instrument.  So  far  as  the  form  goes,  a  bond  is  a  contract  dependent 
on  a  negative  condition.  In  the  first  instance  the  obligor  professes 
to  be  bound  to  the  obligee  in  a  sum  of  a  certain  amount.  Then  follows 
the  condition,  showing  that  if  a  certain  event  happens  (generally 
something  to  be  done  by  the  obligor)  the  bond  shall  be  void,  but  other- 
wise it  shall  *remain  in  force.  "  The  condition  is  subsequent  to  [435 
the  legal  obligation;  if  the  condition  be  not  fulfilled  the  obligation 
remains"  (e).    This  is  in  terms  a  promise,  stated  in  a  singularly  in- 

(d)  Supra,  Ch.  VI.,  p.  260.  wick  v.  Swindells    (1835)    3  A.  &  E. 

(e)  Sir  W.   W.   Follett,   arg.   Bes-       873,  53  R.  R.  200. 


556  IMPOSSIBLE    AGREEMENTS. 

volved  way,  to  pay  a  sum  of  money  if  the  event  mentioned  in  the 
condition  does  not  happen.  But  this,  as  everybody  knows,  is  not  the 
true  nature  of  the  contract.  The  object  is  to  secure  the  performance 
of  the  condition,  and  the  real  meaning  of  the  parties  is  that  the 
obligor  contracts  to  perform  it  under  the  conventional  sanction  of  a 
penal  sum.  This  view  is  fully  recognized  by  the  modern  statutes 
regulating  actions  on  bonds,  by  which  the  penalty  is  treated  as  a  mere 
security  for  the  performance  of  the  contract  or  the  payment  of  dam- 
ages in  default  (/).  On  principle,  therefore,  a  bond  with  an  impos-, 
sible  condition,  or  a  condition  which  becomes  impossible,  should  be 
dealt  with  just  as  if  it  were  a  direct  covenant  to  perform  that  which 
is  or  becomes  impossible.  In  the  former  case  the  bond  should  be 
void,  in  the  latter  the  rule  in  Taylor  v.  Caldwell  (g)  would  determine 
whether  it  were  avoided  or  not.  We  have  seen  that  where  the  con- 
dition is  illegal  our  Courts  have  found  no  difficulty  in  considering 
the  bond  as  what  in  truth  it  is:  an  agreement  to  do  the  illegal  act. 
But  in  the  case  of  impossibility  the  law  has  stuck  at  the  merely  formal 
view  of  a  bond  as  a  contract  to  pay  the  penal  sum,  subject  to  be  avoided 
by  the  performance  of  the  condition;  accordingly  if  the  condition  is 
impossible  either  in  itself  or  in  law  the  obligation  remains  absolute. 

"  If  a  man  be  bound  in  an  obligation,  &c,  with  condition  that  if 
the  obligor  do  go  from  the  church  of  St.  Peter  in  Westminster  to  the 
church  of  St.  Peter  in  Pome  within  three  hours,  that  then  the  obliga- 
tion shall  be  void.  The  condition  is  void  and  impossible  and  the 
436]  obligation  standeth  *good."  So,  again,  if  the  condition  is 
against  a  maxim  or  rule  in  law,  as  "  if  a  man  be  bound  with  a  con- 
dition to  enfeoff  his  wife,  the  condition  is  void  and  against  law, 
because  it  is  against  the  maxim  in  law,  and  yet  the  bond  is  good  "  (7i). 

In  the  same  way,  "  when  the  condition  of  an  obligation  is  so  in- 
sensible and  incertain  that  the  meaning  cannot  be  known,  there  the 
condition  only  is  void  and  the  obligation  good"  (i).47 

Subsequent  impossibility  is  a  discharge.  On  the  point  of  subsequent  im- 
possibility, however,  the  strictly  formal  view  is  abandoned,  and  an 

(f)  As  to  these,  see  Preston  v.  the  same  effect  Shepp.  Touchst.  372. 
Dania  (1872)  L.  R.  8  Ex.  19,  42  L.  J.  As  to  going  to  Rome  the  more  usual 
Ex.  33.  phrase  in  the  old  books  is  three  days ; 

(g)  (1863)  -3  B.  &  S.  826,  supra,  which  is  now  inapplicable,  the  course 
p.  *415.  of  post  from  London  to   Rome  being 

(h)    Co.   Lit.    206    6    (some   of   the       less  than  forty-eight  hours. 
&c.'s  in  Coke's  text  are  omitted).    To  (i)  Shepp.  Touchst.  373. 

«  See  further,  p.  356. 


CONDITIONS.  557 

opposite  result  arrived  at,  but  still  in  an  artificial  way.  The  condition, 
it  is  said,  is  for  the  benefit  of  the  obligor,  and  the  performance  thereof 
shall  save  the  bond;  therefore  he  shall  not  lose  the  benefit  of  it  by  the 
act  of  God  (k),  and  where  the  condition  is  possible  at  the  date  of  the 
instrument,  "  and  before  the  same  can  be  performed  the  condition 
becomes  impossible  by  the  act  of  God,  or  of  the  law,  or  of  the  obligee, 
there  the  obligation  is  saved"  (I)  ;48  or  as  another  book  has  it,  "the 
obligation  and  the  condition  both  are  become  void"  (m).  "  Gen- 
eially  if  a  condition  that  was  possible  when  made  is  become  impossible 
by  the  act  of  God,  the  obligation  is  discharged"  (n).  As  to  the  acts 
of  the  law  and  of  the  obligee  this  agrees  with  the  doctrine  of  con- 
tracts in  general:  as  to  inevitable  accident  it  establishes  a  different 
rule.  The  decision  in  Laughter's  case  {supra,  p.  *431),  was  an  appli- 
cation of  the  same  view,  and  it  therefore  appears  that  there  should 
never  have  been  any  question  of  extending  it  to  direct  covenants 
or  contracts. 

The  peculiar  law  thus  laid  down  is  distinctly  recognized  *by  [437 
modern  authorities  (o).  However,  if  a  bond  appears  on  the  face  of 
ii  to  be  given  to  secure  the  performance  of  an  agreement  which  it 
recites,  the  condition  will  take  effect  according  to  the  true  intention 

(k)  This  reasoning  appears  both  in  (n)    Ro.  Ab.   1.   449,   G,  pi.   1;   re- 

Laughter's  case,  5  Co.  Rep.  21  6,  and       peated  on  p.  451,  I,  pi.  1. 

Lamb's  case,  ib.  23  6.  (o)    1  Wms.  Saund.  238;   per  Wil- 

{l)  Co.  Lit.  206  a.  Hams  J.  Brown  v.  Mayor  of  London 

(m)  Shepp.  Touehst.  372.  (1861)    9  C.  B.  N.  S.  726,  747,  30  L. 

J.  C.  P.  225,  230. 

« Taylor  c.  Taintor,  16  Wall.  366,  369;  Belding  v.  State,  25  Ark.  315; 
Marshall  v.  Craig,  1  Bibb,  386,  390;  Hopkins  v.  Commonwealth,  Ct.  App.  Ky. 
18  C.  L.  J.  77;  Badlam  v.  Tucker,  1  Pick.  284;  Brown  v.  Dillehanty,  4  S.  &  M. 
713;  Blake  v.  Niles,  13  N.  H.  459;  Whitney  i:  Spencer,  4  Cow.  39;  People  v. 
Bartlett,  3  Hill,  570;  People  v.  Manning,  8  Cow.  297;  People  v.  Tubbs,  37 
N.  Y.  586;  Scully  v.  Kirkpatrick,  79  Pa.  324,  331.  When  a  person  arrested  in 
one  State  on  a  criminal  charge  and  released  under  his  own  and  his  bail's 
recognizance  that  he  will  appear  on  a  day  fixed,  and  abide  the  order  and  judg- 
ment of  the  court,  on  process  from  which  he  has  been  arrested,  goes  into  an- 
other State,  and  while  there  is,  on  the  requisition  of  the  Governor  of  a  third 
state,  for  a  crime  committed  in  it,  delivered  up,  and  is  convicted  and  im- 
prisoned in  such  third  State,  the  condition  of  the  recognizance  has  not  become 
impossible  by  act  of  law  so  as  to  discharge  the  bail;  "the  law  which  renders 
the  performance  impossible,  and  therefore  excuses  failure,  must  be  a  law 
operative  in  the  State  where  the  obligation  was  assumed,  and  obligatory  in  its 
effect  upon  her  authorities."  Taylor  v.  Taintor,  16  Wall.  366;  S.  C,  36  Conn. 
242.  And  see  United  States  v.  Van  Fossen,  1  Dill.  406 ;  Cain  v.  State,  55  Ala. 
170;  Withrow  v.  Commonwealth,  1  Bush,  17;  State  v.  Horn,  70  Mo.  466; 
Devine  v.  State,  5  Sneed,  623.  Arrest  and  detention  of  the  principal  by  Fed- 
eral authority  precluding  his  appearance  will  discharge  the  bail.  Belding  v. 
State,  25  Ark.  315;  Commonwealth  v.  Terry,  2  Duv.  383;  Commonwealth  v. 
Webster,  1  Bush,  616;  Commonwealth  v.  Overby,  80  Ky.  208.  Cp.  In  re  James 
C.  C.  U.  S.  W.  D.  Mo.,  18  Fed.  Rep.  853 ;  Shook  v.  People,  39  111.  443.    Subse- 


558  mpo.ssiBLE  agreements. 

of  the   agreement  rather  than  the  technical   construction  resulting 
from  the  form  of  the  instrument  (p). 

Alternative  conditions,  and  default  of  parties;  same  law  as  for  ordinary 
contracts.  Alternative  conditions,  at  any  rate  as  to  immediate  impos- 
sibility, and  conditions  made  impossible  by  the  default  of  the  parties, 
or  otherwise  than  by  the  "  act  of  God,"  are  treated  in  the  same  way 
as  direct  promises.49 

"  When  a  condition  becomes  impossible  by  the  act  of  the  obligor,  such 
impossibility  forms  no  answer  to  an  action  on  the  bond"  (g).50 

"  When  the  condition  of  an  obligation  is  to  do  two  things  by  a  day,  and 
at  the  time  of  making  the  obligation  both  of  them  are  possible,  but  after,  and 
before  the  time  when  the  same  are  to  be  done,  one  of  the  things  is  become 
impossible  by  the  act  of  God,  or  by  the  sole  act  and  laches  of  the  obligee  him- 
self; in  this  case  the  obligor  is  not  bound  to  do  the  other  thing  that  is 
possible,  but  is  discharged  of  the  whole  obligation.  But  if  at  the  time  of 
making  of  the  obligation  one  of  the  things  is  and  the  other  of  the  things  is  not 
possible  to  be  done,  he  must  perform  that  which  is  possible.  And  if  in  the 
first  case  one  of  the  things  become  impossible  afterwards  by  the  act  of  the 
obligor  or  a  stranger,  the  obligor  must  see  that  he  do  the  other  thing  at  his 
peril."  "  If  the  condition  be  that  A.  shall  marry  B.  by  a  day,  and  before  the 
day  the  obligor  himself  doth  marry  her:  in  this  case  the  condition  is  broken. 
But  if  the  obligee  marry  her  before  the  day,  the  obligation  is  discharged  "  (r) . 

"  If  a  man  is  bound  to  me  in  201.  on  condition  that  he  pay  me  10?.,  in  that 
case  if  he  tender  me  the  money  and  I  refuse  he  is  altogether  excused  from  the 
obligation,  because  the  default  is  on  my  part  who  am  the  obligee"  (s). 

Indian  Contract  Act.  The  Indian  Contract  Act,  s.  56,  is  so  worded 
as  to  extend  the  rule  in  Taylor  v.  Caldwell  to  every  kind  of  contract. 

(p)    Besicick   v.    Swindells    (1835)  (r)   Shepp.  Touchst.  382,  392. 

Ex.  Ch.  3  A.  &  E.  868,  53  R.  R.  196.  (s)  Brian  C.J.  22  Ed.  IV.  26. 

(q)  Per  Cur.  Beswick  v.  Swindells, 
3  A.  &  E.  at  p.  883,  53  R.  R.  207. 

quent  arrest  and  detention  under  the  law  of  the  same  State,  or  delivery  of  the 
principal  by  the  Governor  of  the  same  State  on  requisition  of  the  Governor  of 
another  state  is  such  an  act  of  the  law  as  discharges  the  bail  from  liability. 
Smith  v.  Kitchens,  51  Ga.  158;  Medlin  v.  Commonwealth,  11  Bush,  605;  Way 
v.  Wright,  5  Met.  380;  Fuller  v.  Davis,  1  Gray,  612;  State  t.  Allen,  2  Humph. 
258;  State  v.  Adams,  3  Head,  259;  Peacock  v.  State,  44  Tex.  11;  Caldwell's 
Case,  14  Gratt.  698;  People  v.  Bartlett,  3  Hill,  570.  Cp.  Ingram  v.  State,  27 
Ala.  17;  Mix  v.  People,  26  111.  32;  Wheeler  r.  State,  38  Tex.  173.  See  further 
as  to  excuses  for  non-performance  of  a  bail  bond,  99  Am.  Dec.  216,  n. 

49 "  The  rule  of  law  is  that  where  the  condition  of  a  bond  is  to  do  one  of 
two  things,  if  one  cannot  be  performed,  unless  it  has  become  impossible  by  the 
act  of  the  obligee,  the  obligor  is  bound  to  perform  the  other."  Mill  Dam 
Foundry  v.  Hovey,  21  Pick.  417,  443. 

50  When  a  bond  is  executed  with  a  condition  that  it  shall  become  absolute  in 
case  certain  services  are  performed  by  the  obligee  within  a.  specified  time,  the 
refusal  of  the  obligor  to  accept  performance  will  have  the  effect  of  actual  per- 
formance, so  far  as  to  give  the  obligee  a  right  of  action  upon  the  bond. 
Boardman  v.  Keeler,  21  Vt.  77;  Tasker  v.  Bartlett,  5  Cush.  359. 


EXTENSION    OF    COMMON    LAW.  559 

This  is  a  wide  and  (it  must  be  assumed)  a  deliberate  departure  from 
the  common  law.51 

51  There  are  a  few  cases  in  the  United  States  which  seem  to  involve  a  similar 
extension  of  the  law  by  applying  the  rule  of  Taylor  v.  Caldwell  to  the  con- 
templated means  of  performance,  whatever  their  nature. 

"  There  are  many  cases  holding  that  the  continued  existence  of  the  means  of 
performance,  or  of  the  subject-matter  to  which  the  contract  relates,  is  an 
implied  condition,  and  the  rule  seems  to  rest  on  the  presumption  that  the  par- 
ties necessarily  intended  an  exception,  and,  as  said  in  Dexter  v.  Norton,  47 
N.  Y.  62,  it  operates  '  to  carry  out  the  intention  of  the  parties  under  most 
circumstances,  and  is  more  just  than  the  contrary  rule.'  "  Dolan  v.  Rodgers 
149  N.  Y.  4S9,  403.  See  also  Clarksville  Land  Co.  v.  Harriman,  44  Atl.  Rep. 
527  (N.  II.)  ;  Herter  r.  Mullen,  159  N.  Y.  28.  Cp.  Ashmore  v.  Cox,  [18991 
1  Q.  B.  436;  Robson  r.  Mississippi  Logging  Co.,  61  Fed.  Rep.  893;  Keystone 
Lumber,  &c.  Co.  v.  Dole,  43  Mich.  370;  Shear  v.  Wright,  60  Mich.  159;  Eppens 
v.  Littlejohn,  164  N.  Y.  187;  Ellis  v.  Midland  Ry.  Co.,  7  Ont.  App.  464. 


560 


'MISTAKE. 


438] 


*CHAPTER  IX. 

Mistake. 

Paet  I. —  Of  Mistake  in  General. 


561 
564 


PAGE. 

Classification    of    conditions    af- 
fecting   validity    of    consent 
in        agreement :        Mistake, 
Fraud,  &c, 
A.  Mistake  in  general, 

Generally  it  is  in  itself  inopera- 
tive either  to  avoid  civil  lia- 
bilities (Except  in  certain 
special  cases,  and  except  so 
far  as  in  the  case  of  pur- 
chase for  value  without  no- 
tice ignorance  is  a  condition 
of  acquiring  rights), 
to  take  away  or  alter  existing 
rights, 


Or 


564 


570 


PAGE. 

Or  to  alter  construction  of  eon- 
tract, 

Saving  as  to  variation  by  mutual 
consent, 

Special  cases  where  mistake  im- 
portant, 
B.    Mistake    of    Fact    and    of 
Law, 

Limits  of  the  distinction:  where 
certainly  or  probably  not  ap- 
plicable, 

Common  mistake  and  rectifica- 
tion of  instruments, 

Renunciation  of  rights, 

Recovering  back  money  paid, 


57'2 


572 


574 


574 


575 

576 

577 
579 


Part  II. —  Mistake  as  Excluding  True  Consent. 


Division  of  cases  under  this  head,  581 

A.  Error  as  to  nature  of  trans- 

action, 583 

Thoroughgood's  case,  583 

Foster  v.  Mackinnon,  585 

Cases  in  equity,  587 

Error    as    to    legal    character    of 

transaction,  589 

B.  Error   as   to   the   person   of 
the  other  party,  590 

Analogous  doctrines:  satisfaction 

by  stranger,  593 

Personal  contracts  not  transfer- 
able, 594 

Agency,  597 

C.  Error    as    to    the    subject- 
matter,  597 

With  regard  to  identity  of  spe- 
cific thing,  599 

Inclusion   of  parcels   by  mistake 

on  sale  of  land,  600 

Contracts  to  take  shares  excep- 
tional, 602 

Error  with  regard  to  kind,  quan- 
tity, &c,  603 

Error  in  price,  605 


606 


609 


Error  as  to  quality  inoperative 
unless  material  and  common 
to  both   parties, 

Even  if  error  of  one  party  known 
to,  but  not  caused  by,  the 
other, 

Cases  distinguished  where  mis- 
description of  estate  on  sale 
entitles  purchaser  to  rescind,  611 

Error  as  to  existence  of  subject- 
matter,  611 

Purchase  of  one's  own  property,  615 

Herein  of  ignorance  of  law: 
Cooper  v.  Phibbs, 

Assignments  of  leases  for  lives, 

Where  only  one  party  is  ignorant 
of  the  material  fact, 

Where  fundamental  error  pro- 
duced by  fraud  or  misrep- 
resentation, 

Error  as  to  sample  in  case  of  sale 
by  sample, 

Remedies  of  party  to  void  agree- 
ment, 620 

Election  to  adopt  agreement,  621 


615 
617 

617 


619 


619 


MISTAKE. 


561 


Part  III. —  Mistake  in  Expressing  True  Consent. 


PAGE. 

Correction  of  mistake  in  express- 
ing intention,  622 

1.  Rules  of  construction  common 

to  law  and  equity,  622 

Effect  given  to  general  intent,  623 

2.  Peculiar  rules  of  construction 

in  equity,  625 

A.  Restriction       of       general 

words,  625 

B.  Stipulations   as  to  time,        626 
Where    time   of   essence    of 

contract,  628 

Indian  Contract  Act  there- 
on, 629 

C.  Relief   against  penalties,        629 

3.  Peculiar  defences  and  remedies 

derived  from  equity,  633 

A.  Defence      against      specific 

performance,  633 

Effect  of  Statute  of  Frauds 
herein,  635 


of 


PAGE. 

instru- 

636 


Rectification 
ments, 

Oral  evidence  how  far  ad- 
missible, 

Real  intention  must  be  dis- 
tinctly proved,  and  com- 
mon to  all  parties, 

Quasi  estoppel  of  one  party 
acting  as  other's  agent  in 
framing   instrument, 

Reformation  of  settlements,  642 

Who  is  entitled  to  have 
deed  rectified, 

Rectification  as  alternative 
to  cancellation, 

Disentailing'  deeds, 

Agreement  executed  by 
Court  cannot  be  rectified, 

Consent  orders, 


637 


639 


641 


643 

644 
644 

644 
645 


Part  I.     Of  Mistake  in  General. 

Conditions  affecting  reality  or  freedom  of  consent.  Hitherto  we  have 
been  dealing  with  perfectly  general  conditions  for  the  formation  or 
subsistence  of  a  valid  contract,  and  as  a  consequence  of  this  the 
rules  of  law  we  have  had  occasion  to  explain  are  for  the  most  part 
collateral  or  even  paramount  to  the  actual  intention  or  belief  of  the 
parties.  Apparent  exceptions  occur,  but  mostly  in  cases  where  the 
rules  are  found  to  be  reducible  to  rules  of  construction.  We  have 
had  before  us,  on  the  whole,  the  purely  objective  conditions  of  con- 
tract; the  questions  which  must  be  answered  before  the  law  can  so 
much  as  think  of  giving  effect  to  the  consent  of  the  parties.  We  now 
come  to  a  set  of  conditions  which  by  comparison  with  the  foregoing 
ones  may  be  called  subjective.  The  consent  of  the  parties  is  now 
the  central  point  of  the  inquiry,  and  our  task  is  to  examine  how  the 
legal  validity  of  an  agreement  is  affected  when  the  consent  or  apparent 
consent  is  determined  by  certain  causes. 

The  existence  of  consent  is  ascertained  in  the  first  instance  by 
the  rules  and  principles  set  forth  in  the  first  chapter.  When  the  re- 
quirements there  stated  are  satisfied  by  a  proposal  duly  accepted, 
there  is  on  the  face  of  things  a  good  agreement,  and  the  mutual  com- 
munications of  the  parties  are  taken  as  the  expression  of  a  valid 
consent.  But  we  still  require  other  conditions  in  order  to  make  the 
36 


563  MISTAKE. 

consent  binding  on  him  who  gives  it,  although  their  absence  is  in 
439]  general  not  to  be  assumed,  and  the  party  seeking  to  ^enforce 
a  contract  is  not  expected  to  give  affirmative  proof  that  they  have 
been  satisfied.  Not  only  must  there  be  consent,  but  the  consent 
must  be  true,  full,  and  free. 

The  reality  and  completeness  of  consent  may  be  affected  (a)  by 
ignorance,  that  is,  by  wrong  belief  or  mere  absence  of  information 
cr  belief  as  to  some  fact  material  to  the  agreement.  Freedom  of 
consent  may  be  affected  by  fear  or  by  the  consenting  party  being, 
though  not  in  bodily  or  immediate  fear,  yet  so  much  under  the  other's 
power,  or  in  dependence  on  him,  as  not  to  be  in  a  position  to  exercise 
his  own  deliberate  choice.  Now  the  results  are  different  according  as 
these  states  of  mind  are  or  are  not  due  to  the  conduct  of  the  other 
party  (or,  in  certain  cases,  to  a  relation  between  the  parties  inde- 
pendent of  the  particular  occasion).  When  they  are  so,  the  legal 
aspect  of  the  case  is  altogether  changed,  and  we  look  to  that  other 
party's  conduct  or  position  rather  than  to  the  state  of  mind  induced 
by  it.  We  speak  not  of  Mistake  induced  by  Fraud,  but  of  Fraud 
simply,  as  a  ground  for  avoiding  contracts,  though  there  can  be  no 
Fraud  where  there  is  no  Mistake. 

Classification  and  legal  consequences  of  Mistake,  Fraud,  &c.       We  have 

then  the  following  combinations : 

A.  Ignorance. 

A.  Not  caused  by  act  ( b )   of  other  party,  is  referred 

in  law  to  the  head  of  Mistake. 
Caused  by  act   ( 6 )   of  other  party 

B.  without  wrongful  intention.  Misrepresentation. 
c.                   with  wrongful  intention.  Fraud. 

B.  Fear,  or  dependence  excluding  freedom  of  action. 

Not   caused  by  acts  of  other   party  or  relation 

between  the  parties.  (Immaterial.) 

D.  Caused  by  such  acts.  Duress  or  Coercion. 

E.  By  such  relation.  Undue  influence. 

440]  *The  legal  consequences  of  these  states  of  things  are  exceed- 
ingly various. 

(a)   It  is  quite  wrong,  as  Savigny  Lord    Cranworth,   Boyse  v.   Bossbor- 

has  shown,  to  say  that  a  consent  de-  ough   (1856-7)    6  H.  L.  C.  at  p.  44, 

termined  by  mistake,  fraud,  or  coer-  and  per   Lord   Chelmsford,   Oahes  v. 

cion    is    no    consent.      Syst.    §§    114,  Turquand    (1867)    L.   R.   2   H.   L.   at 

115    (3,   98  sqq.).     If  it  were  so  the  p.  349. 

agreement  would  be   absolutely  void  (b)    It  will  be  seen  hereafter  that 

in  »U  cases:   a  reductio  ad  absurdum  omissions  are  equivalent  to  acts   for 

which   is  no  less   complete  for   Eng-  this   purpose   in   certain    exceptional 

lish    than  for  Roman   law.     See  per  cases. 


GENERAL    PRINCIPLES.  563 

A.  Mistake  does  not  of  itself  affect  the  validity  of  contracts  at 
all  (c).  But  mistake  may  be  such  as  to  prevent  any  real  agreement 
from  being  formed ;  in  which  case  the  agreement  is  void :  or  mistake 
may  occur  in  the  expression  of  a  real  agreement;  in  which  case, 
subject  to  rules  of  evidence,  the  mistake  can  be  rectified.1  There  are 
also  rules  in  the  construction  of  certain  species  of  contracts  which 
are  founded  on  the  assumption  that  the  expressions  used  do  not 
correspond  to  the  real  intention  (d). 

B.  Contracts  induced  by  misrepresentation  are  not  void.  In  many 
cases,  and  under  conditions  depending  on  the  nature  of  the  contract, 
they  are  voidable  at  the  option  of  the  party  misled. 

c.  Contracts  induced  by  fraud  are  not  void,  but  voidable  at  the 
option  of  the  party  deceived. 

D,  E.  Contracts  entered  into  under  coercion  or  undue  influence  are 
not  void,  but  voidable  at  the  option  of  the  party  on  whom  coercion 
or  undue  influence  is  exercised. 

It  is  now  seldom,  if  ever,  necessary  or  useful  to  consider  the  former 
differences  between  the  doctrines  of  the  common  law  and  those  of 
equity. 

These  topics  have  now  to  be  considered  in  order.  And  first  of 
Mistake. 

The  whole  topic  was  formerly  surrounded  with  a  great  deal  of  confusion 
in  our  books,  though  on  the  whole  of  a  verbal  kind,  and  more  embarrassing 
to  students  than  to  practitioners.  Exactly  the  same  kind  of  confusion  pre- 
vailed in  the  civil  law  (whence  indeed  some  of  it  passed  on  to  our  own)  until 
Savigny  cleared  it  up  in  the  masterly  essay  which  forms  the  Appendix  to  the 
third  volume  of  his  System.  The  principles  there  established  by  him  ha"e  been 
fully  adopted  by  later  writers  (e),  and  appear  to  be  in  the  main  applicable 
to  the  law  of  England. 

*The  difficulties  which  have  arisen  as  well  with  us  as  in  the  civil  law  [441 
may  be  accounted  for  under  the  following  heads : 

(1.)  Confusion  of  proximate  with  remote  causes  of  legal  conseqeunces :  in 
other  words,  of  cases  where  mistake  has  legal  results  of  its  own  with  cases 
where  it  determines  the  presence  of  some  other  condition  from  which  legal 
results  follow,  or  the  absence  of  some  other  condition  from  which  legal  results 
would  follow,  or  even  where  it  is  absolutely  irrelevant. 

(2.)  The  assertion  of  propositions  as  general  rules  which  ought  to  be  taken 
with  reference  only  to  particular  effects  of  mistake  in  particular  classes  of 

(c)  Just  as  fear,  merely  as  a  state  this  does  not  concern  English  stu- 
of  mind  in  the  party,  is  in  itself  im-  dents.  Vangerow  gives  the  general 
material.  As  Fear  is  to  Coercion,  so  doctrine  (Pand.  §  83,  1.  116  sqq.) 
is  Mistake  to  Fraud.  Sav.  Syst.  3.  and  its  special  application  to  con- 
116.  tract    (16.    §   604,  3.  275)    in  a  com- 

(d)  P.  *257,  above.  pact  and  useful  form.     For  the  old 

(e)  Some  of  his  conjectural  deal-  difficulties,  cp.  Grotius  De  lure  B.  et 
ings  with  specific  anomalies  in  the  P.  1.  ii.  c.  11,  6.  "  De  pacto  errantis 
Roman  texts  are  at  least  daring,  but  perplexa  satis  tractatio  est." 

1  This  is  quoted  with  approval  in  Curtis  r.  Albee,  167  N.  Y.  360,  365.    ■ 


564  MISTAKE. 

cases.  Such  are  the  maxim  Non  videntur  qui  errant  consentire  and  other 
similar  expressions,  and  to  some  extent  the  distinction  between  ignorance  of 
fact  and  of  law  (f ) . 

(3.)  Omission  to  assign  an  exact  meaning  to  the  term  "ignorance  of  law" 
in  those  cases  where  the  distinction  between  ignorance  of  law  and  ignorance 
of  fact  is  material  (the  true  rule,  affirmed  for  the  Roman  law  by  Savigny, 
and  in  a  slightly  different  form  for  English  law  by  Lord  Westbury  (g),  being 
that  "  ignorance  of  law  "  means  only  ignorance  of  a  general  rule  of  law,  not 
ignorance  of  a  right  depending  on  questions  of  mixed  law  and  fact,  or  on  the 
true  construction  of  a  particular  instrument). 

It  is  needless  to  point  out  in  detail  how  these  influences  have  operated  on 
our  books  and  even  on  judicial  expressions  of  the  law.  We  rather  proceed  to 
deal  with  the  matter  affirmatively  on  that  which  appears  to  us  its  true 
footing. 

A.  Mistake  in  general. 

General  rule:  Mistake  as  such  inoperative.  The  general  rule  of  pri- 
vate law  is  that  mistake  as  such  has  no  legal  effects  at  all.  This  may- 
be more  definitely  expressed  as  follows: 

When  an  act  is  done  under  a  mistake,  the  mistake  does  not  either 
add  anything  to  or  take  away  anything  from  the  legal  consequences 
of  that  act  either  as  regards  any  right  of  other  persons  or  any  liability 
of  the  person  doing  it,  nor  does  it  produce  any  special  consequences 
of  its  own ; 

442  J     *  Except  where  knowledge  is  a  condition  precedent  of  legal  consequences. 

Unless  knowledge  of  something  which  the  mistake  prevents  from 
being  known,  or  an  intention  necessarily  depending  on  such  knowl- 
edge, be  from  the  nature  of  the  particular  act  a  condition  precedent 
to  the  arising  of  some  right  or  duty  under  it. 

Special  exceptions  to  the  rule  exist,  but  even  these  are  founded  on 
special  reasons  beside,  though  connected  with,  the  mistake  itself. 

There  are  abundant  examples  to  show  the  truth  of  this  proposition 
in  both  its  branches. 

As  to  the  position  of  the  person  acting  under  mistake.  First,  mistake  is 
in  general  inoperative  as  to  the  legal  position  or  liability  of  the 
party  doing  an  act.  We  must  premise  that  a  large  class  of  cases  is 
altogether  outside  this  question,  as  appears  by  the  qualification  with 
which  the  rule  has  just  been  stated;  those,  namely,  where  a  liability 
attaches  not  to  the  doing  of  an  act  in  itself,  but  to  the  doing  of  it 
knowingly.  There,  if  the  act  is  done  without  knowledge,  the  offence 
or  wrong  is  not  committed,  and  no  liability  arises.     It  is  not  that 

(f)    See   Savigny's   Appendix,   Nos.  in  the  later  case  of  Earl  Beauchamp 

VII.,  VIII.  Syst.   3.   342,  344.  v.   Winn    (1873)    L.   R.   6   H.   L.   223, 

ig)    Cooper  v.  Phihbs   (1867)   L.  R.  really  add  little  or  nothing. 
2  H.  L.  at  p.  170:  to  which  the  dicta 


IGNORANCE    NO    EXCUSE.  565 

ignorance  is  an  excuse  for  the  wrongful  act,  but  that  there  is  no 
wrongful  act  at  all  (h). 

Wrongful  acts:  ignorance  in  general  no  excuse.  It  is  certain  that  igno- 
rance is  as  a  rule  no  excuse  as  regards  either  the  liabilities  of  a  quasi- 
criminal  kind  which  arise  under  penal  statutes  (i)  or  such  as  are 
purely  civil.  Thus  ignorance  of  the  real  ownership  of  property  is  no 
defence  to  an  action  for  its  recovery,  except  for  carriers  and  a  few 
other  classes  of  persons  exercising  public  employments  of  a  like 
nature,  who  by  the  necessity  of  the  case  *are  specially  privi-  [443 
leged  (fc).2  Again,  railway  companies  and  other  employers  have  in 
many  cases  been  held  liable  for  acts  of  their  servants  done  as  in 
the  exercise  of  their  regular  emplojTnent,  and  without  any  lawful 
intention,  but  in  truth  unlawful  by  reason  of  a  mistake  on  the  part 
of  the  servant :  the  act  being  one  which,  if  the  state  of  circumstances 
supposed  by  him  did  exist,  would  be  within  the  scope  of  his  lawful 
authority  (l).s  Of  course  the  servant  himself  is  equally  liable.  Here, 
indeed,  it  looks  at  first  sight  as  if  the  mistake  gave  rise  to  the 
employer's  liability.  For  the  act,  if  done  with  knowledge  of  the 
facts,  and  so  merely  wrongful  in  intention  as  well  as  in  effect,  would 
no  more  charge  the  employer  than  if  done  by  a  stranger.  But  it  is 
not  that  mistake  has  any  special  effect,  but  that  knowledge,  where 
it  exists,  takes  the  thing  done  out  of  the  class  of  authorized  acts. 

{h)    The  wider   question   how   far  pleaded    in    discharge    of    statutory 

and  under  what  conditions  ignorance  penalties,     see     Carter    v.     McLaren 

of  fact  excludes  criminal  liability  is  (1871)  L.  R.  2  Sc.  &  D.  125-6. 

beyond  the  scope  of  this  work,  and  {h)  Fowler  v.  Hollins   (1872)   Ex. 

toe-   important   to   be   discussed   inei-  Ch.,  L.  R.  7  Q.  B.  616,  affd.  in  H.  L. 

dentally.     See  thereon  Stephen's  Di-  nom.  Rollins  v.  Fowler   ( 1874-5 )    L. 

gest  of  Criminal  Law,  Art.  34,  Beg.  R.  7  H.  L.  757. 

v.   Prince    (1875)    L.   R.   2   C.   C.   R.  (I)    See  Pollock  on  Torts,   6th  ed. 

154,  44  L.  J.  M.  C.  122;  and  consult  87 — 90.      The    latest    reported    deci- 

0.  W.  Holmes,  The  Common  Law,  p.  sion  of  this  class  is  Sanson  v.  Waller 

49  sqq.  [1901]    1  K.  B.   390,  70  L.  J.  K.  B. 

(i)     That     ignorance     cannot    be  231. 

2  Barker  v.  Furlong,  [1891]  2  Ch.  172;  Consolidated  Co.  v.  Curtis,  [1892] 
1  Q.  B.  495;  Moore  v.  Hill,  38  Fed.  Rep.  330;  Rogers  v.  Huie,  1  Cal.  429; 
Swim  v.  Wilson,  90  Cal.  126;  Rogers  v.  Skipworth,  23  Ind.  311;  Fort  r.  Wells, 
14  Ind.  App.  531;  Coles  v.  Clark,  3  Cush.  399;  Robinson  v.  Bird,  15S  Mass. 
357;  Koch  v.  Branch,  44  Mo.  542;  Kramer  v.  Faulkner,  9  Mo.  App.  34; 
Bercich  v.  Marye,  9  Nev.  312;  Williams  v.  Merle,  11  Wend.  80;  Hoffman  v. 
Carow,  22  Wend.  285 ;  Pease  v.  Smith,  61  N.  Y.  477 ;  Courtis  r.  Cane,  32  Vt. 
232.    Cp.  Abernathy  v.  Wheeler,  92  Ky.  320 ;  Frizzell  v.  Rundle,  88  Tenn.  396. 

3  See  Hershey  i\  O'Neill,  36  Fed.  Rep.  168;  Blumenthal  t\  Shaw,  77  Fed. 
Rep.  954,  956;  Little  Rock,  etc.,  Co.  v.  Walker,  65  Ark.  144;  Higgins  v. 
Railway  Co.,  98  6a.  751;  Laird  v.  Farwell,  60  Kan.  512;  Barabasz  v.  Kabat, 
86  Md.  23;  President  v.  Green,  86  Md.  161;  Driscoll  v.  Carlin,  50  N.  J.  L. 
28;  Staples  v.  Schmid,  18  R.  I.  224;  Railway  Co.  v.  Conder,  23  Tex.  Civ. 
App.  488. 


566  MISTAKE. 

The  servant  who  commits  a  wilful  and  gratuitous  wrong,  or  goes  out 
of  his  way  to  do  something  which  if  the  facts  were  as  he  thought 
might  be  lawful  or  even  laudable,  but  which  he  has  no  charge  to  do, 
is  no  longer  about  his  master's  business. 

Exceptions  in  judicial  process,  but  limited.  Eeal  exceptions  are  the  fol- 
lowing:— An  officer  of  a  court  who  has  quasi-judicial  duties  to  per- 
form, such  as  those  of  a  trustee  in  bankruptcy,  is  not  personally 
answerable  for  money  paid  by  him  under  an  excusable  misappre- 
hension of  the  law  (m).  Also  an  officer  who  in  a  merely  ministerial 
capacity  executes  a  process  apparently  regular,  and  in  some  cases  a 
person  who  pays  money  under  compulsion  of  such  process,  not  know- 
ing the  want  of  jurisdiction,  is  protected,  as  it  is  but  reasonable  that 
he  should  be  (ft).4  But  this  special  exception  is  confined  within 
444]  *narrow  bounds.  Mistake  as  to  extraneous  facts,  such  as  the 
legal  character  of  persons  or  the  ownership  of  goods,  is  no  excuse.  It 
is  "a  well-established  rule  of  law  that  if  by  process  the  sheriff  is  desired 
to  seize  the  goods  of  A.,  and  he  takes  those  of  B.,  he  is  liable  to  be 
sued  in  trover  for  them  "  (o).B  A  sheriff  seized  under  a  fi.  fa.  goods 
supposed  to  belong  to  the  debtor  by  marital  right.  Afterwards  the 
supposed  wife  discovered  that  when  she  went  through  the  ceremony 
of  marriage  the  man  had  another  wife  living:  consequently  she 
was  still  the  sole  owner  of  the  goods  when  they  were  seized.  There- 
upon she  brought  trover  against  the  sheriff,  and  he  was  Held  liable, 
though  possibly  the  plaintiff  might  have  been  estopped  if  she  had 
asserted  at  the  time  that  she  was  the  wife  of  the  person  against  whom 
the  writ  issued  (p).  The  powers  of  a  Superior  Court,  under  express 
rules  or  otherwise,  to  correct  slips  in  its  own  proceedings,  is  on  a 
different  footing:  but  it  is  not  exercised  indiscriminately  (q). 

Ignorance  in  certain  cases  condition  of  acquiring  rights:  (purchase  for  value 
without  notice).  There  are  certain  classes  of  cases  in  which  it  may  be 
6aid  that  mistake,  or  at  any  rate  ignorance,  is  the  condition  of  ac- 

(m)    Ex  parte  Ogle    (1873)    L.  R.  700,  33  R.  R.  294,  297;   cp.  Garland 

8  Ch.  711,  42  L.  J.  Bk.  99.  v.  Carlisle  (1837)  4  CI.  &  F.  693. 

in)    See  Mayor  of  London  v.  Cox  (p)   Glasspoole  v.  Young   (1829)   9 

(1866)    L.  R.  2  H.  L.  at  p.  269,  36  B.  &  C.  696,  701,  33  R.  R.  294,  298. 

L.  J.  Ex.  225.  (q)    Ainsioorth  v.    Wilding    [1896] 

(o)    Lord   Tenterden    C.J.      Glass-  1  Ch.  673,  05  L.  J.  Ch.  432. 
poole  v.  Young  (1829)  9  B.  &  C.  696, 

4  That  payment  by  a  garnishee  of  a  judgment  against  him  void  for  want  of 
jurisdiction  is  no  protection  against  an  action  for  the  same  debt  by  the  at- 
tachment defendant,  see  Harmon  v.  Birchard,  8  Blackf.  418;  Richardson  v. 
Hickman,  22  Ind.  244 ;  Robertson  c.  Roberts,  1  A.  K.  Marsh.  247 ;  Loring  v. 
Folger,  7  Gray,  505;  Stimpson  r.  Maiden,  109  Mass.  313;  Laidlaw  v.  Morrow, 
44  Mich.  547  •   Ford  r.  Hurd,  4  S.  &  M.  683. 

5  Pike  v.  Colvin,  67  111.  227  ;  Burgin  v.  Burgin,  1  Ired.  L.  160,  453. 


IGNORANCE    AS    CONDITION    OF    TITLE.  567 

quiring  legal  or  equitable  rights.  These  are  the  exceptional  cases  in 
which  an  apparent  owner  having  a  defective  title,  or  even  no  title, 
can  give  to  a  purchaser  a  better  right  than  he  has  himself,  and  which 
fall  partly  under  the  rules  of  law  touching  market  overt  and  the 
transfer  of  negotiable  instruments,  partly  under  the  rule  of  equity 
that  the  purchase  for  valuable  consideration  without  notice  of  any 
legal  estate,  right,  or  advantage  is  "  an  absolute,  unqualified,  un- 
answerable defence  "  (r)  against  any  claim  to  restrict  the  exercise  or 
enjoyment  of  the  legal  rights  so  acquired  (s).  *These  rules  [445 
depend  on  special  reasons.  The  two  former  introduce  a  positive 
exception  to  the  ordinary  principles  of  legal  ownership,  for  the  pro- 
tection of  purchasers  and  the  convenience  of  trade.6  It  is  natural 
and  necessary  that  such  anomalous  privileges  should  be  conferred  only 
on  purchasers  in  good  faith.  Now  good  faith  on  the  purchaser's  part 
presupposes  ignorance  of  the  facts  which  negative  the  vendor's  appa- 
rent title.  It  may  be  doubted  on  principle,  indeed,  whether  this  igno- 
rance should  not  be  free  from  negligence  (in  other  words,  accom- 
panied with  "  good  faith  "  in  the  sense  of  the  Indian  Codes),  in  order 
to  entitle  him.  For  some  time  this  was  so  held  in  the  case  of  nego- 
tiable instruments,  but  is  so  no  longer  (t).  The  rule  of  equity, 
though  in  some  sort  analogous  to  this,  is  not  precisely  so.  A.  trans- 
fers legal  ownership  to  B.,  a  purchaser  for  value,  by  an  act  effectual 
for  that  purpose.  If  in  A.'s  hands  the  legal  ownership  is  fettered 
by  an  equitable  obligation  restraining  him  wholly  or  partially  from 
the  beneficial  enjoyment  of  it,  this  alone  will  not  impose  any  re- 
striction upon  B.  For  all  equitable  rights  and  duties  are,  in  their 
origin  and  proper  nature,  not  in  rem  but  in  personam:  they  confer 
obligationes  not  dominia.    But  if  B.  (by  himself  or  his  agent)  knows 

(r)    Pilcher  v.  Rawlins    (1872)    L.  rights.      But    it    does    not    apply    to 

R.  7  Ch.  259,  269,  41  L.  J.  Ch.  485,  those   remedies    for   the   enforcement 

per  James  L.J. ;    Blackwood  v.   Lon-  of  legal  rights  which  in  a  few  cases 

don    Chartered    Bank    of    Australia  have  been  administered  by  courts  of 

(1874)  L.  R.  5  P.  C.  92,  111,  43  L.  J.  equity    concurrently    with    courts    of 

P.  C.  25.  law.     Per  Lord  Westbury,  Phillips  v. 

(s)  This  applies  not  only  to  purely  Phillips   (1861)   4  D.  F.  &  J.  208,  31 

equitable   claims   but   to    all   purely  L.  J.  Ch.  321. 
equitable  remedies   incident  to  legal  (t)    See  Chap.  V.,  p.  *229,  above. 

6  "  We  are  not  aware  that  this  Saxon  institution  of  market  overt,  which  con- 
trols and  interferes  with  the  application  of  the  common  law,  has  ever  been 
recognized  in  any  of  the  United  States,  or  received  any  judicial  sanction." 
Ventress  v.  Smith,  10  Pet.  161,  176;  Fawcett  v.  Osborn,  32  111.  411;  Browning 
v.  Magill,  2  H.  &  J.  308;  Coombs  v.  Gorden,  59  Me.  Ill;  Dame  v.  Baldwin, 
8  Mass.  518;  Bryant  v.  Whitcher,  52  N.  H.  158;  Wheelwright  v.  Depeyster, 
1  Johns.  471;  2  Kent,  324;  Mowrey  v.  Walsh,  8  Cow.  238;  Hoffman  v.  Carow, 
20  Wend.  21;  22  Wend.  285,  294;  Roland  v.  Gundy,  5  Ohio,  202;  Easton  v. 
Worthington,  5  S.  &  R.  130;  Griffith  v.  Fowler,  18  Vt.  390. 


568  MISTAKE. 

of  the  equitable  liability,  or  if  the  circumstances  are  such  that  with 
reasonable  diligence  he  would  know  it,  then  he  makes  himself,  actively 
by  knowledge,  or  passively,  by  negligent  ignorance,  a  party  to  A.'s 
breach  of  duty.  In  such  case  he  cannot  rely  on  the  legal  right 
derived  from  A.,  and  disclaim  the  equitable  liability  which  he  knew 
or  ought  to  have  known  to  attach  to  it:  and  the  equitable  claim  is 
no  less  enforceable  against  him  than  it  formerly  was  against  A.  To 
be  accurate,  therefore,  we  should  say  not  that  an  exception  against 
446]  equitable  *claims  is  introduced  in  favour  of  innocent  pur- 
chasers, but  that  the  scope  of  equitable  claims  is  extended  against 
purchasers  who  are  not  innocent;  not  that  ignorance  is  a  condition 
of  acquiring  rights,  but  that  knowledge  (or  means  of  knowledge 
treated  as  equivalent  to  actual  knowledge)  is  a  condition  of  being 
laden  with  duties  which,  as  the  language  of  equity  has  it,  affect  the 
conscience  of  the  party  (w).7 

Limits  of  these  exceptional  rights.  Even  here  the  force  and  generality 
of  the  main  rule  is  shown  by  the  limits  set  to  the  exceptions.  The 
purchaser  of  any  legal  right  for  value  and  without  notice  is  to  that 
extent  absolutely  protected.  But  the  purchaser  of  an  equitable  in- 
terest, or  of  a  supposed  legal  right  which  turns  out  to  be  only  equi- 
table, must  yield  to  all  prior  equitable  rights  (x),s  however  blameless 

(«)    Observe  that  on  the  point  of  possession   of   title   deeds:    Heath  v. 

negligence  the  rule  of  equity  differs  Crealock   (1874)   L.  R.  10  Ch.  22,  44 

from   the  rules   of   law:    though,   as  L.  J.  Ch.  157;  Waldy  v.  Gray  (1875) 

the    subject-matter    of    the    rules    is  L.  R.  20  Eq.  238,  44  L.  J.  Ch.  394; 

different,  there  is  no  actual  conflict.  but  now  that  the  Court  can  adminis- 

(x)    Phillips  v.   Phillips    (1861)    4  ter  both  legal  and  equitable  remedies 

D.  F.  &  J.  208,  3-1  L.  J.  Ch.  321.     A  in  every  case  this  rule  has  lost  its 

court  of  equity  would  not  deprive  a  practical      importance :       Cooper     v. 

purchaser   for    value   without   notice  Vesey    (1882)    20  Ch.  Div.  611,  632, 

of  anything  he  had  actually  got,  e.g.  51  L.  J.  Ch.  862. 

1  See  an  article  on  Purchase  for  Value,  by  Professor  Ames,  in  1  Harv.  L. 
Rev.  1. 

8  "  Courts  of  equity  follow  the  common-law  rule  in  dealing  with  equitable 
interests;  so  that  a  purchaser  who  acquires  only  a  right  in  equity  takes  it 
subject  to  all  prior  equitable  claims,  whether  he  had  notice  of  them  or  not. 
It  is  only,  therefore,  when  an  equitable  claim  to  property  comes  into  compe- 
tition with  the  legal  ownership,  that  the  peculiar  doctrines  of  equity,  in  regard 
to  purchase  for  value  without  notice  are  called  into  action ;  and  even  then  the 
inquiry  is  not  whether  the  equitable  claimant,  but  whether  the  legal  owner 
is  a  purchaser  for  value  without  notice.  If  he  is.  he  takes  the  property  dis- 
charged from  the  adverse  equitable  claim ;  if  he  is  not,  he  is  bound  by  it.  In 
other  words,  purchase  for  value  without  notice  is  not  a  source  of  title,  either 
legal  or  equitable,  and  is  not  commonly  a  material  element  of  either;  it  is 
material  only  to  one  who  is  legal  owner  without  it,  and  it  is  material  to 
him  onlv  for  the  purpose  of  rendering  his  title  unimpeachable  in  equitv." 
Langdell's  Summary  of  Eq.  PI.,  §  140.  And  see  Hinds  v.  Vattier,  7  Pet.  252, 
271;  Boone  v.  Chiles,  10  Pet.  177,  210;  O'Neal  v.  Seixas,  85  Ala.  80;  Wailes 
v.  Cooper,  24  Miss.  208 ;  Durant  v.  Crowell,  97  N.  C.  367 ;  Anketel  v.  Converse, 


APPLICATION    TO    CONTRACTS.  569 

or  even  unavoidable  his  mistake  may  have  been.  Again,  no  amount 
of  negligence  will  vitiate  the  title  of  a  bona  fide  holder  of  a  negotiable 
instrument,  but  not  the  most  innocent  mistake  will  enable  him  to 
make  title  through  a  forged  indorsement.9  Where  a  bill  was  drawn 
payable  to  the  order  of  one  H.  Davis  and  indorsed  by  another  H. 
Davis,  it  was  held  that  a  person  who  innocently  discounted  it  on 
the  faith  of  this  indorsement  had  no  title  (y).  It  might  also  be 
said  that  where  tacit  assent  or  acquiescence  is  in  question,  there 
ignorance  is  in  like  manner  a  condition  of  not  losing  one's  rights. 
But  this  is  not  properly  so.  For  it  is  not  that  ignorance  avoids  the 
effect  of  acquiescence,  but  that  there  can  be  no  acquiescence  without 
knowledge.  It  is  like  the  case  where  *knowledge  or  intention  [447 
must  be  present  to  constitute  an  offence.  In  this  sense  and  for  this 
purpose  "nulla  voluntas  errantis  est"  (z). 

Application  of  the  general  rule  in  cases  of  contract.  The  same  princi- 
ples hold  in  cases  more  directly  connected  with  the  subject  of  this 
work.  A  railway  company  carries  an  infant  above  the  age  of  three 
years  without  taking  any  fare,  the  clerk  assuming  him  to  be  under  that 
age,  and  there  being  no  fraud  on  the  part  of  the  person  in  whose  care 
he  travels;  the  mistake  does  not  exclude  the  usual  duty  on  the  com- 
pany's part  to  carry  him  safely  (a).  A  person  who  does  not  correctly 
know  the  nature  of  his  interest  in  a  fund  disposes  of  it  to  a  purchaser 
for  value  who  has  no  greater  knowledge  and  deals  with  him  in  good 
faith ;  if  he  afterwards  discovers  that  his  interest  was  in  truth  greater 
and  more  valuable  than  he  supposed  it  to  be,  he  cannot  claim  to  have 
the  transaction  set  aside  on  the  ground  of  this  mistake  (b).  This, 
however,  is  to  be  taken  with  caution,  for  it  applies  only  to  ca;?es  where 

(y)  Mead  v.  Young  (1790)  4  T.  R.  to  a  particular  business  or  undertak- 
28,  2  R.  R.  314.  ing,  such  as  was  the  ground  of  the  ac- 
ta) D.  39.  3.  de  aqua  pluv.  20.  tion  of  assumpsit  in  its  original  form, 
(a)  Austin  v.  G.  W.  R.  Co.  (1869)  See  judgment  of  Blackburn  J.  and 
L.  R.  2  Q.  B.  442,  36  L.  J.  Q.  B.  201.  cp.  the  remarks  of  Grove  J.  in 
The  mother  of  the  infant  plaintiff  Foulkes  v.  Metropolitan  District  By. 
took  only  one  ticket  for  herself;  it  Co.  (1880)  4  C.  P.  D.  at  p.  279,  49 
seems  that  the  contract  operated  in  L.  J.  C.  P.  361.  Bigelow  L.  C.  on 
favour  of  both  (Lush  J.  L.  R.  2  Q.  B.  Law  of  Torts,  615,  and  the  present 
at  p.  447).  But  the  case  is  really  writer's  "Law  of  Torts,"  515,  518 
one   of   those    on    the    border-line    of  ( 6th  ed. ) . 

contract  and  tort,  where  the  breach  (6)    Marshall  v.  Collett   (1835)    1 

is  not  so  much  of  a  contractual  duty  Y.  &  C.  Ex.  232,  41  R.  R.  254. 
as  of  a  general  duty  annexed  by  law 

17  Ohio  St.   11,  20;   Elstner  v.  Fife,   32  Ohio  St.  358;   Chew  v.  Barnet,  11 
S.  &  R.  389 ;  Briscoe  v.  Ashby,  24  Gratt.  454,  475  sqq. ;  Downer  v.  Bank,  39 
Vt.  25 ;  Morehead  v.  Horner,  30  W.  Va.  548. 
9  Supra,  p.  292,  note  85 


570  MISTAKE. 

the  real  intention  is  to  deal  with  the  party's  interest,  whatever  it 
may  be.  The  result  would  be  quite  different  if  the  intention  of  both 
parties  were  1o  deal  with  it  only  on  the  implied  condition  that  tho 
sTate  of  things  is  not  otherwise  than  it  is  supposed  to  be,  as  we  shall 
find  under  the  head  of  Fundamental  Error. 

So  far,  then,  mistake  as  such  does  not  improve  the  position  of 
the  party  doing  a  mistaken  act.  Neither  does  it  as  a  rule  make 
448]  it'  any  worse.  A  mistaken  demand  *which  produces  no  result 
does  not  affect  a  plaintiff's  right  to  make  the  proper  demand  after- 
wards. Where  B.  holds  money  as  A.'s  agent  to  pay  it  to  C,  and  ap- 
propriates it  to  his  own  use,  C.  may  recover  from  A.  notwithstanding 
a  previous  mistaken  demand  on  B.'s  estate,  made  on  the  assumption 
that  B.  would  be  treated  as  C.'s  own  agent  (c).  Nor  does  a  mis- 
taken repudiation  of  ownership  prevent  the  true  owner  of  goods 
from  recovering  damages  afterwards  for  injury  done  to  them  by 
the  negligence  of  a  bailee,  whose  duty  it  was  to  hold  them  for  the 
true  owner  at  all  events  (d).  This  is  independent  of  and  quite  con- 
sistent with  the  rule  that  a  party  who  has  wholly  mistaken  his  remedy 
cannot  be  allowed  to  proceed  by  way  of  amendment  in  the  same  action 
in  an  entirely  different  form  and  on  questions  of  a  different  char- 
acter (e). 

As  to  existing  rights  of  other  persons.  Next,  mistake  does  not  in  gen- 
eral alter  existing  rights.  The  presence  of  mistake  will  not  make  an 
act  effectual  which  is  otherwise  ineffectual.  Many  cases  which  at  first 
sight  look  like  cases  of  relief  against  mistake  belong  in  truth  to  this 
class,  the  act  being  such  that  for  reasons  independent  of  the  mistake 
it  is  inoperative.  Thus  a  trustee's  payment  over  of  rents  and  profits 
to  a  wrong  person,  whether  made  wilfully  and  fraudulently,  or  igno- 
rantly  and  in  good  faith,  cannot  alter  the  character  of  the  trustee's 
possession  (f).  Where  the  carrier  of  goods  after  receiving  notice 
from  an  unpaid  vendor  to  stop  them  nevertheless  delivers  them  by 
mistake  to  the  buyer,  this  does  not  defeat  the  vendor's  rights:  for 
the  right  of  possession  (g)   revests  in  the  vendor  from  the  date  of 

(c)  Hardy  v.  Metropolitan  Land  (g)  The  book  has  property;  but 
&  Finance  Co.  (1872)  L.  R.  7  Ch.  the  word  must  here,  as  often,  mean 
427,  433,  41  L.  J.  Ch.  257.  Cp.  Van-  only  right  to  possess.  It  is  now  gen- 
gerow,  Pand.  1.  118.  erally  held  that  stoppage  in  transitu 

(d)  Mitchell  v.  Lancashire  &  does  not  rescind  the  contract: 
Torhshire  By.  Co.  (1875)  L.  R.  10  Schotsmans  v.  Lancashire  &  York- 
Q.  B.  256,  261,  44  L.  J.  Q.  B.  107.  shire  Ry.  Co.  (1867)  L.  R.  2  Ch.  332, 

(e)  Jacobs  v.  Seward  (1872)  L.  R.  340,  36  L.  J  Ch.  361.  [See  also 
5  H.  L.  464,  41  L.  J.  C.  P.  221.  Kemp    v.    Falk,    7    App.    Cas.    573; 

if)  Lister  v.  Pichford  (1865)  34  Shephard  v.  Newhall,  54  Fed.  Rep. 
Beav.  576,  582.  306;   Shaw  r.  Lady  Ensley,  &c.  Coal 


WHEN    INOPERATIVE.  571 

the  *notice,  if  given  at  such  a  time  and  under  such  circum-  [449 
stances  that  the  delivery  can  and  ought  to  be  prevented  (h),10  and 
the  subsequent  mistake  delivery  has  not,  as  an  intentional  wrongful 
delivery  would  not  have,  any  power  to  alter  it  (i).  Again,  by  the 
rules  of  the  French  Post-office  the  sender  of  a  letter  can  reclaim  it 
after  it  is  posted  and  before  the  despatch  of  the  mail.  C,  a  banker 
at  Lyons,  posted  a  letter  containing  bills  of  exchange  on  England 
endorsed  to  D.,  an  English  correspondent.  These  were  in  return  for 
a  bill  on  Milan  sent  by  D.  to  C.  Before  the  despatch  of  the  mail, 
learning  from  D.'s  agent  at  Lyons  that  the  bill  on  Milan  would  not 
be  accepted  and  D.  desired  that  no  remittance  should  be  made,  C.  sent 
to  the  post-office  to  stop  the  letter.  It  was  put  aside  from  the  rest  of 
the  mail,  but  by  a  mistake  of  C.'s  clerk  in  not  completing  the  proper 
forms  it  was  despatched  in  the  ordinary  course.  It  was  held  that 
there  was  no  effectual  delivery  of  the  bills  to^  D.,  and  that  the  property 
remained  in  C.  The  mistake  of  the  clerk  could  not  take  "the  effect 
of  making  the  property  in  the  bills  pass  contrary  to  the  intention 
of  both  indorser  and  indorsee"  (h).  Had  not  the  revocation  been  at 
the  indorsee's  request,  then  indeed  the  argument  would  probably  have 
been  correct  that  it  was  a  mere  uncompleted  intention  on  C.'s  part: 
for  as  between  C.  and  the  post-office  everything  had  not  been  done  to 
put  an  end  to  the  authority  of  the  post-office  to  forward  the  letter  in 
the  regular  course  of  post. 

Anderson  s  case  (I)  may  possibly  be  supported  on  a  *similar  [450 
ground.  It  was  there  held  that  a  transfer  of  shares  sanctioned  by 
the  directors  and  registered  in  ignorance  that  calls  were  due  from 
the  transferor  might  afterwards  be  cancelled,  even  by  an  officer  of 
the  company  without  authority  from  the  directors,  on  the  facts  being 

Co.  147  111.  526;  Rucker  r.  Donovan,  (i)  Litt  v.  Cowley  (1816)  7  Taunt. 

13  Kan.  251;  Newhall  v.  Vargas,  15  169,  17  R.  R.  482. 

Me.  314;  Johnson  v.  Eveleth,  93  Me.  (fc)   Eos  parte  Cote  (1873)   L.  R.  9 

306;  Rowley  v.  Bigelow,  12  Pick.  307,  Ch.  27,  32,  43  L.  J.  Bk.  19. 

313;  Stanton  v.  Eager,  16  Pick.  467,  (?)     (1869)    L.  R.  8  Eq.  509.     Sed 

475;    Babcock   v.   Bonnell,    80   N.   \.  qu.     Lord  Lindley,  who  was  himself 

244;  Jordan  V.  James,  5  Ohio,  88,  98;  counsel  in  the  case,  cites  it   (on  Com- 

Diem    v.    Koblitz,    48    Ohio    St.    41;  panies,  829)   with  the  material  quali- 

Chandler   r.   Fulton,    10   Tex.   2,   23 ;  fication,  "  if  the  transferee  does  not 

Allen  v.  Willis,  60  Tex.  155.]  object."     The  case  is  remarkable  for 

(h)  Whitehead  V.  Anderson  (1842)  the    dictum    (which    ought   never   to 

9  M.   &  W.   518,   11   L.  J.   Ex.   157;  have  been  reported)    that  "fraud  or 

Blackburn  on  Cont.  of  Sale,  269,  2nd  mistake,  either  of  them,  is  enough  to 

ed.  by  Graham,  384.  vitiate  any  transaction." 

lOBethell  v.  Clark,  19  Q.  B.  D.  553;  Bell  v.  Moss,  5  Wheat.  189;  Allen 
v.  Maine  Cent.  R.  Co.,  79  Me.  327;  Brewer  Lumber  Co.  v.  Boston,  etc.,  R. 
Co.,  179  Mass.  228 ;  Hall  v.  Dimond,  63  N.  H.  565 ;  Mottram  v.  Heyer,  5  Den. 
629;  Rosenthal  v.  Weir,  170  N.  Y.  148;  Jenks  v.  Fullmer,  160  Pa.  527. 


572  MISTAKE. 

discovered.  It  may  be  that  the  directors'  assent  to  the  transfer  is 
not  irrevocable  (apart  from  the  question  of  mistake)  until  the  parties 
have  acted  upon  it. 

Subsequent  conduct  of  parties  founded  on  mistaken  construction  does  not 
alter  the  contract.  Again,  the  legal  effect  of  a  transaction  cannot  be 
altered  by  the  subsequent  conduct  of  the  parties:  and  it  makes  no 
difference  if  that  conduct  is  founded  on  a  misapprehension  of  the 
original  legal  effect.  A  man  who  acts  on  a  wrong  construction  of 
his  own  duties  under  a  contract  he  has  entered  into,  does  not  thereby 
entitle  himself,  though  the  acts  so  done  be  for  the  benefit  of  the  other 
party,  to  have  the  contract  performed  by  the  other  according  to  the 
same  construction  (m).  This  decision  was  put  to  some  extent  upon 
the  ground  that  relief  cannot  be  given  against  mistakes  of  law.  But 
it  is  submitted  that  this  is  not  a  case  where  the  distinction  is  really 
material.  Suppose  the  party  had  not  construed  the  contract  wrongly, 
but  acted  on  an  erroneous  recollection  of  its  actual  contents,  the 
mistake  would  then  have  been  one  of  fact,  but  it  is  obvious  that  the 
decision  must  have  been  the  same.  Still  less  can  a  party  to  a  con- 
tract resist  the  performance  of  it  merely  on  the  ground  that  he  mis- 
understood its  legal  effect  at  the  time  (n).u  Every  party  to  an  in- 
strument has  a  right  to  assume  that  the  others  intend  it  to  operate 
according  to  the  proper  sense  of  its  actual  expressions  (o).12 

451  ]  *  Unless  such  that  apart  from  mistake  it  would  amount  to  variation  by 
mutual  consent.  It  must  be  remembered,  however,  that  where  both 
parties  have  acted  on  a  particular  construction  of  an  ambiguous  docu- 
ment, that  construction,  if  in  itself  admissible,  will  be  adopted  by  the 

(m)  Midland  O.  W.  Ry.  of  Ireland  (n)  Powell  v.  Smith  (1872)  L.  R. 
v.  Johnson  (1858)  6  H.  L.  C.  798,  14  Eq.  85,  41  L.  J.  Ch.  734.  The 
811,  per  Lord  Chelmsford.  On  the  dictum  in  Wycombe  Ry.  Go.  v.  Don- 
other  hand,  one  who  takes  a  wider  nington  Hospital  ( 1866 )  L.  R.  1  Ch. 
view  of  his  rights  under  a  contract  273,  cannot  be  supported  in  any 
than  the  other  party  will  admit,  is  sense  contrary  to  this, 
free  to  waive  that  dispute  and  en-  (o)  Per  Knight  Bruce  L.J.  Bent- 
foree  the  contract  to  the  extent  ley  v.  Mackay  (1869)  4  D.  F.  &  J.  285. 
which  the  other  does  admit:  Preston  Cp.  Ch.  VI.,  pp.  *255,  *256,  above, 
v.  Luck   (1884)   27  Ch.  Div.  497. 

ll  Hawralty  v.  Warren,  18  N.  J.  Eq.  124. 

12 Arnold  r.  Arnold,  14  Ch.  D.  270,  284.  "If  parties  understand  an  agree- 
ment differently,  and  neither  of  them  makes  known  to  the  other  his  con- 
struction of  it,  and  it  is  afterwards  reduced  to  writing  and  duly  executed, 
they  are  bound,  in  equity,  as  well  as  at  law,  by  the  terms  of  the  written  instru- 
ment, which  in  such  cases  is  to  be  construed  by  the  court."  Sawyer  v.  Hovey, 
3  Allen.  331,  333;  Miller  v.  Lord,  11  Pick.  1*1;  Deutsch  v.  Pratt,  149  Mass. 
415,  420;  Phillip  v.  Gallant,  02  N.  Y.  256;  Rickerson  r.  Insurance  Co.,  149 
N.  Y.  307;  Johnston  v.  Patterson,  114  Pa.  398;  Clark  v.  Lillie,  39  Vt.  405. 


OF    CONSTRUCTION.  573 

Court  (p).13  To  this  extent  its  original  effect,  though  it  cannot  be 
altered,  may  be  explained  by  the  conduct  of  the  parties.  And  more- 
over, if  both  parties  to  a  contract  act  on  a  common  mistake  as  to  the 
construction  of  it,  this  may  amount  to  a  variation  of  the  contract  by 
mutual  consent  (q).  And  a  mistake  of  one  party  induced,  though 
innocently,  by  the  other  has  the  same  effect  as  a  common  mistake  (r) . 
This  is  in  truth  another  illustration  of  the  leading  principle.  Here 
the  conduct  of  the  parties  in  performing  the  contract  with  variations 
would  deny  an  intention  to  vary  it  if  the  true  construction  were  pres- 
ent to  their  minds.  It  might  be  said  that  they  cannot  mean  to 
vary  their  contract  if  they  do  not  know  what  it  really  is.  But  the 
answer  is  that  their  true  meaning  is  to  perform  the  contract  at  all 
events  according  to  their  present  understanding  of  it,  and  thus  the 
mistake  is  immaterial.  Practically  such  a  mistake  is  likely  to  repre- 
sent a  real  original  intention  incorrectly  expressed  in  the  contract: 
so  that  principle  and  convenience  agree  in  the  result. 

(p)   Forbes  v.  Watt    (1872)    L.  R.  19   Ch.   Div.   233,  241,   51   L.   J.   Ch. 

2    Sc.    &    D.    214.      Evidence    of    the  329. 

construction    put    on    an   instrument  (q)   6  H.  L.  C.  pp.  812-3.     In  the 

by  some  of  the  parties  is  of  course  particular   case   the   appellants   were 

inadmissible:     McClean    v.    Kennard  an  incorporated  company,  and  there- 

(1874)  L.  R.  9  Ch.  336,  349.  43  L.  J.  fore   it   was   said   could   not  be  thus 

Ch.  323.     And  a  party  who  has  acted  bound:   sed  qu. 

on  one  of  two  possible  constructions  (r)    Wilding   v.   Sanderson   [1897] 

of  an  obscure  agreement  cannot  after-  2  Ch.  534,  66  L.  J.  Ch.  684,  C.  A.; 

wards    enforce    it    according    to    the  Stewart  v.  Kennedy   (No.  2)    (1890) 

other:    Marshall  v.   Berridge    (1881)  15  App.  Ca.  75,   108. 

13  Chicago  r.  Selden,  9  Wall.  50,  54 ;  Insurance  Co.  v.  Dutcher,  95  U.  S. 
269,  273;  Topliff  v.  Topliff,  122  U.  S.  121;  District  of  Columbia  v.  Galla- 
her,  124  U.  S.  505;  Nickerson  v.  Railroad  Co.,  3  McCrary,  455;  Gron- 
stadt  r.  Withoff,  21  Fed.  Rep.  253;  Central  Trust  Co.  v.  Railroad  Co., 
34  Fed.  Rep.  254;  Leavitt  i:  Windsor,  etc.,  Co.,  54  Fed.  Rep.  439;  San- 
ders r.  Munson,  74  Fed.  Rep.  649;  Lyman  r.  Kansas  City  R.  Co.,  101  Fed. 
Rep.  636;  Haydel  v.  Mutual  Life  Assoc,  104  Fed.  Rep.  718;  Fitzgerald  v.  First 
Bank,  114  Fed.  Rep.  474;  Hall  v.-  First  Bank,  133  111.  234;  Childer  v.  Bank, 
147  Ind.  430;  Stone  r.  Clarke,  1  Met.  378;  Winchester  r.  Glazier,  152  Mass. 
316.  323 ;  St.  Louis  Gas  Light  Co.  i\  St.  Louis,  46  Mo.  121 ;  Paxton  v.  Smith, 
41  Neb.  56;  Jackson  v.  Perrine,  35  N.  J.  L.  137;  Woolsey  v.  Funke,  121  N.  Y. 
87;  Sattler  v.  Hallock,  160  N.  Y.  291,  300;  Mosier  v.  Parry,  6  Ohio  St.  388; 
Coleman  r.  Orubb,  23  Pa.  393,  409;  Schlegel  v.  Herbein,  174  Pa.  504;  Hosmer 
v.  McDonald,  80  Wis.  54. 

It  was  held  in  National  Water  Works  r.  School  District,  48  Fed.  Rep.  523, 
that  this  doctrine  was  not  applicable  to  the  contracts  of  municipal  corpora- 
tions where  the  public  interest  was  involved.  But  see  Thomas  v.  Railway  Co., 
81  Fed.  Rep.  911;  Cincinnati  v.  Cincinnati  Gas  Co.,  53  Ohio  St.  278. 

Where  tne  meaning  of  the  instrument  is  clear  in  the  eye  of  the  law,  the 
error  of  the  parties  cannot  control  its  effect.  Railroad  Co.  v.  Trimble,  10 
Wall.  367;  Russell  v.  Young,  94  Fed.  Rep.  45  (C.  C.  A.)  ;  Hershey  v.  Luce, 
56  Ark.  320;  Gardner  v.  Caylor,  24  Ind.  App.  521;  Insurance  Co.  r.  Doll,  35 
Md.  89;  Glynn  r.  Moran,  174  Mass.  233;  St.  Paul,  etc.,  Ry.  Co.  v.  Blackmar, 
44  Minn.  514 ;  Humphreys  p.  New  York,  etc.,  R.  Co.,  121  N.  Y.  435 ;  Borley 
v.  McDonald,  69  Vt.  309. 

As  to  what  constitutes  ambiguity,  see  O'Brien  i\  Miller,  168  U.  S.  287,  296. 


574  MISTAKE. 

Forfeiture  incurred  by  mistake.  Again,  mistake,  in  the  sense  of  omis- 
sion by  pure  forgetfulness  to  do  something  that  ought  to  have  been 
done,  is  not  a  ground  for  a  court  of  equity  in  its  discretion  (assuming 
that  it  has  jurisdiction)  to  relieve  against  forfeiture  (s). 

452]  *Special  cases  where  mistake  is  of  importance.  What  then  are  the 
special  classes  of  cases  in  which  mistake  is  of  importance,  and  which 
have  given  rise  to  the  language  formerly  current  on  the  subject?  They 
are  believed  to  be  as  follows: 

1.  As  excluding  true  consent.  Where  mistake  is  such  as  to  exclude 
real  consent,  and  so  prevent  the  formation  of  any  contract,  there  the 
seeming  agreement  is  void.  Of  this  we  shall  presently  speak  at  large 
(Part  2  of  this  chapter). 

2.  In  expressing  a  true  consent.  Where  a  mistake  occurs  in  express- 
ing the  terms  of  a  real  consent,  the  mistake  may  be  remedied  by  the 
equitable  jurisdiction  of  the  court.  Of  this  also  we  shall  speak  sepa- 
rately (Part  3). 

3.  Renunciation  of  rights.  A  renunciation  of  rights  in  general  terms 
is  understood  not  to  include  rights  of  whose  actual  or  possible 
existence  the  party  was  not  aware.  This  is  in  truth  a  particular  case 
under  No.  2. 

All  these  exceptions  may  be  considered  as  more  apparent  than  real. 

4.  Payment  of  money.  Money  paid  under  a  mistake  of  fact  may  be 
recovered  back. 

This  is  a  real  exception,  and  the  most  important  of  all.  Yet  even 
here  the  legal  foundation  of  the  right  is  not  so  much  the  mistake  in 
itself  as  the  failure  of  the  supposed  consideration  on  which  the  money 
was  paid ;  and  the  question  is  not  of  avoiding  an  existing  obligation 
bat  of  creating  a  new  one. 

B.  Mistake  of  Fact  and  of  Law. 

Mistake  of  Fact  and  of  Law.  It  is  an  obvious  principle  that  citizens 
must  be  presumed  for  all  public  purposes  to  know  the  law,14  or 
rather  that  they  cannot  be  allowed  to  allege  ignorance  of  it  as  an 
excuse.     As  has  often  been  said,  the  administration  of  justice  would 

(s)    Barrow  V.  Isaacs   [1891]    1  Q.  B.  417,  60  L.  J.  Q.  B.  179,  C.  A. 

i*  See  in  3  Harv.  I>.  Rev.  165,  a  criticism  as  to  this  mode  of  stating  the 
presumption. 


OF    FACT    AND    OF    LAW.  575 

otherwise  be  impossible.  Practically  the  large  judicial  discretion 
which  can  be  exercised  in  criminal  law  may  be  trusted  to  prevent 
the  rule  from  operating  too  harshly  in  particular  cases.  On  the  other 
hand  it  would  lead  to  hardship  and  injustice  not  remediable  by  any 
judicial  dis*eretion  if  parties  were  always  to  be  bound  in  mat-  [453 
ters  of  private  law  by  acts  done  in  ignorance  of  their  civil  rights. 
There  is  an  apparent  conflict  between  these  two  principles  which  has 
given  rise  to  much  doubt  and  discussion  (t).  But  the  conflict,  if  in- 
deed it  be  not  merely  apparent,  is  much  more  limited  in  extent  than 
has  been  supposed. 

How  far  the  distinction  applicable.  It  is  often  said  that  relief  is  given 
against  mistake  of  fact  but  not  against  mistake  of  law.  But  neither 
branch  of  the  statement  is  true  without  a  great  deal  of  limitation  and 
explanation.  We  have  already  seen  that  in  most  transactions  mistake 
is  altogether  without  effect.  There  such  a  distinction  has  no  place. 
Again,  there  are  the  many  cases  where,  as  we  have  pointed  out  above, 
knowledge  or  notice  is  a  condition  precedent  to  some  legal  conse- 
quence. By  the  nature  of  these  cases  it  generally  if  not  always  hap- 
pens that  the  subject-matter  of  such  knowledge,  or  of  the  ignorance 
which  by  excluding  it  excludes  its  legal  consequences,  is  a  matter  of 
fact  and  not  of  law.  The  general  presumption  of  knowledge  of  the 
law  does  so  far  apply,  no  doubt,  that  a  person  having  notice  of  ma- 
lt) Savigny,  followed  by  Van-  494.  [Onondaga  Bank  v.  United 
gerow  and  other  later  writers,  States,  64  Fed.  Rep.  703,  704;  Brown 
strikes  out  a  general  rule  thus:  v.  Tillinghast,  84  Fed.  Rep.  7 1 ;  Ruth- 
Where  mistake  is  a  special  ground  of  erford  v.  Mclvor,  21  Ala.  750;  De- 
relief  (and  there  only),  the  right  to  vine  v.  Edwards,  87  111.  177;  Brown 
such  relief  is  excluded  by  negligence.  v.  C.  C.  &  R.  Gravel  Road  Co.  56  Ind. 
Ignorance  of  law  is  presumed  to  be  110;  Lewellen  v.  Garrett,  58  Ind. 
the  result  of  negligence,  but  the  pre-  442;  Appleton  Bank  v.  McGilvray,  4 
sumption  may  be  rebutted  by  special  Gray,  518;  Stuart  v.  Sears,  119  Mass. 
circumstances,  e.g.,  the  law  being  143;  State  Bank  v.  Buhl,  129  Mich, 
really  doubtful  at  the  time.  There  193;  Fraker  v.  Little,  24  Kan.  598; 
is  much  to  be  said  for  this  doctrine  Koontz  v.  Bank,  51  Mo.  275;  Lyle  v. 
on  principle',  but  it  will  not  fit  Eng-  Shinnebarger,  17  Mo.  App.  66;  Bank 
lish  law  as  now  settled  on  the  most  v.  Eltinge,  40  N.  Y.  391 ;  Lawrence  v. 
important  topic,  viz.,  recovering  back  Bank,  54  N.  Y.  432 ;  Mayer  v.  Mayor, 
money  paid;  for  there,  so  long  as  the  etc.,  of  N.  Y.,  63  N.  Y.  455;  City 
ignorance  is  of  fact,  negligence  is  no  Bank  v.  Nat.  Bank,  45  Tex.  203 ; 
bar:  means  of  knowledge  are  ma-  Neal  v.  Read,  7  Baxt.  333;  Guild  v. 
terial  only  as  evidence  of  actual  Baldridge,  2  Swan,  295;  Alston  V. 
knowledge:  Kelly  v.  Solari  (1841)  9  Richardson,  51  Tex.  1.  But  see 
M.  &  W.  54,  11  L.  J.  Ex.  10;  Town-  contra,  Brummitt  v.  McGuire,  107  N. 
send  v.  Crowdy  (1860)  8  C.  B.  N.  S.  C.  351.]  See  now  for  full  discus- 
477,  29  L.  J.  C.  P.  300.  The  only  sion  of  Anglo-American  authorities, 
limitation  is  that  the  party  seeking  Mr.  M.  M.  BigeloVs  notes  to  Story's 
to  recover  must  not  have  waived  all  Eq.  Jurisp.  13th  ed.  ss.  Ill,  140; 
inquiry :  per  Parke  B.  9  M.  &  W.  59;  Keener  on  Quasi-Contracts,  Ch.  2. 
and  per  Williams  J.  8  C.  B.  N.  d. 


576  MISTAKE. 

terial  facts  cannot  be  heard  to  say  that  he  did  not  know  the  legal 
effect  of  those  facts.  All  these,  however,  are  not  cases  of  relief  against 
mistake  in  any  correct  sense. 

Where  common  mistake  excludes  real  agreement,  ignorance  of  private  right 
is  equivalent  to  ignorance  of  fact.  Then  come  the  apparent  exceptions 
454]  to  the  general  rule,  *which  we  have  numbered  1,  2  and  3.  As 
to  No.  (1)  it  is  at  least  conceivable  that  a  common  mistake  as  to 
a  question  of  law  should  go  so  completely  to  the  root  of  the  matter 
as  to  prevent  any  real  agreement  from  being  formed.  It  is  laid  down 
by  very  high  authority  "  that  a  mistake  or  ignorance  of  the  law  forms 
no  ground  of  relief  from  contracts  fairly  entered  into  with  a  full 
knowledge  of  the  facts  (u)  :  but  this  does  not  touch  the  prior  question 
whether  there  is  a  contract  at  all.  On  cases  of  this  class  English  de- 
cisions go  to  this  extent  at  all  events,  that  ignorance  of  particular 
private  rights  is  equivalent  to  ignorance  of  fact  (v).15  As  to  No.  (2) 
the  principle  appears  to  be  the  same. 

Rectification  of  instruments:  relief  given  against  mistake  of  draftsman 
though  not  against  a  deliberate  choice  of  the  parties  as  to  contents  of  instru- 
ments. A.  and  B.  make  an  agreement  and  instruct  C.  to  put  it  into 
legal  form.  C.  does  this  so  as  not  to  express  the  real  intention,  either 
by  misapprehension  of  the  instructions  or  by  ignorance  of  law.  It  is 
obvious  that  relief  should  be  equally  given  in  either  case.  In  neither 
is  there  any  reason  for  holding  the  parties  to  a  contract  they  did 
not  really  make. 

Authority,   so   far  as  it  goes,   is  in  favour   of  what  is  here  ad- 
vanced (x).16    A  common  mistake  of  parties  as  to  the  effect  of  a  par- 
la)  Bank  of  U.  8.  v.  Daniel  (1838)        Eaglesfield    v.    Marquis    of    London- 
(Sup.  Ct.  U.  S.)    12  Peters,  32,  56;       derry    (1876)    4  Ch.  D.  693. 
but  see   Daniell  v.   Sinclair    (J.   C.)  (v)  Bingham  v '.  Bingham  (1748)  1 

(1881)  6  App.  Ca.  181,  190.  The  Ves.  Sr.  126;  BrougUon  v.  Butt 
language  of  modern  American  au-  (1858)  3  DeG.  &  J.  501;  Cooper  v. 
thority  persists  in  the  old  sharp  dis-  Phibbs  (1867)  L.  R.  1  H.  L.  149. 
tinction:  Upton  v.  Tribilcoch  (1875)  170;  of  which  cases  a  fuller  account 
91  U.  S.  45,  50.     Common  mistake  as       is  given  below. 

to   a   collateral   matter   of   law   does  (a;)    Hunt  v.   Rousmaniere's  Adm. 

not     of     course     avoid     a     contract:        (1828)    (Sup.  Ct.  U.  S.)    1  Peters,  1, 

13,  14. 

is  See  Jones  r.  Clifford,  3  Ch.  D.  779,  792;  Blakeman  r.  Blakeman,  39 
Conn.  320;  Baker  v.  Massey,  50  la.  399,  404;  Gardiner  v.  Menage,  41  Minn. 
417;  Griffith  r.  Townley,  69  Mo.  13;  Freichnecht  v.  Meyer,  39  N.  J.  Eq.  551; 
King  v.  Doolittle,  1  Head,  77;  Trigg  v.  Read,  5  Humph.  529;  Harlan  v. 
Central  Phosphate  Co.,  62  S.  W.  Rep.  614  (Tenn.  Ch.)  ;  Webb  v.  City  Council 
of  Alexandria,  33  Gratt.  168,  175,  176. 

is  It  is  well  established  that  relief  will  be  given  under  such  circumstances 
although  the  mistake  arose  from  ignorance  of  law.  Snell  r.  Insurance  Co.. 
98  U.  S.   85;   Griswold  v.  Hazard,  141  U.  S.  260,  284;   Oliver  v.  Insurance 


op  law.  577 

ticular  instrument  is  sufficient  ground  for  varying  a  consent  order 
founded  on  the  mistaken  opinion  (y).  There  is  clear  authority  that 
on  the  other  hand  a  court  of  equity  will  not  reform  an  instrument 
b}'  inserting  in  it  a  clause  which  the  parties  deliberately  agreed  to 
leave  out  (z),17  nor  substitute  for  the  form  of  security  the  parties 
have  chosen  another  form,18  which  they  deliberately  *considered  [455 
and  rejected  (a),  although  their  choice  may  have  been  determined 
by  a  mistake  of  law.  The  reason  of  these  decisions  is  that  in  such 
cases  the  form  of  the  instrument,  by  whatever  considerations  arrived 
at,  is  part  of  a  real  agreement.  The  parties  have  not  been  deprived 
by  mistake  or  ignorance  of  the  means  of  an  effective  choice  of  courses, 
but  have  made  an  effective  choice  which  some  or  one  of  them  after- 
wards mislikes. 

Renunciation  of  rights:  distinction  as  to  compromise  or  deliberate  aban- 
donment. As  to  No.  (3),  there  is  quite  sufficient  authority  to  show 
that  a  renunciation  -of  rights  under  a  mistake  as  to  particular  ap- 
plications of  law  is  not  conclusive,  and  some  authority  to  show  that 
it  .is  the  same  even  if  the  mistake  is  of  a  general  rule  of  law.  The 
deliberate  renunciation  or  compromise  of  doubtful  rights  is  of  course 
binding;  it  would  be  absurd  to  set  up  ignorance  of  the  law  as  an 

(v)    Allcard   v.    Walker    [1896]    2  (z)    Lord  Irnham  v.  Child    (1781) 

Ch.369,  65  L.  J.  Ch.  660.  1  Bro.  C.  C.  92. 

(a)  See  note   (x) ,  preceding  "page. 

Co.,  2  Curtis,  277,  298-9;  Bailey  v.  Insurance  Co.,  4  MeCrary,  221;  Sampson 
v.  Mudge,  13  Fed.  Rep.  260;  Abraham  v.  Insurance  Co.,  40  Fed.  Rep.  717; 
Railway  Co.  v.  Green,  114  Fed.  Rep.  676;  Larkins  v.  Biddle,  21  Ala.  252; 
Stedwell  v.  Anderson,  21  Conn.  139;  Bank  r.  Insurance  Co.,  31  Conn.  517, 
529;  Butterfield  v.  McNamara,  54  Conn.  94;  Dinwiddie  v.  Self,  145  111.  290 
(cp.  Atherton  r.  Roche,  192  111.  252)  ;  Nowlin  r.  Pyne,  47  la.  293;  Reed  v. 
Root,  59  la.  35-9;  Courtright  v.  Courtright,  63  la.  356;  Scales  v.  Ashbrook, 
1  Met.  (Ky.)  358;  Lear  v.  Prather,  89  Ky.  501;  Canedy  v.  Marcy,  13  Gray, 
373;  Benson  v.  Markoe,  37  Minn.  30;  Green  v.  Railroad  Co.,  12  N.  J.  Eq.  165; 
McMillan  v.  Fish,  29  N.  J.  Eq.  610;  Truesdell  v.  Lehman,  47  N.  J.  Eq.  218; 
Pitcher  v.  Hennessey,  48  N.  Y.  415;  McKay  v.  Simpson,  6  Ired.  Eq.  452; 
Kornegay  v.  Everett,  99  N.  C.  30 ;  Clayton  v.  Freet,  10  Ohio  St.  544 ;  Brock  v. 
Odell,  44  S.  C.  22;  McKenzie  v.  MeKenzie,  52  Vt.  271;  Tabor  v,  Cilley,  53  Vt. 
487;  Green  Bay  Co.  %.  Hewitt,  62  Wis.  316;  Bank  v.  Mann,  100  Wis.  596. 

"Berts  v.  Gunn,  31  Ala.  219;  Clark  r.  Hart,  57  Ala.  390;  Rector  v.  Collins, 
46  Ark.  167;  Hicks  v.  Coody,  49  Ark.  425;  Ligon's  Admr.  r.  Rogers,  12  Ga. 
281;  Stafford  v.  Staunton,  88  Ga.  298;  Andrew  v.  Spurr,  8  Allen,  412;  Lee  v. 
Kirby,  104  Mass.  420,  430;  Mead  r.  Norfolk  R.  Co.,  89  Va.  296;  Braun  v. 
Wisconsin  Rendering  Co.,  92  Wis.  245.  See  Leonard  v.  Wills,  24  Kan.  231. 
Cp.  Martin  v.  Railroad  Co.,  36  N.  J.  Eq.  109. 

is  Hunt  v.  Rousmaniere's  Admr.,  1  Pet.  1.  "  Where  the  parties  adopt  the 
security  which  is  to  be  used  to  effectuate  their  intention,  if  the  security 
should  fail,  from  ignorance  of  the  law,  or  from  any  other  cause,  to  operate 
as  the  parties  intended,  the  courts  cannot  substitute  any  other  security  for 
the  one  adopted."  Lanning  v.  Carpenter,  48  N.  Y.  408;  Hicks  r.  Coody,  49 
Ark.  425;  Baldwin  r.  Insurance  Co.,  60  la.  497;  Marshall  v.  Westrope,  98 
la.  324 ;  Leavitt  r.  Palmer,  3  N.  Y.  19,  38 ;  Greene  v.  Smith,  160  N.  Y.  533. 
37 


578  *  MISTAKE. 

objection  to  the  validity  of  a  transaction  entered  into  for  the  very 
reason  that  the  law  is  not  accurately  known  (&).19  A  compromise 
deliberately  entered  into  under  advice,  the  party's  agents  and  advisers 
having  the  question  fully  before  them,  cannot  be  set  aside  on  the 
ground  that  a  particular  point  of  law  was  mistaken  or  overlooked  (c). 
Conduct  equivalent  to  renunciation  of  a  disputed  right  is  equally  bind- 
irg,  at  least  when  the  party  has  the  question  fairly  before  him.  Thus 
in  Stone  v.  Godfrey  (d)  the  plaintiff  had  been  advised  on  his  title 
unfavourably  indeed,  but  in  such  a  way  as  to  bring  before  him  the 
mature  of  the  question  and  give  him  a  fair  opportunity  of  considering 
whether  he  should  raise  it.  Adopting,  however,  the  opinion  he  had 
obtained,  he  acted  upon  it  for  a  considerable  time,  and  in  a  manner 
which  amounted  to  representing  to  all  persons  interested  that  he  had 
determined  not  to  raise  the  question.  It  was  held  that  although  the 
mistake  as  to  title  might  in  the  absence  of  such  conduct  well  be  a 
456]  ground  of  relief,  a  ^subsequent  discovery  that  the  correctness 
of  the  former  opinion  was  doubtful  did  not  entitle  him  to  set  up  his 
claim  anew.  In  Rogers  v.  Ingham  (e)  a  fund  had  been  divided 
between  two  legatees  under  advice,  and  the  payment  agreed  to  at  the 
time.  One  of  the  legatees  afterwards  sued  the  executor  and  the  other 
legatee  for  repayment,  contending  that  the  opinion  they  had  acted 
upon  was  erroneous  ;  it  was  held  that  the  suit  could  not  be  maintained. 
Similarly  where  creditors  accepted  without  question  payments  under 
a  composition  deed  to  which  they  had  not  assented,  and  which,  as  it 
was  afterwards  decided,  was  for  a  technical  reason,  not  binding  on 
non-assenting  creditors,  it  was  held  that  they  could  not  afterwards 
treat  the  payments  as  made  on  account  of  the  whole  debt,  and  sue 
for  the  balance.  They  might  have  guarded  themselves  by  accepting 
the  payments  conditionally,  but  not  having  done  so  they  were  bound  (f). 
In  Re  Saxon  Life  Assurance  Society  (g)  it  was  held  that  a  creditor 
of  a  company  was  not  bound  by  a  release  given  in  consideration  of 

(6)    Cp.   the   remarks   on   compro-  (e)    (1876)  3  Ch.  Div.  351,  46  L.  J. 

raises  in  Ch.  IV.,   p.  *193  above.  Ch.  322. 

(c)  Stewart  v.  Stewart  (1839)  6  (f)  Kitchin  v.  Hawkins  (1866)  L. 
CI.   &  F.   911,  49  R.  R.  267;   see  the  R.  2  C.  P.  22. 

authorities  reviewed,   6   CI.   &  F.   pp.  (g)    (1862)   2  J.  &  H.  408,  412  (the 

966-970,  49  R.  R.  276-279.  Anchor  case). 

(d)  (1854)  5  D.  M.  &  G.  76. 

19  Bank  v.  Geary,  5  Pet.  99,  114;  Morris  r.  Munroe,  30  Ga.  630;  Stover 
v.  Mitchell,  45  111.  213;  Fisher  v.  May,  2  Bibb,  448;  McClellan  v.  Kennedy, 
8  Md.  230,  248;  Hall  v.  Wheeler,  37  Minn.  522;  Warren  v.  Williamson,  8 
Baxt.  427;   Smith  v.  Penn,  22  Gratt.  402. 

The  rule  is  the  same  as  to  a  mistake  regarding  a  fact  on  the  existence  of 
which  the  parties  take  chances.     Sears  v.  Grand  Lodge,  163  N.  Y.  374. 


MISTAKEN    PAYMENTS.  579 

having  the  substituted  security  of  another  company,  which  security 
was  a  mere  nullity,  being  given  in  pursuance  of  an  invalid  scheme 
of  amalgamation.  Here  the  mistake  was  obviously  not  of  a  general 
rule  of  law;  and  perhaps  the  case  is  best  put  on  the  ground  of  total 
failure  of  consideration  (h).20 

Money  paid  by  mistake   recoverable   only   when   the  mistake  is   of  fact. 

As  to  No.  (4),  the  subject  of  recovering  back  money  paid  by  mistake 
does  not  properly  fall  within  our  scope.  It  is  here,  however,  that 
Ihe  distinction  between  mistakes  of  fact  and  of  law  does  undoubtedly 
prevail.  While  no  amount  of  mere  negligence  avoids  the  right  to  re- 
cover back  money  paid  under  a  mistake  of  fact  (i),  money  *paid  [457 
under  a  mistake  of  law  cannot  in  any  case  be  recovered  (lc).21 
Nor  does  anything  like  the  qualification  laid  down  by  Lord  "Westbury 
in  Cooper  v.  Phibbs  (I)  appear  to  be  admitted.  Ignorance  of  par- 
ticular rights,  however  excusable,  is  on  the  same  footing  as  ignorance 
of  the  general  law  (m).22 

An  important  decision  of  the  American  Supreme  Court  appears  to 
assume  that  giving  a  negotiable  instrument  is  for  this  purpose  equiva- 

(h)    In   former    editions   some   re-  (i)    Note  (*),  p.  *453,  supra. 

marks    weTe    made    on    M'Garthy    v.-  (fc)   But  as  to  re-opening  accounts 

Decaix   (1831)    2  Russ.  &  My.  614,  2  in    equity,    see    Daniell    v.    Sinclair 

CI.    &   F.   568   n.,   37    R.    R.    250,    as  (J.  C.)    (1881)   6  App.  Ca.  181. 

raising  a  difficulty  in  this  connexion.  (I)    (1867)  L.  R.  2  H.  L.  at  p.  170. 

As  that  case  is  no  longer  of  authority  (m)     See    Skyring    v.     Greenwood 

(see  Harvey  v.  Farnie  (1882)   8  App.  (1825)   4  B.  &  C.  281,  28  R.  R.  264; 

Ca.  43,  52,  60,  63,  52  L.  J.  P.  42),  and  cp.  Piatt  v.  Bromage   (1854)    24 

they  are  now  omitted.  L.  J.  Ex.  63,  where  however  the  mis- 

20  Where  a  widow,  under  mistake  as  to  her  rights  in  her  husband's  estate, 
renounced  the  provision  made  for  her  by  his  will,  and  elected  to  take  dower 
instead,  but  afterwards  being  informed  of  her  rights,  before  distribution  of 
the  estate,  but  after  the  statutory  period  for  making  her  election,  applied  to 
be  allowed  to  recall  her  former  election,  and  take  under  the  will,  it  was  held 
that  the  application  should  be  granted.  Evans'  Appeal,  51  Conn.  435;  Mack- 
net  v.  Macknet,  29  N.  J.  Eq.  54. 

21  Lamborn  r  County  Commrs.,  97  U.  S.  181,  185;  Jefferson  County  v. 
Hawkins,  23  Fla.  223;  Arnold  v.  Georgia  R.  &  B.  Co.,  50  Ga.  304;  Downs  r. 
Donnelly,  5  Ind.  496;  Baldwin  v.  Foss,  71  la.  389;  Painter  v.  Polk  County, 
81  la.  242;  Norris  v.  Blethen,  19  Me.  348;  Livermore  v.  Peru,  55  Me.  469; 
Sehwarzenbach  v.  Odorless  Excavating  Co.,  65  Md.  34;  Erkens  v.  Nicolin,  39 
Minn.  461;  Pass  v.  Grenada  County,  71  Miss.  426;  Clarke  v.  Dutcher,  9  Cow. 
674;  Phelps  v.  Mayor,  112  N.  Y.  216;  Vanderbeck  v.  Rochester,  122  N.  Y. 
285;  Valley  Ry.  Co.  v.  Lake  Erie  Iron  Co.,  46  Ohio  St.  44;  Real  Est.  Sav. 
Inst.  v.  Linder,  74  Pa.  371;  Gould  v.-  McFall,  118  Pa.  455;  Harvey  v. 
Girard,  119  Pa.  212;  De  la  Cuesta  r.  Insurance  Co.,  136  Pa.  62,  658;  Gilliam 
v.  Alford,  69  Tex.  267.  But  see  Northrup  v.  Graves,  19  Conn.  548;  Mansfield 
v.  Lynch,  59  Conn.  320;  Culbreath  v.  Culbreath,  7  Ga.  64;  Louisville  v.  Hen- 
ning,  1  Bush,  381;  Moulton  v.  Bennett,   18  Wend.  586. 

22  Gage  v.  Allen,  89  Wis.  98. 

A  mistake  as  to  the  construction  of  a  contract  is  a  mistake  of  law.  Cin- 
cinnati v.  Cincinnati  Gas  Co.,  53  Ohio  St.  278.    A  mistake  of  foreign  law  is  a 


580  MISTAKE. 

lent  to  the  payment  of  money,  so  that  a  party  who  gives  it  under 
a  mistake  of  law  has  no  legal  or  equitable  defence  (n).  But,  accord- 
ing to  later  English  doctrine,  inasmuch  as  "  want  of  consideration 
is  altogether  independent  of  knowledge  either  of  the  facts  or  of 
ihe  law,"  the  defence  of  failure  of  consideration  is  available  as  be- 
tween the  parties  to  a  negotiable  instrument,  whether  the  instrument 
has  been  obtained  by  a  misrepresentation  of  fact  or  of  law  (o). 

A  covenant  to  pay  a  debt  for  which  the  covenantor  wrongly  sup- 
poses himself  to  be  liable  is  valid  in  law,  nor  will  equity  give  any 
relief  against  it  if  the  party's  ignorance  of  the  facts  negativing  his 
liability  is  due  to  his  own  negligence  (p). 

Apparent  exception  in  bankruptcy  —  Otherwise  same  rules  in  equity  as 
at  law.  The  Court  of  Bankruptcy  will  order  repayment  of  money  paid 
to  a  trustee  in  bankruptcy  under  a  mistake  of  law :  but  this  is  no  real 
458]  exception,  for  it  is  not  like  an  ordinary  ^payment  between  party 
and  party.  The  trustee  is  an  officer  of  the  Court  and  "  is  to  hold 
money  in  his  hands  upon  trust  for  its  equitable  distribution  among 
the  creditors"  (q).  In  general  the  rule  that  a  voluntary  payment 
made  with  full  knowledge  of  the  facts  cannot  be  recovered  back  is 
no  less  an  equitable  than  a  legal  one:  "the  law  on  the  subject  was 
exactly  the  same  in  the  old  Court  of  Chancery  as  in  the  old  Courts 
of  Common  Law.  There  were  no  more  equities  affecting  the  con- 
science of  the  person  receiving  the  money  in  the  one  Court  than  in  the 
other  Court,  for  the  action  for  money  had  and  received  proceeded 

take  was  not  only  a  mistake  of  law,  L.  J.  C.  P.   145 ;   Coward  v.  Hughes 

but    collateral    to    the    payment,    the  (1855)    1K.4J.  443. 
money    being    really    due;    Aiken   v.  (p)    Wason  v.  Wareing   (1852)    15 

Short  (1856)   1  H.  &  N.  210,  25  L.  J.  Beav.   151.     Whether  relief  could  be 

Ex.   321,  rests   on  the   same  ground,  given  in  any  case,  unless  there  were 

if  the  transaction  in  that  case  be  re-  fraud  on  the  other  side,  quaere. 
garded  as   the  bare  payment  of  an-  (q)   Ex  parte  James    (1874)   L.  R. 

other  person's  debt ;  if  it  be  regarded  9  Ch.  609,  614,  per  James  L.J.  43  L. 

as  the  purchase   of  a  security,   it  is  J.    Bk.    107.      This   holds  even   after 

an    application    of    the    rule    caveat  the  money  paid  by  mistake  has  been 

emptor,    as    to    which    op.    Clare    v.  distributed,  if  the  trustee  still  has  or 

Lamb    (1875)    L.  R.   10   C.  P.  334,  44  may  have   funds   applicable   for   pay- 

L.  J.   C.   P.   177.  ment    of    dividends:    Ex   parte    Sim- 

(n)     Bank    of    U.     S.    v.      Daniel  monds    (1885)    16  Q.  B.  Div.  308,  55 

(1838)    12   Peters,   32;    but  this   was  L.   J.   Q.   B.   74;    and  it  seems  to  ex- 

not  the  only  ground  of  the  decision.  tend  to  all  officers  of  the  Court  and 

(o)    Southall  v.   Rigg,   Forman   v.  all  branches  of  the  Supreme  Court. 
Wright  (1851)    11  C.  B.  481,  492,  20 

mistake  of  fact.  Hallett  r.  New  England  Grate  Co.,  105  Fed.  Rep.  217;  Rosen- 
baum  r.  United  States  Credit  System  Co.,  64  N.  J.  L.  34. 

And  money  paid  under  a  mistake  of  foreign  law  may,  therefore,  be  recov- 
ered back.  Norton  r.  Marden,  15  Me.  45;  Haven  v.  Foster,  9  Pick.  112; 
King   r.  Doolittle,   1  Head,  77,  85. 


EXCLUDING    CONSENT.  581 

upon  equitable  considerations "  (r)  .23  Thus  a  party  who  has  sub- 
mitted to  pay  money  under  an  award  cannot  afterwards  impeach  the 
award  in  equity  on  the  ground  of  irregularities  which  were  known 
to  him  when  he  so  submitted  (s).  It  has  also  been  laid  down  that 
in  a  common  administration  suit  a  legatee  cannot  be  made  to  refund 
over-payments  voluntarily  made  by  an  executor  (t)  ;  but  the  context 
shows  that  this  was  said  with  reference  to  the  frame  of  the  suit  and 
the  relief  prayed  for  rather  than  to  any  general  principle  of  law: 
moreover  it  was  not  the  executor,  but  the  persons  beneficially  in- 
terested, who  sought  to  make  the  legatee  liable.24  But  in  Bate  v. 
Hooper  (w)25  the  point  arose  distinctly:  certain  trustees  were  liable 
to  make  good  to  their  testator's  estate  the  loss  of  principle  incurred 
by  their  omission  to  convert  a  fund  of  Long  Annuities :  they  contended 
that  the  tenant  for  life  ought  to  recoup  them  the  excess  of  income 
which  she  had  received:  but  as  she  had  not  been  a  willing  party  to 
any  over-payment  (x),  *it  was  decided  that  she  could  not  be  [459 
called  upon  to  refund  the  sums  which  the  trustees  voluntarily  paid 
her.  In  an  earlier  case  an  executor  paid  interest  on  a  legacy  for 
several  years  without  deducting  the  property  tax,  and  it  was  held 
that  he  could  not  claim  to  retain  out  of  subsequent  payments  the 
sums  which  he  should  have  deducted  from  preceding  ones  («/). 

Part  II.     Mistake  as  excluding  true  Consent. 

Cases  to  be  dealt  with  in  this  subdivision.  In  the  first  chapter  we  saw 
that  no  contract  can  be  formed  when  there  is  a  variance  in  terms  be- 
tween the  proposal  and  the  acceptance.  In  this  case  the  question 
■whether  the  parties  really  meant  the  same  thing  cannot  arise,  for  they 

(r)    Rogers   v.   Ingham    (1876)    3  (u)    (1855)   5  D.  M.  &  G.  338. 

Ch.  Div.  at  p.  355,  per  James  L.J.  (x)    She   had   in   fact   desired  the 

(s)    Goodman  v.  Sayers    (1820)    2  trustees   to   convert  the   fund:    see   5 

Jac.  &  W.  249,  263,  22  R.  R.  112.  D.  M.  &  G.  340. 

(t)     Per    Lord    Cottenham,    Lich-  (y)     Currie    v.    Goold     (1817)     2 

field  v.  Baker   (1850)    13  Beav.  447,  Madd.  163,  53  R.  R.  33. 
453. 

23  Freeman  v.  Curtis,  51  Me.   140,   143;   Claflin  v.  Godfrey,  21  Pick.   1,  6. 
But  the  appropriate   remedy   is   an   action   at  law,   not   a   suit  in  equity. 

Lamb  v.  Cranfield,  43  L.  J.  Ch.  (N.  S.)  408;  Sturgis  v.  Preston,  134  Mass. 
372;  Chapman  v.  Forbes,  123  N.  Y.  532.    See  1  Harv.  L..Rev.  212. 

24  "A  person  who  receives  money  as  his  own  from  an  executor,  who  pays 
it  under  a  mistaken  interpretation  of  his  testator's  will,  is  not  liable,  in  an 
action  for  money  had  and  received,  to  a  person  who  was  entitled  under  the 
will  to  receive  the  money."  Moore  v.  Moore,  127  Mass.  22.  See  also  Beam  v. 
Copeland,  54  Ark.  70;  People  v.  Foster,  133  111.  496;  Phillips  v.  McConica,  59 
Ohio  St.  1.  But  the  payment  may  be  recovered  by  the  executor  or  administra- 
tor if  the  mistake  was  one  of  fact.  Mansfield  v.  Lynch,  59  Conn.  320;  Stokes 
v.  Goodykoontz,   126  Ind.  535. 

25  Cp.  Davis  v.  Newman,  2  Rob.    (Va.)    664. 


582  MISTAKE. 

have  not  even  said  the  same  thing.  A  court  of  justice  can  ascertain 
a  common  intention  of  the  parties  only  from  some  adequate  expres- 
sion of  it,  and  the  mutual  communication  of  different  intentions  is 
no  such  expression. 

We  now  have  to  deal  with  certain  kinds  of  cases  in  which  on  the 
face  of  the  transaction  all  the  conditions  of  a  concluded  agree- 
ment are  satisfied,  and  yet  there  is  no  real  common  intention  and 
therefore  no  agreement. 

Where  no  real  common  intention,  each  party  meaning  different  thing. 
First,  it  may  happen  that  each  party  meant  something,  it  may  be 
a  perfectly  well  understood  and  definite  thing,  but  not  the  same  thing 
which  the  other  meant.  Thus  their  minds  never  met,  as  is  not  un- 
commonly said,  and  the  forms  they  have  gone  through  are  inoperative. 
This  is  quite  consistent,  as  we  shall  see,  with  the  normal  and  necessary 
rule  (Ch.  VI.,  pp.  *245,  *246,  above)  that  a  promisor  is  bound  by  his 
promise  in  that  meaning  which  his  expression  of  it  reasonably  conveys. 

Where    there   is   a   common  intention   hut   founded   on   a   common   error. 

Next,  it  may  happen  that  there  does  exist  a  common  intention,  which, 
460]  however,  is  founded  on  an  assumption  *made  by  both  parties  as 
to  some  matter  of  fact  essential  to  the  agreement.  In  this  case  the 
common  intention  must  stand  or  fall  with  the  assumption  on  which 
it  is  founded.  If  that  assumption  is  wrong,  the  intention  of  the 
parties  is  from  the  outset  incapable  of  taking  effect.  But  for  their 
common  error  it  would  never  have  been  formed,  and  it  is  treated  as 
non-existent.  Here  there  is  in  some  sense  an  agreement:  but  it  is 
nullified  in  its  inception  by  the  nullity  of  the  thing  agreed  upon. 
The  result  is  the  same  as  if  the  parties  had  made  an  agreement  ex- 
pressly conditional  on  the  existence  at  the  time  of  the  supposed  state 
of  facts:  which  state  of  facts  not  existing,  the  agreement  destroys 
itself.26 

In  the  former  class  of  cases  either  one  party  or  both  may  be  in  error : 
however,  that  which  prevents  any  contract  from  being  formed  is  not 
the  existence  of  error  but  the  want  of  true  consent.  "  Two  or  more 
persons  are  said  to  consent  when  they  agree  upon  the  same  thing 
in  the  same  sense :"  this  consent  is  essential  to  the  creation  of  a  con- 
tract (2),  and  if  it  is  wanting,  and  the  facts  be  not  otherwise  such 
as  to  preclude  one  party  from  denying  that  he  agreed  in  the  sense 

(s)  Hannen  J.  in  Smith  v.  Hughes  (1871)  L.  E..  6  Q.  B.  609;  Indian 
Contract  Act,  1872,  s.   13. 

26  Approved  in  Nordyke  r.  Kehlor,  155  Mo.  643,  654;  Irwin  r.  Wilson,  45 
Ohio   St.   426,  437. 


AS    TO    NATUBE    OF    TRANSACTION.  583 

of  the  other  (a) ,  it  matters  not  whether  its  absence  is  due  to  the  error 
of  one  party  only  or  of  both. 

In  the  latter  class  of  cases  the  error  must  be  common  to  both  parties. 
They  do  agree  to  the  same  thing,  and  it  would  be  in  the  same  sense, 
but  that  the  sense  they  intend,  though  possible  as  far  as  can  be  seen 
from  the  terms  of  the  agreement,  is  in  fact  nugatory.  As  it  is,  their 
consent  is  idle ;  the  sense  in  which  they  agree  is,  if  one  may  so  speak, 
insensible. 

In  both  sets  of  cases  we  may  say  that  the  agreement  is  nullified 
by  fundamental  error;  a  term  it  may  be  convenient  to  use  in  order 
to  mark  the  broad  distinction  in  *principle  from  those  cases  [461 
where  mistake  appears  as  a  ground  of  special  relief. 

Divisions  of  fundamental  error.  We  proceed  to  examine  the  different 
kinds  of  fundamental  error  relating : 

A.  To  the  nature  of  the  transaction. 

B.  To  the  person  of  the  other  party. 

C.  To  the  subject-matter  of  the  agreement  (6). 

A.  Error  as  to  the  nature  of  the  transaction. 

As  to  nature  of  the  transaction  — Thoroughgood's  case.  On  this  the  prin- 
cipal early  authority  is  Thoroughgood's  case  (c).  In  that  case  the 
plaintiff,  who  was  a  layman  and  unlettered,  had  a  deed  tendered  to 
him  which  he  was  told  was  a  release  for  arrears  of  rent  only.  The 
deed  was  not  read  to  him.  To  this  he  said,  "  If  it  be  no  otherwise  I 
am  content;" -and  so  delivered  the  deed.  It  was  in  fact  a  general 
release  of  all  claims.  Under  these  circumstances  it  was  adjudged 
that  the  instrument  so  executed  was  not  the  plaintiff's  deed.  The 
effect  of  this  case  is  "that  if  an  illiterate  man  have  a  deed  falsely 
read  over  to  him,  and  he  then  seals  and  delivers  the  parchment,  it  is 
nevertheless  not  his  deed  "  (d)  ;27  it  was  also  resolved  that  "  it  is  all 

(a)    Hannen   J.   I.e.,   Blackburn  J.  any   party    for    damage    incurred   by 

at  p.  607.  relying   on  the  validity  of   the   act; 

(6)   The    German    Civil    Code    has  B.  G.  B.  as.  119—122. 
taken    a    new    and    much    simplified  (c)    2  Co.  Rep.  9  5.   Cp.  Shulter's 

course    on    the    whole   matter.      Any  case,    12    Co.    Rep.    90    (deed   falsely 

kind   of    "declaration    of   intention"  read  to  a  blind  man), 
is  voidable  on  the  ground  of  funda-  (d)    Per  Cur.   L.   R.   4  C.  P.   711. 

mental  error,  even  if  the  mistake  Js  It  had  been  long  before  said,   in  21 

unilateral;    but    voidable    only,    and  Hen.  VII.,  that  "if  I  desire  a  man 

subject  to  the  duty  of  compensating  to  enfeoff  me  of  an  acre  of  land  in 

27  Davis  v.  Snyder,  70  Ala.  315;  Bank  v.  Webb,  108  Ala.  132;  Yock  v. 
Insurance  Co.,  Ill  Cal.  503.;  Meyer  v.  Haas,  126  Cal.  560;  Green  v.  Maloneyi 
7  Houst.  22;  Brooks  v.  Matthews,  78  Ga.  739;  Railroad  Co.  v.  Schunick,  65 
111.  223;   O'Donnell    r.   Clinton,    145   Mass.   461;   Adolph   r.   Minneapolis   Ry. 


584  MISTAKE. 

one  in  law  to  read  it  in  other  words,  and  to  declare  the  effect  thereof 
in  other  manner  than  is  contained  in  the  writing : '"  but  that  a  party 
462]  executing  a  deed  without  requiring  it  to  *be  read  or  to  have  its 
effect  explained  would  be  bound  (e).28  \greeably  to  this  the  law 
is  stated  in  Sheppard's  Touchstone,  56.  But  at  present  the  mere 
reading  over  of  a  deed  without  an  explanation  of  the  contents  would 
hardly  be  thought  sufficient  to  show  that  the  person  executing  it 
understood  what  he  was  doing  (f).29 

Dale,  and  he  tell  me  to  make  a  deed  An  anonymous  ease  to  the  contrary. 

for  one  acre  with  letter  of  attorney,  Skin.   159,  is  sufficiently  disposed   of 

and  I  make  the  deed  for  two  acres,  by    Lord    St.    Leonards'    disapproval 

and  read  and  declare  the  deed  to  him  (V.  &  P.  173). 

as  for  only  one  acre,  and  he  seal  the  (e)    I.e.    to   this    extent,    that    he 

deed,      this     deed     is     utterly     void  could   not   say    it   was   not   his    deed, 

whether    the    feoffor    be    lettered    or  apart  from  any  question  of  fraud  or 

not,  because  he  gave  credence  to  me  the  like. 

and  I  deceived  him."     (Keihv.  70,  6,  (f)  Boghton  v.  Hoghton  (1852)  15 

pi.  6.)     And  seethe  older  authorities  Beav.    278,    311.      In   the    case   of    a 

referred   to   in   note    (i) ,   next  page.  will  the  execution  of  it  by  a  testator 

Co.,  58  Minn.  178;  Wright  v.  McPike,  70  Mo.  175;  Alexander  v.  Brogley,  62 
N  J.  L.  584,  63  N.  J.  L.  307 ;  Jackson  v.  Hayner,  12  Johns.  469 ;  Green  v.  North 
Buffalo  Tchp.,  56  Pa.  110;  Schuylkill  County  v.  Copley,  67  Pa.  386;  Warner  r. 
Landis,  137  Pa.  61;  Coates  v.  Early,  46  S.  C.  220;  Cameron  e.  Estabrooks,  73 
Vt.  73;  Gross  r.  Drager,  66  Wis.  150;  Warder  Co.  r.  Whitish,  77  Wis.  430. 
Contra,  Hawkins  r.  Hawkins,  50  Cal.  558  (cp.  Meyer  v.  Haas,  126  Cal.  560)  ; 
Chicago,  etc.,  Ry.  Co.  r.  Belliwith,  83  Fed.  Rep.  437  (cp.  Great  Northern  Rv. 
Co.  I*.  Kasischke,  104  Fed.  Rep.  440,  449)  ;  Binford  r.  Bruso,  22  Ind.  App. 
512.     See  further  a  full  note  in  32  Am.  L.  Reg.    (N.  S.)    946. 

28  Robinson  r.  Glass,  94  Ind.  211;  Roach  r.  Karr,  18  Kan.  529;  Leddy  r. 
Barney,  139  Mass.  394;  Hallenbeck  v.  Dewitt,  2  Johns.  404;  Bauer  v.  Roth, 
4  Rawle,  83,  94 ;  Weller's  Appeal,  103  Pa.  594. 

So  one  able  to  read  is  bound  by  a  contract  which  he  signs  without  reading. 
Hazard  v.  Griswold,  21  Fed.  Rep.  178;  Lumley  r.  Railway  Co.,  71  Fed.  Rep. 
21;  Chicago,  etc.,  Ry.  Co.  r.  Belliwith,  83  Fed.  Rep.  437;  Railway  Co.  r. 
Green,  114  Fed.  Rep."  676;  New  York,  etc.,  Ins.  Co.  v.  McMaster,  87  Fed.  Rep. 
63,  67;  Goetter  v.  Weil,  61  Ala.  387;  Dawson  r.  Burns,  73  Ala.  Ill;  Martin 
v.  Smith,  116  Ala.  639;  Brooks  v.  Matthews,  78  Ga.  739;  Jossey  r.  Railroad 
Co.,  109  Ga.  439;  Georgia  Medicine  Co.  v.  Hyman,  117  Ga.  851;  Black  r. 
Railway  Co.,  Ill  III.  351;  Rogers  r.  Place,  29  Ind.  577;  Insurance  Co.  /■. 
McWhorter,  78  Ind.  136;  McCormick  I.  Molburg,  43  la.  561;  Bonnot  Co. 
v.  Newman,  108  la.  158 ;  Insurance  Co.  v.  Hodgkins,  66  Me.  109 ;  Eldridge  r. 
Dexter,  etc.,  Co.,  88  Me.  191;  Liska  r.  Lodge,  112  Mich.  635;  Dellinger  i. 
Gillespie,  118  N.  C.  737;  Greenfield's  Estate,  14  Pa.  489,  496;  Railroad  Co. 
v.  Shav,  82  Pa.  198;  Johnston  v.  Patterson,  114  Pa.  398;  Bishop  r.  Allen, 
55  Vt.'*23. 

A  court  of  equity,  however,  may  in  its  discretion  refuse  to  enforce  such  a 
contract.  McElroy  r.  Maxwell,  101  Mo.  294.  And  if  the  promisee  was  guilty 
of  fraud  the  fraud  will  be  a  defense  to  an  action  by  him,  though  the  promisor 
was  negligent  in  failing  to  read  the  contract.  Warden  r.  Reser,  38  Kan.  80 ; 
Alexander  r.  Brogley,  62  N.  J.  L.  584,  63  N.  J.  L.  307;  Smith  v.  Smith,  134 
N.  Y.  62.  But  see  Reid  r.  Bradley,  105  la.  220;  Dowagiac  Mfg.  Co.  r. 
Schroeder,    108    Wis.    109. 

29  Persons  dealing  with  an  illiterate  man  must  "  show  past  doubt  that  he 
fully  understood  the  object  and  import  of  the  writings  upon  which  they  are 
proceeding  to  charge  him."  Selden  r.  Mvers,  20  How.  506,  509.  See  also 
Spelts  v.  Ward,  96  N.  W.  Rep.  56   (Neb.). 


AS  TO  NATUBE  OF  TRANSACTION.  585 

Foster  v.  Mackinnon.  The  doctrine  was  expounded  and  confirmed 
by  the  luminous  judgment  of  the  Court  of  Common  Pleas  in  Foster 
v.  Mackinnon  (g).  The  action  was  on  a  bill  of  exchange  against  the 
defendant  as  indorser.  There  was  evidence  that  the  acceptor  had 
asked  the  defendant  to  put  his  name  on  the  bill,  telling  him  it  was 
a  guaranty;  the  defendant  signed  on  the  faith  of  this  representation 
and  without  seeing  the  face  of  the  bill.  The  Court  held  that  the 
signature  was  not  binding,  on  the  same  principle  that  a  blind  or 
illiterate  man  is  not  bound  by  his  signature  to  a  document  whose 
nature  is  wholly  misrepresented  to  him.30 

A  signature  so  obtained 

"  Is  invalid  not  merely  on  the  ground  of  fraud,  where  fraud  exists,  but 
on  the  ground  that  the  mind  of  the  signer  did  not  accompany  the  signature ; 
in  other  words,  that  he  never  intended  to  sign,  and  therefore  in  contempla- 
tion of  law  never  did  sign  the  contract  to  which  his  name  is  appended  ( h ) . 

of  sound  mind  after  having  had  it  and  for  the  same  reason,  in  a  re- 
read over  to  him  is  evidence,  but  not  script  of  Diocletian  and  Maximian : 
conclusive  evidence,  that  he  under-  Si  falsum  instrumentum  emptionis 
stood  and  ppproved  its  contents:  conscriptum  tibi,  velut  locatioms 
Fulton  v.  Andrew  (1875)  L.  E.  7  quam  fieri  mandaveras;  subscribere 
H.  L.  448,  460,  sqq.  472,  44  L.  J.  P.  te  non  relecto  sed  fidem  habentem 
17.  suasit,      neutrum      contractum,      in 

(</)    (1869)  L.  R.    4  C.  P.  704,  711,  utroque     alterutrius     consensu     defi- 

38  L.  J.  C.  P.  310.  ciente,    constitisse    procul    dubio   est. 

(h)    The   same  rule  is   laid  down,  C.  4.  22.  plus  valere,  5. 

30  Burroughs  v.  Pacific  Guano  Co.,  81  Ala.  255;  Folmar  v.  Siler,  132  Ala. 
297;  Wenzel  v.  Schultz,  78  Cal.  221;  Wood  v.  Cincinnati  Co.,  96  Ga.  120; 
Vanbrunt  v.  Singley,  85  111.  281;  Auten  v.  Gruner,  90  111.  300;  Cline  r. 
Guthrie,  42  Ind.  227;  Webb  v.  Corbin,  78  Ind.  403;  Mitchell  r.  Tomlinson,  91 
Ind.  167 ;  Lindley  r.  Hofman,  22  Ind.  App.  237 ;  Hopkins  v.  Insurance  Co.,  57 
la.  203;  Green  v.  Wilkie,  98  la.  74;  Freedley  v.  French,  154  Mass.  3-39; 
Gibbs  v.  Linabury,  22  Mich.  479;  Anderson  v.  Walter,  34  Mich.  113;  Soper 
v.  Peck,  51  Mich.  563;  Aultman  v.  Olson,  34  Minn.  450;  Briggs  r.  Ewert,  51 
Mo.  245;  Martin  r.  Smylee,  55  Mo.  577;  Bank  v.  Lierman,  5  Neb.  247; 
Willard  v.  Nelson,  35  Neb.  651;  Alexander  v.  Brogley,  62  N.  J.  L.  584,  63 
N.  J.  L.  307;  Marden  v.  Dorthy,  160  N.  Y.  39;  Porter  v.  Hardy,  10 
N.  Dak.  551;  DeCamp  v.  Hamma,  29  Ohio  St.  467;  Walker  v.  Ebert,  29  Wis. 
194;  Griffiths  v.  Kellogg,  39  Wis.  290;  Lord  v.  American  Assoc,  89  Wis.  19; 
Keller  v.  Ruppold,  115  Wis.  636.  Cp.  Bedell  v.  Hering,  77  Cal.  572;  Bank 
v.  Johns,  22  W.  Va.  520;  Dowagiac  Mfg.  Co.  v.  Schroeder,  108  Wis.  109. 

But  if  the  person  whose  signature  to  a  negotiable  instrument  has  been 
so  obtained  was  guilty  of  negligence  in  its  execution,  he  cannot  dispute  its 
validity  in  the  hands  of  an  innocent  holder  for  value,  and  the  better  opinion 
is,  that,  as  against  such  a  holder,  a  person  who  relies  as  to  the  character  of 
the  instrument  solely  upon  the  representations  of  the  party  at  whose  request 
he  signs  should  be  deemed  negligent.  Leach  c.  Nichols,  55  111.  273 ;  Nebecker 
V.  Cutsinger,  48  Ind.  436;  Ruddell  v.  Dillman,  73 -Ind.  518;  Baldwin  r. 
Barrows,  86  Ind.  351;  Yeagley  v.  Webb,  86  Ind.  424;  Douglass  r.  Matting,  29 
la.  498;  Bank  i\  Steffes,  54  la.  214;  Ort  v.  Fowler,  31  Kan.  478;  Abbott  r. 
Rose,  62  Me.  194;  Breckenridge  v.  Lewis,  84  Me.  349;  Mackey  v.  Peterson.  29 
Minn.  298;  Shirts  i\  Over  John,  60  Mb.  305;  Dinsmore  v.  Stimbert,  12  Neb. 
433 ;  Bank  v.  Smith,  55  N.'  H.  593 ;  Chapman  v.  Rose,  56  N.  Y.  137 ;  DeCamp 
v.  Hamma,  29  Ohio  St.  467,  471;  Ross  r.  Doland,  29  Ohio  St.  473. 


586  MISTAKE. 

.  .  .  The  position  that  if  a  grantor  or  covenantor  be  deceived  or  misled  as 
to  the  actual  contents  of  the  deed,  the  deed  does  not  bind  him,  is  supported  by 
463]  many  authorities:  See  Com.  Dig.  Fait  (B.  2)  (i),  *and  is  recognized  by 
Bayley  B.  and  the  Court  of  Exchequer  in  the  case  of  Edwards  v.  Brown  (fc). 
Accordingly  it  has  recently  been  decided  in  the  Exchequer  Chamber  that  if 
u  deed  be  delivered,  and  a  blank  left  therein  be  afterwards  improperly  rilled 
up  (at  least  if  that  be  done  without  the  grantor's  negligence),  it  is  not  the 
deed  of  the  grantor:  Swan  v.  North  British  Australasian  Land  Com- 
pany {I)  .31  These  cases  apply  to  deeds;  but  the  principle  is  equally  appli- 
cable to  other  written  contracts." 

The  judgment  proceeds  to  notice  the  qualification  of  the  general 
rule  in  the  case  of  negotiable  instruments  signed  in  blank,  when  the 
party  signing  knows  what  he  is  about,  i.  e.,  that  the  paper  is  after- 
wards to  be  filled  up  as  a  negotiable  instrument  (m).32  But  here 
the  defendant  "  never  intended  to  endorse  a  bill  of  exchange  at  all, 
but  intended  to  sign  a  contract  of  an  entirely  different  nature."  He 
was  no  more  bound  than  if  he  had  signed  his  name  on  a  blank  sheet 
of  paper,  and  the  signature  had  been  afterwards  fraudulently  mis- 
applied (n).33     This  decision  shows  clearly  that  an  instrument  exe- 

(i)  Cited  also  by  Willes  J.  2  C.  B.  mere  negligence  from  showing  that  a 
N.  S.  624,  and  see  2  Ro.  Ab.  28  S:  deed  is  not  really  bis  deed.  See  per 
the  eases  there  referred  to  ( 30  E.  III.  Byles  J.  2  H.  &  C.  184,  32  L.  J.  Ex. 
31  6;  10  H.  VI.  5,  pi.  10)  show  that  278,  and  per  Cockburn  C.J.  2  H.  &  C. 
the  principle  was  recognized  in  189,  32  L.  J.  Ex.  279.  Mellish  L.J. 
very  early  times.  Cp.  Fleta  1.  6,  c.  in  Hunter  v.  Walters  (1871)  L.  R.  7 
33  §  2.  Si  autem  vocatus  dicat  quod  Ch.  75,  87,  41  L.  J.  Ch.  175,  men- 
carta  sibi  nocere  non  debeat  .  .  .  tioned  this  question  as  still  open ; 
vel  quia  per  dolum  advenit,  ut  si  car-  and  see  Halifax  Union  v.  Wheel- 
tarn  de  feoffamento  sigillatam  [qu.  wright  (1875)  L.  R.  10  Ex.  183,  192, 
sigillavit  or  sigillaverit]  cum  scrip-  44  L.  J.  Ex.  121.  The  negative  an- 
tam  de  termino  annorum  sigillare  swer  seems  to  be  the  right  one:  cp. 
crediderit,  vel  ut  si  carta  fieri  debuit  Onward  Building  Society  v.  Smith- 
ad  vitam,  illam  fieri  fecit  in  feodo  et  son  [1893]  1  Ch.  1,  13,  14,  62  L.  J. 
huiusmodi,  dum  tamen  nihil  sit  quod  Ch.  138,  C.  A. 

imperitiae      vel      negligentiae      suae  ( m )    Whether  this  is  a  branch  of 

possit     imputari,     ut     [qu.     ut     si]  the  general  principle  of   estoppel  or 

sigillum    suum    senescallo   tradiderlt  a  positive  rule  of  the  law  merchant 

vel   uxori,   quod  cautius   debuit  cus-  was  much  doubted  in  Swan  v.  North 

todivisse.  British  Australasian  Land  Go.  (1863) 

(fc)    (1831)    1  C.  &  J.  307,  312,  35  in  the  Court  below,  7  H.  &  N.  603, 

R.  R.  720,  725.  31    L.    J.    Ex.   425.      In   the   present 

(I)    (1863)   2  H.  &  C.  175,  32  L.  J.  judgment  the  Court  of  C.  P.  seems  to 

Ex.  273.     And  it  was  there  doubted  incline  to  the  latter  view, 

whether  a   man  can   be  estopped  by  (ra)  L.  R.  4  C.  P.  at  p.  712. 

31  See  Vaca  Valley  Co.  v.  Mansfield,  84  Cal.  560;  McNeil  r.  Jordan,  28 
Kan.  7;  Chapman  v.  Veach,  32  Kan.  167;  Golden  v.  Hardesty,  93  la.  622; 
Logan  v.  Miller,  106  la.  511;  State  v.  Matthews,  44  Kan.  596;  White'  v. 
Duggan,  140  Mass.  18;  Pence  v.  Arbuckle,  22  Minn.  417;  Garland  v.  Wells, 
15  Neb.  <~98;  Steffian  v.  Milmo  Bank,  69  Tex.  513;  Schintz  v.  McManamy,  39 
Wis.  2C9;  Nelson  v.  McDonald^  80  Wis.  605. 

32  See  infra,  p.  866  et  seq. 

33  Nance  r.  Lary,  5  Ala.   370;   Wilson  r.  Miller,  72  111.  616;    Ca-ilkins  v. 


AS    TO    NATURE    OF    TRANSACTION.  587 

rated  by  a  man  who  meant  to  execute  not  any  such  instrument  but 
something  of  a  different  kind  is  in  itself  a  mere  nullity,  though  the 
person  so  executing  it  may  perhaps  be  estopped  from  disputing  it 
if  there  be  negligence  on  his  part  (o)  ;ai  and  that,  notwithstanding 
the  importance  constantly  attached  by  the  law  to  the  security  [464 
of  bona  fide  holders  of  negotiable  instruments,  no  exception  is  in  this 
ease  made  in  their  favour. 

Such  questions  in  equity  generally  complicated  with  circumstances  of  fraud. 
The  existence  of  a  fundamental  error  of  this  sort,  not  merely  as  to 
particulars,  but  as  to  the  nature  and  substance  of  the  transactions, 
has  seldom  been  considered  by  courts  of  equity  except  in  connection 
with  questions  of  fraud  from  which  it  is  not  always  practicable  to 
disentangle  the  previous  question,  Was  their  any  consenting  mind  at 
all?  There  is  enough  however  to  show  that  the  same  principles  are 
applied. 

Kennedy  v.  Green.  Thus  in  Kennedy  v.  Green  (p)  the  plaintiff  was 
induced  to  execute  an  assignment  of  a  mortgage,  and  to  sign  a  receipt 
for  money  which  was  never  paid  to  her,  "  without  s.eeing  what  she  was 
setting  her  hand  to,  by  a  statement  that  she  was  only  completing  her 
execution  of  the  mortgage  deed  itself,  or  doing  an  act  by  which  she 
would  secure  the  regular  payment  of  the  interest  upon  her  mortgage- 
money."  Lord  Brougham  expressed  a  positive  opinion  that  a  plea  of 
non  est  factum  would  have  been  sustained  at  law  under  the  circum- 
stances (q).35     But  his  decision  rested  also  on  the  defendant  having 

(o)    Cp.  Simons  v.  Great  Western  The    clerk's    statement    distinguishes 

Ry.   Co.    (1857)    2   C.  B.   N.    S.   620,  this  from  the  class  of  cases  cited  at 

where    the    plaintiff    was    held    not  pp.  *48,  *49,  above.     Where  a  person 

bound  by   a   paper  of  special   condi-  intending  to  execute  his  will  has  by 

tions  limiting  the  company's  respon-  mistake  executed  a  wrong  document, 

sibility    as    carriers,    which    he    had  that  document  cannot  be  admitted  to 

signed  without  reading  it,  being  in  probate   even    if   the    real    intention 

fact  unable   at   the  time  to  read   it  would    thereby   be    partially    carried 

for  want   of   his   glasses,    and  being  out:   In   the   goods   of  Hunt    (1875) 

assured  by  the  railway  clerk  that  it  L.  R.  3  P.  &  D.  250,  44  L.  J.  P.  43. 
was  a,  mere  form.     "The  whole  ques-  (p)    (1834)   3  M.  &  K.  699,  41  R. 

tion  was  whether  the  plaintiff  signed  R.  176. 

the    receipt    knowing    what    he   was  (q)  3  M.  &  K;  at  pp.  717,  718,  41 

about"-  per  Cockburn  C.J.  at  p.  624.  R.  R.   190,   191    (but  see  the  follow- 

Whisler,  29  la.  495;  First  Bank  v.  Zeims,  93  la.  140.  And  see  Baxendale  v. 
Bennett,  3  Q.  B.  D.  525. 

Notes  stolen  before  delivery  give  no  right  even  to  a  oona  fide  purchaser. 
Salley  v.  Terrill,  95  Me.  553;  Burson  v.  Huntington,  21  Mich.  415.  But.  a 
contrary  doctrine  was  laid  down  in  Shipley  v.  Carrol,  45  111.  285,  and  seems 
to  be  enacted  in  the  Negot.  Inst.  Law,  §  35.     See  14  Harv.  L.  Rev.  243. 

34  See  infra,  p.  866  et  seq. 

35  Burlington  Co.  v.  Evans  Co.,  100  la.  469;  Aultman  v.  Olson,  34  Minn. 
450.     But  see  contra,  Wall  v.  Muster's  Exec.,  23  Ky.  L.  Rep.  556. 


588  MISTAKE. 

constructive  notice  of  the  fraud,  and  no  costs  were  given  to  the  plain- 
tiff, her  conduct  being  considered  not  free  from  negligence. 

Vorley  v.  Cooke.  In  Vorley  v.  Cooke  (r )  there  were  cross  suits  for 
465]  fore*closure  and  for  cancellation  of  the  mortgage  deed.  The 
alleged  mortgagor  had  executed  the  mortgage  deed  at  the  instance  of 
his  solicitor,  believing  it  to  be  a  covenant  to  produce  deeds.  This 
mortgage  so  obtained  was  assigned  to  a  purchaser  for  valuable  con- 
sideration without  notice,  against  whom  no  relief  could  have  been 
given  had  the  deed  been  only  voidable  (p.  *444,  above).  It  was  held 
that  the  deed  was  wholly  void  and  no  estate  passed  by  it,  and  decreed 
accordingly  that  it  must  be  delivered  up  to  be  cancelled.  The  some- 
what similar  decision  in  Ogilvie  v.  Jeaffreson  (r)  was  mainly  on  the 
ground  that  the  defendants  were  not  purchasers  without  notice;  the 
use  of  the  words  "  wholly  void  "  is  therefore  immaterial. 

On  the  other  hand, 

"  When  a  man  knows  that  he  is  conveying  or  doing  something  with  his  es- 
tate, but  does  not  ask  what  is  the  precise  effect  of  the  deed,  because  he  is 
told  it  is  a  mere  form,  and  has  such  confidence  in  his  solicitor  as  to  execute 
the  deed  in  ignorance,  then  a,  deed  so  executed,  although  it  may  be  voidable 
upon  the  ground  of  fraud,  is  not  a  void  deed  "  (s)  .36 

ing  note).  Sir  John  Leach  seems  to  v.  Jackson  (1886)  33  Ch.  Div.  1; 
have  thought  the  estate  did  pass :  3  and  Lloyd's  Bank,  Ltd.  v.  Bullock 
M.  &  K.  p.  713,  41  R.  R.  187.  Hence  [1896]  2  Ch.  192,  196,  65  L.  J.  Ch. 
the  variance  between  the  form  of  the  680.  Empson's  case  (1870)  (L.  R.  9 
decree  affirmed  and  Lord  Brougham's  Eq.  597,  where  no  authorities  appear 
view  of  the  case.  Stuart  V.-C.'s  re-  to  have  been  cited)  seems  distin- 
mark  (2  Giff.  381)  applies  to  the  guishable.  There  the  applicant 
M.  R.'s  judgment,  not  to  Lord  bought  land  of  a  building  society 
Brougham's.  and  executed  without  examination 
(r)  (1857)  1  Giff.  230,  27  L.  J.  mortgage  deeds  prepared  by  the  so- 
Ch.  185;  and  see  the  reporter's  note,  ciety's  solicitor  to  secure  the  price, 
p.  237.  This  decision  seems  to  be  These  deeds  contained  recitals  that 
within  the  authority  of  Thorough-  he  was  a  member,  and  treated  the 
good's  case  (which  curiously  enough  whole  transaction  as  an  advance  by 
was  not  cited),  at  all  events  as  since  the  society  to  one  of  its  own  mem- 
construed  in  Foster  v.  Mackinnon  (p.  bers.  He  was  never  admitted  or  oth- 
462,  above ) .  However,  James  L.J.  erwise  treated  as  a  member.  The 
intimated  an  opinion  that  a  plea  of  Court  held  that  he  was  not  a  con- 
non  est  factum  could  not  have  been  tributory  in  the  winding-up  of  the 
sustained  at  law  either  here  or  in  society.  Here  the  matter  of  the  ficti- 
Kennedy  v.  Green:  Hunter  v.  Wal-  tious  recitals  was  collateral  to  the 
ters  (1871)  L.  R.  7  Ch.  at  p.  84;  cp.  main  purpose  of  the  transaction.  Ob- 
Ogilvie  v.  Jeaffreson  (1859-60)  2  serve  that  so  far  as  the  deed  pro- 
Giff.  353,  29  L.  J.  Ch.  905.  fessed  to  treat  Empson  as  a  share- 
(r)  See  preceding  note.  holder  it  was  void,  not  only  voidable: 
(s)  Hunter  v.  Walters  (1871)  L.  otherwise  it  would  have  been  too  late 
R.  7  Ch.  75 ;  per  Mellish  L.J.  at  p.  to  repudiate  the  shares  after  the 
88 ;   cp.  Xat.  Prov.  Bank  of  England  winding-up  order. 

36  In  Terry  v.  Tuttle,  24  Mich.  206,  2,11,  212,  the  court  held  that  "If  a  per- 
son signs  and  acknowledges  a  deed,  supposing  it  to  be  a  lease,  without  reading 
the  same,  and  thereby  enables  his  grantee  to  sell  to  an  innocent  purchaser  for 
value,    he    cannot    as    against    the   latter    deny    the    validitv    of    the    deed." 


AS  TO   LEGAL  CHARACTER  OF  TRANSACTION.  589 

A  conveyance  from  A.  to  B.,  purporting  to  grant  that  *which  [466 

A.  has  already  conveyed  by  deed,  and  being  obtained  by  B.'s  fraud, 
is  not  void  as  a  deed,  and  may  create  an  estate  by  estoppel  if  it  con- 
tains sufficiently  clear  averments  (£). 

A  contractor  must  stand  by  the  words  of  his  contract,  and,  if  he 
will  not  read  what  he  signs,  he  alone  is  responsible  for  his  omission  («). 

And  it  has  been  laid  down  that  a  man  of  business  who  executes 
"  an  instrument  of  a  short  and  intelligible  description  cannot  be  per- 
mitted to  allege  that  he  executed  it  in  blind  ignorance  of  its  real 
character  "  (a;).37  Probably  this  is  to  be  taken  as  stating  an  inference 
of  fact  rather  than  a  rule  of  law;  but  under  such  conditions  the  in- 
ference is  irresistible. 

Error  as  to  legal  character  of  the  transaction.  There  may  also  be  a 
fundamental  error  affecting  not  the  whole  substance  of  the  transac- 
tion, but  only  its  legal  character.  It  is  apprehended  that  on  principle 
a  case  of  this  kind  must  be  treated  in  the  same  way  as  those  we  have 
already  considered;  that  is,  if  the  two  parties  to  a  transaction  con- 
template wholly  different  legal  effects,  there  is  no  agreement:  but  this 
will  not  prevent  an  act  done  by  either  party  from  having  any  other 
effect  which  it  can  have  by  itself  and  which  it  is  intended  to  have 
by  the  party  doing  it. 

Thus  if  A.  gives  money  to  B.  as  a  gift,  and  B.  takes  it  as  a  loan, 

B.  does  not  thereby  become  A/s  debtor  (y),38  but  the  money  is  not 

(*)  Onward-  Building  Soc.  v.  (y)  But  if  B.  communicates  to  A. 
Smithson    [1893]    1    Ch.    1,   62   L.   J.       his   intention  of  treating  the  money 

Ch.   138,  C.  A.  as  a  loan,  and  A.  assents,  then  there 

(«)   Upton  v.  Tribilcock   (1875)  91        is  a  good  contract  of  loan.     See  Bill 

U.  S.  45,   50.  v.   Wilson    (1873)    L.   R.  8  Ch.   888: 

(x)      Per     Lord     Chelmsford  C.        per  Mellish  L.J    at  p.  896;  where  it 

~Wyth.es  v.  Labouchere  (1858-9)   3  De       was    held    that   an    advance    at   first 

G.  &  J.  593,  601.  intended  to  be  a  gift  had  in  this  way 

Gavagan  v.  Bryant,  83  111.  376;  Quinn  v.  Brown,  71  la.  376.  And  see  McNeil 
r.  Jordan,  28  Kan.  7.  Cp.  McGinn  v.  Tobey,  62  Mich.  252;  Marden  r.  Dorthy, 
160  N.  Y.  39.  In  Harris  r.  Smith,  40  Mich.  453,  "  a  bill  to  set  aside  a  deed 
which  conveyed  certain  lands  and  a  mortgage,  on  the  ground  that  complain- 
ant had  not  examined  it  and  did  not  know  that  it  was  a  deed  when  she 
signed  it,  but  was  led  to  believe  that  it  was  a  formal  instrument  for  dividing 
certain  personal  property,  was  dismissed  on  her  own  showing  that  she  had 
seen  that  it  contained  a  description  of  land  and  reference  to  a  mortgage." 
And  cp.  cases  cited  supra,  p.  585,  note  30. 

37  "  It  will  not  do  for  a  man  to  enter  into  a  contract,  and  when  called  upon  to 
abide  by  its  conditions,  say  that  he  did  not  read  it  when  he  signed  it,  or 
did  not  know  what  it  contained."  Upton  r.  Tribilcock,  91  U.  S.  45,  50 ; 
Stutz  v.  Handley,  41  Fed.  Rep.  531,  534;  Insurance  Co.  v.  Henderson,  69  Fed. 
Rep.  762,  768;  Boyston  v.  Miller,  76  Fed.  Rep.  50;  Wagner  v.  National  Ins. 
Co.,  90  Fed.  Bep.  395,  407;  Wallace  v.  Chicago,  etc.,  B.  Co.,  67  la.  547; 
Jackson  v.  Olney,  140  Mass.  195;  Sanger  v.  Dun,  47  Wis.  615,  620;  supra, 
p.  584,  note  28. 

38  See  Re  Stevens'  Est.,  83  Cal.  322. 


590  MISTAKE. 

467]  the  less  effectually  delivered  to  B.  (z).39  *So,  if  a  baker  who 
has  ordered  flour  of  A.'s  receives  by  a  warehouseman's  mistake  flour 
of  B.'s,  which  is  more  valuable,  and  consumes  it  in  good  faith,  he  is 
not  liable  to  B.  for  the  true  value  (a).40 

We, have  seen  however  (p.  *450),  that  mistake  as  to  any  particular 
effect  of  a  contract  depending  on  its  true  construction  does  not  dis- 
charge the  contracting  party  or  entitle  him  to  act  upon  his  own 
erroneous  construction. 

B.  Error  as  to  the  person  of  the  other  party. 

Error  in  persona.  Another  kind  of  fundamental  error  is  that  which 
relates  to  the  person  with  whom  one  is  contracting.     Where  it  is 

been  turned  into  a,  loan,  and  was  a  intention  free  from  error  on  the  one 

good  consideration  for  a  promissory  part  and  an  assent  on  the  other.   But 

note     subsequently     given     for     the  a  wholly  mistaken  handing  over   of 

amount.  money  or  goods  passes  no  property: 

(z)   Savigny,  Syst.  3.  269;  Paulus.  R.  v.  Middleton  (1873)   L.  R.  2  0.  C. 

D.  44.  7.  de  o.  et  a.  3  §  1.    Non  satis  R.  38,  44,  42  L.  J.  M.  C.  73 ;  Kings- 

autem  est  dantis  esse  numos  et  fieri  ford  v.  Merry  (1856)    (Ex.  Ch.)   1  H. 

accipientis,     ut     obligatio     nascatur,  &  N.  503,  26  L.  J.  Ex.  83 ;   and  see 

sed  etiam  hoc  animo  dari  et  accipi  Chapman   v.    Cole    (1858)     12    Gray 

ut  obligatio   eonstituatur.     Itaque  si  (Mass.)    141;   R.  v.  Ashioell    (1885) 

quis   peeuniam   suam   donandi   causa  16  Q.  B.  D.   190,  55  L.  J.  M.  C.  65. 

dederit  mihi,  quamquam  et  donantis  [Jones  v.  State,  99  Ga.  46;   State  v. 

f uerit,   et  mea  fiat,  tamen  non  obli-  Ducker,  8  Oreg.  394 :   State  v.  Robin- 

gabor    ei,    quia    non    hoe    inter    nos  son,  11  Tex.  App.  403.] 
actum  est.     As  to  the  transfer  of  the  (a)     Hills    v.    Snell     (1870)     104 

property    being    effectual     (notwith-  Mass.  173;  cp.  the  somewhat  similar 

standing  Ulpian's  opinion  in  D.  12  1.  case   put   by   Bramwell    B.   in   R.   v. 

de  reb.  ered.  18  pr.)   cp.  Julianus,  D.  Middleton  (1873)  L.  R.  2  C.  C.  R.  at 

41.   1.  de  acq.  rer.  dom.  36.     The  rea-  p.  56. 
son  is  that  to  that  extent  there  is  an 

39  Where  a  party  "  purchased  at  an  administrator's  sale  a  drill  machine, 
which,  unknown  to  all  concerned,  contained  money  and  other  valuables 
secreted  there  by  the  decedent,  it  was  held  that  the  sale  passed  to  the  pur- 
chaser the  right  to  the  machine,  and  every  constituent  part  of  it,  but  not  to 
the  valuables  contained  in  it,  which  on  discovery  were  to  be  held  as  treasure 
trove  for  the  personal  representatives  of  the  deceased  owner.  Huthmaeher  v. 
Harris'  Admr.,  38  Pa.  491.  See  also  Cooper  r.  Commonwealth,  110  Kt.  123; 
Keron  v.  Cashman,  33  Atl.  Rep.  1055  (N.  J.)  ;  Durfee  v.  Jones,  11  R.  I.  588; 
Robinson  v.  State,  11  Tex.  App.  403;  52  L.  R.  A.  136n. 

The  owner  of  a  gold  coin  issued  by  a  private  individual,  and  of  the  value 
of  $10,  passed  it  by  mistake  for  half  a  dollar  to  A. ;  A.,  under  a  like  mistake, 
passed  it  to  B.  Held,  That  A.  acquired  no  property  in  the  gold  piece,  and 
could  convey  none  to  B.  Chapman  r.  Cole,  12  Gray,  141 ;  Filgo  r.  Pennv, 
2  Murphey,  182.  And  see  Gardner  v.  Lane,  9  Allen,  492  (stated  infra,  p.  603, 
note  60. 

40  So,  in  a  case  of  barter,  where  A.  was  under  an  obligation  to  deliver  to 
B.  a  specific  quantity  of  grain,  and  in  order  to  satisfv  the  obligation,  placed 
the  required  amount  of  grain  in  B.'s  bins  without  notifying  B.,  who  consumed 
it  in  ignorance  of  A.'s  act,  the  obligation  was  held  not  discharged,  since  B. 
was  entitled  to  inspect  the  grain  to  determine  quality  and  quantity  before 
accepting.    Jenkins  v.  Mapes,  53  Ohio  St.  110. 


AS    TO    PERSON.  591 

material  for  the  one  party  to  know  who  the  other  is,  this  prevents 
any  real  agreement  from  being  formed  (6).  Such  knowledge  is  in 
fact  not  material  in  a  great  part  of  the  daily  transactions  of  life, 
as  for  instance  when  goods  are  sold  for  ready  money,  or  when  a  rail- 
way traveller  takes  his  ticket:  and  then  a  mere  absence  of  knowledge 
caused  by  complete  indifference  as  to  the  person  of  the  other  party 
cannot  be  considered  as  mistake,  and  there  can  be  no  question  of  this 
kind.  In  principle,  however,  the  intention  of  a  contracting  party  is 
to  create  an  obligation  between  himself  and  another  certain  person,  and 
if  that  *intention  fails  to  take  its  proper  effect,  it  cannot  be  [468 
allowed  to  take  the  different  effect  of  involving  him  without  his  con- 
sent in  a  contract  with  some  one  else. 

Boulton  v.  Jones.  In  Boulton  v.  Jones  (c)  an  order  for  goods  had 
been  addressed  by  the  defendants  to  a  trader  named  Brocklehurst, 
who  without  their  knowledge  had  transferred  his  business  to  the 
plaintiff  Boulton.  The  plaintiff  supplied  the  goods  without  notifying 
the  change,  and  after  the  goods  had  been  accepted  sent  an  invoice 
in  his  own  name,  whereupon  the  defendants  said  they  knew  nothing 
of  him.  It  was  held  that  there  was  no  contract,  and  that  he  could 
not  recover  the  price  of  the  goods.  Possibly  the  person  for  whom  the 
order  was  meant  might  have  adopted  the  transaction  if  he  had  thought 
fit.  But  with  the  plaintiff  there  was  no  express  contract,  for  the 
defendant's  offer  was  not  addressed  to  him;  nor  yet  an  implied  one, 
for  the  goods  were  accepted  and  used  by  the  defendants  on  the  foot- 
ing of  an  express  contract  with  the  person  to  whom  their  offer  was 
really  addressed.  The  defendants  might  have  had  a  set-off  against 
the  person  with  whom  they  intended  to  contract  (d).*1 

(b)  Savigny,  Syst.  3.  269;  Pothier,  followed  in  its  full  extent.  But 
Obi.  §  19,  adopted  by  Fry  J.  in  might  it  not  be  contended  that  ac- 
Smiih  V.  Wheatcroft  (1878)  9  Ch.  cording  to  general  usage  a  proposal 
D.  at  p.  230,  47  I<.  J.  Ch.  745.  If  I  addressed  to  a  trader  at  his  place  of 
take  a  loan  from  A.  thinking  he  is  business  for  the  supply  of  goods  in 
B.'s  agent  to  lend  me  the  money  the  way  of  that  business  is,  in  the 
when  he  is  in  truth  C.'s  there  is  no  absence  of  anything  showing  special 
contract  of  loan,  though  C.  may  get  personal  considerations,  a  proposal 
back  his  money  by  condictio:  D.  12.  to  whoever  is  carrying  on  the  same 
1.  de  reb.  cred.  32.  business    continuously    at    the    same 

(c)  Boulton  v.  Jones   (1857)    2  H.  place  and  under  the  same  name? 

&  N.  564,  27  L.  J.  Ex.  117.    And  see  (d)  Cp.  MitchelVv.  L'apage  (1816) 

Boston  Ice  Co.  v.  Potter  (1877)  123  Holt  N.  P.  253,  17  R.  R.  633,  a  some- 
Mass.  28,  where  Boulton  v.  Jones  was       what   similar    case,   where    the   pur- 

*!  If  goods  ordered  of  A.  are  furnished  by  B.,  and  the  buyer  becomes  aware 
of  this  fact  at  any  time  before  he  has  used  the  goods,  he  must  pay  for  them. 
Cincinnati  Gas  Co.  v.  Western  Siemens  Co.,  152  U.  S.  200,  202;  Barnes  v. 
Shoemaker,   112  Ind.  512;   Orcutt  v.  Nelson,  1  Gray,  536;   Mudge  v.  Oliver, 


592  .MISTAKE. 

Personation.  Again,  if  A.  means  to  sell  goods  to  B.,  and  C.  obtains 
delivery  of  the  goods  by  pretending  to  be  B.'s  agent  to  make  the  con- 
469]  tract  and  receive  the  goods  (e),42  or  if  C,  who  is  a  *man  of 
no  means,  obtains  goods  from  A.  by  writing  for  them  in  the  name  of 
B.,  a  solvent  merchant  already  known  to  A.,  or  one  only  eolourably 
differing  from  it  (f),43  there  is  not  a  voidable  contract  between  A.  and 
C,  but  no  contract  at  all;  no  property  passes  to  C,  and  he  can 
transfer  none  (save  in  market  overt)  even  to  an  innocent  purchaser. 
The  pretended  sale  fails  for  want  of  a  real  buyer.  There  is  only 
an  offer  on  A.'s  part  to  the  person  with  whom  alone  he  means  to  deal 
and  thinks  he  is  dealing. 

chaser,  after  notice,  had  treated  the  (1876)    3   Ch.   D.   123,   45  L.  J.   Bk. 

contract  as  subsisting.    Analogous  in  120;     Edmunds    v.    Merchants'    Des- 

some  ways,  but  really  having  noth-  patch  Transport  Co.,  135  Mass.  283. 

ing  to  do  with  any  rule  specially  re-  decides  that  if  A.  in  person  obtains 

lating    to    mistake,    is    the    class    of  goods  by  pretending  to  be  B.,  then, 

cases  showing  that  a  subsisting  cou-  as    A.    is    "  identified    by    sight    and 

tract  cannot  be  performed  by  a  per-  hearing,"   property  does   pass.      [See 

son    with    whom    it   was   not   made:  also   Emporia   Bank    v.    Shotwell,    35 

Bobson  v.  Drummond    (1831)    2  B.  &  Kan.  300:  Robertson  v.  Coleman,  141 

Ad.   303,   36   B.   R.   569 :    Humble  v.  Mass.  231 :  Land  Trust  Co.  v.  North- 

Sunter    (1848)    12  Q.   B.   310,  17   L.  western  Bank,  196  Pa.  230.     Cp.  Tol- 

J.  Q.  B.  350.  man  v.  American  Bank,  22  R.  I.  462.] 

(e)  Hardman  v.  Booth  (1863)  1  Sed  qu.  and  cf.  Pothier,  Obi.  §  19. 
H.  &  C.  803,  32  L.  J.  Ex.  105;  cp.  So,  if  a  man  is  persuaded  td  join  a 
Kingsford  v.  Merry  (1856)  1  H.  &  new  company  by  fraudulently  repre- 
N.  503,  26  L.  J.  Ex.  83;  Hollins  v.  senting  it  to  be  identical  with  an 
Foirlrr  (1874-5)  L.  R.  7  H.  L.  757,  older  company  of  similar  name,  he 
763,  795.  does     not     become     a     shareholder: 

(f)  Lindsay  v.  Cundy,  Gundy  v.  Baillie's  case  [1898]  1  Ch.  110,  67 
Lindsay    (1878)    3  App.   Ca.   459,  47  L.  J.  Ch.  81. 

L.   J.    Q.   B.   481;    Ex  parte  Barnect 

1  Allen,  74.  If  the  goods  are  sold  by  the  purchaser  before  he  knows  that 
they  were  furnished  by  B.,  B.  may  recover  in  money  had  and  received,  the 
price  received  for  them.  Burton  Lumber  Co.  v.  Wilder,  108  Ala.  669.  See 
also  Randolph  Iron  Co.  r.  Elliott,  34  N.  J.  L.  184.  If  the  buyer  discovers 
who  is  furnishing  the  goods  before  they  are  delivered,  he  may  of  course  de- 
cline to  receive  them.  Mitchell  v.  Lapage,  Holt  N.  P.  253;  Barcus  r. 
Domes,  64  N.  Y.  App.  Div.  109. 

42  Smith  Typewriter  Co.  v.  Stidger,  71  Pac.  Rep.  400  (Col.  App.);  Alex- 
ander r.  Schwackhamer,  105  Ind.  81;  Decan  v.  Shipper.  35  Pa.  239;  Hamet 
r.  Letcher,  37  Ohio  St.  356;  Edmunds  v.  Merchants'  Desp.  Transp.  Co.,  135 
Mass.  283 ;  Rodliff  v.  Dallinger,  141  Mass.  1 ;  Hentz  r.  Miller,  94  N.  Y.  64. 
And  see  Dean  v.  Yates,  22  Ohio  St.  388;  Moody  v.  Blake,  117  Mass.  23; 
Barker  v.  Dinsmore,  72  Pa.  427.  Contra,  Hawkins  v.  Davis,  8  Baxt.  506.  But 
if  A.  sells  goods  to  B.,  erroneously  supposing  him  to  be  purchasing  as  agent 
for  C,  but  without  any  representation  or  pretense  on  the  part  of  B.  that  he 
was  buying  as  agent  for  another,  the  contract  is  valid  and  the  title  to  the 
goods  passes  to  B.  Stoddard  r.  Ham,  129  Mass.  383.  Cp.  Ex  parte  Bar- 
nett,  3  Ch.  D.  123.  And  see  Ellsworth  r.  Randall,  78  la.  141;  Huffman  l: 
Long,  40  Minn.  473;  Kayton  v.  Barnett,  116  N.  Y.  625. 

43  Pee  Bruhl  r.  Coleman,  113  Ga.  1102;  Pacific  Express  Co.  r.  Shearer. 
IfiO  111.  215;  Oskamp  v.  Southern  Express  Co.,  61  Ohio  St.  341;  Sword"  r. 
Young,  89  Tenn.  126. 


AS    TO    PERSON.  593 

Probably  the  principle  cannot  be  extended  to  deeds.  Whether  any  analo- 
gous doctrine  applies  to  deeds  is  a  question  on  which  there  does  not 
seem  to  be  any  clear  authority.  We  have  seen  that  if  a  man  seals 
and  delivers  (at  any  rate  without  culpable  negligence)  a  parchment 
tendered  to  him  as  being  a  conveyance  of  his  lands  of  Whiteacre, 
which  is  in  fact  a  conveyance  of  his  lands  of  Blackacre,  it  is  not  his 
deed  and  no  estate  passes.  It  might  be  argued  that  there  is  no  reason 
why  the  insertion  of  a  wrong  party,  if  material,  should  not  have  the 
same  result  as  the  insertion  of  wrong  parcels;  and  that  if  a  man 
executes  a  conveyance  of  Whiteacre  to  A.  as  and  for  a  conveyance  of 
the  same  estate  to  B.  it  is  equally  not  his  deed.  But  the  judgment  in 
Hunter  v.  Walters  (g)  is  certainly  adverse  to  such  a  view.44 

Satisfaction  by  a  stranger  to  the  contract.  It  is  on  the  same  principle 
that  a  party  to  whom  any*thing  is  due  under  a  contract  is  not  [470 
bcund  to  accept  satisfaction  from  any  one  except  the  other  contraet- 
iug  party,  in  person  where  the  nature  of  the  contract  requires  it  (h), 
or  otherwise  by  himself,  his  personal  representatives,  or  his  author- 
ized agent :  and  it  has  even  been  thought  that  the  acceptance  of  satis- 
faction from  a  third  person  is  not  of  itself  a  bar  to  a  subsequent  action 
upon  the  contract.45  It  seems  that  the  satisfaction  must  be  made 
in  the  debtor's  name  in  the  first  instance  and  be  capable  of  being- 
ratified  by  him  (i),  and  that  if  it  is  not  made  with  his  authority  at 
the  time  there  must  be  a  subsequent  ratification,  which  however  need 
not  be  made  before  action  (Jc).  But  these  refinements  have  not 
been  received  without  doubt  (I)  :  and  it  is  submitted  that  the  law 

{g)    (1871)   L.  E.  7  Ch.  75;  supra,  (i)   James  v.  Isaacs   (1852)    12  C. 

p.  *465.     On  the  other  hand,  "if  A.  B.  791,  22  L.  J.  C.  P.  73;   Lucas  v. 

personating  B.  executes  a  deed  in  the  Wilkinson   (1856)    1  H.  &  N.  420,  Z(i 

name  of  B.  purporting  to  convey  B.'s  L.  J.  Ex.  13. 

property,  no  right  or  interest  can  (k)  Simpson  v.  Eggington  (1856) 
possibly  pass  by  such  an  instrument.  10  Ex.  845,  24  L.  J.  Ex.  312  (ratifi- 
It  is  not  a  deed.  It  makes  no  differ-  cation  by  plea  of  payment  or  at  the 
ence  in  law  that  A.  had  the  same  trial  may  be  good ) . 
name  as  B.  if  the  false  personation  is  (I)  See  per  Willes  J.  in  Cook  v. 
established;  still  the  instrument  is  Lister  (1863)  13  C.  B.  N.  S.  594,  32 
not  a  deed,  and  that  plea  would  be  L.  J.  0.  P.  121,  who  considered  the 
a  complete  answer  by  B.  or  any  one  doctrine  laid  down  in  Jones  v.  Broad- 
claiming  through  him":  Cooper  v.  hurst  (next  note)  that  payment  by 
Vesey  (1882)  20  Ch.  Div.  611,  623,  a  stranger  is  no  payment  till  assent. 
51  L.  J.  Oh.  862.  (Kay  J.;  affd.  in  as  contrary  to  a  well-known  princi- 
C.  A.  20  Ch.  Div.  627.)  pie  of  law:   the   civil   law  being  the 

(h)      See     Roiinson     v.     Davison  other  way  expressly,   and  mercantile 

(1871)   L.  R.  6  Ex.  269,  40  L.  J.  Ex.  law  by  analogy:   at  the  least  assent 

J72  ought  to  be  presumed   (cp.  L.  B.  10 

Ch.  416). 

«  But  see  Terry  v.  Tuttle,  24  Mich.  206,  212. 
45  See  infra,  p.  840. 
38 


594  MISTAKE. 

cannot  depart  in  substance,  especially  now  that  merely  technical  ob- 
jections are  so  little  favoured,  from  the  old  maxim  "  If  I  be  satisfied 
it  is  not  reason  that  I  be  again  satisfied  "(m). 

Assignment  of  contracts.  So  far  the  rule  of  common  law.  The  power 
of  assigning  contractual  rights  which  has  long  been  recognized  in 
equity,  and  which  under  the  Judicature  Act,  1873  (s.  25,  sub-s.  6) 
is  now  recognized  as  effectual  in  law,  does  not  constitute  a  direct 
exception.  For  we  are  now  concerned  only  to  ascertain  the  existence 
or  non-existence  of  a  binding  contract  in  the  first  instance.  But 
on  the  other  hand  the  limit  set  to  this  power  (which  we  have  already 
471]  considered  *under  another  aspect)  (n)  may  be  again  shortly 
referred  to  as  illustrating  the  same  principle. 

Generally  speaking,  the  liability  on  a  contract  cannot  be  trans- 
ferred so  as  to  discharge  the  person  or  estate  of  the  original  contractor, 
unless  the  creditor  agrees  to  accept  the  liability  of  another  person 
instead  of  the  first  (o). 

The  benefit  of  a  contract  can  generally  be  transferred  without  the 
other  party's  consent,  yet  not  so  as  to  put  the  assignee  in  any  better 
position  than  his  assignor  (oo).  Hence  the  rule  that  the  assignee 
is  bound  by  all  the  equities  affecting  what  is  assigned.  Hence  also 
the  "  rule  of  general  jurisprudence,  not  confined  to  choses  in  ac- 
tion .  .  that  if  a  person  enters  into  a  contract,  and  without  notice 
of  any  assignment  fulfils  it  to  the  person  with  whom  he  made  the 
contract,  he  is  discharged  from  his  obligation"  (p),  and  the  various 
consequences  of  its  application  in  the  equitable  doctrines  as  to  priority 
being  gained  by  notice. 

Rights  founded  on  personal  confidence  cannot  be  assigned.  Again,  rights 
arising  out  of  a  contract  cannot  be  transferred  if  they  are  coupled 

(m)    Fitzh.  Ab.  tit.  Barre,  pi.  166,  law:    for    (1)    the   transferor   is   not 

repeatedly  cited  in  the  modern  cases  immediately    discharged:        (2)     the 

where  the  doctrine  is  discussed.     See  company    is    not    always    bound    to 

in  addition  to  those  already  referred  register  the  transfer, 

to,  Jones  v.  Broadhurst   (1850)    9  C.  (oo)  Or  the  other  party  in  a  worse 

B.  173;  Belshaw  v.  Bush   (1851)    11  one  than  he  was  before:    Tolhwrst  v. 

C.  B.  191,  267,  22  L.  J.  C.  P.  24.  Associated  Portland  Cement  Mam.it- 
(n)  Ch.  V.,  supra,  p.  *217,  sqq.  facturers  [1901]  2  K.  B.  811,  70  L. 
(o)    See   p.    *204,   above.      The   ex-       J.   K.   B.    1036.      [This   decision  was 

ceptions  to  this  are  but  partial.   Thus  reversed    by    the    Court    of    Appeals 

the    assignor    of    leaseholds    remains  [1902]   2   K.   B.   660;    and  on   appeal 

liable    on    his   express    covenants:    1  to  the  House  of  Lords  the  validity  of 

Wms.   Saund.   298.     A  stronger  ease  the    assignment    was    again    upheld 

is  the  transfer   of   shares  in  a  com-  [1903]   A.  C.  414.] 

pany  not  fully  paid  up:  but  the  spe-  (p)    Per  Willes  J.  De  yichnlls  v. 

cial    statutory    law    governing    these  Saunders    (1870)    L.   R.   5  C.   P.   589 

transactions   has   not"  altogether   lost  at  p.  594,  39  L.  J.  C.  P.  297. 
sight  of  the  principles  of  the  general 


AS    TO    PERSON.  595 

with  liabilities,  or  if  they  involve  a  relation  of  personal  confidence 
such  that  the  party  whose  agreement  conferred  those  rights  must  have 
intended  them  to  be  exercised  only  by  him  in  whom  he  actually  con- 
fided (g).4G  Thus  one  partner  cannot  transfer  his  share  so  as  to 
force  a  new  partner  on  the  other  members  of  the  firm  without  their 
consent :  all  he  can  give  to  an  assignee  is  a  right  to  receive  what  may 
be  due  to  the  assignor  on  the  balance  of  the  partnership  accounts,  and 
if  the  partnership  *is  at  will,  the  assignment  dissolves  it;  if  [472 
not,  the  other  partners  may  treat  it  as  a  ground  for  dissolution.*7 
And  a  sub-partner  has  no  rights  against  the  principal  firm. 

"  At  the  present  day,  no  doubt,  an  agreement  to  pay  money,  or 
to  deliver  goods,  may  be  assigned  by  the  person  to  whom  the  money 
is  to  be  paid  or  the  goods  are  to  be  delivered,  if  there  is  nothing  in 
the  terms  of  the  contract,  whether  by  requiring  something  to  be 
afterwards  done  by  him,  or  by  some  other  stipulation,  which  mani- 
fests the  intention  of  the  parties  that  it  shall  not  be  assignable.  But 
every  one  has  a  right  to  select  and  determine  with  whom  he  will  con- 
tract, and  cannot  have  another  person  thrust  upon  him  without  his 
consent"  (r). 

In  the  same  way  a  contract  of  apprenticeship  is  prima  facie  a 
strictly  personal  contract  with  the  master  ;48  this  construction  may  be 

(q)    This  statement  was  approved  (r)     Cur.    per    Gray    J.    Arkansas 

by  the  Supreme  Court  of  the  U.  S.  in  Smelting    Co.   v.   Belden   Co.    (1888) 

Arkansas  Smelting  Co.  v.  Belden  Co.  127   U.   S.   379,   387. 
(1888)    127  U.  S.  379,  388. 

48  Delaware  County  v.  Diebold  Safe  Co.,  133  U.  S.  473;  Burke  v.  Taylor, 
152  U.  S.  634,  651;  The  Lizzie  Merry,  10  Ben.  140;  Bancroft  v.  Scribner, 
72  Fed.  Rep.  988;  Sloan  'v.  Williams,  138  111.  43;  Sprankle  v.  Truelove,  22 
Ind.  App.  577,  590;  Smalley  v.  Greene,  52  la.  241;  Rappleye  v.  Racine  Co.,  79 
la.  220;  Worden  v.  Railroad  Co.,  82  la.  735;  Schoonover  v.  Osborne,  108  la. 
453;  Shultz  v.  Johnson's  Admr.,  5  B.  Mon.  497;  Clinton  v.  Fly,  10  Me.  292; 
Eastern  Advertising  Co.  v.  McGaw,  89  Md.  72;  Lansden  v.  McCarthy,  45 
Mo.  106;  Boykin  v.  Campbell,  9  Mo.  App.  495;  Redheftcr  v.  Leathe,  15  Mo. 
App.  12;  Hilton  v.  Crooker,  30  Neb.  707,  716;  Kase  r.  Insurance  Co.,  58 
N.  J.  L.  34;  Thomas  v.  Thomas,  24  Oreg.  251;  King  v.  Batterson,  13  R.  I. 
117;  Palo  Pinto  County  v.  Gano,  60  Tex.  249;  Hodgson  v.  Perkins,  84  Va. 
706.  Cp.  Larne  i\  Groezinger,  84  Cal.  281;  Devlin  v.  Mayor,  63  N.  Y.  8; 
New  England  Iron  Co.  v.  Railroad  Co.,  91  N.  Y.  153,  167;  Rochester  Lantern 
Co.  v.  Stiles  Co.,  135  N.  Y.  209,  216;  Yorke  v.  Conde,  147  N.  Y.  486;  Vande- 
grift  t'.  Cowles  Engineering  Co.,  161  N.  Y.  435;  Liberty  Paper  Co.  r.  Stoner 
Co.,  59  N.  Y.  App.  Div.  353,  aflfd.  without  opinion  in  170  N.  Y.  582;  Mitchell 
v.  Taylor,  27  Oreg.  377;  Day  v.  Vinson,  78  Wis.  198.  See  also  18  Harv.  L. 
Rev.  23. 

«Matthewson  v.  Clarke,  6  How.  122;  Miller  r.  Brigham,  50  Cal.  615 ; 
Marquand  r,  N.  Y.  Mfg.  Co.,  17  Johns.  525;  Cochran  v.  Perry,  8  W.  &  S. 
262;  Horton's  Appeal,  13  Pa.  66. 

*8  Tucker  v.  Magee,  18  Ala.  99;  Davis  v.  Coburn,  8  Mass.  299;   Futrell  v. 


596  MISTAKE. 

excluded  however  by  the  intention  of  the  parties,  e.g.  if  the  master's 
executors  are  expressly  named  (s) ,  or  by  custom  (t). 

So  if  an  agent  appoints  a  sub-agent  without  authority,  the  sub- 
agent  so  appointed  is  not  the  agent  of  the  principal  and  cannot  be 
an  accounting  party  to  him  (w).49  On  the  same  principle  it  was 
held  in  Stevens  v.  Ben-ning  (x)  that  a  publisher's  contract  with  an 
author  was  not  assignable  without  the  author's  consent.  The  plain- 
tiffs, who  sought  to  restrain  the  publication  of  a  new  edition  of  a 
book  claimed  under  instruments  of  which  the  author  knew  nothing, 
and  which  purported  to  assign  to  them  all  the  copyrights,  &c,  therein 
mentioned  (including  the  copyright  of  the  book  in  question)  and  all 
the  agreements  with  authors,  &c,  in  which  the  assignors,  with 
473]  whose  firm  the  *author  had  contracted,  were  interested.  It 
was  decided  that  the  instrument  relied  on  did  not  operate  as  an 
assignment  of  the  copyright,  because  on  the  true  construction  of  the 
original  agreement  with  the  publishers  the  author  had  not  parted 
with  it:  also  that  it  did  not  operate  as  an  assignment  of  the  contract, 
because  it  was  a  personal  contract,  and  it  could  not  be  indifferent  to 
the  author  into  whose  hands  his  interests  under  such  an  engagement 
were  entrusted.  In  the  plaintiffs,  however  trustworthy,  the  author 
had  not  agreed  or  intended  to  place  confidence :  with  them,  however 
respectable,  he  had  not  intended  to  associate  himself  («/).50  Similarly 
where  persons  contract  to  sell  land  as  trustees,  and  it  appears  that 
their  power  to  sell  arises  only  on  the  death  of  a  tenant  for  life  who 
is  still  living,  they  cannot  require  the  purchaser  to  take  a  conveyance 
from  the  tenant  for  life,  from  whom  he  never  agreed  to  buy.     This 

(s)    Cooper  v.  Simmons    (1862)    7  (x)   1  K.  &  J.  168,  6  D.  XI.  &  G.  223 ; 

H.  &  N.  707,  31  L.  J.  M.  C.  138.  followed  in  Hole  v.  Bradbury   (1879) 

(/)•    Bac.    Abr.    Master    and    Ser-  12  Ch.  D.  886,  and  applied  to  an  in- 

vant,  E.  corporated       company,       Griffith       <r. 

(«)    Carlwright  v.  Hateley   (1791)  Tower  Publishing   Co.    [1897]    1    Ch. 

1    Ves.    jun.    292.      Cp.    Indian   Con-  21. 

tract  Act,   1872,  s.   193.  (v)    See  1  K.  &  J.  at  p.  174,  6  D. 

M.  &  G.  at  p.  229. 

Vann,  8  Ired.  L.  402;  Biggs  r.  Harris,  64  N.  C.  413;  Commonwealth  r.  Leeds, 
1  Ashm.  405;  Stringfield  v.  Heiskell,  2  Yerg.  546. 

A  contract  for  personal  services  is  not  assignable.  Chapin  r.  Longworth, 
31  Ohio  St.  421;  Davenport  v.  Gentry's  Admr.,  9  B.  Mon.  427. 

49  De  Bussche  r.  Alt,  8  Ch.  D.  286,  310.  Nor  can  the  subagent  recover  com- 
pensation from  the  principal.  Hanback  c.  Corrigan,  7  Kan.  App.  479 ; 
Cleaves  v.  Stockwell,  33  Me.  341;  Feam  v.  Mayers,  53  Miss.  458;  Hill  v. 
Morris,   15  Mo.  App.   322. 

50  But  in  C.  F.  Jewett  Publishing  Co.  v.  Butler,  159  Mass.  517,  it  was  held 
that  the  fact  that  C.  F.  Jewett,  the  president  of  the  corporation,  for  whom 
the  corporation  was  named,  had  been  guilty  of  criminal  conduct  and  had 
absconded,  did  not  excuse  the  performance  by  an  author  of  a  contract  to  give 
a  book  to  the  corporation  for  publication. 


AS    TO    SUBJECT-MATTER.  597 

■would  be  not  merely  adding  a  party  to  the  conveyance,  but  forcing  a 
wholly  new  contract  on  the  purchaser  (z). 

Peculiarities  in  law  of  agency.  The  law  of  agency,  which  we  have  al- 
ready had  occasion  to  consider  (a),  presents  much  more  important 
and  peculiar  exceptions.  Here  again  we  find  that  the  limitations 
under  which  those  exceptions  are  admitted  show  the  influence  of  the 
general  rule;  thus  a  party  dealing  with  an  agent  for  an  undisclosed 
principal  is  entitled  as  against  the  principal  to  the  benefit  of  any 
defence  he  could  have  used  against  the  agent. 

It  will  be  seen  later  that  wilful  concealment  of  a  party's  identity, 
e^en  in  a  contract  not  as  a  rule  of  a  strictly  personal  kind,  may  in 
peculiar  circumstances  amount  to  fraud  (&). 

*C.  Error  as  to  the  subject-matter.  [474 

Error  as  to  subject-matter.  There  may  be  fundamental  error  con- 
cerning : 

a.  The  specific  thing  supposed  to  be  the  subject  of  the  transaction. 

b.  The  kind  or  quantity  by  which  the  thing  is  described,  or  some 
quality  which  is  a  material  part  of  the  description  of  the  thing, 
though  the  thing  be  specifically  ascertained. 

The  question  however  is  in  substance  always  'the  same,  and  may 
he  put  in  this  form:  It  is  admitted  that  the  party  intended  to  con- 
tract in  this  way  for  something;  but  is  this  thing  that  for  which  he 
intended  to  contract? 

Kennedy  v.  Panama,  &c,  Mail  Company.  The  rule  governing  this  whole 
class  of  cases  is  fully  explained  in  the  judgment  of  the  Court  of 
Queen's  Bench  in  the  case  of  Kennedy  v.  Panama,  &c.  Mail  Com- 
pany (c).  There  were  cross  actions,  the  one  to  recover  instalments 
paid  on  shares  in  the  company  as  money  had  and  received,  the  other 
for  a  call  on  the  same  shares.  The  contention  on  behalf  of  the  share- 
bolder  was  "  that  the  effect  of  the  prospectus  was  to  warrant  to  the 
intended  shareholders  that  there  really  was  such  a  contract  as  is 
there  represented  (d),  and  not  merely  to  represent  the  company  bona 
fide  believed  it,  and  that  the  difference  in  substance  between  shares 
in  a  company  with  such  a  contract  and  shares  in  a  company  whose 

(s)  Bryant  and  Barningham's  Con-  (c)    (1867)    L.  R.  2  Q.  B.  580,  36 

tract  (1890)  44  Ch.  Div.  218,  59  L.  J.  L.  J.  Q.  B.  260. 

Ch.  636.  (d)  A  contract  with  the  postmaa- 

(a)   Ch.  II.,  p.  *96,  above.  ter-general  of  New  Zealand  on  behalf 

(6)    Gordon  v.  Street  [1899]   2  Q.  of  the  Government,  which  turned  out 

B.  641,  69  L.  J.  Q.  B.  45,  C.  A.  to  be  beyond  his  authority. 


598  MISTAKE. 

supposed  contract  was  not  binding  was  a  difference  in  substance  in 
the  nature  of  the  thing;  and  that  the  shareholder  was  entitled  to 
return  the  shares  as  soon  as  he  discovered  this,  quite  independently  of 
fraud,  on  the  ground  that  he  had  applied  for  one  thing  and  got 
another"  (e). 

The  Court  allowed  it  to  be  good  law  that  if  the  shares  applied 
for  were  really  different  in  substance  from  those  allotted,  this  con- 
tention would  be  right.  But  it  is  an  important  part  of  the  doc- 
475]  trine  (/)  that  the  difference  in  *substance  must  be  complete. 
In  the  ease  of  fraud,  a  fraudulent  representation  of  any  fact  material 
to  the  contract  gives  a  right  of  rescission;  but  the  misapprehension 
which  prevents  a  valid  contract  from  being  formed  must  go  to  the 
root  of  the  matter.  In  this  case  the  misapprehension  was  not  such 
as  to  make  the  shares  obtained  substantially  different  from  the  shares 
described  in  the  prospectus  and  applied  for  on  the  faith  of  that  de- 
scription (g).51  It  was  at  most  like  the  purchase  of  a  chattel  with  a 
collateral  warranty,  where  a  breach  of  the  warranty  gives  an  inde- 
pendent right  of  action,  but  in  the  absence  of  fraud  is  no  ground  for 
rescinding  the  contract  (h).52 

In  the  particular  case  of  taking  shares  in  a  company  the  contract 
is  not  in  any  case  void,  but  only  voidable  at  the  option  of  the  share- 
holder if  exercised  within  a  reasonable  time:  this,  although  in  strict- 
ness an  anomaly,  is  required  for  the  protection  of  the  company's 
creditors,  who  are  entitled  to  rely  on  the  register  of  shareholders  (i). 

We  reserve  for  the  present  the  question  how  the  legal  result  is 

'(e)    Per  Cur.  L.  R.  2  Q.  B.  at  p.  erenee    which    in    fact    the    company 

586.  had  no  power  to  give  to  it,  this  does 

(f)    In   Roman  law  as  well   as   in  not   amount   to   a   generic   difference 

the    Common    Law,   ibid,    at   p.    588,  between  the  thing  contracted  for  and 

citing  D.  18.  1.  de  cont.  empt.  9,  10,  the  thing  purchased:      Eaglesfield  v. 

11.      By   a    clerical    error    the    state-  Marquis    of    Londonderry     (1876)    4 

ment  of  Ulpian   (h.  t.  14)  "Si  autem  Ch-  Div.  693. 

aes   pro  auro  veneat,  non   valet,"   is  (h)    Street  v.  Blwy   (1831)    2  B.  & 

ascribed  to  Paulus  in  the  report.  Ad.  456 ;  36  R.  R.  626. 

{g)   So,  where  new  stock  of  a  com-  (i)    See  cases  cited  pp.  *479,  *480, 

pany  is  issued  and  purchased  on  the  infra. 
supposition  that  it  will  have  a,  pref- 

81  One  who  subscribes  and  pays  for  shares  of  a  proposed  increase  of  stock, 
but  to  whom,  without  his  knowledge,  old  shares  instead  of  new  shares  are 
transferred,  is  not  liable  on  them  as  a  shareholder.  Stephens  v.  Follett,  43 
Fed.  Rep.  842.  Unless  he  ought  to  have  known  the  character  of  the  shares 
transferred.  Bailey  v.  Tillinghast,  99  Fed.  Rep.  801,  811.  A  subscriber  for 
stock  not  in  fact  authorized  may  recover  payments  made  on  account  of  his 
subscription.  Newbegin  v.  Newton  Bank,  66  Fed.  Rep.  701,  74  Fed.  Rep. 
135;  McFarlin  v.  First  Bank,  68  Fed.  Rep.  868.  Unless  he  is  guilty  of 
laches.     Rand  r.  Columbia  Bank,  94  Fed.  Rep.  349. 

52  See  infra,  p.  607,  n.  67. 


AS    TO    bPECIFIC    THING.  599 

affected  when  the  error  is  due  to  a  representation  made  by  the  other 
party.  The  exposition  of  the  general  principle,  however,  is  not  the 
less  valuable :  and  we  now  proceed  to  give  instances  of  its  application 
in  the  branches  already  mentioned. 

A.  Subdivisions:  Error  in  corpore.  Ambiguous  name.  Error  as  to  the 
specific  thing  (in  corpore).  A  singular  modern  case  of  this  kind  is 
Raffles  v.  Wichelhaus  (k).  The  declaration  averred  an  agreement  for 
the  sale  by  the  ^plaintiff  to  the  defendants  of  certain  goods,  [476 
to  wit,  125  bales  of  Surat  cotton,  to  arrive  ex  "  Peerless  "  from  Bom- 
bay, and  arrival  of  the  goods  by  the  said  ship :  Breach,  non-accept- 
ance. Plea,  that  the  defendants  meant  a  ship  called  the  "  Peerless/' 
which  sailed  from  Bombay  in  October,  and  that  the  plaintiff  offered 
to  deliver,  not  any  cotton  which  arrived  by  that  ship,  but  cotton  which 
arrived  by  a  different  ship  also  called  the  "  Peerless,"  and  which 
sailed  from  Bombay  in  December.  The  plea  was  held  good,  for  "  The 
defendant  only  bought  that  cotton  which  was  to  arrive  by  a  particular 
ship ;  "  and  to  hold  that  he  bought  cotton  to  arrive  in  any  ship  of  that 
name  would  have  been  "  imposing  on  the  defendant  a  contract  dif- 
ferent from  that  which  he  entered  into  "  (Z).53  Misunderstanding  of 
an  offer  made  by  word  of  mouth  might  conceivably  have  a  like  effect,64 
but  obviously  is,  and  ought  to  be,  difficult  to  prove  (to). 

(7c)    (1864)    2  H.  &  C.  906,  33  L.  "shows    that    the    words    may    bear 

J.  Ex.  160.  more    than     one     meaning,    without 

{1)    Per  Pollock   C.B.   and  Martin  showing  in  which  of  those  meanings 

B.  2  H.  &  C.  at  p.  207.     The  further  either   party  used  them,   so  that  we 

questions  which  might  have  arisen  on  have   a    case    of   equivocation " :    Sir 

the  facts  are  of  course  not  dealt  with.  H.  W.  Elphinstone  in  L.  Q.  E.  ii.  110. 
Such   a    case    can   occur   only   where  (to)  Phillips   v.   Bistolli    (1824)    2 

"the  ordinary  evidence  as  to  the  pri-  B.  &  C.  511,  26  R.  R.  433. 
mary  meanings  of  the  words "   used 

53  Where  the  action  was  on  an  agreement  to  purchase  a  lot  on  Prospect 
street,  in  Waltham,  and  it  appeared  that  there  were  two  streets  of  that  name, 
and  that  the  defendant  intended  to  purchase  a  lot  on  one  of  said  streets,  and: 
that  plaintiff  intended  to  sell  a  lot  on  the  other,  it  was  held  that  there  was 
no  contract.  Kyle  v.  Kavanagh,  103  Mass.  356.  A  somewhat  similar  case- 
is  Stong  v.  Lane,  66  Minn.  94. 

"  If  one  agrees  to  buy  and  the  other  to  sell  a  tract  of  land,  the  cargo  of  a 
particular  ship,  a  horse  or  other  chattel,  reference  being  had  by  them  to 
different  objects  or  animals,  no  contract  is  concluded."  Bridgewater  Iron  Co. 
v.  Insurance  Co.,  134  Mass.  433,  436.  And  see  Hazard  v.  Insurance  Co.,  1 
Sumn.  218,  225;  Harvey  v.  Harris,  112  Mass.  32;  Page  r.  Higgins,  150  Mass. 
27;  Cutts  v.  Guild,  57  N.  Y.  229;  Irwin  v.  Wilson,  45  Ohio  St.  426;  Reilly 
l'.  Gautschi,  174  Pa.  80;   Sheldon  v.  Capron,  3  R.  I.  171. 

So  where  in  a  bargain  for  insurance  on  grain  in  an  elevator,  there  was  a 
material  mistake  as  to  which  of  two  adjacent  elevators  contained  the  grain,, 
the  insurance  company  was  held  not  liable.  Mead  v.  Phenix  Ins.  Co.,  158 
Mass.   124. 

64  See  Hartford,  etc.,  R.  Co.  r.  Jackson,  24  Conn.  514 ;  Rowland  r.  New? 
York,  etc.,  R.  Co.,  61  Conn.  103;  Rupley  v.  Daggett,  74  111.  351. 


600  MISTAKE. 

Parcels  included  by  mistake.  In  Malins  v.  Freeman  (n)  specific  per- 
formance was  refused  against  a  purchaser  who  had  bid  for  and  bought 
a  lot  different  from  that  he  intended  to  buy :  but  the  defendant  had 
acted  with  considerable  negligence,  and  the  question  was  left  open 
whether  there  was  not  a  valid  contract  on  which  damages  might  be  re- 
covered at  law.  The  case  of  Calverley  v.  Williams  (o)  shows  however 
that  the  same 'principle  has  been  fully  recognized  by  courts  of  equity. 
The  description  of  an  estate  sold  by  auction  included  a  piece  which 
appeared  not  to  have  been  in  the  contemplation  of  the  parties,  and 
the  purchaser  was  held  not  to  be  entitled  to  a  conveyance  of  this  part. 
477  ]  "  It  is  impossible  to  *say,  one  shall  be  forced  to  give  that  price 
for  part  only,  which  he  intended  to  give  for  the  whole,  or  that  the 
other  shall  be  obliged  to  sell  the  whole  for  what  he  intended  to  be  the 

price  of  part  only The  question  is,  does  it  appear  to 

have  been  the  common  purpose  of  both  to  have  conveyed  this  part  ?  " 

Harris  v.  Pepperell,  &c.  In  Hams  v.  Pepperell  (p)  the  vendor  had 
actually  executed  a  conveyance  including  a  piece  which  he  had  not 
intended  to  sell,  but  which  the  defendant  maintained  he  had  intended 
to  buy :  Lord  Eomilly,  acting  in  accordance  with  his  own  former  decis- 
ion in  Garrard  v.  Franhel  (q),  gave  the  defendant  an  option  of  "hav- 
ing the  whole  contract  annulled  or  else  of  taking  it  in  the  form  which 
the  plaintiff  intended."  The  converse  case  occurred  in  Bloomer  v. 
Spittle  (r),  where  a  reservation  had  been  introduced  by  mistake.55 
The  principle  of  these  cases  seems  to  be  that  the  Court  will  not  hold 
the  plaintiff  bound  by  the  defendant's  acceptance  of  an  offer  which  did 
not  express  the  plaintiff's  real  intention,  and  which  the  defendant 
could  not  in  the  circumstances  have  reasonably  supposed  to  express 

(»)    (1836-7)  2  Keen  25,  44  R.  R.  (p)    (1867)   L.  R.  5  Eq.  1. 

178;   Dacrc  v.  Gorges    (1825)    2  S.  &  (g)    (1862)   30  Beav.  445,  31  L.  J. 

St.  454,  25  R.  R.  246,  appears  to  be-  Ch.  604. 
long  to  the  same  class.  (r)    (1872)    L.  R.   13  Eq.   427,  41 

(o)    (1790)    1  Ves.  jun.  210,   1   R.  L.  J.  Ch.  369. 
R.  118. 

55  In  Brown  v.  Lamphear,  35  Vt.  252,  the  plaintiff  had  conveyed  to  the 
defendant  a  piece  of  land  on  which  was  a  spring,  from  which  the  plain- 
tiff's aqueduct  supplied  his  own  and  other  premises  with  water.  The  plaintiff 
had  not  intended  to  part  with  his  right  to  draw  water  from  the  spring,  but 
by  mistake  no  reservation  was  made  in  the  deed ;  the  defendant,  at  the  time 
of  the  purchase,  did  not  know  of  the  existence  of  the  spring.  The  defendant 
was  given  an  option  either  to  make  a  conveyance  to  the  plaintiff  entitling 
him  to  use  the  water  from  the  spring  or  to  reeonvey  the  land  on  repayment 
of  the  purchase  money.  And  see  Gilroy  v.  Alis,  22  la.  174;  Harrison  v. 
Talbot,  2  Dana,  258;  Page  r.  Higgins,  150  Mass.  27,  32;  Keene  v.  Demelman, 
172  Mass.  17;  Newton  v.  Tolles,  66  N.  H.  136;  Lawrence  v.  Staigg,  8  R.  I. 
256;  Fehlberg  v.  Cosine,  16  R.  I.  162. 


AS    TO    SPECIFIC    THING.  601 

it  (s) ;  nor  yet  require  the  defendant  to  accept  the  real  offer  which 
was  never  effectually  communicated  to  him,  and  which  he  perhaps 
would  not  have  consented  to  accept:  but  will  put  the  parties  in  the 
same  position  as  if  the  original  offer  were  still  open  (£).  The 
*Court  having  come  to  the  conclusion  that  the  parties  did  not  [478 
rightly  understand  each  other,  "  it  is  not  possible  without  consent  to 
make  either  take  what  the  other  has  offered  "  (u) .  This  does  not  mean 
that  a  party  who  has  accepted  in  good  faith  and  in  its  natural  sense  a 
proposal  made  in  explicit  terms  can  be  deprived  of  his  right  to'rely 
on  the  contract  merely  because  the  proposer  failed  to  express  his  own 
intention.  In  such  a  case  the  proposer  is  estopped  from  showing  that 
his  reasonably  apparent  meaning  was  not  his  real  meaning  (x).m 

Ambiguous  terms  of  contract.  Similarly,  "  where  the  terms  of  the 
contract  are  ambiguous,  and  where,  by  adopting  the  construction  put 
upon  them  by  the  plaintiff,  they  would  have  an  effect  not  contemplated 
by  the  defendant,  but  would  compel  him  to  include  in  the  conveyance 
property  not  intended  or  believed  by  him  to  come  within  the  terms  of 
the  contract,"  and  the  plaintiff  refuses  to  have  the  contract  executed 
in  the  manner  in  which  the  defendant  is  willing  to  complete  it,  specific 
performance  cannot  be  granted  (y). 

When  the  purchaser  erroneously  but  not  unreasonably  supposes  a 
portion  of  property  to  be  included  which  is  of  no  considerable  quan- 
tity, but  such  as  to  enhance  the  value  of  the  whole,  this  is  a  "  mistake 

(s)  This  limitation  is  material;  Littledale  (1858)  8  E.  &  B.  815,  '£1 
cp.  Paget  v.  Marshall  (1884)  28  Ch.  L.  J.  Q.  B.  201  (a  case  on  an  equita- 
Div.  255,  54  L.  J.  Ch.  575,  with  ble  plea),  the  point  of  mistake  (viz. 
Tamplin  v.  James  (1880)  15  Ch.  Div.  the  vendors  of  a  specific  cargo  show- 
215.  Lord  Romilly's  judgments  do  ing  the  purchaser  a  sample  which  in 
not,  in  terms  at  any  rate,  sufficiently  fact  was  of  a  different  bulk)  did  nut 
attend  to  the  principle  enforced  in  go  to  the  essence  of  the  contract:  the 
Tamplin  v.  James.  More  lately  it  correspondence  of  the  bulk  to  tne 
has  been  said  that  these  decisions  sample  was  only  a  collateral  term 
can  be  supported  only  on  the  ground  which  the  purchaser  might  waive  if 
of  fraud,  per  Farwell  J.  May  v.  Piatt  he  chose.  The  vendors,  theTefore, 
[1900]  1  Ch.  616,  69  L.  J.  Ch.  357.  It  were  at  all  events  not  entitled  to  re- 
remains  to  be  seen  whether  this  criti-  scind  the  contract  unconditionally, 
cism  is  itself  tenable  to  that  extent.  (u)   Clowes  v.  Higginson  (1813)    1 

(t)    For  the  principle  of  these  de-  Ves.  &  B.  524,  535,  12  R.  R.  284. 
cisions  compare  Clowes  V.  Higginson  (x)     Tamplin   v.    James,    see   note 

(next  note)    and   Leyland   V.   Illing-  (s)    last  page. 

worth  (1860)  2  D.  F.  &  J.  252-3.    Mo-  (y)   Baxendale  v.  Seale  (1854)    19 

Kcnzie  v.   Hesketh    (1877)    7  Ch.  D.  Beav.  601,  24  L.  J.  Ch.  385.     Cp.  per 

675,  47  L.  J.  Ch.  231,  well  shows  the  Lord     Eldon,     Stewart     v.     Alliston 

distinction     between     this     class     of  (1815)    1  Mer.  26,  33,  15  R.  R.  81; 

cases   and   those   where   a   true    con-  and  per  Sir  W.  Grant,  Higginson  v. 

tract    is    carried    out    with     abate-  Clowes    (1808)    15  Ves.  516,  524,   10 

ment  or  compensation.     In   Scott  v.  R.  R.   112. 

56  See  supra,  p.  43    et  seq. 


602  MISTAKE. 

between  the  parties  as  to  what  the  property  purchased  really  consists 
of  "  so  material  that  the  contract  will  not  be  enforced  (z).57 

In  this  class  of  cases  a  simple  misunderstanding  on  the  buyer's 
part  of  the  description  of  the  property  sold,  if  such  as  a  reasonable 
479]  and  reasonably  diligent  man  might  fall  *into,  may  be  enough 
to  relieve  him  from  specifically  performing  the  contract,  though  not 
from  liability  in  damages  (a).58  A  vendor  is  in  the  same  position  if 
his  agent  has  by  ignorance  or  neglect  included  in  a  contract  for  sale 
property  not  intended  to  be  sold  (&). 

As  to  shares:  It  was  for  some  time  (c)  held  that  a  material  variance 
between  the  objects  of  a  company  as  described  in  the  prospectus  and 
in  the  memorandum  of  association  would  entitle  a  person  who  had 
taken  shares  on  the  faith  of  the  prospectus  to  say  that  the  concern 
actually  started  was  not  that  in  which  he  agreed  to  become  a  partner, 
and  to  have  his  name  removed  from  the  register.  But  these  decisions 
were  disapproved  of  in  the  House  of  Lords  on  the  ground  that  "  per- 
sons who  have  taken  shares  in  a  company  are  bound  to  make  them- 
selves acquainted  with  the  memorandum  of  association,  which  is  the 
basis  upon  which  the  company  is  established  "(d).  The  rights  and 
liabilities  of  persons  taking  shares  in  companies  are  indeed  of  a 
peculiar  kind;  and  the  imposition  of  this  special  duty  upon  them 
does  not  affect  the  general  truth  of  the  principle  now  being  considered. 

Error  in  distinguishing  numbers  of  shares  not  material.  It  has  also  been 
attempted  to  dispute  the  validity  of  a  transfer  of  shares  because  the 
transferor  had  not  the  shares  corresponding  to  the  numbers  expressed 
in  the  transfer,  although  he  had  a  sufficient  number  of  other  shares  in 
the    company;   but   it   was   held   that   the   transferee,    who   had   in 

(z)  Denny   v.    Hancock    (1870)    L.  3  Ch.  493;  Hare's  case   (1869)   L.  E. 

R.   6  Ch.   1,   14.  4    Ch.    503;    Chollis's   case    (1870-1); 

(o)    Tamplin  v.  James    (1880)    15  L.   R.   6   Ch.   266,  40   L.   J.   Ch.   431; 

Ch.  Div.  215.  all  showing  that  the  contract  is  in 

(&)    Alvanley  v.   Kinnaird    (1849)  such   cases   not   void,   but   only   void- 

2   Mae.   &  G.    1,   8.     Cp.   Griffiths  v.  able  at  the  option  of  the  shareholder, 

Jones    (1873)    L.  R.   15   Eq.   279,   42  which    must    be   exercised    within    a 

L.  J.  Ch.  468.  reasonable  time.     So,   a   person  who 

(c)  Ship's  case  (1865)  2  D.  J.  &  S.  applies  for  shares  in  u,  company  not 
544,  L.  R.  3  H.  L.  343 ;  ~Webster's  described  as  limited  cannot  after- 
case  (1880)  L.  R.  2  Eq.  741;  Stew-  wards  be  heard  to  say  that  he  did 
art's  case  (1866)  L.  R.  1  Ch.  574.  not  mean  to  take  shares   in   an  un- 

(d)  Per  Lord  Chelmsford,  Oalces  v.  limited  company:  Perrett's  case 
Turquand  (1867)  L.  R.  2  H.  L.  325,  (1873)  L.  R.  15  Eq.  250,  42  I,.  J.  Ch. 
351,  36  L.  J.  Ch.  949.     See  aec.  Kent       305. 

v.  Freehold  Land   Co.    (1868)    L.  K. 

57  See  Ellicott  r.  White,  43  Md.  145 ;  Irick  v.  Fulton's  Exrs.,  3  Gratt.  193. 
68  See  Ames,   Cas.  Eq.  Jur.,  p.  394,  n. 


AS    TO    KIND.  603 

*substance  agreed  to  take  fifty  shares  in  the  company,  could  not  [480 
set  up  the  mistake  as  against  the  company's  creditors  (e).  "The  num- 
bers of  the  shares  are  simply  directory  for  the  purposes  (/)  of  enabling 
the  title  of  particular  persons  to  be  traced;  but  one  share,  an  incor- 
poreal portion  of  the  profits  of  the  company,  is  the  same  as  another,  and 
share  No.  1  is  not  distinguishable  from  share  No.  2  in  the  same  way  as 
a  grey  horse  is  distinguishable  from  a  black  horse"  (<7).59 

A  compromise  of  an  action  has  been  avoided,  where  by  misappre- 
hension of  counsel  it  extended  to  matters  which  his  client  and  he 
thought  were  not  in  dispute  (h). 

b.  Error  as  to  kind,  &c.  Error  as  to  kind,  quantity,  or  quality  of  the 
thing. 

A  material  error  as  to  the  land,  quantity,  or  quality  of  a  subject- 
matter  which  is  contracted  for  by  a  generic  description  (whether  alone 
or  in  addition  to  an  individual  description)  may  make  the  agreement 
void,  either  because  there  was  never  any  real  consent  of  the  parties 
to  the  same  thing,  or  because  the  thing  or  state  of  things  to  which 
they  consented  does  not  exist  or  cannot  be  realized.60 

(e)   Ind's  case   (1872)    L.  R.  7  Ch.  in  equally  good  repair:  Leach  v.  ilul- 

485,  41  L.  J.  Ch.  564.  lett   (1827)   3  Car.  &  P.  115,  33  R.  R. 

(jf)    Sic  in  the  report.  657. 

[g)    Or   house   No.   2   in   a   street  (h)    Hickman  v.   Berens    [1895]    2 

from  house  No.  4  in  the  same  street,  Ch.  638,  64  L.  J.  Ch.  785,  C.  A. 
though  of  the  same   description  and 

59Aitkins  v.  Gamble,  42  Cal.  86;  Krouse  v.  Woodward,  110  Cal.  638; 
Caswell  v.  Putnam,  120  N.  Y.  153,  157;  Mayo  v.  Knowlton,  134  N.  Y.  250,  253. 

60  In  Gardner  v.  Lane,  9  Allen,  492,  it  appeared  that  G.  F.  Wonson  &  Bros, 
sold  to  plaintiff  135  barrels  of  No.  1  mackerel,  and  gave  him  a  bill  of  sale 
thereof;  no  delivery  was  then  made,  but  about  two  months  later  plaintiff 
called  for  the  mackerel,  and  G.  F.  Wonson  went  with  him  to  a  wharf,  where 
a  large  quantity  was  stored,  and  counted  out  eighty-five  barrels  of  mackerel, 
which  both  supposed  to  be  No.  1,  and  these  were  delivered  to  plaintiff  and 
left  there ;  that  they  then  went  to  a  store  where  there  were  barrels  in  rows,  and 
Wonson  counting  off  two  rows  containing,  as  he  said,  fifty  barrels,  marked  the 
barrel  at  the  end  of  each  row,  and  gave  to  plaintiff  a  storage  receipt  in  the 
name  of  his  firm  of  Geo.  F.  Wonson  &  Bros.  Before  the  same  were  removed 
the  defendant,  a  creditor  of  Wonson  &  Bros,  caused  an  attachment  to  be 
levied  upon  all  of  the  property  mentioned,  and  plaintiff  thereupon  replevied 
it.  The  two  rows  of  barrels  in  the  store  numbered  but  forty-eight,  and  con- 
tained only  salt.  A  portion  of  the  quantity  on  the  wharf  was  No.  1  mackerel 
and  a  portion  was  No.  3.  Held:  That  no  property  in  the  barrels  of  No.  3 
mackerel  and  of  salt  had  passed  to  plaintiff.  The  court  say,  p.  499 :  "  Where 
parties  to  a  contract  of  sale  agree  to  sell  and  purchase  a  certain  kind  or 
description  of  property  not  yet  ascertained,  distinguished,  or  set  apart,  and 
subsequently  a  delivery  is  made,  by  mistake,  of  articles  differing  in  their 
nature  or  quality  from  those  agreed  to  be  sold,  no  title  passes  by  such  de- 
livery. They  are  not  included  within  the  contract  of  sale;  the  vendor  has 
not  agreed  to  sell  nor  the  vendee  to  purchase  them;  the  subject-matter  of  the 
contract  has  been  mistaken,  and  neither  party  can  be  held  to  an  execution  of 
the  contract  to  which  he  has  not  given  his  assent."  Cp.  S.  C,  12  Allen,  39; 
Vigers  v.  Sanderson,  [1901]  1  K.  B.  608;  Irwin  v.  Wilson,  45  Ohio  St.  426. 


604  MISTAKE. 

Genus:  Thornton  v.  Kempster.  In  Thornton  v.  Kempster  (i)  the  com- 
mon broker  of  both  parties  gave  the  defendant  as  buyer  a  sale  note  for 
Riga  Rhine  hemp,  but  to  the  plaintiff  as  seller  a  note  for  St.  Peters- 
burg clean  hemp.  The  bought  and  sold  notes  were  the  only  evidence 
of  the  terms  of  the  sale.  The  Court  held  that  "  the  contract  must  be 
on  the  one  side  to  sell  and  on  the  other  side  to  accept  one  and  the 
6ame  thing  " :  here  the  parties  so  far  as  appeared  had  never  agreed 
that  the  one  should  buy  and  the  other  accept  the  same  thing;  con- 
sequently there  was  no  agreement  subsisting  between  them. 
481  ]  *In  a  case  of  this  kind  however  there  is  not  even  an  agreement 
in  terms  between  the  offer  and  the  acceptance. 

Quantity.  '  A  curious  case  of  error  in  quantity  happened  in  Henhel 
v.  Pape  (k),  where  by  the  mistake  of  a  telegraph  clerk  an  order  in- 
tended to  be  for  three  rifles  only  was  transmitted  as  an  order  for  fifty. 
The  only  point  in  dispute  was  whether  the  defendant  was  bound  by 
the  message  so  transmitted,  and  it  was  held  that  the  clerk  was  his 
agent  only  to  transmit  the  message  in  the  terms  in  which  it  was  de- 
livered to  him.61  The  defendant  had  accepted  three  of  the  fifty  rifles 
sent,  and  paid  the  price  for  them  into  Court:  therefore  the  question 
whether  he  was  bound  to  accept  any  did  not  arise  in  this  case.  It 
is  settled  however  by  former  authority  that  when  goods  ordered  are 
sent  together  with  goods  not  ordered,  the  buyer  may  refuse  to  accept 
any,  at  all  events  "  if  there  is  any  danger  or  trouble  attending  the 
severance  of  the  two  "  (I).62 

(i)   5  Taunt.  786,  15  R.  R.  658.  Bart  v.   Mills    (1846)     15   M.   &  W. 

(fc)   (1870)   L.  R.  6  Ex.  7,  40  L.  J.  85,    15   L.   J.   Ex.  200,  where  a  new 

Ex.  15.  contract  was   implied   as  to  part   of 

( I )  Levy  v.  Green  ( 1857 )  8  E.  &  B.  the  goods   which   was   retained ;    but 

575,   in   Ex.   Ch.    1   E.   &  E.   969,  27  in  that  case  the  quality  as  well   as 

L.    J.    Q.    B.    Ill,    28    ib.    319,    per  the  quantity  of  the  goods  sent  was 

Byles  J.  1  E.  &  E.  at  p.  976;  and  cp.  not  in  conformity  with  the  order. 

siVerdin  v.  Robertson,  10  Ct.  Sess.  Cas.  (3d  series)  35;  Postal  Tel.  Co. 
v.  Schaefer,  (Ky.)  62  S.  W.  Rep.  1119;  Shingleur  v.  Western  Union  Tel.  Co., 
72  Miss.  1030 ;  Pepper  v.  Telegraph  Co.,  87  Tenn.  554,  accord.  Western  Union 
Tel.  Co.  v.  Shotter,  71  Ga.  760;  Western  Union  Tel.  Co.  v.  Flint  River  Co., 
114  Ga.  576;  Ayer  v.  Western  Union  Tel.  Co.,  79  Me.  493;  Haubelt  v.  Rea  & 
Page  Mill  Co..  77  Mo.  App.  672,  contra.  See  also  Morgan  v.  People,  59  111. 
58;  Wilson  v.  Railway  Co.,  31  Minn.  481;  Howley  v.  Whipple,  48  N.  H.  488; 
Durkee  r.  Vermont  Central  R.  Co.,  29  Vt.  137. 

The  question  has  been  disputed  on  the  continent  of  Europe  also.  See  Lyon- 
Caen  et  Renault,  Traitg  de  Droit  Commercial,  Vol.  Ill,  §  23. 

If  the  receiver  of  the  telegram  had  reason  to  know,  from  the  price  named  in  a 
telegraphic  offer,  that  an  error  must  have  been  made,  clearly  an  acceptance 
will  not  bind  the  sender  to  the  offer  in  the  form  in  which  it  was  delivered. 
Germain  Fruit  Co.  r.  Western  Union  Tel.  Co.,  137  Cal.  598. 

«2  Rommel  v.  Wingate,  103  Mass.  327 ;  Deutsch  v.  Pratt,  149  Mass.  415,  421  ; 


AS    TO   PRICE.  605 

Price.  The  principle  of  error  in  quantity  preventing  the  formation 
of  a  contract  is  applicable  to  an  error  as  to  the  price  of  a  thing  sold 
or  hired  (m).63  As  there  cannot  be  even  the  appearance  of  a  contract 
when  the  acceptance  disagrees  on  the  face  of  it  with  the  proposal, 
this  question  can  arise  only  where  there  is  an  unqualified  acceptance 
of  an  erroneously  expressed  or  understood  proposal.,  If  the  proposal 
is  misunderstood  by  the  acceptor,  it  is  for  him  to  show  that  the  mis- 
understanding was  reasonable.  "  Where  there  has  been  no  misrepre- 
sentation, and  where  there  is  no  ambiguity  in  the  terms  of  the  contract, 
the  defendant  cannot  be  allowed  to  evade  the  performance  of  it  by 
the  *simple  statement  that  he  has  made  a  mistake"  (n).  A.  [482 
makes  an  offer  to  B.  to  take  a  lease  of  a  named  farm,  specifying  as 
its  contents  land  amounting  to  250  acres;  B/s  agent,  who  meant  to 
invite  offers  for  only  200  acres,  accepts  A.'s  offer  without  examining 
its  particulars.  Here  there  is  a  contract  binding  on  B.,  and  A.  is 
entitled  to  specific  performance  to  the  extent  of  B.'s  power  to  give  it, 
with  a  proportionate  reduction  of  the  rent  (o). 

If,  on  the  other  hand,  the  proposal  is  by  accident  wrongly  ex- 
pressed, the  proposer  must  show  that  the  acceptor  could  not  reason- 
ably have  supposed  it  in  its  actual  form  to  convey  the  proposer's  real 
intention.  This  occurred  in  Websier  v.  Cecil  (p),  where  the  defend- 
ant sent  a  written  offer  to  sell  property  and  wrote  1,100?.  for  2,100Z 
by  a  mistake  in  a  hurried  addition  of  items  performed  on  a  separate 
pieee  of  paper.  This  paper  was  kept  by  him  and  produced  to  the 
Court.     On  receiving  the  acceptance  he  discovered  the  mistake  and  at 

(m)  D.  19.  2.  locati,  52.     Si  decern  («)    Tamplin  v.  James    (1880)    15 

tibi   locem    fundum,    tu   autem   exis-  Ch.   Div.  215,   217    (Baggallay  L.J.). 

times     quinque     te    conducere,     nihil  (o)   MeKenzie  v.  Hesketh  (1877)   7 

agitur.      Sed    et   si   ego   minoris   me  Ch.  D.  675,  47  L.  J.  Ch.  231. 

locare    sensero,     tu    pluris     te     con-  (p)    (1861)   30  Beav.  62. 
duceTe,    utique    non    pluris    erit    con- 
ductio  quam  quanti  ego  putavi. 

Landesman  v.  Gummersell,  16  Mo.  App.  459;  Croninger  v.  Crocker,  62  N.  Y. 
151;  Southwell  v.  Breezley,  5  Oreg.  143;  Perry  v.  Mt.  Hope  Iron  Co.,  16 
R.  I.  318;  Barton  r.  Kane,  17  Wis.  37.  Cp.  Downer  r.  Thompson,  6  Hill,  208; 
Bowers  v.  Worth,  129  N.  C.  36;  Brownfield  v.  Johnson,  128  Pa.  254. 

63  Greene  v.  Bateman,  2  Woodb.  &  M.  359 ;  Eovegno  v.  Deffarari,  40  Cal.  459 ; 
Peerless  Glass  Co.  v.  Pacific  Crockery  Co.,  121  Cal.  641 ;  Railroad  Co.  r.  Jack- 
son, 24  Conn.  514;  Rowland  v.  New  York,  etc.,  R.  Co.,  61  Conn.  103;  Rupleyv. 
Daggett,  74  111.  351;  Turner  v.  Webster,  24  Kan.  38;  Harran  £.  Foley,  62 
Wis.  584.  See  also  Star  Glass  Co.  v.  Langley,  64  Ga.  576,  578;  Fear  r. 
Jones,  6  la.  169,  170. 

On  a  sale  at  auction  of  a  block  of  land  subdivided  into  separate  lots,  de- 
fendant became  the  purchaser.  A  bill  for  specific  performance  having  been 
filed,  complainant  proved  that  the  premises  were  put  up  to  be  sold  by  the  lot ; 
but  it  appearing  that  defendant  not  unreasonably  supposed  that  the  block  was 
offered  as  an  entirety,  and  that  he  intended  his  bid  as  the  price  for  the  whole 
block,  the  bill  was  dismissed.     Coles  v.  Bowne,  10  Paige,  526. 


606  MISTAKE. 

once  gave  notice  of  it.  It  appeared  that  the  plaintiff  had  reason  to 
know  the  real  value  of  the  property.  Under  the  circumstances  specific 
performance  was  refused.  The  case  is  explained  by  James  L.J.  as  one 
"  where  a  person  snapped  at  an  offer  which  he  must  have  perfectly 
well  known  to  be  made  by  mistake."  (q)-M 

Material  attribute.  But  sometimes,  even  when  the  thing  which  is  the 
subject-matter  of  an  agreement  is  specifically  ascertained,  the  agree- 
ment may  be  avoided  by  material  error  as  to  some  attribute  of  the 
thing.  For  some  attribute  which  the  thing  in  truth  has  not  may  be  a 
material  part  of  the  description  by  which  the  thing  was  contracted 
for.  If  this  is  so,  the  thing  as  it  really  is,  namely,  without  that 
483]  quality,  *is  not  that  to  which  the  common  intention  of  the 
parties  was  directed,  and  the  agreement  is  void. 

Conditions  necessary  to  avoid  transaction  on  this  ground.  An  error  of 
this  kind  will  not  suffice  to  make  the  transaction  void  unless — 

(1)  It  is  such  that  according  to  the  ordinary  course  of  dealing  and 
use  of  language  the  difference  made  by  the  absence  of  the  quality 
wrongly  supposed  to  exist  amounts  to  a  difference  in  kind  (r)  ; 

(2)  and  the  error  is  also  common  to  both  parties. 

Thus  we  read  "  Mensam  argento  coopertam  mihi  ignoranti  pro 
solida  vendidisti  imprudens  ;  nulla  est  emptio,  pecuniaque  eo  nomine 
data  condicetur  "  (s).  Again,  "  Si  aes  pro  auro  veneat,  non  valet "'  (•<;. 
"'  If  a  bar  [is]  sold  as  gold,  but  [is]  in  fact  brass,  the  vendor  being 
innocent,  the  purchaser  may  recover  "'  (w).65  This,  however,  is  not  to 
be  taken  too  largely.    What  does  pro  auro,  as  and  for  gold,  imply  as 

(g)    Tamplin  v.  James    (1880)    15  adopted   by   the    Court   of   Q.    B.    in 

Ch.  D.  at  p.  221.  Kennedy  v.  Panama,  dc.  Mail  Co.,  p. 

(r)    Savigny,  Syst.   §  137    (3.  283).  *474,  supra. 

(s)     D.    18.    1.    de    cont.    empt.    41  («)    Per  Lord  Campbell  C.J.  Gom- 

s.  1.  pertz  v.   Bartlett    (1853)    2   E.   &  B. 

(()      D.     eod.     tit.     14,     cited     and  849,  854,  23  L.  J.  Q.  B.  65. 

04  See  Hume  r.  United  States,  132  TJ.  S.  406 ;  Moffett  r.  Rochester,  178 
U.  S.  373;  Shelton  v.  Ellis,  70  Ga.  297;  Turner  r.  Webster,  24  Kan.  38; 
Burkhalter  c.  Jones,  32  Ivan.  5 ;  Chute  c.  Quincy,  156  Mass.  189  ;  First  Bank 
v.  Hayes,  64  Ohio  St.  100 ;  Everson  r.  International  Granite  Co.,  65  Vt.  658. 
"  Where  a  proposition  to  sell  goods  is  sent  by  a  writing,  that,  by  mistake,  is 
ambiguous ;  and,  knowing  of  such  ambiguity,  the  receiver  of  the  writing  claim- 
ing an  improbable  meaning,  unreasonably  favorable  to  himself,  and  not  in- 
tended or  thought  of  by  the  sender,  and  without  notice  to  the  sender  or  inquiry 
of  him  as  to  his  intended  meaning,  orders  the  goods,  obtains  and  uses  them, 
such  receiver  of  the  goods  is  liable  to  the  seller  of  the  same  for  the  value 
of  the  goods  used,  as  if  no  proposition  had  been  sent."  Butler  r.  Moses,  43 
Ohio  St.   166. 

65  A.  agreed  to  sell  a.  cow  as  a  barren  cow  for  $80.  If  a  breeder  the  cow 
was  worth  about  $1,000.  Before  transfer  of  possession  A.  discovered  the  cow 
was  with  calf.     It  was  held  he  could  rescind  the  bargain.     Sherwood  v.  Wal- 


AS    TO    ESSENTIAL    QUALITY.  607 

here  used?  It  implies  that  the  buyer  thinks  he  is  buying,  and  the 
seller  that  he  is  selling,  a  golden  vessel:  and  further,  that  the  object 
present  to  the  minds  of  both  parties  as  that  in  which  they  are 
trafficking — the  object  of  their  common  intention — is  not  merely  this 
specific  vessel,  but  this  specific  vessel,  being  golden.  Then,  and  not 
otherwise,  the  sale  is  void.66 

If  the  seller  fraudulently  represents  the  vessel  as  golden,  knowing 
that  it  is  not,  the  sale  is  (as  between  them)  not  void  but  voidable  at 
the  option  of  the  buyer.  For  if  both  parties  have  been  in  innocent  and 
equal  error  it  would  be  unjust  to  let  either  gain  any  advantage :  but 
a  party  who  has  been  guilty  of  fraud  has  no  right  to  complain  of 
having  been  taken  at  his  word;  and  it  is  conceivable  that  it  might 
be  for  the  interest  of  the  buyer  to  affirm  the  transaction,  as  if  the 
vessel  supposed  by  the  fraudulent  seller  to  be  of  *worthless  base  [484 
metal  should  turn  out  to  be  a  precious  antique  bronze.  Probably  the 
results  are  the  same  if  the  buyer's  belief  is  founded  even  on  an  inno- 
cent representation  made  by  the  seller.  This  seems  to  be  assumed  by 
the  language  of  the  Court  in  Kennedy  v.  Panama,  &c.  Mail  Com- 
pany (x).  We  shall  recur  to  this  point  presently.  Or  in  an  ordi- 
nary case  the  buyer  may  choose  to  treat  the  seller's  affirmation  as  a 
warranty,  and  so  keep  the  thing  and  recover  the  difference  in  value. 

Again,  if  the  sale  of  the  specific  vessel  is  made  in  good  faith  with 
a  warranty  of  its  quality,  the  vendor  must  compensate  the  purchaser 
for  breach  of  the  warranty,  but  the  sale  is  not  even  voidable.  For  the 
existence  of  a  separate  warranty  shows  that  the  matter  of  the  war- 
ranty is  not  a  condition  or  essential  part  of  the  contract,  but  the 
intention  of  the  parties  was  to  transfer  the  property  in  the  specific 
chattel  at  all  events.67     Whether  a  particular  affirmation  as  to  the 

(as)  (1867)  L.  R.  2  Q.  B.  580,  587,  36  L.  J.  Q.  B.  260,  p.  *474,  supra. 

ker,  66  Mich.  568.  Cp.  Wheat  v.  Cross,  31  Md.  99;  Wood  v.  Boynton,  64  Wis. 
265;  White  p.  Stelloh,  74  Wis.  435;  MoQuaid  v.  Ross,  85  Wis.  492. 

In  this  connection  may  also  be  considered  mistakes  as  to  the  legal  validity 
of  negotiable  paper.  Such  validity  is  usually  regarded  as  impliedly  warranted 
by  the  seller.  Meyer  v.  Richards,  163  U.  S.  385,  criticising  Littauer  v.  Gold- 
man, 72  N.  Y.  508.  See  post,  p.  654,  n.  5.  But  a  mutual  mistake  as  to  the  sol- 
vency of  the  maker  of  a  note  does  not  affect  a  sale  of  the  note.  Hecht  p. 
Batcheller,  147  Mass.  335 ;   Bicknall  v.'  Waterman,  5  R.  I.  43. 

68  See  Bridgewater  Iron  Co.  v.  Enterprise  Ins.  Co.,  134  Mass.  433,  436; 
Kowalke  r.  Milwaukee  Electric  Co.,  103  Wis.  472. 

W  Thornton  r.  Wynn,  12  Wheat.  183;  Lyon  r.  Bertram,  20  How.  149; 
Trumbull  p.  O'Hara,  71  Conn.  172;  Worcester  Mfg.  Co.  r.  Waterbury  Brass 
Co.,  73  Conn.  554;  Woodruff  r.  Graddy,  91  Ga.  333;  Pound  v.  Williams,  47 
S.  E.  Rep.  218  ;  Ga.  Code,  §  3556  ;  Crabtree  v.  Kile,  21  111.  180  ;  Owens  v.  Sturges, 
67  111.  366;  Kemp  v.  Freeman,  42  111.  App.  500  (but  see  contra,  Sparling  v. 
Marks,  86  111.  125)  ;  Marsh  v.  Low,  55  Ind.  271;  Hoover  v.  Sidener,  98  Ind. 


608  MISTAKE. 

quality  of  a  specific  thing  sold  be  only  a  warranty,  or  the  sale  be 
"  conditional,  and  to  be  null  if  the  affirmation  is  incorrect,"  is  a  ques- 
tion of  fact  to  be  determined  by  the  circumstances  of  each  case  (y). 

Error  must  be  common.     Accordingly,  when  the  law  is  stated  to  be 
that  "  a  party  is  not  bound  to  accept  and  pay  for  chattels,  unless  they 

(y)    See  per  Wightman  J.  Gurney  error  in  substantia  in  §§  137.  138  (3. 

v.  Womersley   (1854)   4  E.  &  B.  133,  276  sqq.) ,  deserves  careful  study.     Of 

142,  24  L.  J.  Q.  B.  46;  Bannerman  y.  course  the  conclusions   in   detail   are 

White  (1861)   10  C.  B.  N.  S.  844,  31  not  always  the  same  as  in  our  law; 

L.  J.  C.  P.  28,  Finch  Sel.  Ca.   531 ;  and    the    fundamental    difference    in 

Azernar  v.  Casell-a   (1867)   L.  R.  2  C.  the  rules   as  to   the   actual  transfer 

P.  431,  677,  36  L.  J.  C.  P.  124.     The  of    property    in    goods    sold     (as    to 

Roman  law  is  the  same  as  to  a  sale  which,  see  Blackburn  on  the  Contract 

with    warranty:    D.    19.    1.    de    act.  of  Sale,  Part  2,  Ch.  3)   must  not  be 

empt.    21     §    2.    expld.    by    Savigny,  overlooked.     But  this  does  not  affect 

Syst.  3.  287.     The  whole  of  Savigny's  the  usefulness  and  importance  of  the 

admirable     exposition     of     so-called  general   analogies. 

290;  Wulschner  v.  Ward,  115  Ind.  219,  222;  Lightbum  r.  Cooper,  1  Dana, 
273;  H.  W.  Williams  Transportation  Line  r.  Darius  Cole  Transportation  Co., 
88  N.  W.  Rep.  473;  Merrick  r.  Wiltse,  3  Minn.  41;  Lynch  v.  Curfman,  65 
Minn.  170  (cp.  Close  v.  Crossland,  47  Minn.  500)  ;  Voorhees  v.  Earl,  2  Hill, 
288;  Cary  v.  Greeman,  4  Hill,  625;  Muller  v.  Eno,  14  N.  Y.  597;  Day  v.  Pool, 
52  N.  Y.  416;  Fairbank  Canning  Co.  v.  Metzger,  118  N.  Y.  260,  269;  Kase 
v.  John,  10  Watts,  107;  Freyman  r.  Knecht,  78  Pa.  141;  Eshleman  v.  Lightner, 
169  Pa.  46;  Kaufman  Milling  Co.  v.  Stuckey,  40  S.  C.  110;  Hull  r.  Caldwell, 
3  S.  Dak.  451;  Allen  v.  Anderson,  3  Humph.  581;  Wright  r.  Davenport,  44 
Tex.  164;  Hoadly  r.  House,  32  Vt.  179;  Matteson  v.  Holt,  45  Vt.  336;  Mooers 
v.  Gooderham,  14  Ont.  451.  Many  jurisdictions  in  the  United  States,  however, 
allow  rescission  of  an  executed  sale  for  breach  of  warranty.  Pacific  Guano 
Co.  r.  Mullen,  66  Ala.  582;  Thompson  v.  Harvey,  86  Ala.  519;  Hodge  r.  Tufts, 
115  Ala.  366;  Plant  l\  Condit,  22  Ark.  454,  458;  Righter  v.  Roller,  31  Ark. 
170,  173;  Polhemus  r.  Heiman,  45  Cal.  573;  Hoult  r.  Baldwin,  67  Cal.  610 
(cp.  Cal.  Civ.  Code,  §  1786);  Rogers  v.  Hanson,  35  la.  283;  Upton  Mfg. 
Co.  v.  Huiske,  69  la.  557;  Eagle  Iron  Works  r.  Des  Moines  Ry.  Co.,  101  la. 
289;  Timken  Carriage  Co.  r.  Smith,  (Neb.)  99  N  W.  Rep.  183;  Whalen  r. 
Gordon,  (la.  C.  C.  A.)  95  Fed.  Rep.  305;  Code,  art.  2520;  Flash  r.  American 
Glucose  Co.,  38  La.  Ann.  4  (based  on  the  civil  law)  ;  Craver  v.  Hornburg,  26 
Kan.  94;  Weybrich  r.  Harris,  31  Kan.  92;  Gale  Mfg.  Co.  v.  Stark,  45  Kan.  606; 
Cutler  v.  Gilbreth,  53  Me.  176;  Milliken  v.  Skillings,  89  Me.  180  (see  also 
Noble  v.  Bush-well,  96  Me.  73)  ;  Taymon  v.  Mitchell,  1  Md.  Ch.  496;  McCeney 
v.  Duvall,  21  Md.  166;  Horner  v.  Parkhurst,  71  Md.  110  (cp.  Horn  r.  Buck. 
48  Md.  358,  372;  Columbian  Iron  Works  r.  Douglas,  84  Md.  44,  64)  ;  Bradford 
v.  Manly,  13  Mass.  139;  Perley  v.  Balch,  23  Pick.  2S3;  Dorr  r.  Fisher,  1 
Cush.  271,  273;  Bryant  v.  Isbu'rgh,  13  Gray,  607;  Smith  r.  Hale,  158  Mass. 
178;  Gilmore  v.  Williams,  162  Mass.  351,  352;  Branson  v.  Turner,  77  Mo. 
489;  Johnson  r.  Whitman  Works,  20  Mo.  App.  100;  Kerr  r.  Emerson,  64 
Mo.  App.  159;  St.  Louis  Brewing  Assoc,  v.  McEnroe,  80  Mo.  App.  429; 
Edwards  r.  Noel,  88  Mo.  App.  434;  Davis  v.  Hartlerode,  37  Neb.  864  (see  also 
McCormick  Co.  r.  Knoll,  57  Neb.  790)  ;  Sloan  v.  Wolf  Co.,  (Neb.  C.  C.  A.) 
124  Fed.  Rep.  190;  Canham  v.  Piano  Mfg.  Co.,  3  N.  Dak.  229  (cp.  N.  Dak. 
Civ.  Code,  §  3988)  ;  Byers  v.  Chapin,  28  Ohio  St.  300;  Boothby  v.  Scales,  27 
Wis.  628;  Croninger  v.  Paige,  48  Wis.  229;  Warder  r.  Fisher,  48  Wis.  338; 
Minn.  Threshing  Co.  r.  Wolfram,  96  Wis.  481;  Parry  Mfg.  Co.  v.  Tobin,  106 
Wis.  286;  Optenburg  r.  Skelton,  109  Wis.  241,  244.  See  also  Sparling  r. 
Marks.  86  TU.   125;   Mader  v.  Jones,   ]   Rnss.  &  Chesley    (Nova  Scotia),  82. 

The  propriety  of  the  decisions  last  cited  is  supported  by  the  present  editor 
in  16  Harv.  L.  Rev.  465  and  4  Col.  L.  Rev.  195,  but  criticised  by  Professor 
Burdick  in  4  Col.  L.  Rev.  1,  455. 


AS    TO    QUALITY.  609 

are  really  such  as  the  vendor  professed  to  sell,  and  the  vendee  intended 
to  buy"  (2)  the  condition  is  not  *alternative  but  strictly  con-  [485 
junctive.  A  sale  is  not  void  merely  because  the  vendor  professed  to 
sell,  or  the  vendee  intended  to  buy,  something  of  a  different  kind.  It 
must  be  shown  that  the  object  was  in  fact  neither  such  as  the  vendor 
professed  to  sell  nor  such  as  the  vendee  intended  to  buy. 

And  so  in  the  case  supposed  the  sale  will  not  be  invalidated  by  the 
mistake  of  the  buyer  alone,  if  he  thinks  he  is  buying  gold;  not  even 
if  the  seller  believes  him  to  think  so,  and  does  nothing  to  remove  the 
mistake,  provided  his  conduct  does  not  go  beyond  passive  acquies- 
cence in  the  self-deception  of  the  buyer. 

Smith  v.  Hughes.  In  a  case  (a)  where  the  defendant  bought  a  parcel 
of  oats  by  sample,  believing  them  to  be  old  oats,  and  sought  to  reject 
them  when  he  found  they  were  new  oats,  it  was  held  that  "  a  belief 
on  the  part  of  the  plaintiff  that  the  defendant  was  making  a  con- 
tract to  buy  the  oats  of  which  he  offered  him  a  sample  under  a  mis- 
taken belief  that  they  were  old  would  not  relieve  the  defendant  from 
liability  unless  his  mistaken  belief  was  induced  by  some  misrepresenta- 
tion of  the  plaintiff  or  concealment  by  him  of  a  fact  which  it  became 
his  duty  to  communicate.  In  order  to  relieve  the  defendant  it  was 
necessary  that  the  jury  should  find  not  merely  that  the  plaintiff  be- 
lieved the  defendant  to  believe  that  he  was  buying  old  oats,  but  that 
he  believed  the  defendant  to  believe  that  he,  the  plaintiff,  was  con- 
tracting to  sell  old  oats."  "  There  is  no  legal  obligation  on  the  vendor 
to  inform  the  purchaser  that  he  is  under  a  mistake  not  induced  by  the 
act  of  the  vendor"  (&) ;  and  therefore  the  question  is  whether  we 
have  to  do  merely  with  a  motive  *operating  on  the  buyer  to  [486 
induce  him  to  buy,  or  with  one  of  the  essential  conditions  of  the 
contract  (c).  "Videamus,  quid  inter  ementem  et  vendentem  actum 
sit"  (d)  :  "the  intention  of  the  parties  governs  in  the  making  and  in 
the  construction  of  all  contracts"  (e) ;  this  is  the  fundamental  rule 

(2)     Per     Cur.     Hall    v.     Gonder  of     the     vendor     ignorance,     passive 

(1857)   2  C.  B.  N.  S.  22,  41,  26  L.  J.  knowledge,  or  even  actual  fraud:  the 

C.  P.  138    143.  sale  being  wholly  void  in  any  case. 

(a)  Smith  v.  Hughes  (1871)  L.  K.  (6)    Ibid,  per  Blackburn  J.   at  p. 

6  Q.  B.  597,  40  L.  J.  Q.  B.  221;  per  607. 

Cockburn  C.J.  p.  603;  per  Hannen  J.  (c)  Smith  v.  Hughes  (1871)  L.  R. 

p.    610.     The   somewhat  refined   dis-  6  Q.  B.  597,  per  Cockburn,  C.J. 

tinction  here  taken  does  not  seem  to  (d)   Julianus  in  D.  18.  1  de  cont, 

exist  in  the  civil  law.     D.   19.   1.  de  empt.  41  pr. 

act.  empt.   11    §   5:    Savigny,  3.  293,  (e)   Per  Cur.  Bannerman  v.  White 

according  to  whom  it  makes  no  dif-  (1861)    10  C.  B.  N.  S.  844,  860,  31 

ference  whether  there  be  on  the  part  L.  J.  C.  P.  28,  32. 

39 


610  MISTAKE. 

by  which  all  questions,  even  the  most  refined,  on  the  existence  and 
nature  of  a  contract  must  at  last  come  to  be  decided. 

Cox  v.  Prentice.  Another  curious  case  of  this  class  is  Cox  v.  Pren- 
tice (f).  The  declaration  contained  a  count  in  assumpsit  as  on  a 
'warranty,  and  the  common  money  counts.  The  nature  of  the  material 
facts  will  sufficiently  appear  by  the  following  extract  from  the  judg- 
ment of  Bayley  J. : — 

"  What  did  the  plaintiffs  bargain  to  buy  and  the  defendants  to  sell  ?  They 
both  understand  [sic]  that  the  one  agreed  to  buy  and  the  other  to  sell  a  bar 
containing  such  a  quantity  of  silver  as  should  appear  by  the  assay,  and  the 
quantity  is  fixed  by  the  assay  and  paid  for;  but  through  some  mistake  in 
the  assay  the  bar  turns  out  not  to  contain  the  quantity  represented  but  a 
smaller  quantity.  The  plaintiff  therefore  may  rescind  the  contract  and  bring 
money  had  and  received,  having  offered  to  return  the  bar  of  silver." 

And  by  Dampier  J. :— "  The  bargain  was  for  a  bar  of  silver  of  the 
quality  ascertained  by  the  assay-master,  and  it  is  not  of  that  quality. 
It  is  a  case  of  mutual  error."  These  judgments  went  farther  than 
was  necessary  to  the  decision  (g),  for  a  verdict  had  been  taken  only  for 
the  difference  in  value.68  It  would  seem  that  the  sale  was  good,  and 
the  mistake  affected  only  the  fixing  of  the  price ;  the  contract  being  to 
pay  for  the  real  quantity  of  silver,  not  for  the  quantity  found  by  a 
particular  assay. 

(f)  (1815)  3  M.  &  S.  344,  16  E.  aurea  dicebatur "  should  be  found 
R.  288.  "  magna  ex  parte  aenea,"  yet  "  ven- 

(g)  And  certainly  farther  than  the  ditionem  esse  constat  ideo,  quia  auri 
civil  law:  see  D.  18.  1.  de  cont.  empt.  aliquid  habuit." 

14,   where   though   a   bracelet   "  quae 

68  When  a  piece  of  land,  by  mistake  supposed  to  contain  a  given  number  of 
acres  or  feet,  is  sold  and  paid  for  at  so  much  an  acre  or  foot,  and  turns  out  to 
contain  either  more  or  less,  the  vendor  or  purchaser,  as  the  case  may  be, 
can  recover  the  difference  in  value.  Solinger  v.  Jewett,  25  Ind.  479 ;  Fly  v. 
Brooks,  64  Ind.  50;  Paige  r.  Sherman,  6  Gray,  511;  Tarbell  v.  Bowman,  103 
Mass.  341 ;  Cardinal  v.  Hadley,  158  Mass.  352 ;  Wilson  v.  Randall,  67  N.  Y. 
338;  Paine  r.  Upton,  87  N.  Y.  327;  Gallup  v.  Bernd,  132  N.  Y.  370;  Jenks  v. 
Fritz,  7  W.  &  S.  201;  Franco-Texan  Go.  ('.  Simpson,  1  Tex.  Civ.  App.  600; 
Boschen's"  Ex.  v.  Jurgen's  Ex.,  92  Va.  756 ;  Hull  r.  Watts,  95  Va.  10 ;  Bartlett 
r.  Bartlett,  37  W.  Va.  235.  See  also  Bigham  v.  Madison,  103  Term.  358; 
Rogers  r.  Pattie,  96  Va.  498. 

If  A.  buys  from  B.,  and  pays  for,  a  mass  of  oats  at  a  fixed  sum  per  bushel, 
the  quantity  being  estimated  by  the  quantity  of  a  portion  of  the  mass  which 
has  been  measured,  which  both  suppose  to  contain  500  bushels,  though  in  fact 
it  contains  but  500  half-bushels.,  A.  can  recover  from  B.  for  the  excess  of  the 
estimated  over  the  real  quantity.  Wheadon  v.  Olds,  20  Wend.  174.  And  see 
Devine   v.   Edwards,  87   111.   177. 

If  copartners  make  a  settlement  based  on  their  understanding  of  what  the 
firm  books  showed  to  be  the  state  of  their  accounts,  relief  may  be  had  if 
by  reason  of  ;t  mutual  mistake  in  such  understanding  one  party  paid  to  the 
other  more  or  less  than  was  his  due.  Moors  r.  Bigelow,  158  Mass.  60 ;  Locke 
v.  Locke,  166  Mass.  435;  McGunn  r.  Hanlin,  29  Mich.  476;  Cobb  v.  Cole,  44 
Minn.  278. 


AS    TO    QUALITY.  611 

*Cases  of  misdescription  on  sales  of  real  property  distinguished.     It  [487 

is  important  to  distinguish  from  the  cases  above  considered  another 
class  where  persons  who  have  contracted  for  the  purchase  of  real  prop- 
erty or  interests  therein  have  been  held  entitled  at  law  (h)  as  well  as  in 
equity  (i)69  to  rescind  the  contract  on  the  ground  of  a  misdescription 
of  the  thing  sold  in  some  particular  materially  affecting  the  title, 
quantity,  or  enjoyment  of  the  estate.  In  some  of  these  cases  lan- 
guage is  used  which,  taken  alone,  might  lead  one  to  suppose  the 
agreement  absolutely  void;  and  in  one  or  two  (e.g.,  Torrance  v. 
Bolton)  there  is  some  real  difficulty  in  drawing  the  line.  But  they 
properly  belong  to  the  head  of  Misrepresentation,  or  else  (which  may 
be  the  sounder  view  where  applicable)  (h)  are  cases  where  the  contract 
is  rather  broken  than  dissolved.  A  man  is  not  bound  to  take  a  house 
or  land  not  corresponding  to  the  description  by  which  he  bought  it  any 
more  than  he  is  bound  to  accept  goods  of  a  different  denomination 
from  what  he  ordered,  or  of  a  different  quality  from  the  sample.  Mis- 
take or  no  mistake,  the  vendor  has  failed  to  perform  his  contract. 
The  purchaser  may  say :  "  You  offered  to  sell  me  a  freehold :  that 
means  an  unincumbered  freehold,  and  I  am  not  bound  to  take  a  title 
subject  to  covenants"  (I) :  or,  "You  offered  to  sell  an  absolute  re- 
version in  fee  simple:  I  am  not  to  be  put  off  with  an  equity  of  re- 
demption and  two  or  three  Chancery  suits  (m).  I  rescind  the  con- 
tract and  claim  back  *my  deposit."  Cases  of  this  kind,  there-  [488 
fore,  are  put  aside  for  the  present. 

Subject-matter  not  in  existence.     Again,  an  agreement  is  void  if  it  re- 
lates to  a  subject-matter  (whether  a  material  subject  of  ownership  or  a 

(h)     Flight    v.    Booth     (1834)     1  ages     are     generally     recoverable     if 

Bing.  N.  C.  370,  41  R.  R.  599;  Phil-  the    defendant    was    guilty    of    any 

lips  v.  Caldcleugh   (1868)   L.  R.  4  Q.  fraud   or    other   misconduct,    and    in 

B.  159,  38  L.  J.  Q.  B.  68.  some  jurisdictions   damages   for   loss 

(i)  Stanton  v.  Tattersall  (1853)    1  of  the  bargain   are  always  recovera- 

Sm.  &   G.   529;    Earl  of  Durham   v.  ble.    Sedgwick  on  Damages   (8th  ed.), 

Legard  (1865)  34  Beav.  611,  34  L.  J.  §   1008  et  seq.;  Sutherland  on  Dam- 

Ch.  589;   Torrance  V.  Bolton    (1872)  ages    §§    78,    99,   578,    et    seq.]      The 

L.  R.  8  Ch.  118,  42  L.  J.  Ch.  177.   See  analogy  suggested  in  the  text  should 

authorities  collected  in  Dart  V.  &  P.  perhaps   be   confined   to   cases   where 

114  sqq.  the  misdescription  goes  to  matter  of 

(h)    The  difference  is  purely  theo-  title.     One  cannot  compare  a  specific 

retical;  for  if  it  be  an  actual  breach  sale  of  land  to  a  non-specific  sale  of 

of  contract  the  purchaser  can  recover  goods :  but  the  contract  is  not  merely 

only  nominal  damages :  Bain  v.  Foth-  to  sell  specific  land,  but  to  g''ve  a 

ergill  (1873-4)  L.  R.  7  H.  L.  158,  43  certain  kind  of  title. 

L.  J.  Ex.  243,  confirming  Flureau  V.  (1)    Phillips  v.  Caldcleugh    (1868) 

Thomhill  (1776)  2  W.  Bl.  1078.  [Cp.  L.  R.  4  Q.  B.  159,  38  L.  J.  Q.  B.  68. 

Day  v.   Singleton    [1899]    2   Ch.   320.  (m)   Torrance  v.  Bolton  (1872)   L. 

In  the  United  States  substantial  dam-  R.  8  Ch.  118;  see  at  p.  124. 

69  Hood  v.  Smith,  79  la.  621. 


612  MISTAKE. 

particular  title  or  right)  contemplated  by  the  parties  as  existing  but 
which  in  fact  does  not  exist.70  Herein,  as  before,  everything  depends 
on  the  intention  of  the  parties,  and  the  question  is  whether  the  exist- 
ence of  the  thing  contracted  for  or  the  state  of  things  contemplated 
was  or  was  not  presupposed  as  essential  to  the  agreement.  Such  is 
presumed  to  be  the  understanding  in  the  case  of  sale.  We  may  con- 
veniently use  the  illustrations  given  on  this  point  in  the  Indian  Con- 
tract Act  (n). 

Illustrations,  a.  A.  agrees  to  sell  to  B.  a  specific  cargo  of  goods  sup- 
posed to  be  on  its  way  from  England  to  Bombay.  It  turns  out  that, 
before  the  day  of  the  bargain,  the  ship  conveying  the  cargo  had  been 
cast  away  and  the  goods  lost.  Neither  party  was  aware  of  these  facts. 
The  agreement  is  void. 

Couturier  v.  Hastie.  This  was  assumed  in  the  House  of  Lords  and 
by  all  the  judges  in  Couturier  v.  Hastie  (o),71  where  the  only  ques- 
tion in  dispute  was  on  the  effect  of  the  special  terms  of  the  contract. 

(»)  S.  20;  the  rule  is  rather  widely  (o)    (1856)  5  H.  L.  C.  673,  25  L.  J. 

stated:  Where  both  the  parties  to  Ex.  253.  For  a  fuller  account  of  the 
an  agreement  are  under  a.  mistake  as  case,  and  the  relation  of  this  class  of 
to  a  matter  of  fact  essential  to  the  cases  to  the  doctrine  of  impossibility 
agreement,  the  agreement  is  void.  of   performance,    see   pp.    *419,    *420, 

above. 

70  Quoted  and  applied  in  Riegel  v.  American  Ins.  Co.,  153  Pa.  134.  In 
that  case  a  creditor  holding  as  security  a  policy  on  the  life  of  his  debtor  sur- 
rendered the  policy  to  the  company  for  a  paid-up  policy  of  less  than  half  the 
face  of  the  original  policy.  At  the  time,  unknown  to  both  parties,  the  insured 
had  been  dead  ten  days.  The  company  was  held  bound  to  reinstate  the  orig- 
inal policy  and  pay  it  in  full. 

71  In  Duncan  r.  New  York  Ins.  Co.,  138  N.  Y.  88,  the  parties  rescinded 
a  contract  of  insurance  on  the  assumption  that  the  vessel  insured  Vad  reached 
port.  In  fact  the  vessel  was  lost.  It  was  held  that  the  rescission  was  not 
binding  and  the  insurance  could  be  recovered.  See  also,  on  the  general  ques- 
tion, Vinal  r.  Continental  Co.,  32  Fed.  Rep.  343;  Paine  v.  Pacific  Ins.  Co.,  51 
Fed.  Rep.  68!);  United  States  v.  Charles,  74  Fed.  Rep.  142;  Griffith  v.  Sebastian 
Co.,  49  Ark.  24;  Fleetwood  r.  Brown,  109  Ind.  567;  Fritzler  v.  Robinson,  70 
la.  500;  Rice  r.  Dwight  Mfg.  Co.,  2  Cush.  80,  86;  Bridgewater  Iron  Co.  v. 
Insurance  Co.,  134  Mass.  433,  436;  Blaney  v.  Rogers,  174  Mass.  277,  280; 
McGoren  r.  Avery,  37  Mich.  120 ;  Gibson  v.  Pelkie,  37  Mich.  380 ;  Sherwood  v. 
Walker,  66  Mich.  568;  Nordyke  Co.  v.  Kehlor,  155  Mo.  643;  Marvin  v.  Ben- 
nett, 8  Paige,  312,  321 ;  Rheel  v.  Hicks,  25  N.  Y.  289 ;  Harlem  v.  Lehigh  Co., 
35  Pa.  287;  Muhlenberg  r.  Henning,  116  Pa.  138;  King  v.  Doolittle,  1  Head, 
77;  Ketchum  v.  Catlin,  21  Vt.  191;  Bedell  r.  Wilder,  65  Vt.  406.  Where 
one  having  a  claim  against  a  foreign  government,  in  ignorance  that  it  had 
been  allowed,  gave  to  another  an  irrevocable  power  of  attorney  to  prosecute 
it,  and  entered  into  »  contract  to  pay  him  a  percentage  of  what  might  be 
recovered,  in  consideration  of  his  agreeing  to  use  his  efforts  to  bring  the 
claim  to  a  favorable  issue,  the  contract  was  ordered  to  be  canceled  on  the 
ground  of  mistake.     Allen  v.  Hammond,  11  Pet.  63. 

"  But  this  principle  has  no  application  where  one  voluntarily  purchases 
such  right,  title,  or  interest  in  property  as  another  may  have,  even  if  both 


AS    TO    EXISTENCE    OF    SUBJECT-MATTER.  613 

6.  A.  pgrees  to  buy  from  B.  a  certain  horse.  It  turns  out  that  the 
horse  was  dead  at  the  time  of  the  bargain,  though  neither  party  was 
aware  of  the  fact.    The  agreement  is  void  {p)P 

*We  may  add  a  like  example  from  the  Digest.  A.  agrees  with  [489 
B.  to  buy  a  house  belonging  to  B.  The  house  has  been  burnt  down,  but 
neither  A.  nor  B.  knows  it.  Here  there  is  not  a  contract  for  the  sale 
of  the  land  on  which  the  house  stood,  with  compensation  or  otherwise, 
but  the  sale  is  void  (q). 

Same  principle  applied  to  sale  of  shares.  In  like  manner  a  sale  of 
shares  in  a  company  will  not  be  enforced  if  at  the  date  of  the  sale 
a  petition  for  winding-up  has  been  presented  of  which  neither  the 
vendor  nor  the  purchaser  knew  (r) .  But  the  ignorance  of  the  buyer 
only  in  similar  circumstances  does  not  of  itself  invalidate  the  sale. 
It  seems  however  that  the  sale  would  be  voidable  on  the  ground  of 
fraud  if  the  seller  knew  of  the  buyer's  ignorance,  but  that  such  knowl- 
edge should  be  distinctly  and  completely  alleged  (s).  An  agree- 
ment to  take  new  shares  in  a  company  which  the  company  has  no 
power  to  issue  is  also  void,  and  money  paid  under  it  can  be  recovered 
back  (t). 

To  annuities  and  life  interests,  c.  A.  being  entitled  to  an  estate  for 
the  life  of  B.  agrees  to  sell  it  to  C.  B.  was  dead  at  the  time  of  the 
agreement,  but  both  parties  were  ignoran+  of  the  fact.  The  agree- 
ment is  void. 

(p)  Pothier,  Contrat  de  Vente,  §  4,  tione  illarum  arborum,  veluti  oliveti, 

cited  5  H.  L.  C.  678,  says :     "  Si  done,  fundus     comparabatur,     sive     sciente 

ignorant  que  mon  cheval  est  mort,  je  sive  ignorante  venditore. 
le  vends  a  quelqu'um,  il  n'y  aura  pas  (r)   Emmerson's  case   (1866)  L.  R. 

un    contrat    de    vente,     faute    d'une  1  Ch.  433,  expld.  L.  R.  3  Ch.  391,  per 

chose  qui  en  soit  l'objet."     Cp.  Code  Page  Wood  L.J. 

Civ.    1601.      "Si   au   moment   de   la  (s)  Budge  v.  Bowman  (1868)  L.  R. 

vente  la  chose  vendue  etait  pSrie  en  3  Q.  B.  689,  697.    The  Roman  lawyers 

totalite,  la  vente  serait  nulle  " :   and  seem  to  have  treated  the  presumption 

so  Italian  Code,  1461.  of  dolus  as  absolute  if  the  seller  knew 

(q)    Paulus   in  D.   18.    1.   de  cont.  the   facts.     See   the   continuation   of 

empt.  57,  pr.     Domum  emi  cum  earn  the  passages  above  cited, 
et  ego  et  venditor  combustam  ignore-  (<)    Bank   of  Hindustan  v.   Alison 

mus;   Nerva,  Sabinus,  Cassius,  nihil  (1870)  L.  R.  6  C.  P.  54,  in  Ex.  Ch.  ib. 

venisse   quamvis   area  maneat,   pecu-  222,  40  L.  J.  C.  P.  1,  117;  Ex  parte 

niamque  solutam  condici  posse  aiunt.  Alison  (1874)  L.  R.  15  Eq.  394,  9  Ch. 

Cp   Papinian,  eod.  tit.  58.    Arboribus  1,  24;  Ex  parte  Campbell   (1873)   L. 

quoque  vento  defectis  vel  absumptis  R.  16  Eq.  417,  L.  R.  9  Ch.  1,  12,  42 

igne  dictum  est  emptionem  fundi  non  L.  J.  Ch.  771. 
videri  esse  contractam  si  contempla- 

parties  are  in  error  as  to  the  extent  or  value  of  that  title  or  interest,  or  even 
if  in  fact  the  seller  has  no  right."     Sears  v.  Leland,  145  Mass.  277,  278. 

72  "  Where  there  is  a  contract  for  the  sale  of  specific  goods,  and  the  goods 
without  the  knowledge  of  the  seller  have  perished  at  the  time  when  the  con- 
tract is  made,  the  contract  is  void."    Sale  of  Goods  Act,  §  6. 


614  MISTAKE. 

This  was  so  held  at  law  in  Strickland  v.  Turner  (w).73  There,  at 
the  date  when  the  sale  of  a  life  annuity  was  completed,  the  life  had 
490]  dropped  unknown  to  both  vendor  *and  purchaser;  it  was  held 
that  the>  purchase  money  might  be  recovered  back  as  on  a  total  failure 
of  consideration.  So  in  Hitchcock  v.  Giddings  (x)  a  remainderman 
in  fee  expectant  on  an  estate  tail  had  sold  his  interest,  a  recovery 
having  been  already  suffered  unknown  to  the  parties:  a  bond  given 
to  secure  the  purchase  money  was  set  aside.  "  Here  is  an  estate  which 
ii  no  recovery  had  been  suffered  was  a  good  one.  Both  parties,  being 
equally  ignorant  that  a  recovery  had  been  suffered,  agree  for  the  sale 
and  purchase  of  the  estate,  and  the  purchaser  is  content  to  abide  the 
risk  of  a  recovery  being  subsequently  suffered.  He  conceives  however 
he  is  purchasing  something,  that  he  is  purchasing  a  vested  interest. 
He  is  not  aware  that  such  interest  has  already  been  defeated  .  .  . 
[The  defendant]  has  sold  that  which  he  had  not — and  shall  the  plain- 
tiff be  compelled  to  pay  for  that  which  the  defendant  had  not  to 
give?"  (y).  More  recently,  in  Cochrane  v.  Willis  (z),  an  agreement 
had  been  made  between  a  remainderman  and  the  assignee  of  a  tenant 
for  life  of  a  settled  estate,  founded  on  the  assignee's  supposed  right  to 
cut  the  timber.  The  tenant  for  life  was  in  fact  dead  at  the  date  of 
the  agreement.  The  Court  refused  to  enforce  it,  as  having  been  en- 
tered into  on  the  supposition  that  the  tenant  for  life  was  alive,  and 
only  intended  to  take  effect  on  that  assumption.  So  a  life  insurance 
cannot  be  revived  by  the  payment  of  a  premium  within  the  time 
allowed  for  that  purpose  by  the  original  contract,  but  after  the  life 
has  dropped  unknown  to  both  insurers  and  assured,  although  it  was 
in  existence  when  the  premium  became  due,  and  although  the  insurers 
have  waived  proof  of  the  party's  health,  which  by  the  terms  of  re- 
newal they  might  have  required:  the  waiver  applies  to  the  proof  of 
health  of  a  man  assumed  to  be  alive,  not  to  the  fact  of  his  being 
alive  (a) 


74 


(m)    (1852)  7  Ex.  208,  22  L.  J.  Ex.  Insurance  Society  (1858)  3  C.  B.  N.  S. 

115.  622,    27    L.   J.    C.    P.    169.      For    the 

(x)     (1817)    4   Pri.    (Ex.   in  Eq.)  somewhat  different  treatment  of  the 

135,  and  better  in  Dan.   1,   18  R.  R.  contract  of  marine  insurance,  where 

725.  at  the  date  of  effecting  the  policy  the 

(y)  Dan.  at  p.  7,  18  R.  P.  729.  risk  has  been  determined  without  the 

(s)    (1865)  L.  E.  1  Ch.  58,  35  L.  J.  knowledge   of  the   parties,  see   Brad- 

Ch.  36.  ford   v.   Symondson    (1881)    7   Q.   B. 

(a)    Pritchard   v.    Merchants'   Life  Div.  456,  50  L.  J.  Q.  B.  582. 

73  Allen  i\  Hammond,  11  Pet.  63,  71.  If  the  seller  had  known  that  the  life 
had  dropped,  the  sale  would  have  been  fraudulent.  Thayer  v.  Knote,  59  Kan. 
181;  Haviland  v.  Willets,  141  N.  Y.  35. 

74  See  Bennecke  v.  Insurance  Co.,  105  TJ.  S.  355 ;  Misselhorn  v.  Mutual  Assoc., 
30  Fed.  Rep.  545;  Insurance  Co.  r.  Ruse,  8  Ga.  534,  545;  Miller  v.  Insurance  Co., 


BUYING  .one's   OWN    I'ROPERTY.  615 

*Purchase  of  property  already  oie's  own.  The  case  of  Bingham  v.  [491 
Bingham  (b),  which  was  relied  on  in  the  argument  of  Cochrane  v.  Wil- 
lis, and  in  the  judgment  of  Turner  L.J.  must  be  considered  as  belonging 
to  this  class.  As  in  Cochrane  v.  Willis,  the  substance  of  the  facts  was 
that  a  purchaser  was  dealing  with  his  own  property,  not  knowing  that 
it  was  his.  This  consideration  seems  to  remove  the  doubt  expressed 
by  Story  (c),  who  criticizes  it  as  a  case  in  which  relief  was  given 
against  a  mere  mistake  of  law.  But,  with  all  respect  for  that  eminent 
writer,  his  objection  is  inapplicable.  For  the  case  does  not  rest  on 
mistake  as  a  ground  of  special  relief  at  all.  There  was  a  total  failure 
of  the  supposed  subject-matter  of  the  transaction,  or  perhaps  we  should 
rather  say  it  was  legally  impossible.  We  have  already  pointed  out  the 
resemblance  of  this  class  of  cases  to  some  of  those  considered  in  the 
last  chapter.  The  one  party  could  not  buy  what  was  his  own  al- 
ready, nor  could  the  other  (in  the  words  of  the  judgment  as  re- 
ported) be  allowed  "to  run  away  with  the  money  in  consideration  of 
the  sale  of  an  estate  to  which  he  had  no  right"  (d).  So  we  find  it 
treated  in  the  Eoman  law  quite  apart  from  any  question  of  mistake, 
except  as  to  the  right  of  recovering  back  money  paid  under  the  agree- 
ment. A  stipulation  to  purchase  one's  own  property  is  "  naturali 
ratione  inutilis  "  as  much  as  if  the  thing  was  destroyed,  or  not  capable 
of  being  private  property  (e).  Such  an  agreement  is  naught 
both  *at  law  and  in  equity,  without  reference  to  the  belief  or  [492 
motive  which  determined  it. 

Agreement  to  pay  rent  for  one's  own  property.  Moreover  the  difficulty 
was  cleared  up  by  Lord  Westbury,  though  not  quite  on  this  broad 
ground,  in  a  case  exactly  similar  in  principle.  In  Cooper  v.  Phibbs  (f) 
A.  agreed  to  take  a  lease  of  a  fishery  from  B.,  on  the  assumption  that 
A.  had  no  estate  and  B.  was  tenant  in  fee.  Both  parties  were  mis- 
taken at  the  time  as  to  the  effect  of  a  previous  settlement;  and  in 
truth  A.  was  tenant  for  life  and  B.  had  no  estate  at  all.  It  was  held 
that  this  agreement  was  invalid. 

(6)    (1748)    1  Ves.  Sr.  126,  Belt's  Huddersfield  Banking  Co.  v.  E.  Lister 

Supp.  79.  &  Son,  Ltd.  [1895]  2  Ch.  273,  281. 

(c)  Eq.  Jurisp.  §  124.  (e)    Gaius  in  D.  4-1  7.  de.  obi.  .et 

(d)  The  case  is  considered,  among  act.  1  §  10.  Suae  rei  emptio  non 
other  authorities,  and  upheld  on  the  valet,  sive  sciens,  sive  ignorans  emi; 
true  ground,  in  Stewart  v.  Stewart  sed  si  ignorans  emi,  quod  solvero 
(1839)  6  CI.  &  F.  at  p.  968;  cp.  the  repetere  potero,  quia  nulla  obligatio 
remarks  of  Hall  V.-C.  in  Jones  v.  fuit:  Pomponius,  D.  18.  1.  de  cont. 
Clifford  (1876)   3  Ch.  D.  779,  790,  45  empt.  16  pr. 

L.  J.  Ch.  809,  and  of  Lindley  L.J.  in  (f)    (1867)  L.  R.  2  H.  L.  149. 

110  111.  102;  Riegel  r.  American  Ins.  Co.,  140  Pa.  193.     Cp.  Sears  v.  Grand 
Lodge,  163  N.  Y.  374. 


616  MISTAKE.      . 

Lord  Westbury's  explanation  of  ignorantia  iuris.  Lord  Westbury  stated 
the  ground  of  the  decision  as  follows : — "  The  result  therefore  is 
that  at  the  time  of  the  agreement  for  the  lease  which  it  is  the 
object  of  this  petition  (g)  to  set  aside,  the  parties  dealt  with  one 
another  under  a  mutual  mistake  as  to  their  respective  rights.  The 
petitioner  did  not  suppose  that  he  was,  what  in  truth  he  was,  tenant 
for  life  of  the  fishery.  The  other  parties  acted  under  the  impression 
given  to  them  by  their  father  that  he  (their  father)  was  the  owner 
of  the  fishery  and  that  the  fishery  had  descended  to  them.  In  such 
a  state  of  things  there  can  be  no  doubt  of  the  rule  of  a  court  of  equity 
with  regard  to  the  dealing  with  that  agreement.  It  is  said  '  Ignorantia 
ivris  liaud  excusai '  ;  but  in  that  maxim  the  word  '  ius '  is  used  in 
the  sense  of  denoting  general  law,  the  ordinary  law  of  the  country. 
But  when  the  word  '  ius '  is  used  in  the  sense  of  denoting  a  private 
right,  that  maxim  has  no  application.  Private  right  of  ownership 
is  a  matter  of  fact;  it  may  be  the  result  also  of  matter  of  law;  but  if 
parties  contract  under  a  mutual  mistake  and  misapprehension  as  to 
their  relative  and  respective  rights,  the  result  is  that  that  agreement 
is  liable  to  be  set  aside  as  having  proceeded  upon  a  common  mistake. 
Now  that  was  the  case  with  these  parties — the  respondents  believed 
493]  themselves  to  be  entitled  to  the  pro*perty,  the  petitioner  be- 
lieved that  he  was  a  stranger  to  it,  the  mistake  is  discovered,  and  the 
agreement  cannot  stand"  (70.7B 

Broughton  v.  Hutt.     The  principle  here  laid  down  also  covers  Brough- 
ion  v.  Hutt  (i).     There  the  heir-at-law  of  a  shareholder  in  a  com- 
ic;)  A  Cause  Petition  in  the  Irish  (h)  L.  R.  2  H.  L.  170. 
Court  of  Chancery.                                             (i)    (1858)   3  De  G.  &  J.  501. 

75  In  Martin  v.  McCormick,  8  N.  Y.  331,  the  plaintiff  was  the  owner  in  fee 
simple  of  a  house  and  lot;  both  he  and  defendant  supposed,  however,  that 
plaintiff's  title  was  subject  to  a  term  for  a  hundred  years  in  the  defendant. 
Plaintiff  paid  defendant  $1,800  for  an  assignment  of  the  supposed  term.  Held, 
that  he  could  recover  the  money  as  paid  by  mistake.  See  also  O'Neal  r. 
Phillips,  83  Ga.  556;  Phillips  v.  O'Neal,  85  Ga.  142,  87  Ga.  727;  Jordan  v. 
Stevens,  51  Me.  78;  Berry  v.  American  Ins.  Co.,  132  N.  Y.  49;  Lawrence  r. 
Beaubien,  2  Bailey,  623 ;  Harlan  i\  Central  Phosphate  Co.,  62  S.  W.  Rep.  614. 

But  cp.  Hamblin  v.  Bishop,  41  Fed.  Bep.  74;  Leal  f.  Terbush,  52  Mich.  100; 
Clapp  r.  Hoffmann,  159  Pa.  531. 

In  Alton  r.  First  Bank,  157  Mass.  341,  343,  Holmes,  J.,  in  delivering  the 
opinion  of  the  court,  said :  "  Lord  Westbury  sometimes  is  supposed  to  have 
taken  a  distinction  as  to  the  effect  of  a,  mistake  of  law  according  to  whether 
the  mistaken  principle  is  general  or  special.  Cooper  v.  Phibbs,  L.  R.  2  H.  L. 
149,  170.  But  in  the  often  quoted  passage  of  his  judgment  he  only  meant 
that  certain  words,  such  as  ownership,  marriage,  settlement,  etc.,  import  both 
a  conclusion  of  law  and  facts  justifying  it,  so  that  when  asserted  without  ex- 
planation of  what  the  facts  relied  on  are,  they  assert  the  existence  of  facts 
sufficient  to  justify  the  conclusion,  and  a  mistake  induced  by  such  assertion 
is  a  mistake  of  fact." 


BUYING   ONE'S    OWN    PROPERTY.  617 

pany  joined  with  several  other  shareholders  in  giving  a  deed  of  in- 
demnity to  the  directors,  believing  that  the  shares  had  descended  to 
him  as  real  estate,  whereas  they  were  personal  estate.  The  deed  was 
held  to  be  void  as  against  him  in  equity  at  all  events,  and  probably  at 
law.76  "  The  plaintiff  never  intended  to  be  bound  unless  he  was  a 
shareholder,  and  the  defendants  never  intended  him  to  be  bound  un- 
less he  was  so."  Here  the  mistake  was  plainly  one  of  fact  within 
Lord  Westbury's  definition,  namely  as  to  the  character  of  the  shares 
by  the  constitution  of  the  particular  company.  It  is  submitted,  how- 
ever, that  an  erroneous  fundamental  assumption  made  by  both  parties 
even  as  to  a  general  rule  of  law  might  well  prevent  any  valid  agree- 
ment from  being  formed. 

Assignment  of  lease  for  lives.  In  the  same  way  an  agreement  to  as- 
sign a  lease  for  lives  would  be  inoperative  if  all  the  lives  had  dropped 
unknown  to  the  parties.  But  the  only  thing  which  the  parties  can 
here  be  supposed,  in  the  absence  of  expressed  condition  or  warranty, 
to  assume  as  essential  is  that  the  lease  is  subsisting,  that  is,  that  at 
least  one  of  the  lives  is,  not  that  they  all  are  still  in  existence.  Where 
the  assignor  of  a  lease  for  the  lives  of  A.,  B.,  and  C,  expressly  cove- 
nanted with  the  assignee  that  the  lease  was  a  subsisting  lease  for 
the  lives  of  A.,  B.,  and  C,  and  the  survivors  and  survivor  of  them, 
this  was  held  to  be  only  a  covenant  that  the  lease  was  subsisting,  and 
not  that  all  the  lives  were  in  being  at  the  date  of  the  assignment  (fc). 
That  is,  his  contract  was  interpreted,  according  to  the  general  practice 
and  understanding  of  conveyancers,  as  a  contract  to  transfer  an 
*existing  lease  for  three  lives,  not  necessarily  a  lease  for  three  [494 
lives  all  existing. 

Results  where  only  one  party  is  ignorant  of  the  material  fact.      If  in  any 

state  of  things  otherwise  resembling  those  just  now  discussed  we  find, 
instead  of  ignorance  of  the  material  fact  on  both  sides,  ignorance 
on  the  one  side  and  knowledge  on  the  other,  then  the  matter  has  to 
be  treated  differently.  Suppose  A.  and  B.  are  the  contracting  parties ; 
and  let  us  denote  by  X.  a  fact  or  state  of  facts  materially  connected 
with  the  subject-matter  of  the  contract,  which  is  supposed  by  A.  to 

Ik)  Coates  v.  Collins  (1871)  L.  R.  6  Q.  B.  469,  in  Ex.  Ch.  7  Q.  B.  144, 
41  L.  J.  Q.  B.  90. 

76  In  Gross  v.  Leber,  47  Pa.  520,  the  sons  and  administrators  of  one  who 
had  been  a  trustee,  supposing  that  because  they  were  his  administrators, 
they  were  also  trustees  in  the  place  of  their  father,  executed  a  bond  for  the 
payment  of  a  debt  due  by  the  cestui  que  trust  as  they  supposed  was  their 
duty  as  such  trustees ;  it  was  held  that  equity  would  relieve  against  the 
enforcement  of  the  bond.    And  see  Wilson  v.  Insurance  Co.,  60  Md.  150. 


618  MISTAKE. 

exist,  but  which  in  truth  does  not  exist,  and  is  known  by  B.  not  to 
exist.    Then  we  have  to  ask  these  questions: — 

1.  Does  A.  intend  to  contract  only  on  the  supposition  that  X.  exists  ? 
which  may  be  put  in  another  way  thus :  If  A.'s  attention  were  called 
to  the  possibility  of  his  belief  in  the  existence  of  X.  being  erroneous, 
would  he  require  the  contract  to  be  made  conditional  on  the  existence 
of  X.  ? 

2.  If  so — Does  B.  know  that  A.  supposes  X.  to  exist? 

3.  If  B.  knows  this — Does  he  also  know  that  A.  intends  to  contract 
only  on  that  supposition? 

If  the  answer  to  any  one  of  these  questions  is  in  the  negative,  it 
seems  there  is  a  binding  contract  (l).  But  it  is  to  be  observed  that  a 
negative  answer  to  the  second  question  will  generally  require  strong 
evidence  to  establish  it,  and  that  if  this  question  be  answered  in  the 
affirmative,  an  affirmative  answer  to  the  third  question  will  often 
follow  by  an  almost  irresistible  inference.  Thus  if  a  purchaser  of 
a  reversionary  interest  subject  to  prior  life  interests  knows  that  one 
of  these  has  ceased,  and  nothing  is  said  about  it  at  the  time  of  the 
contract,  then  the  purchaser  can  hardly  expect  anybody  to  believe 
either  that  he  himself  overlooked  the  material  importance  of  the  fact, 
or  that  he  was  not  aware  of  the  vendor's  ignorance  of  it,  or  that  he 
supposed  that  the  vendor  would  not  treat  it  as  material  (m).77  So 
495]  in  *the  case  already  cited  (re)  of  the  sale  of  shares  after  a 
petition  for  the  winding  up  of  the  company  had  been  presented,  a 
distinct  allegation  in  the  pleadings  that  the  seller  knew  of  the  buyer's 
ignorance  of  that  fact,  would,,  it  seems,  have  been  sufficient  to  con- 
stitute a  charge  of  fraud. 

If  the  questions  above  stated  be  all  answered  in  the  affirmative, 
either  by  positive  proof  or  by  probable  and  uncontradicted  presump- 
tion from  the  circumstances,  then  it  may  be  considered  either  that 
the  case  becomes  one  of  fraud,  or  at  least  that  the  party  who  knew 
the  true  state  of  the  facts,  and  also  knew  the  other  party's  intention 
to  contract  only  with  reference  to  a  supposed  different  state  of  facts, 
is  precluded  from  denying  that  he  understood  the  contract  in  the 
same  sense  as  that  other,  namely,  as  conditional  on  the  existence  of 
the  supposed  state  of  facts. 

(I)   Smith  v.  Hughes  (1871)   L.  R.  (n)  Rudge  v.  Bowman  (1868)  L.  U. 

6  Q.  B.  597,  supra,  p.  485.  3  Q.  B.  689,  37  L.  J.  Q.  B.  193. 

(m)    See  Turner  v.  Harvey   (1821) 
Jac.  169,  23  R.  R.  15. 

77  See  Thayer  v.  Knote,  59  Kan.  181;  Trecy  r.  Jefts,  149  Mass.  211;  Havi- 
land  v.  Willets,  141  N.  Y.  35 ;  Irwin  t.  Wilson,  45  Ohio  St.  426,  435. 


EEROE    CAUSED   BY    MISREPRESENTATION.  619 

Fundamental  error  produced  by  misrepresentation.  On  a  similar  prin- 
ciple (as  we  have  already  mentioned  incidentally)  it  is  certain  that 
where  fundamental  error  of  one  party  is  caused  by  a  fraudulent 
misrepresentation,  and  probable  that  where  it  is  caused  by  an  innocent 
misrepresentation  on  the  part  of  the  other,  that  other  is  estopped 
from  denying  the  validity  of  the  transaction  if  the  party  who  has  been 
misled  thinks  fit  to  affirm  it. 

Does  it  follow  that  the  contract  is  in  its  inception  not  void,  but 
voidable  at  the  option  of  the  party  misled  ?78  Not  so :  for  the  fraud 
or  negligence  of  the  other  must  not  put  him  in  any  worse  position  as 
regards  third  persons.  These,  if  the  transaction  be  simply  voidable, 
are  entitled  to  treat  it  as  valid  until  rescinded,  and  may  acquire  in- 
defeasible rights  under  it:  if  it  be  void  they  can  acquire  none,  how- 
ever blameless  their  own  part  in  the  matter  may  be  (o).  Thus  there 
is  a  real  difference  between  a  contract  voidable  at  the  option  of  one 
party  and  a  void  agreement  whose  nullity  the  other  is  estopped  as 
against  him  from  asserting.  *In  the  case  of  contracts  to  take  [496 
shares  in  companies  an  anomaly  is  admitted,  as  we  have  seen,  for 
reasons  of  special  necessity,  and  the  contract  is  treated  as  at  most 
voidable.  But  even  here  there  must  be  an  original  animus  contrahendi 
to  this  extent,  that  the  shareholder  was  minded  to  have  shares  in 
some  company.  An  application  for  shares  signed  in  absolute  ignorance 
of  its  true  nature  and  contents,  like  the  bill  .in  Foster  v.  Machin- 
non  (p),  could  not  be  the  foundation  of  a  binding  contract  to  take 
shares.  An  allotment  in  answer  to  such  an  application  would  be  a 
mere  proposal,  and  whether  it  were  accepted  or  not  would  have  to  be 
determined  by  the  ordinary  rules  of  law  in  that  behalf  (see  Ch.  I.). 

Mistakes  in  sale  by  sample.  We  may.  here  call  attention  to  the  rule 
concerning  sales  by  sample  which  may  be  gathered  from  Heilbutt 
v.  Hickson  (q)  and  is  stated  by  Mr.  Benjamin  to  this  effect:  "If 
a  manufacturer  agrees  to  furnish  goods  according  to  sample,  the 
sample  is  to  he  considered  as  if  free  from  any  secret  defect  of  manu- 
facture not  discoverable  on  inspection  and  unknown  to  both  parties." 

Here  we  have  a  common  error  as  to  a  material  fact,  namely  the 
character  of  the  sample  itself  by  which  the  character  of  the  bulk  is 

(o)  Foster  v.  Mackinnon  (1869)  L.  (q)    (1872)    L.  E.  7  C.  P.  438,  41 

R.  4  C.  P.  704,  38  L.  J.  C,  P.  310,  L.  J.  C.  P.  228;  Benjamin  on  Sale, 

supra,  p.  462.  646. 

(p)   See  note  (o),  last  page. 

78  See  Gardner  v.  Lane,  12  Allen,  39,  98  Mass.  517. 


620  MISTAKE. 

to  be  tested.  But  it  is  possible  to  put  the  parties  in  the  same  position 
as  if  their  erroneous  assumption  had  been  correct,  and  therefore  their 
contract,  instead  of  being  avoided,  is  upheld  according  to  their  true 
intention,  i.e.,  as  if  the  sample  had  been  what  they  both  supposed  it 
to  be.79  If  they  had  themselves  discovered  the  mistake  in  time  they 
v/ould  have  made  the  same  contract  with  reference  to  a  proper  sample 
in  place  of  the  defective  one.  The  result  is  thus  the  converse  of  that 
which  occurs  when  the  error  goes  to  the  matter  of  the  whole  agree- 
ment, as  in  the  cases  we  have  been  considering.  It  may,  however, 
497]  be  more  simply  arrived  at  on  the  broad  ground  that  *reference 
to  a  sample  does  not  exclude  the  general  duty  of  the  seller  to  furnish 
merchantable  goods  answering  the  description  in  the  contract  (r).80 
A  mistake  in  the  sample  exhibited  on  a  sale,  in  the  sense  of  its  being 
taken  from  a  bulk  different  from  that  which  is  intended  and  expressed 
to  be  sold,  may  wholly  prevent  the  formation  of  a  contract  (s). 

Rights  and  remedies  of  party  to  a  void  agreement.  It  appears  that  the 
authorities  which  have  been  adduced  that  a  party  to  an  apparent 
agreement  which  is  void  by  reason  of  fundamental  error  has  more 
than  one  course  open  to  him. 

He  may  wait  until  the  other  party  seeks  to  enforce  the  alleged  agree- 
ment and  then  assert  the  nullity  of  the  transaction  by  way  of  defence. 
I  f  he  think  fit  he  may  also  take  the  opportunity  of  seeking  by  counter- 
claim to  have  the  instrument  sued  on  set  aside  (t). 

Or  he  may  right  himself,  if  he  prefers  it,  by  coming  forward  act'vely 
as  plaintiff.  When  he  has  actually  paid  money  as  in  performance 
of  a  supposed  valid  agreement,  and  in  ignorance  of  the  facts  which 
exclude  the  reality  of  such  agreement,  he  may  recover  back  his  money 
as  having  been  paid  without  any  consideration  (the  action  "  for  money 

(r)  Drummond  v.  Van  Ingen  (1887)  ally  the  doctrine  assumed  in  Mostyn 

12  App.  Ca.  284,  56  L.  J.  Q.  B.  563.  v.   West   Mostyn   Goal  and  Iron   Co. 

(s)   Megaw  v.  Molloy   (1878)   2  L.  (1876)   1  C.  P.  D.  145,  45  L.  J.  C.  F. 

R.  Ir.  530.  401,  that  it  is  needful  for  this  pur- 

(t)   Storey  v.  Waddle   (1879)   4  Q.  pose  to  obtain  a  transfer  of  the  action 

B.  Div.  289,  seems  to  overrule  virtu-  to  the  Chancery  Division. 

79  Drummond  v.  Van  Ingen,  12  A.  C.  284;  Coates  v.  Cook,  101  Ga.  586. 
But  if  the  seller  is  not  the  manufacturer,  and  there  is  a  latent  defect  in 

the  sample,  unknown  to  both  parties,  there  is  no  warranty  that  the  bulk  shall 
correspond  to  the  sample,  as  it  was  supposed  to  be.  Dickinson  v.  Gay,  7 
Allen,  29.  It  would  seem,  however,  that  the  contract  or  sale  might  be  avoided 
on  the  ground  of  mistake. 

80  The  seller  is  under  a  double  obligation,  ( 1 )  to  furnish  merchantable  goods 
answering  to  the  description  in  the  contract;  (2)  to  furnish  goods  like  the 
sample.  These  obligations  are  not  identical.  Mody  v.  Gregson,  L.  R.  4  Ex. 
49;  Drummond  v.  Van  Ingen,  12  A.  C.  284;  Gould  v.  Stein,  149  Mass.  570; 
Miamisburg  Twine  Co.  i\  Wohlhuter,  71  Minn.  484. 


ADOPTION    OF    VOID    AGREEMENT.  621 

received"  of  the  old  practice)  (u).  He  paid  on  the  supposition  that 
he  was  discharging  an  obligation,  whereas  there  was  in  truth  no  ob- 
ligation to  be  discharged. 

Moreover  he  may  sue  in  the  Chancery  Division,  whether  anything 
has  been  done  under  the  supposed  agreement  or  not.,  to  have  the 
transaction  declared  void  and  to  be  relieved  from  any  possible  claims 
in  respect  thereof  (x). 

*Election  to  adopt  originally  void  agreement.  On  the  other  hand,  [498 
although  he  is  entitled  to  treat  the  supposed  agreement  as  void,  and 
is  not  as  a  rule  prejudiced  by  anything  he  may  have  done  in  igno- 
rance of  the  true  state  of  the  facts,  yet  after  that  state  of  facts  has 
come  to  his  knowledge  he  may  nevertheless  elect  to  treat  the  agree- 
ment as  subsisting:  or,  as  it  would  be  more  correct  to  say,  he  may 
carry  into  execution  by  the  light  of  correct  knowledge  the  former 
intention  which  was  frustrated  by  want  of  the  elements  necessary 
to  the  formation  of  any  valid  agreement.  It  is  not  that  he  confirms 
the  original  transaction  (except  in  a  case  where  there  is  also  mis- 
representation, see  p.*  495),  for  there  is  nothing  to  confirm,  but  he 
enters  into  a  new  one. 

It  might  be  thought  to  follow  that  in  cases  within  the  Statute 
of  Frauds  or  any  other  statute  requiring  certain  forms  to  be  observed, 
we  must  look  not  to  the  original  void  and  improperly  so-called  agree- 
ment, but  to  the  subsequent  election  or  confirmation  in  which  the  only 
real  agreement  is  to  be  found,  to  see  if  the  requirements  of  the 
statute  have  been  complied  with.  No  express  authority  has  been  met 
with  on  this  point.  But  analogy  is  in  favour  of  a  deliberate  adoption 
of  the  form  already  observed  being  held  sufficient  for  the  purpose 
of  the  new  contract  (y). 

A  note  on  Bracton's  treatment  of  the  subject  of  fundamental  error 
will  be  found  in  the  Appendix  (z). 

Part  III.     Mistake  in  expressing  true  Consent. 

Mistake  in  expressing  intention :  generally  occurs  in  writing.  This  occurs 
when  persons  desiring  to  express  an  intention  which  when  expressed 

(u)  E.g.,  Coxy.  Prentice  (1815)   3  Division    by    s.    34    of    the    Supreme 

M.  &.  S.  344,  16  E.  E.  288.  Court  of  Judicature  Act,  1873. 

(so)    All    causes    and    matters    for  (y)   Stewart  v.  Eddowes  (1874)   L. 

(inter  alia)  the  setting  aside  or  can-  E.  9  C.  P.   311,  43  L.  J.  C.  P.  204, 

cellation  of  deeds  or  other  written  in-  supra,  p.  *164. 

struments    (which  formerly  belonged  (e)   Note  H.     This  passage  is  not 

to     the      exclusive     jurisdiction      of  included    in    the    portions    edited    by 

equity)   are  assigned  to  the  Chancery  Prof.     Maitland    in     "  Bracton     and 

Azo." 


622  MISTAKE. 

499]  carries  with  it  legal  conse*quences  have  by  mistake  used  terms 
which  do  not  accurately  represent  their  real  intention.  As  a  rule 
it  can  occur  only  when  the  intention  is  expressed  in  writing.  It  is 
possible  to  imagine  similar  difficulties  arising  on  verbal  contracts, 
as  for  example  if  the  discourse  were  carried  on  in  a  language  imper- 
fectly understood  by  one  or  both  of  the  speakers.  But  we  are  not 
aware  that  anything  of  this  kind  has  been  the  subject  of  judicial  de- 
cision (a).  The  general  result  of  persons  talking  at  cross  purposes 
is  that  there  is  no  real  agreement  at  all.  This  class  of  cases  has 
already  been  dealt  with.  We  are  now  concerned  with  those  where 
there  does  exist  a  real  agreement  between  the  parties,  only  wrongly 
expressed.  Such  mistakes  as  we  are  now  about  to  consider  were,  even 
before  the  Judicature  Acts,  not  wholly  disregarded  by  courts  of  law; 
but  they  are  fully  and  adequately  dealt  with  only  by  the  jurisdiction 
which  was  formerly  peculiar  to  courts  of  equity.  We  shall  see  that 
this  jurisdiction  is  exercised  with  much  caution  and  within  carefully 
defined  limits. 

Classification   of  cases  according   to  the   remedies  applicable.      On   the 

whole  the  cases  of  mistake  in  expressing  intention  fall  into  three 
classes  :— 

1.  Those  which  are  sufficiently  remedied  by  the  general  rules  of 
construction. 

2.  Those  which  are  remedied  by  special  rules  of  construction  de- 
rived from  the  practice  of  courts  of  equity. 

3.  Those  which  require  peculiar  remedies  administered  by  the  Court 
in  its  equitable  jurisdiction. 

We  proceed  to  take  the  classes  of  cases  above  mentioned  in  order. 

1.  General  Rules. 

Clerical  errors,  &c.  We  have  already  seen  that  the  more  obvious 
forms  of  mistaken  expression,  mechanical  errors  as  we  may  call 
500]  *them,  can  be  dealt  with  in  the  ordinary  course  of  interpreta- 
tion (&).81    A  few  more  authorities  may  now  be  added. 

(«)  See  however  Phillips  v.  Bistolli  (6)   Chap.  VI.,  p.  *255,  above. 

(1824)    2  B.  &.  C.  511,  26  R.  R.  433, 
which  comes  hear  the  supposed,  ease. 

81  Illustrations  of  the  treatment  of  clerical  or  grammatical  errors,  as  cor- 
rected, may  be  found  in  Cowles  Electric  Co.  v.  Lowrey,  79  Fed.  Rep.  331 ; 
English's  Exr.  v.  McNair's  Admr.,  34  Ala.  40;  Wood  v.  Coman,  56  Ala.  283; 
Cox  v.  Britt,  22  Ark.  567;  Hancock  r.  Watson,  18  Cal.  137;  Sprague  v. 
Edwards,  48  Cal.  239 ;  Kellogg  v.  Mix,  37  Conn.  243 ;  Railroad  Co.  v.  Spear, 
32  Ga.  550;  Stow  v.  Steel,  45  111.  328;  Canal  &  Dock  Co.  r.  Russell,  68  111. 
426;   Aulick  v.  Wallace,   12  Bush,   531;   Marston  v.  Bigelow,   150  Mass.  45; 


KULES    OF    CONSTRUCTION.  623 

General  intent  prevails  over  particular  mistaken  or  repugnant  expressions. 
In  a  case  in  the  House  of  Lords  the  rule  was  laid  down  and  acted  upon 
that  "  both  courts  of  law  and  of  equity  may  correct  an  obvious  mis- 
take on  the  face  of  an  instrument  without  the  slightest  difficulty  "  (c). 
Here  a  draft  agreement  for  a  separation  deed  had  by  mistake  been 
copied  so  as  to  contain  a  stipulation  that  the  husband  should  be 
indemnified  against  his  own  debts:  but  it  was  held  that  the  con- 
text and  the  nature  of  the  transaction  clearly  showed  that  the  wife's 
debts  were  meant,  and  that  in  framing  the  deed  to  be  executed  under 
the  direction  of  the  Court  in  pursuance  of  the  agreement  the  mistake 
must  be  corrected  accordingly.  So  the  Court  may  presume  from  the 
mere  inspection  of  a  settlement  that  words  which,  though  they  make 
sense,  give  a  result  which  is  unreasonable  and  repugnant  to  the 
general  intention  and  to  the  usual  frame  of  such  instruments,  were 
inserted  by  mistake  (d). 

An  agreement  has  even  been  set  aside  chiefly,  if  not  entirely,  on 
the  ground  that  the  unreasonable  character  of  it  was  enough  to  satisfy 
the  Court  that  neither  party  could  have  understood  its  true  effect: 
such  at  least  appears  to  be  the  meaning  of  Lord  Eldon's  phrase,  "  a 
surprise  on  both  parties"  (e).  The  agreement  itself  purported  to 
bind  the  tenant  of  a  leasehold  renewable  at  arbitrary  (and  in  fact 
always  increasing)  fines  at  intervals  of  seven  years  to  grant  an  under- 
lease at  a  fixed  rent  with  a  perpetual  right  of  renewal.  The  lessor 
was  in  his  last  sickness,  and  there  was  evidence  that  he  was  not  fit- 
to  attend  to  business.  Charges  of  fraud  were  made,  as  usual  in  such 
cases,  but  *not  sustained:  the  decision  might,  however,  have  [501 
been  put  on  the  ground  of  undue  influence,  and  was  so  to  some 
extent  by  Lord  Kedesdale. 

General  words  restrained  by  context.  Again,  there  is  legal  as  well  as 
equitable  jurisdiction  to  restrain  the  effect  of  general  words  if  it 

(c)  Wilson  v.  Wilson, -5  H.  L.  C.  (e)  Willan  v.  Willan  (1809-10)  16 
40,  66,  per  Lord  St.  Leonards,  and  Ves.  72,  84;  affirmed  in  Dom.  Proc.  2 
see  his  note,  V.  &  P.  171.  Dow,  275,  278.     But  the  facts  were 

(d)  Re  De  la  Touche's  settlement  very  peculiar,  and  the  case  has  been 
(1870)  L.  R.  10  Eq.  599,  603,  40  L.  J.  seldom  cited  for  a  generation  or  more. 
Ch.   85;    where  however  the   mistake 

was  also  established  by  evidence. 

King  i.  Merritt,  67  Mich.  194;  Fowler  v.  Woodward,  26  Minn.  347;  Brookman 
v.  Kurzman,  94  N.  Y.  272 ;  Hoffman  r.  Riehl,  27  Mo.  564;  Nettleton  v.  Billings, 
13  N.  H.  446;  Emerson  v.  White,  29  N.  H.  482;  Tenney  v.  Lumber  Co.,  43 
N.  H.  343 ;  Sessons  v.  Sessons,  2  Dev.  &  B.  Eq.  453 ;  Davis  v.  Boggs,  20  Ohio 
St.  550;  Dodd  v.  Bartholomew,  44  Ohio  St.  171;  Walters  r.  Bredin,  70  Pa. 
235;  Jenkins  v.  Jenkins,  148  Pa.  216;  Eatherly  i\  Eatherly,  1  Coldw.  461; 
Carnagy  v.  Woodcock,  2  Munf.  234 ;  Liston  r.  Jenkins,  2  W.  Va.  62. 


624  MISTAKE. 

sufficiently  appears  by  the  context  that  they  were  not  intended  to 
convey  their  apparent  unqualified  meaning.  It  was  held  in  Browning 
v.  Wright  (f)  that  a  general  covenant  for  title  might  be  restrained 
by  special  covenants  among  which  it  occurred.  And  the  same  prin- 
ciples was  again  deliberately  asserted  shortly  afterwards  (in  a  case 
to  the  particular  facts  of  which  it  was,  however,  held  not  to  apply)  : — 

"  However  general  the  words  of  a  covenant  may  be  if  standing  alone,  yet 
if  from  other  covenants  in  the  same  deed  it  is  plainly  and  irresistibly  to  be 
inferred  that  the  party  could  not  have  intended  to  use  the  words  in  the  gen- 
eral sense  which  they  import,  the  Court  will  limit  the  operation  of  the  general 
words"  (<?).82 

Similarly  the  effect  of  general  words  of  conveyance  is  confined 
to  property  of  the  same  kind  with  that  which  has  been  specifically 
described  and  conveyed  (h).  When  there  is  a  specific  description 
of  a  particular  kind  of  property,  followed  by  words  which  prima  facie 
would  be  sufficient  to  include  other  property  of  the  same  kind,  it  has 
been  held  that  those  words  do  not  include  the  property  not  speci- 
fically described,  on  the  principle  expressio  unius  est  exclusio  al- 
terius  (i). 

(f)  (1799)  2  B.  &  P.  13,  26,  5  R.  one.  A  fine  had  been  levied  of  (inter 
R.  521;  but  it  was  also  thought  the  alia)  twelve  messuages  and  twenty 
better  construction  to  take  the  clause  acres  of  land  in  Chelsea.  The  con- 
in  question  as  being  actually  part  of  usor  had  less  than  twenty  acres  of 
a,  special  covenant,  and  so  no  general  land  in  Chelsea,  but  nineteen  mes- 
covenant  at  all.  suages.      It    was     decided    that     al- 

(g)  Hesse  v.  Stevenson  (1803)  3  though  all  the  messuages  would  have 
B.  &  P.  565,  574.  passed  under  the  general  description 

(h)     Rooke     v.    Lord    Kensington  of   land   if   no  less   number   of   mes- 

(1856)   2  K.  &  J.  753,  771,  25  L.  J.  suages   had  been  mentioned,  yet  the 

Ch.  795.     The  same  principle  applies  mention    of    twelve    messuages    pre- 

to  general  words  in  the  statement  of  vented     any    greater     number     from 

•».  company's  objects  in  its  memoran-  passing     under     the     description     of 

dum  of  association:    Ashoury,  &c.  Co.  land;    and   that   parol   evidence   was 

v.  Riche  (1875)  L.  R.  7  H.  L.  653,  44  admissible   to   show   first   that   there 

L.  J.  Ex.  185.  were  in  fact  nineteen  messauges,  this 

(i)  Benny.  Wilford  (1826)   8  Dowl.  being  no  more  than  was  necessary  to 

&  Ry.  549.     The  case  was  a  curious  explain  the  nature  and  character  of 

82  Sumner  r.  Williams,  8  Mass.  162,  214,  217;  Linton  v.  Allen,  154  Mass. 
432;  Cole  r.  Hawes,  2  Johns.  Cas.  203;  Whallen  v.  Kauffman,  19  Johns.  97; 
Bender  r.  Fromberger,  4  Dall.  436;  Bricker  r.  Brieker,  11  Ohio  St.  240; 
Miller  c.  Heller,  7  S.  &  R.  32,  40.    Cp.  Estabrook  v.  Smith,  6  Gray,  572. 

The  extent  of  the  condition  of  a  bond  may  be  restrained  by  the  recitals. 
Bell  v.  Bruen,  1  How.  169,  183;  Union  Pacific'Co.  r.  Artist,  60  Fed.  Rep.  365; 
Canton  Inst.  r.  Murphv,  156  Mass.  305;  Kellogg  r.  Scott,  58  N.  J.  Eq.  344; 
Nat.  Mech.  Bkg.  Assn.  r.  Conkling,  90  N.  Y.  116. 

"  If  the  recitals  are  clear  and  the  operative  part  is  ambiguous,  the  recitals 
govern  the  construction.  If  the  recitals  are  ambiguous  and  the  operative 
part  is  clear,  the  operative  part  must  prevail.  If  both  the  recitals  and  the 
operative  part  are  clear,  but  they  are  inconsistent  with  each  other,  the  oper- 
ative part  is  to  be  preferred."  Ex  parte  Dawes,  17  Q.  B.  D.  275,  286;  quoted 
with  approval  in  Williams  v.  Barkley,  165  N.  Y.  48,  57.     See  post,  n.  85. 


KULKS    OF    CONSTRUCTION.  625 

*2.  Peculiar  Rules  of  Construction  in  Equity.  [502 

Such  rules  have  been  introduced  by  courts  of  equity  in  dealing 
with: 

A.  General  words. 

B.  Stipulations  as  to  time. 

C.  Penalties. 


•  A.  Restriction  of  General  Words. 

Restricted  construction  of  general  words  carried  farther  than  by  common 
law:  especially  in  releases.  We  have  seen  that  courts  both  of  law  and  of 
equity  have  assumed  a  power  to  put  a  restricted  construction  on  gen- 
eral words  when  it  appears  on  the  face  of  the  instrument  that  it  can- 
not have  been  the  real  intention  of  the  parties  that  they  should  be 
taken  in  their  apparent  general  sense. 

Courts  of  equity  went  farther,  and  did  the  like  if  the  same  con- 
viction could  be  arrived  at  by  evidence  external  to  the  instrument. 
Thus  general  words  of  conveyance  (fc)83  and  an  unqualified  covenant 
for  title  (I),84  though  not  accompanied  as  in  Browning  v.  Wright  (m) 
by  other  qualified  covenants,  have  been  restrained  on  proof  that  they 
were  not  meant  to  extend  to  the  whole  of  their  natural  import. 

This  jurisdiction,  in  modern  times  a  well  established  one,  is  exer- 
cised, chiefly  in  dealing  with  releases.  "  The  general  words  in  a 
release  are  limited  always  to  that  thing  or  those  things  which  were 
specially  in  the  contemplation  of  the  parties  at  the  time  when  the 
release  was  given"  (n).85    This  *includes  the  proposition  that  [503 

the    property;     next     (as     a     conse-  strument,  and  that  without  any  mis- 

quence  of  the  construction  thereupon  take  or  fraud  being  made  out,  which 

adopted  by  the  Court)    which  twelve  is  quite  contrary  to  the  modern  rule, 
out   of  the  nineteen  messuages  were  (m)    (1799)   2  B.  &  P.  13,  5  R.  R. 

intended.     And  see  further  the  notes  521,  last  page. 

to  Roe  v.    Tranmarr    (1758)    2    Sm.  (n)    Per  Lord   Westbury,  L.   &  8. 

L.  C.  W.  Ry.  Go.  v.  Blackmore   (1870)   L. 

(k)     Thomas    V.    Davis     (1757)     1  R.  4  H.  L.  at  p.  623,  39  L.  J.  Ch.  713; 

Dick.  301.  cp.   Lindo   v.   Lindo    (1839)    1    Beav. 

(I)    Coldcot  v.  Hill,   1   Ch.   Ca.  15,  496,  506,  49  R.  R.  419,  425;  Farewell 

sed  qu.   for  the  case  looks  very  like  v.    Coker    (1726)    cited   2   Mer.   353; 

admitting  contemporaneous  conversa-  Dav.  Conv.  5.  pt.  2.  622-4. 
tion  to  vary  the  effect  of  a  solemn  in- 

83  See  Bowlin  r.  Silver,  19  Ky.  L.  Rep.  788. 

84  Taylor  v.  Gilman,  25  Vt.  411. 

83  Fire  Ins.  Assoc,  r.  Wickham,  141  U.  S.  564,  581 ;  Lumley  c.  Wabash  Rail- 
way Co.,  76  Fed.  Rep.  66;  French  v.  Arnett,  15  Ind.  App.  674;  Blair  V. 
Chicago  &  Alton  Co.,  89  Mo.  383;  Mclntyre  v.  Williamson,  1  Edw.  Ch.  34; 
Jeffreys  r.  Southern  Ry.  Co.,  127  N.  C.  377.  Cp.  Jackson  v.  Ely,  57  Ohio 
St.  450. 

40 


626  MISTAKE. 

in  equity  "  a  release  shall  not  be  construed  as  applying  to  something 
of  which  the  party  executing  it  was  ignorant"  (o).86  There  is  at 
least  much  reason  to  think  that  it  matters  not  whether  such  igno- 
rance was  caused  by  a  mistake  of  fact  or  of  law  (p). 

In  particular  a  release  executed  on  the  footing  of  accounts  rendered 
by  the  other  party,  and  assuming  that  they  are  correctly  rendered, 
may  be  set  aside  if  those  accounts  are  discovered  to  contain  serious 
errors,  and  this,  in  a  grave  case,  even  after  many  years  (q).  It  would 
be  otherwise  however  if  the  party  had  examined  the  accounts  him- 
self and  acted  on  his  own  judgment  of  their  correctness.  An  im- 
portant application  of  this  doctrine  is  in  the  settlement  of  partnership 
affairs  between  the  representatives  of  a  deceased  partner  (especially 
when  they  are  continuing  partners)  and  the  persons  beneficially  in- 
terested in  his  estate  (r). 

A  releasor,  however,  cannot  obtain  relief  if  he  has  in  the  meanwhile 
acted  on  the  arrangement  as  it  stands  in  such  a  way  that  the  parties 
cannot  be  restored  to  their  former  position  (s). 

B.  Stipulations  as  to  Time. 

Rule  as  to  such  stipulations.  It  is  a  familiar  principle  that  in  all  cases 
where  it  is  sought  to  enforce  contracts  consisting  of  reciprocal  pro- 
504]  *mises,  and  "where  the  plaintiff  himself  is  to  do  an  act  to  en- 
title himself  to  the  action,  he  must  either  show  the  act  done,  or  if 
it  be  not  done,  at  least  that  he  has  performed  everything  that  was 
in  his  power  to  do"  (t). 

Accordingly,  when  by  the  terms  of  a  contract  one  party  is  to  <-1r> 
something  at  or  before  a  specified  time,  and  when  he  fails  to  do  such 
thing  within  that  time,  he  could  not  afterwards  claim  the  perform- 
ance of  the  contract  if  the  stipulation  as  to  time  were  construed  ac- 
cording to  its  literal  terms.     The  rule  of  the  common  law  was  that 

(o)  Per  Wilde  B.  Lyall  v.  Edwards  Ch.  Div.  1,  where  no  accounts  had 
(1861)  6  H.  &  N.  337,  348,  30  L.  J.  been  rendered  or  examined  at  all; 
Ex.  193,  197.  This  was  a  ease  of  twenty  years  had  elapsed  and  the  re- 
equitable    jurisdiction   under    the   C.  leasee  was  dead. 

L.  P.  Act,  1854;  but  before  that  Act  (r)  Miliary.  Craig  (1843)  6  Beav. 

courts  of  law  would  not  allow  a  re-  433,  Lindley  on  Partnership,  490. 

lease  to  be  set  up  if  clearly  satisfied  (s)    Skitbeck  v.  Hilton    (1866)    L. 

that  a   court  of  equity  would  set  it  R.   2  Eq.   587;   but  qu.   whether  the 

aside:   Phillips  v.  Clagett    (1843)    11  principle  was  rightly  applied  in  the 

M.  &  W.  84,  12  L.  J.  Ex.  275.  particular  case. 

(p)    See  the  cases  considered  at  p.  (t)    Notes    to    Peeters   v.    Opie,   2 

*454,  above.  Wins.   Saund.  743;   and  see  Ch.  VI., 

(g)   Gandy  v.  Maeaulay  (1885)   31  p.  *261,  above. 

86  But  see  contra,  Kirchner  i.  New  Home  Co.,  135  N.  Y.  182. 


STIPULATIONS    AS    TO    TIME.  627 

"  time  is  always  of  the  essence  of  the  contract."  When  any  time 
is  fixed  for  the  completion  of  it,  the  contract  must  be  completed  on 
the  day  specified,  or  an  action  will  lie  for  the  breach  of  it  (u). 

The  rule  of  equity,  which  now  is  the  general  rule  of  English  juris- 
prudence, is  to  look  at  the  whole  scope  of  the  transaction  to  see 
whether  the  parties  really  meant  the  time  named  to  be  of  the  essence 
of  the  contract.  And  if  it  appears  that,  though  they  named  a  specific 
day  for  the  act  to  be  done,  that  which  they  really  contemplated  was 
cnly  that  it  should  be  done  within  a  reasonable  time;  then  this  view 
will  be  acted  upon,  and  a  party  who  according  to  the  letter  of  the 
contract  is  in  default  and  incompetent  to  enforce  it  will  yet  be  allowed 
to  enforce  it  in  accordance  with  what  the  Court  considers  its  true 
meaning.87 

"  Courts  of  equity  have  enforced  contracts  specifically,  where  no'  action  for 
damages  could  be  maintained;  for  at  law  the  party  plaintiff  must  have 
strictly  performed  his  part,  and  the  inconvenience  of  insisting  upon  that  in 
all  cases  was  sufficient  to  require  the  interference  of  courts  of  equity.  They 
dispense  with  that  which  would  make  compliance  with  what  the  law  requires 
oppressive,  and  in  various  cases  of  such  contracts  they  are  in  the  constant 
habit  of  relieving  the  man  who  has  acted  fairly,  though  negligently.  Thus 
in  the  case  of  an  estate  sold  by  auction,  there  is  a  condition  to  forfeit  the  de- 
posit if  the  purchase  be  not  completed  within  a  certain  time;  yet  the  Court  is 
in  the  constant  habit  of  relieving  *against  the  lapse  of  time :  and  so  in  the  [505 
case  of  mortgages,  and  in  many  instances  relief  is  given  against  mere  lapse 
of  time  where  lapse  of  time  is  not  essential  to  the  substance  of  the  contract." 

So  said  Lord  Eedesdale  in  a  judgment  which  has  taken  a  classical 
rank  on  this  subject  (x).  Contracts  between  vendors  and  purchasers 
of  land  are  however  the  chief  if  not  the  only  classes  of  cases  to  which 
the  rule  has  been  habitually  applied  (y). 

(«)    Parkin  v.   Thorold   (1852)    16  M.  &  G.  at  p.  289,  22  L.  J.  Ch.  398, 

Beav.  59,  65.  and   again  adopted  by  the   L.JJ.   in 

(x)    Lennon  v.   Napper    (1802)    2  TilVe/y  v.  Thomas  (1867)  L.  R.  3  Ch.  61. 
Sch.  &  L.  684,  cited  by  Knight  Bruce  (y)   See  per  Cotton  L.J.    4  C.  P.  D. 

L.J.,  Roberts  v.  Berry    (1853)    3   D.  at  p.  249. 

87  Time  is  held  to  be  of  the  essence  of  the  contract  in  equity,  only  in  case  of 
direct  stipulation  or  of  necessary  implication.  Taylor  v.  Longworth,  14  Pet. 
172;  Kentucky  Distillers'  Co.  v.  Warwick  Co.,  109  Fed.  Rep.  280,  282 
(C.  C.  A.)  ;  Steele  r.  Branch,  40  Cal.  3;  Keller  v.  Fisher,  7  Ind.  718;  Snowman 
v.  Harford,  55  Me.  197;  Barnard  v.  Lee,  97  Mass.  92;  Bomier  v.  Caldwell,  8 
Mich.  463;  Gill  v.  Bradley,  21  Minn.  15;  Austin  v.  Wacks,  30  Minn.  335; 
Ewins  v.  Gordon,  49  N.  H.  444,  459;  Brock  v.  Hidy,  13  Ohio  St.  306;  Huffman 
v.  Hummer,  17  N.  J.  Eq.  263;  King  v.  Ruckman,  21  N.  J.  Eq.  599;  Edgerton 
V.  Peckham,  11  Paige,  352;  Hubbell  v.  Von  Schoening,  49  N.  Y.  326;  Tiernan 
v.  Roland,  15  Pa.  St.  429;  Jackson  v.  Ligon,  3  Leigh,  161,  186;  Jarvis  v. 
Oowger's  Heirs,  41  W.  Va.  268. 

And  equity  sometimes  disregards  even  an  express  stipulation  that  time 
shall  be  of  the  essence.  Cheney  v.  Libby,  134  U.  S.  68;  Camp  Mfg.  Co.  v. 
Parker,  91  Fed.  Rep.  705   (C.  C.  A.). 


628  MISTAKE. 

As  to  making  time  of  the  essence  of  the  contract.  It  was  once  even 
supposed  that  parties  could  not  make  time  of  the  essence  of  the  con- 
tract by  express  agreement;  but  it  is  now  perfectly  settled  that  they 
can,  the  question  being  always  what  was  their  true  intention  (z), 
or  rather  ''  what  must  be  judicially  assumed  to  have  been  their  inten- 
tion" (a).  "If  the  parties  choose  even  arbitrarily,  provided  both 
of  them  intend  to  do  so,  to  stipulate  for  a  particular  thing  to  be  done 
at  a  particular  time,"  such  a  stipulation  is  effectual.  There  is  no 
equitable  jurisdiction  to  make  a  new  contract  which  the  parties 
have  not  made  (&).88  The  fact  that  time  is  not  specified,  or  not 
so  specified  as  to  be  of  the  essence  of  tne  contract,  does  not  affect 
the  general  right  of  either  party  to  require  completion  on  the  other 
part  within  a  reasonable  time,  and  give  notice  of  his  intention  to 
rescind  the  contract  if  the  default  is  continued  (c),89  as  on  the  other 
506]  hand  conduct  of  the  party  ^entitled  to  insist  on  time  as  of  the 
essence  of  the  contract,  such  as  continuing  the  negotiations  without 
an  express  reservation  after  the  time  is  past,  may  operate  as  an  implied 
waiver  of  his  right  (d).90     In  mercantile  contracts  the  presumption, 

(2)   Set  on  v.  Slade    (1802)    7  Ves.  (c)   This  is  the  true  and  only  ad- 

265,   275,   6   R.   R.    124,   and  notes  to  missible    meaning    of    the    statement 

that  case  in  2  Wh.  &  T.  L.  C. :  Parkin  that  time  can  be  made  of  the  essence, 

v.   Thorold    ( 1852 )    16  Beav.  59.  of   a   contract   by   subsequent   express 

(a)  Grove  J.  in  Patrick  v,  Hilner  notice.  Per  Fry  J.  Green  v.  Serin 
(1877)  2  C.  P.  D.  342,  348,  46  L.  J.  (1879)  13  Ch.  D.  589,  599;  per 
C.  P.  537.  Turner     L.J.     Williams    v.     Glen  ton 

(b)  Per    Alderson    B.    Hipivell    v.  ( 1866)  L.  R.  1  Ch.  200,  210. 
Knight  (1835)   1  Y.  &  C.  Ex.  Eq.  415,  (d)   Webb  v.  Hughes   (1870)   L.  R. 
41   R.  R.   304.     And  see  the   observa-  10  Eq.  281,  39  L.  J.  Ch.  606,  and  see 
tions  of  Kindersley  V.-C.  to  the  same  note  (h) . 

effect   in    Oakden  v.   Pike    (1865)    34 
L.  J.  Ch.  620. 

88  "  There  is  no  doubt  that  time  may  be  made  of  the  essence  of  a  contract 
for  the  sale  of  property.  It  may  be  made  so  by  the  express  stipulation  of  the 
parties,  or  it  may  arise  by  implication  from  the  nature  of  the  property,  or 
the  avowed  objects  of  the  seller  or  the  purchaser."  Taylor  v.  Longworth,  14 
Pet.  172,  174; 'Cheney  r.  Libby,  134  U.  S.  68;  Waterman  r.  Banks,  144  U.  S. 
394;  Myers  v.  League,  02  Fed.  Rep.  654;  Grey  r.  Tubbs,  43  Cal.  359;  Quinn 
r.  Roath,  37  Conn.  16;  Steele  v.  Biggs,  22  111.  643;  Ewing  r.  Crouse,  6  Ind. 
312;  Prince  r.  Griffin,  27  la.  514;  Scarlett  ,.  Stein,  40  Md.  512,  525;  Gold- 
smith v.  Guild,  10  Allen,  239;  Grigg  r.  Landis,  21  N.  J.  Eq.  494;  Wells  r. 
Smith,  7  Paige,  22 ;  Benedict  r.  Lynch,  1  Johns.  Ch.  370 ;  Scott  v.  Fields,  7 
Ohio,  376;  Holbrook  v.  Investment  Co.,  30  Oreg.  259;  Hicks  c.  Aylsworth,  13 
R.    I.    562,    566. 

89  Chabot  r.  Winter  Park  Co.,  34  Fla.  258 ;  Austin  r.  Wacks,  30  Minn.  335, 
340;  Bullock  r.  Adams'  Exr.,  20  N.  J.  Eq.  367;  Wiswall  r.  McGowan,  1 
Hoffm.  Ch.  125,  139;  Schmidt  i\  Reed,  132  X.  Y.  108;  Kirby  v.  Harrison,  2 
Ohio  St.  326;  Thompson  t\  Dulles,  5  Rich.  Eq.  370. 

90  So  conduct  inducing  a  belief  that  strict  performance  will  not  be  required. 
Cheney  v.  Libby.  134  U.  S.  68:  Camp  Mfg.  Co.  r.  Parker,  91  Fed.  Rep.  705 
(C.  C.  A.). 


RELIEF    AGAINST    PENALTIES.  629 

if  any,  is  that  time  where  specified  is  an  essential  condition  (e).91- 
An  express  promise  to  do  a  thing  "  as  soon  as  possible "  binds  the 
promisor  to  do  it  within  a  reasonable  time,  with  an  undertaking  to 
do  it  in  the  shortest  practicable  time  (/).  The  principles  of  our 
jurisprudence  on  this  head  are  well  embodied  by  the  language  of  the 
Indian  Contract  Act,  s.  55 : 

When  a  party  to  a,  contract  promises  to  do  a  certain  thing  at  or  before  a 
specified  time,  or  certain  things  at  or  before  specified  times,  and  fails  to 
do  any  such  thing  at  or  before  the  specified  time,  the  contract,  or  so  much 
of  it  as  has  not  been  performed,  becomes  voidable,  at  the  option  of  the 
promisee,  if  the  intention  of  the  parties  was  that  time  should  be  of  the 
essence   of   the   contract. 

[The  Court  may  infer  from  the  nature  of  a  contract,  even  though  no  time 
be  specified  for  its  completion,  that  time  was  intended  to  be  of  its  essence 
to  this  extent,  that  the  contracting  party  is  bound  to  use  the  utmost  diligence 
to  perform  his  part  of  the  contract]  (g). 

If  it  was  not  the  intention  of  the  parties  that  time  should  be  of  the 
essence  of  the  contract,  the  contract  does  not  become  voidable  by  the  failure 
to  do  such  thing  at  or  before  the  specified  time :  but  the  promisee  is  entitled 
to  compensation  from  the  promisor  for  any  loss  occasioned  to  him  by  such 
failure. 

If  in  case  of  a  contract,  voidable  on  account  of  the  promisor's  failure  to 
perform  his  promise  at  the  time  agreed,  the  promisee  accepts  performance 
of  such  promise  at  any  time  other  than  that  agreed,  the  promisee  cannot 
claim  compensation  for  any  loss  occasioned  .by  the  non-performance  of  the 
promise  at  the  time  agreed,  unless,  at  the  time  of  such  acceptance,  he  gives 
notice  to  the  promisor  of  his  intention  to  do  so  (7i).92 

*C.  Relief  against  Penalties.  [507 

Especially  as  to  mortgages.  In  like  manner  penal  provisions  inserted 
in  instruments  to  secure  the  payment  of  money  or  the  performance 
of  contracts  will  not  be  literally  enforced,  if  the  substantial  perform- 

(e)  Per  Cotton  L.J.  Renter  v.  Sala  Beav.    533    (contract   for   a,  lease   of 

(1879)   4  C.  P.  Div.  at  p.  249,  48  L.  working  mines). 

J.  C.  P.  492.  (h)    "It  constantly  happens   that 

if)    Hydraulic  Engineering   Co.  v.  an   objection   is   waived   by  the   con- 

McEaflie    (1878)    4   Q.    B.   Div.    670,  duct  of  the  parties,"  per  James  LJ. 

673.  Vpperton  v.  Nicholson   (1871)    6  Ch. 

(g)  Maclryde  v.  Weekes  (1856)  22  at  p.  443,  '0  L.  J.  Ch.  401.     And  see 

Dart,  V.  &  P.  424. 

M  Bowes  v.  Shand,  2  App.  Cas.  455;  Norrington  r.  Wright,  115  U.  S.  188; 
Cleveland  Rolling  Mills  v.  Rhodes,  121  U.  S.  255;  Camden  Iron  Works  v.  Fox, 
34  Fed.  Rep.  200;  Cromwell  v.  Wilkinson,  18  Ind.  365;  New  Bedford  Copper 
Co.  v.  Southard,  95  Me.  209;  Crane  v.  Wilson,  105  Mich.  554;  Redlands  Assoc. 
v.  Gorman,  76  Mo.  App.  184;  Blossom  v.  Shotter,  59  Hun,  481,  affd.  without 
opinion,  128  N.  Y.  679. 

Cp.  McFadden  r.  Henderson,  128  Ala.  221;  Browne  v.  Patterson,  165 
N.  Y.  460. 

92Brassell  r.  McLemore,  50  Ala.  476;  Lounsbury  v.  Beebe,  46  Conn.  291; 
Ewins  v.  Gordon,  49  'J.  H.  444,  460;  Peck  v.  Brighton,  69  111.  200;  Thayer  v. 
Star  Mining  Co.,  105  111.  540;  Foley  r.  Crow,  37  Md.  51;  Dressel  r.  Jordan, 
104  Mass.  407;  Grigg  v.  Landis,  21  N.  J.  Eq.  494;  Ewins  v.  Gordon,  49  N.  H. 
444;  Dunn  v.  Steubing,  120  N.  Y.  232;  Benson  v.  Cutler,  53  Wis.  107. 


630  MISTAKE. 

ance  of  that  which  was  really  contemplated  can  be  otherwise  se- 
cured (i).  The  most  important  application  of  this  principle  is  to 
mortgages.  A  court  of  equity  treats  the  contract  as  being  in  substance 
a  security  for  the  repayment  of  money  advanced,  and  that  portion 
of  it  which  gives  the  estate  to  the  mortgagee  as  mere  form,  "  and 
accordingly,  in  direct  violation  of  the  [form  of  the]  contract,"  it 
compels  the  mortgagee  to  reconvey  on  being  repaid  his  principal,  in- 
terest and  costs  (k).  Here  again  the  original  ground  on  which  equity 
interfered  was  to  carry  out  the  true  intention  of  the  parties.  But 
it  cannot  be  said  here,  as  in  the  case  of  other  stipulations  as  to  time, 
that  everything  depends  on  the  intention.  For  the  general  rule  "  once 
a  mortgage,  and  always  a  mortgage  "  cannot  be  superseded  by  an  ex- 
piess  agreement  so  as  to  make  a  mortgage  absolutely  irredeemable  (7).93 
However,  limited  restrictions  on  the  mutual  remedies  of  the  mort- 
gagor and  mortgagee,  as  by  making  the  mortgage  for  a  term  certain, 

(i)    In  addition  to  the  authorities  (I)  Howard  v.  Harris,  1  Vern.  ISO; 

cited  below,  see  the  later  case  of  Ex  Gowdry  v.   Day    (1859)    1   Giff.   316, 

parte  Hulse   (1873)  L.  R.  8  Ch.  1022,  see  reporter's  note  at  p.   323;    1   Ch. 

43  L.  J.  Ch.  261.  Ca.  141,  29  L.  J.  Ch.  39.     The  C.  A. 

(k)    Per   Romilly  M.R.   Parkin  v.  was  divided,  in  a  peculiar  case,  as  to 

Thorold   (1852)    16  Beav.  59,  68;  and  the     application    of    this    principle: 

see    Lord    Redesdale's    judgment    in  Marquess  of  Northampton  v.  Pollock 

Lennonv.  Napper,  p.  *505,  supra.     As  (1890)   45  Ch.  Div.  190,  59  L.  J.  Ch. 

to   the   old   theory   of   an   "equity   of  745;  the  opinion  of  the  majority  was 

redemption"  being  not  an  estate  but  upheld  in  H.  L.   [1892]   A.   C.   1,  61 

a  merely  personal  right,  and  its  con-  L.  J.  Ch.  49.     See  now  Noakes  &  Co. 

sequences,   see   Lord   Blackburn's   re-  v.  Rice  [1902]  A.  C.  24. 
marks,  6  App.  Ca.  at  p.  714. 

93Peugh  v.  Davis,  96  U.  S.  332;  Fields  v.  Helms,  82  Ala.  449;  Pierce  r. 
Robinson,  13  Cal.  116,  125;  Walker  v.  Farmers'  Bank,  6  Del.  Ch.  81;  Bearss 
r.  Ford,  108  111.  16;  Seymour  v.  Mackay,  126  111.  341;  Reed  r.  Reed,  75  Me. 
264,  272;  Batty  p.  Snook,  5  Mich.  231;  Marshall  v.  Thompson,  39  Minn.  137; 
Wilson  v.  Drumrite,  21  Mo.  325;  Weathersly  v.  Weathersly,  40  Miss.  462; 
Vanderhaize  r.  Hugues,  13  X.  J.  Eq.  244;  Youle  r.  Richards,  1  Saxt.  Ch.  534; 
Clark  r.  Henry,  2  Cow.  324;  Macauley  v.  Smith,  132  N.  Y.  524;  Mooney  v. 
Byrne,  103  N.  Y.  86 ;  Robinson  r.  Willoughby,  65  N.  C.  520,  .523,  524 ;  Stover  v. 
Bounds,  1  Ohio  St.  107.  Cp.  De  Martin  r.  Phelan,  47  Fed.  Rep.  761;  115 
Cal.  538. 

The  rule,  however,  does  not  prevent  a.  sale  of  his  equity  of  redemption  by  a 
mortgagor  to  the  mortgagee ;  though  in  examining  the  transaction  "  prin- 
ciples almost  as  stern  are  applied  as  those  which  govern  where  a  sale  .by  a 
cestui  que  trust  to  his  trustee  is  drawn  in  question."  Villa  r.  Rodriguez,  12 
Wall.  323,  339;  Russell  r.  Southard,  12  How.  139,  154;  Peugh  v.  Davis,  96 
U.  S.  332,  337 ;  Savings  Soc.  r.  Davidson,  97  Fed.  Rep.  696 ;  Oakley  v.  Shelley, 
129  Ala.  467;  West  v.  Reed,  55  111.  242;  Hicks  v.  Hicks,  5  G.  &  J.  75 ;  Trull 
•c.  Skinner,  17  Pick.  213;  Fallis  v.  Insurance  Co.,  7  Allen,  46;  De  Lancey  v. 
Finnegan,  86  Minn.  254;  Odell  v.  Montross,  68  N.  Y.  498,  504;  Randall  i>. 
Sanders,  S7  N.  Y.  578;  McLeod  v.  Bullard,  86  N.  C.  210;  Shnw  r.  Walbridge, 
33  Ohio  St.'  1;  Tripler  p.  Campbell,  22  R.  I.  262;  Hall  v.  Hall,  41  S.  C.  163; 
Swarm  v.  Boggs,  12  Wash.  246. 


MORTGAGES.  631 

are  allowed  and  are  not  uncommon  in  practice.  Also  there  may  be 
such  a  thing  as  an  absolute  sale  with  an  option  of  repurchase  on 
certain  conditions ;  and  if  sueh  is  really  the  nature  of  the  transaction, 
equity  will  give  no  relief  against  the  necessity  of  observing  those 
conditions  (m).m 

*"  That  this  Court  will  treat  a  transaction  as  a  mortgage,  al-  [508 
though  it  was  made  so  as  to  bear  the  appearance  of  an  absolute  sale,  if 
it  appears  that  the  parties  intended  it  to  be  a  mortgage,  is  no  doubt 
true  "  (»).95  "  But  it  is  equally  clear,  that  if  the  parties  intended  an 
absolute  sale,  a  contemporaneous  agreement  for  a  repurchase,  not  acted 
upon,  will  not  of  itself  entitle  the  vendor  to  redeem"  (o). 

(m)  Davis  v.  Thomas  (1830)  1  Odell,  1  Allen,  85;  Reeve  v.  Dennett, 
Russ.  &  M.  506,  32  R.  R.  257.  137  Mass.  315;  Fuller  v.  Parrish,  3 
(n)  See  Douglas  v.  Culverwell  Mich.  211;  Pinch  ;>.  Willard,  108 
(1862)  31  L.  J.  Ch.  543;  and  r>  also  Mich.  204;  Barry  v.  Hamburg-Bre- 
at  common  law,  Gardner  v.  Cazenove  men  Ins.  Co.  110  N.  Y.  1.] 
(1856)  1  H.  &  N.  423,  435,  438,  26  (o)  Per  Lord  Cottenham  C.  Wil- 
ls. J.  Ex.  17,  19,  20.  [See  McAnnulty  Hams  v.  Owen  (1840)  5  M.  &  Cr.  303, 
v.  Seick,  59  la.  586;  Blanchard  r.  306,  12  L.  J.  Ch.  207,  48  R.  R.  3212. 
Fearing,    4    Allen,    118;    Howard    v. 

94  "  To  deny  the  power  of  two  individuals,  capable  of  acting  for  themselves, 
to  make  a,  contract  for  the  purchase  and  sale  of  lands  defeasible  by  the  pay- 
ment of  money  at  a  future  day,  or,  in  other  words,  to  make  a  sale  with  a 
reservation  to  the  vendor  of  a  right  to  repurchase  the  same  land  at  a  fixed 
price  and  at  a  specified  time,  would  be  to  transfer  to  the  court  of  chancery, 
in  a  considerable  degree,  the  guardianship  of  adults  as  well  as  of  infants," 
per  Marshall,  C.  J.,  in  Conway's  Exrs.  v.  Alexander,  7  Cr.  218,  237 ;  Wallace 
v,  Johnstone,  129  U.  S.  58 ;  Beck  v.  Blue,  42  Ala.  32 ;  Henley  v.  Hotaling,  41 
Cal.  22;  Vance  v.  Anderson,  113  Cal.  532;  Spence  v.  Steadman,  49  6a.  133; 
Hanford  v.  Blessing,  80  111.  188;  Hughes  v.  Sheaff,  19  la.  335;  Robertson  v. 
Moline,  etc.,  Co.,  106  la.  414;  Bigler  v.  Jack,  114  la.  607;  Flagg  r.  Mann,  14 
Pick.  467;  Cornell  r.  Hall,  22  Mich.  377;  Daniels  v.  Johnson,  24  Mich.  430; 
Buse  v.  Page,  32  Minn.  Ill;  Turner  r.  Kerr,  44  Mo.  429;  Slutz  r.  Desenberg, 

28  Ohio  St.  371;  Tripler  r.  Campbell,  22  R.  I.  262;  Ruffier  v.  Womack,  30 
Tex.  332;  Rich  v.  Doane,  35  Vt.  125;  Swarm  v.  Boggs,  12  Wash.  246;  Smith 
v.  Crosby,  47  Wis.  160;  Kunert  v.  Strong,  103  Wis.  74. 

85  See  Russell  v.  Southard,  12  How.  139;  Peugh  r.  Davis,  96  U.  S.  332; 
Pierce  v.  Robinson,  13  Cal.  116;  French  v.  Burns,  35  Conn.  359;  Ruckman 
v.  Alwood,  71  111.  155;  Story  v.  Springer,  155  111.  25;  Moore  r.  Wade,  8  Kan. 
380;  Reeder  r.  Gorsuch,  55  Kan.  553;  Reed  r.  Reed,  75  Me.  264;  Booth  i. 
Robinson,  55  Md.  419;  Pickett  v.  Wadlow,  94  Md.  564;  Campbell  r.  Dearborn, 
109  Mass.  130;  Klein  v.  Mc-Namara,  54  Miss.  90;  O'Neill  r.  Capelle,  62  Mo. 
202;  Riley  r.  Starr,  48  Neb.  243;  Saunders  r.  Stewart,  7  Nev.  200;  Swept  v. 
Parker,  22  N.  J.  Eq.  453 ;  Pace  v.  Bartles,  47  N.  J.  Eq.  170 ;  Horn  v.  Keteltas, 
46  N.  Y.  605;  Carr  v.  Carr,  52  N.  Y.  251,  260;  Kraemer  r.  Adelsberger,  122 
N.  Y.  467;  Mooney  v.  Byrne,  163  N.  Y.  86;  Wilson  r.  Giddings,  28  Ohio  St. 
554;  Gibbs  v.  Penny,  43  Tex.  560;  Loving  r.  Milliken,  59  Tex.  423;  Temple 
Bank  v.  Warner,  92  Tex.  226;  Hills  r.  Loomis,  42  Vt.  562;  Snavely  r.  Pickle, 

29  Gratt.  27 ;  Wilcox  r.  Bates,  26  Wis.  465 ;  Lamson  v.  Moffatt,  61  Wis.  153. 
But  the  evidence  showing  that  the  transaction  was  in  reality  a  mortgage 

must  be  clear  and  satisfactory.  Cadman  p.  Peter,  118  U.  S.  73;  Satterfield  v. 
Malnne,  35  Fed.  Rep.  445;  Rogers  r.  Edwards,  81  Ala.  568;  Strong  v.  Strong, 
126  111.  301;  Sloan  r.  Becker.  34  Minn.  491;  Pancake  v.  Cauffman,  114  Pa. 
113;  Becker  v.  Howard,  75  Wis.  415. 


632  MISTAKE. 

General  rule.      The  manner  in  which  equity  deals  with  mortgage 

transactions  is  only  an  example  of  a  more  general  rule : — 

"  Where  there  is  a  debt  actually  due,  and  in  respect  of  that  debt  a  secu- 
rity is  given,  be  it  by  way  of  mortgage  or  be  it  by  way  of  stipulation  that  in 
case  of  its  not  being  paid  at  the  time  appointed  a  larger  sum  shall  become 
payable,  and  be  paid,  in  either  of  those  cases  Equity  regards  the  security 
that  has  been  given  as  a  mere  pledge  for  the  debt,  and  it  will  not  allow  either 
a  forfeiture  of  the  property  pledged,  or  any  augmentation  of  the  debt  as  a 
penal  provision,  on  the  ground  that  Equity  regards  the  contemplated  forfeiture 
which  might  take  place  at  law  with  reference  to  the  estate  as  in  the  nature 
of  a  penal  provision,  against  which  Equity  will  relieve  when  the  object  in 
view,  namely,  the  securing  of  the  debt,  is  attained,  and  regarding  also  the 
stipulation  for  the  payment  of  a  larger  sum  of  money,  if  the  sum  be  not  paid 
at  the  time  it  is  due,  as  a  penalty  and  a  forfeiture  against  which  Equity  will 
relieve  "  (p) . 

This  applies  not  only  to  securities  for  the  payment  of  money  but 
to  all  cases  ''where  a  penalty  is  inserted  merely  to  secure  the  enjoy- 
ment of  a  collateral  object''  (q).  In  all  such  cases  the  penal  sum 
was  originally  recoverable  in  full  in  a  court  of  law,  but  actions  brought 
to  recover  penalties  stipulated  for  by  bonds  or  other  agreements,  and 
land  conveyed  by  way  of  mortgage,  have  for  a  long  time  been  governed 
by  statutes  (;■). 

509]  *It  would  lead  us  too  far  beyond  our  present  object  to  discuss 
the  eases  in  which  the  question,  often  a  very  nice  one,  has  arisen, 
whether  a  sum  agreed  to  be  paid  upon  a  breach  of  contract  is  a  penalty 
or  liquidated  damages.  It  may  be  noted  however  in  passing  that  "  the 
words  liquidated  dam-ages  or  penalty  are  not  conclusive  as  to  the 
character  of  the  sum  stipulated  to  be  paid.5'  This  must  be  determined 
from  the  matter  of  the  agreement  (s).06 

(//)  Per  Lord  Hatherley  C.  Thomp-  Act  1852  (15  &  16  Vict.  c.  76)  s.  219. 

son  v.  Hudson   (1869)   L.  R.  4  H.  L.  Bonds    of    the    kind    last    mentioned 

1,  15,  38  L.  J.  Ch.  431.  hardly  occur  in  modern  practice. 

(<7)    Per  Lord  Thurlow,  Sloman  v.  (s)    Per  Bramwell   B.   in  Betts  v. 

Walter   (1784)    1  Bro.  C.  C.  418.     Re  Buroh  (1859)   4  H.  &  N.  506,  511,  28 

Dagenham  Dock  Co.    (1873)    L,  R.  8  L.  J.  Ex.  267,  271.     The  later  cases 

Ch.   1022,  is  a  good  modern  example.  on  this  subject  are — Magee  v.  Lavell 

(r)   As  to  common  money  bonds  4  (1874)    L.   R.   9   C.   P.    107,  43   L.   J. 

&   5   Anne,  c.    16    (3   in  Rev.   Stat.)  C.   P.   131    (authorities   discussed  by 

s.    13.     As  to  other  bonds  and  agree-  Jessel    M.R. )  ;    Lord    Elphinstone    v. 

ments  8  &  9  Will.  III.  c.  11,  s.  8.    The  Monkland  Iron  and  Coal  Co.    (1886) 

statutes    (some   of  which   have   been  11    App.    Oa.     (Sc. )    332;    Wallis   v. 

repealed    by    Statute    Law    Revision  Smith  (1882)   21  Ch.  Div.  243,  52  L. 

Acts)    are  collected   and   reviewed   in  J.  Ch.  145;  Willson  v.  Love  [1896]   1 

Preston,  v.  Dania   (1872)    L.  R.  8  Ex.  Q.   B.  626,  65  L.  J.  Q.  B.  474,  C.  A. 

19,    42    L.    J.    Ex.    33.      A    mortgagee  Cp.   Weston  v.   Metrop.   Asylum   Dis- 

suing    in    ejectment,    or    on    a,    bond  frir.t  (1882)   9  Q.  B.  Div.  404,  51  L.  J. 

given   as   collateral   security,   may  be  Q.  B.  399,  on  the  similar  question  of 

compelled  by  rule  of  Court  to  recon-  a  penal  rent.     In  the  Indian  Contract 

vey  on  payment  of  principal,  interest,  Act  the  knot  is  cut  by  abolishing  the 

and  costs:   7  Geo.  II.  c.  20,  C.  L.  P.  distinction  altogether:  see  s.  74/ 

98  See  Sun  Publishing  Co.  i.  Moore,  183  TJ.  S.  642;  Newton  r.  Wooley,  105 
Fed.  Rep.  541;   Chicago  Wrecking  Co.  c.  United  States,  106  Fed.  Rep!  306; 


SPECIFIC    PEKFOIiMANCE.  633 

3.  Peculiar  Defences  and  Remedies  derived  from  Equity. 

A.  Defence  against  Specific  Performance. 

When  by  reason  of  a  mistake  {e.g.,  omitting  some  terms  -which  were 
part  of  the  intended  agreement)  a  contract  in  writing  fails  to  ex- 
press the  real  meaning  of  the  parties,  the  party  interested  in  having 
the  real  and  original  agreement  adhered  to  {e.g.,  the  one  for  whose 
benefit  the  omitted  term  was)  is  in  the  following  position. 

If  the  other  party  sues  him  for  the  specific  performance  of  the  con- 
tract as  expressed  in  writing,  it  will  be  a  good  defence  if  he  can  show 
that  the  written  contract  does  not  represent  the  real  agreement :  and 
this  whether  the  contract  is  of  a  kind  required  by  law  to  be  in  writ- 
ing or  not.97  Thus  specific  performance  has  been  refused  where  a 
clause  *had  been  introduced  by  inadvertence  into  the  contract(i) .  [51 0 
It  is  sometimes  said  with  reference  to  cases  of  this  class  that  the 
remedy  of  specific  performance  is  discretionary.  But  this  means 
a  judicial  and  regular,  not  an  arbitrary  discretion.  The  Court  "  must 
be  satisfied  that  the  agreement  would  not  have  been  entered  into  if  its 
true  effect  had  been  understood"  (w). 

On  the  other  hand  a  party  cannot,  at  all  events  where  the  con- 
tract is  required  by  law  to  be  in  writing,  come  forward  as  plaintiff 
to  claim  the  performance  of  the  real  agreement  which  is  not  com- 
pletely expressed  by  the  written  contract.98     Thus  in  the  case   of 

(t)    Watson  v.   Marston    (1853)    4  («)   Watson  v.  Marston,  last  note. 

D.  M.  &  G.  230,  240. 

Brooks  v.  Wichita,  114  Fed.  Rep.  297;  Scofield  r.  Tompkins,  95  111.  190; 
Goodyear  Co.  v.  Selz,  157  111.  186;  Radloff  v.  Haase,  196  111.  365;  Mclntire  r. 
Cagley,  37  la.  676;  Dwinel  v.  Brown,  54  Me.  468,  471;  Willson  r.  Mayor,  83 
Md.  203;  Wallis  v.  Carpenter,  13  Allen,  19;  Guerin  v.  Stacey,  175  Mass.  595; 
Garst  v.  HaiTis,  177  Mass.  72;  Trustees  r.  Walrath,  27  Mich.  232;  Morris  r. 
McCoy,  7  Nev.  399;  Whitfield  i\  Levy,  35  N.  J.  L.  149;  Bagley  v.  Peddie,  10 
N.  Y.  469;  Curtis  v.  Van  Bergh,  161  N.  Y.  47;  Thoroughgood  v.  Walker,  2 
Jones  L.  15;  Wheedon  v.  American  Trust  Co.  128  N.  C.  69;  Knox  Blasting 
Co.  r.  Grafton  Stone  Co.,  64  Ohio  St.  361;  Salem  r.  Anson,  41  Oreg.  562; 
Shreve  r.  Brereton,  51  Pa.  175;  Burgoon  v.  Johnston,  194  Pa.  61;  Yenner  r. 
Hammond,  36  Wis.  277. 

8T  Bradford  r.  Bank,  13  How.  57,  66;  Osborn  v.  Phelps,  19  Conn.  63,  73; 
Lucas  r.  Mitchell,  3  A.  K.  Marsh.  244,  246;  Bradbury  v.  White,  4  Me.  391; 
Chambers  p.  Livermore,  15  Mich.  381,  389;  Best  r.  Stow,  2  Sandf.  Ch.  298; 
Averett  v.  Lipscom.be,  76  Va.  404. 

But  where  the  defendant's  mistake  is  only  as  to  the  legal  effect  of  the  con- 
tract, this  is  no  defense.     Caldwell  v.  Depew,  40  Minn.  528. 

98  Independently  of  the  Statute  of  Frauds,  no  good  reason  can  be  given  why, 
in  a  case  of  mistake,  he  should  not  be  permitted  to  do  so ;  and  in  this  country 
it  is  generally  held  that  a  plaintiff  may,  in  the  same  suit,  have  a  written 
contract  reformed  for  mistake,  and  the  contract  thus  reformed  specifically 
enforced.  Murphy  r.  Rooney,  45  Cal.  78;  Rogers  v.  Atkinson,  1  Kelly,  12, 
23-25;    Hunter   v.   Bilyeu,   30   111.   228;    Schwass    r.   Hershey,   125    111.   853; 


634  MISTAKE. 

Townshend  v.  Sfangroom  (x)  (referred  to  by  Lord  Hatherley  when 
V.-C.  as  perhaps  the  best  illustration  of  the  principle)  (y),  there 
were  cross  suits  (z),  one  for  the  specific  performance  of  a  written 
agreement  as  varied  by  an  oral  agreement,  the  other  for  specific  per- 
formance of  the  written  agreement  without  variation;  and  the  fact 
of  the  parol  variations  from  the  written  agreement  being  established, 
both  suits  were  dismissed.  And  the  result  of  a  plaintiff  attempting  to 
enforce  an  agreement  with  alleged  parol  variations,  if  the  defendant 
disproves  the  variations  and  chooses  to  abide  by  the  written  agreement, 

(x)    (1801)  6  Ves.  328,  5  R.  R.  312.  (»)     Under    the    Judicature    Acts 

(y)  Wood  v.  Scarth  (1855)  2  K.  &  there;  would  be  an  action  and  counter- 
J.  33,  42.  claim. 

Popplein  v.  Foley,  61  Md.  381;  Mosby  v.  Wall,  23  Miss.  81;  Keisselbrack  v. 
Livingston,  4  Johns.  Ch.  144;  Stone  v.  Bellows,  14  N.  H.  175,  201;  Kelley  v. 
McKinney,  5  Lea,  164;  Fishack  v.  Ball,  34  W.  Va.  644;  Waterman  v.  Dutton, 
6  Wis.  265. 

In  some  of  the  cases  cited  the  contract  was  within  the  Statute  of  Frauds, 
but  in  other  cases  it  is  held  that  a  court  of  equity  has  no  power,  on  oral 
evidence,  to  reform  a  contract  within  the  statute,  so  as  to  make  it  apply  to  a 
subject-matter  to  which,  as  written,  it  does  not  refer.     May  v.  Piatt,   [1900] 

I  Ch.  616;  Osborn  c.  Phelps,  19  Conn.  63;  Elder  v.  Elder,  10  Me.  80.  Cp. 
Cline  f.  Hovey,  15  Mich.  18;  Davis  v.  Ely,  104  N.  C.  16;  Lee  t.  Hills,  66  Ind. 
474. 

In  Glass  v.  Hulbert,  102  Mass.  24,  the  plaintiff  asked  that  a  deed  made  to 
him  should  be  so  reformed  as  to  accord  with  the  oral  agreement  of  the  parties, 
by  making  it  include  land  omitted  by  fraud  or  mistake.  It  was  held  that  such 
relief  must  be  denied.  "  Rectification  by  making  the  contract  include  obliga- 
tions or  subject-matter  to  which  its  written  terms  will  not  apply  is  a  direct 
enforcement  of  the  oral  agreement,  as  much  in  conflict  with  the  Statute  of 
Frauds  as  if  there  were  no  writing  at  all."  To  the  same  effect  are  Andrews 
Co.  r.  Youngstown  Co.,  39  Fed.  Rep.  353,  354;  Churchill  r.  Rogers,  3  T.  B. 
Mon.  81;  Goode  v.  Riley,  153  Mass.  585,  587;  Macomber  r.  Peckham,  16  R.  I. 
485;  Westbrook  v.  Harbeson,  2  MeCord's  Eq.  112. 

There  are  decisions,  however,  and  numerous  dicta,  to  the  effect  that  a  deed 
of,  or  contract  to  convey  land  may  be  rectified  so  as  to  conform  to  an  oral 
agreement  by  making  it  include  land  to  which  its  written  terms  do  not  apply. 
Johnson  v.  Bragge,  [1901]  1  Ch.  28;  McDonald  v.  Yungbluth;  46  Fed.  Rep 
836;  De  Jarnett  r.  Cooper,  59  Cal.  703;  Stevens  v.  Holman,  112  Cal.  345 
Trout  v.  Goodman,  7  Ga.  383;  Wall  r.  Arrington,  13  Ga.  88;  Willis  t>.  Hender 
son,  4  Scam.  13;  Conway  v.  Gore,  24  Kan.  389;  Taylor  v.  Deverell,  43  Kan.  469 
Worley  r.  Tugcde,  4  Bush,  168;  Philpott  i\  Elliott,  4  Md.  Ch.  273;  Judson  v 
Miller,  106  Mich.  140 ;  Craig  v.  Kittredge,  23  N.  H.  231 ;  Hitchins  r.  Pettin 
gill,  58  N.  H.  386;  Wiswall  i\  Hall,  3  Paige,  313;  De  Peyster  v.  Hasbrouck 

II  N.  Y.  582;  Smith  v.  Greely,  14  X.  Y.  378;  Beardsley  v.  Duntley,  69  N.  Y. 
577,  584;  Xeininger  v.  State,  50  Ohio  St.  394;  Blodgett  v.  Hobert,  18  Vt.  414 
Petesch  v.  Hambach,  48  Wis.  443. 

The  statute  does  not  prevent  the  rectification  of  a  deed  so  as  to  restrain  its 
terms  as  written,  and  make  them  conform  to  the  oral  agreement.  Cook  v. 
Preston.  2  Root,  78;  Warrick  v.  Smith,  137  111.  504;  Hileman  r.  Wright,  9 
Ind.  126;  Athey  v.  McHenry,  6  B.  Mon.  50;  Worley  v.  Tuggle,  4  Bush,  168; 
Elder  r.  Elder,  10  Me.  80,  90;  Andrews  r.  Andrews,  81  Me.  337;  Stockbridge 
Iron  Co.  i\  Hudson  Iron  Co.,  107  Mass.  290,  321;  Goode  v.  Riley,  153  Mass. 
585;  West  v.  Mahaney,  86  Mich.  121;  Gillespie  v.  Moon,  2  Johns.  Ch.  585; 
Newsom  ,:  Bufferlow,  1  Dev.  Eq.  379;  Busbv  r.  Littlefield,  31  N.  H.  193; 
Dennis  r.  Northern  Pae.  Co.,  20  Wash.  320. 


PAROL    VARIATIONS.  63  o 

may  be  a  decree  for  the  specific  performance  of  the  agreement  as  it 
stands  at  the  plaintiff's  cost  (a). 

*But  it  is  open  to  a  plaintiff  to  admit  a  parol  addition  or  varia-  [511 
tion  made  for  the  defendant's  benefit,  and  so  enforce  specific  perform- 
ance, which  the  defendant  might  have  successfully  resisted  if  it  had 
been  sought  to  enforce  the  written  agreement  simply.  This  was  settled 
in  Martin  v.  Py croft  (6 )  :"  "  The  decision  of  the  Court  of  Appeal  pro- 
ceeded on  the  ground  that  an  agreement  by  parol  to  pay  200Z.  as  a 
premium  for  ...  a  lease  [for  which  there  was  a  complete  agree- 
ment in  writing  not  mentioning  the  premium]  was  no  ground  for 
refusing  specific  performance  of  the  written  agreement  for  the  lease, 
where  the  plaintiff  submitted  by  his  bill  to  pay  the  200?.  The  case 
introduced  no  new  principle  as  to  the  admissibility  of  parol  evi- 
dence "  (c). 

Relation  of  this  doctrine  to  Statute  of  Frauds.  It  is  to  be  observed 
(though  the  observation  is  now  familiar)  that  these  doctrines  are  in 
principle  independent  of  the  Statute  of  Frauds  (d).  What  the 
fourth  section  of  the  Statute  of  Frauds  says  is  that  in  respect  of  the 
matters  comprised  in  it  no  agreement  not  in  writing  and  duly  signed 
shall  be  sued  upon.  This  in  no  way  prevents  either  party  from  show- 
ing that  the  writing  on  which  the  other  insists  does  not  represent  the 
real  agreement;  the  statute  interferes  only  when  the  real  agreement 
cannot  be  proved  by  a  writing  which  satisfies  its  requirements.  Then 
there  is  nothing  which  can  be  enforced  at  all.  The  writing  cannot, 
because  it  is  not  the  real  agreement;  nor  yet  the  real  agreement, 
because  it  is  not  in  writing.  A  good  instance  of  this  state  of  things 
is  Price  v.  Ley  (e).     The  suit  was  brought  mainly  to  set  aside  the 

(a)  See  Higginsonv.  Clowes  (1808)  ambiguous,  he  cannot  take  advantage 
15  Ves.  516,  525,  10  R.  B.  112;  and  of  such  an  offer  contained  in  his  own 
such  appears  to  be  the  real  effect  of  pleadings  "  to  take  up  the  other  con- 
Fife  v.  Clayton  (1807)  13  Ves.  546,  struction  which  the  defendant  was  at 
8.C.  more  fully  given,  with  the  de-  one  time  willing  to  have  performed  " : 
cree,  1  C.  P.  Cooper  (temp.  Cotten-  Clowes  v.  Higginson  (1813)  1  Ves. 
ham)  351.  In  this  case  Lord  Eldon  &  B.  524,  535,  12  E.  E.  284. 
laid  hold  on  the  plaintiff's  offer  in  (6)  (1852)  2  D.  M.  &  G.  785,  22 
general  terms  to  perform  the  agree-  L.  J.  Ch.  94. 

ment   as   amounting   to    an    offer    to  (c)    Per  Stuart  V.-C.  Price  v.  Ley 

perform  "  what  the  Court,  upon  hear-  ( 1863)  4  Giff.  at  p.  253. 

ing  all  the  circumstances,  should  be  (eZ)     See    per    Lord    Eedesdale    in 

of  opinion  was  the  agreement."     See  Clinan  v.  Cooke  (1802)   1  Sch.  &  Let'. 

the  notes  to  the  case  in  9  E.  R.  220.  22,  33-39,  9  E.  E.  3,  7-10. 

But   after   a,   plaintiff   has   failed  to  (e)    (1863)  4  Giff.  235,  affirmed  on 

support  his   own  construction   of  an  appeal,  32  L.  J.  Ch.  534. 
agreement    which    the    Court   thinks 

89  Park  v.  Johnson,  4  Allen,  259;  Anderson  v.  Kennedy,  51  Mich.  467; 
Ives  v.  Hazard,  4  E.  I.  14. 


636  MISTAKE. 

written  agreement,  and  so  far  succeeded.  It  appears  not  to  have  been 
seriously  attempted  to  insist  upon  the  real  agreement  which  had  not 
been  put  into  writing. 

512]     *B-  Rectification  of  Instruments. 

When  the  parties  to  an  agreement  have  determined  to  embody 
their  common  intention  in  the  appropriate  and  conclusive  form,  and 
the  instrument  meant  to  effect  this  purpose  is  by  mistake  so  framed 
as  not  to  express  the  real  intention  which  it  ought  to  have  expressed, 
it  is  possible  in  many  cases  to  correct  the  mistake  by  means  of  a  juris- 
diction formerly  peculiar  to  courts  of  equity,  and  still  reserved,  as 
a  matter  of  procedure,  to  the  Chancery  Division. 

Courts  of  equity  "  assume  a  jurisdiction  to  reform  instruments 
which,  either  by  the  fraud  or  mistake  of  the  drawer,  admit  of  a  con- 
struction inconsistent  with  the  true  agreement  of  the  parties  (f). 
And  of  necessity,  in  the  exercise  of  this  jurisdiction,  a  court  of  equity 
receives  evidence  of  the  true  agreement  in  contradiction  of  the  written 
instrument."  Relief  will  not  be  refused  though  the  party  seeking 
relief  himself  drew  the  instrument ;  for  "  every  party  who  comes  ■  to 
be  relieved  against  an  agreement  which  he  has  signed,  by  whomsoever 
drawn,  comes  to  be  relieved  against  his  own  mistake"  (g).2  The 
jurisdiction  is  a  substantive  and  independent  one,  so  that  it  does 
not  matter  whether  the  party  seeking  relief  would  or  would  not  be 

(f)   The  Court  need  not  decide  the  M.  &  G.  531,  25  L.  J.  Ch.  738.     The 

point   of  construction ;    it   is  enough  judgment  of  Knight  Bruce  L.J.  is  en- 

that  serious  doubt  exists  whether  the  tertaining  as  well  as  profitable, 
terms    express    the    true    intention:  (g)  Ball  v.  Storie  (1823)  1  Sim.  & 

Walker  v.   Armstrong    (1856)    8   D.  St.  210,  219,  24  E.  E.  170. 

i  "  Where  an  instrument  is  drawn  and  executed,  which  professes,  or  is  in- 
tended to  carry  into  execution  an  agreement  previously  entered  into,  but 
which,  by  mistake  of  the  draftsman,  either  as  to  fact  or  law,  does  not  fulfill, 
or  which  violates  the  manifest  intention  of  the  parties  to  the  agreement,  equity 
will  correct  the  mistake,  so  as  to  produce  a  conformity  of  the  instrument  to 
the  agreement."  Hunt  v.  Eousmaniere's  Admr.,  1  Pet.  1,  13:  Walden  r.  Skin- 
ner. 101  TJ.  S.  577,  583;  Essex  ;,'.  Insurance  Co..  3  Mason,  6,  10;  Stone  v. 
Hale,  17  Ala.  557;  Cake  r.  Peet,  49  Conn.  501;  West  r.  Suda,  69  Conn.  60; 
Miller  i\  Davis,  10  Kan.  541;  Inskoe  v.  Proctor,  6  T.  B.  Mon.  311;  Smith  v. 
Jordan,  13  Minn.  264;  Wall  v.  Meilke,  89  Minn.  232;  Tesson  v.  Insurance  Co., 
40  Mo.  33;  Loss  r.  Obry,  22  N.  J.  Eq.  52;  McKay  v.  Simpson,- 6  Ired.  Eq.  452; 
Gower  i\  Sterner,  2  Whart.  75 ;  Gammaye  v.  Moore,  42  Tex.  170. 

If  an  instrument  which  requires  a  seal  is  by  mistake  executed  without  one, 
a  court  of  equity  mav  grant  relief  by  compelling  a  seal  to  be  affixed  or  other- 
wise.    Gaylord  k  Pelland,  169  Mass.  356. 

If  necessary  the  court  wi'1.  not  only  reform  the  instrument  in  which  the 
mistake  occurred,  but  all  subsequent  instruments  which  have  perpetuated  it. 
Marks  v.  Taylor,  23  Utah,  152. 

2  Baldwin  r.  National  Hedge  Co.,  73  Fed.  Eep.  574.  See  also  Corrigan  v. 
Tiernay,  100  Mo.  276. 


RECTIFICATION.  637 

nble  to  get  the  benefit  of  the  true  intention  of  the  contract  by  any- 
other  form  of  remedy  (h).3  It  would  be  neither  practicable  nor  de- 
sirable to  discuss  in  this  place  the  numerous  cases  in  which  this  juris- 
diction has  been  exemplified.  The  most  important  thing  to  be  known 
about  a  discretionary  power  of  this  kind  is  whether  there  is  any  settled 
rule  by  which  its  exercise  is  limited.  In  this  case  there  are  ample 
authorities  to  show  that  there  is  such  a  *rule,  and  they  expound  [513 
it  so  fully  that  there  is  very  little  left  to  be  added  by  way  of  comment. 

Principles  on  which  courts  of  equity  will  rectify  instruments.  The  man- 
ner in  which  the  Court  proceeds  is  put  in  a  very  clear  light  by  the 
opening  of  Lord  Eomilly's  judgment  in  the  ease  of  Murray  v. 
Parker  (i)  : 

"  In  matters  of  mistake,  the  Court  undoubtedly  has  jurisdiction,  and  though 
this  jurisdiction  is  to  be  exercised  with  great  caution  and  care,  still  it  is  to 
be  exercised  in  all  cases  where  a  deed,  as  executed,  is  not  according  to  the 
real  agreement  between  the  parties.  In  all  cases  the  real  agreement  must  be 
established  by  evidence,  whether  parol  or  written ;  if  there  be  a  previous  agree- 
ment in  writing  which  is  unambiguous,  the  deed  will  be  reformed  accordingly ; 
if  ambiguous,  parol  evidence  may  be  used  to  express  it,  in  the  same  manner 
as  in  other  cases  where  parol  evidence  is  admitted  to  explain  ambiguities  in 
a  written   instrument." 

Previous  agreement  in  writing  not  allowed  to  be  varied.  In  the  case  of 
"  a  previous  agreement  in  writing  which  is  unambiguous  "  the  Court 
cannot  admit  parol  evidence  to  rectify  the  final  instrument  executed 
in  accordance  with  such  agreement  any  more  than  it  could  allow 
the  party  to  maintain  a  suit,  while  the  agreement  was  yet  executory, 
first  to  rectify  the  agreement  by  parol  evidence  and  then  execute  it 
as  rectified — which,  as  we  have  seen,  it  will  not  do.  For  this  would 
be  to  "  reform  [the  instrument]  by  that  evidence,  which,  if  [the 
instrument]"  rested  in  fieri,  would  be  inadmissible  to  aid  in  carrying 
it  into  execution"  (&).4 

Oral  evidence  of  the  real  agreement  admissible  in  the  absence  of  any  other 
if  not  contradicted.  If  there  be  no  previous  agreement  in  writing,  the 
modern  rule  is  that  a  deed  may  be  rectified  on  oral  evidence  of  what 
was  the  real  intention  of  the  parties  at  the  time,  if  clear  and  uncon- 
tradicted. 

(h)  Drtiiff  v.  Lord  Parker  (1868)  (fc)   Per  Lord  St.  Leonards,  Davies 

L.  R.  5  Eq.  131.  37  L.  J.  Ch.  241.  v.  Fitton    (1842)    2  Dr.  &  War.  225, 

(i)    (1854)   19  Beav.  305,  308.  233;  foil,  by  Farwell  J.,  May  v.  Piatt 

[1900]  1  Ch.  616,  69  L.  J.  Ch.  357. 

3  But  "  where  the  intention  of  the  parties  to  a  contract  is  sufficiently  appar- 
ent to  be  recognized  in  any  court,  the  fact  that  a  word  is  omitted  is  no  sufficient 
reason  for  bringing  a  party  into  a  court  of  equity  for  a  reformation  of  the 
contract."     Railroad  Co.  r.  Spear,  32  Ga.  550. 

4  But  see  contra,  Schwass  v.  Hershey,  125  111.  653. 


638  MISTAKE. 

But  if  the  alleged  mistake  is  positively  denied  by  any  party  to  the 
instrument,  parol  evidence  alone  is  inadmissible  to  prove  it.  The 
rule  is  contained  in  two  judgments  given  by  Lord  St.  Leonards  in  the 
Irish  Court  of  Chancery. 

514]     *He  said  in  Alexander  v.  Crosbie  (I)  : 

"  In  all  the  cases,  perhaps,  in  which  the  Court  has  reformed  a  settlement, 
there  has  been  something  beyond  the  parol  evidence,  such,  for  instance,  as  the 
instructions  for  preparing  the  conveyance  or  a  note  by  the  attorney,  and  the 
mistake  properly  accounted  for;  but  the  Court  would,  I  think,  act  where  the 
mistake  is  clearly  established,  by  parol  evidence,  even  though  there  is  nothing 
in  writing  to  which  the  parol  evidence  may  attach." 

What  is  here  meant  by  "  clearly  established  "  is  shown  by  his  later 
statement  in  Mortimer  v.  Shortall  (m),  applying  the  general  rule  of 
equity  practice  that  the  Court  will  not  act  merely  on  "  oath  against 
oath  '' :  "  There  is  no  objection  to  correct  a  deed  by  parol  evidence, 
when  you  have  anything  beyond  the  parol  evidence  to  go  by.  But 
where  there  is  nothing  but  the  recollection  of  witnesses,  and  the  de- 
fendant by  his  answer  denies  the  case  set  up  by  the  plaintiff,  the 
plaintiff  appears  to  be  without  a  remedy.  Here  I  am  not  acting 
upon  parol  evidence  alone ;  the  documents  in  the  cause,  and  the  subse- 
quent transactions,  corroborate  the  parol  evidence,  and  leave  no  doubt 
in  my  mind  as  to  a  mistake  having  been  made." 

Again,  it  was  said  in  a  case  on  the  equity  side  of  the  Court  of 

Exchequer,  where  the  whole  subject  was  considerably  discussed: 

"  It  seems  that  the  Court  ought  not  in  any  case,  tohere  the  mistake  is 
denied  or  not  admitted  hy  the  answer,  tf1  admit  parol  evidence,  and  upon 
that  evidence  to  reform  an  executory  agreement"  (n) . 

On  the  other  hand,  when  the  mistake  is  admitted,  or  not  positively 
denied,  written  instruments  have  repeatedly  been  reformed  on  parol 
evidence  alone  (o).5 

(I)   (1835)   LI.  &  G.  temp.  Sugden,  (o)Toimshend  v.  Stangroom (1891) 

145,    150,    46   R.    R.    183,    185.      Cp.  6  Ves.  328,  334,  5  R.  R.  312;  Ball  v. 

Davies  v.  Fitton' ( 1842)  2  Dr.  &  War.  Storie    (1823)    1   Sim.  &  St.  210,  24 

233.  R.    R.    170;    Druiff   v.   Lord   Parker 

(m)   (1842)  2  Dr.  &  War.  363,  374.  (1868)   L.  R.  5  Eq.  131,  37  L.  J.  Ch. 

(n)    Per    Alderson    B.    Atty.-Oenl.  141;    Ex    parte    "National   Provincial 

v.  Sitwell  (1835)    1  Y.  &  C.  Ex.  559,  Bank   of   England    (1876)    4   Ch.   D. 

583;  Olley  v.  Fisher  (1886)  34  Ch.  D.  241,  46  L.  J.  Bk.  11;  Welman  v.  Wel- 

367,  56  L.  J.  Ch.   208,  seems  to  put  man   (1880)    15  Ch.  D.  570,  49  L.  J. 

this   rule   wholly   on   the    Statute   of  Ch.  736,  where  a  power  of  revocation 

Frauds:  but  it  has  since  been  decided  appearing  in  the  first  draft  had  been 

that  the   statute   does   not  apply   to  struck   out   in  the   instrument  as   it 

an  action  for  rectification  of  a  mar-  finally  stood,  and  there  was  nothing 

riage  settlement:   Johnson  v.  Bragge  to  show  how  this  had  happened. 
[1901]  1  Ch.  28,  70  L.  J.  Ch.  41. 

5  Hudspeth  v.  Thoma-son,  46  41a  470:  Wyche  v.  Green,  11  Ga.  159,  169; 
Jones  r.  Sweet,  77  Ind.  187;  Coale  v.  Merryman,  35  Md.  382;  Canedy  v.  Marcy, 


RECTIFICATION.  639 

*  What  must  be  proved:  common  intention  of  parties  different  from  [515 
expressed  intention.  Thus  far  as  to  the  nature  of  the  evidence  required; 
next  let  us  see  what  it  must  prove.  It  is  indispensable  that  the  evidence 
should  amount  to  "  proof  of  a  mistake  common  to  all  the  parties  "  (p), 
i.e.  a  common  intention  different  from  the  expressed  intention  and 
a  common  mistaken  supposition  that  it  is  rightly  expressed :  it  matters 
not,  as  we  have  seen,  by  whom  the  actual  oversight  or  error  is  made 
which  causes  the  expression  to  be  wrong.  The  leading  principle 
of  equity  on  the  head  of  rectification, — that  there  must  be  clear  proof 
of  a  real  agreement  on  both  parties  different  from  the  expressed  agree- 
ment, and  that  a  different  intention  or  mistake  of  one  party  alone  is 
no  ground  to  vary  the  agreement  expressed  in  writing, — was  distinctly 
laid  down  by  Lord  Hardwicke  as  long  ago  as  1749  (g).8 

The  same  thing  was  very  explicitly  asserted  in  Fowler  v. 
Fowler  (r)  : 

"  The  power  which  the  Court-  possesses  of  reforming  written  agreements 
where  there  has  been  an  omission  or  insertion  of  stipulations  contrary  to 
the  intention  of  the  parties  and  under  a  mutual  mistake,  is  one  which  has 
been  frequently  and  most  usefully  exercised.     But  it  is  also  one  which  should 

(p)    Per  Lord  Romilly  M.R.  Bent-  (q)    Henlcle  v.  Royal  Enoch.  Assce. 

ley  v.  Mackay  (1869)   31  Beav.  at  p.       Co.  1  Ves.  Sr.  318. 
151.  (r)    (1859)   4  De  G.  &  J.  250,  264. 

13  Gray,  373 ;  Goode  v.  Riley,  153  Mass.  585 ;  McMillan  v.  Fish,  29  N.  J.  Eq. 
610;  Clayton  v.  Freet,  10  Ohio  St.  544;  Huss  i?„  Morris,  63  Pa.  367;  Shat- 
tuek  v.  Gay,  45  Vt.  87;  and  supra,  p.  *510,  n.  98. 

6  And  see  Durham  v.  Insurance  Co.,  22  Fed.  Rep.  468;  Keith  v.  Woodruff, 
136  Ala.  443;  Ward  v.  Yorba,  123  Cal.  447;  Eureka  v.  Gates,  137  Cal.  89,  94; 
Brainard  v.  Arnold,  27  Conn.  617,  624;  Baldwin  v.  Kerlin,  46  Ind.  426; 
Schoonover  v.  Dougherty,  65  Ind.  463 ;  Royer  Wheel  Co.  v.  Miller,  18  Ky.  L. 
Rep.  1831 ;  Atlantic,  etc.,  Coal  Co.  v.  Maryland  Coal  Co.,  64  Md.  302 ;  Sawyer 
r.  Hovey,  3  Allen,  331;  Ludington  v.  Ford,  33  Mich.  123;  Nebraska  Trust 
Co.  r.  Ignowski,  54  Neb.  398;  Ramsey  v.  Smith,  32  N.  J.  Eq.  28;  Gough  v. 
Williamson,  62  N.  J.  Eq.  526;  Lyman  v.  Insurance  Co.,  17  Johns.  373,  377; 
Nevius  v.  Dunlap,  33  N.  Y.  676;  Bryce  v.  Insurance  Co.,  55  N.  Y.  240;  Mead 
v.  Inuran-^  Co.,  64  N.  Y.  453;  Born  v.  Sehrenkeiser,  110  N.  Y.  55;  Curtis  v. 
Albee,  167  N.  Y.  360;  Stewart  v.  Gordon,  60  Oliio  St.  170;  King  v.  Holbrook, 
38  Oreg.  452;  Cooper  v.  Insurance  Co.,  50  Pa.  299;  Diman  r.  Railroad  Co., 
5  R.  I.  130. 

But  the   instrument  will   be   rectified  when,  by  reason  of  mistake  on  the 
p-rt  of  the  plaintiff,  and   fraud   on  the  part  of  the  defendant,   it  fails,  as 
written,  to  express  the  agreement  actually  made.    Elliott  v.  Sackett,  108  U.  S. 
132;   Simmons  Creek  Co.  v.  Doran,  142  U.  S.  417;  Trenton  Co.  v.  Clay  Co 
80  Fed.  Rep.  46;  Dulo  v.  Miller,  112  Ala.  687;  Essex  v.  Day,  52  Conn.  483 
Berger  v.  Ebey,  88  111.  269;  New  r.  Wambach,  42  Ind.  456;  Roszell  v.  Roszell 
109  Ind.  354;  Williams  v.  Hamilton,  104  la.  423;  Metcalf  v.  Putnam,  9  Allen 
97;   Smith  v.  Jordan,  13  Minn.  264;  Henderson  v.  Stokes,  42  N.  J.  Eq.  586 
Wells  v.  Yates,  44  N.  Y.  525 ;  Kilmer  r.  Smith,  77  N.  Y.  226 ;  Hay  v.  Insur 
ance  Co.,  77   N.  Y.  235;   Albany  City  Sav.  Inst.  v.  Burdick,  87  N.  Y.  40 
Husted  v.  Van  Ness,  158  N.  Y.  104;  Day  v.  Day,  84  N.  C.  408;  Railroad  Co 
v.  Steinfeld,  42  Ohio  St.  449 ;  Archer  r.  California  Lumber  Co.,  24  Oreg.  341 
Cook  r.  Liston,  192  Pa.  19;  Clack  v.  Hadley,  64  S.  W.  Rep.  403  (Tenn.  Ch.) 
James  v.  Cutler,  54  Wis.  172. 


6-iO  MISTAKE. 

be  used  with  extreme  care  and  caution.  To  substitute  a  new  agreement  for 
one  which  the  parties  have  deliberately  subscribed  ought  only  to  be  permitted 
upon  evidence  of  a  different  intention  of  the  clearest  and  most  satisfactory 
description.?  It  is  clear  that  a  person  who  seeks  to  rectify  a  deed  upon  the 
ground  of  mistake  must  be  required  to  establish,  in  the  clearest  and  most 
satisfactory  manner,  that  the  alleged  intention  to  which  he  desires  it  to  be 
made  conformable  continued  concurrently  in  the  minds  of  all  parties  down  to 
the  time  of  its  execution,  and  also  must  be  able  to  show  exactly  and  precisely 
the  form  to  which  the  deed  ought  to  be  brought.  For  there  is  a  material 
difference  between  setting  aside  an  instrument  and  rectifying  it  on  the 
ground  of  a  mistake.  In  the  latter  case  you  can  only  act  upon  the  mutual  and 
516]  concurrent  intention  of  all  parties  for  whom  the  court  is  virtually 
making  a  new  written  agreement"  (s).8 

Proof  of  one  party's  intention  will  not  do.  So  it  has  been  laid  down 
by  the  American  Supreme  Court  that  Equity  may  compel  parties  to 

(s)  4  De  G.  &  J.  at  pp.  264-5. 

"  The  ordinary  rule  of  evidence  in  civil  actions  that  a  fact  must  be  "  proved 
by  a  preponderance  of  evidence,  does  not  apply  to  such  a  case  as  this.  The 
proof  that  both  parties  intended  to  have  the  precise  agreement  set  forth- 
inserted  in  the  deed,  and  omitted  to  do  so  by  mistake,  must  be  made  beyond 
a  reasonable  doubt,  and  so  as  to  overcome  the  strong  presumption  arising 
from  their  signatures  and  seals,  that  the  contrary  was  the  fact."  Hudson 
Iron  Co.  v.  Stockbridge  Iron  Co.,  102  Mass.  45,  49."  Compare  Wall  c.  Meilke, 
89  Minn.  232,  240,  where  the  court  said :  "  We  have  referred  to  the  early 
case  in  this  court  of  Guernsey  r.  American  Ins.  Co.  [17  Minn.  83]  in  which 
it  was  said  that  a  mistake,  in  order  to  warrant  the  reformation  and  correc- 
tion of  a  written  instrument,  must  be  established  '  clear  of  all  reasonable 
doubt.'  That  case  has  never  been  followed  in  this  court,  and  certainly  part 
of  the  language  used  was  erroneous.  The  true  rule  is  that  equity  will  not 
reform  an  instrument  on  the  ground  of  mistake  unless  the  evidence  is  clear 
and  convincing."  See  further  Simmons  Creek  Co.  v.  Doran,  142  U.  S. 
417 ;  Van  Fleet  v.  Sledge,  45  Fed.  Rep.  743 ;  Insurance  Co.  v.  Hender- 
son, 69  Fed.  Rep.  762;  Pope  r.  Hooper,  90  Fed.  Rep.  451,  453;  Fulton  v. 
Colwell,  112  Fed.  Rep.  831;  Hinton  i\  Insurance  Co.,  63  Ala.  488;  Smith 
r.  Allen,  102  Ala.  406  (cp.  Miller  r.  Morris,  123  Ala.  164)  ;  Hochstein 
r.  Berghauser,  123  Cal.  681;  Bishop  r.  Insurance  Co.,  49  Conn.  167;  Miner 
r.  Hess,  47  111.  170;  Linn  ,-.  Barker,  7  Ind.  69;  Tufts  V.  Lamed,  27  la.  330; 
Brundige  r.  Blair,  43  Kan.  364;  fucker  r.  Madden,  44  Me.  206;  Fessenden 
r.  Ockington,  74  Me.  123;  Andrews  v.  Andrews,  81  Me.  337;  Insurance  Co. 
v.  Crane,  16  Md.  260;  Stiles  v.  Willis,  66  Md.  552;  Tripp  v.  Hasceig,  20 
Mich.  254;  State  v.  Frank,  51  Mo.  98;  Henderson  i\  Stokes,  42  N.  J.  Eq.  586; 
Whelen  v.  Osgoodby,  62  N.  J.  Eq.  571 ;  Lyman  v.  Insurance  Co.,  2  Johns.  Ch. 
630;  Coles  v.  Bowne,  10  Paige,  526;  Ford  V.  Joyce,  78  N.  Y.  618;  Allison  Bros. 
Co.  v.  Allison,  144  N.  Y.  21 ;  Christopher  St.  Ry.  Co.  v.  Twenty-third  St.  Ry. 
Co.,  149  N.  Y.  51  (cp.  Southard  v.  Curley,  134  N.  Y.  148)  ;  Ely  r.  Early,  94 
N.  C.  1 ;  Potter  v.  Potter,  27  Ohio  St.  84 ;  Neininger  r.  State,  50  Ohio  St.  394 ; 
Stewart  v.  Gordon,  60  Ohio  St.  170;  Shively  r.  Welch,  2  Oreg.  288;  Ed- 
mond's  Appeal,  59  Pa.  220;  Sylvius  v.  Kosek.  117  Pa.  67;  Davidson  r.  Greer, 
3  Sneed,  384;  Clack  v.  Hadle'y,  64  S.  W.  Rep.  403  (Tenn.  Ch.)  ;  Goodell  v. 
Field,  15  Vt.  448;  Robinson  v.  Braiden,  44  W.  Va.  183;  Harter  v.  Christoph, 
32  Wis.  245 ;  Blake  Co.  r.  Insurance  Co.,  73  Wis.  667 ;  Meiswinkel  v.  St.  Paul 
Ins.  Co.,  75  Wis.  147. 

Where  the  fact  of  a  mistake  in  an  instrument  is  admitted,  a  preponderance 
of  evidence  may  be  sufficient  to  show  what  was  intended  to  have  been  in- 
serted in  place  of  the  erroneous  matter.     Bunse  r.  Agee,  47  Mo.  270. 

8  St.  Anthony  Falls  Co.  v.  Merriman,  35  Minn.  42. 


RECTIFICATION.  641 

perform  their  agreement,  but  has  no  power  to  make  agreement?  for 
parties,  and  then  compel  them  to  execute  the  same  (t) ;  to  the  same 
effect  in  Rooke  v.  Lord  Kensington  (u)  by  Lord  Hatherley  when 
V.-C. ;  and  more  recently  by  James  L.  J.  when  V.-C.  in  Mackenzie  v. 
Coulson  (x).  On  this  principle,  as  we  have  already  seen,  the  juris- 
diction to  rectify  instruments  does  not  extend  beyond  particular  ex- 
pressions. The  Court  cannot  alter  that  form  of  instrument  which 
the  parties  have  deliberately  chosen  (t). 

The  Court  therefore  cannot  act  on  proof  of  what  was  intended  by 
one  party  only  (y).9  And  when  an  instrument  contains  a  variety  of 
provisions,  and  some  of  the  clauses  may  have  been  passed  over  with- 
out attention,  "  the  single  fact  of  there  being  no  discussion  on  a  par- 
ticular point  will  not  justify  the  Court  in  saying  that  a  mistake  com- 
mitted on  one  side  must  be  taken  to  be  mutual"  (z).  The  Court 
will  not  rectify  an  instrument  when  the  result  of  doing  so  would  be 
to  affect  interests  already  acquired  by  third  parties  on  the  faith  of 
the  instrument  as  it  stood  (a). 

Without  derogation  from  the  above  general  rules,  a  contract  of 
insurance  is  liberally  construed  for  the  purpose  of  reforming  the 
policy  founded  upon  it  in  accordance  with  the  true  intention  (6).10 

Possible  exception  where  one  party  acts  as  other's  agent.  There  exists 
a  rare  class  of  cases  (we  know  of  only  two  complete  instances  at 
present,  and  none  in  a  Court  of  *  Appeal)  in  which  the  rule  [517 
that  a  common  mistake  must  be  shown  may  admit  of  modification. 
This  is  where  one  party  acts  as  another's  agent  in  preparing  an  in- 
strument which  concerns  them  both — (in  both  the  particular  cases 
referred  to  an  intended  husband  had  the  marriage  settlement  pre- 
pared in  great  haste  and  without  any  advice  being  taken  on  the  wife's 

(t)    Hunt  v.  Rousmaniere's  Adm.  (y)   Hills  v.  Rowland  (1853)   4  D. 

(1828)   1  Peters,  1,  14.  M.  &  G.  430,  436. 

(«)    (1856)   2  K.  &  J.  753,  764,  25  («)  Thompson  v.  Whitmore  (1860) 

L.  J.  Ch.  795.  1  J.  &  H.  268,  276. 

(x)    (1869)    L.  R.  8  Eq.  368,  375.  (a)    Blackie   v.    Clark    (1852)     15 

Cp.  Bonhote  v.   Henderson   [1895]    1  Beav.  595. 

Ch.  742,  64  L.  J.  Ch.  556,  affd.  [1895]  (6)    Equitable  Insurance  Company 

2  Ch.  202,  C.  A.  v.  Hearne    (1874)    20  Wallace    (Sup. 

Ct.  U.  S.)  494. 

9  Supra,  note  6.  "A  mistake  on  one  side  may  be  ground  for  rescinding, 
but  not  for  reforming  a  written  agreement."  Hearne  v.  Insurance  Co.,  20 
Wall.  488,  491;  Moffett,  etc.,  Co.  v.  Rochester,  178  U.  S.  373;  Dulany  v. 
Rogers,  50  Md.  524,  533;  Benson  v.  Markoe,  37  Minn.  30;  Stewart  v.  Gor- 
don, 60  Ohio  St.  170;  Diman  v.  Railroad  Co.,  5  R.  I.  130. 

10  Insurance  Co.  v.  Hearne,  20  Wall.  494. 

41 


642  MISTAKE. 

part) — and  that  other  gives  no  definite  instructions,  but  relies  on 
the  good  faith  and  competence  of  the  acting  party  to  carry  out  the 
true  intention.  Here  the  acting  party  takes  on  himself  the  duty  of 
framing  a  proper  instrument — such  an  instrument,  in  fact,  as  would 
be  sanctioned  by  the  Court  if  the  Court  had  to  execute  the  agree- 
ment. And  the  instrument  actually  prepared,  and  executed  by  the 
other  party  on  the  assumption  that  it  is  properly  framed,  may  be 
corrected  accordingly  (c).11 

But  cases  of  this  kind  would  perhaps  be  better  put  on  the  ground 
that  the  acting  party  is  estopped  by  his  conduct,  having  taken  on 
himself  a  fiduciary  relation  and  duty,  from  denying  that  the  inten- 
tion of  the  other  party  was  in  fact  the  common  intention  of  both. 
Compare  p.  *495,  above. 

Reformation  of  settlements  according  to  previous  articles.  The  most  fre- 
quent application  of  the  jurisdiction  of  equity  to  rectify  instruments 
is  in  the  case  of  marriage  and  other  family  settlements  (d),  when 
there  is  a  discrepance  between  the  preliminary  memorandum  or 
articles  and  the  settlement  as  finally  executed.  As  to  marriage  settle- 
ments, the  distinction  was  formerly  held  that  if  both  the  articles  and 
the  settlement  were  ante-nuptial,  the  settlement  should  be  taken  in 
case  of  variance  as  a  new  agreement  superseding  the  articles,  unless 
expressly  mentioned  to  be  made  in  pursuance  of  the  articles;  but 
518]  that  *a  post-nuptial  settlement  would  always  be  reformed  in 
accordance  with  ante-nuptial  articles.  The  modern  doctrine  of  the 
Court  has  modified  this  as  follows,  so  far  as  regards  settlements  exe- 
cuted after  preliminary  articles  but  before  the  marriage : 

Special  rules  as  to  this.  1.  When  the  settlement  purports  to  be  in 
pursuance  of  articles  previously  entered  into,  and  there  is  any  variance, 
the  variance  will  be  presumed  to  have  arisen  from  mistake. 

2.  When  the  settlement  does  not  refer  to  the  articles,  it  will  not 
be  presumed,  but  it  may  be  proved,  that  the  settlement  was  meant 

(c)    Clark  v.    Girdwood    (1877)    7  L.  J.  Ch.  809.     The  Court  of  Appeal 

Ch.  Div.  9,  47  L.  J.  Ch.  116/ on  the  does  not  seem  likely  to  extend  this 

authority  of  Corley  v.  Lord  Stafford  jurisdiction.     See   Tucker  v.  Bennett 

(1857)    1  De  G.  &  J.  238,  where  how-  (1887)    38  Ch.  Div.    1,  57  L.  J.  Ch. 

ever    there    was    no    rectification:    a  507. 

later  and  very  similar  case  is  Lovesy  (d)     See    further    on   this    subject 

v.  Smith   (1880)    15  Ch.  D.   655,   49  Dav.  Conv.  3,  pt.  1.  Appx.  No.  3. 

11  Williams  v.  North  German  Ins.  Co.,  24  Fed.  Rep.  625;  Abraham  r. 
North  German  Ins.  Co.,  40  Fed.  Rep.  717;  Palmer  r.  Hartford  Ins.  Co.,  54 
Conn.  488 ;  Esch  v.  Home  Ins.  Co.,  78  la.  334.  Cp.  Scott  r.  Duncan,  1  Dev. 
Eq.  403.     And  see  the  cases  cited  supra,  note  6,  ad  fin. 


RECTIFICATION.  643 

to  be  in  conformity  with  the  articles,  and  that  any  variance  arose 
from  a  mistake. 

In  the  first  case  the  Court  will  act  on  the  presumption,  in  the 
second  on  clear  and  satisfactory  evidence  of  the  mistake  (e). 

A  settlement  may  be  rectified  even  against  previous  articles  on 
the  settlor's  uncontradicted  evidence  of  departure  from  the  real  in- 
tention, if  no  further  evidence  can  be  obtained  (/). 

The  fact  that  a  provision  inserted  in  a  settlement  (e.g.  restraint 
on  anticipation  of  the  income  of  the  wife's  property)  is  in  itself 
usual-  and  is  generally  considered  proper,  is  not  a  ground  for  the 
Court  refusing  to  strike  it  out  when  its  insertion  is  shown  to  have 
been  contrary  to  the  desire  of  the  parties  and  to  the  instructions 
given  by  them  (g).  There  is  however  a  general  presumption,  in  the 
absence  of  distinct  or  complete  evidence  of  actual  intention,  that  the 
parties  intend  a  settlement  to  contain  dispositions  and  provisions  of 
the  kind  usual  under  the  circumstances  (h). 

*At  whose  suit  rectification  may  be  had.  It  is  not  necessary  that  a  [51 9 
person  claiming  to  have  a  settlement  rectified  should  be  or  represent  a 
party  to  the  original  contract,  or  be  within  the  consideration  of  it  (i).12 
But  a  deed  which  is  wholly  voluntary  in  its  inception  cannot  be  re- 
formed if  the  grantor  contests  it,  but  must  stand  or  fall  in  its  original 
condition  without  alteration  (h)  ;13  the  reason  of  this  has  been  ex- 
plained to  be  that  an  agreement  between  parties  for  the  due  execution 
of  a  voluntary  deed  is  not  a  contract  which  the  Court  can  interfere 
to  enforce  (I).    The  Court  has  power,  however,  to  set  aside  a  volun- 

(e)  Bold  v.  Hutchinson  (1855)  5  D.  (f)    Smith  v.  Iliffe    (1875)    L.   R. 

M.  &  G.  558,  567,  568.      In  reforming  a  20  Eq.  666,  44  L.  J.  Ch.  755;  Eanley 

settlement  the  intent  rather  than  the  v.  Pearson  (1879)   13  Ch.  D.  545. 

literal  words  of  the  articles  will  be  (g)  Torre  v.  Torre  (1853)   1  Sm.  & 

followed:   for  a  modern  instance  see  G.  518. 

Cogan  v.  Duflield    (1876)   2  Ch.  Div.  (h)   See  p.  *500,  above. 

44,  45  L.  J.  Ch.  307.     As  to  the  gen-  (i)   Thompson  v.  Whitmore  (1860) 

eral    principles    on    which    courts    of  1  J.  &  H.  268,  273. 

equity  construe  instruments  creating  ,  (k)    Broun  v.  Kennedy    (1863)    33 

executory   trusts,   see   Sackville-West  Beav.  at  p.  147. 

v.  Viscount  Holmesdale  (1870)  L.  R.  (Z)  Lister  v.  Hodgson  (1867)  L.  R. 

4  H.  L.  543,  555,  565,  39  L.  J.  Ch.  505.  4  Eq.  at  p.  34. 

12  But  see  Cook  v.  Walker,  21  Ga.  370. 

13  Randall  v.  Ghent,  19  Ind.  271;  Schoonover  v.  Dougherty,  65  Ind.  463,  467; 
Shears  v.  Westover,  110  Mich.  505;  Mudd  v.  Dillon,  166  Mo.  110;  Mulock  r. 
Mulock,  31  N.  J.  Eq.  594;  Powell  v.  Morisey,  98  N.  C.  426;  Meeks  r.  Still- 
well,  54  Ohio  St.  541;  Willey  v.  Hodge,  104  Wis.  81.  See  also  Miller  v. 
Savage,  62  N.  J.  Eq.  746.  This  seems  to  have  been  overlooked  in  Atherton 
v.  Roche,  192  111.  252,  though  for  another  reason  relief  was  refused. 


644  MISTAKE. 

tary  deed  in  part  only  at  the  suit  of  the  grantor  if  he  is  content  that 
the  rest  should  stand  (m).u 

The  Court  will  exercise  caution  in  rectifying  a  voluntary  settle- 
ment at  the  instance  of  the  settlor  alone  and  on  his  own  evidence  (n). 

Rectification  as  alternative  to  cancellation.  An  agreement  will  not  be 
cancelled  at  the  suit  of  one  party  when  he  has  rejected  a  proper  offer 
to  rectify  it.  It  was  agreed  between  A.  and  B.  that  A.  should  give  B. 
the  exclusive  right  of  using  a  patent  in  certain  districts :  a  document 
was  executed  which  was  only  a  licence  from  A.  to  B.  Some  time 
afterwards  B.  complained  that  this  did  not  carry  out  the  intention, 
and  A.,  admitting  it,  offered  a  rectification.  B.  refused  this  and  sued 
for  cancellation.  Held  that  the  relief  prayed  for  could  not  be 
granted  (o). 

In  certain  cases  already  mentioned  for  another  purpose  (p)  the 
plaintiff  sought  to  reform  an  instrument,  and  satisfied  the  Court 
that  it  did  not  represent  what  was  his  own  intention  at  the  time  of 
execution,  but  failed  to  establish  that  the  other  party's  intention 
was  the  same;  and  the  Court  gave  the  defendant  his  choice  of 
520]  "having  *the  whole  contract  annulled,  or  else  of  taking  it  in 
the  form  which  the  plaintiff  intended  "  (q) .  The  anomalous  character 
of  these  cases  has  already  been  pointed  out. 

Disentailing  deeds.  The  Court  is  not  prevented  by  the  Fines  and 
Becoveries  Act,  ss.  40,  47,  from  exercising  its  ordinary  jurisdiction  to 
rectify  the  resettling  part  of  a  disentailing  assurance  (r). 

Agreement  executed  by  court.  An  agreement  cannot  be  rectified  after 
it  has  been  adjudicated  upon  by  a  competent  Court  and  performed 
under  the  direction  of  that  Court  (s). 

Mistake  in  wills.  It  is  sometimes  said,  but  inexactly,  that  in  certain 
cases  wills  may  be  rectified  on  the  ground  of  mistake  (t). 

(m)  Turnery.  Collins  (1871)  L.  R.  (1862)    30  Beav.   445,   31   L.   J.   Ch. 

V    Ch.   329,   342,   41    L.   J.   Ch.    558;  604;  Bloomer  v.  Spittle  (1872)   L.  R. 

and   see   per  Turner  L.J.  Bentley  v.  13   Eq.   427,   41   L.   J.  Ch.   369.     See 

Mackay   (1869)  4  D.  F.  &  J.  286.  May  v.  Piatt  [1900]   1  Ch.  616,  69  L. 

(n)  Bonhote  v.  Henderson  [-1895]  1  J.  Ch.  357. 

Ch.  742,  64  L.  J.  Ch.  556,  affd.  [1895]  (r)  Hall-Dare  v.  Hall-Dare  (1885) 

2  Ch.  202,  C.  A.  31  Ch.  Div.  251,  55  L.  J.  Ch.  154. 

(o)    haver  v.  Dennett    (1883)    109  («)    Caird  v.  Moss    (1886)    33   Ch. 

U.  S.  90.  Div.  22,  55  L.  J.  Ch.  854. 

(p)   Supra,  pp.  *476 — *478.  (t)    On  this  point,  see  the  Appen- 

(<7)   Harris  v.  Pepperell   (1867)   L.  dix,  Note  I. 
R.   5   Eq.   1,   5;    Garrard  v.  Frankel 

W  Mitchell  v.  Mitchell,  40  Ga.  11;  Deischer  v.  Price,  148  111.  383;  Purvines 
17.  Harrison,  151  111.  219;  Andrews  v.  Andrews,  12  Ind.  348;  Day  v.  Day,  84 
N.  C.  408. 


KECTIFICATION.  645 

Minor  points  of  procedure.  Actions  for  the  rectification  of  instruments 
must  be  assigned  to  the  Chancery  Division ;  but  where  a  statement  of 
defence  to  an  action  brought  in  another  Division  is  accompanied  by  a 
counterclaim  for  rectification,  this  is  not  a  sufficient  reason  for  trans- 
ferring the  action  (u). 

When  a  conveyance  is  rectified  the  order  of  the  Court  is  sufficient 
Avithout  a  new  deed.  A  copy  of  the  order  is  indorsed  on  the  deed 
which  is  to  be  rectified  (x). 

Consent  orders.  A  consent  order,  being  founded  on  agreement  of  the 
parties,  may  be  set  aside  for  mistake  if  the  facts  would  justify  setting 
aside  an  agreement  on  any  of  the  grounds  considered  in  the  foregoing 
discussion  (y).  So  where  the  mistake  as  to  the  effect  of  the  order  is 
on  one  side  only,  but  induced,  however  innocently,  by  the  act  of  the 
other  (z). 

(«)   Storey  v.  Waddle  (1879)  4  Q.  Lister  &  Son   [1895]   2   Ch.   273,   64 

B.  Div.  289.  L.  J.  Ch.  523,  C.  A. 

(x)   White  v.  White   (1872)   L.  R.  (z)  Wilding  v.  Sanderson  [1897]  2 

15  Eq.  247,  42  L.  J.  Ch.  288.  Ch.  534,  66  L.  J.  Ch.  684,  C.  A. 

(y)    Hudders field  Banking   Co.  v. 


646 


MISREPRESENTATION    AND    FRAUD. 


521] 


^CHAPTER  X. 
Misrepresentation  and  Fraud. 

Part  I. —  Generally. 


PAGE. 

Of  misrepresentation  in  general,  646 
As  to  innocent  statements, 
Deceit  in  relation  to  contract, 
Judicial    language    as    to    "  con- 
structive fraud  "  formerly  am- 
biguous, 


647 
647 


648 


PAGE. 

Estoppel,  648 

Representation   as   term   of   con- 
tract, 649 
The   doctrine  of  "  making  repre- 
sentations good,"  649 


Past  II. —  Misrepresentation  and  non-disclosure. 


No  general  positive  duty  of  dis- 
closure, 

But  such  duties  implied  in  cer- 
tain contracts, 

Classes  of  contracts  specially 
treated, 

Representations  amounting  to 
Warranty  or   Condition, 

Distinction  between  warranty 
and  condition  on  sale  of  goods, 

Cases  specially  treated : 

A.  Insurance, 
Marine  Insurance, 
Life  Insurance, 
Fire  Insurance, 

B.  Suretyship    and    Guaranty, 
Extent   of   creditor's   duty  to 

surety, 


C. 

Sales  of  land, 

602 

050 

Specific  performance  and  com- 
pensation:   three  classes  of 

051 

cases  distinguished, 
General  duty  of  vendor  to  de- 

003 

052 

scribe  property  correctly, 

009 

Wilde  v.  Gibson  considered, 

071 

052 

D. 

Family  Settlements, 

673 

E. 

Partnership,  contracts  to  take 

052 

shares    in    companies,    and 

contracts  of  promoters, 

074 

056 

The  Companies  Act,   1900, 

G70 

056 

Contract  to  marry  not  excep- 

657 

tional, 

077 

658 

Voluntary  gifts, 

078 

050 

660 


Part  III. —  Fraud  or  Deceit. 


Fraud  generally  but  not  always 
includes    misrepresentation, 

Right  of  rescission, 

Fraudulent  representation  or  con- 
cealment, 

"Active  concealment," 

Fraud  as  actionable  wrong:  reck- 
less ignorance  equivalent  to 
knowledge  of  untruth, 


078 
080 

680 

081 


682 


Representation  of  expectation  as 
present  fact,  683 

Special  rule  as  to  sales  by  auc- 
tion, 684 

Marriage  an  exception:  not 
avoided  by  fraud,  685 

But  knowledge  of  nature  of  cere- 
mony essential,  685 

Consent  of  third  person  procured 
by  fraud  is  voidable,  686 


Part  I. —  Generally. 

Misrepresentation  by  fraud  or  deceit.  The  consent  of  one  party  to  a 
contract  may  be  caused  by  a  misrepresentation  made  by  the  other  of 
some  matter,  such  that,  if  he  had  known  the  truth  concerning  it,  he 
would  not  have  entered  into  the  contract.    Putting  off  for  a  while  the 


GENERAL    PRINCIPLES.  647 

closer  definition  of  the  term,  we  see  at  once  that  there  is  a  broad  dis- 
tinction between  fraudulent  and  innocent  misrepresentation.  A  state- 
ment may  be  made  with  knowledge  of  its  falsehood  and  intent  to  mis- 
lead the  other  party,  or  with  reckless  ignorance  as  to  its  truth  or 
falsehood.  In  either  of  these  cases  the  making  of  such  a  statement  is 
morally  wrong  and  also  wrongful  in  a  legal  sense,  and  the  conduct 
of  the  party  making  it  is  called  Fraud  or  Deceit,  and  may  be  a  sub- 
stantive wrong  giving  rise  to  a  claim  for  redress  in  damages,  inde- 
pendent of  any  contract.  The  present  writer  has  endeavoured  to  dis- 
cuss this  aspect  of  it  elsewhere  (a). 

Innocent  statements.  On  the  other  hand  a  man  is  generally  safe,  for 
the  purpose  now  being  considered,  in  stating  as  true  that  which  he 
believes  to  be  true.  Still  more  is  he  safe  in  giving  his  opinion,  as  an 
opinion,  for  what  it  may  be  worth.  If  he  communicates  at  the  same 
time  the  grounds  on  which  he  formed  his  opinion,  or  reasonable 
means  of  access  to  those  grounds,  he  has  done  all  that  an  honest  man 
can  do. 

♦Deceit  in  relation  to  contract.  Whenever  consent  to  a  contract  is  [522 
obtained  by  deceit,  the  contract  is  voidable  at  the  option  of  the  party 
deceived,  subject  to  the  conditions  to  be  presently  mentioned.  The 
other  party  cannot  take  advantage  of  his  own  wrong.  We  shall  see 
that  the  working  of  this  rule  involves  careful  definition  and  distinc- 
tion; but  the  substance  of  the  law  now  rests  on  fairly  broad  and  simple 
grounds.  A  man  who  makes  positive  statements  to  the  intent  that 
ethers  should  act  upon  them  is  bound,  at  least,  to  state  only  what  he 
believes  to  be  true  (&). 

Constructive  or  legal  fraud.  The  combination  of  this  principle  with 
the  still  wider  principle  of  responsibility  for  the  acts  and  defaults  of 
agents  in  .the  course  of  their  employment  gives  rise  to  difficult  ques- 
tions, and  in  some  cases  to  consequences  of  apparent  hardship.  A 
man  who  had  no  fraudulent  intention,  or  who  has  not  even  been  per- 
sonally negligent,  may  be  liable  as  for  fraud.  The  ground  of  lia- 
bility in  such  cases  is  shortly  described  as  "  constructive  fraud,"  or 
perhaps  less  aptly  "legal  fraud."  The  word  "constructive"  nega- 
tives actual  fraud,  but  affirms  that  the  actual  conditions  will  have 

(a)  In   "The  Law   of   Torts,"    Ch.  there  is  no  general  duty  to  use  any 

viii.  degree   whatever   of   diligence  in   as- 

(6)    The   House  of  Lords   has  de-  eertaining  facts,  as  distinct  from  bare 

cided   in   Derry   v.   Peek    (1889)    14  belief,  in  making  positive  statements 

App.  Ca.  337,  58  L.  J.  Ch.  864,  that  intended  for  other  people  to  act  on. 


648  MISREPRESENTATION    AND    FRAUD. 

similar  consequences.  "  Constructive  possession "  signifies,  in  the 
same  way,  that  an  owner  out  of  possession  has  certain  advantages 
originally  given  only  to  possessors;  "constructive  delivery"  is  a  change 
of  legal  possession  without  change  of  physical  custody;  and  we  speak 
of  "  constructive  notice  "  where  the  existence  of  means  of  knowledge 
dispenses  with  the  proof  of  actual  knowledge. 

Former  vagueness  of  judicial  language.  It  must  be  remembered  that  for 
a  long  time  equity  judges  and  text  writers  thought  it  necessary  or 
prudent  for  the  support  of  a  beneficial  jurisdiction  to  employ 
the  term  "Fraud"  as  nomen  generalissimum  (c).  "Constructive 
523]  *fraud  "  was  made  to  include  almost  every  class  of  cases  in  which 
any  transaction  is  disallowed,  not  only  on  grounds  of  fair  dealing  be- 
tween the  parties,  but  on  grounds  of  public  policy  (d).  This  lax  and 
ambiguous  usage  of  the  word  was  confusing  in  the  books  and  not  free 
from  confusion  in  practice.  Plaintiffs  were  too  apt  to  make  un- 
founded charges  of  fraud  in  fact,  while  a  defendant  who  could  and 
did  indignantly  repel  such  charges  might  sometimes  divert  attention 
from  the  real  measure  of  his  duties.  Cases  in  which  there  was  actual 
fraud  or  culpable  recklessness  of  truth  were  not  sufficiently  distin- 
guished from  cases  in  which  there  was  only  a  failure  to  fulfil  a  special 
duty.  But  it  seems  needless  at  this  day  to  pursue  an  obsolete  verbal 
controversy. 

Estoppel.  Innocent  representations  are  not  necessarily  harmless  to 
the  person  making  them.  They  may  give  rise  to  liability,  or,  as  it  is 
more  exact  to  say,  representations  may  give  rise  to  liability  without 
any  need  for  determining  whether  they  are  innocent  or  otherwise  (a 
matter  sometimes  far  from  easy  to  determine)  (e),  in  various  ways. 
A  statement  made  on  quite  reasonable  grounds  may  nevertheless  be 
defamatory  and  actionable;  but  this  is  remote  from  our  subject.  The 
rule  of  estoppel  comes  nearer  to  it.  "  Where  one  by  his  words  or 
conduct  wilfully  causes  another  to  believe  the  existence  of  a  certain 
state  of  things  and  induces  him  to  act  on  that  belief,  so  as  to  alter 

(c)  James  L.J.  L.  R.  8  Ch.  at  p.  plained  of  was  occasioned  by  inten- 
124.  tional  fraud  or  by  mere  inadvertence 

(d)  See  Story's  Eq.  Jurisp.  ch.  vii.  or   mistake.     Indeed,   upon   the   very 

(e)  Cp.  Wasatch  Mining  Co.  v.  same  state  of  facts  an  intelligent 
Crescent  Mining  Co.  (1893)  148  U.  S.  man,  acting  deliberately,  might  well 
293,  298,  per  Cur.: —  "In  equitable  be  regarded  as  guilty  of  fraud,  and 
remedies  given  for  fraud,  accident  or  an  ignorant  and  inexperienced  person 
mistake,  it  is  the  facts  as  found  that  might  be  entitled  to  a  more  charita- 
give  the  right  to  relief,  and  it  is  ble  view.  Yet  the  injury  to  the  com- 
often  difficult  to  say,  upon  admitted  plainant  would  be  the  same  in  either 
facts,  whether  the  error  which  is  com-  case." 


REPRESENTATIONS    AND    ESTOPPKL.  649 

his  own  previous  position,  the  former  is  concluded  from  averring 
against  the  latter  a  different  state  of  things  as  existing  at  *the  [524 
same  time"  (/).  And  "whatever  a  man's  real  intention  may  be," 
lie  is  deemed  to  act  wilfully  "  if  he  so  conducts  himself  that  a  reason- 
able man  would  take  the  representation  to  be  true,  and  believe  that  it 
was  meant  that  he  should  act  upon  it  "  (g).  The  rule  is  not  a  rule  of 
substantive  law,  in  the  sense  that  it  does  not  declare  any  immediate 
right  or  claim.  It  is  a  rule  of  evidence,  but  capable  of  having  the 
gravest  effects  on  the  substantive  rights  of  parties. 

Representation  as  term  of  contract.  Again,  the  existence  of  a  certain 
state  of  facts,  or  the  truth  of  a  certain  assertion,  may  be  made  a  con- 
dition or  term  of  a  contract,  apart  from  any  question  of  good  faith, 
so  that  if  the  fact  be  otherwise  the  proposed  contract  may  never  be- 
come binding,  or  else  there  may  be  a  non-performance  or  breach  of 
the  contract,  with  the  usual  consequences.  Such  conditions  or  terms 
are  in  some  important  kinds  of  contracts  implied  by  special  rules  of 
law. 

Overlapping  of  distinct  grounds  of  liability.  It  will  be  observed  that 
these  possible  qualities  of  a  representation  are  not  mutually  exclusive. 
One  and  the  same  statement  may  well  be  a  deceit  and  a  breach  of  con- 
tract and  capable  of  operating  by  estoppel  (h). 

The  exploded  doctrine  of  "  making  representations  good."  During  a  cer- 
tain time  some  judges  in  the  Court  of  Chancery  seem  to  have  thought 
that  under  certain  conditions  a  representation  which  is  not  operative 
as-  part  of  a  contract,  or  by  way  of  estoppel,  or  as  amounting  to  an 
actionable  wrong,  may  still  be  binding  on  the  person  making  it.  But, 
when  these  three  effects  are  duly  considered,  it  appears  that  there  is  no 
other  way  in  which  it  can  be  binding. 

To  say  that  a  man  is  answerable  for  the  truth  of  his  statement  is  to 
say  that  it  is  his  legal  duty  to  see  that  it  *is  borne  out  or  to  [525 
make  compensation  for  its  not  being  borne  out.  We  need  not  here 
dwell  on  cases  of  deceit,  or  of  estoppel  independent  of  contract.  Then, 
if  the  statement  is  of  a  fact,  and  made  as  an  inducement  to  another 
person  to  enter  into  a  contract,  the  substance  of  the  duty  can  only  be 
that  the  person  making  the  statement  undertakes  that  it  is  true.     In 

(f)  Pickard  v.  Sears  (1837)  6  A.  (h)  See  per  Lord  Blackburn  in 
&  E.  469,  45  R.  R.  538.                                 Brownlie  v.  Campbell  (1880)   5  App. 

(g)  Freeman  v.  Cooke  (1848)  2  Ca.  925,  953.  A  hint  of  this  was 
Ex.  654,  18  Li.  J.  Ex.  114,  Pinch  Sel.  already  given  by  Parke  B.  in  Free- 
Ca.  483.  See  further  Bigelow  on  man  v.  Cooke,  last  note:  see  the  end 
Estoppel,  4th  ed.  1886,  ch.  xviii.  of  the  judgment. 


650  MISREPRESENTATION    AND    FRAUD. 

that  case  must  not  his  undertaking  be  a  contract  or  a  term  in  the 
contract  ?  For  if  not,  why  should  it  bind  him  ?  It  might  peradven- 
ture  work  an  estoppel  also,  but  for  all  practical  intents  the  estoppel  is 
merged  in  the  contract. 

Representation  of  the  future  operates  as  promise  if  at  all.        If,  on  the 

other  hand,  the  statement  is  of  something  to  be  performed  in  the 
future,  it  must  be  a  declaration  of  the  party's  intention  unless  it  is  a 
mere  expression  of  opinion.  But  a  declaration  of  intention  made  to 
another  person  in  order  to  be  acted  on  by  that  person  is  a  promise  or 
nothing.  And  if  the  promise  is  binding,  the  obligation  laid  upon  its 
utterer  is  an  obligation  by  way  of  contract  and  nothing  else :  promises 
de  futuro,  if  binding  at  all,  must  be  binding  as  contracts  (i) }  There 
is  no  middle  term  possible.  A  statement  of  opinion  or  expectation 
creates,  as  such,  no  duty.  If  capable  of  creating  any  duty,  it  is  a 
promise.  If  the  promise  is  enforceable,  it  is  a  contract.  The  de- 
scription of  promise  or  contract  in  a  cumbrous  and  inexact  manner 
will  not  create  a  new  head  of  law.  "  There  must  be  a  contract  in 
order  to  entitle  the  party  to  obtain  any  relief  "(Jc). 

Part  II. —  Misrepresentation  and  Non-disclosure. 

No  general  positive  duty  of  disclosure*  So  far  nothing  has  been  said 
of  any  affirmative  duty  to  tell  the  whole  truth  in  relation  to  the 
526]  matter  of  a  contract,  *as  distinct  from  the  negative  duty  of 
telling  nothing  but  the  truth,  or  at  least  what  one  honestly  holds  for 
truth.  In  general  one  is  not  bound  in  law  to  disclose  in  the  treaty 
for  a  contract  all  known  facts  which  may  be  material  to  the  other 
party's  judgment,  nor  even  to  remove  a  mistake  not  induced  by  one's 
own  act  (I).  Non-disclosure  of  a  material  fact  which  one  was  not 
specially  bound  to  disclose  is  no  defence  to  an  action  for  specific  per- 

(i)  Lord  Selborne,  Maddison  v.  Al-  so  much  for  any  probable  use  to  prac- 

derson  (1883)  8  App.  Ca.  at  p.  473.  titioners  as  for  the  sake  of  students 

( k )  Per  Cozens-Hardy  J.  Re  Fichus  who  may  still  be  perplexed  by  some 

[1900]    1   Ch.   331,  334.     Earlier  au-  of  these  cases.     No  such  doctrine,  I 

thorities   on   the   supposed   equitable  understand,  has  ever  become  current 

doctrine  of  "  making  representations  in  America. 

good"  are  discussed  in  the  Appendix,  (I)   Smith  v.  Hughes  (1871)  L.  R. 

Note  K,  which  is  now  preserved  not  6  Q.  B.  597,  40  L.  J.  Q.  B.  221. 

i  Comstock  v.  Herron,  55  Fed.  Rep.  807 ;  Brightman  v.  Hicks,  108  Mass. 
246;  Bragg  v.  Danielson,  141  Mass.  195;  Knowlton  i\  Keenan,  146  Mass.  86; 
Dawe  v.  Morris,  149  Mass.  188 ;  Prescott  r.  Jones,  69  N.  H.  305,  307 ;  White 
i'.  Ashton.  51  N.  Y.  280.  But  see  The  M.  F.  Parker,  88  Fed.  Rep.  853;  Beatty 
v.  Western  College,  177  111.  280;  Ricketts  r.  Scothorn,  57  Neb.  51,  where 
promises  were  enforced  on  the  ground  of  estoppel. 


SPECIAL    KINDS    OF    CONTRACTS.  651 

formance  (m).  And  if  one  party  asks  a  question  which  the  other 
is  not  bound  to  answer,  and  it  is  not  answered,  he  is  not  entitled  to 
treat  the  other's  silence  as  a  representation  (n) ;  that  is,  when  there 
is  really  nothing  beyond  silence.  A  very  slight  departure  from  passive 
acquiescence  might  be  enough  to  convert  a  lawful  though  scarcely 
laudable  reserve  into  an  actionable  deceit.  This  must  in  every  case 
be  a  question  of  fact. 

But  such  duties  are  implied  in  certain  contracts.  There  are  several  kinds 
of  contracts,  however ;  such  that  the  one  party  must  in  the  ordinary 
course  of  business  take  from  the  other,  wholly  or  to  a  great  extent,  the 
description  of  the  subject-matter  of  the  contract.  Now  the  parties 
may  if  they  please  make  any  part  of  that  description  a  term'  or  even 
a  preliminary  condition  (o)  of  the  contract.  Whether  they  have  done 
so  is  a  question  of  construction  (p).  But  therein  the  nature  of  the 
contract,  and  the  extent  to  which  an  erroneous  description  or  material 
omission  may  deprive  either  party  of  the  benefit  to  be  reasonably  ex- 
pected, will  justly  count  for  much.  More  than  this  *fixed  [527 
rules  on  this  point  have  been  established  as  to  particular  classes  of 
contracts,  and  in  some  of  these  they  go  to  the  extent  of  a  positive  duty 
of  disclosure;  not  only  that  all  information  given  shall  be  true,  but 
that  all  material  information  shall  be  fully  as  well  as  truly  given. 
The  character  and  stringency  of  the  duties  thus  imposed  varies  ac- 
cording to  the  specific  character  and  risks  of  the  contract.  It  will  be 
convenient  to  take  a  view  of  the  classes  of  contracts  thus  treated  be- 
fore we  examine  in  detail  the  universal  rules  as  to  Deceit.  These 
classes  are  believed  to  be  the  following.  It  is  by  no  means  certain, 
however,  that  the  same  principle  may  not  be  applicable  in  other 
forms.  The  development  of  modern  commerce  may  bring  into  promi- 
nence new  kinds  of  transactions  in  which  the  subject-matter  of  the 
contract,  or  a  material  part  of  it,  is  within  the  peculiar  knowledge  of 

Im)  Turner  v.  Green  [1895]  2  Ch.  (o)  In  such  a  ease  it  has  been  said 

205  64  L  J   Ch   539  that  there  is  not  u,  conditional  proini 

(n)    laidlaw   v.    Organ    (1817)    2  ise,  but  either  an  absolute  promise  or 

Wheat    178:   a  sale  of  tobacco;   the  no  promise   at  all:    Langdell,    §    28. 

buyer  knew,   and  the  seller   did  not,  But     see     Holmes,     "  The     Common 

that    peace    had   been    concluded   be-  Law,"  304.                              noml    ,, 

tween   the   U.    S.    and  England;    the  (p)    Behn  v.  Burnes s    (1863)    Ex . 

seller  asked  if  there  was  any  news  af-  Ch.  3  B.  &  S.  751    32  L  J  Q.  B.  204 ; 

fectine  the  market  price;   the  buyer  Bannerman  v.  White  (1861)   10  U  B. 

gave  no  answer,  nor  did  the  seller  in-  N.  S.  844,  31  L.  J.  C.  P.  28,  Finch 

sist  on  one.     Held  that  the  buyer's  Sel.  Ca.  473. 
silence  was  not  fraudulent.    Cp.  I.  C. 
A.  s.  17,  illustration  (d). 


652  MISREPRESENTATION    AND    FRAUD. 

one  party,  and  the  other  has  to  rely,  in  the  first  instance  at  all  events, 
on  the  correctness  of  the  statements  made  by  him. 

Contracts  specially  treated.      (A)    Insurance. 

(B)  Suretyship  and  guaranty  (as  to  certain  incidents  only). 

(C)  Sales  of  land. 

(D)  Family  settlements. 

(E)  The  contract  of  partnership,  and  thence,  by  analogy,  con- 
tracts to  take  shares  in  companies  and  contracts  of  promoters. 

We  proceed  to  follow  out  these  topics  in  order.  And  first  we  shall 
say  something  in  general  of  representations  which  amount  to  a  con- 
dition or  a  warranty. 

Representations  amounting  to  Warranty  or  Condition. 

Distinction  between  warranty  and  condition.  The  law  on  this  subject  is 
to  be  found  chiefly  in  the  decisions  on  the  sale  of  goods ;  the  principles 
however  are  of  general  importance,  and  not  without  analogies,  as  we 
shall  presently  see,  in  other  doctrines  formerly  treated  as  peculiar 
528]  to  equity.  We  therefore  mention  the  leading  *points  in  this 
place,  though  very  briefly.  In  the  first  place  a  buyer  has  a  right  to 
expect  a  merchantable  article  answering  the  description  in  the  con- 
tract (q)  f  but  this  is  not  on  the  ground  of  warranty,  but  because 
the  seller  does  not  fulfil  the  contract  by  giving  him  something  dif- 
ferent. "  If  a  man  offers  to  buy  peas  of  another  and  he  sends  him 
beans,  he  does  not  perform  his  contract;  but  that  is  not  a  warranty; 
there  is  no  warranty  that  he  should  sell  him  peas;  the  contract  is  to 
sell  peas,  and  if  he  sends  him  anything  else  in  their  stead  it  is  a 

(g)   Jones  v.  Just    (1868)   L.  R.  3        App.   Ca.   2S4,   56   L.   J.   Q.   B.   563; 
Q.   B.    197,   204,   37   L.  J.  Q,   B.  89;        Sale  of  Goods  Act,  1893,  ss.  13,  14. 
Drummond  v.   Van  Ingen    (1887)    12 

2Dushane  v.  Benedict,  120  U.  S.  630;  Babcoek  v.  Trice,  18  111.  420;  Doane 
v.  Dunham,  65  111.  512;  MeClung  v.  Kelly,  21  la.  508;  Warren  i\  Arctic  Ice 
Co.,  74  Me.  475;  Hastings  r.  Lovering,  2  Pick.  214;  Gossler  r.  Eagle  Sugar 
Refinery.  103  Mass.  331;  Gould  v.  Stein,  149  Mass.  570;  Murchie  r.  Cornell, 
155  Mass.  60;  Alden  v.  Hart,  161  Mass.  576;  Whitaker  v.  McCormick,  6  Mo. 
App.  114;  Howard  v.  Hoey,  23  Wend.  350;  Carleton  r.  Lombard,  149  X.  Y. 
137,  601;  Bierman  r.  City  Mills  Co.,  151  NT.  Y.  4S2 ;  Cullen  v.  Bimm,  37 
Ohio  St.  236,  240;  Jennings  v.  Gratz.  3  Rawle,  168;  Brantlev  r.  Thomas,  22 
Tex.  270;  Hood  i\  Bloch,  29  W.  Va.  244;  Morehouse  v.  Comstock,  42  Wis.  626. 
But  see  contra,  Byan  v.  Ulmer,  108  Pa.  332;  Ulmer  v.  Ryan.  137  Pa.  309. 
See  also  De  Witt  v.  Berry.  134  U.  S.  306 :  White  r.  Oakes,  88  Me.  367 ;  Ivans 
p.  Laury.  67  X.  J.  L.  153;  Waeber  r.  Talbot,  167  N.  Y.  48;  Sellers  v  Steven- 
son, 163  Pa.  262. 


CONDITION'S.  653 

Don-performance  of  it "  (r).3  So  that,  even  if  it  be  a  special  term  of 
the  contract  that  the  buyer  shall  not  refuse  to  accept  goods  bought  by 
sample  on  the  score  of  the  quality  not  being  equal  to  sample,  but  shall 
take  them  with  an  allowance,  he  is  not  bound  to  accept  goods  of  a  dif- 
ferent kind  (s).4  It  is  open  to  the  parties  to  add  to  the  ordinary 
description  of  the  thing  contracted  for  any  other  term  they  please, 
so  as  to  make  that  an  essential  part  of  the  contract :  a  term  so  added 
is  a  condition.    If  it  be  not  fulfilled,  the  buyer  is  not  bound  to  accept 

(r)  Lord  Abinger  C.  B.  in  Chanter  said  that   there   is   a   warranty  that 

v.  Hopkins  (1838)  4  M.  &  W.  at  p.  404,  the  goods  shall   be  merchantable  be- 

51    R.    E.    654,    655;    "as    sound   an  sides   the   condition   that   they    shall 

exposition  of  the  law  as  can  be,"  per  answer     the     description:     Mody    v. 

Martin  B.  Azemar  v.  C'asella   (1867)  Oregson    (1868)    L.  R.   4  Ex.  49,   38 

(Ex.  Ch.)  L.  R.  2  C.  P.  677,  679,  36  L.  J.  Ex.  12. 

L.  J.  C.  P.  263.     There  is  a  class  of  (s)  Azemar  v.  Casella  (1867)  L.  R. 

cases,   however,   in  which  it  is   com-  2  C.  P.  431,  in  Ex.  Ch.  677,  36  L.  J. 

monly,     and     perhaps     conveniently,  C.  P.  124,  263. 

3 "  In  strictness,  both  warranty  and  rescission  import  that  the  subject 
is  within  the  contract,  and  passed  to  the  purchaser  by  its  operation.  The 
rejection  of  articles  of  a  different  kind  or  description,  not  answering  to  the 
terms  of  the  contract,  does  not  stand  upon  the  ground  of  rescission ;  nor  does 
the  right  to  return  them  depend  upon  the  existence  of  a  warranty."  Mans- 
field v.  Trigg,  113  Mass.  350,  354,  355;  Pope  r.  Allis,  115  U.  S.  363;  Bagley 
v.  Cleveland  Rolling  Mill  Co.,  21  Fed.  Rep.  159,  162;  Coit  r.  Schwartz,  29 
Kan.  344,  347;  Fogg's  Admr.  v.  Rodgers,  84  Kv.  558;  Columbian,  etc.,  Co 
v.  Douglas,  84  Md.  44. 

But  it  is  generally  held  that  the  sale  of  goods  by  a  particular  description 
may  also  be  treated  as  a  warranty  that  they  answer  the  description.  Dushane 
r.  Benedict,  120  U.  S.  630;  Babcock  v.  Trice,  18  111.  420;  Morse  v.  Moore,  83 
Me.  473;  Osgood  r.  Lewis,  2  H.  &  G.  495;  Hastings  v.  Lovering,  2  Pick.  214; 
Wilson  v.  Lawrence,  139  Mass.  318;  Gould  r.  Stein,  149  Mass.  570;  Edgar 
v.  Breck,  172  Mass.  581;  Whitaker  v.  McCormick,  6  Mo.  App.  114;  Van  Wyck 
r.  Allen,  69  N.  Y.  61;  White  v.  Miller,  71  ST.  Y.  118;  Fairbank  Canning  Co. 
v.  Metzger,  118  N.  Y.  260;  Morse  V.  Union  Stock  Yard  Co.,  23  Oreg.  289; 
Borrekins  v.  Bevan,  3  Rawle,  23;  Hoffman  v.  Dixon,  105  Wis.  315. 

"  The  right  to  repudiate  the  purchase  for  the  non-conformity  of  the  article 
delivered,  to  the  description  under  which  it  was  sold,  is  universally  conceded. 
That  right  is  founded  on  the  engagement  of  the  vendor,  by  such  description, 
that  the  article  delivered  shall  correspond  with  the  description.  The  obligation 
rests  upon  the  contract.  Substantially  the  description  is  warranted.  It  will 
comport  with  sound  legal  principles  to  treat  such  engagements  as  conditions 
in  order  to  afford  the  purchaser  a  more  enlarged  remedy,  by  rescission,  than 
he  would  have  on  a  simple  warranty ;  but  when  his  situation  has  been  changed, 
and  the  remedy,  by  repudiation,  has  become  impossible,  no  reason  supported 
by  principle  can  be  adduced  why  he  should  not  have  upon  his  contract  such 
redress  as  is  practicable  under  the  circumstances.  In  that  situation  of  affairs 
the  only  available  means  of  redress  is  by  an  action  for  damages.  Whether  the 
action  shall  be  technically  considered  an  action  on  a  warranty,  or  an  action  for 
the  non-performance  of  a  contract,  is  entirely  immaterial."  Wolcott  r.  Mount, 
36  N.  J.  L.  262,  266,  267 ;  Bagley  v.  Cleveland  Rolling  Mill  Co.,  21  Fed.  Rep. 
159,  165. 

4  So,  if  goods  sold  are  to  be  taken  with  all  faults,  the  buyer  cannot  reject 
them  for  faults  not  inconsistent  with  their  identity  as  goods  of  the  kind 
described,  but  would  not  be  obliged  to  accept  them  if  of  a  different  kind. 
Whitney  v.  Boardman,  118  Mass.  242. 


654  MISREPRESENTATION    AND    FRAUD. 

the  goods.5  "  Condition  *'  is  purposely  not  denned  by  the  Sale  of 
G-oods  Act,  though  ."  warranty  "  is  (t).6  On  a  bargain  and  sale  of 
specific  goods  with  a  warranty  the  buyer  cannot  reject  them  (w),7  but 

(t)  Sect.  62,  and  see  App.  II.,  note  Q.  B.  477,  36  L.  J.  Q.  B.  270;  but  as 

(a),  in  Mr.  Chalmer's  edition  of  the  to  the  application  of  the  rule  in  the 

Act.  particular  case  see  Benjamin,  p.  936, 

(u)  Sale  of  Goods  Act,  s.  53;  Hey-  4th  ed. 
worth  v.  Hutchinson   (1867)   L.  R.  2 

B  On  a.  bargain  and  sale  of  a  specific  article,  described  as  a  certain  substance, 
the  purchaser  is  not  bound  to  accept,  or  keep  it,  if  it  turns  out  to  be  a  different 
substance.  Varley  v.  Whipp,  [1900]  1  Q.  B.  513;  Henshaw  v.  Bobbins,  9 
Met.  83;  Hawkins  v.  Pemberton,  51  N.  Y.  198. 

In  Lord  i.  Grow,  39  Pa.  88,  it  was  held  that  on  a  sale  of  personal  prop- 
erty on  inspection,  there  is  no  engagement  on  the  part  of  the  vendor  that  it  is 
of  the  kind  it  is  sold  for,  though  the  difference  in  species  be  not  discoverable 
by  inspection.  See  also  Mahaffey  v.  Ferguson,  150  Pa.  156.  Contra,  that 
there  is  an  implied  warranty  to  that  effect,  see  Fogg's  Admr.  v.  Rodgers,  84 
Ky.  558 ;  Henshaw  v.  Robbins,  9  Met.  83 ;  Wolcott  r.  Mount,  36  N.  J.  L.  262 ; 
38  N.  J.  L.  496;  Hawkins  r.  Pemberton,  .31  N.  Y.  198. 

So  it  is  held  that  there  is  an  implied  warranty  on  the  sale  of  a  note,  bill, 
bond,  or  certificate  of  stock,  that  it  is  a  genuine  obligation  of  the  sort  it 
purports  to  be  and  is  sold  for.  Utley  v.  Donaldson,  94  U.  S.  29 ;  Snyder  v. 
Reno,  38  la.  329;  Russell  v.  Critchfield,  75  la.  09;  Smith  v.  McNair,  19  Kan. 
330  >  Ware  v.  McCormack,  96  Ky.  139;  Merriam  v.  Wolcott,  3  Allen,  258; 
Worthington  i\  Cowles,  112  Mass.  30;  Ripley  v.  Case,  86  Mich.  261;  Brown 
v.  Ames,  59  Minn.  476;  Palmer  v.  Courtney,  32  Neb.  773;  Wood  v.  Sheldon, 
42  N.  J.  L.  421;  Frank  r.  Lanier,  91  N.  Y.  112;  Bank  r.  Gallaudet,  120  N.  Y. 
298;  McClure  v.  Central  Trust  Co.,  165  N.  Y.  108;  Dumont  v.  Williamson, 
18  Ohio  St.  515;  Aldrich  r.  Jackson,  5  R.  I.  218;  Giffert  r.  West,  33  Wis.  617. 
So  on  the  sale  of  a  judgment.  Flandrau  v.  Hammond,  148  N.  Y.  129.  Or 
mortgage,  Waller  v.  Staples,  107  la.  738. 

It  has  been  held  that  on  the  sale  of  a  negotiable  note  there  is  no  implied 
warranty  that  it  is  not  void  for  usury.  Littauer  v.  Goldman,  72  N.  Y.  506. 
But  the  correctness  of  this  decision  has  been  denied.  Meyer  v.  Richards,  163 
U.  S.  385,  411;  Wood  v.  Sheldon,  42  N.  J.  L.  421,  425;  Hannum  v.  Richardson, 
48  Vt.  508;  Daskam  v.  Ullman,  74  Wis.  474. 

There  is  no  warranty  on  the  sale  of  a  note  that  the  maker  is  solvent.  Hecht 
V.  Batcheller,  147  Mass.  335.  But  to  sell  a  note  with  knowledge  that  the 
maker  is  insolvent  and  to  conceal  that  fact  is  fraudulent.  Sebastian  May  Co. 
«.  Codd,  77  Md.  293;  Brown  r.  Montgomery,  20  N.  Y.  287;  Rothmiller  v. 
Stein,  143  N.  Y.  581,  592. 

On  a  sale  of  bonds  or  certificates  of  stock  purporting  to  be  issued  by  a  cor- 
poration, there  is  an  implied  warranty  that  they  are  genuine,  i.  e.,  not  for- 
geries, but  not  that  their  issuance  was  within  the  power  of  the  corporation, 
or  that  they  were  not  fraudulently  issued  by  its  officers.  Otis  v.  Cullum,  92 
U.  S.  447;  Harvey  v.  Dale,  96  Cal.  160;  First  Bank  r.  Drew,  191  111.  186;  Hig- 
gins  r.  Illinois  Bank,  193  111.  394;  Harter  v.  Elzroth,  111  Ind.  159;  Maze  r. 
Owingsville  Banking  Co.,  23  Ky.  L.  Rep.  574;  White  r.  Robinson,  50  Mich. 
73 ;  Bank  ) .  Kurtz.  99  Pa.  344.  But  see  as  to  the  law  of  Louisiana,  Meyer 
r.  Richards,  163  U.  S.  358.  One  who  presents  a  power  of  attorney  to  transfer 
stock,  upon  the  faith  of  which  the  corporation  issues  to  him  a  new  certificate 
of  stock,  impliedly  warrants  the  genuineness  of  the  power  of  attorney.  Oliver 
r.  Bank  of  England,  [1901]  1  Ch.  652,  [1902]  1  Ch.  610;  Railroad  Co.  v. 
Richardson,  135  Mass.  473. 

6  On  the  propriety  of  the  distinction  between  these  so-called  conditions  and 
warranties,  see  1  Col.  L.  Rev.  71;   16  Harv.  L.  Rev.  465. 

7  In  this  country  wherever  rescission  is  allowed  for  breach  of  warranty,  a 
fortiori,  the  buyer  may  refuse  to  receive  the  goods.  See  ante,  p.  607,  n.  67; 
also  16  Harv.  L.  Rev.  467. 


WARRANTY    AND    CONDITION.  655 

be  may  obtain  compensation  by  way  of  deduction  from  the  price,  or 
by  a  cross  action  (v).8 

*No  small  confusion  has  been  caused  by  the  use  of  the  word  [529 
warranty  where  the  thing  meant  in  the  first  instance  is  really  a  con-' 
dition.  The  proper  meaning  of  warranty  appears  to  be  an  agreement 
which  refers  to  the  subject-matter  of  a  contract,  but,  not  being  an 
essential  part  of  the  contract  either  by  the  nature  of  the  case  or  by  the 
agreement  of  the  parties,  is  "  collateral  to  the  main  purpose  of  such 
contract  "(x).  The  so-called  implied  warranties  of  quality,  fitness,  and 
condition  of  goods  sold  are  really  conditions ;  if  the  goods  tendered  in 
performance  of  the  contract  do  not  satisfy  those  conditions,  they  may 
be  rejected.  But  the  buyer  may,  if  he  thinks  fit,  accept  the  goods  and 
claim  damages  for  the  defect ;  in  other  words,  he  may  treat  the  breach 
of  condition  as  a  breach  of  warranty.  And  after  goods  have  been 
accepted,  or  the  property  in  specific  goods  contracted  for  has  passed  to 
the  buyer,  "  the  breach  of  any  condition  to  be  fulfilled  by  the  seller  can 
only  be  treated  as  a  breach  of  warranty,  and  not  as  a  ground  for  re- 
jecting the  goods  and  treating  the  Contract  as  repudiated,  unless  there 
be  a  term  of  the  contract,  express  or  implied,  to  that  effect"  (y)-9 
Conditions  of  this  kind  include  a  warranty  from  the  first,  and  may 
be  reduced  to  a  warranty  if  the  buyer  does  not  take  advantage  of 
them  in  time.  But  a  condition  and  a  warranty  are  not  therefore  the 
same  thing. 

Similar  questions  have  not  unfrequently  arisen  on  the  construction 
of  charter-parties.  Thus  in  Behn  v.  Burness  (z)10  it  was  agreed  that 
the  plaintiff's  ship  "  now  in  the  port  of  Amsterdam  "  should  go  to  an 
English  port  and  load  a  cargo  of  coals.  The  ship  did  not  in  fact 
reach  the  port  of  *  Amsterdam  till  some  days  after  the  date  of  [530 
the  contract.    It  was  held  that  the  description  of  her  as  in  the  port  of 

(v)  The  reduction  of  the  price  can  Q.    B.    204.      Was    the    charter-party 

be  only  the  actual  loss  of  value:  any  void   or   only  voidable?      See   0.   W. 

further  damages  must  be  the  subject  Holmes, 'The   Common   Law,   329.     I 

of   a    counter-claim     (under    the    old  submit    that    it    was    void,    but    the 

practice  a  separate  action)  :   Mondel  plaintiff    would   have   been    estopped 

•  v.  Steel  (1841)   8  M.  &  W.  858,  871,  from  showing  that  his  own  statement 

10  L.  J.  Ex.  426.  that  his  ship  was  in  the  port  of  Am- 

(x)  See  note  (t),  above.  sterdam  was  not  true:   cp.  pp.  *495, 

(y)  Sale  of  Goods  Act,  1893,  s.  11.  *496,  above. 

(z)    (1863)  3  B.  &  S.  751,  32  L.  J. 

8Gilmore  v.  Williams,  162  Mass.  352. 

9  See  4  Col.  L.  Rev.  195. 

w  See  alsp  Ollive  r.  Booker,  1  Ex.  416;  Bentsen  v.  Taylor,  [1893]  2  Q.  B. 
274;  Davison  V.  Von  Lingen,  113  U.  S.  40;  Gray  r.  Moore,  37  Fed.  Rep.  266; 
The  B.  F.  Bruce,  50  Fed.  Rep.  123:  Olsen  v.  Hunter-Benn,  54  Fed.  Rep.  530; 
Langdell,  Summary  of  Contracts,   §  28. 


656  MISREPRESENTATION    AND    FRAUD. 

Amsterdam  was  a  condition,  and  that  by  its  non-fulfilment  the  defend- 
ant was  discharged  from  his  obligation  to  load  a  cargo.  It  should  be 
remembered  that  the  use  of  the  word  "  warrant "  or  "  warranty  "  is 
uot  conclusive,  the  question  being  what  is  the  true  intention  of  the 
contract  as  a  whole  (a).  We  pass  on  to  the  contracts  above  men- 
tioned as  being  under  exceptional  rules. 


A.  Insurance. 

Concealment  of  material  facts  will  avoid  a  contract  of  insurance  of 
any  kind  (&). 

Marine  insurance:  duty  of  disclosure.  As  to  marine  insurance,  not 
only  misrepresentation  but  concealment  (c)  of  a  material  fact, 
"  though  made  without  any  fraudulent  intention,  vitiates  the 
policy"  (d),u  that  is,  makes  it  voidable  at  the  underwriter's  elec- 
tion (e). 

For  this  purpose  a  material  fact  does  not,  on  the  one  hand,  mean 
only  such  a  fact  as  is  "material  to  the  risks  considered  in  their  own 
nature  ";  nor  on  the  other  hand  does  it  include  everything  that  might 
influence  the  underwriter's  judgment :  the  rule  is  "  that  all  should  be 
disclosed  which  would  affect  the  judgment  of  a  rational  underwriter 
governing  himself  by  the  principles  and  calculations  on  which  under- 
531  ]  writers  do  in  practice  act"  (f).12  *The  only  exception  is  that 
the  insured  is  not  bound  to  communicate  anything  which  is  such 
matter  of  general  knowledge  that  he  is  entitled  to  assume  the  under- 

(o)  See  Barnard  v.  Faber  [1893]  1  (e)  See  Morrison  v.  Universal  Ma- 
il B.  340,  62  L.  J.  Q.  B.  159,  C.  A.  rine  Insurance  Co.  (1873)  L.  R.  8 
"A  stipulation  may  be  a  condition,  Ex.  197,  205,  42  L.  J.  Ex.  115. 
though  called  a  warranty  in  the  con-  (f)  Parsons  on  Insurance,  adopted, 
tract":  Sale  of  Goods  Act,  1893,  per  cur.  Ionides  v.  Pender  (1874) 
s.  11.  L.  R.  9  Q.  B.  at  p.  539.     What  falls 

(6)  Seatonv.  Heath  [1899]  1  Q.  B,  within  this  description  is  a  question 

782,   792,  68  L.  J.   Q.   B.  631,   C.  A.  of  fact:   Strilley  v.  Imperial  Marine 

(revd.  in  H.  L.  on  facts  only  [1900]  Insurance  Co.  (1876)   1  Q.  B.  D.  507, 

A.  C.  135,  69  L.  J.  Q.  B.  409).  45  L.  J.  Q.  B.  396.     And  the  policy 

(c)  This  is  the  usual  word,  but  will  be  vitiated  by  concealment  of  a 
non-disclosure  would  be  more  accu-  fact  material  to  guide  the  under- 
rate, writer's  judgment,  though  not  mate- 

(d)  Ionides  v.  Pender  (1874)  L.  B.  rial  to  the  risk  insured  against  in  it- 
9  Q.  B.  531,  537,  43  L.  J.  Q.  B.  227,  self:  Riraz  v.  Gerussi  (1880)  6  Q.  B. 
2  Wms.  Saund.  555-9.  Div.  222.  50  L.  J.  Q.  B.  176. 

li  McLanahan  r.  Insurance  Co.,  1  Pet.  170,  185;  Hart  r.  British  Ins.  Co., 
80  Cal.  440;  Fiske  r.  Insurance  Co.,  15  Pick.  310,  316;  Stocker  f.  Insurance 
Co.,  6  Mass.  220,  225;  Howell  r.  Insurance  Co.,  7  Ohio,  276,  282;  Insurance 
Co.  v.  Stoney,  Harper,  235. 

12  Insurance  Co.  r.  Ruden's  Admr.,  6  Cr.  338 ;  Rosenheim  r.  Insurance  Co., 
33  Mo.  230. 


LIFE    INSURANCE.  657 

writer  knows  it  already  (g)  :13  and  the  obligation  extends  not  only  to 
facts  actually  within  the  knowledge  of  the  assured,  but  to  facts  which 
in  the  ordinary  course  of  business  he  ought  to  know,  though  by  the 
fraud  or  negligence  of  his  agent  he  does  not  know  them  (h).u 

Life  insurance.  As  regards  life  insurance,  the  assured  is  bound  to 
disclose  all  material  facts  within  his  knowledge  affecting  the  life  on 
which  the  insurance  is  made  (i).  But  where  that  life  is  not  his  own 
but  some  other  person's,  that  person  is  not  his  agent,  and  if  "  the  life  " 
or  his  referees  make  false  statements  which  are  passed  on  in  good 
faith  by  the  assured,  their  falsehood  will  not  of  itself  avoid  the  con- 
tract (fc).15 

Practically  life  policies  are  almost  always  framed  with  some  sort  of 
express  reference  to  the  statements  made  by  the  assured  as  to  the 
health  and  circumstances  of  "  the  life."  Not  unfrequently  it  is  pro- 
fit) Morrison  v.  Universal  Marine  ing  from  the  particular  facts  so  with- 
Insurance  Co.  (1873)  L.  R.  8  Ex.  40,  held:  Stribley  v.  Imperial,  dc.  Co., 
42  L.  J.  Ex.  115.  note    (f),   supra:   but   see    per   Lord 

(h)  Proudfoot  v.  Montefiore  (1867)        Watson,  12  App.  Ca.  at  p.  540. 
L.   R.   2   Q.   B.   511,   36  L.   J.   Q.   B.  (i)     See    authorities    collected    in 

225.     This  applies  only  to  the  agent       London  Assurance  v.  Mansel    ( 1879 ) 
through    whom     the    insurance    was        11  Ch.  D.  363,  48  L.  J.  Ch.  331. 
actually  effected:   Blackburn  v.   Vig-  (fc)    Wheelton  v.  Hardisty,  8  E.  & 

ors  (1887)  12  App.  Ca.  531,  57  L.  J.  B.  232,  in  Ex.  Ch.  285,  26  L.  J.  Q.  B. 
Q.  B.  114;  unless  there  is  a  eontinu-  265,  27  ib.  241.  The  judges  appear 
ous  negotiation  by  more  than  one  to  have  been  inclined  to  restrict  the 
agent :  Blackburn  v.  Haslam  ( 1888 )  view  taken  before  and  since  of  the 
21  Q.  B.  D.  144,  57  L.  J.  Q.  B.  479.  uberrima  fides  generally  required  in 
Non-disclosure  by  an  agent  of  the  as-  this  contract,  unless  the  dicta  (which 
sured,  without  fraudulent  intention,  in  any  case  decide  nothing)  can  be 
has  been  held  to  avoid  the  policy  only  taken  as  limited  to  the  special  case 
to  the  extent  of  the  loss  or  risk  aris-       before  them. 

13  Ruggles  v.  Insurance  Co.,  4  Mason,  74,  80;  Kohne  r.  Insurance  Co.,  1 
Wash.  C.  C.  158;  Folsom  v.  Insurance  Co.,  8  Blatchf.  170;  De  Longuemere  t\ 
Insurance  Co.,  10  Johns.  120;   Insurance  Co.  v.  Stoney,  Harper,  235. 

The  assured's  failure  to  disclose  material  facts  is  not  excused  on  the  ground 
that  they  were  actually  known  to  the  underwriters  unless  the  knowledge  of 
the  latter  was  as  full  and  narticular  as  his  own  information.  Sun  Mutual 
Ins.  Co.  v.  Ocean  Ins.  Co.,  107  U.  S.  485 ;  Moses  r.  Insurance  Co.,  1  Wash. 
C.  C.  385. 

14  Cp.  Ruggles  v.  Insurance  Co.,  4  Mason,  74 ;  Insurance  Co.  v.  Ruggles, 
12  Wheat.  408;  Folsom  v.  Insurance  Co.,  8  Blatchf.  170.  In  Snow  v.  Insurance 
Co.,  61  N.  Y.  160,  it  was  held  that  a  person  at  Liverpool,  having  directed  a 
marine  insurance  to  be  procured  at  New  York,  and  having  subsequently  re- 
ceived intelligence  of  a  loss  before  his  order  was  executed,  was  not  bound 
to  transmit  news  of  the  loss,  or  countermand  the  order  by  ocean  telegraph, 
although  such  telegraph  was  then  "  used  by  merchants  and  others,  whenever 
in  their  judgment  the  interests  of  their  business  required  the  necessary  ex- 
pense," the  telegraph  having  been  in  operation  between  the  two  places  about 
three  months,  the  rates  being  high,  and  the  messages  both  ways  averaging  but 
about  twenty-nine  per  day.  Cp.  Proudfoot  r.  Montefiore,  supra.  See  also  aa 
to  non-disclosure  by  an  agent,  Hamblet  t\  City  Ins.  Co.,  36  Fed.  Rep.  118. 

is  See  also  Penn  Ins.  Co.  v.  Mechanics'  Bank,  72  Fed.  Rep.  413,  437. 

42 


658  MISREPRESENTATION    AND    FRAUD. 

vided  that  the  declaration  of  the  assured  shall  be  the  basis  of  the 
contract;  and  if  the  declaration  thus  made  part  of  the  contract  is  not 
532]  confined  to  the  belief  of  the  party,16  but  is  positive  and  Un- 
qualified, then  the  contract  is  avoided  by  any  part  of  the  statement 
being  in  fact  untrue  {I),11  though  not  to  the  knowledge  of  the  as- 
sured (m),18  or  by  the  concealment  of  any  material  fact  (re).19 

On  the  same  ground  the  grant  of  a  life  annuity  by  the  Commis- 
sioners for  the  Eeduction  of  the  National  Debt  was  set  aside  at  the 
suit  of  the  Crown,  the  age  of  the  life  having  been  mis-stated;  not  so 
much  on  the  ground  of  misrepresentation  simply,  as  because,  con- 
sidering the  statutory  powers  and  duties  of  the  commissioners,  "it 
was  an  essential  part  of  the  contract  itself  that  the  representation 
should  be  true  ''  (o). 

The  principles  applicable  to  insurance  against  accidents  are  the 
same  (p). 

Fire  insurance.  The  contract  of  fire  insurance  is  treated  in  some- 
what the  same  way  as  that  of  marine  insurance  (which  it  resembles 

(I)   It  need  not  be  shown  that  the  true,  so  misleading  as  it  stands  as  to 

particular   mis-statement   was   mate-  be  in  effect  untrue, 
rial:   Anderson  v.  Fitzgerald    (1853)  (o)    A.   G.  v.  Ray    (1874)    L.  R.  9 

4    H.    L.    C.    484.      Cp.    Thomson   v.  Ch.  397,   407,  4.3  L.  J.   Ch.  321,  per 

Weems  (1884)    (Sc.)  9  App.  Ca.  671.  Mellish  L.J.  expressly  comparing  the 

(m)    Macdonald  v.  Law  Union  In-  case  of  a  life  policy  where  the  rep- 

surance  Go.  (1874)  L.  R.  9  Q.  B.  328,  resentations  of  the  assured  are  made 

43  L.  J.  Q.  B.  131.  the  basis  of  the  contract. 

(»)    London  Assurance  v.   Mansel  (p)  Bawden  v.  London,  Edinburgh 

(1879)    11   Ch.  D.  363,  48  L.  J.  Ch.  &  Glasgow  Assce.  Co.  [1892]  2  Q.  B. 

331.     Probably  a  material  fact  means  534,  61  L.  J.  Q.  B.  792,  C.  A.,  a  curi- 

for  this  purpose  a  fact  such  that  its  ous    example    of    the   insurers    being 

concealment     makes     the     statement  bound  by  their  agent's  knowledge, 
actually    furnished,    though    literally 

ie  When  the  statement  is  confined  to  the  belief  of  the  party,  to  avoid  the 
policy  it  must  appear  that  it  was  untrue  in  some  respect  material  to  the  risk, 
and  that  he  knew  of  its  incorrectness.  Insurance -Co.  r.  France,  94  U.  S.  561; 
Insurance  Co.  v.  Gridley,  100  U.  H.  614;  Clapp  r.  Mass.  Benefit  Assn.,  146 
Mass.  519;  Louis  v.  Connecticut  Ins.  Co.,  58  N.  Y.  App.  Div.  137. 

17  Jeffries  v.  Insurance  Co.,  22  Wall.  47;  Insurance  Co.  v.  France,  91  U.  S. 
510;  Rice  v.  Fidelity  Co.,  103  Fed.  Rep.  427;  Alabama  Ins.  Co.  r.  Garner,  77 
Ala.  210;  Supreme  Lodge  v.  M'Laughlin,  108  111.  App.  85;  Cushman  v.  In- 
surance Co.,  63  N.  Y.  404.  And  see  Miller  r.  Insurance  Co.,  36  la.  216; 
Insurance  Co.  v.  Wise,  34  Md.  582;  Campbell  r.  Insurance  Co.,  98  Mass.  381; 
Rice  r.  Insurance  Co.,  17  Minn.  497. 

is  Campbell  v.  Insurance  Co.,  98  Mass.  381,  396;  Cushman  v.  Insurance  Co., 
63  N.  Y.  404,  409;  Insurance  Co.  i\  Pyle,  44  Ohio  St.  19;  Blooming  Grove  Ins. 
Co.  v.  McEnerncy,  102  Pa.  335;  Freedman  v.  Provident  Ins.  Co.,  182  Pa.  64; 
Powers  v.  Insurance  Co.,  50  Vt.  630. 

19  As  to  concealment,  see  Phenix  Ins.  Co.  v.  Raddin,  120  U.  S.  183,  192 
(disapproving  London  Assurance  v.  Mansel,  11  Ch.  D.  363)  ;  Equitable  Assur- 
ance Soc.  v.  McElroy,  83  Fed.  Rep.  631 :  Cable  r.  United  States  Ins.  Co.,  Ill 
Fed.  Rep.  19:  Mutual  Ins.  Co.  t.  Pearson,  114  Fed.  Rep.  395;  Insurance  Co. 
v.  Wise,  34  Md.  5S2  ;  Mallory  r.  Insurance  Co.,  47  N.  Y.  52. 


FIRE  INSURANCE.  659 

in  being  a  contract  of  indemnity)  (g),20  though  not  to  the  same  ex- 
tent.21 The  description  of  the  insured  premises  annexed  to  a  fire 
policy  amounts  to  a  warranty  (or  rather  a  condition)  that  at  the  date 
of  the  policy  the  premises  correspond  to  the  description,  or  at  least 
have  not  been  altered  so  as  to  increase  the  risk;  and  also  that  during 
the  time  specified  in  the  policy  the  assured  will  not  voluntarily  make 
any  alteration  in  them  such  as  to  increase  the  risk.  The  description 
must  be  the  basis  of  the  contract,  for  the  terms  of  insurance  can  be 
calculated  only  on  the  supposition  *that  the  description  in  the  [533 
policy  shall  remain  substantially  true  while  the  risk  is  running  (r).22 
Where  an  insurance  is  expressed  to  be  "  on  same  rate  terms  and  identi- 
cal interest "  as  other  existing  insurance  on  the  same  property,  this  is 
a  condition  of  the  contract  (s) . 

Description  of  goods  in  bill  of  lading,  &c.  The  effect  of  a  misdescription 
of  the  goods  in  a  bill  of  lading,  apart  from  any  fraudulent  intention, 
e.g.  of  avoiding  payment  of  a  higher  rate  of  freight,  is  not  precisely 
settled :  but  it  seems  that  at  most  it  would  limit  the  carrier's  liability 
to  what  the  value  of  the  goods  would  be  if  the  description  were  cor- 
rect (t).2i 

B.   Suretyship  and  Guaranty. 

Misrepresentation  avoids  contract.  The  contract  of  suretyship  "  is  one 
in  which  there  is  no  universal  obligation  to  make  disclosure  "  (u) ; 

{q)    Darrell  v.    Tibbitts    (1880)    5  (s)  And  the  use  of  the  word  "  war- 

Q.  B.  Div.  560,  50  L.  J.  Q.  B.  33.  ranted"    makes    no   difference:    Bar- 

(r)  Sillem  v.  Thornton  (1854)  3  E.  nard  v.  Faber  [1893]  1  Q.  B.  340,  62 
&  B.  868,  23  L.  J.  Q.  B.  362;  where  L.  J.  Q.  B.  159,.  C.  A. 
it  was  held  accordingly  that  the  ad-  (t)  Lebeau  v.  General  Steam  Navi- 
dition  of  a  third  story  to  a  house  gation  Co.  (1872)  L.  R.  8  C.  P.  88, 
described  as  being  of  two  stories  was  42  L.  J.  C.  P.  1.  The  point  decided 
of  a  material  alteration,  and  dis-  is  that  the'  addition  of  the  words 
charged  the  insurer :  and  see  further,  "  Weight,  value  and  contents  Un- 
as to  what  amounts  to  material  mis-  known  "  by  the  shipowner  is  an  en- 
description,  Forbes  &  Go's  claim  tire  waiver  of  the  description. 
(1875)  L.  E.  19  Eq.  485,  44  L.  J.  Ch.  (it)  Railton  v.  Mathews  (1844)  10 
761.  CI.  &  F.  934 ;  and  see  per  Romer  L.J. 

20  Insurance  Co.  v.  Hamill,  6  Gill,  87 ;  Wilson  t\  Hill,  3  Met.  66. 

21  Clark  v.  Insurance  Co.,  8  How.  235,  249 ;  Beebe  r.  Insurance  Co.,  25  Conn. 
51;  Insurance  Co.  v.  Bachler,  44  Neb.  549;  Burritt  v.  Insurance  Co.,  5 
Hill,  188;  Armour  v.  Insurance  Co.,  90  N.  Y.  450,  456;  Insurance  Co.  v. 
Harmer,  2  Ohio  St.  452,  462 ;  Arthur  v.  Palatine  Ins.  Co.,  35  Oreg.  27 ;  Niagara 
Ins.  Co.  v.  Miller,  120  Pa.  504. 

22  Stetson  v.  Insurance  Co.,  4  Mass.  330,  337;  Chase  v.  Insurance  Co.,  20 
N.  Y.  52 ;  Insurance  Co.  v.  Horan,  89  Pa.  438.  It  is  well  settled  that  conceal- 
ment or  fraud  on  the  part  of  the  shipper  which  deceives  the  carrier  as  to 
the  true  value  of  the  goods  limits  the  carrier's  liability.  5  Am.  &  Eng.  Encyc. 
(2d  ed.),  345. 

23  See  Thoron  v.  The  Mississippi,  76  Fed.  Rep.  375;  Savannah  Co.  v.  Col- 
lins, 77  Ga.  376;  Fassett  r.  Ruark,  3  La.  Ann.  694. 


660  MISREPRESENTATION    AND    FRAUD. 

but  it  has  peculiar  incidents  after  it  is  formed,  which  bring  it  within 
our  present  scope.  A  surety  is  released  from  his  obligation  by  any 
misrepresentation,  or  concealment  amounting  to  misrepresentation,  of 
a  material  fact  on  the  part  of  the  creditor  (x).2i  The  language  used 
in  different  cases  is  hardly  consistent:  the  later  decisions  establish 
however  that  the  rule  is  not  parallel  to  that  of  marine  insurance.  The 
creditor  is  not  bound  to  volunteer  information  as  to  the  general  credit 
of  the  debtor  or  anything  else  which  is  not  part  of  the  transaction 
itself  to  which  the  suretyship  relates:  and  on  this  point  there  is  no 
534]  difference  between  *law  and  equity  (j/).25 

Surety  is  entitled  to  know  real  nature  of  transaction.  But  the  surety  is 
entitled  to  know  the  real  nature  of  the  transaction  he  guarantees  and 
of  the  liability  he  is  undertaking :  and  he  generally  and  naturally  looks 
to  the  creditor  for  information  on  this  point,  although  he  usually  is 
acting  at  the  debtor's  request  and  as  his  friend,  and  so  relies  on  him 
for  collateral  information  as  to  general  credit  and  the  like.  In  that 
case  the  creditor's  description  of  the  transaction  amounts  to,  or  is  at 
least  evidence  of,  a  representation  that  there  is  nothing  further  that 
might  not  naturally  be  expected  to  take  place  between  the  parties  to 
a  transaction  such  as  described.  Whether  a  circumstance  not  dis- 
closed is  such  that  by  implication  it  is  represented  not  to  exist  depends 
on  the  nature  of  the  transaction  and  is  generally  a  question  of  fact  (2). 
Thus  where  the  suretyship  was  for  a  cash  credit  opened  with  the  prin- 
cipal debtor  by  a  bank,  and  the  cash  credit  was  in  fact  applied  to  pay 
off  an  old  debt  to  the  bank,  the  House  of  Lords  held  that  the  bank  was 
not  bound  to  disclose  this,  no  actual  agreement  being  alleged  or  shown 
that  the  money  should  be  so  applied,  and  the  thing  being  one  which 

Seaton  v.  Heath  [1899]   1  Q.  B.  782,  North  British  Insurance  Co.  v.  Lloyd 

792.  (1854)    10  Ex.  523,  24  L.  J.  Ex.  U. 

(%)    Fry  J.  Davies  v.  London  and  (2)   Lee  v.  Jones   (1863)    14  C.  B. 

Provincial     Marine     Insurance     Go.  N.  S.  386,  in  Ex.  Ch.  17  C.  B.  N.  S. 

(1878)   8  Ch.  D.  at  p.  475,  47  L.  J.  482,   503,    34   L.   J.    C.    P.    131,    138, 

Ch.  511.  which   may   be    taken    as   a   judicial 

(y)    Pledge  v.  Buss   (1860)   Johns.  commentary    on    the    rule    given    in 

663;  Wythes  v.  Labouchere  (1858-9)  Hamilton  v.  Watson  (1845)   12  CI.  & 

3    De   G.    &   J.   593,    609,    approving  F.  109. 

24  White  v.  Life  Assn.  of  America,  63  Ala.  419,  424;  Doughty  v.  Savage,  28 
Conn.  140;  Graves  v.  Bank,  10  Bush,  23. 

25Magee  r.  Insurance  Co.,  92  U.  S.  93;  Van  Arsdale  v.  Howard,  5  Ala.  596; 
Wilkerson  r.  Crescent  Ins.  Co.,  64  Ark.  80;  Ham  r.  Greve,  34  Ind.  18;  Bank 
v.  Anderson  Co.,  65  la.  692 ;  Bank  v.  Stevens,  39  Me.  532 ;  Harrison  r.  In- 
surance Co.,  8  Mo.  37,  40,  41 ;  Sooy  ads.  State,  39  N.  J.  L.  135,  143 ;  Bank  v. 
Brownell,  9  R.  I.  168;  Warren  v.  Branch,  15  W.  Va.  21,  35.  See  Ames's  Cas. 
Suretyship,  283,  n.  1. 


SURETYSHIP    AND    GUARANTY.  661 

the  surety  might  naturally  expect  to  happen  (a)  .26  So  the  creditor  is 
not  bound  to  tell  the  surety  that  the  proposed  guaranty  is  to  be  sub- 
stituted for  a  previous  one  given  by  another  person  (&).  But  the 
surety  is  not  liable  if  there  is  a  secret  agreement  or  arrangement 
which  substantially  varies  the  nature  of  the  transaction  or  of  the 
liability  to  be  undertaken :  as  where  the  surety  guarantees  payment  for 
goods  to  be  sold  to  the  principal  debtor,  but  the  real  bargain,  con- 
cealed from  the  surety,  is  that  the  debtor  shall  pay  for  the  goods  a 
nominal  price,  exceeding  the  market  *price,  and  the  excess  shall  [535 
be  applied  in  liquidation  of  an  old  debt  (c)  :27  or  where  the  loan  to  be 
guaranteed  is  obtained  not  in  the  ordinary  way,  but  by  an  advance  of 
trust  funds  of  which  the  principal  debtor  himself  is  a  trustee  (d). 
In  Lee  v.  Jones  (e)  there  was  a  continuing  guaranty  of  an  agent's 
liabilities  in  account  with  his  employers.  He  was  in  fact  already 
indebted  to  them  beyond  the  whole  amount  guaranteed  by  the  surety's 
agreement,  which  was  so  worded  as  to  cover  existing  as  well  as  future 
liabilities.  The  surety  was  not  informed  of  this,  and  the  recitals  in 
the  agreement,  though  not  positively  false,  were  of  a  misleading  and 
dissembling  character.  The  majority  of  the  Court  of  Exchequer 
Chamber  held  that  there  was  evidence  of  "  studied  effort  to  conceal  the 
truth  "  amounting  to  fraud.  And  on  the  whole  it  appears  from  this 
case  and  Eailton  v.  Mathews  (f)  that  the  concealment  from  the  surety 
of  previous  defaults  of  the  principal  debtor,  when  there  is  a  con- 
tinuing guaranty  of  conduct  or  solvency,  is  in  itself  evidence  of 
fraud.38     Where  a  person  has  become  a  surety  on  the  faith  of  the 

(a)  Hamilton  v.  Watson  (1845)   12  (d)  Squire  v.  WHtton  (1848)   1  H. 

CI.    &    F.    109;    ace.   Pledge  v.   Buss  L.  C.  333,  decided  however  chiefly  on 

(1860)   Johns.  663.  the  broader  ground  that  there  cannot 

( 6 )  North  British  Insurance  Go.  v.  be  a  contract  of  suretyship  in  blank, 

Lloyd  (1854)   10  Ex.  523,  24  L.  J.  Ex.  for  no  creditor   was   ever   named  or 

14.  specified  to  the  surety. 

(c)   Pidcock  v.  Bishop  (1825)   3  B.  (e)    (1863)   17  C.  B.  N.  S.  482,  34 

&  C.  605,  27  R.  R.  430;  I.  O.  A.  §  143,  L.  J.  Ex.  131. 
illust.  6.  (f)    (1844)   10  CI.  &  F.  934. 

26  Cp.  United  States  v.  American  Bonding  Co.,  89  Fed.  Rep.  921,  925;  Gano 
v.  Farmers'  Bank,  20  Ky.  L.  Rep.  197. 

27Crossley  r.  Stanley,  112  la.  24. 

28 National  Bank  v.  Fidelity  Co.,  89  Fed.  Rep.  819  (C.  C.  A.);  Saint  v. 
Wheeler,  etc.,  Co.,  95  Ala.  362;  Wilson  v.  Monticello,  85  Ind.  10;  Bellevue 
Assoc,  v.  Jeckel,  20  Ky.  L.  Rep.  460;  Deposit  Bank  v.  Hearne,  20  Ky.  L. 
Rep.  1019;  Bank  v.  Cooper,  36  Me.  179;  39  Me.  542;  Mtna.  Ins.  Co.  v.  Fowler. 
108  Mich.  557;  Capital  Ins.  Co.  v.  Watson,  76  Minn.  387;  Harrison  v.  Insur- 
ance Co.,  8  Mo.  App.  37;  Third  Bank  v.  Owen,  101  Mo.  558;  Sooy  ads.  State, 
39  N.  J.  L.  135;  Newark  v.  Stout,  52  N.  J.  L.  35;  Dinsmore  r.  Tidball,  34 
Ohio  St.  411;  Smith  v.  Josselyn,  40  Ohio  St.  409;  Lauer  Brewing  Co.  i:.  Riley, 
195  Pa.  449;  Railroad  Co.  v.  Ling,  18  S.  C.  116;  Connecticut  Ins.  Co.  v.  Chase, 
72  Vt.  176.  Cp.  Etting  i\  Bank.  11  Wheat.  59;  Roper  v.  Trustees,  91  111.  518; 
Insurance  Co.  v.  Holway,  55  la.  571;  Cumberland  Assoc,  v.  Gibbs,  119  Mich. 


662  MISREPRESENTATION    AND    FRAUD. 

creditor's  representation  that  another  will  become  co-surety,  he  is  not 
bound  if  that  other  person  does  not  join;29  and  in  equity  it  makes  no 
difference  that  the  guaranty  was  under  seal  (g).  Where  a  guaranty 
was  given  to  certain  judgment  creditors  in  consideration  of  their 
postponing  a  sale  under  an  execution  already  issued  against  the  prin- 
cipal debtor,  but  in  fact  they  did  not  stop  the  sale,  being  unable  to  do 
so  without  the  consent  of  other  persons  interested,  it  was  held  that 
536]  the  guaranty  *was  inoperative  (h)  ;  but  perhaps  this  case  is 
best  accounted  for  as  one  of  simple  failure  of  consideration;  for  the 
consideration  for  the  guaranty  was  not  merely  the  credit  given  to  the 
principal  debtor,  but  the  immediate  stopping  of  the  sale. 

Beyond  this  no  positive  duty  to  give  information.  The  authorities,  taken 
as  a  whole,  establish  that  as  between  creditor  and  surety  there  is  in 
point  of  law  no  positive  duty  to  give  information  as  to  the  relations 
between  the  creditor  and  the  principal  debtor,  but  the  surety  is  dis- 
charged if  there  is  actual  misrepresentation,  and  that  silence  may  in 
a  particular  case  be  equivalent  to  an  actual  representation,  whether  it 
is  so  being  a  question  of  fact  (i).  So  far  as  these  rules  attach  special 
duties  to  the  creditor  they  do  not  apply  to  a  mere  contract  of  indem- 
nity (&). 

C.  Sales  of  Land. 

Contract  voidable  for  material  misdescription.  A  misdescription  mate- 
rially affecting  the  value,  title,  or  character  of  the  property  sold  will 
make  the  contract  voidable  at  the  purchaser's  option,  and  this  not- 

(g)  Rice  v.  Gordon  (1847)  11  Beav.  143:       "Any    guarantee    which    the 

265;  Evans  v.  Brcmridge  (1856)  2  K.  creditor   has    obtained    by   means    of 

&  J.  174,  8  D.  M.  &G.  100,  25  L.  J.  Ch.  keeping  silence  as  to  a  material  cir- 

334.     The  rule  does  not  apply  if  the  cumstance  is  invalid  "  is  probably  not 

surety's   remedies   are  not  really  di-  intended   to   go   beyond   the   English 

minished:    Cooper   v.    Evans    (1867)  law. 

L.  R.  4  Eq.  45,  36  L.  J.  Ch.  431,  where  (/,-)  Way  v.  Hearn  (1862)   13  C.  B. 

the  principal  debtor  had  not  executed  N.  S.  292,  32  L.  J.  C.  P.  34 ;  but  the 

the   bond,    but   had   executed   a   sep-  point  of  that  case  is  rather  that  there 

arate  agreement  under  seal.  was  no  misrepresentation  dans  locum 

(h)   Cooper  v.  Joel  (1859)   1  D.  F.  contractui.       Cp.     Beaton    v.     Heath 

&  J.  240.  (1899)    [1900]  A.  C.  135,  69  L.  J.  Q. 

(i)    Cp.  I.   C.  A.  ss.   142-144.     S.  B.  409. 

318;  Howe  Machine  Co.  v.  Farrington,  82  N.  Y.  121 ;  Bostwick  v.  Van  Voorhis, 
91  N.  Y.  353;  Hallettsville  i\  Long,  11  Tex.  Civ.  App.  ISO;  Insurance  Co.  v. 
Mabbett,  18  Wis.  667. 

29  Jordan  v.  Loftin,  13  Ala.  547;  Deering  Co.  v.  Peugh,  17  Ind.  App.  400; 
Johnston  v.  Cole,  102  la.  109;  Goff  i .  Bankston,  35  Miss.  518;  Hill  v.  Sweetser, 
5  N.  H.  168.  Cp.  Moss  v.  Riddle,  5  Cr.  351 ;  Twenty-sixth  Ward  Bank  v.  Stearns, 
148  N.  Y.  515;  Cowan  r.  Baird,  77  N.  C.  201;  Miller  r.  Stem,  12  Pa.  383; 
State  v.  Welbes,  12  S.  Dak.  339;  Smith  v.  Doak,  3  Tex.  215;  New  Home  Co. 
v.  Simon,  104  Wis.  120. 


sales  or  land;  compensation.  663 

withstanding  special  conditions  of  sale  providing  that  errors  of  de- 
scription shall  be  matter  for  compensation  only.30  Flight  v.  Booth  (I) 
is  a  leading  case  on  this  subject.  The  contract  was  for  the  sale  of 
leasehold  property,  and  the  lease  imposed  restrictions  against  carrying 
on  several  trades,  of  which  the  particulars  of  sale  named  only  a  few : 
it  was  held  that  the  purchaser  might  rescind  the  contract  and  recover 
back  his  deposit.  Tindal  C.J.  put  the  reason  of  the  case  on  exactly 
the  same  grounds  which,  as  we  shall  imme*diately  see,  have  [537 
been  relied  on  in  like  cases  by  courts  of  equity. 

"  Where  the  misdescription,  although  not  proceeding  from  fraud,  is  in, 
a  material  and  substantial  point,  so  far  affecting  the  subject-matter  of  the 
contract  that  it  may  reasonably  be  supposed  that  but  for  such  misdescrip-' 
tion  the  purchaser  might  riever  have  entered  into  the  contract  at  all,  in 
such  case  the  contract  is  avoided  altogether,  and  the  purchaser  is  not 
bound  to  i-esort  to  the  clause  of  compensation.  Under  such  a  state  of  facts 
the  purchaser  may  be  considered  as  not  having  purchased  the  thing  which  was 
really  the  subject  of  the  sale." 

The  rule  so  stated  has  been  unanimously  approved  in  the  Court  of 
Appeal  (m). 

So  in  Phillips  v.  Caldcleugh  (n),  where  the  contract  was  for  the 
sale  of  "  a  freehold  residence " — which  means  free  of  all  incum- 
brances (o)31 — and  it  appeared  that  the  property  was  subject  to  re- 
strictive covenants  of  some  kind,  the  purchaser  was  held  entitled  to 
rescind,  though  the  covenants  were  in  a  deed  prior  to  that  fixed  by  the 
contract  as  the  commencement  of  the  title. 

Specific  performance  and  compensation.  Questions  of  this  kind  arise 
chiefly  in  suits  for  specific  performance  between  vendors  and  pur- 
chasers of  real  estate,  when  it  is  found  that  the  actual  tenure,  quan- 
tity, or  description  of  the  property  varies  from  that  which  was  stated 
in  the  contract.  The  effect  of  the  conditions  of  sale  in  the  particular 
instance  has  almost  always  to  be  considered,  and  the  result  of  the 

(I)    (1834)   1  Bing.  N.  C.  370,  377,  (n)    (1868)  L.  R.  4  Q.  B.  159,  161, 

41  R.  R.  599,  604.  38  L.  J.  Q.  B.  68. 

(m)  Re  Fwweett  and  Holmes  (1889)  (o)     Halsey    v.    Grant     (1806)     13 

42  Ch.  Div.  150,  58  L.  J.  Ch.  763.  Ves.  73,  77,  9  R.  R.  143,  145. 

30  Stevens  v.  Giddings,  45  Conn.  507;  Keating  v.  Price,  58  Md.  532;  Spurr 
v.  Benedict,  99  Mass.  463;  King  v.  Knapp,  59  N.  Y.  462;  Mulvey  V.  King, 
39  Ohio  St.  491. 

31  "  In  a  contract  for  the  purchase  of  a  fee  simple  estate,  if  no  incumbrance 
be  communicated  to  the  purchaser,  or  be  known  to  him  to  exist,  he  must 
suppose  himself  to  purchase  an  unincumbered  estate."  Garnett  r.  Macon,  6 
Call,  308,  368;  Washington  v.  Ogden,  1  Black,  450;  Murphin  v.  Scovell,  41 
Minn.  262 ;  Christian  v.  Cabell,  22  Gratt.  82 ;  Spencer  v.  Sandusky,  46  W.  Va. 
582.  So  also  on  a  sale  of  stock.  McClure  v.  Central  Trust  Co.,  165  N.  Y. 
108. 


664  MISREPRESENTATION    AND    FRAUD. 

variance  may  be  very  different  according  to  these,  and  according  to  the 
amount  and  importance  of  the  discrepance  between  the  description 
and  the  fact.  A  complete  or  nearly  complete  system  of  rules  has 
been  established  by  the  decisions. 

(i.)  Where  variance  not  substantial  contract  enforceable,  but  with  com- 
pensation, at  suit  of  either  party.  "  If  the  failure  is  not  substantial, 
equity  will  interfere "  and  enforce  the  contract  at  the  instance  of 
either  party  with  proper  compensation  (o).32  The  purchaser, 
538  ]  "  if  *he  gets  substantially  that  for  which  he  bargains,  must 
take  a  compensation  for  a  deficiency  in  the  value''  (p)33  Here  the 
contract  is  valid  and  binding  on  both  parties,  and  the  case  is  analo- 
gous to  a  sale  of  specific  goods  with  a  collateral  warranty. 

(ii.)  Where  variance  substantial  and  capable  of  pecuniary  estimation, 
party  misled  may  rescind  contract,  or  enforce  it  with  compensation.  There 
is  a  second  class  of  cases  in  which  the  contract  is  voidable  at  the  option 
of  the  purchaser,  so  that  he  cannot  be  forced  to  complete  even  with 
compensation  at  the  suit  of  the  vendor,  but  may  elect  either  to  be 
released  from  his  bargain  or  to  perform  it  with  compensation.  "  Gen- 
erally speaking,  every  purchaser  has  a  right  to  take  what  he  can  get, 
with  compensation  for  what  he  cannot  get"  (q),  even  where  he  is  not 
bound  to  accept  what  the  other  has  to  give  him  (r)  .3i 

(o)    Halsey    v.    Grant    (1806)     13  the   fee   he   cannot   compel   the    pur- 

Ves.  73,  77,  9  R.  R.  143,  145.  chaser  to  take,  but  the  purchaser  can 

(p)    Dyer  v.   Hargrave    (1805)    10  compel  him  to  convey  the  term."    Per 

Ves.  506,  508,  8  R.  R.  36,  37.  Lord  Eldon,  Wood  v.  Griffith   (1818) 

(q)   Hughes  v.  Jones   (1861)   3.  D.  1    Swanst.    at    p.    54,    18    R.    R.    27 

F.   &   J.    307,   315,   31    L.   J.   Ch.    83;  (though   in   this   case   not  with   com- 

Leyland  v.   Illingworth    (1860)    2  D.  pensation,   see   next   page):    and   see 

F.  &  J.  248,  252.  Mortlock   v.   Buller    (1804)     10   Ves. 

()•)    "If   a   person   possessed  of   a  292,  315,  7  R.  R.  417. 
term  for   100  years  contracts  to  sell 

32  But  in  Silliman  r.  Gillespie,  48  W.  Va.  374,  377,  where  there  was  a 
mistake  as  to  the  boundaries  of  the  land,  the  court  said :  "  If  the  vendor  does 
not  want  the  sale  rescinded,  he  can  agree  to  take  a  less  purchase  price  and 
thus  make  a  binding  contract,  but  the  court  cannot  compel  him  to  do  so. 
Pratt  v.  Bowman,  37  W.  Va.  715,  723." 

33  Hepburn  v.  Auld.  5  Cr.  262,  278;  Robbins  v.  Martin,  43  La.  Ann.  488; 
Foley  v.  Crow,  37  Md.  51;  King  v.  Bardeau,  6  Johns.  Ch.  38;  Winne  v. 
Reynolds,  6  Paige,  407,  412;  Stoddart  r.  Smith.  5  Binney,  355,  362,  363; 
Creigh's  Admr.  r.  Boggs,  19  W.  Va.  240,  252.  See  further,  Ames's  Cas.  Eq. 
Juris.,  Ch.  2.   §  V. 

34  Bell  v.  Thompson,  34  Ala.  633;  Marshall  v.  Caldwell,  41  Cal.  611;  Lan- 
caster P.  Roberts,  144  111.  213;  Jones  v.  Shackelford,  2  Bibb,  410;  Wilson  v. 
Cox.  50  Miss.  133;  Luckett  r.  Williamson,  31  Mo.  54;  Keator  v.  Brown,  57 
N.  J.  Eq.  600;  Voorhees  r.  De  Myer,  3  Sandf.  Ch.  614;  Jacobs  v,  Locke,  2 
Ired.  Eq.  286;  Erwin  v.  Myers,  46  Pa.  96;  Harbors  v.  Gadsden,  6  Rich.  Eq. 
284;  Heirs  of  Roberts  v.  Lc-vejoy,  60  Tex.  253;  Clarke  v.  Reins,  12  Gratt.  98, 
111. 


SALES    OF    LAND;    COMPENSATION.  665 

However  a  purchaser's  conduct  may  amount  to  an  affirmation  of  the 
contract  and  so  deprive  him  of  the  right  to  rescind,  but  without  affect- 
ing the  right  to  compensation  (s) ;  again,  special  conditions  may  ex- 
clude the  right  to  insist  on  compensation  and  leave  only  the  right  to 
rescind  (t). 

Under  this  head  fall  cases  of  misdescription  affecting  the  value  of 
the  property,  such  as  a  statement  of  the  existence  of  tenancies,  not 
showing  that  they  are  under  leases  for  *lives  at  a  low  rent  (u)  ;  [539 
or  an  unqualified  statement  of  a  recent  occupation  at  a  certain  rent, 
the  letting  value  of  the  property  having  been  meanwhile  ascertained  to 
be  less,  and  that  occupation  having  been  peculiar  in  its  circum- 
stances (x) ;  or  the  description  of  the  vendor's  interest  in  terms  im- 
porting that  it  is  free  from  incumbrances — such  as  "  immediate  abso- 
lute reversion  in  fee  simple" — where  it  is  in  fact  subject  to  undis- 
closed incumbrances  (y). 

The  treatment  of  this  class  of  cases  in  equity  is  analogous  to  the 
iules  applied  at  common  law  to  the  sale  of  goods  not  specifically  as- 
certained by  sample  or  with  a  warranty:  see  p.  *527,  above. 

Exceptions.  The  doctrine  that  a  vendor  who  has  less  than  he  under- 
took to  sell  is  bound  to  give  so  much  as  he  can  give  with  an  abatement 
of  the  price  applies,  it  is  to  be  understood,  only  where  the  vendor 
has  contracted  to  give  the  purchaser  something  which  he  professed 
to  be,  and  the  purchaser  thought  him  to  be,  capable  of  giving.  Where 
a  husband  and  wife  had  agreed  to  sell  the  wife's  estate  (her  interest 
being  correctly  described  and  known  to  the  purchaser),  and  the  wife 

(s)     Hughes    v.    Jones,    note    (q)  v.  Revell  [1900]  2  Ch.  858,  69  L.  J. 

above.  Ch.  879.  • 

(t)     Cordingley    v.     Cheesebrough  (u)    Hughes  v.  Jones    (1861)    3  D. 

(1862)   3  Giff.  496,  4  D.  F.  &  J.  379,  F.  &  J.  307,  31  L.  J.  Ch.  83. 
31  L.  J.  Ch.  617,  where  the  purchaser  (x)   Dimmock  v.  Hallett   (1866)    2 

claiming    specific    performance    with  Ch.  21,  36  L.  J.  Ch.  146. 
compensation,    and    having    rejected  (y)    Torrance  v.  Bolton    (1872)    8 

the  vendor's  offer  to  annul  the  con-  Ch.   118,   42   L.   J.   Ch.    177.     Of  the 

tract    and    repay    the    purchaser   his  peculiar    character    of    the    non-dis- 

costs,  was  made  to  perform  the  con-  closure  in  that  case   presently.     Cp. 

tract  unconditionally.    See  further  as  Phillips  v.   Caldcleugh    (1868)    L.  R. 

to  the  effect  of  conditions  of  this  kind  4  Q.  B.  159,  p.  510,  38  L.  J.  Q.  B.  68, 

Mawson  v.  Fletcher    (1870)    L.  R.  6  above.      As   to   the'   proper   mode   of 

Ch.  91,  40  L.  J.  Ch.  131;  Re  Terry  &  assessing  compensation   in  a  case   of 

White's  Contract   (1886)   32  Ch.  Div.  mis-statement  of  profits,  see  Powell  v. 

14,  55  L.  J.  Ch.  345.    The  authorities  Elliot  (1875)  L.  R.  10  Ch.  424. 
were  reviewed  by  Buckley  J.,  Jacobs 


666  MISREPRESENTATION    AND    FRAUD. 

would  not  convey,  the  Court  refused  to  compel  the  husband  to  convey 
his  own  interest  alone  for  an  abated  price  (z).35 

Specific  performance  with  compensation  is  granted  only  where  the 
compensation  is  capable  of  assessment :  for  example,  not  where  the 
defect  consists  of  undisclosed  restrictive  covenants  (a).  Also  the 
Court  will  not  order  vendors  who  sell  as  trustees  to  perform  their  con- 
540]  tract  with  Compensation,  on  account  of  the  prejudice  to  the 
cestui  que  trust  which  might  ensue  (b). 

Purchaser  can  recover  compensation  after  completion.  It  is  now  settled 
(after  many  conflicting  decisions  and  dicta)  that  a  purchaser  other- 
wise entitled  to  compensation  can  recover  it  after  he  has  taken  a  con- 
veyance and  paid  the  purchase-money  in  full  (c). 

(Hi. )  Where  variance  not  capable  of  estimation,  option  to  rescind  simply. 

But  lastly  the  variance  may  be  so  material  (either  in  quantity,  or  as 
amounting  to  a  variance  in  kind)  as  to  avoid  the  sale  altogether  and 
to  prevent  not  merely  the  general  jurisdiction  of  the  Court  as  to 
compensation,  but  even  special  provisions  for  that  purpose,  from  hav- 
ing any  application.36     "  If  a  man  sells  freehold  land,  and  it  turns 

(s)    Castle  v.   Wilkinson    (1870)    5  {a)  Budd  v.  Lascelles  [1900]  1  Ch. 

Ch.  534,  39  L.  J.  Ch.  843;  in  Barker  815,  69  L.  J.  Ch.  396. 

v.  Cox   (1876)  4  Ch.  D.  464,  46  L.  J.  (6)   White  v.  Cuddon  (1842)   8  CI. 

Ch.  62,  the  full  purchase-money  had  &  F.  766. 

been  paid  and  the  facts  were  other-  (c)    Palmer  v.  Johnson   (1884)    13 

wise  peculiar.  Q.  B.  Div.  351,  53  L.  J.  Q.  B.  348. 

See  the  former  cases  there  discussed. 

35  Peeler  v.  Levy,  26  N.  J.  Eq.  330;  Murdock  i\  Lantz,  34  Ohio  St.  589,  598; 
Clarke  v.  Reins,  12  Gratt.  98.     Cp.  Richards  v.  Doyle,  36  Ohio  St.  37. 

If  the  wife  of  a  vendor  pf  land  refuses  to  release  her  dower  by  joining  in 
the  execution  of  the  deed,  it  is  held  in  some  States  that  the  purchaser  may 
obtain  specific  performance  with  an  abatement  from  the  purchase  price.  Win- 
gate  v.  Hamilton,  7  Ind.  73;  Martin  v.  Merritt,  57  Ind.  41;  Zebley  v.  Sears, 
38  la.  507;  Woodbury  v.  Luddy,  14  Allen,  1;  Davis  v.  Parker,  14  Allen,  94; 
Wright  r.  Young,  6  Wis.  127;  Conrad  v.  Schwamb,  53  Wis.  378.  Contra, 
Riesz's  Appeal,  73  Pa.  485 ;  Reilly  v.  Smith,  25  N.  J.  Eq.  158.  And  see  Stern- 
berger  r.  McGovern,  56  N.  Y.  12;  Bostwick  v.  Beach,  103  N.  Y.  414;  Lucas 
v.  Scott,  41  Ohio  St.  636.  "  If  the  refusal  of  the  wife  is  made  in  bad  faith, 
or  by  the  procurement  of  the  husband,  merely  to  enable  him  to  escape  his  just 
obligation,  the  court  may  decree  a  conveyance  by  the  husband  alone,  and 
compel  him  to  give  indemnity  by  mortgage  or  otherwise  against  the  claim  of 
the  wife."  Peeler  v.  Levy,  26  N.  J.  Eq.  330,  335 ;  Young  v.  Paul,  2  Stockt.  Ch. 
401.  Where  the  wife  refused  to  carry  out  a  contract  to  convey  a  tract  of  land, 
part  of  which,  being  the  homestead,  could  not  be  conveyed  by  the  husband 
alone,  the  court  refused  to  compel  the  purchaser  to  take  the  remainder  with 
compensation.     Donner  r.  Redenbaugh,  61  la.  269. 

36  Hall  r.  Loomis,  63  Mich.  709. 


SALES   OF    LAND;   WHERE  NO   COMPENSATION.  667 

out  to  be  copyhold,  that  is  not  a  case  for  compensation  (d) ;  so  if  it 
turns  out  to  be  long  leasehold,  that  is  not  a  case  for  compensation; 
so  if  one  sells  property  to  another  who  is  particularly  anxious  to 
have  the  right  of  sporting  over  it,  and  it  turns  out  that  he  cannot 
have  the  right  of  sporting  because  it  belongs  to  .somebody  else  .  .  . 
in  all  those  cases  the  Court  simply  says  it  will  avoid  the  contract, 
and  will  not  allow  either  party  to  enforce  it  unless  the  person  who 
is  prejudiced  by  the  error  be  willing  to  perform  the  contract  without 
compensation"  (e).37  A  failure  of  title  as  to  a  part  of  the  property 
sold  which,  though  small  in  quantity,  is  important  for  the  enjoyment 
of  the  whole,  may  have  the  *same  effect  (Z).38  This  class  of  [541 
cases  agrees  with  the  last  in  the  contract  being  voidable  at  the  option 
of  the  party  misled,  but  it  differs  from  it  in  this,  that  if  he  elects  to 
adopt  the  contract  at  all  he  must  adopt  it  unconditionally,  since  com- 
pulsory performance  with  compensation  would  here  work  the  same 
injustice  to  the  one  party  that  compulsory  performance  without  com- 
pensation would  work  to  the  other.  Such  was  the  result  in  the  case 
now  cited  of  the  real  quantity  of  the  property  falling  short  by  nearly 
one-half  of  what  it  had  been  supposed  to  be  (g).     But  in  a  later 

(d)  Specific  performance  refused  entitled  to  rescind  unconditionally: 
where  the  land  was  enfranchised  Brewer  v.  Brown  (1884)  28  Ch.  D. 
copyhold  and  the  minerals   were  re-        309,  54  L.  J:  Ch.  605. 

served  to  the  lord:    Bellamy  v.   De-  {g)  The  price  asked  had  been  fixed 

benham  [1891]  1  Ch.  412,  60  L.  J.  Ch.  by  reference  to  the  rental  alone.     Qu. 

166,   C.   A.     And   conversely,   a  man  how  the  case  would  have  stood  could 

who  buys    an   estate   as   copyhold  is  a  price  proportional  to  the  area  have 

not  bound  to  accept  it  if  it  is  in  fact  been  arrived  at.     And  see  Swaisland 

freehold.     For  "  the  motives  and  fan-  v.    Dearsley     ( 1861 )     27     Beav.    430 

cies  of  mankind  are  infinite;   and  it  (where   it   is    left   doubtful   whether 

is   unnecessary  for  a   man   who   has  the  purchaser  could  or  could  not  have 

contracted  to  purchase  one  thing  to  enforced  the  contract  with  compensa- 

explain  why  he  refuses  to  accept  an-  tion).     Cp.  D.   18.   1.  de  cont.  empt. 

other-":     Ayles    v.     Cox     (1852)     16  22-24,      enunciating      precisely      the 

Beav.   23.     As  to  leaseholds,  it  is  a  same    principle    as    that    applied    by 

settled  though  perhaps  not  a  reason-  our   courts    of   equity.      Hanc    legem 

able  rule  that  a  contract  to  sell  prop-  venditionis:    Si    quid   sacri   vel   reli- 

erty  held  under  a  lease  is  prima  facie  giosi   est,    eius   venit   nihil,    superva- 

a  contract  to  show  title  to  an  origi-  cuam  non   esse,   sed   ad  modica   loca 

nal  lease:  Camberwell  and  S.  London  pertinere:     ceterum     si     omne     reli- 

Building  Society  v.  Holloioay   (1879)  giosum,    vel    sacrum,    vel    publicum 

13  Ch.  D.  754,  49  L.  J.  Ch.  361.  venierit,     nullam     esse     emptionem: 

(e)  Earl  of  Durham  v.  Legard  and  see  eod.  tit.  18,  40  pr.  In  Whit- 
(1865)  34  Beav.  611,  34  L.  J.  Ch.  589.  temore  v.   Whittemore    (1869)    L.  B. 

(f)  Arnold  v.  Arnold'  (1880)  14  8  Eq.  603,  a  case  of  material  defi- 
Ch.  Div.  270.  Where  particulars  of  ciency  in  quantity,  it  was  held  that 
sale  were  misleading  as  to  boundaries  a.  condition  of  sale  providing  gener- 
and  frontage,  the  purchaser  was  held  ally  that  errors  of  description  should 

3?  See  Durkin  v.  Cobleigh,  156  Mass.  108;  Drew  v.  Wiswall,  183  Mass.  554, 
as  to  liability  on  collateral  agreements  to  contracts  for  the  sale  of  land. 
38  Keating  v.  Price,  58  Md.  532. 


668  MISREPRESENTATION    AND    FRAUD. 

case  where  the  vendors  were  found  to  be  entitled  only  to  an  undivided 
moiety  of  the  property  which  they  had  professed  to  sell  as  an  entirety, 
the  Court  found  no  difficulty  in  ordering  specific  performance  with  an 
abatement  of  half  the  price  at  the  suit  of  the  purchaser,  as  no  in- 
justice would  be  done  to  the  vendors,  who  would  be  fully  paid  for  all 
542]  they  really  had  to  sell  (7i).39  The  real  question  *is  whether  the 
deficiency  is  such  as  to  be  fairly  capable  of  a  money  valuation  (i). 

Where  it  is  in  vendor's  power  to  make  good  his  representations.  It  seems 
that  where  it  is  in  the  vendor's  power  to  make  good  the  description 
of  the  property,  but  not  by  way  of  money  compensation,  he  can  en- 
force the  contract  on  condition  of  doing  so,  but  not  otherwise.  A  lot 
of  building  land  (part  of  a  larger  estate  intended  to  be  sold  to- 
gether) was  sold  under  restrictive  conditions  as  to  building,  and  in 
particular  that  no  public-house  was  to  be  built ;  the  purchaser  assumed 
from  the  plan  and  particulars  of  sale,  and  in  the  opinion  of  the  Court 
with  good  reason,  that  the  whole  of  the  adjoining  property  would 
be  subject  to  like  restrictions.  One  small  adjacent  plot  had  in  fact 
been  reserved  by  the  vendor  out  of  the  estate  to  be  sold,  so  that  it 
would  be  free  from  restrictive  covenants ;  but  this  did  not  sufficiently 
appear  from  the  plan.  The  vendor  sued  for  specific  performance. 
It  was  held  that  he  was  entitled  to  a  decree  only  on  the  terms  of 
entering  into  a  restrictive  covenant  including  the  reserved  plot  (k). 

This  third  class  of  cases  may  be  compared  (though  not  exactly) 
to  a  sale  of  goods  subject  to  a  condition  'or  "  warranty  in  the  nature 
of  a  condition,"  so  that  the  sale  is  "  to  be  null  if  the  affirmation  is 
incorrect  "  (I). 

be  only  matter  of  compensation  did  Bailey     v.     Piper     was     overlooked, 

apply,    but    another    excluding    com-  Maw   v.    Topham     (1854)     19    Beav. 

pensation  for  errors  in  quantity  did  576,   is  distinguishable,  as  there  the 

not;    so  that  on  the  whole  the  pur-  purchaser    knew    or    ought    to    have 

chaser  could  not  rescind,  but  was  en-  known  that  a  good  title  could  not  be 

titled  to  compensation.  made  to  the  Whole. 

(h)   Bailey  v.  Piper   (1874)   L.  R.  («")    See  Dyer  v.  Hargrave    (1805) 

18  Eq.   683,  43  L.  J.  Ch.   704 :   Hor-  10  Ves.  at  p.  507,  8  R.  R.  at  p.  38 ; 

rocks  v.  Rig~by   (1878)    9  Ch.  D.  180,  and  on  the  distinction  of  the  different 

47   L.  J.   Ch.   800,  where  the  moiety  classes   of   cases   generally,   per   Am- 

was   so   incumbered  that  the   vendor  phlett  B.     Phillips  v.  Miller    (1875) 

in  the  result  get  nothing  but  an  in-  L.  R.  10  C.  P.  427-8,  44  L.  J.  C.  P. 

demnity:    Wheatley  v.  Slade    (1830)  265. 

4   Sim.    126,   33   R.   R.    100.   is  prac-  (A)  Baskcomb  v.   Beckwith    (1869) 

tically  overruled  by  these  cases.   Sim-  L.  R.  8  Eq.  100,  38  L.  J.  Ch.  536. 

ilarly    as    to    leasehold:       Burrow    v.  (I)    Bannerman   V.    White    (1861) 

Scammell  (1881)  19  Ch.  D.  175,  51  10  C.  B.  N.  S.  844,  31  L.  J.  C.  P.  28. 
L.    J.     Ch.     296,    where     apparently 

39  Marshall  r.  Caldwell.  41  Cal.  611;  Erwin  v.  Myers,  46  Pa.  96.  But  see 
Olson  r.  Lovell,  91  Cal.  506. 


SALES  OF  land;  wheee  no  compensation.  669 

Deposit,  &c,  recoverable  in  equity  as  well  as  at  law.  A  purchaser  who 
in  a  case  falling  under  either  of  the  last  two  heads  exercises  his  option 
to  rescind  the  contract  may  sue  in  the  Chancery  Division  to  have  it 
set  aside,  and  recover  back  in  the  same  action  any  deposit  and  expenses 
already  paid  under  the  contract  (m).  And  it  seems  that  there  is 
an  independent  right  to  sue  in  equity  for  the  return  of  the  deposit 
and  expenses,  at  all  events  if  there  are  any  accompanying  cir- 
cumstances to  afford  ground  for  *equitable  jurisdiction,  such  [543 
as  securities  having  been  given  of  which  the  specific  restitution  is 
claimed  (n). 

General  duty  of  vendor  to  give  correct  description.  To  return  to  the 
more  general  question,  it  is  the  duty  of  the  vendor  to  give  a  fair  and 
unambiguous  description  of  his  property  and  title.  And,  notwith- 
standing the  current  maxim  about  simplex  commendatio,  language 
of  general  commendation — such  as  a  statement  that  the  person  in 
possession  is  a  most  desirable  tenant — is  deemed  to  include  the  as- 
sertion that  the  vendor  does  not  know  of  any  fact  inconsistent  with 
it.  A  contract  obtained  by  describing  a  tenant  as  "  most  desirable  " 
who  had  paid  the  last  quarter's  rent  in  instalments  and  under  pressure 
has  been  set  aside  at  the  suit  of  the  purchaser  (o).  If  the  vendor 
does  not  intend  to  offer  for  sale  an  unqualified  estate,  the  qualifica- 
tions should  appear  on  the  face  of  the  particulars  (p). 

Concealment  in  particulars  not  excused  by  correct  statement  in  conditions 
only  read  out  at  the  sale:  Torrance  v.  Bolton.  In  Torrance  V.  Bolton  (q) 
an  estate  was  offered  for  sale  as  an  immediate  reversion  in  fee  simple. 
At  the  auction  conditions  of  sale  were  read  aloud  from  a  manuscript, 
but  no  copy  given  to  the  persons  who  attended  the  sale.  One  of  these 
conditions  showed  that  the  property  was  subject  to  three  mortgages. 
The  plaintiff  in  the  suit  had  bid  and  become  the  purchaser  at  the 
sale,  but  without  having,  as  he  alleged,  distinctly  heard  the  condi- 
tions or  understood  their  effect.  The  Court  held  that  the  particulars 
were  misleading;  that  the  mere  reading  out  of  the  conditions  of  sale 

(to)     E.g.    Stanton    v.     Tattersall  Property  Corporation   (1884)    28  Ch. 

(1853)    1  Sm.  &  G.  529;  Torrance  v.  Div.  7,  51  L.  T.  718. 
Bolton    (1872)    L.   R.   8   Ch.   118,  42  (p)   Hughes  v.  Jones    (1861)    3  D. 

L.  J.  Ch.  177.  F.  &  J.  307,  314,  31  L.  J.  Ch.  83.    As 

(n)  Aberaman  Ironworks  Go.  v.  to  the  duty  of  disclosing  restrictive 
Wickens  (1868)  L.  R.  4  Ch.  101,  covenants:  Eosworth  and  Tidy's  Con- 
where  the  contract  having  been  re-  tract  (1889)  42  Ch.  Div.  23,  47,  51, 
scinded  by  consent,  before  the  suit  58  L.  J.  Ch.  665. 
was  held  not  to  deprive  the  Court  of  (q)  (1872)  L.  R.  8  Ch.  118,  42  L. 
jurisdiction.  J-  Ch.  177. 

(o)    Smith    v.    Land    and    House 


670  MISREPRESENTATION    AND    FRAUD. 

was  not  enough  to  remove  their  effect  and  to  make  it  clear  to  the  mind 
of  the  purchaser  what  he  was  really  buying;  and  that  he  was  entitled 
to  have  the  contract  rescinded  and  his  deposit  returned.  Mere  silence 
as  to  facts  capable  of  influencing  a  buyer's  judgment,  but  not 
544]  *such  as  the  seller  professes  or  undertakes  to  communicate,  is 
not  of  itself  any  breach  of  duty  (r). 

A  misleading  description  may  be  treated  as  a  misrepresentation 
even  if  it  is  in  terms  accurate:  for  example,  where  property  was 
described  as  "  in  the  occupation  of  A."  at  a  certain  rental,  and  in 
truth  A.  held  not  under  the  vendor,  but  under  another  person's  adverse 
possession  (s),  or  where  immediate  possession  is  material  to  the  pur- 
chaser, and  the  tenant  holds  under  an  unexpired  lease  for  years  which 
is  not  disclosed  (t).  A  misleading  statement  or  omission  made  by 
mere  heedlessness  or  accident  may  deprive  a  vendor  of  his  right 
to  specific  performauce,  even  if  such  that  a  more  careful  buyer 
might  not  have  been  misled  (u). 

Duty  of  purchaser  in  special  cases.  All  this  proceeds  on  the  supposi- 
tion that  the  vendor's  property  and  title  are  best  known  to  himself,  as 
almost  always  is  the  case.  But  the  position  of  the  parties  may  be 
reversed :  a  person  who  has  become  the  owner  of  a  property  he  knows 
very  little  about  may  sell  it  to  a  person  well  acquainted  with  it, 
and  in  that  case  a  material  misrepresentation  by  the  purchaser  makes 
the  contract,  and  even  an  executed  conveyance  pursuant  to  it,  void- 
able at  the  vendor's  option  (.r).  So  it  is  where  the  purchaser  has 
clone  acts  unknown  to  the  vendor  which  alter  their  position  and  rights 
with  reference  to  the  property :  as  where  there  is  a  coal  mine  under 
the  land  and  the  purchaser  has  trespassed  upon  it  and  raised  coal 
without  the  vendor's  knowledge;  for  here  the  proposed  purchase  in- 
volves a  buying  up  of  rights  against  the  purchaser  of  which  the  owner 
is  not  aware  (y). 

545]  On  a  sale  under  the  direction  of  the  Court  a  person  *offering 
to  buy  is  not  under  any  extraordinary  duty  of  disclosure.  It  is  not  the 
law  "  that,  because  information  on  some  material  point  or  points  is 
offered,  or  is  given  on  request,  by  a  purchaser  from  the  Court,  it  must 
therefore  be  given  on  all  others  as  to  which  it  is  neither  offered  nor 

(r)    Ooaks   v.    Boswell    (1886)  11  (x)    Haygarth  v.  Wearing    (1871) 

App.  Ca.  232-235.  L.  R.   12  Eq.  320;   40  L.  J.  Ch.   577. 

(s)  Lachlan  v.  Reynolds  (1853)  Cp.  the  Indian  Transfer  of  Property 
Kay  52,  23  L.  J.  Ch.  8.  Act,  1882,  s.  55. 

(t)    Caballero  v.  Henty    (1874)  L.  (y)    Phillips   v.    Eomfrwy    (1871) 

R.  9  Ch.  447,  43  L.  J.  Ch.  635.  L.  R.  6  Ch.  770,  779. 

(u)    Jones   v.    Rimmer    (1880)  14 
Ch.  Div.  588,  49  L.  J.  Ch.  775. 


SALES    OF    LAND  ;    DUTIES    OF    PARTIES.  671 

requested,  and  concerning  which  there  is  no  implied  representation, 
positive  or  negative,  direct  or  indirect,  in  what  is  actually  stated  "  (z). 

Effect  of  special  conditions  as  to  title.  Vendors  of  land  may,  and  con- 
stantly do  in  practice,  sell  under  conditions  requiring  the  purchaser 
to  assume  particular  states  of  fact  and  title.  But  such  conditions 
must  not  be  misleading  as  to  any  matter  within  the  vendor's  knowl- 
edge (a) .  "  The  vendor  is  not  at  liberty  to  require  the  purchaser 
to  assume  as  the  root  of  his  title  that  which  documents  within  his 
possession  show  not  to  be  the  fact,  even  though  those  documents  may 
show  a  perfectly  good  title  on  another  ground :  "  and  if  this  is  done 
even  by  a  perfectly  innocent  oversight  on  the  part  of  the  vendor  or 
his  advisers,  specific  performance  will  not  be  enforced  (6).  A  special 
condition  limiting  the  time  for  which  title  is  to  be  shown  must  be 
fair  and  explicit,  and  "  give  a  perfectly  fair  description  of  the  nature 
of  that  which  is  to  form  the  root  of  title"  (c). 

Non-disclosure ' of  defect  of  title  not  actually  known  to  vendor:  Wilde  v. 
Gibson.  The  House  of  Lords  decided  in  Wilde  v.  Gibson  (d)  that  the 
vendor's  silence  as  to  a  right  of  way  over  the  property,  of  the  existence 
of  which  he  was  not  known  to  be  *aware,  was  no  ground  for  set-  [  546 
ting  aside  the  contract.  This  reversed  the  decision  of  Knight  Bruce 
V.-C.  (e),  who  held  that  the  silence  of  the  particulars  taken  together 
with  the  condition  of  the  property  (for  the  way  had  been  enclosed) 
amounted  to  an  assertion  that  no  right  of  way  existed.  In  any 
view  it  seems  an  extraordinary,  not  to  say  dangerous,  doctrine  to 
say  that  a  vendor  is  not  bound  to  know  his  own  title,  so  far  at  least 
as  with  ordinary  diligence  he  may  know  it :  and  the  case  is  severely 
criticized  by  Lord  St.  Leonards  (/).  The  Irish  case  relied  on  by 
the  Lords  as  a  direct  authority  may  be  distinguished  on  the  ground 

(z)    Cooks  v.   Boswell    (1886)    11  Q.  B.  280,  where  the  vendor's  solici- 

App.  Ca.  232,  440,  55  L.  J.  Ch.  761,  tor  erroneously  denied  the  existence 

revg.  s.  c.  27  Ch.  Div.  424,  mainly  on  of  restrictive  covenants  contained  in 

the  facts.  deeds   prior   to   those   which    he   had 

(a)    Heywood  v.  Mallalieu   (1883)  read.    Cf.  L.  Q.  R.  ii.  414,  415. 
25  Ch.  D.  357,  53  L.  J.  Ch.  492  (defi-  (c)     Marsh    and    Earl     Granville 
nite  adverse  claims  known  to  a  ven-  (1883)    24  Ch.  Div.   11,  22,  53  L.  J. 
dor    must    be    disclosed    even    if    he  Ch.    81,    where    the    purchaser    was 
thinks  them  unfounded).  held  not  bound  to  accept  as  the  corn- 
to)    Broad   v.   Munton    (1879)    12  mencement  of  title  a  voluntary  deed 
Ch.  Div.    131,  per   Cotton  L.J.  at  p.  not  stated  in  the  contract  to  be  such. 
149,  48  L.  J.  Ch.  837:   whether  this  (d)    (1848)    1  H.  L.  C.  605. 
would   be    sufficient   ground    for    re-  (e)    S.   C.  nom.   Gibson  v.   D'Este 
scinding    the    contract,     qucere,    per  (1843>  2  Y.  &  C.  542. 
Jessel  M.E.    12   Ch.  Div.  at  p.   142:  (f)    Sugd.   Law  of  Property,   614. 
Nottingham     Brick     Co.     v.     Butler  637,  &c. 
(1886)    16  Q.  B.  Div.  778,  55  L.  J. 


672  MISREPRESENTATION    AND    FRAUD. 

that  the  representation  there  made  by  the  lessor  that  there  was  no 
right  of  way  was  made  not  merely  with  an  honest  belief,  but  with 
a  reasonable  belief  in  its  truth  (g). 

The  decision  in  Wilde  v.  Gibson  was  much  influenced  by  the  pur- 
chaser's case  having  been  rested  in  the  pleadings  to  a  certain  extent 
upon  charges  of  actual  fraud,  which  however  were  abandoned  in 
argument :  the  doctrine  of  constructive  notice,  it  was  said,  could  not 
be  applied  in  support  of  an  imputation  of  direct  personal  fraud. 
Even  so  the  result  in  modern  practice  would  only  be  that  the  plaintiff 
would  have  to  pay  the  costs  occasioned  by  the  unfounded  charges; 
he  would  not  lose  any  relief  for  which  he  otherwise  showed  sufficient 
grounds  (h).  And  on  examining  the  pleadings  it  is  difficult  to  find 
any  imputation  sufficient  to  justify  the  grave  rebukes  expressed  in 
the  judgments  (i).  It  was  also  said  by  Lord  Campbell  that  a  court 
of  equity  will  not  set  aside  an  executed  conveyance  on  the  ground 
547]  of  misrepresentation  or  concealment,  but  *only  for  actual 
fraud  (A-)  :  but  this  dictum  has  not  been  followed.40  Where  copyhold 
land  has  been  sold  as  freehold,  apparently  in  good  faith,  the  sale 
was  set  aside  after  conveyance  (I).  Here,  however,  the  seller  had 
notice  when  he  bought  the  land  himself  that  some  part  of  it  at  least 
was  copyhold.  On  the  other  hand  there  may  be  a  want  of  diligence 
on  the  purchaser's  part  which,  although  not  such  as  to  deprive  him 
of  the  right  of  rescinding  the  contract  before  completion,  would  pre- 
clude him  from  having  the  sale  set  aside  after  conveyance  (m). 

General  rule.  As  a  general  result  of  the  authorities  there  seems  to 
be  no  doubt  that  on  sales  of  real  property  it  is  the  duty  of  the  party 

{g)     Indeed    the    Court    seems    to  sion  was  doubted  by  Cotton  L.J.   in 

have   thought   it  icas   true,  notwith-  Soper  v.  Arnold    (1887)    37  Ch.  Div. 

standing  the  adverse  result  of  an  in-  96,  at  p.  102,  57  L.  J.  Ch.  145 :  also 

dietment    for    stopping    the    alleged  in   Haygarth  v.   Wearing    (1871)    L. 

public  way:  Legge  v.  Croker   (1811)  R.   12  Eq.  320,  40  L.  J.  Ch.  577.  an 

1  Ball  &  B.  506,  12  R.  R.  49,  Sugd.  executed  conveyance  was  set  aside  on 

op.  cit.  657.  simple   misrepresentation.     In   Soper 

(h)   Hilliardv.  Eiffe  (1874)   L.  R.  v.  Arnold,  affirmed  in  H.  L.    (1889) 

7  H.  I.  39;  see  next  chapter.  14  App.  Ca.  429,  59  L.  J.  Ch.  214,  the 

(i)    The  bill   in   Gibson  v.  D'Este,  point  in  issue  was  different,  and  the 

which  is  to  be  found  in  the  printed  defect  in  title  was  disclosed  on  the 

cases  of  1848.  has  the  words  *'  care-  face  of  the  abstract, 
fulby     concealed"     in    one     passage:  (m)    M'Gulloch  v.  Gregory   (1855) 

"  fraudulently  concealed  "  in  another  1  K.  &  J.  286,  24  L.  J.  Ch.  246,  where 

may  mean,  of  course,  fraudulently  in  a  will  was  mis-stated  in  the  abstract 

a  technical  sense.  so  as  to  conceal  a  defect  of  title,  but 

(k)   1  H.  L.  C.  632.  the  purchaser  omjtted  to  examine  the 

(?)    Hart  v.  Swaine   (1877).  7   Ch.  originals. 
D.  42,  47  L.  J.  Ch.  5,  but  the  deci- 

40Lindsey  ''•  Veasy,  62  Ala.  421;  Spurr  v.  Benedict,  99  Mass.  463.  See  also 
Keene  v.  Demelman,  172  Mass.  17. 


SALES  OF  LAND  :  DUTIES  OF  PARTIES.  673 

acquainted  with  the  property  to  give  substantially  correct  informa- 
tion, at  all  events  to  the  extent  of  his  own  actual  knowledge  (n), 
of  all  facts  material  to  the  description  or  title  of  the  estate  offered 
for  sale,  but  not  of  extraneous  facts  affecting  its  value :  the  seller,  for 
example,  is  not  bound  to  tell  the  buyer  what  price  he  himself  gave 
for  the  property  (o). 

Exception  as  to  occupation  leases.  The  general  rule  seems  not  appli- 
cable as  between  lessor  and  lessee,  where  the  letting  is  for  an  occupa- 
tion by  the  lessee  himself,  and  so  far  as  concerns  any  physical  fact 
which  can  be  discovered  by  inspection;  for  in  ordinary  circumstances 
the  landlord  is  entitled  to  assume  that  the  *tenant  will  go  and  [548 
look  at  the  premises  for  himself,  and  therefore  is  not  bound  to  tell 
him  if  they  are  in  bad  repair  or  even  ruinous  (p).*1 

D.  Family  Settlements. 

Duty  of  full  disclosure.  In  the  negotiations  for  family  settlements 
and  compromises  it  is  the  duty  of  the  parties  and  their  professional 
agents  not  only  to  abstain  from  misrepresentations,  but  to  communi- 

(«)  See  Joliffe  v.  Baker   (1883)    11  incumbrances:      Re    Ford    and    Hill 
Q.  B.  Div.  255,  52   L.  J.  Q.  B.   609,  (1879)    10  Ch.  Div.  365. 
but  that  case  is  of  little  authority,  if  (o)    3  App.  Ca.  1267. 
any.  on  the  question  of  contract:  see            (p)  Keates  v.  Earl  Cadogan   (1851) 
per   A.    L.    Smith    J.    in    Palmer   v.  10  C.  B.  591,  20  L.  J.  C.  P.  76.     The 
Johnson  (1884)    12  Q.  B.  D.  at  p.  37,  general   rule   does   apply   as   to  mat- 
explaining  his  own  part  in  Joliffe  v.  ters  of  title :     Mostyn  v.  West  Mostyn 
Baker.      Neither    vendors    nor    their  Coal,  &c.  Co.   (1876)    1  C.  P.  D.  145, 
solicitors    are    bound    to    answer    a  45  L.  J.  C.  P.  401. 
general    inquiry    as    to  non-apparent 

41  See  Doyle  v.  Union  Pacific  Co.,  147  U.  S.  413 ;  Gallagher  v.  Button,  73 
Conn.  172;  Foster  v.  Peyser,  9  Cush.  '242;  Krueger  v.  Ferrant,  29  Minn.  385, 
388;  Naumberg  v.  Young,  44  N.  J.  L.  331,  344;  Clyne  v.  Helmes,  61  N.  J.  L. 
358;  Cleves  v.  Willoughby,  7  Hill,  83. 

For  many  other  decisions  showing  that  the  rule  of  'caveat  emptor  applies 
between  landlord  and  tenant,  see  18  Am.  &  Eng.  Encyc.  (2d.  ed.)  613.  Cp. 
Willeox  v.  Hines,  96  Tenn.  148,  328,  100  Tenn.  538.  If,  however,  there  is  a 
secret  dangerous  defect,  as  infection,  of  which  the  landlord  knows  and  the 
tenant  does  not,  the  landlord  is  liable,  if  he  fails  to  disclose  the  defect,  for 
injury  resulting  to  the  tenant.  Moore  v.  Parker,  63  Kan.  52 ;  Minor  v.  Sharon, 
112  Mass.  477;  O'Malley  r.  Twenty-five  Associates,  178  Mass.  555,  558;  Kern 
v.  Myll,  80  Mich.  525  (see  S.  C,  94  Mich.  477);  Towne  v.  Thompson,  68 
N.  H.  317,  320;  Cate  r.  Blodgett,  70  N.  H.  316,  317;  Cesar  r.  Kountz,  60 
N.  Y.  229.  In  England  and  Massachusetts,  on  a  lease  of  a  furnished  house  for 
a  short  term,  there  is  an  implied  warranty  that  the  premises  are  tenantable. 
Smith  v.  Marrable,  11  M.  &  W.  5 ;  Wilson  v.  Finch-Hatton.  2  Ex.  D.  336; 
Ingalls  r.  Hobbs,  156  Mass.  348.  But  other  States  seem  indisposed  to  accept 
this  doctrine.  Fisher  v.  Lighthall,  4  Mackey,  "82 ;  Davis  r.  George,  67  N.  H. 
393;  Murray  r.  Albertson,  50  N.  J.  L.  167;  Franklin  v.  Brown,  118  N.  Y. 
110;  Edwards  t>.  McLean,  122  N.  Y.  302. 

43 


674  MISREPRESENTATION    AND    FRAUD. 

eate  to  the  other  parties  all  material  facts  within  their  knowledge 
affecting  the  rights  to  be  dealt  with.  The  omission  to  make  such 
communication,  even  without  any  wrong  motive,  is  a  ground  for  set- 
ting aside  the  transaction.  "  Full  and  complete  communication  of  all 
material  circumstances  is  what  the  Court  must  insist  on"  (q).  "  With- 
out full  disclosure  honest  intention  is  not  sufficient,"  and  it  makes  no 
difference  if  the  non-disclosure  is  due  to  an  honest  but  mistaken 
opinion  as  to  the  materiality  or  accuracy  of  the  information  with- 
held (r).  The  operation  of  this  rule  is  not  affected  by  the  leaning 
of  equity,  as  it  is  called,  towards  supporting  re-settlements  and  similar 
arrangements  for  the  sake  of  peace  and  quietness  in  families  (s). 

E.  Partnership,  Contracts  to  take,  Shares  in  Companies,  and  Contracts 
of' Promoters. 

Contracts  to  take  shares.  The  contract  of  partnership  is  always  de- 
scribed as  one  in  which  the  utmost  good  faith  is  required.  So  far  as 
549  ]  this  principle  applies  to  the  relations  of  partners  after  the  *part- 
nership  is  formed,  it  belongs  to  the  law  of  partnership  as  a  special 
and  distinct  subject;  and  in  fact  the  principle  is  worked  out  in  definite 
rules  to  such  an  extent  that  it  is  seldom  appealed  to  in  its  general 
form.  But  it  also  applies  to  the  transactions  preceding  the  formation 
of  a  partnership,  or  rather  its  full  and  apparent  constitution.  For 
example,  an  intending  partner  must  not  make  a  private  profit  out  of 
a  dealing  undertaken  by  him  on  behalf  of  the  future  firm  (t).i2 
There  is  little  or  no  direct  authority  to  show  that  a  person  inviting 
another  to  enter  into  partnership  with  him  is  bound  not  only  to  abstain 
from  mis-statement,  but  to  disclose  everything  within  his  knowledge 
that  is  material  to  the  prospects  of  the  undertaking.  But  the  ex- 
istence of  such  a  duty  (the  precise  extent  of  which  must  be  determined 
in  each  case  by  the  relative  position  and  means  of  knowledge  of  the 
parties)    is  postulated  by  the  stringent  rules  which  have  been  laid 

(q)  Gordon  v.   Gordon    (1816-9)    3  (s)    lb.;  Fane  v.  Fane    (1875)   L. 

Sw.  400,  473,  19  R.  R.  241,  24a.  R.  20  Eq.  698. 

(r)    lb.  477,    19  R.  R.  244.     How  (/)    Lindley  on   Partnership,  325; 

far  does  this  go?     It  can  hardly  be  Fawcett    v.     Whitehouse .    (1829)     1 

a,  duty  to  communicate  mere  gossip  Russ.  &  M.   132,  32  R.  R.   163.     Yet 

on  the   chance   of  there  being  some-  the   duty  is   incident,  not   precedent, 

thing  in  it.     Probably  the  test  is   (as  to  the  contract  of  partnership;  for  if 

in  the  case   of  marine  insurance,  p.  there   were   not   a  complete   contract 

*530,  above)  whether  the  judgment  of  of    partnership    there    would    be    no 

a  reasonable  man  would  be  affected.  duty  at  all.      [See  Uhler   v.   Semple, 

Co.  Heyioood  v.  Mallalieu    (1883)    25  20  N.  J.  Eq.  288,  292.] 
Ch.  D.  357,  53  L.  J.  Ch.  492. 

■*2Densmore  Oil  Co.  r.  Densmore,  64  Pa.  43,  50. 


PARTNERSHIPS   AND    COMPANIES.  675 

down  as  binding  on  the  promoters  of  companies.  These  are  ex- 
pressed with  the  more  strictness,  inasmuch  as  the  public  to  whom 
promoters  address  themselves  are  for  the  most  part  not  versed  in  the 
particular  kind  of  business  proposed,  but  are  simply  persons  in  search 
of  an  investment  for  their  money,  and  with  slight  means  at  hand,  if 
any,  of  verifying  the  statements  made  to  them. 

Prospectus  must  be  both  positively  and  negatively  correct.  "  The  pub- 
lic," it  is  said,  "  who  are  invited  by  a  prospectus  to  join  in  any  new 
adventure,  ought  to  have  the  same  opportunity  of  judging  of  every- 
thing which  has  a  material  bearing  on  its  true  character  as  the  pro- 
moters themselves  possess "  (u)  :  and  those  who  issue  a  prospectus 
inviting  people  to  take  shares  on  the  faith  of  the  representations 
therein  contained  are  bound  "not  only  to  abstain  from  stating  as 
fact  that  which  is  not  so,  but  to  omit  no  one  *fact  within  their  [550 
knowledge  the  existence  of  which  might  in  any  degree  affect  the 
nature  or  extent  or  quality  of  the  privileges  and  advantages  which 
the  prospectus  holds  out  as  an  inducement  to  take  shares  "  (x).  There- 
fore if  untrue  or  misleading  representations  are  made  as  to  the 
character  and  value  of  the  property  to  be  acquired  by  a  company 
for  the  purposes  of  its  operations  (y),  the  privileges  and  position  se- 
cured to  it,  the  amount  of  capital  (z),  or  the  amount  of  shares  al- 
ready subscribed  for  (a.),  a  person  who  has  agreed  to  take  shares  on 
the  faith  of  such  representations,  and  afterwards  discovers  the  truth, 
is  entitled  to  rescind  the  contract  and  repudiate  the  shares,  if  he  does 
so  within  a  reasonable  time  and  before  a  winding-up  has  given  the 
company's  creditors  an  indefeasible  right  to  look  to  him  as  a  contribu- 
tory.43 For  full  information  on  this  subject  the  reader  is  referred  to 
Lord  Lindley's  treatise  (6). 

(it)    Lord   Chelmsford   in    Central  L.  J.  Ch.  849,  affg.  s.  c.  nom.  Smith's 

Ry.  Co.  of  Venezuelan.  Kisch  (1867)  case   (1867)   L.  R.  2  Ch.  604. 
L.  R.  2  H.  L.  99,  113,  36  L.  J.  Ch.  (a)  Central  Ry.  Co.  of  Venezuela  v. 

849.  Kisch,  supra. 

(x)    Kindersley  V.-C.   New  Bruns-  (a)   Wright's  case   (1871)   L.  R.  7 

wick,   &c.  Co.  v.  Muggeridge    (1860)  Ch.  55,  41  L.  J.  Ch.  1;  Moore  &  Be 

\  Dr.  &  Sm.  363,  381,  30  L.  J.  Ch.  la  Torre's  case    (1874)   L.  R.  18  Eq. 

242,  adopted  by  Lord  Chelmsford,  I.  c.  661,  43  L.  J.  Ch.  751. 

(y)  Reese  River  Silver  Mining  Co.  (6)    Lindley    on     Companies,     72, 

V.  Smith  (1869)  L.  R.  4  H.  L.  64,  39  589  sqq.    Mere  communication  to  the 

43  See  Upton  v.  Tribilcock,  91  U.  S.  45 ;  Scott  v.  Deweese,  181  U.  S.  202 ;  Upton 
v.  Englehart,  3  Dill.  496;  Insurance  Co.  v.  Turner,  61  Ga.  561;  Negley  v. 
Hagerstown  Co.,  86  Md.  692;  Sherman  v.  American  Stove  Co.,  85  Mich.  169; 
Water  Valley  Mfg.  Co.  v.  Seaman,  53  Miss.  655;  Ramsey  v.  Thompson  Mfg. 
Co.,  116  Mo.  313;  Vreeland  v.  New  Jersey  Stone  Co.,  29  N.  J.  Eq.  188;  Bosley 
v.  National  Machine  Co.,  123  N.  Y.  550;  State  v.  Jefferson  Tump.  Co.,  3 
Humph.  305 ;  Crump  v.  U.  S.  Mining  Co.,  7  Gratt.  352 ;  Virginia  Land  Co.  v. 
Haupt,  90  Va.  533;  Waldo  v.  Railroad  Co.,  14  Wis.  575. 


676  MISREPRESENTATION    AND    FRAUD. 

Duty  of  promoter  to  company.  There  is  likewise  a  fiduciary  relation 
between  a  promoter  and  the  company  in  its  corporate  capacity,  which 
imposes  on  the  promoter  the  duty  of  full  and  fair  disclosure  in  any 
transaction  with  the  company,  or  even  with  persons  provisionally 
representing  the  inchoate  company  before  it  is  actually  formed  (c).44 
Promoters  who  form  a  company  for  the  purpose  of  buying  their 
551  ]  property  are  not  entitled  to  *deal  with  that  company  as  a 
stranger  (d).  They  must  either  provide  it  with  "  a  board  of  directors 
who  can  and  do  exercise  an  independent  and  intelligent  judgment 
on  the  transaction  "(e)  or  give  full  notice  that  the  directors  are 
not  independent;  there  may  be  cases  in  which  all  the  original  mem- 
bers of  the  company  necessarily  have  such  notice  (/) .  "  The  old 
familiar  principles  of  the  law  of  agency  and  of  trusteeship  have  been 
extended  and  very  properly  extended  to  meet  such  cases"  (q).  A 
shareholder  may  be  entitled  to  rescind  his  contract  with  the  company 
on  the  ground  of  a  material  misrepresentation  in  a  preliminary  pros- 
pectus issued  by  promoters  before  the  company  was  formed  (7i). 

Companies  Act,  1900,  s.  10.  The  Companies  Act,  1900,  repealing  and 
superseding  the  less  stringent  provisions  of  the  Companies  Act,  1867, 
enacts  that  every  company  prospectus  "  must  state "  a  number  of 
specified  particulars.  The  consequences  of  disobedience  are  not  ex- 
pressed, unless  in  the  case  of  wilful  falsehood  (i),  but  it  would  seem 

company  is  not  a  sufficient  repudia-  Lagunas     Nitrate     Co.     v.     Lagunas 

tion.     The  shareholder  must  do  some-  Synd.   [1899]  2  Ch.  392,  68  L.  J.  Ch. 

thing  to  alter  his  status  as  a  mem-  699,  C.  A. 

ber:    per    Lindley    L.J.    Re    Scottish  (d)    Erlanger    v.     New    Sombrero 

Petroleum    Co.    (1883)     23    Ch.    Div.  Phosphate  Co.   (1878)    3  App.  Ca.  at 

435.     The  critical  date  is  that  of  the  p.  1268. 

petition,  not  the  order,  in  the  wind-  (e)  lb.  at  pp.  1229,  1236,  1255. 

ing-up:   Whiteley's  case  [1899]   1  Ch.  (f)    Lagunas    Nitrate    Co.    v.    La- 

770,  68  L.  J.  Ch.  365.  gunas    Synd.    [1899]    2    Ch.    392,    68 

(c)   NeiD  Sombrero  Phosphate  Co.  L.  J.  Ch.  699,  C.  A. 
v.   Erlanger    (1877)    5    Ch.    Div.    73,  (g)  Sydney,  &c.  Co.  v.  Bird  (1886) 
per  James  L.J.  at  p.  118,  46  L.  J.  Ch.  33  Ch.  Div.  85,  94. 
425;  aflfd.  in  H.  L.  nom.  Erlanger  v.            (h)     Re    Metropolitan    Coal    Con- 
New  Sombrero  Phosphate  Co.   (1878)  sumers'  Assn.,  Karberg's  case  [1892] 
3   App.   Ca.    1218,   48   L.  J.   Ch.   73;  3  Ch.  1,  61  L.  J.  Ch.  741,  C.  A. 
Bagnallv.  Carlton  (1877)  6  Ch.  Div.            (i)    By  sect.   28    (if  it   applies   to 
371,   47    L.   J.    Ch.   30;    and   see   the  false     statements     in     a     prospectus, 
whole  subject    (the   details  of  which  which  is  not  quite  clear)    this  is  a 
belong  to  company  law)   discussed  in  misdemeanor. 

a  Wiser  v.  Lawler,  189  U.  S.  260;  Burbank  v.  Dennis,  101  Cal.  90;  Yale 
Stove  Co.  v.  Wilcox,  64  Conn.  101;  Hayward  r.  Leeson,  176  Mass.  310;  Exter 
r.  Sawyer,  146  Mo.  302;  Brewster  r.  Hatch,  122  N.  Y.  349;  McElhenny  r. 
Hubert  Oil  Co.,  61  Pa.  188;  Simons  r.  Vulcan  Oil  Co.,  61  Pa.  202;  Densmore 
Oil  Co.  r.  Densmore,  64  Pa.  43 ;  Pittsburg  Mining  Co.  v.  Spooner,  74  Wis.  307 ; 
Pietsch  v.  Krause,  116  Wis.  344;  36  Am.  L.  Reg.   (N.  S.)   545. 


CONTRACTS   TO    MARRY.  677 

that  any  misstatement  or  omission,  with  knowledge  of  the  facts  (Tc), 
of  any  of  these  particulars  will  be  treated  as  fraudulent,  and  that  all 
and  every  of  them  are  conclusively  declared  to  be  material.  Any  lia- 
bility under  the  general  law  is  expressly  saved  (I),  so  that  the  es- 
tablished case-law  remains  fully  applicable.  It  would  be  useless 
to  enter  upon  further  details  here;  nor  are  we  concerned  with  the 
question  whether  a  right  of  action  in  tort  is  given  by  implication 
to  persons  who  may  suffer  damage  from  the  directions  of  the  Act 
not  being  regarded. 

*The  Directors'  Liability  Act,  1890  (m),  imposes  a  special  re-  [552 
sponsibility  on  directors  and  promoters  for  the  accuracy,  to  the  extent 
of  their  means  of  knowledge,  of  statements  made  in  prospectuses. 
This  however  is  rather  ex  delicto  than  ex  contractu. 

Contract  to  marry.  Thus  much  of  the  classes  of  contracts  to  which 
special  duties  of  this  kind  are  incident.  The  absence  of  any  such 
duty  in  other  cases  is  strongly  exemplified  by  the  contract  to  marry. 
Here  there  is  no  obligation  of  disclosure,  except  so  far  as  the  woman's 
chastity  is  an  implied  condition.45  The  non-disclosure  of  a  previous 
and  subsisting  engagement  to  another  person  (?i),  or  of  the  party's 
own  previous  insanity  (o),46  is  no  answer  to  an  action  on  the  promise. 
If  promises  to  marry  are  to  give  a  right  of  action,  one  would  think 
the  contract  should  be  treated  as  one  requiring  the  utmost  good  faith : 
but  such  are  the  decisions. 

Marriage  itself  is  not  avoided  even  by  actual  fraud  (p),  but  the 

(h)    See  the  exception  in  sect.   10,  (o)    Baker   v.    Cartwright    (1861) 

sab-sect.  7.  10  0.  B.  N.  S.  124,  30  L.  J.  C.  P.  364. 

(1)   Sub-sect.  8.  (p)    Moss  v.   Moss   [1897]    P.   263, 

(to)  53  &  54  Vict.  c.  64.  The  Act  269,  66  L.  J.  P.  154.  Fraud  is  ma- 
provides  a  partial  and  clumsy  rem-  terial  only  when  it  is  such  as  "  pro- 
edy  for  the  mischievous  consequences  cures  the  appearance  without  the 
of  Berry  v.  Peek  ( 1889 )  14  App.  Ca.  reality  of  consent,"  per  Sir  F.  H. 
337,  58  L.  J.  Ch.  864.  See  the  Act  Jeune.  Some  of  the  language  used 
and  comments  thereon  in  the  Sup-  in  Scott  v.  Sebright  (1886)  12  P.  D. 
plement  to  Lindley  on  Companies,  21,  23,  a  decision  on  very  peculiar 
1891.  facts  held  to  come  within  this  last- 

(n)    Beachey  v.   Brown   (1860)    B.  mentioned   category,    cannot   be    sup- 

B.  &  E.  796,  29  L.  J.  Q.  B.  105.  ported. 

45  "A  man  is  not  bound  by  a  contract  to  marry  a  lewd  woman  if  he  has 
entered  into  it  in  ignorance  of  her  character."  Von  Storch  v.  Griffin,  77  Pa. 
504;  Butler  v.  Eschleman,  18  111.  44;  Bell  v.  Eaton,  28  Ind.  468;  Guptill  v. 
Verback,  58  la.  98;  Berry  v.  Bakeman,  44  Me.  164;  Sheahan  v.  Barry,  27 
Mich.  217,  222;  Palmer  v.  Andrews,  7  Wend.  142;  Foster  v.  Hanchett,  68  Vt. 
319. 

46  Nor  that  because  of  frequent  intermarriages  of  related  ancestors,  the 
plaintiff's  family  had  a  hereditary  taint.  Simmons  p.  Simmons,  8  Mich.  318. 
Nor  that  the  plaintiff  had  negro  blood  in  her  veins.  Van  Houten  v.  Morse, 
162  Mass.  414.  But  see  the  remarks  in  that  case  in  regard  to  the  possible 
fraudulent  effect  of  partial  disclosure. 


678  MISREPRESENTATION    AND    FRAUD. 

reasons  for  this  are  obviously  of  a  different  kind:  nor  is  a  marriage 
settlement  rendered  voidable  by  the  wife's  non-disclosure  of  previous 
misconduct  (q). 

Voluntary  gifts.  As  to  voluntary  gifts  the  rule  is  that  a  gift  obtained 
by  a  misrepresentation  of  fact  made  however  innocently,  by  the  donee, 
may  be  recovered  back  by  the  donor  on  the  discovery  of  the  mistake. 
Such  gifts  must  be  regarded  as  conditional  on  the  truth  of  the  rep- 
resentation (r). 

553]  *Part  III. —  Fraud  or  Deceit. 

Fraud  generally  includes  misrepresentation.  Fraud  generally  includes 
misrepresentation.  Its  specific  mark  is  the  presence  of  a  dishonest 
intention  on  the  part  of  him  by  whom  the  representation  is  made,47 
or  of  recklessness  equivalent  to  dishonesty.  In  this  case  we  have  a 
mistake  of  one  party  caused  by  a  representation  of  the  other,  which 
representation  is  made  by  deliberate  words  or  conduct  with  the  inten- 
tion of  thereby  procuring  consent  to  the  contract,  and  without  a  belief 
in  its  truth. 

But  not  always:  as  when  a  contract  is  made  with  a  collateral  wrongful  or 
unlawful  purpose,  or  without  intention  of  performing  it.  There  are  some 
instances  of  fraud,  however,  in  which  one  can  hardly  say  there  is  a 
misrepresentation  except  by  a  forced  use  of  language.  It  is  fraudulent 
to  enter  into  a  contract  with  the  design  of  using  it  as  an  instrument 
of  wrong  or  deceit  against  the  other  party.  Thus  a  separation  deed 
is  fraudulent  if  the  wife's  real  object  in  consenting  or  procuring  the 
husband's  consent  to  it  is  to  be  the  better  able  to  renew  a  former 
illicit  intercourse  which  has  been  concealed  from  him.  "  None  shall 
be  permitted  to  take  advantage  of  a  deed  which  they  have  fraudulently 
induced  another  to  execute  that  they  may  commit  an  injury  against 
morality  to  the  injury  and  loss  of  the  party  by  whom  the  deed  is 
executed"  (s).  So  it  is  fraud  to  obtain  a  contract  for  the  transfer 
of  property  or  possession  by  a  representation  that  the  property  will  be 
used  for  some  lawful  purpose,  when  the  real  intention  is  to  use  it  for 

iq)  Evans  v.  Carrington   (1860):2  {s)   Evans  v.  Carrington  (1860)   t 

D.  F.  &  J.  481,  30  L.  J.  Ch.  364.     It  D.  F.  &  J.  481,  501,  30  L.  J.  Ch.  364; 

is   there   said   however   that  non-dis-  cp.  Evans  v.  Edmonds    (1853)    13  C. 

closure  of  adultery  would  be  enough  B.   777,   22   L.   J.   C.   P.   211,   where, 

to  avoid  a  separation  deed.  however,   express   representation  was 

(r)    Re  Glubb,  Bamfield  v.  Rogers  averred. 
[1900]    1   Ch.  354,   69   L.   J.   Ch.   278, 
C.  A. 

*1  See  School  Directors  v.  Boomhour,  83  111.  17-;  Kennedy  v.  McKay,  43 
N.  J.  L.  288. 


FRAUD  OR  DECEIT.  679 

an  unlawful  purpose  (t).  It  has  been  said  that  it  is  not  fraud  to 
make  a  contract  without  any  intention  of  performing  it,  because  per- 
adventure  the  party  may  think  better  of  it  and  perform  it  after  all : 
but  this  was  in  a  case  where  the  question  arose  wholly  on  the  form 
of  the  pleadings,  and  in  a  highly  technical  and  now  happily  [554 
impossible  manner  (u) .  And  both  before  and  since  it  has  repeatedly 
been  considered  a  fraud  in  law  to  buy  goods  with  the  intention  of  not 
paying  for  them  (a;).48  Here  it  is  obvious  that  the  party  would  not 
enter  into  the  contract  if  he  knew  of  the  fraudulent  intention:  but 

(t)   Feret  v.  Hill   (1854)    15  C.  B.  White   v.    Garden    (1851)     10    C.    B. 

207,  23  L.  J.  C.  P.  185,  concedes  this,  919,  923,  20  L.  J.  C.  P.  166;  Clough 

deciding    only   that    possession   actu-  v.  L.  <£  Y.  W.  Ry.  Co.   (1871)   L.  R. 

ally  given  under  the  contract  cannot  7  Ex.  26,  41  L.  J.  Ex.  17 ;  Ex  parte 

be  treated  as  a  mere  trespass  by  the  Whittaker   ( 1875 )    L.  R.   10  Ch.  446, 

party  defrauded.  449,  per  Mellish  L.J.  44  L.  J.  Bk.  91 ; 

(«)       Hemingway      v.      Hamilton  Donaldson  v.   Farioell    (1876)    93  U. 

(1838)   4  M.  &  W.  115,  51  R.  R.  497.  S.  631.     But  it  is  not  such  a  "false 

It    is    by   no    means    clear   that    the  representation  or  other  fraud "  as  to 

Court  really  meant  to  go  so  far:  see  constitute    a    misdemeanor    under    s. 

Pref.  to  51  R.  R.  11,    sub-s.    19    of    the    Debtors    Act, 

(a?)  Fergusonv.  Carrington  (1829)  1869:   Ex  parte  Brett    (1875)'  1   Ch. 

9  B.  &  C.  59;  Load  v.  Green  (1846)  Div.  151,  45  L.  J.  Bk    17. 
15  M.  &  W.  216,   15  L.  J.  Ex.   113; 

«Le  Grand  v.  Eufaula  Bank,  81  Ala.  123;  Wollmer  r.  Lehman,  85  Ala.  274 
McKenzie  r.  Rothschild,  119  Ala.  419;  Taylor  v.  Miss.  Mills,  47  Ark.  247;  Bug. 
v.  Shoe  Co.,  64  Ark.  12;  W.  W.  Johnson  Co.  r.  Triplett,  66  Ark.  233 
Thompson  r.  Rose,  16  Conn.  71;  Farwell  v.  Hanchett,  120  111.  573;  John  V 
Farwell  Co.  i\  Nathanson,  99  111.  App.  185 ;  Brower  v.  Goodyer,  88  Ind.  572 
Oswego  Starch  Factory  v.  Lendrum,  57  la.  573;  Lindauer  v.  Hay,  61  la.  663 
Reager  r.  Kendall,  19  Ky.  L.  Rep.  27;  Dow  v.  Sanborn,  3  Allen,  181;  Jordan 
v.  Osgood,  109  Mass.  457;  Shipman  v.  Seymour,  40  Mich.  274,  283;  Koch  r. 
Lyon,  82  Mich.  513;  Slagle  r.  Goodnow,  45  Minn.  531;  Fox  v.  Webster,  46 
Mo.  181;  Stewart  v.  Emerson,  52  N.  H.  301;  Johnson  v.  Monnell,  2  Keyes, 
655;  Hennequin  v.  Naylor,  24  N.  Y.  139;  Devoe  v.  Brandt,  53  N.  Y.  462; 
Wright  v.  Brown,  67  N.  Y.  1 ;  Whitten  v.  Fitzwater,  129  N.  Y.  626 ;  Des  Farges 
v.  Pugh,  93  N.  C.  31;  Talcott  v.  Henderson,  31  Ohio  St.  162;  Wilmot  r.  Lyon, 
49  Ohio  St.  296;  Mulliken  v.  Millar,  12  R.  I.  296;  Dalton  r.  Thurston,  15 
R.  I.  418;  Belding  v.  Frankland,  8  Lea,  67;  Lee  r.  Simmons,  65  Wis.  523. 
But  in  Pennsylvania,  unless  the  buyer  is  guilty  of  some  misstatement  or 
trick  or  artifice,  the  sale  is  not  fraudulent.  Re  Lewis,  125  Fed.  Rep.  143 : 
Smith  v.  Smith,  21  Pa.  367;  Bughman  v.  Bank,  159  Pa.  94.  The  mere  non- 
disclosure, by  a  purchaser,  of  his  insolvency  does  not  alone  amount  to  fraud. 
Biggs  v.  Barry,  2  Curtis,  259;  Morrill  p.  Blackman,  42  Conn.  324;  Kclsey  r. 
Harrison,  29  Kan.  143;  Houghtaling  iv Hills,  59  la.  287;  Powell  r.  Bradlee, 
9  G.  &  J.  220,  275,  276;  Diggs  r.  Denny,  86  Md.  116;  Illinois  Leather  Co.  r. 
Flynn,  108  Mich.  91 ;  Bidault  v.  Wales,  19  Mo.  36;  Nichols  V.  Pinner,  18  N.  Y. 
295;  Hennequin  v.  Naylor.  24  N.  Y.  139;  Morris  v.  Talcott,  96  N.  Y.  100,  107, 
108;  Talcott  r.  Henderson,  31  Ohio  St.  162;  Rodman  t.  Thalheimer,  75  Pa.  232; 
Garbutt  v.  Bank,  22  Wis.  384;  Consolidated  Milling  Co.  v.  Fogo,  104  Wis.  92. 
But  the  fact  that  the  buyer  had  no  reasonable  expectation  of  paying  may 
justify  the  inference  of  an  intention  not  to  pay.  Wilk  v.  Key,  117  Ala.  285: 
Deere  r.  Morgan,  114  la.  287;  Watson  r.  Silsby,  166  Mass.  57.  Cp.  Burchinell 
i'.  Hirsch,  5  Col.  App.  500;  Knitting  Co.  r.  Blanchard,  69  N.  H.  447;  Smith  v. 
Bank,  164  N.  Y.  386. 


680  MISREPRESENTATION    AND    FRAUD. 

the  fraud  is  not  so  much  in  the  concealment  as  in  the  character  of 
the  intention  itself.  It  would  be  ridiculous  to  speak  of  a  duty  of  dis- 
closure in  such  cases.  Still  there  is  ignorance  on  the  one  hand  and 
wrongful  contrivance  on  the  other,  such  as  to  bring  these  cases  within 
the  more  general  description  of  fraud  given  in  Ch.  IX.  p.  *439,  above. 

Right  of  rescinding  fraudulent  contract.  The  party  defrauded  is  en- 
titled, and  in  modern  times  has  always  been  entitled  at  law  as  well 
as  in  equity,  to  rescind  the  contract.  "  Fraud  in  all  courts  and  at  all 
stages  of  the  transaction  has  been  held  to  vitiate  all  to  which  it 
attaches  "  (y).*9 

Elements  of  fraud.  We  shall  now  consider  the  elements  of  fraud 
separately:  and  first  the  false  representation  in  itself.  It  does  not 
matter  whether  the  representation  is  made  by  express  words  or  by 
conduct,  nor  whether  it  consists  in  the  positive  assertion  or  suggestion 
of  that  which  is  false,  or  in  the  active  concealment  of  something  ma- 
terial to  be  known  to  the  other  party  for  the  purpose  of  deciding 
whether  he  shall  enter  into  the  contract.  These  elementary  rules  are 
so  completely  established  and  so  completely  assumed  to  be  established 
in  all  decisions  and  discussions  on  the  subject  that  it  will  suffice 
to  give  a  few  instances. 

555]  'Examples  of  fraudulent  representation.  There  may  be  a  false 
statement  of  specific  facts:  this  seldom  occurs  in  a  perfectly  simple 
form.  Canham  v.  Barry  (z)  is  a  good  example.  There  the  contract 
was  for  the  sale  of  a  leasehold.  The  vendor  was  under  covenant  with 
his  lessor  not  to  assign  without  licence,  and  had  ascertained  that  licence 
would  not  be  refused  if  he  could  find  an  eligible  tenant.  The  agree- 
ment was  made  for  the  purpose  of  one  M.  becoming  the  occupier, 
and  the  purchaser  and  M.  represented  to  the  vendor  that  M.  was  a 
respectable  person  and  could  give  satisfactory  references  to  the  land- 
lords, which  was  contrary  to  the  fact.  This  was  held,  to  be  a  fraudu- 
lent misrepresentation  of  a  material  fact  such  as  to  avoid  the  contract. 
A  more  frequent  case  is  where  a  person  is  induced  to  acquire  or 
become  a  partner  in  a  business  by  false  accounts  of  its  position  and 
profits  (a). 

(y)    Per  Wilde  B.  Udell  v.  Ather-  (a)      E.g.     Rawlins     v.     W'ickham 

ton  (1861)  7  H.  &  N.  at  p.  181,  30  (1858)  3  De  G.  4  J.  304,  28  L.  J. 
L.  J.  Ex.  337.  Ch.   188.     The  cases  where  contracts 

(2)  (1855)  15  C.  B.  597,  24  L.  J.  to  take  shares  have  been  held  void- 
C.  P.  100.  able    for    misrepresentation     in    the 

prospectus  are  of  the  same  kind. 

49 "  The  rule  is  universal,  whatever  fraud  creates  justice  will  destroy." 
Vre«land  v.  N.  J.  Stone  Co.,  29  N.  J.  Eq.  188;  Jones  c.  Emery,  40  N.  H.  348. 


EUAUD  OR  DECEIT.  681 

Or  the  representation  may  be  of  a  general  state  of  things:  thus 
it  is  fraud  to  induce  a  person  to  enter  into  a  particular  arrange- 
ment by  an  incorrect  and  unwarrantable  assertion  that  such  is  the 
usual  mode  of  conducting  the  kind  of  business  in  hand  (&).  How 
far  it  must  be  a  representation  of  existing  facts  will  be  specially  con- 
sidered. 

What  is  fraudulent  concealment.  "  Active  concealment "  seems  to  be 
the  appropriate  description  for  the  following  sorts  of  conduct:  taking 
means  appropriate  to  the  nature  of  the  case  to  prevent  the  other  party 
from  learning  a  material  fact — such  as  using  contrivances  to  hide  the 
defects  of  goods  sold  (c)  :50  or  making  a  statement  true  in  terms 
as  far  as  it  goes,  but  keeping  silence  as  to  other  things  which  if  dis- 
closed would  alter  the  whole  effect  of  the  statement,  so  that  what 
is  in  fact  told  is  a  half  truth  equivalent  to  a  falsehood  (d)  :B1  or 
allowing  *the  other  party  to  proceed  on  an  erroneous  belief  to  [556 
which  one's  own  acts  have  contributed  (e).  It  is  sufficient  if  it  ap- 
pears that  the  one  party  knowingly  assisted  in  inducing  the  other 
to  enter  into  the  contract  by  leading  him  to  believe  that  which  was 
known  to  be  false  (f) .  Thus  it  is  where  one  party  has  made  an  inno- 
cent misrepresentation,  but  on  discovering  the  error  does  nothing 
to  undeceive  the  other  (g).62    If,  when  he  has  better  knowledge,  he 

( 6 )  Reynell  v.   Sprye    ( 1852 )    1   D.  overrule  the  particular  decision,  per 

M.  &  G.  680,  21  L.  J.  Ch.  633.  Lord  Chelmsford,  L.  R.  6  H.  L.  391. 

(c)  See  Benjamin  on  Sale,  470.  (/)   Per  Blackburn  J.  Lee  v.  Jones 

(d)  Peek  v.  Gurney  (1873)  L.  R.  (1863)  17  C.  B.  N.  S.  at  p.  507,  34 
6  H.  L.   392,   403,  43   L.  J.   Ch.   19;  T..  J.   C.  P.  at  p.   140. 

Stewart     v.     Wyoming    Ranche     Co.  (g)    Reynell  v.  Sprye   (1852)    1  D. 

(1888)    128  TJ.  S.  383,  388.  M.  G.  at  p.  709;   Redgrave  v.  Burd 

(e)  Hill  v.  Gray  (1816)  1  Stark,  (1881)  20  Ch.  Div.  at  pp.  12,  13,  51 
434,  18  R.  R.  802,  as  explained  in  L.  J.  Ch.  113,  but  as  to  the  difference 
Keates  v.  Earl  Cadogan  (1851)  10  there  assumed  between  equity  and 
C.  B.  591,  600,  20  L.  J.  C.  P.  76;  qu.  common  law  see  per  Bowen  L.J.  in 
if    the   explanation    does    not   really  Newbigging  v.  Adam   (1886)    34  Ch. 

Div.  at  p.  594,  56  L.  J.  Ch.  275. 

60  Kenner  v.  Harding,  85  111.  264 ;  Singleton's  Admr.  v.  Kennedy,  9  B.  lion. 
222;  Croyle  v.  Moses,  90  Pa.  250. 

81 "  The  old  adage  applies,  that  half  the  truth  is  a  lie.''  Hadley  v.  Clinton 
Importing  Co.,  13  Ohio  St.  502,  513;  Gluckstein  v.  Barnes,  [1900]  A.  C.  240, 
250;  Henry  v.  Vance,  23  Ky.  L.  Rep.  491;  Newell  v.  Randall,  32  Minn.  171; 
Mallory  r.  Leach,  35  Vt.  156,  168. 

So  also  "  no  one  can  evade  the  force  of  the  impression  which  he  knows 
another  received  from  his  words  and  conduct,  and  which  he  meant  him  to 
receive,  by  resorting  to  the  literal  meaning  of  his  language  alone."  Mizner 
V.  Kussell,  29  Mich.  229;  Moline  Plow  Co.  v.  Carson,  72  Fed.  Rep.  387,  391; 
Ennis  V.  H.  Borner  &  Co.,  100  Fed.  Rep.  12  (C.  C.  A.)  ;  Van  Houten  v.  Morse, 
162  Mass.  414;  Remington  Co.  r.  Kezertee,  49  Wis.  409. 

52Davies  c.  Insurance  Co.,  8  Ch.  D.  469,  475;  Loewer  r.  Harris,  (C.  C.  A.) 
57  Fed.  Rep.  368;  Mudsill  Min.  Co.  r.  Watrous,  (C.  C.  A.)  61  Fed.  Rep.  163, 
189;  cp.  Pettigrew  v.  Chellis,  41  N.  H.  95. 


682  MISREPRESENTATION    AND    FRAUD. 

does  not  remove  the  error  to  which  he  contributed  in  excusable  igno- 
rance, he  is  no  longer  excused.  In  effect  he  is  continuing  the  repre- 
sentation with  knowledge  of  its  falsity. 

Representation  made  without  belief  in  its  truth:  actual  knowledge  of  false- 
hood not  necessary.  That  which  gives  the  character  of  fraud  or  deceit 
to  a  representation  untrue  in  fact  is  that  it  is  made  without  posi- 
tive belief  in  its  truth;  not  necessarily  with  positive  knowledge  of 
its  falsehood.  Where  a  false  representation  amounts  to  an  actionable 
wrong,  it  is  always  in  the  party's  choice,  as  an  alternative  remedy,  to 
seek  rescission  of  the  contract,  if  any,  which  has  been  induced  by  the 
fraud :  and  it  is  settled  that  a  false  representation  may  be  a  substan- 
tive ground  of  action  for  damages  though  it  is  not  shown  that  the  per- 
son making  the  statement  knew  it  to  be  false.  It  is  enough  to  show  that 
he  made  it  as  being  true  within  his  own  knowledge,  with  a  view  to 
secure  some  benefit  to  himself,  or  to  deceive  a  third  person,  and  with- 
out believing  it  to  be  true  (h). 

Effects  of  reckless  ignorance.  Mere  ignorance  as  to  the  truth  or  f alse- 
hood  of  a  material  assertion  which  turns  out  to  be  untrue  must  be 
557]  treated  as  *equivalent  to  knowledge  of  its  untruth.  "  If  per- 
sons 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  that  which  they 
knew  to  be  untrue"  (i).     In  other  words,  wilful  ignorance  may  have 

(h)    Taylor  v.   Ashton    (1843)    11  a  statement  of  the  Court  below  Which 

M.    &    W.    401,    12   L.    J.    Ex.    363;  was,    "in    substance,    that    a   person 

Evans  v.  Edmonds    (1853)    13  C.  B.  who    makes    representations    of    ma- 

777,  22  L.  J.  C.  P.  211.  terial    facts,    assuming   or   intending 

(i)    Per  Lord  Cairns,  BeeSe  River  to  convey  the  impression  that  he  has 

Silver   Mining   Co.   v.   Smith    ( 1869 )  actual  knowledge  of  the  existence  of 

L.  R.  ,4  H.  L.  79 ;  Rawlins  v.  Wick-  such  facts,  when  he  is  conscious  that. 

ham    (1858)    3  De  G.  &  J.  304.  316,  he  has  no  such  knowledge,  is  as  much 

28   L.   J.   Ch.   188.     At  common  law  responsible   for   the   injurious    conse- 

the  same. rule  was  given  by  Maule  J.  quences    of    such    representations    to 

in  Evans  v.  Edmonds    (1853)    13   C.  one  who  believes  and  acts  upon  them 

B.  777,  786,  22  L.  J.  C.  P.  211.     "I  as    if    he    had    actual    knowledge    of 

conceive    that    if   a    man    having   no  their  falsity;  that  deceit  may  also  be 

knowledge   whatever   on   the    subject  predicated  of  a  vendor  or  lessor  who 

takes    upon    himself   to    represent   a  makes    material    untrue    representa- 

certain    state   of   facts    to    exist,    he  tions  in  respect  to  his  own  business 

does  so  at  his  peril ;  and  if  it  be  done  or  property  for  the  purpose  of  their 

either    with    a   view    to    secure   some  being   acted  upon,   and  which   are  in 

benefit    to    himself    or    to    deceive    a  fact  relied  upon  by  the  purchaser  or 

third  person,  he  is  guilty  of  a.  fraud,  lessee,  the  truth  of  which  representa- 

for  he  takes  upon  himself  to  warrant  tions   the  vendor  or  lessor  is  bound 

his  own  belief  of  the  truth   of  that  and    must    be    presumed    to    know." 

which    be    so    asserts."       In    Lehigh  [Trimble    v.    Reid,    19    Ky.    L.    Rep. 

Zinc  and  Iron  Co.  v.  Bamford  ( 1893 '  604;  Weeks  v.  Currier,  172  Mass.  53; 

150    U.    S.     665,    673,    the    Supreme  Arnold  r.  Teel,   182  Mass.  1,  4:  Had- 

Court  of  the  United  States  approved  cock  v.  Osmer,  153  N.  Y.  604.] 


FRAUD  OE  DECEIT.  683 

the  same  consequences  as  fraud  (k).  So  may  ignorance  which,  though 
not  wilful,  is  reckless:  as  when  positive  assertions  of  fact  are  made 
as  if  founded  on  the  party's  own  knowledge,  whereas  in  truth  they  are 
merely  adopted  on  trust  from  some  other  person.  The  proper  course 
in  such. a  case  is  to  refer  distinctly  to  the  authority  relied  upon  (l).m 

However  it  is  now  settled  in  England  that  the  want  of  any  reason- 
able grounds  for  belief  in  one's  assertion  is  evidence,  but  only  evi- 
dence, that  it  was  uttered  without  any  real  belief  (m).54 

Silence  is  equivalent  to  misrepresentation  for  these  purposes  if 
"  the  withholding  of  that  which  is  not  stated  *makes  that  which  [558 
is  stated  absolutely  false,"  but  not  otherwise  (n).55 

Unwarranted  statement  of  mere  expectation  as  present  fact.  If  a  man 
expects,  however  honestly,  that  a  certain  state  of  things  will  shortly 
exist,  he  is  not  thereby  justified  in  asserting  by  words  or  conduct 
that  it  does  now  exist,  and  any  such  assertion,  if  others  have  acted 
on  the  faith  of  it  to  their  damage,  ought  to  be  a  ground  of  action 
for  deceit,  and  is  of  course  ground  for  rescinding  any  contract  ob- 
tained by  its  means.    A  stranger  who  accepts  a  bill  as  agent  for  the 

(k)    Owen  v.  Homan    (1851)    4  H.  (m)  Derry  v.  Peek   (1889)    14  App. 

L.  C.  at  p.  1035.  Ca.  337,  58  L.  J.  Ch.  864. 

(1)   Rawlins  v.  Wickham   (1858)   3  («)    Peek  v.  Gurney    (1873)    L.  E. 

De  G.  &  J.  at  p.  313,  'Smith's  case  6  H.  L.  377,  390,  403,  43  L.  J.  Ch.  19. 
(1867)    2  Ch.  at  p.  611. 

53  See  further  Boddy  v.  Henry,  113  la.  462;  Pieratt  v.  Young,  20  Ky.  L. 
Eep.  1815;  Nash  v.  Minnesota  Title  Co.,  163  Mass.  574;  Nickerson  v.  Mass. 
Title  Ins.  Co.,  178  Mass.  308,  311;  Hamlin  p.  Abell,  120  Mo.  188;  Gerner  v. 
Yates,  61  Neb.  100;  Houston  v.  Thornton,  122  N.  C.  365;  Lamberton  v.  Dun- 
ham, 165  Pa.  129;  Giddings  v.  Baker,  80  Tex.  308. 

54  But  see  14  Harv.  L.  Rev.  66,  184. 

55  In  Laidlaw  v.  Organ,  2  Wheat.  178,  there  was  a,  sale  of  tobacco  at  a  time 
when  the  buyers  knew,  but  the  sellers  did  not  know,  that  peace  had  been 
concluded  between  the  United  States  and  England.  The  sellers  asked  if 
there  was  any  news  affecting  the  market  price.  The  buyers  gave  no  answer, 
and  the  sellers  did  not  insist  on  having  one,  and  it  was  held  that  the  silence 
of  the  buyers  was  not  a  fraudulent  concealment.  See  also  Cleaveland  r. 
Eichardson,  132  U.  S.  318,  329;  Crowell  r.  Jackson,  53  N.  J.  L.  656;  Smith 
V.  Countryman,  30  N.  Y.  655,  683,  684;  Dambmann  v.  Schulting,  75  N.  Y. 
55 ;  Kintzing  v.  McElrath,  5  Pa.  467 ;  Neill  v.  Shamburg,  158  Pa.  263 ;  Fisher 
v.  Budlong,  10  R.  I.  525,  527,  528. 

A  person  who  knows  that  there  is  a  mine  on  the  land  of  another,  of  which 
the  latter  is  ignorant,  may  nevertheless  buy  the  land  without  disclosing  the 
existence  of  the  mine.  Smith  v.  Beatty,  2  Ired.  Eq.  456;  Caples  v.  Steel,  7 
Oreg.  491;  Harris  v.  Tyson,  24  Pa.  347.  And  see  Williams  v.  Spurr,  24  Mich. 
335  ;  Burt  v.  Mason,  97Mich.  127. 

But  otherwise  between  partners.  Hanley  v.  Sweeney,  109  Fed.  Eep.  712 
(C.  C.  A.). 

And  such  non-disclosure  may  afford  ground  for  a  court  of  equity  to  refuse 
specific  performance  of  a  contract.  Byars  v.  Stubbs,  85  Ala.  256;  Ames's 
Cas.  Eq.  Jur.  373,  n. 


684  MISREPRESENTATION    AND    FRAUD. 

drawee  on  the  chance  of  his  ratifying  the  acceptance  (o)  acts  at  his 
peril.  But  we  have  learnt  from  the  House  of  Lords  that  directors 
of  a  tramway  company  may  say  they  have  statutory  authority  to  use 
steam  power  when  they  only  expect  to  obtain  a  consent  which  the 
statute  requires  (p).  Representations  of  this  kind,  which  deliberately 
discount  the  future,  seem  to  be  of  a  different  kind  from  statements 
honestly  made  on  erroneous  information  of  existing  facts;  for  they 
are  in  their  nature  incompatible  with  belief  in  the  truth  of  the  as- 
sertion which  is  actually  made.  This  distinction  is  not  always 
clearly  brought  out  in  the  authorities. 

Sales  by  auction:  employment  of  puffer.  The  application  of  the  doc- 
trine of  fraud  to  sales  by  auction  is  peculiar.  The  courts  of  law  held 
the  employment  of  a  puffer  to  bid  on  behalf  of  the  vendor  to  be 
evidence  of  fraud  in  the  absence  of  any  express  condition  fixing  a 
reserve  price  or  reserving  a  right  of  bidding;  for  such  a  practice 
is  inconsistent  with  the  terms  on  which  a  sale  by  auction  is  assumed 
to  proceed,  namely  that  the  highest  bidder  is  to  be  the  purchaser, 
and  is  a  device  to  put  an  artificial  value  on  the  thing  offered  for 
sale  (q).5e  There  existed,  or  was  supposed  to  exist  (»•),  in  courts  of 
559]  equity  the  different  rule  that  the  employment  of  one  puffer  *to 
prevent  a  sale  at  an  undervalue  was  justifiable  (s)  with  the  extraor- 
dinary result  that  in  this  particular  case  a  contract  might  be  valid 
in  equity  which  a  court  of  law  would  treat  as  voidable  on  the  ground 
of  fraud.     The  Sale  of  Land  by  Auction  Act,  1867  (30  &  31  Vict.  c. 

(o)   Polhill  v.  Walter   (1832)   3  B.  (r)   Doubt  was  thrown  upon  it  in 

&  Ad.  114,  37  R.  R.  344.  Mortimer  v.  Bell  (1865)   L.  R.  i.  Cli. 

(p)   Derry  v.  Peek,  note    (m)    last  10,  16,  35  L.  J.  Ch.  25. 
page.  (s)     Smith    v.    Clarke     (1806)     12 

(q)   Green  V.  Baverstock  (1863)   14  Ves.    477,    483,    8    R.    R.    359,    363; 

C.  B.  N.  S.  204,  32  L.  J.  C.  P.  181.  Flint  v.  Woodin  (1852)   9  Ha.  618. 

56  Such  is  generally  held  to  be  the  rule  in  this  country  both  at  law  and  in 
equity.  Veazie  v.  Williams,  8  How.  134,  153;  Baham  v.  Bach,  13  La.  287; 
Curtis  r.  Aspinwall,  114  Mass.  187;  Springer  r.  Kleinsorge,  83  Mo.  152; 
Towle  r.  Leavitt,  23  N.  H.  360;  Bowman  v.  McClenahan,  20  N.  Y.  App.  Div. 
346;  Morehead  P.  Hunt,  1  Dev.  Eq.  35;  Woods  v.  Hall,  1  Dev.  Eq.  411;  Mc- 
Dowell v.  Simms,  6  lied.  Eq.  278;  Walsh  r.  Barton,  24  Ohio  St.  28,  46;  Pen- 
nock's  Appeal,  14  Pa.  446;  Staines  p.  Shore,  16  Pa.  200;  Yerkes  v.  Wil- 
son, 81*  Pa.  9;  Flannery  r.  Jones,  180  Pa.  338;  Hartwell  v.  Gurney,  16 
iR.  I.  78:  Peck  r.  List,  23  W.  Va.  338.  But  see  East  v.  Wood,  62  Ala. 
313;  McMillan  r.  Harris,  110  Ga.  72.  The  rule  which  has  been  some- 
times suggested  (Bank  v.  Sprague,  20  N.  J.  Eq.  159,  165;  Veazie  P.  Williams, 
3  Story,  611,  621),  that  the  fact  of  a  puffer  having  been  employed  will  not 
make  the  sale  voidable,  if,  after  the  bid  of  the  puffer,  there  is  a  bid  by  a  real 
buyer  before  the  bid  at  which  the  property  is  knocked  down  it  is  submitted 
is  unsound. 


FRAUD    IN    RELATION    TO    MARRIAGE.  685 

48),  assimilated  the  rule  of  equity  to  that  of  law.    The  Indian  Con- 
tract Act  (s.  123)  adopts  the  rule  of  the  common  law  (t). 

Fraud  in  relation  to  marriage.  Marriage  is,  to  some  extent,  an  ex- 
ception to  the  general  rule :  but  marriage,  though  including  a  contract, 
is  so  much  more  than  a  contract57  that  the  exception  is  hardly  a 
real  one.  The  English  rule  is  that  "  unless  the  party  imposed  upon 
has  been  deceived  as  to  the  person  and  thus  has  given  no  consent 
at  all  [or  is  otherwise  incapable  of  giving  an  intelligent  consent], 
there  is  no  degree  of  deception  which  can  avail  to  set  aside  a  contract 
of  marriage  knowingly  (u)  made"  (a;).68  Still  less  is  a  marriage 
rendered  invalid  by  the  parties  or  one  of  them  having  practised  a  fraud 
on  the  persons  who  performed  the  ceremony  or  the  authorities  of  the 
State  in  whose  jurisdiction  it  was  performed.  Where  a  marriage 
had  been  celebrated  in  due  form  by  Eoman  ecclesiastics  at  Rome  be- 
tween two  Protestants,  who  had  previously  made  a  formal  abjuration 
(the  marriage  not  being  otherwise  possible  by  the  law  of  the  place  as  it 
then  was),  it  was  held  immaterial  whether  the  abjuration  had  been 
sincere  or  not,  though  as  to  the  woman  there  was  strong  evidence  to 

show  that  it  was  not  (y). 

i 

(t)    "If  at  a  sale  by  auction  the  13.     Here  there  is  no  such  knowledge 

seller    makes    use    of    pretended    bid-  as  is  required  for  real  consent, 
dings  to  raise  the  price,  the  sale  is  (%)      Swift     v.     Kelly      (1835)      3 

voidable  at  the  option  of  the  buyer."  Knapp,   257,   293,   40   R.   R.    22,   48; 

(u)    A  ceremony  of  marriage  may  Moss  v.  Moss  [1897]  P.  263,  66  L.  J. 

be     inoperative     if     the     woman     is  P.  154,  and  as  to  the  different  views 

tricked    into    it    by    representations  held   in   America   and  elsewhere,   see 

that  it  is  not  a  marriage  but  a  be-  [1897]  P.  273  sqq. 
trothal;  though  in  this  country  such  (y) Swift  v.  Kelly  (1835)  3  Knapp, 

a  case  must  obviously  be  very  rare:  257,  40  R.  R.  22. 
Ford  v.  Stier  [1896]  P.  1,  65  L.  J.  P. 

57  See  Maynard  v.  Hill,  125  U.  S.  190;  Green  v.  State,  58  Ala.  190;  Maguire 
v.  Maguire,  7  Dana,  181,  183;  Adams  v.  Palmer,  51  Me.  481;  Lewis  v.  Tap- 
man,  90  Md.  294 ;  Wade  v.  Kalbfleisch,  58  N.  Y.  282,  284 ;  Bennett  v.  Bennett, 
116  N.  Y.  584,  598;  Ditson  p.  Ditson,  4  R.  I.  87,  101. 

58  In  this  country  at  least  one  exception  is  generally  admitted.  Where  at 
the  time  of  her  marriage  to  a  man  who  does  not  know  her  to  be  otherwise  than 
chaste,  a  woman  is  pregnant,  the  marriage  will,  at  the  suit  of  the  husband, 
be  declared  void  for  fraud.  Baker  v.  Baker,  13  Cal.  87 ;  Reynolds  v.  Reynolds, 
3  Allen,  605 ;  Donovan  v.  Donovan,  9  Allen,  140 ;  Sissung  v.  Sissung,  65  Mich. 
168;  Harrison  v.  Harrison,  94  Mich.  559;  Morris  v.  Morris,  Wright  (Ohio). 
630;  Oarris  v.  Carris,  24  N.  J.  Eq.  516;  Allen's  Appeal,  99  Pa.  196.  Contra, 
Long  r.  Long,  77  N.  C.  304.     And  see  Smith  i:  Smith,  8  Oreg.  100. 

Likewise  concealment  of  a  chronic  contagious  venereal  disease.  Smith  r. 
Smith,  171  Mass.  404;  Crane  v.  Crane,  62  N.  J.  Eq.  21;  Anonymous,  49  N.  Y. 
Supp.  331;  Ryder  v.  Ryder,  66  Vt.  158.  Contra,  in  Massachusetts  if  the  mar- 
riage has  been  consummated.     Vondal  v.  Vondal,  175  Mass.  383. 

For  a  full  examination  of  the  question  as  to  what  kind  of  fraud  will  render 
a  marriage  voidable,  see  Bishop  on  Marr.  &  Div.,  §§  165-206;  13  Harv.  L.  Rev. 
110. 


686  MISREPRESENTATION    AND    FRAUD. 

560]  *Consent  of  third  persons  obtained  by  fraud.  We  may  observe  in  this 
place  that  when  the  consent  of  a  third  party  is  required  to  give  com- 
plete effect  to  a  transaction  between  others,  that  consent  may  be  void- 
able if  procured  by  fraud,  and  the  same  rules  are  applied,  so  far  as 
applicable,  which  determine  the  like  questions  as  between  contracting 
parties.  Thus  where  the  approval  of  the  directors  is  necessary  for  the 
transfer  of  shares  in  a  company;  a  false  description  of  the  transferee's 
condition,  such  as  naming  him  "  gentleman  "  when  he  is  a  servant 
or  messenger,  or  a  false  statement  of  a  consideration  paid  by  him  for 
the  shares,  when  in  truth  he  paid  nothing  or  was  paid  to  execute  the 
transfer,  is  a  fraud  upon  the  directors,  the  object  being  to  mislead 
them  by  the  false  suggestion  of  a  real  purchase  of  the  shares  by  a  man 
of  independent  position ;  and  on  a  winding-up  the  Court  will  replace 
the  transferor's  name  on  the  register  for  the  purpose  of  making  him 
a  contributory  (z). 

(e)  Ex  parte  Kintrea  (1869)  L.  R.        (1869)   L.  R.  9  Eq,  223;  Lindley  on 
5  Ch.  95,  39  L.  J.  Ch.  193;   Payne's       Companies,  827. 
case      (1869)      and     Williams'     case 


RESCISSION    OF    VOIDABLE    CONTEACTS.  687 

*CHAPTEE  XI.  [561 

The  Right  of  Rescission. 

page.  page. 

General  rules  as  to  rescission  for  Rights   of   party   misled:    option 

misrepresentation   or   fraud,        687  to  rescind,                                        705 

The  representation  relied  on  must  Election  how  to  be  made,                707 

__  be  of  fact'                                          688  Right  exerciseable  by  and  against 

Not  of  mere  matter  of  opinion,       691  representatives,                                712 

The  representation  must  be  such  No   rescission  where   the   former 

as  to  induce  the  contract,           693  state   of  things   cannot  be   re- 
Effect    of    party    misled    having  stored,                                                712 

means  of  knowledge,                     693  No    rescission    against    innocent 

Materiality   of  representation,        696  purchasers  for  value,                    715 

Contracts     connected    with     pre-  Distinction  in  cases  of  obtaining 

vious  fraud,                                      698  goods  by  fraud  where  no  prop- 
Representation    must    be    by    a  erty  passes,                                      718 

party  to  the  contract,                   698  Repudiation  of  shares,                       719 
Representations    of    agents    and  Rescission  must  be  within  reason- 
liability  of  principals,                   699  able  time,  i.e.  a  time  not  such 
Statements  of  directors  and  pro-  as  to  show  acquiescence,               721 

moters,                                            702  Special  duties  of  shareholders  in 

Agent  always  liable  for  his  own  companies,                                         723 

wrong,                                                703  Result  of  unfounded   charges   of 

Representation  must  be  in  same  fraud,                                              724 

transaction,                                     703  Cancellation  of  instruments,           725 

Examination  of  questions  on  rescission  of  voidable  contracts.  We  have 
mow  to  examine  a  class  of  conditions  which  apply  indifferently,  or 
very  nearly  so,  to  cases  of  simple  misrepresentation  (that  is,  where 
the  truth  of  a  representation  is  in  any  way  of  the  essence  of  a  contract) 
and  cases  of  deceit.  Some  of  them,  indeed,  extend  to  all  contracts 
which  are  or  have  become  voidable  for  any  cause  whatever. 

The  questions  to  be  dealt  with  may  be  stated  as  follows: 

What  must  be  shown  with  regard  to  the  representation  itself  to  give 
a  right  to  relief  to  the  party  misled? 

What  is  the  extent  of  that  right,  and  within  what  bounds  can  it 
be  exercised  ? 

In  1888  the  Supreme  Court  of  the  United  States  (a)  thus  summed 
up  the  points  which  a  plaintiff  in  an  action  for  the  rescission  of  a 
contract  must  establish: — 

1.  That  the  defendant  has  made  a  representation  in  regard  to  a 
material  fact; 

(a)  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  250. 


688  THE    KKiHT    01'    J!i:,S('ISS10X. 

2.  That  such  representation  is  false  ; 

3.  That  such  representation  was  not  actually  believed  by  the  de- 
fendant (b)  to  be  true; 

4.  That  it  was  made  with  intent  that  it  should  be  acted  upon; 

5.  That  it  was  acted  on  by  complainant  to  his  damage ; 

6.  That  in  so  acting  on  it  the  complainant  was  ignorant  of  its 
falsity  and  reasonably  believed  it  to  be  true. 

562]     *1.  As  to  the  representation  itself. 

A.  It  must  be  of  matter  of  fact,  not  of  law  (but  qu.  as  to  deliberate 
fraud).  It  must  (except,  it  would  seem,  in  a  case  of  actual  fraud)  be 
a  representation  of  fact,  as  distinguished  on  the  one  hand  from  matter 
of  law,  and  on  the  other  hand  from  a  matter  of  mere  opinion  or 
intention. 

As  to  the  first  branch  of  the  distinction,  there  is  authority  at 
common  law  that  a  misrepresentation  of  the  legal  effect  of  an  instru- 
ment by  one  of  the  parties  to  it  does  not  enable  the  other  to  avoid 
it  (c).  And  in  equity  there  is  no  reason  to  suppose  that  the  rule  is 
otherwise,  though  the  authorities  only  go  to  this  extent,  that  no  in- 
dependent liability  can  arise  from  a  misrepresentation  of  what  is 
purely  matter  of  law  (d)1.     But  this  probably  does  not  apply  to  a 

(h)   The  Court  adds,  on  reasonable  (d)  Rashdall  v.  Ford  (1866)  L.  R. 

grounds.     The  House  of  Lords,  as  we  2  Eq.  750,  35  L.  J.  Ch.  769;  Beattie 

have    seen    (pp.    *557,    *558,    above),  v.   Lord   Ebury    (1872)    L.  R.   7   Ch. 

has  decided  otherwise  for  England.  777,  802,  L.  R.  7  H.  L.   102.   130,  41 

(c)    Levns  v.  Jones    (1825)    4  B.  &  L.  J.  Ch.  804,  44  ib.  20   (the  House  of 

C.  506,  28  R.  R.  360.     Not  so  if  the  Lords  held  there  was  no  misrepresen- 

actual  contents  or  nature  of  the  m-  tation  at  all.) 
strument   are  misrepresented,   as   we 
saw  in  Ch.  IX. 

i  That  as  a  general  rule  a  misrepresentation  of  a  matter  of  law  neither 
constitutes  ground  for  avoiding  a  contract,  nor  gives  rise  to  any  independent 
liability.    See  Sturm  v.  Boker,  150  U.  S.  312;  Union  Bank  v.  German  Ins.  Co., 

71  Fed.  Rep.  473;  Martin  v.  Wharton,  38  Ala.  637;  Beall  v.  McGehee,  57 
Ala.  438;  Davis  v.  Betz,  66  Ala.  206;  People  v.  San  Francisco,  27  Cal.  655; 
Fish  v.  Cleland,  33  111.  238;  Dillman  c.  Nadlehoffer,  119  111.  567;  Rus- 
sell i.  Branham,  8  Blackf.  277;  Clem  v.  Railroad  Co.,  9  Ind.  488;  Parker 
v.  Thomas,  19  Ind.  213,  219;  Burt  v.  Bowles,  69  Ind.  1;  Clodfelter  v.  Hulett, 

72  Ind.  137,  143;  Insurance  Co.  r.  Brehm,  88  Ind.  578;  Thompson  v.  Insur- 
ance Co.,  75  Me.  55;  Abbott  ?.  Treat,  78  Me.  121;  Jaggar  r.  Winslow,  30 
Minn.  263 ;  Starr  v.  Bennett,  5  Hill,  303 ;  Insurance  Co.  r.  Reed.  33  Ohio  St. 
283,  293.  Cp.  Wall  r.  Meilke.  89  Minn.  232.  In  Upton  n.  Tribilcock,  91 
U.  S.  45,  50,  the  representation  having  been  as  to  the  law  of  another  State, 
should,  it  is  submitted,  have  been  treated  as  a  representation  of  fact.  Upton 
v.  Englehart,  3  Dill.  496,  501 ;  Bethell  v.  Bethell,  92  Ind.  318;  Wood  r.  Boeder, 
50  Neb.  476.  But  see  Mutual  L.  I.  Co.  r.  Phinney,  178  U.  S.  327,  341.  Cp. 
supra,  pp.  530,  557,  n.  48. 


REPRESENTATIONS    OF    FACT    OR   OTHERWISE.  689 

deliberately  fraudulent  mis-statement  of  the  law  (e)2.  The  circum- 
stances and  the  position  of  the  parties  may  well  be  such  as  to  make 
it  not  imprudent  or  unreasonable  for  the  person  to  whom  the  state- 
ment was  made  to  rely  on  the  knowledge  of  the  person  making  it: 
and  it  would  certainly  work  injustice  if  it  were  held  necessary  to 
apply  to  such  a  case  the  maxim  that  every  one  is  presumed  to  know 
the  law.  The  reason  of  the  thing  seems  to  be  that  in  ordinary  cases 
the  law  is  equally  accessible  to  both  parties,  and  statements  about  it 
are  equally  verifiable  by  both,  or  else  are  in  the  region  of  mere  opinion. 
But  there  is  no  need  to  extend  this  to  exceptional  cases.  At  all  events 
the  rule  applies  only  to  pure  propositions  of  law.  The  existence  and 
actual  contents  of  e.g.  a  private  Act  of  Parliament  are  as  much  mat- 
ters of  fact  as  any  other  concrete  facts  (/).  < 

*And  not  of  mere  motive  or  intention.  As  to  the  second  branch,  [563 
we  may  put  aside  the  cases  already  mentioned  in  which  the  substance 
of  the  fraud  is  not  misrepresentation,  but  a  wrongful  intention  going 
to  the  whole  matter  of  the  contract.  Apart  from  these  it  appears  to 
be  the  rule  that  a  false  representation  of  motive  or  intention,  not 
amounting  to  or  including  an  assertion  of  existing  facts,  is  inopera- 
tive. "  It  is  always  necessary  to  distinguish,  when  an  alleged  ground 
of  false  representation  is  set  up,  between  a  representation  of  an  exist- 
ing fact  which  is  untrue  and  a  promise  to  do  something  in 
future"  (g).3     On  this  ground  was  put  the  decision  in  Vernon  v. 

(e)    Hirschfeld   v.   London,   Brigh-       Bank  v.  Kitson   (1884)    13  Q.  B.  Div. 
ton  &  South  Coast  Ry.  Co.    (1876)  2        at  p.  363. 
Q.  B.  D.  1,  46  L.  J.  Q.  B.  1;  Bowen  {f)  Bowen  L.J.  ubi  sup. 

L.J.    in    West    London    Commercial  (g)   Mellish  L.J.  Ex  parte  Burrell 

(1876)   1  Ch.  Div.  at  p.  552. 

2  Townsend  v.  Cowles,  31  Ala.  428;  Ross  v.  Drenkard's  Admr.,  35  Ala.  434; 
Sims  v.  Ferrill,  45  Ga.  585 ;  Titus  v.  Rochester  Ins.  Co.,  97  Ky.  567 ;  Headley 
v.  Pickering,  23  Ky.  L.  Rep.  905;  Motherway  v.  Hall,  168  Mass.  333;  Berry 
v.  Whitney,  40  Mich.  65;  Stumpf  v.  Stumpf,  7  Mo.  App.  272;  Westervelt  r. 
Demarest,  46  N.  J.  L.  37;  Cooke  v.  Nathan,  16  Barb.  342;  Berry  r.  American 
Ins.  Co.,  132  N.  Y.  49;  Haviland  v.  Willets,  141  N.  Y.  35;  Moreland  v.  Atchi- 
son, 19  Tex.  303;  Shuttler  r.  Brandfass,  41  W.  Va.  201. 

3  Sawyer  v.  Prickett,  19  Wall.  146;  Fenwick  r.  Grimes,  5  Cr.  C.  C.  439; 
Huber  v.  Guggenheim,  89  Fed.  Rep.  598;  Birmingham  Co.  v.  Elyton  Co.,  93 
Ala.  549 ;  Harrington  v.  Rutherford,  38  Fla.  321 ;  Gage  v.  Lewis,  68  111.  604 ; 
Day  v.  Fort  Scott  Co.,  153  111.  293 ;  Long  v.  Woodman,  58  Me.  49 ;  Hazlett  v. 
Burge,  22  la.  535;  Burt  r.  Bowles,  69  Ind.  1;  Livermore  r.  Land  Co.,  106  Ky. 
140;  Johnson  r.  Stockham,  89  Md.  358;  Knowlton  r.  Keenan,  146  Mass.  86; 
Dawe  v.  Morris,  149  Mass.  188;  Perkins  r.  Lougee,  6  Neb.  220;  Fisher  v. 
N.  Y.  Com.  Pleas,  18  Wend.  608 :  Armstrong  r.  Karshner.  47  Ohio  St.  276.  294; 
Landreth  Co.  v.  Schevenel,  102  Tenn. '486;  Orr  v.  Goodloe,  93  Va.  263;  Buena 
Vista  Co.  v.  Billmyer,  48  W.  Va.  382;  Patterson  v.  Wright,  64  Wis.  289; 
Sheldon  v.  Davidson,  85  Wis.  138. 

But  a  representation  of  present  intention  is  a  statement  of  fact.    "  The  state 
of  a  man's  mind  is  as  much  a  fact  as  the  state  of  his  digestion."     Edging- 
44 


690  THE    RIGHT    OF    EESCISSION. 

Keys  (7i),  where  the  defendant  bought  a  business  on  behalf  of  a 
partnership  firm.  The  price  was  fixed  at  1,5001.  on  his  statement 
that  his  partners  would  not  give  more :  a  statement  afterwards  shown 
to  be  false  by  the  fact  that  he  charged  them  in  account  with  a 
greater  price  and  kept  the  resulting  difference  in  their  shares  of  the 
purchase-money  for  himself.  It  was  held  that  the  vendor  could  not 
maintain  an  action  of  deceit,  as  the  statement  amounted  only  to 
giving  a  false  reason  for  not  offering  a  higher  price.4  The  case  also 
illustrates  the  principle  that  collateral  fraud  practised  by  or  against 
a  third  person  does  not  avoid  a  contract.  Here  there  was  fraud,  and 
of  a  gross  kind,  as  between  the  buyer  and  his  partners ;  but  we  must 
dismiss  this  from  consideration  in  order  to  form  a  correct  estimate 

(h)     (1810)     12   East,    632,    in   Ex.  which  is  to  "tell  every  falsehood  he 

Ch.  4  Taunt.  488,  11  R.  R.  499.     The  can  to  induce  a  buyer  to  purchase," 

language  used  in  the  Ex.  Ch.  to  the  is   of  course   not  to  be   literally   ae- 

effect  that  the  buyer's  liberty  must  cepted. 
be     co-extensive     with     the     seller's, 

ton  v.  Fitzmaurice,  29  Ch.  D.  459;  Old  Colony  Trust  Co.  v.  Dubuque  Light  Co., 
89  Fed.  Rep.  794,  802;  Dean  v.  Oliver,  131  Ala.  634;  Crowley  v.  Langdon,  127 
Mich.  51;  Swift  v.  Rounds,  19  R.  I.  527.  See  also  9  Hare.  L.  Rev.  424;  ante, 
p.  *554,  n.  48. 

*  A  false  reason  for  wanting  to  buy  was  held  not  to  amount  to  fraud  in 
Byrd  v.  Rautman,  85  Md.  414. 

"  The  language  of  some  cases  certainly  seems  to  suggest  that  bad  faith 
might  make  a  seller  liable  for  what  are  known  as  sellers'  statements,  apart 
from  any  other  conduct  by  which  the  seller  is  fraudulently  induced  to  forbear 
inquiries.  But  this  is  a  mistake.  It  is  settled  that  the  law  does  not  exact 
good  faith  from  a  seller  in  those  vague  commendations  of  his  wares  which 
manifestly  are  open  to  difference  of  opinion,  which  do  not  imply  untrue 
assertions  concerning  matters  of  direct  observation  and  as  to  which  it  always 
has  been  '  understood,  the  world  over,  that  such  statements  are  to  be  dis- 
trusted.' "  Holmes,  J.,  in  delivering  the  opinion  of  the  court  in  Deming  v. 
Darling,  148  Mass.  504,  where  it  was  held  that  representations  that  a  bond 
"  was  of  the  very  best  and  safest,  and  was  an  A  No.  1  bond,"  and  that  "  the 
railroad  mortgage  was  good  security  for  the  bonds,"  though  false  and  made 
in  bad  faith  afforded  no  ground  for  an  action.  But  see  Stover's  Admr.  v. 
Wood,   26  N.  J.   Eq.  417. 

So  in  Massachusetts  and  some  other  States  it  is  held  that  a  false  statement 
by  the  seller  of  the  price  paid  by  him  for  the  property  is  not  legally  fraudu- 
lent. Mackenzie  v.  Seeberger,  76  Fed.  Rep.  108  ( C.  C.  A. )  ;  Banta  i:  Palmer, 
47  111.  99;  Tuck  v.  Downing,  76  111.  71;  Sowers  r.  Parker,  59  Kan.  12;  Hol- 
brook  v.  Connor,  60  Me.  578;  Bourn  r.  Davis,  76  Me.  223;  Braley  r.  Powers. 
92  Me.  203,  205;  Hemmer  r.  Cooper,  8  Allen,  334;  Cooper  v.  Levering,  106 
Mass.  77  ;  Wav  r.  Rvther,  165  Mass.  226  (cp.  Manning  r.  Albee,  11  Allen,  520; 
Kilgore  r.  Bruce,  166  Mass.  136).  See  also  Page  r.  Parker,  43  N.  H.  363. 
This  result  seems  unsound  in  theory,  for  the  amount  paid  by  the  seller  i» 
a  fact  and  a  material  one,  and  is  opposed  to  excellent  authority.  Gluckstein 
».  Barnes,  [1900]  A.  C.  240,  247;  Zang  v.  Adams,  23  Col.  408;  Dorr  v. 
Cory,  108  la.  725;  Stoney  Creek  Co.  v.  Smalley,  111  Mich.  321;  Fairchild  t. 
McMahon,  139  N.  Y.  290;  Harlow  v.  La  Brum,  151  N.  Y.  278;  Townsend  r. 
Felthousen,  156  N.  Y.  618,  627.  See  also  Coolidge  v.  Rhodes,  199  111.  24;  Kil- 
gore i-.  Bruce,  166  Mass.  136;  Conlan  v.  Roemer,  52  N.  J.  L.  53,  57;  Smith, 
Kline  &  French  Co.  v.  Smith,  166  Pa.  563 ;  Edelman  r.  Latshaw,  180  Pa.  419. 


REPRESENTATIONS    01?    FACT    OR   OTHERWISE.  691 

of  the  decision  as  between  the  buyer  and  seller.  It  must  be  judged 
of  as  if  the  buyer  had  communicated  the  whole  thing  to  his  partners 
and  charged  them  only  with  the  price  really  given.  Still  the  decision 
can  hardly  be  supported  unless  on  the  ground  of  failure  to  prove 
damage.  For  the  buyer  was  the  agent  of  the  firm,  and  in  sub- 
stance *made  a  wilfully  false  statement  as  to  the  extent  of  his  [564 
authority. 

The  Judicial  Committee  has  held  that  it  is  clearly  fraudulent  for 
A.  and  B.  to  combine  to  sell  property  in  B.'s  name,  B.  not  being  in 
truth  the  owner  but  only  an  intermediate  agent,  and  the  nominal 
price  not  being  the  real  price  to  be  paid  to  the  owner  A.,  but  includ- 
ing a  commission  to  be  retained  by  B.  (i).5  And  under  particular 
conditions  a  statement  of  intention,  such  as  the  purpose  to  which  a 
proposed  loan  is  intended  to  be  applied,  may  be  a  material  statement 
of  fact  (1-).  On  principle  A.'s  existing  intention  seems  to  beas  much 
a  fact  for  B.  as  anything  else. 

Statements  of  matter  of  opinion.  It  needs  no  authority  to  show  that 
a  statement  of  what  is  merely  matter  of  opinion  cannot  bind  the  per- 
son making  it  as  if  he  had  warranted  its  correctness.6     And  it  is 

(i)      Lindsay     Petroleum     Go.     v.  376,   46   L.  J.   Q.   B.   570,   where  the 

Kurd   (1874)   L.  R.  5  P.  C.  221,  243.  C.  A.  refused  to  follow  the  Judicial 

This  no  doubt  cannot  actually  over-  Committee,     also    Smith    v.     Brmvn 

rule  the  reasons  given  for  the  deci-  (1871)    L.  R.   6   Q.  B.  at  p.   736,  .40 

sion  in  Vernon  v.  Keys:  for  decisions  L.  J.  Q.  B.  214. 

of    the    Judicial    Committee,    though  (k)      Edgington     v.      Fitzmaunce 

they    carry    great    weight,    are    not  (1885)   29  Ch.  Div.  459,  480,  483,  55 

binding     in     English     Courts:      see  L.  J.  Ch.  650. 
Irtask  v.  Scott    (1877)    2  Q.  B.  Div. 

5  See  Bunn  v.  Schnellbacher,  163  111.  328;  Stoney  Creek  Co.  v.  Smalley,  111 
Mich.  321;  Yeoman  v.  Lasley,  40  Ohio  St.  190;  Limited  Investment  Assoc,  r. 
Glendale  Investment  Assoc,  99  Wis.  54. 

6  A  statement  of  what  is  merely  matter  of  opinion  neither  affords  ground 
for  rescission  nor  creates  liability  as  for  deceit.  See  further,  Southern  De- 
velopment Co.  v.  Silva,  125  U.  S.  247;  Beeves  v.  Corning,  51  Fed.  Rep.  774; 
Bement  v.  La  Dow,  66  Fed.  Rep.  185;  Stephens  v.  Alabama  Co.,  121  Ala. 
450;  Beyer  v.  National  Assoc,  131  Ala.  369;  Motes  v.  People's  Assoc,  137 
Ala.  369;  Nounnan  v.  Sutter  County  Co.,  81  Cal.  1;  Jefferson  v.  Hewitt,  95 
Cal.  535;  Sherwood  v.  Salmon,  2  Day,  128;  Crocker  v.  Manley,  164  111.  282; 
Hunter  v.  McLaughlin,  43  Ind.  38;  Neidefer  v.  Chastain,  71  Ind.  363;  Clark  v. 
Ralls,  50  la.  275 ;  McClanahan  v.  McKinley,  52  la.  222 ;  Holbrook  v.  Connor, 
60  Me.  578;  Bishop  v.  Small,  63  Me.  12;  Gordon  v.  Parmelee,  2  Allen,  212; 
Manning  v.  Albee,  11  Allen,  520;  Mooney  r.  Miller,  102  Mass.  217;  Tucker 
v.  White,  125  Mass.  344;  Nash  v.  Minnesota  Title  Co.,  159  Mass.  437;  Wade 
t'.  Ringo,  122  Mo.  322;  Akin  v.  Kellogg,  119  N.  Y.  441;  Lyons  v.  Briggs,  14 
R.  I.  222;  Lake  r.  Tyree,  90  Va.  719. 

So  false  statements  as  to  value  are  immaterial.  Gordon  v.  Butler,  105  TJ.  S. 
553 ;  Cronk  r.  Cole,  10  Ind.  485 ;  Sieveking  r.  Litzler,  31  Ind.  13 ;  Kennedy  i?. 
Richardson,  70  Ind.  524;  Neidefer  V.  Chastain,  71  Ind.  363;  Shade  v.  Creviston, 
93  Ind.  591;  Van  Vechten  r.  Smith,  59  la.  173;  Lucas  v.  Crippen,  76  la.  507; 


69'2  THE    EIGHT    OF    RESCISSION. 

said  that  if  a  man  makes  assertions,  as  of  matter  of  fact  within 
his  own  knowledge,  concerning  that  which  is  by  its  nature  only 
matter  of  more  or  less  probable  repute  and  opinion,  he  is  not  legally 
answerable  as  for  a  deceit  if  the  assertion  turns  out  to  be  false  (/). 
But  it  seems  doubtful  if  this  could  be  upheld  at  the  present  day.  For 
surely  the  affirmation  of  a  thing  as  within  my  own  knowledge 
implies  the  affirmation  that  I  have  peculiar  means  of  knowledge: 
565]  and  *if  I  have  not  such  means,  then  my  statement  is  false 
and  I  shall  justly  be  held  answerable  for  it,  unless  indeed  the  special 
knowledge  thus  claimed  is  of  a  kind  manifestly  incredible. 

Ambiguous  statements.  Statements  which  in  themselves  are  ambigu- 
ous cannot  be  treated  as  fraudulent  merely  because  they  are  false  in 
some  one  of  their  possible  senses.  In  such  a  case  the  party  who 
complains  of  having  been  misled  must  satisfy  the  Court  that  he 
understood  and  acted  on  the  statement  in  the  sense  in  which  it 
was  false  (m). 

(I)    Eaycraft  v.   Creasy    (1801)    2  founded  on  that  which  appeared   to 

East,   92,    6   R.    R.   380.      [Approved  all   the   world.      So    a    statement    of 

and  followed  in  Cowley  v.  Smyth,  46  confident  expectation  of  profits  must 

N.   J.   L.   380 ;    but  see   contra  Had-  be   distinguished    from    an    assertion 

cock  v.  Osmer,  153  N.  Y.  604;  Parm-  as  to  profits  actually  made:  Bellairs 

lee  v.  Adolph,  £8  Ohio  St.  22.]     Here  v.   Tucker    (1884)    13   Q.   B.   D.    562. 

the  defendant  had  stated,  as  a  fact  [Sawyer   v.   Prickett,   10   Wall.    146; 

within    his    own    knowledge,    that    a  Tuck  v.  Downing,  76  111.  71;  Swan  v. 

person  was  solvent  who  appeared  to  Mathre,  103  la.  261]. 
have   ample    means,   but   turned   out  (m)    Smith  v,  Chadicick   (1884)    9 

to  be  an  impostor.     The  majority  of  App.   Ca.  187,  51   L.  J.  Ch.  597,  see 

the  Court  seem  to  have  thought  that  especially  per  Lord  Blackburn  at  pp. 

the    plaintiff    must    in    the    circum-  199-201.     The  language  used  in  Hal- 

stances  have  known  the  defendant  to  lows  v.  Fernie  (1868)  L.  R.  3  Ch.  at 

be      expressing      only      an      opinion  p.   476,   seems  to  go  too  far.     Lord 

Graffenstein  r.  Epstein,  23  Kan.  443;  Graham  r.  Pancoast,  30  Pa.  89;  Cooper 
v.  Lovering,  106  Mass.  77;  Poland  v.  Brownell,  131  Mass.  138;  Lilienthal  v. 
Suffolk  Co.,  154  Mass.  185;  Cornwall  v.  McFarland,  150  Mo.  377;  Garrison 
v.  Teehnic  Works,  55  N.  J.  Eq.  708,  715;  Davis  v.  Meeker,  5  Johns.  354;  Ellis 
v.  Andrews,  56  N.  Y.  83;  Chrysler  v.  Canadav,  90  N.  Y.  272;  Saunders  v. 
Hatterman,  2  Ired.  L.  32;  Mosher  v.  Post,  89"  Wis.  602.  Except  where  the 
parties  have  not  equal  means  of  knowledge,  or  means  are  used  to  prevent  dis- 
covery of  the  real  value.  Mudsill  Min.  Co.  v.  Watrous,  61  Fed.  Rep.  163 
(C.  C.  A.);  Allen  v.  Hart,  72  111.  104;  Murrav  i.  Tolman,  162  111.  417; 
O'Donnell  Brewing  Co.  v.  Farrar,  163  111.  471;  Bish  r.  Beatty,  111  Ind.  403; 
Coulter  v.  Clark,  160  Ind.  311;  Picard  v.  McCormick,  11  Mich.  68;  French  v. 
Ryan,  104  Mich.  625;  Miller  v.  Voorheis,  115  Mich.  356;  Griffin  v.  Farrier, 
32  Minn.  474;  Hedin  r.  Minneapolis  Institute,  62  Minn.  146;  Villett  v. 
Moler,  82  Minn.  12,  17;  Conlan  v.  Roemer,  52  N.  J.  L.  53;  Simar  r.  Canaday, 
53  N.  Y.  298;  People  v.  Peckens,  153  N.  Y.  576,  592;  Bowen  v.  Fenn,  90  Pa. 
359;  Edelman  v.  Latshaw,  180  Pa.  419;  McClellan  r.  Scott,  24  Wis.  SI; 
Maltby  r.  Austin,  65  Wis.  527.  See  also  Shelton  v.  Healy,  74  Conn.  265; 
Elerick  r.  Reid.  54  Kan.  57 :  Hess  v.  Draffen,  99  Mo.  App.  580 ;  Titus  v.  Poole, 
145  N.  Y.  414;  Handy  v.  Waldron.  18  R.  I.  567;  Shaw  p.  Gilbert,  111  Wis. 
165,  and  a  note  on  the  whole  question  in  35  L.  R.  A.  417. 


REPRESENTATION    MUST    INDUCE    THE    CONTRACT.  693 

B.  The  representation  must  induce  the  contract.  The  representation 
must  be  such  as  to  induce  the  contract  (dans  locum  cont^actui)  (n).7 

No  relief  to  a  party  who  has  acted  on  his  own  judgment.  Relief  cannot 
be  given  on  the  ground  of  fraud  or  misrepresentation  to  a  party  who 
has  in  fact  not  acted  on  the  statements  of  the  other,  but  has  taken 
steps  of  his  own  to  verify  them,  and  has  acted  on  the  judgment  thus 
formed  by  himself  (o).8 

"  The  Court  must  be  careful  that  in  its  anxiety  to  correct  frauds 
it  does  not  enable  persons  who  have  joined  with  others  in  speculations 
to  convert  their  speculations  into  certainties  at  the  expense  of  those 
with  whom  they  have  joined  "(p). 

It  is  not  perfectly  free  from  doubt  whether  in  any,  and  if  in  any, 
in  what  cases  the  possession  of  means  of  knowledge  which  if  used 
would  lead  to  the  discovery  of  the  truth  will  bar  the  party  of  his 
remedy. 

As  to  means  of  knowledge:  immaterial  in  case  of  active  misrepresentation. 
In  the  case  of  active  misrepresentation  it  is  no  answer  *in  pro-  [566 
ceedings  either  for  damages  or  for  setting  aside  the  contract  to  say 
that  the  party  complaining  of  the  misrepresentation  had  the  means 

Blackburn  leaves  it  as  an  unsettled  (o)  See  for  a  recent  example,  Far- 
question  what  would  happen  if  the  rar  v.  Churchill  (1890)  135  U.  S. 
defendant   could    in   turn   prove    the  609. 

falsehood  or  ambiguity  to  be  due  to  (p)        Jennings       v.       Broughton 

a  mere  blunder.  (1853-4)   5  D.  M.  G.  126,  140,  22  L. 

(n)    Lord   Brougham,    Attwood   v.  J.  Ch.  584;  Dyer  v.  Hargrave  (1805) 

Small    (1835-8)    6   CI.   &   F.  444,   49  10  Ves.  505,  8  R.  E.  36. 
E.  E.  137;  Lord  Wensleydale,  Smith 
v.  Kay  (1859)   7  H.  L.  C.  775-76. 

7 Wagner  v.  National  Ins.  Co.,  90  Fed.  Eep.  395  (C.  C.  A);  Moses  v. 
Katzenberger,  84  Ala.  95 ;  Darby  v.  Kroell,  92  Ala.  607 ;  Bowman  v.  Carithers, 
40  Ind.  90 ;  Palmer  v.  Bell,  85  Me.  352 ;  Ely  v.  Stewart,  2  Md.  408 ;  Dawe  v. 
Morris,  149  Mass.  188,  192;  Humphrey  v.  Merriam,  32  Minn.  197;  Anderson 
v.  Burnett,  5  How.  (Miss.)  165;  American  Assoc,  v.  Bear,  48  Neb.  455; 
Brackett  v.  Griswold,  112  N.  Y.  454;  Hotchkin  v.  Third  Bank,  127  N.  Y.  329; 
Foy  v.  Houghton,  83  N.  C.  467 ;  Trammell  V.  Ashworth,  99  Va.  646 ;  Fowler  v. 
MeCann,  86  Wis.  427. 

8  Slaughter's  Admr.  v.  Gerson,  13  Wall.  379 ;  Clark  r.  Reeder.  158  U.  S.  505, 
524;  Hough  v.  Eichardson,  3  Story,  659;  Brown  v.  Smith,  109  Fed.  Eep.  26; 
Brewer  r.  Arantz,  124  Ala.  127;.  Wheeler  v.  Dunn,  13  Col.  428;  Tuck  v.  Down- 
ing, 76  111.  71;  Dady  v.  Condit,  163  111.  511:  Hagee  v.  Grossman,  31  Ind.  223; 
Merritt  v.  Dufur.  99  la.  211;  Lilienthal  i:  Suffolk  Brewing  Co.,  154  Mass. 
185;  Buxton  v.  Jones,  120  Mich.  522;  Halls  v.  Thompson,  1  S.  &  M.  443, 
481,  482;  Phibbs  v.  Buckman,  30  Pa.  401. 

So  where  the  falsity  of  the  statement  is  obvious.  Trammell  v.  Ashworth,  99 
Va.  646,  652.  But  a  medium  who  obtained  property  by  means  of  alleged 
messages  from  the  plaintiff's  deceased  husband  cannot  retain  it  on  the  ground 
that  the  falsity  of  the  representations  was  obvious.  Dean  v.  Eoss,  178  Mass. 
397. 


694  THE    EIGHT    OF    RESCISSION. 

of  making  inquiries.9  "  In  the  case  of  Dobell  v.  Stevens  (q)  .  .  . 
■which  was  an  action  for  deceit  in  falsely  representing  the  amount  of 
the  business  done  in  a  public-house,  the  purchaser  was  held  to  be 
entitled  to  recover  damages,  although  the  books  were  in  the  house, 
and  he  might  have  had  access  to  them  if  he  had  thought  proper  "(r). 
The  rule  was  the  same  in  the  Court  of  Chancery.  It  was  said  of  a 
purchaser  to  whom  the  state  of  the  property  he  bought  was  misrepre- 
sented : —  "  Admitting  that  he  might  by  minute  examination  make 
that  discovery,  he  was  not  driven  to  that  examination,  the  other  party 
having  taken  upon  him  to  make  a  representation.  .  .  .  The 
purchaser  is  induced  to  make  a  less  accurate  examination  by  the 
representation,  which  he  had  a  right  to  believe  "(s).10  The  principle 
is  that  "  No  man  can  complain  that  another  has  too  implicitly  relied 
on  the  truth  of  what  he  has  himself  stated  "(t).  And  it  is  not 
enough  to  show  that  the  party  misled  did  make  some  examination  on 
his  own  account;  proof  of  cursory  or  ineffectual  inquiries  will  not 
&o(u).  In  order  to  bar  him  of  his  remedy,  it  must  be  shown  either 
that  he  knew  the  true  state  of  the  facts,  or  that  he  did  not  rely  on  the 
facts  as  represented  ( x ). 

In  1867  the  same  principle  was  affirmed  by  Lord  Chelmsford  in 
the  House  of  Lords (y).  The  suit  was  instituted  by  a  shareholder  ia 
a  railway  company  to  be  relieved  from  his  contract  on  the  ground  of 
567]  misrepresentations  contained  *in  the  prospectus.  Here  it  was 
contended  that  the  propectus  referred  the  intending  shareholder  to 
other  documents,  and  offered  means  of  further  information :  besides, 
the  memorandum  and  articles  of  association  (and  of  these  at  all 
events  he  was  bound  to  take  notice)  sufficiently  corrected  the  errors 

(q)    (1825)    3  B.  &  C.  623;   27  R.  (x)    Redgrave  v.  Hurd    (1881)    20 

E.  441.  Ch.  Div.  1,  21    (Jessel  M.R.). 

(r)   Per  Lord  Chelmsford,  L.  R.  2  (y)    Central  Ry.  Go.  of  Venezuela 

H.  L.   121.  v.   Kisch    (1867)    L.  R.  2   H.   L.   99, 

(s)    Dyer  v.   Eargrave    (1805)    10  120,    36   L.   J.    Ch.    849.     As   to  the 

Ves.  at  p.  509,  8  R.  R.  at  p.  39.  earlier    and    indecisive    case    of   Att- 

(f)    Reynell  v.  Sprye    (1852)    1  D.  wood  v.  Small    (1835-8)    6  CI.  &  F. 

M.  &  G.  at  p.  710;  Price  v.  Macaulay  232,  49  R.  R.  115,  see  now  Redgrave 

(1852)  2  D.  M.  &  G.  339,  346.  v.  Hurd  (1881)  20  Ch.  Div.  at  p.  14, 

(«)    Redgrave  v.   Hurd   (1881)    20  51  L.  J.  Ch.  113. 
Ch.  Div.  1,  51  L.  J.  Ch.  113. 

9  See  eases  cited  infra,  notes  11  and  12. 

But  see  contra,  Farnsworth  r.  Duffner,  142  TJ.  S.  43;  Deming  v.  Darling, 
148  Mass.  504,  506;  Hoist  v.  Stewart,  161  Mass.  516;  Brady  v.  Finn,  162 
Mass.  260,  266;  Mahaffey  v.  Ferguson,  156  Pa.  156  (cp.  Brotherton  v. 
Reynolds,  164  Pa.   134). 

io  Mason  v.  Crosby,  1  Woodb.  &  M.  342,  353 ;  Alger  v.  Keith,  105  Fed.  Rep. 
105;  Burroughs  v.  Pacific  Guano  Co.,  81  Ala.  255;  Oswald  v.  McGehee,  28 
Miss.  340,  353. 


EFFECT    OF   MEANS    OF    KNOWLEDGE.  695 

and  omissions   of  the  prospectus.     But  the  objection  is  thus  an- 
swered : — 

"  When  once  it  is  established  that  there  has  been  any  fraudulent  misrepre- 
sentation or  wilful  concealment  by  which  a  person  has  been  induced  to  enter 
into  a  contract,  it  is  no  answer  to  his  claim  to  be  relieved  from  it  to  tell 
him  that  he  might  have  known  the  truth  by  proper  inquiry.  He  has  a  right 
to  retort  upon  his  objector,  '  You  at  least,  who  have  stated  what  is  untrue, 
or  have  concealed  the  truth  for  the  purpose  of  drawing  me  into  »  contract, 
cannot  accuse  me  of  want  of  caution  because  I  relied  implicitly  upon  your 
fairness  and  honesty.'  "  11 

Otherwise,  it  seems,  in  case  of  mere  non-disclosure.  This  doctrine  ap- 
pears, also  on  Lord  Chelmsford's  authority,  not  to  apply  to  the  case 
of  mere  non-disclosure,  without  fraudulent  intention,  of  a  fact  which 
ought  to  have  been  disclosed. 

"  When  the  fact  is  not  misrepresented  but  concealed  [or  rather  not 
communicated]  (z)  and  there  is  nothing  done  to  induce  the  other 
party  not  to  avail  himself  of  the  means  of  knowledge  within  his  reach, 
if  he  neglects  to  do  so  he  may  have  no  right  to  complain,  because  his 
ignorance  of  the  fact  is  attributable  to  his  own  negligence  "  (a). 

Mere  assertion  of  title.  It  appears  also  not  to  apply  to  a  mere  as- 
sertion of  title  by  a  vendor  of  land  (&).12 

(«)   See  L.  R.  2  H.  L.  339.  (6)   Hume  v.  Pocock   (1866)   L.  R. 

(a)  New  Brunsivick,  do.  Co.  v.  1  Ch.  379,  385,  35  L.  J.  Ch.  731, 
Conybeare  (1862)  9  H.  L.  C.  711,  where  however  the  real  contract  was 
742,  31  L.  J.  Ch.  297.  to  buy  up  a  particular  claim  of  title, 

whatever  it  might  be  worth. 

ii  See  Upton  v.  Englehart,  3  Dill.  496,  501 ;  Strand  i.  Griffith,  97  Fed.  Rep. 
854,  856;  Gammill  17.  Johnson,  47  Ark.  335;  Hicks  v.  Stevens,  121  111.  186; 
Matlock  v.  Todd,  19  Ind.  130;  Ledbetter  r.  Davis,  121  Ind.  119;  Carmichael 
v.  Vandebur,  50_  la.  651;  MeGibbons  v.  Wilder,  78  la.  531;  McK.ee  v.  Eaton, 
26  Kan.  226 ;  Speed  i:  Hollingsworth,  54  Kan.  436 ;  Roberts  v.  Plaisted,  66  Me. 
335;  David  r.  Park,  103  Mass.  501;  Eaton  v.  Winnie,  20  Mich.  156;  Cornell 
v.  Crane,  113  Mich.  460;  Porter  v.  Fletcher,  25  Minn.  493;  Olson  r.  Orton,  28 
Minn.  36;  Erickson  v.  Fisher,  51  Minn.  300;  Wannell  r.  Kern,  57  Mo.  478; 
Caldwell  r.  Henry,  76  Mo.  254;  Bank  v.  Hunt,  76  Mo.  439;  Cottrill  v.  Krum, 
100  Mo.  397;  Turner  v.  Haupt,  53  N.  J.  Eq.  526;  Mead  v.  Bunn,  32  N.  Y. 
275,  280;  Fargo  Coke  Co.  v.  Fargo  Electric  Co.,  4  N.  Dak.  219;  Chamberlin  v. 
Fuller,  59  Vt.  256;  McClellan  v.  Scott,  24  Wis.  81;  Risch  v.  Von  Lilienthal, 
34  Wis.  250.  But  see  contra,  Hoist  r.  Stewart,  161  Mass.  516;  Brady  v.  Finn, 
162  Mass.  260.  266.. 

The  rule  does  not  apply  in  favor  of  the  subscriber  to  the  stock  of  a  corpora- 
tion who  resists  payment  of  an  assessment  on  the  ground  of  false  representa- 
tions as  to  matters  controlled  by  the  charter.  Parker  v.  Thomas,  19  Ind.  213, 
219;  Wight  v.  Railroad  Co.,  16  B.  Mbn.  4;  Railroad  Co.  v.  Anderson,  51  Miss. 
829. 

12  But  in  this1  country  it  is  generally  held  that  a  person  may  rely  upon 
representations  as  to  title  to  land,  although  »  search  of  the  records  would 
disclose  their  falsity.  See  Lynch  v.  Mercantile  Trust  Co.,  18  Fed.  Rep.  486; 
Zeis  v.  Potter,  105  Fed.  Rep.  671 ;  Baker  v.  Maxwell,  99  Ala.  558 ;  Watson  v. 
Atwood,  25  Conn.  313;  Backer  v.  Pyne,  130  Ind.  288;  RohrofT  r.  Schultze,  154 
Ind.  183 ;  Claggett  v.  Crall,  12  Kan.  393 ;  Carpenter  t\  Wright,  52  Kan.  221 ; 


696  THE    EIGHT    OF    EESCISSION. 

In  a  case  before  Lord  Hatherley,  when  V.-C,  the  double  ques- 
tion arose  of  the  one  party's  knowledge  that  his  statement  was 
untrue,  and  of  the  other's  means  of  learning  the  truth.  The  suit 
was  for  specific  performance  of  an  agreement  to  take  a  lease  of  a 
limestone  quarry.  The  plaintiff  made  a  distinct  representation  as  to 
568]  the  quality  of  the  *limestone  which  was  in  fact  untrue:  he 
did  not  believe  it  to  be  false,  but  he  had  taken  no  pains  to  ascertain, 
as  he  might  easily  have  done,  whether  it  was  true  or  not.  But  then  the 
defendant  had  not  relied  exclusively  upon  this  statement,  for  he  went 
to  look  at  the  stone ;  still  he  was  not  a  limeburner  by  trade,  and  could 
not  be  supposed  to  have  trusted  merely  to  what  he  saw,  being  in  fact 
rot  competent  to  judge  of  the  quality  of  limestone.  The  result  was 
that  the  Court  refused  specific  performance,  declining  to  decide 
whether  the  contract  was  otherwise  valid  or  not  (c). 

Attempt   to   deceive   inspection   which   purchaser   omits   to   make.       The 

case  of  Horsfall  v.  Thomas  (d)  was  decided  on  the  same  principle: 
there  a  contrivance  was  used  to  conceal  a  defect  in  a  gun  manu- 
factured to  a  purchaser's  order,  but  the  purchaser  took  it  without 
any  inspection,  and  therefore,  although  the  vendor  intended  to  de- 
ceive him,  had  not  been  in  fact  deceived. 

It  might  also  be  given  as  a  rule  that  the  representation  must  be  ma- 
terial. But  to  make  this  quite  accurate  it  should  be  stated  in  the  con- 
verse form,  namely  that  a  material  representation  may  be  presumed  to 
have  in  fact  induced  the  contract ;  for  a  man  who  has  obtained  a  con- 
tract by  false  representations  cannot  afterwards  be  heard  to  say  that 
those  representations  were  not  material.  The  excuse  has  often  been  put 
forward  that  for  anything  that  appeared  the  other  party  might  no  less 
have  given  his  consent  if  the  truth  had  been  made  known  to  him,  and 
the  Court  has  always  been  swift  to  reject  it.  When  a  falsehood  is  proved, 
the  Court  does  not  require  positive  evidence  that  it  was  successful  (e) ; 
it  rather  presumes  that  assent  would  not  have  been  given  if  the 
facts  had  been  known  (/).     Those  who  have  made  false  statements 

(o)  Biggins  v  Samels  (1862)  2  J.  6  Q.  B.  at  p.  605:  but  it  seems  good 
&  H.  460,  468,  469.  law. 

(d)    (1862)    1  H.  &  C.  90,  31  L.  J.  (e)    Williams'   case    (1869)    L.   R. 

Ex.  322,  dissented  from  by  Cockburn,       9  Eq.  225,  n. 

C.J.,  Smith  v.  Hughes   (1871)    L.  R.  (f)    Ex  parte   Kintrea    (1869)    L. 

R.  5  Ch.  at  p.  101,  39  L.  J.  Ch.  193. 

Young  v.  Hopkins,  6  T.  B.  Mon.  18;  Newcome  v.  Ewing,  19  Ky.  L.  Rep.  821; 
Parham  v.  Randolph,  4  How.  (Miss.)  435,  451;  Kiefer  v.  Rogers,  19  Minn. 
32;  Bailey  v.  Smock,  61  Mo.  213;  Herman  v.  Hall,  140  Mo.  270;  Schwenk  v. 
Naylor,  102  N.  Y.  683 ;  Hunt  r.  Baker,  22  R.  I.  18.  And  see  the  cases  cited  in 
note  11,  supra,  and  49  Cent.  Law  Jour.  245. 


1U2PHESENTAT10N    INDUCING    CONTEACT.  697 

♦cannot  ask  the  Court  to  speculate  on  the  exact  share  they  may  [569 
have  had  in  inducing  the  transaction  (g)  ;13  or  on  what  might  have  been 
the  result  if  there  had  been  a  full  communication  of  the  truth  (h) ; 
it  is  enough  that  an  untrue  statement  has  been  made  which  was  likely 
to  induce  the  party  to  enter  into  the  contract,  and  that  he  has  done, 
so  (i).  Special  circumstances  may  make  a  representation  material 
which  in  ordinary  cases  of  the  same  kind  of  contract  would  not  be. 
If  a  moneylender  who  has  become  notorious  for  harsh  and  oppressive 
dealing  attracts  a  borrower  by  advertising  in  an  assumed  name,  a  jury 
may  find  that  the  contract  was  fraudulent  (A;).  An  inference  or  pre- 
sumption of  this  class  is  of  fact,  not  of  law,  and  is  open  to  contradic- 
tion like  other  inferences  of  fact  (I). 

In  like  manner,  if  there  has  been  an  omission  even  without  fraud  to 
communicate  something  which  ought  to  have  been  communicated,  it 
is  too  late  to  discuss  whether  the  communication  of  it  would  probably 
have  made  any  difference  (m). 

If  it  be  asked  in  general  terms  what  is  a  material  fact,  we  may 
answer,  by  an  extension  of  the  language  adopted  by  the  Queen's  Bench 
in  a  case  of  marine  insurance  (n),  that  it  is  anything  which  would 
affect  the  judgment  of  a  reasonable  man  governing  himself  by  the 
principles  on  which  men  in  practice  act  in  the  kind  of  business  in 
hand." 

(g)   Reynell  v.  Bprye   (1852)    ID.  (k)    Gordon  v.  Street  [1899]   2  y. 

M.  G.  at  p.  708.  B.  641,  69  L.  J.  Q.  B.  45,  C.  A. 

(h)  Smith  v.  Kay  (1859)   7  H.  L.  (I)     Lord     Blackburn,     Smith    v. 

C.  at  p.  759.  Ghadwick    (1884)    9   App.   Ca.   at   p. 

(i)    Per  Lord  Denman  C.J.   Wat-  196. 

son  v.  Earl  of  Gharlemont  (1848)    12  (m)    Traill  v.  Baring   (1864)    4  D. 

Q.  B.  856,  864,  18  L.  J.  Q.  B.  65.    To  J.  S.  at  p.  330. 

the  like  effect,  Jeesel  M.R.  in  Smith  (n)    Ionides   v.   Pender    (1874)    L. 

v.  Ghadwick  (1884)  20  Ch.  Div.  at  p.  R.  9  Q.  B.  531,  43  L.  J.  Q.  B.  227, 

44   (see  however  note   (I)).  supra,   p.   *530. 

18  Cabot  v.  Christie,  42  Vt.  121,  127 ;  James  v .  Hodsden,  47  Vt.  127,  137. 
"  It  is  not  necessary  that  the  false  representations  should  have  been  the  sole 
or  even  the  predominant  motive;  it  is  enough  that  they  had  material  influ- 
ence upon  the  plaintiff,  although  combined  with  other  motives."  Safford  v. 
Grout,  120  Mass.  20,  25;  Edgington  v.  Fitzmaurice,  29  Ch.  D.  459,  481,  485; 
Be  Gany,  103  Fed.  Rep.  930;  Ruff  v.  Jarrett,  94  111.  475;  Hough  v.  Richardson, 
3  Story,  659,  690;  Matthews  v.  Bliss,  22  Pick.  48;  Fishback  v.  Miller,  15  Nev. 
428;  Morgan  v.  Skiddy,  62  N.  Y.  319;  Butler  v.  Prentiss,  158  N.  Y.  49;  Wilson 
v.  Carpenter,  91  Va.  183;  Shaw  v.  Gilbert,  111  Wis.  165.  But  see  Poska  v. 
Stearns,  56  Neb.  541 ;  Berkson  c.  Heldman,  58  Neb.  595.  Where  a  party  has 
been  entrapped  into  a  contract  by  fraud,  and  defends  an  action  on  it  on  that 
ground,  it  is  no  answer  to  his  defense  that,  notwithstanding  the  fraud,  if  he 
will  pay,  his  money  will  be  so  used  that  he  will  sustain  no  harm.  Water 
Valley  Mfg.  Co.  v.  Seaman,  53  Miss.  655. 

14  Whether  a  representation  is  material  or  not  is  a  question  of  law.  Cas- 
well v.  Hunton,  87  Me.  277;  Greenleaf  v.  Gerald,  94  Me.  91;  Penn  Ins.  Co.  v. 
Crane,   134  Mass.  56. 


698  THE    RIGHT    OF    RESCISSION. 

And  contract  incidental  to  fraudulent  transaction  is  itself  treated  as 
fraudulent.  There  is  an  exception,  but  only  an  apparent  one,  to  the 
rule  that  the  representation  must  be  the  cause  of  the  other  party's 
570]  contracting.  A  contract  arising  directly  out  of  a  *previous 
transaction  between  the  same  parties  which  was  voidable  on  the 
ground  of  fraud  is  itself  in  like  manner  voidable.  A.  makes  a  con- 
tract with  B.,  with  the  fraudulent  intention  of  making  it  impossible 
by  a  secret  scheme  for  B.  to  perform  the  contract.  B.  ultimately 
agrees  to  pay  and  does  pay  to  A.  a  sum  of  money  to  be  released  from 
the  contract :  if  he  afterwards  discovers  the  scheme  B.  can  rescind  this 
last  agreement  and  recover  the  money  back  (o). 

"  If  the  promoter  of  »  company  procures  a  company  to  be  formed  by 
improper  and  fraudulent  means,  and  for  the  purpose  of  securing  a  profit  to 
himself,  'which,  if  the  company  was  successful,  it  would  be  unjust  and  in- 
equitable to  allow  him  to  retain  [in  the  particular  case  a  secret  payment  to 
the  promoter  out  of  purchase-money],  and  the  company  proves  abortive  and 
is  ordered  to  be  wound  up  without  doing  any  business,  the  promoter  cannot 
be  allowed  to  prove  against  the  company  in  the  winding-up,  either  in  respect 
of  his  services  in  forming  the  company  or  in  respect  of  his  services  as  an 
officer  of  the  company  after  the  company  was  registered"  (p) . 

So  it  is  where  the  parties  really  interested,  though  not  the  nominal 
parties,  are  the  same.  Thus  where  a  sale  of  goods  is  procured  by 
fraud,  and  the  vendors  forward  the  goods  by  railway  to  the  pur- 
chaser's agent,  and  afterwards  reclaim  them,  indemnifying  the  rail- 
way company,  these  facts  constitute  a  good  defence  to  an  action  by 
the  purchaser's  agent  against  the  railway  company,  though  the  re- 
delivery to  the  vendors  was  before  the  discovery  of  the  fraud  and 
arose  out  of  an  unsuccessful  attempt  to  stop  the  goods  in  transitu  (q). 

C.  Must  be  made  by  a  party  to  the  contract.  The  representation  must 
be  made  by  a  party  to  the  contract.  This  rule  in  its  simple  form  is 
571  ]  elementary.  It  *is  obvious  that  A.  cannot  be  allowed  to  rescind 
his  contract  with  B.  because  he  has  been  induced  to  enter  into  it 
by  some  fraud  of  C.  to  which  B.  is  no  party  (r)  .15    Thus  in  Sturge  v. 

(o)   Barry  v.  Croslcey   (1861)   2  J.  tive  case:  as  to  the  misconceived  act 

&  H.  1.  being   justified   by    reference    to   the 

(p)   Per  Cur.  Hereford  &  8.  Wales  true  ground  of  rescission  afterwards 

Waggon  &  Engineering  Co.   (1876)   2  discovered,  cp.  Wright's  case   (1871) 

Ch.  Div.  621,  626,  45  L.  J.  Ch.  461.  L.  R.  7  Ch.  55,  41  L.  J.  Ch.  1. 

(g)   dough  v.  L.  &  N.  W.  Ry.  Co.  (r)  See   per    Lord    Cairns,    Smith's 

(1871)    (Ex.  Ch.)   L.  R.  7  Ex.  26,  41  case,  L.  R.  2  Ch.  at  p.  616. 
L.  J.  Ex.  17,  an  exceedingly  instruc- 

15  United  States  v.  Dalles  Military  Road  Co.,  51  Fed.  Rep.  629,  637 ; 
Lindsey  v.  Veasy,  62  Ala.  421;  Pacific  Co.  v.  Anglin,  82  Ala.  492;  Fort  Dear- 
born Bank  l>.  Carter,  152  Mass.  34;  Wachsmuth  v.  Martini,  154  II!.  515; 
White  r.  Graves,   107  Mass.  325;   Williamson  v.  Raney,  Freem.  Ch.    (Miss.) 


FRAUD   OF   AGENTS.  699 

Starr  (s)  a  -woman  joined  with  her  supposed  husband  in  dealing  with 
her  interest  in  a  fund.  The  marriage  was  in  fact  void,  the  man  hav- 
ing concealed  from  her  a  previous  marriage.  It  was  held  that  this 
did  not  affect  the  rights  of  the  purchaser. 

As  to  representations  made  by  agents.  When  we  come  to  deal  with 
contracts  made  by  agents  the  question  arises  to  what  extent  the  rep- 
resentations of  the  agent  are  to  be  considered  as  the  representations  of 
the  principal  for  the  purposes  of  this  rule.  And  this  question,  though 
now  practically  set  at  rest  by  recent  decisions,  is  one  which  has  given 
rise  to  some  difficulty.  A  false  statement  made  by  an  agent  with 
his  principal's  express  authority,  the  principal  knowing  it  to  be  false, 
is  obviously  equivalent  to  a  falsehood  told  by  the  principal  himself;16 
Dor  can  it  make  any  difference  as  against  the  principal  whether  the 
agent  knows  the  statement  to  be  false  or  not.17    But  we  may  also  have 

(s)  (1833)  2  My.  &  K.  195;  cp.  Wheelton  v.  Hardisty  (1857)  8  E.  &  B. 
232,  26  L.  J.  Q.  B.  265,  27  ib.  241. 

112;  Vass  v.  Riddick,  89  N.  C.  6;  Riggan  v.  Sledge,  116  N.  C.  87;  Dangler 
v.  Baker,  35  Ohio  St.  673;  Kulp  v.  Brant,  162  Pa.  222;  Layne  v.  Bone,  12 
Lea,  667 ;  Law  v.  Grant,  37  Wis.  548. 

But  the  misrepresentation  of  a  third  party  may  induce  so  vital  a  mistake 
as  to  prevent  the  formation  of  a  contract.     De  Perez  v.  Everett,  73  Tex.  431. 

l8Maggart  v.  Freeman,  27  Ind.  531;  Watson  v.  Crandall,  7  Mo.  App.  233; 
affd.,  78  Mo.  583.  See  also  Haskell  v.  Starbird,  152  Mass.  117;  Waterbury 
v.  Andrews,  67  Mich.  281. 

17  One  who  makes  false  statements  to  a  "  mercantile  agency  "  as  to  his  cir- 
cumstances is  equally  liable  to  a  subscriber  to  the  agency  to  whom  they  are 
reported  by  it,  and  who  relies  upon  them  to  his  injury,  as  if  they  had  been 
made  originally  directly  to  the  party  injured.  Fechheimer  v.  Baum,  37  Fed. 
Rep.  167,  177;  Re  Epstein,  109  Fed.  Rep.  874;  Be  Weil,  111  Fed.  Rep.  897; 
Lindauer  v.  Hay.  61  la.  663;  Salisbury  v.  Barton,  63  Kan.  552;  Bank  v. 
Mich.  Barge  Co.,  52  Mich.  164;  Hinchman  v.  Weeks,  85  Mich.  535;  Silberman 
v.  Munroe,  104  Mich.  352;  Bank  v.  Ludlum,  46  Minn.  160;  Eaton,  Cole  & 
Burnham  Co.  v.  Avery,  83  N.  Y.  31;  Gainesville  Bank  v.  Bamberger,  77 
Tex.  48.  Cp.  Vermont  Marble  Co.  v.  Smith,  13  Ind.  App.  457;  Poska  v. 
Stearns,  56  Neb.  541;  Berkson  v.  Heldman,  58  Neb.  595;  Macullar  v.  McKinley, 
99  N.  Y.  353. 

If  the  statement  made  by  the  defendant  to  the  mercantile  agency  is  changed 
by  the  latter,  the  defendant  is  not  liable.    Wachsmuth  i>.  Martini,  154  111.  515. 

In  Cortlandt  Mfg.  Co.  i\  Piatt,  83  Mich.  419,  it  was  held  that  a  merchant 
who  had  made  »  true  statement  to  a  commercial  agency  was  not  bound  to 
give  notice  of  any  change  in  his  circumstances  short  of  actual  or  imminent 
insolvency.  But  see  Traill  ?;.  Baring,  4  De  G.  J.  &  S.  318.  329:  Brownlie  v. 
Campbell,  5  A.  C.  925,  950;  Cable  v.  United  States  Ins.  Co.,  Ill  Fed.  Rep. 
19,  28.  In  Sharpless  v.  Gummey,  166  Pa.  199,  it  was  held  that  the  plaintiff 
was  not  justified,  in  relying  on  a  statement  made  two  and  one-half  years 
previously  to  a  mercantile  agency,  and  in  Treadwell  v.  State,  99  Ga.  779,  it 
was  held  that  a  statement  made  sixty  days  previously  could  not  justifiably 
be  relied  on;  but  in  Bradley  r.  Seaboard  Bank,  167  N.  Y.  427,  where  two 
years  had  elapsed  the  court  said  (p.  430)  "the  time  which  elapsed  between 
the  date  of  the  statement  and  the  date  of  the  note  does  not  seem  to  be  im- 


700  THE    EIGHT    OF    EESCI8SION. 

the  following  cases.  The  statement  may  be  not  expressly  authorised 
by  the  principal,  nor  known  to  be  untrue  by  him,  but  known  to  be 
untrue  by  the  agent;  or  conversely,  the  statement  may  be  not  known 
to  the  agent  to  be  untrue,  and  not  expressly  authorised  by  the  prin- 
cipal, the  true  state  of  the  facts  being,  however,  known  to  the  prin- 
cipal. There  is  no  doubt  that  in  the  first  case  the  principal  is 
answerable,  subject  only  to  the  limitation  to  be  presently  stated  (t). 
In  the  second  case  there  is  every  reason  to  believe  that  the  same 
rule  holds  good,  notwithstanding  a  much  canvassed  decision  to  the 
572]  contrary  (u),  which,  if  not  overruled  by  the  *remarks  since 
made  upon  it  (x),18  has  been  cut  down  to  a  decision  on  a  point  of 
pleading  which  perhaps  cannot,  and  certainly  need  not,  ever  arise 
again. 

The  only  question  is  whether  the  representation  was  within  the  agent's 
authority.  These  distinctions  have  to  be  considered  only  when  there 
is  a  question  of  fraud  in  the  strict  sense,  and  then  chiefly  when 
it  is  sought  to  make  the  principal  liable  in  damages.  Where  a  non- 
fraudulent  misrepresentation  suffices  to  avoid  the  contract,  there  it 
is  clear  that  the  only  thing  to  be  ascertained  is  whether  the  repre- 
sentation was  in  fact  within  the  scope  of  the  agent's  authority.  And 
it  seems  to  be  now  the  law  that  this  is  the  only  question  even  in  a 
case  of  fraud.  It  has  been  so  laid  down  by  a  considered  judgment 
of  the  Exchequer  Chamber  (y),  fully  approved  by  later  decisions  of 
the  Judicial  Committee  (2).     According  to  this  the  rule  is   "that 

(t)  The    rule   applies   to    an    agent  v.  English  Joint  Stock  Bank   (1867) 

who   profits  by  the  fraud  of   a  sub-  L.  R.  2  Ex.  262. 

agent   employed   by   hirn:      Coekburn  (y)     Bar-wick     v.     English     Joint 

C.J.  in  Weir  v.  Bell  (1878)   3  Ex.  D.  Stock  Bank   (1867)   L.  R.  2  Ex.  259, 

at  p.  249.  36  L.  J.  Ex.  147. 

(u)    Cornfoot  v.  Fowke    (1840)    6  (z)  Mackay  v.  Commercial  Bank  of 

M.  &  W.  358.  New   Brunsivick    (1874)    L.   R.   5   P. 

(<r)    2   Sm.  L.  C.   81,  86:    and  see  C.  394,  411,  43  L.  J.  F.  C.  31;  Sw-ire 

especially  per  Willes  J.  in  Barwick  v.  Francis  (1877)   3  App.  Ca.  106,  47 

L.  J.  P.  C.  18. 

portant.  The  firm  cannot  be  heard  to  say  that  its  mischievous  force  was 
operative  longer  than  it  expected  it  to  be." 

In  general  a  statement  made  to  one  person  with  the  expectation  that  it 
will  be  communicated  to  another  is  the  same  as  if  made  directly  to  the 
latter.  Iasigi  r.  Brown,  17  How.  183,  194;  McKenzie  v.  Weineman,  116  Ala. 
194;  Henrv  v.  Dennis,  95  Me.  24;  Chubbuck  r.  Cleveland,  37  Minn.  466; 
Bradley  1 .  Bradley,  165  N.  Y.  183 ;  Dickie  v.  Nashville  Abstract  Co.,  89  Tenn. 
431. 

So  if  made  to  the  community  in  general.  Andrews  v.  Mockford,  [1896] 
1  Q.  B.  372;  Hindman  v.  Bank,  98  Fed.  Rep.  562,  569;  Windram  v.  French, 
151   Mass.  547,  550;   Ensel  v.  Levy,  46  Ohio  St.  255,  264. 

18  Fitzsimmons  r.  Joslin,  21  Vt.  129,  140.  And  see  Crump  v.  United  States 
Min.   Co.,   7   Gratt.   352. 


FRAUD    OF    AGENTS.  70 1 

the  master  is  answerable  for  every  such  wrong,"  including  fraud, 
"  of  the  servant  or  agent  as  is  committed  in  the  course  of  the  service 
and  for  the  master's  benefit,  though  no  express  command  or  privity  of 
the  master  be  proved."  Although  the  master  may  not  have  author- 
ised the  particular  act,  yet  if  "  he  has  put  the  agent  in  his  place  to 
do  that  class  of  acts,"  he  must  be  answerable  for  the  agent's  conduct. 
It  makes  no  difference  whether  the  principal  is  a  natural  person  or 
a  corporation  (a).19  In  two  of  the  cases  just  referred  to,  a  banking 
corporation  was  held  to  be  liable  for  a  false  representation  made  by 
one  of  its  officers  in  the  course  of  the  business  usually  conducted  by 
him  on  behalf  of  the  bank;  and  this  involves  the  proposition  that  the 
party  *misled  is  entitled  to  rescind  the  contract  induced  by  [573 
such  representation.20 

(a)   L.  R.  5  P.  C.  413-5,  dissenting  cisive,  have  not  been  followed.    Swift 

from    the    dicta    on    this    point    in  v.  Jewsbury   (1874)    (Ex.  Ch.)   L.  R. 

Western  Bank   of  Scotland  v.  Addie  9  Q.  B.  at  p.  312,  per  Lord  Coleridge 

(1867)    L.  R.  1  Sc.  &  D.  145.  which,  C.J.     Cp.  I.  C.  A.  §  238. 
though  apparently  intended  to  be  de- 

i»  Houldsworth  v.  Bank,  5  App.  Ca.  317,  326,  per  Lord  Selborne,  L.  C; 
Chapleo  r.  Brunswick  Benefit  Bldg.  Soc,  5  C.  P.  D.  331;  Railroad  Co.  r. 
Franklin  Bank,  60  Mr.  36;  Fishkill  Sav.  Inst.  v.  Bank,  80  N.  Y.  162,  166, 
167;  Cragie  v.  Hadley,  99  N.  Y.   131. 

20  St.  Louis,  etc.,  Ry.  Co.  v.  Johnston,  133  U.  S.  566;  Richardson  v.  Denegre, 
93  Fed.  Rep.  572  (C.  C.  A.)  ;  Richardson  r.  New  Orleans  Co.,  102  Fed.  Rep. 
780  ( C.  C.  A. )  ;  Richardson  r.  Olivier,  105  Fed.  Rep.  277  ( C.  C.  A. )  ;  Higgins 
v.  Hayden,  53  Neb.  61;  Cragie  v.  Hadley,  99  N.  Y.  131;  Bank  v.  Forty-second 
St.  R.  Co.,  137  N.  Y.  231,  241;  Grant  r.  Walsh,  145  N.  Y.  502;  Williams  t\ 
Cox,   99   Tenn.   403. 

The  principal,  whether  a  natural  person  or  a  corporation,  cannot  take  the 
benefit  of  acts  or  negotiations  of  an  agent  without  bearing  the  burden  of  any 
liabilities  growing  out  of  them  on  account  of  any  falsehoods  or  frauds  of  the 
agents  that  accompanied  them.  Veazie  r.  Williams,  8  How.  134;  Mason  v. 
Crosby,  1  Woodb.  &  M.  342,  358;  Doggett  i:  Emerson,  3  Story,  700,  735; 
Upton  v.  Englehart,  3  Dill.  496;  Williamson  c.  Tyson,  105  Ala.  644;  Riser  r. 
Walton,  78  Cal.  490;  Scofield,  etc.,  Co.  v.  State,  54  Ga.  635;  Tome  v.  Railroad 
Co.,  39  Md.  36;  Fogg  v.  Griffin,  2  Allen,  1;  Jewett  v.  Carter,  132  Mass.  335; 
Rackemann  v.  Riverbank  Co.,  167  Mass.  1;  Weeks  r.  Currier,  172  Mass.  53; 
Knappen  v.  Freeman,  47  Minn.  491;  Bank  v.  Gregg,  14  N.  H.  331;  Presby  r. 
Parker,  56  N.  H.  409;  Garrison  !'.  Technic  Electrical  Works,  55  N.  J.  Eq. 
708;  Railroad  Co.  r.  Schuyler,  34  N.  Y.  30;  Elwell  v.  Chamberlain,  31  N.  Y. 
611,  619;  Mayer  r.  Dean,  115  N.  Y.  556;  Fairchild  v.  McMahon,  139  N.  Y. 
290;  Carr  v.  National  Bank,  167  X.  Y.  375;  Jones  v.  National  Bldg.  Assn.. 
94  Pa.  215;  Insurance  Co.  r.  Humble,  100  Pa.  495;  McNeile  v.  Cridland,  168 
Pa.  16 ;  Meyerhoff  v.  Daniels,  173  Pa.  555 ;  Crump  r,  U.  S.  Mining  Co.,  7 
Gratt.  352;  Law  v.  Grant,  37  Wis.  548;  Waldo  r.  Railroad  Co.,  14  Wis.  575; 
Henderson  v.  Railroad  Co.,  17  Tex.  560. 

That  the  principal  is  liable  in  an  action  of  deceit,  for  the  false  representa- 
tions made  by  an  agent  acting  in  the  course  of  his  business  for  his  principal, 
see  Lynch  v.'  Mercantile  Trust  Co..  18  Fed.  Rep.  486;  Citv  Bank  v.  Dun,  51 
Fed.  Rep.  160;  Wilder  r.  Beede.  119  Cal.  646;  Wtest  Florida  Land  Co.  r. 
Studebaker,  37  Fla.  28;  Rboda  r.  Annis,  75  Me.  17;  Locke  r.  Stearns,  1  Met. 
560;  White  v.  Sawyer,  16  Gray.  586.  589;  Haskell  v.  Starbird.  152  Mass.  117; 
Davies  v.  Lyon,  36' Minn.  427;  Hornblower  v.  Crandall,  7  Mo.  App.  220,  231; 


70'2  THE    EIGHT    OF    RESCISSION. 

Directors  and  promoters.  The  directors  and  other  officers  of  compa- 
nies, acting  within  the  functions  of  their  offices,  are  for  this  purpose 
agents,  and  the  companies  are  bound  by  their  acts  and  conduct.  Con- 
versely, where  directors  employ  an  agent  for  the  purposes  of  the 
company,  and  that  agent  commits  a  fraud  in  the  course  of  his  em- 
ployment without  the  personal  knowledge  or  sanction  of  the  directors, 
the  remedy  of  persons  injured  by  the  fraud  is  not  against  the  directors, 
who  are  themselves  only  agents,  but  against  the  company  as  ultimate 
principal  (&)  ;  and  one  director  is  not  liable  for  fraud  committed 
by  another  director  without  his  authority  or  concurrence  (c).21  Ee- 
ports  made  in  the  first  instance  to  a  company  by  its  directors,  if 
afterwards  adopted  by  a  meeting  and  "  industriously  circulated,"  must 
be  treated  as  the  representations  of  the  company  to  the  public,  and 
as  such  will  bind  it  (d).  Statements  in  a  prospectus  issued  by  pro- 
moters before  the  company  is  in  existence  cannot  indeed  be  said 
with  accuracy  to  be  made  by  agents  for  the  company:  for  one  cannot 
he  an  agent  even  by  subsequent  ratification  for  a  principal  not  in 
existence  and  capable  of  ratifying  at  the  time  (e).  But  such  state- 
ments also,  if  afterwards  expressly  or  tacitly  adopted,  become  the 
statements  of  the  company.  It  is  a  principle  of  general  application, 
by  no  means  confined  to  these  cases,  that  if  A.  makes  an  assertion 
574]  to  B.,  and  B.  repeats  it  to  C.  in  an  ""unqualified  manner,  in- 
tending him  to  act  upon  it,  and  C.  does  act  upon  it,  B.  makes  that 
assertion  his  own  and  is  answerable  for  its  consequences.  If  he 
would  guard  himself,  it  is  easy  for  him  to  say :  "  This  is  what  A. 
tells  me,  and  on  his  authority  I  repeat  it;  for  my  own  part  I  believe 

(6)  Weir  v.  Barnett  (1877)  3  Ex.  (c)  Cargill  v.  Bower  (1878)  10  Ch. 
D.  32,  arid,  in  C.  A.  nom.  Weir  v.  D.  502,  47  L.  J.  Ch.  649. 
Bell  (1878)  io.  238,  47  L.  J.  Ex.  704.  (d)  Per  Lord  Westbury,  New 
But  a  director  who  profited  by  the  Brunswick,  a-e.  Co.  v.  Conybeare 
fraud  after  knowledge  of  it  would  (1862)  9  H.  L.  C.  711,  725,  31  L.  J. 
probably  be  liable:  see  judgments  of  Ch.  297.  See  further-,  as  to  what 
Cockburn  C.J.  and  Brett  L.J.  And  must  be  shown  to  bind  a  company  in 
directors  who  delegated  their  office  respect  of  misrepresentations  in- 
without  authority,  so  that  their  dele-  ducing  a  person  to  take  shares : 
gate  did  not  become  the  company's  Lynde  v.  Anglo-Italian  Hemp  Spin- 
agent,  would  be  liable:  see  the  dis-  ning  Co.  [1896]  1  Ch.  178,  65  L.  J. 
senting  judgment  of  Cotton  L.J.  who  Ch.  96. 
took  this  view  of  the  facts.  (e)   Cp.  *109,  *110,  above. 

affd.,  78  Mo.  581;  Jeffrey  r.  Bigelow,  13  Wend.  518;  Bennett  v.  Judson,  21 
X.  Y.  238;  Krumm  v.  Beach,  96  N.  Y.  398;  Ladd  r.  Lord,  36  Vt.  194.  Contra, 
Kennedy  v.  McKay,  43  N.  J.  L.  288;  Decker  r.  Fredericks,  47  N.  J.  L.  469; 
Keefe  r.  Sholl,  181  Pa.  90. 

That  the  rule  is  the  same,  though  the  principal  be  a  corporation,  see 
supra,  p.  129. 

21  Gennert  v.  Ives,  102  Mich.  547 ;  Arthur  r.  Griswold,  55  N.  Y.  400;  Morgan 
v.  Skiddv,  62  N.  Y.  319. 


REPRESENTATIONS    NOT    IN    SAME    MATTER.  703 

it,  but  if  you  want  any  further  assurance  it  is  to  him  you  must 
look"(/). 

Agent  always  liable  for  his  own  personal  fraud.  It  is  to  be  borne  in 
mind  that  in  a  case  of  actual  fraud  on  the  part  of  an  agent  the 
responsibility  of  the  principal  does  not  in  any  way  exclude  the  re- 
sponsibility of  the  agent.  "All  persons  directly  concerned  in  the 
ecmmission  of  a  fraud  are  to  be  treated  as  principals  " ;  and  in  this 
sense  it  is  true  that  an  agent  or  servant  cannot  be  authorized  to 
commit  a  fraud.  He  cannot  excuse  himself  on  the  ground  that  he 
acted  only  as  agent  or  servant  (#).22 

D.  The  representation  must  be  in  the  same  transaction.  The  represen- 
tation must  be  made  as  part  of  the  same  transaction. 

It  is  believed  that  the  statement  of  the  rule  in  this  form,  though 
at  first  sight  vague,  is  really  more  accurate  than  that  which  presents 
itself  as  an  alternative,  but  is  in  fact  included  in  this — namely,  that 
the  representation  must  be  made  to  the  other  party  or  with  a  view 
io  his  acting  upon  it.  The  effect  of  the  rule  is  that  the  untruth  of  a 
representation  made  to  a  third  person,  or  even  to  the  party  himself 
on  some  former  occasion,  in  the  course  of  a  different  transaction 
and  for  a  different  purpose,  cannot  be  relied  on  as  a  ground  either 
for  rescinding  a  contract  or  for  maintaining  an  action  of  deceit.23 

Western  Bank  of  Scotland  v.  Addie.  Thus  in  Western  Bank  of  Scot- 
land v.  Addie  (h)  the  directors  of  the  bank  had  made  a  series  of 
flourishing  but  untrue  reports  on  the  condition  of  its  affairs,  in  which 
bad  debts  were  counted  as  good  assets.     The  shareholder  who  sought 

(f)  Smith's  case  (1867)  L.  R.  2  4  Maeq.  424,  432;  Swift  v.  Wintvr- 
Ch.  604,  611,  p.  *550,  above.  botham    (1873)    L.   R.   8    Q.    B.   244, 

(g)  PeT  Lord  Westbury,  Cullen  v.  254,  42  L.  J.  Q.  B.  111. 
Thomson's  Trustees  and  Kerr  (1862)  (A)    (1867)   L.  R.  1  Sc.  &  D.  145. 

22Mechem  on  Agency,  §  563  et  seq.;  Crosby  v.  Meeks,  108  Ga.  126. 

23  Ware  v.  Brown,  2  Bond,  267;  Wagner  v.  Insurance  Co.,  90  Fed.  Rep.  395; 
Brickley  v.  Edwards,  131  Ind.  3;  Priest  v.  White,  89  Mo.  609;  Arnold  v. 
Hagerman,  45  N.  J.  Eq.   186. 

Statements  as  to  the  assets  of  a  corporation  made  to  a  State  commissioner 
were  held  not  addressed  to  the  public,  so  as  to  sustain  an  action  of  deceit  by 
an  individual  relying  on  them  in  Hunnewell  v.  Duxbury,  154  Mass.  286.  But 
see  Exchange  Bank  v.  Gaitskill,  18  Ky.  L.  Rep.  532;  Hamilton  Co.  v.  Milliken, 
62   Neb.   116. 

Representations  by  a  seller  made  after  a  contract  of  sale  has  been  con- 
summated are  not  actionable.     Farmers'  Assoc,  v.   Scott,  53  Kan.  534. 

Representations  made  to  induce  a  purchase  were  held  operative  as  to  a 
further  purchase  made  eleven  months  later.  Reeve  v.  Dennett,  145  Mass.  23. 
See  also  Grever  v.  Taylor,  53  Ohio  St.  621.  Cp.  Sharpless  i:  Gummey,  166 
Pa.  199. 


704  TH£    EIGHT    OF    RESCISSION. 

575]  relief  in  the  action  *had  taken  additional  shares  on  the  faith, 

as  he  said,  of  these  reports.  But  it  was  not  shown  that  they  were 
issued  or  circulated  for  the  purpose  of  inducing  existing  shareholders 
to  take  more  shares,  or  that  the  local  agent  of  the  bank  who  effected 
this  particular  sale  of  shares  used  them  or  was  authorized  to  use 
them  for  that  purpose.  Thus  the  case  rested  only  on  the  purchaser 
having  acted  under  an  impression  derived  from  these  reports  at  some 
former  time;  and  that  was  not  such  a  direct  connexion  between  the 
false  representation  and  the  conduct  induced  by  it  as  must  be  shown 
in  order  to  rescind  a  contract.  This,  however,  was  not  the  only 
ground  of  the  'decision ;  its  main  principle,  as  explained  in  a  later 
case  in  the  House  of  Lords,  being  that  a  person  who  remains  a  share- 
holder, either  by  having  affirmed  his  contract  with  the  company  or 
by  being  too  late  to  rescind  it,  cannot  have  a  remedy  in  damages 
against  the  corporate  body  for  representations  on  the  faith  of  which 
his  shares  were  taken  (i).24 

Peek  v.  Gurney.  In  Peek  v.  Gurney  (k)  the  important  point  is  de- 
cided that  the  sole  office  of  a  prospectus  is  to  invite  the  public  to 
take  shares  in  the  company  in  the  first  instance.  Those  who  take 
shares  in  reliance  on  the  prospectus  are  entitled  to  their  remedy  if 
the  statements  in  it  are  false.  But  those  statements  cannot  be  taken 
as  addressed  to  all  persons  who  may  hereafter  become  purchasers  of 
shares  in  the  market;  and  such  persons  cannot  claim  any  relief  on 
the  ground  of  having  been  deceived  by  the  prospectus  unless  they 
can  show  that  it  was  specially  communicated  to  them  by  some  further 
act  on  the  part  of  the  company  or  the  directors.25  Some  former  de- 
cisions the  other  way  (I)   are  expressly  overruled..     The  proceeding 

(i)    Houldsu-orth  v.    City  of   Glas-  H.   &  N.  538,  29  L.  J.   Ex.   59:    Bag- 

gow  Bank   (1880)   5  App.  Ca.  317,  43  shaw   v.   Seymour    (1856)     18    C.    B. 

L.  J.  Ch.   19.  903,  29  L.  J.  Ex.  62,  n.     The  author- 

(k)     (1873)    L.    R.    6    H.    L.    377,  ity  of  Gerhard  v.  Bates   (1853)   2  E. 

395 :    and   see   the   case  put  by  Lord  &  B.  476,  22  L.  J.  Q.  B.  365,  is  saved 

Cairns  as  an  illustration  at  p.  411.  by  a  rather  fine  distinction:  L.  R.  6 

(I)    Bedford  v.  Bagshaw    (1859)    4  H.  L.  399. 

24  Wilson   v.  Hundley,  96  Va.   96. 

25  See  the  decisions  on  somewhat  similar  questions  in  First  Bank  r.  Sowles, 
46  Fed.  Rep.  731;  Merchants'  Bank  r.  Armstrong,  65  Fed.  Rep.  932;  Hindman 
r.  First  Bank,  112  Fed.  Rep.  931  (C.  C.  A.)  ;  Englehart  v.  Clanton,  83  Ala. 
336;  Talpey  r.  Wright,  61  Ark.  275;  Buckley  r.  Gray,  110  Cal.  339;  Lieber- 
man  v.  First  Bank,  2  Pennewill,  416 ;  Hunnewell  r.  Duxbury,  154  Mass.  286 ; 
Gate  City  Co.  v.  Post,  55  Neb.  742;  Morgan  r.  Skiddy.  62  N.  Y.  319:  Brackett 
v.  Griswold,  112  N.  Y.  454;  Houston  v.  Thornton,  122  N.  C.  365;  Manhattan 
Brass  Co.  r.  Keger,  168  Pa.  644;  Moore  r.  Haviland,  61  Vt.  58. 

In  Wells  r.  Cook,  16  Ohio  St.  67,  B.,  the  owner  of  a  small  flock  of  sheep 
apparently  sound  and  healthy,  but  known  by  him  to  be  diseased  with  a.  con- 


EIGHTS    OF    PARTY    MISLED.  70-5 

there  in  hand  was  in  *the  nature  of  an  action  of  deceit,  but  [576 
the  doctrine  must  equally  apply  to  the  rescission  of  a  contract.  It 
is  otherwise,  however,  if  the  prospectus  is  in  fact  used  afterwards, 
at  any  rate  in  conjunction  with  other  fraudulent  statements,  to  in- 
duce people  to  buy  shares  in  the  market  (m). 

Way  v.  Hearn.  In  Way  v.  Hearn  (n)  the  action  was  on  a  promise 
by  the  defendant  to  indemnify  the  plaintiff  against  half  of  the  loss 
lie  might  sustain  by  having  accepted  a  bill  drawn  by  one  E.  Shortly 
before  this,  in  the  course  of  an  investigation  of  E/s  affairs  in  which 
the  defendant  took  part,  E.  had  at  the  plaintiff's  request  concealed 
from  the  accountant  employed  in  the  matter  the  fact  that  he  owed 
a  large  sum  to  the  plaintiff;  the  plaintiff  said  his  reason  for  this 
was  that  he  did  not  wish  his  wife  to  know  he  had  lent  so  much  money 
upon  bad  security.  At  this  time  the  bill  which  was  the  subject  of 
the  indemnity  was  not  thought  of;  it  was  in  fact  given  to  get  rid 
of  an  execution  afterwards  put  in  by  another  creditor.  Here  a  mis- 
representation as  to  E.'s  solvency  was  made  by  E.  in  concert  with 
the  plaintiff,  and  communicated  to  the  defendant;  but  it  was  in  a 
transaction  unconnected  with  the  subsequent  contract  between  the 
plaintiff  and  the  defendant,  and  the  defendant  was  therefore  not 
entitled  to  dispute  that  contract  on  the  ground  of  fraud. 

2.  As  to  rights  of  party  misled:  general  statement.  As  to  the  right  of 
the  party  misled.  This  right  is  one  which  requires,  and  in  several 
modern  cases  of  importance  has  received,  an  exact  limitation  and 
definition.    It  may  be  thus  described : 

The  party  who  has  been  induced  to  enter  into  a  contract  by  fraud, 
or  by  concealment  or  misrepresentation  in  any  matter  such  that  the 
truth  of  the  representation  made,  or  the  disclosure  of  the  fact,  is  by 
law  or  by  special  agreement  of  the  parties  of  the  essence  of  the  con- 
tract, may  affirm  the  *contract,  and  insist,  if  that  is  possible,  [577 

(m)    Andrews  v.  Moclcford  [1896]  («)    (1862)    13  C.  B.  N.  S.  232,  32 

1  Q.  B.  372,  65  L.  J.  Q.  B.  302,  C.  A.       L.  J.  C.  P.  34. 

tagious  malady,  falsely  and  fraudulently  represented  them  as  sound  and 
healthy  to  A.,  acting  as  the  known  agent  of  C,  and  A.,  confiding  in  such 
representations,  bought  them  for  C,  and  with  the  avowed  purpose  of  mingling 
them  with  a  larger  flock  then  belonging  to  C,  in  consequence  of  which  min- 
gling the  united  flock  was  infested;  and  A.  and  C.  being  still  unaware  of  the 
existence  of  the  disease,  A.  bought  the  united  flock  from  C,  and  suffered 
damage  from  the  continued  spread  of  the  disease.  Held,  that  the  represen- 
tations not  having  been  made  to  A.  to  induce  him  to  act  upon  them  in  any 
manner  affecting  his  own  interests,  he  could  not  maintain  an  action  against 
B.  for  the  deceit. 

45 


706  THE    EIGHT    OF    EESCISSION. 

on  being  put  in  the  same  position  as  if  the  representation  had  been 
true: 

Or  he  may  at  his  option  rescind  the  contract,  and  claim  to  be  re- 
stored, so  far  as  may  be,  to  his  former  position  within  a  reasonable 
time  (o)  -after  discovering  the  misrepresentation,  unless  it  has  be- 
come impossible  to  restore  the  parties  to  the  position  in  which  they 
would  have  been  if  the  contract  had  not  been  made,  or  unless  any 
third  person  has  in  good  faith  and  for  value  acquired  any  interest 
under  the  contract. 

It  will  be  necessary  to  dwell  separately  on  the  several  points  in- 
volved in  this.  And  it  is  to  be  observed  that  the  principles  here 
considered  are  not  confined  to  any  particular  ground  of  rescission, 
but  apply  generally  when  a  contract  is  voidable,  either  for  fraud  or 
on  any  other  ground,  at  the  option  of  one  of  the  parties;  on  a  sale; 
of  land,  for  example,  it  is  constantly  made  a  condition  that  the 
vendor  may  rescind  if  the  purchaser  takes  any  objection  to  the  title 
which  the  vendor  is  unable  to  remove;  and  then  these  rules  apply 
to  far  as  the  nature  of  the  case  admits. 

A.  Of  affirmation  and  rescission  in  general.  As  to  the  nature  of  the 
right  in  general,  and  what  is  an  affirmation  or  rescission  of  the 
contract. 

"A  contract  induced  by  fraud  is  not  void,  but  voidable  only  at 
the  option  of  the  party  defrauded ; "  in  other  words,  valid  until 
rescinded  (p)-2e 

(o)    But   qu.    whether   time   is    in  (p)   Oakes  v.  Turquand   (1867)   L. 

itself  material:  see  L.  R.  7  Ex.  35,  8        R.  2  H.  L.  346,  375,  376. 
Ex.  205. 

26  TJpton  r.  Englehart,  3  Dill.  496,  504;  Foreman  v.  Bigelow,  4  Cliff.  508; 
Wheeler  r.  McNeil,  101  Fed.  Rep.  685,  688;  Davis  v.  Bets,  66  Ala.  206; 
Nealon  v.  Henry,  131  Mass.  153;  Hanrahan  v.  National  Assoc.,  66  N.  J.  L. 
80;  Baird  r.  Mayor,  96  N.  Y.  567,  598;  Dixon  r.  Wilmington  Trust  Co.,  115 
N.  C.  274;  Railroad  Co.  v.  Steinfeld,  42  Ohio  St.  449;  Whitcomb  v.  Denio,  52 
Vt.  382. 

"A  person  who  has  been  induced  by  fraudulent  representations  to  become  the 
purchaser  of  property  has,  upon  discovery  of  the  fraud,  three  remedies  open 
to  him.  He  may  rescind  the  contract  absolutely  and  sue  in  an  action  at  law 
to  recover  the  consideration  parted  with  upon  the  fraudulent  contract.  To  main- 
tain such  an  action,  he  must  first  restore  or  offer  to  restore  to  the  other  party 
whatever  may  have  been  received  by  him  by  virtue  of  the  contract.  He  may 
also  bring  an  action  in  equity  to  rescind  the  contract,  and  in  that  action  have 
full  relief.  Such  an  action  is  not  founded  upon  a.  rescission  but  is  maintained 
for  a  rescission,  and  it  is  sufficient,  therefore,  for  the  plaintiff  to  offer  in 
his  complaint  to  return  what  he  has  received  and  make  tender  of  it  on  the 
trial.  Lastly  he  may  retain  what  he  has  received  and  bring  an  action  at  law 
to  recover  the  damages  sustained.  This  action  proceeds  upon  an  affirmance 
of  the  contract."  Vail  r.  Reynolds,  118  N.  Y.  297.  See  also  Thomas  v.  Beals, 
154  Mass.  51;  Mlnazek  v.  Libera,  83  Minn.  288;  Wilson  v.  Hundley,  96  Va. 
96;  Ludington  v.  Patton,  111  Wis.  208,  246. 


ELECTION  TO  RESCIND  OR  RATIFY.  707 

Where  the  nature  of  the  case  admits  of  it,  the  party  misled  may 
affirm  the  contract  and  insist  on  having  the  representation  made  good. 
If  the  owner  of  an  estate  sells  it  as  unincumbered,  concealing  from 
the  purchaser  the  existence  of  incumbrances,  the  purchaser  may  if 
he  thinks  fit  call  on  him  to  perform  his  contract  and  redeem 
the  incumbrances  (q).  If  promoters  of  a  partnership  under-  [578 
taking  induce  persons  to  take  part  in  it  by  untruly  representing  that 
a  certain  amount  of  capital  has  beei.  already  subscribed  for,  they 
will  themselves  be  put  on  the  list  of  contributories  for  that  amount  (r). 

Election  to  avoid  or  affirm.  It  is  to  be  remembered  that  the  right  of 
election,  and  the  possibility  of  having  the  contract  performed  with 
compensation,  does  not  exclude  the  option  of  having  the  contract 
wholly  set  aside.  "  It  is  for  the  party  defrauded  to  elect  whether 
he  will  be  bound"  (s).  But  if  he  does  affirm  the  contract,  he  must 
affirm  it  in  all  its  terms.  Thus  a  vendor  who  has  been  induced  by 
fraud  to  sell  goods  on  credit  cannot  sue  on  the  contract  for  the  price 
of  the  goods  before  the  expiration  of  the  credit:  the  proper  course  is 
to  rescind  the  contract  and  sue  in  trover  (t).27 

What  shall  determine  election.  When  the  contract  is  once  affirmed,  the 
election  is  completely  determined;  and  for  this  purpose  it  is  not 
necessary  that  the  affirmation  should  be  express.  Any  acts  or  conduct 
which  unequivocally  treat  the  contract  as  subsisting,  after  the  facts 
giving  the  right  to  rescind  have  come  to  the  knowledge  of  the  party, 

(?)   Per  Romilly  M.R.  in  Pulsford  (s)   Rawlins  V.  Wickham   (1853)    3 

v.  Richards    (1853)    17  Beav.  96,  22  De  G.  &  J.  304,  322,  28  L.  J.  Ch.  188. 

L.  J.  Ch.  559.     Cp.  Ungley  v.  Ungley  (t)  Ferguson,  V.  Carrington  (1829) 

(1877)    5  Ch.  Div.  887,  46  L.  J.  Ch.  9   B.  &  C.  59.     This  is  unimportant 

854.  in  English  practice  now  that  the  old 

(r)    Moore  and  De  la  Torre's  case  forms  of  action  are  abolished,  but  it 

(1874)    L.   R.   18   Eq.   661,  43   L.   J.  is  retained  as  a  good  illustration  of 

Ch.  751.  the  principle. 

27  Kellogg  v.  Turpie,  93  111.  265;  Delone  v.  Hull,  47  Md.  112;  Allen  v.  Ford, 
19  Pick.  217;  Jones  v.  Brown,  167  Pa.  395.  And  see  Whitlock  v.  Heard,  3 
Rich.  L.  88.  Contra,  Blalock  v.  Phillips,  38  Ga.  216;  Wigand  v.  Sichel,  3 
Keyes,  120;  Crossman  v.  Universal  Rubber  Co.,  127  N.  Y.  34;  Heilbronn  v. 
Herzog,  165  N.  Y.  98;  Jaffray  v.  Wolf,  4  Okl.  303. 

Though  it  seems  impossible  to  support  the  maintenance  of  an  action  on 
the  contract  for  the  price  before  the  period  of  credit  has  expired,  there  seems 
good  ground  for  allowing  the  plaintiff  at  once  to  rescind  the  contract  and 
instead  of  sueing  in  trover  to  waive  the  tort  and  sue  in  assumpsit,  not  for 
the  price  of  the  goods,  but  for  their  value.  Barrett  v.  Koella,  5  Biss.  40; 
Dietz's  Assignee  v.  Putcliff,  80  Ky.  650;  Crown  Cycle  Co.  v.  Brown,  39  Oreg. 
285.     See  further,  44  Cent.  L.  J.  380. 

If  the  buyer  has  committed  an  act  of  bankruptcy  the  seller  may  petition 
him  into  bankruptcy,  though  the  period  of  credit  has  not  expired.  Re  Raatz, 
[1897]  2  Q.  B.  80. 


708  THE    BIGHT    OF    RESCISSION. 

will  have  the  same  effect  (w).28  Taking  steps  to  enforce  the  contract 
is  a  conclusive  election  not  to  rescind  on  account  of  anything  known 
at  the  time  (.-c).29  A  shareholder  cannot  repudiate  his  share  on  the 
ground  of  misrepresentations  in  the  prospectus  if  he  has  paid  a  call 
without  protest  or  received  a  dividend  after  he  has  had  in  his  hands 
a  report  showing  to  a  reader  of  ordinary  intelligence  that  the  state- 

(w)   Clough  v.  L.  &  N.  W.  Ry.  Vo.  (x)    Gray  v.  Fowler    (1873)     (Ex. 

(1871)  (Ex.  Ch.)  L.  E.  7  Ex.  at  p.  Oh.)  L.  E.  8  Ex.  249,  280,  42  L.  J. 
34.  Ex.  161. 

28  See  next  note.  And  when  the  contract  is  once  disaffirmed  the  election  is 
completely  determined.  Farwell  v.  Myers,  59  Mich.  179;  Moller  v.  Tuska,  87 
N.  Y.   166. 

So  when  the  contract  is  once  affirmed.  Follett  v.  Brown,  188  111.  244; 
Weaver  v.  Shriver,  79  Md.  530;  Wylie  i\  Gamble,  95  Mich.  564;  Paine  v. 
Harrison,  38  Minn.  346;  Crooks  r.  Nippolt,  44  Minn.  239;  Hutton  r.  Dewing, 
42.  W.  Va.  691. 

In  Kingman  r.  Stoddard,  85  Fed.  Eep.  740;  Simon  v.  Goodyear  Co.,  105 
Fed.  Eep.  573,  579,  it  was  held  that  if  »  party  to  an  executory  contract  which 
he  was  induced  to  enter  into  by  fraud  continues  to  carry  it  out  and  to  exact 
performance  from  the  other  party  after  notice  of  the  fraud,  he  cannot  main- 
tain an  action  for  the  deceit. 

29  "  Where  a  vendee  purchases  goods  by  means  of  such  fraudulent  repre- 
sentations as  entitle  the  vendor  to  disaffirm  the  sale  and  reclaim  the  goods  as 
his  own  property,  and  the  vendor,  after  discovering  the  fraud,  voluntarily 
brings  an  action  on  the  contract  of  sale  and  purchase  to  recover  the  price, 
that  is,  as  matter  of  law,  an  affirmance  of  the  sale,  and  the  vendor  cannot 
thereafter  set  up  title  and  claim  the  goods  on  the  ground  of  the  original 
fraud."  Dibblee  v.  Sheldon,  10  Blatchf.  178;  Bulkley  v.  Morgan,  46  Conn. 
393;  O'Donald  v.  Constant,  82  Ind.  212;  Lowenstein  r.  Glass,  48  La.  Ann.  1422; 
Stokes  r.  Burns,  132  Mo.  214;  Stoutenburgh  v.  Konkle,  2  McCarter,  33; 
Lloyd  v.  Brewster,  4  Paige,  537;  Conrow  r.  Little,  115  N.  Y.  387;  Bach  v. 
Tuch,  126  N.  Y.  53;  Genet  v.  Delaware  Canal  Co.,  170  N.  Y.  278,  296.  And 
see  Davis  r.  Betz,  66  Ala.  206;  Seavey  v.  Potter,  121  Mass.  297;  Heller  v. 
Elliott,  45  N.  J.  L.  564;  Acer  r.  Hotchkiss,  97  N.  Y.  395.  Contra,  Flower 
i\  Brumbach,  131  111.  646.  And  see  Farwell  Co.  v.  Hilton,  84  Fed.  Rep.  293; 
White  r.  Beal,  65  Ark.  278 ;  Bolton  Co.  r.  Stoker.  82  Md.  50. 

So  proving  a  claim  for  the  price  against  the  assignee  of  an  insolvent  vendee. 
Droege  r.  Ahrens,  163  N.  Y.  466. 

So  also  accepting  security  for  the  price,  with  knowledge  of  the  fraud. 
Bridgeford  i:  Adams,  45  Ark.  136;  Joslin  v.  Cowee,  52  N.  Y.  90. 

In  Browning  r.  De  Ford,  178  U.  S.  196,  however,  defrauded  vendees,  who  had 
sued  for  the  price  on  the  contract  and  attached  the  property  sold,  were  held 
entitled  to  prevail  over  mortgagees  of  the  property,  though  the  mortgage 
was  prior  to  the  attachment,  because  the  mortgagees  had  notice  of  the  fraud. 
See  also  Nicholls  v.  McShane,  16  Col.  App.  165. 

And  bringing  an  action  for  the  purchase  price  in  ignorance  of  the  fraud 
will  not  preclude  a  subsequent  rescission  upon  discovery  of  the  fraud.  Deere 
t.  Morgan,  114  la.  287;  Kraus  v.  Thompson,  30  Minn.  64;  Goodtrer  v,  Finn, 
10  Mo.  App.  226;  Paquin  v.  Mi'lliken,  163  Mo.  79;  Equitable  Co.  v.  Hersee, 
103  N.  Y.  25;  Hays  r.  Midas,  104  N.  Y.  602;  Lee  r.  Burnham,  84  Wis.  209. 
Cp.  Re  Epstein,  109  Fed.  Rep.  874.  Finally,  "A  vendor  of  goods,  the  sale 
and  delivery  of  which  was  induced  by  fraud  on  the  part  of  the  vendee,  does 
not,  by  an  effort  to  retake  the  entire  property,  which  is  successful  in  part 
only,  lose  the  right  to  pursue  the  vendee  for  the  value  of  the  unfound  portion." 
Powers  r.  Benedict,  88  N.  Y.  605.  And  see  Re  Hirschman,  104  Fed.  Rep. 
69 ;  Browning  v.  Bancroft,  8  Met.  278 ;  Sleeper  v.  Davis,  64  N.  H.  59 ;  Singer 
v.  Schilling,  74  Wis.  369.     Cp.  Farwell  v.  Myers,  59  Mich.  178. 


ELECTION"    TO    RESCIND.  709 

ments  of  the  prospectus  *were  not  true  (y),  or  if  after  discover-  [579 
ing  the  true  state  of  things  he  has  taken  an  active  part  in  the  affairs 
of  the  company  (z),30  or  has  affirmed  his  ownership  of  the  shares  by 
taking  steps  to  sell  them  (a)  ;  and  in  general  a  party  who  voluntarily 
acts  upon  a  contract  which  is  voidable  at  his  option,  having  knowl- 
edge of  all  the  facts,  cannot  afterwards  repudiate  it  if  it  turns  out 
to  his  disadvantage  (&).31  And  when  the  right  of  repudiation  has 
once  been  waived  by  acting  upon  the  contract  as  subsisting  with 
knowledge  of  facts  establishing  a  case  of  fraud,  the  subsequent  dis- 
covery of  further  acts  constituting  "  a  new  incident  in  the  fraud  " 
cannot  revive  it  (c).32  The  exercise  of  acts  of  ownership  over  prop- 
erty acquired  under  the  contract  precludes  a  subsequent  repudiation, 
but  not  so  much  because  it  is  evidence  of  an  affirmative  election  as 
because  it  makes  it  impossible  to  replace  the  parties  in  their  former 
position ;  a  point  to  which  we  shall  come  presently. 

When  the  acts  done  are  of  this  kind  it  seems  on  principle  imma- 
terial whether  there  is  knowledge  of  the  true  state  of  affairs  or  not, 
unless  there  were  a  continuing  active  concealment  or  misrepresenta- 
tion practised  with  a  view  to  prevent  the  party  defrauded  from  dis- 
covering the  truth  and  to  induce  him  to  act  upon  the  contract;  for 

(y)    Scholey  v.  Central  By.  Go.  of  the  objects  of  the  company  as  stated 

Venezuela     (1867-8)     L.    R.     9     Eq.  in  the  prospectus. 
266,  n.  (6)    Ormes  v.  Beadel   (1860)    2D. 

(z)    Sharpley   v.   Louth,   and  East  F.  &  J.  332,  336,  30  L.  J.  Ch.  1. 
Coast  Ry.  Co.   (1876)   2  Ch.  Div.  663,  (c)   Campbell  v.  Fleming   (1834)    1 

46  L.  J.  Ch.  259.  A.    &   E.    40.      This    does    not   apply 

(o)  Ex  parte  Briggs  (1866)   L.  R.  where  a  new  and   distinct   cause   of 

1  Eq.  483,  35  L.  J.  Ch.  320;  this  how-  rescission    arises:     Gray    v.    Fowler 

ever    was    a    case   not    of   mis-stated  (1873)   L.  R.  8  Ex.  2'49,  42  L.  J.  Ex. 

facts,  but  of  material  departure  from  161. 

30Ogilvie  v.  Insurance  Co.,  22  How.  380;  Upton  v.  Jackson,  1  Flipp,  413; 
Marten  i:  Burns  Wine  Co.,  99  Cal.  355.     See  further,  26  Am.  L.  Reg.  16. 

31  Simon  v.  Goodyear  Co.,  105  Fed.  Rep.  573;  Griggs  v.  Woodruff,  14  Ala. 
9;  Thweatt  r.  McLeod,  56  Ala.  375;  Davis  v.  Betz,  66  Ala.  206;  Pintard  c. 
Martin,  1  S.  &  M.  Ch.  i26;  Rogers  v.  Higgins,  57  111.  244;  Plympton  v. 
Dunn,  148  Mass.  523;  Dunks  v.  Fuller,  32  Mich.  242;  Thompson  v.  Libby,  36 
Minn.  287;  Edwards  v.  Roberts,  7  S.  &  M.  544;  Dennis  v.  Jones,  44  N.  J. 
Eq.  513;  Railroad  Co.  v.  Row,  24  Wend.  74;  Cobb  v.  Hatfield,  46  N.  Y.  533; 
People  v.  Stephens,  71  N".  Y.  527;  Baird  v.  Mayor.  96  N.  Y.  567,  598;  Bostick 
v.  Haynie,  36  S.  W.  Rep.  856  (Tenn.  Ch.)  ;  Weisiger  v.  Richmond  Machine 
Co.,  90  Va.  795;  Grannis  v.  Hooker,  31  Wis.  474.  See  also  Dickson  v. 
Patterson,   160  U.  S.  584. 

32  "Although  the  party  who  seeks  to  rescind  a  contract  on  the  ground  of 
concealment  of  material  facts  may  have  confirmed  the  contract  after  acquir- 
ing knowledge  of  some  of  the  facts  concealed,  yet  if  sufficient  facts  were 
unknown  to  him'  at  the  time  of  confirmation  to  authorize  a  rescission  such 
affirmation  cannot  effectually  prevent  it."  Pratt  v.  Philbrook,  41  Me.  132. 
See  also  Pierce  v.  Wilson,  34  Ala.  596,  605;  Taylor  r.  Short,  107  Mo.  384; 
Wilson  v.  Hundley.  96  Va.  96.     Cp.  Alger  v.  Keith,  105  Fed.  Rep.  105. 


710  THE    RIGHT    OF    RESCISSION. 

then  the  affirmation  itself  would  be  as  open  to  repudiation  as  the 
original  transaction.  Something  like  this  occurs  not  unfrequently  in 
cases  of  undue  influence,  as  we  shall  see  in  the  next  chapter. 

Omission  to  repudiate  within  a  reasonable  time  is  evidence,  and 
580]  may  be  conclusive  evidence,  of  an  election  to  *affirm  the  con- 
tract; and  this  is  in  truth  the  only  effect  of  lapse  of  time.33  Still  it 
will  be  more  convenient  to  consider  this  point  separately  afterwards. 

Election  to  rescind  must  be  communicated  to  other  party.  If  on  the  other 
hand  the  party  elects  to  rescind,  he  is  to  manifest  that  election  by 
distinctly  communicating  to  the  other  party  his  intention  to  reject 
the  contract  and  claim  no  interest  under  it.  One  way  of  doing  this  is 
to  institute  proceedings  to  have  the  contract  judicially  set  aside,  and 
in  that  case  the  judicial  rescission,  when  obtained,  relates  back  to 
the  date  of  the  commencement  of  such  proceedings  (d).Si  Or  if  the 
other  party  is  the  first  to  sue  on  the  contract,  the  rescission  may  be  set 
up  as  a  defence,  and  this  is  itself  a  sufficient  act  of  rescission  without 
any  prior  declaration  of  an  intention  to  rescind  (e).  For  the  pur- 
poses of  pleading  the  allegation  that  a  contract  was  procured  by 
fraud  has  been  held  to  import  the  allegation  that  the  party  on  dis- 
covering it  disaffirmed  the  contract  (/).  Where  the  rescission  is  not 
declared  in  judicial  proceedings,  no  further  rule  can  be  laid  down 
tli an  that  there  should  be  "prompt  repudiation  and  restitution  as 
far  as  possible"  (g). 

What  communication  sufficient.  The  communication  need  not  be  for- 
mal, jDrovided  it  is  a  distinct  and  positive  rejection  of  the  con- 
tract, not  a  mere  request  or  inquiry,  which  is  not  enough  (h).35  But 
it  seems  that  if  notwithstanding  an  express  repudiation  the  other 
party  persists  in  treating  the  contract  as  in  force,  then  judicial  steps 
should  be  taken  in  order  to  make  the  rescission  complete  as  against 
rights   of  third  persons  which  may  subsequently  intervene.     Espe- 

(d)  Reese  River  Silver  Mining  Co.  Deposit  Life  Assurance  Go.  v.  Ays- 
v.  Smith  (1869)  L.  R.  4  H.  L.  73-5,  cough  (1856)  6  E.  &  B.  761,  26  L. 
39  L.  J.  Ch.  849.  As  to  shares  in  J.  Q.  B.  29.  are  not  wholly  consistent, 
companies,  see  below.  (g)     Per    Bramwell    B.      Bwlch-y- 

(e)  Clough  v.  L.  &  N.  W.  Ry.  Co.  Plwm.  Lead  Mining  Co.  v.  Baynes 
(1871)  (Ex.  Ch.)  L.  R.  7  Ex.  36,  41  (1867)  L.  R.  2  Ex.  326,  36  L.  J.  Ex. 
L.  J.  Ex.  17.  183. 

(f)  Dawes  v.  Harness  (1875)  L.  R.  (h)  See  Ashley's  case  (1870)  L.  R. 
10  C.  P.  166,  44  L.  J.  C.  P.  194.   The  9  Eq.  263,  39  L.  J.  Ch.  354. 
earlier    cases    there    cited,    especially 

33  Quoted  with  approval  in  Bostwick  v.  Mutual  Ins.  Co.,  116  Wis.  392,  422. 

34  Thomas  v.  Coultas,  76  111.  493;  Gould  i\  Bank,  86  N.  Y.  75,  83. 

35  Hammond  t.  Pennock,  61  N.  Y.  145,  155;  Potter  v.  Taggart,  54  Wis.  395. 


ELECTION    MUST    BE    COMMUNICATED.  711 

daily  this  is  the  case  as  to  repudiating  shares  in  a  company.  The 
creditors  of  a  ^company  are  entitled  to  rely  on  the  register  [581 
of  shareholders  for  the  time  being,  and  therefore  it  is  not  enough 
for  a  shareholder  to  give  notice  to  the  company  that  he  claims  to  re- 
pudiate. A  stricter  rule  is  applied  than  would  follow  from  the  ordi- 
nary rules  of  contract  (i).  "  The  rule  is  that  the  repudiating  share- 
holder must  not  only  repudiate,  but  also  get  his  name  removed,  or 
commence  proceedings  to  have  it  removed,  before  the  winding-up  (fc)  ; 
but  this  rule  is  subject  to  the  qualification  that  if  one  repudiating 
shareholder  takes  proceedings  the  others  will  have  the  benefit  of  them 
if,  but  only  if,  there  is  an  agreement  between  them  and  the  company 
that  they  shall  stand  or  fall  by  the  result  of  those  proceedings,  but  not 
otherwise  "  (I).  Where  the  original  contract  was  made  with  an  agent 
for  the  other  party,  communication  of  the  rescission  to  that  agent 
is  sufficient,  at  all  events  before  the  principal  is  disclosed  (m).  And 
where  good  grounds  for  rescission  exist,  and  the  contract  is  rescinded 
by  mutual  consent  on  other  grounds,  those  grounds  not  being  such 
as  to  give  a  right  of  rescission,  and  the  agent's  consent  being  in 
excess  of  his  authority,  yet  the  rescission  stands  good.  There  is  noth- 
ing more  that  the  party  can  do,  and  when  he  discovers  the  facts 
on  which  he  might  have  sought  rescission  as  a  matter  of  right  he  is 
entitled  to  use  them  in  support  of  what  is  already  done.36  In  Wright's 
case  (n)  the  prospectus  of  a  company  contained  material  misrepre- 
sentations. The  *directors  had  at  a  shareholder's  request,  and  [582 
on  other  grounds,  professed  to  cancel  the  allotment  of  his  shares, 
which  they  had  no  power  to  do,  though  they  had  power  to  accept  a 
surrender.  Afterwards  the  company  was  wound  up,  and  then  only 
was  the  misrepresentation  made  known  to  him.  But  it  was  held  that 
as  there  was  in  fact  a  sufficient  reason  for  annulling  the  contract, 
which  the  directors  knew  at  the  time  though  he  did  not,  the  contract 

(i)  Kent  V.  Freehold  Land,  do.  Co.  of  cases  per  Baggallay  L.J.  23  Ch.  D. 

(1868)  L.  R.  3  Ch.  493;  Hare's  case  at  p.  433. 

(1869)  L.  R.  4  Ch.  503;  Re  Scottish  (k)  I.e.  before  the  presentation  of 
Petroleum  Co.  (1883)  23  Ch.  Div.  a  winding-up  petition  on  which  an 
413.  But  if  there  are  several  repudi-  order  is  made:  Whiteley's  case 
ating  shareholders  in  a  like  position,  [1899]  1  Ch.  770,  68  L.  J.  Ch.  365. 
proceedings  taken  by  one  of  them  and  (Z)  Lindley  L.J.  23  Ch.  D.  at  p. 
treated  by  agreement  with  the  com-  437. 

pany  as  representative  will  enure  for  (m)   Maynard  v.  Eaton   (1874)   L. 

the     benefit     of     all:     Pawle's     case  R.  9  Ch.  414,  43  L.  J.  Ch.  641. 

(1867)   L.  R.  4  Ch.  497,  38  L.  J.  Ch.  (n)  (1871)  L.  R.  7  Ch.  55,  41  L.  J. 

318;  McNiell's  case    (1870)   L.  R.  10  Ch.  1;  cp.  Clough  v.  L.  &  N.  W.  By. 

Eq.  503,  39  L.  J.  Ch.  822,  apparently  Co.,  supra,  p.  *570. 
rests  only  on  this  ground:  see  review 

36  See  King  v.  Faist,  161  Mass.  449,  458. 


712  THE    EIGHT    OP    EESCISSION. 

was  effectually  annulled,  and  he  could  not  be  made  a  contributory 
even  as  a  past  member  (o). 

Right  of  rescission  exerciseable  by  and  against  representatives.  Inas- 
much as  the  right  of  rescinding  a  voidable  contract  is  alternative  and 
co-extensive  with  the  right  of  affirming  it,  it  follows  that  a  voidable 
contract  may  be  avoided  by  or  against  the  personal  representatives  of 
the  contracting  parties  (p).  And  further,  as  a  contract  for  the  sale 
of  land  is  enforceable  in  equity  by  or  against  the  heirs  or  devisees 
of  the  parties,  so  it  may  be  avoided  by  or  against  them  where  grounds 
of  avoidance  exist  (q). 

A  party  exercising  his  option  to  rescind  is  entitled  to  be  restored 
so  far  as  possible  to  his  former  position.  This  includes  a  right  to 
be  indemnified  against  obligations  incurred  under  the  contract,  but 
it  is  doubtful  whether  it  extends  to  liabilities  which  are  natural  con- 
sequences of  the  contract  but  are  not  created  by  the  contract  itself; 
for  it  may  be  said  that  an  indemnity  which  extended  so  far  would  not 
be  distinguishable  from  the  damages  recoverable  in  an  action  for 
deceit ;  and  the  remedy  of  rescission  is  applicable  in  many  cases  where 
583]  deceit  is  not  in  question.  *It  has  not  yet  been  necessary  to 
resolve  this  somewhat  speculative  doubt  (r) . 

B.    No  rescission  unless  parties  can  be  restored  to  former  position.      The 

contract  cannot  be  rescinded  after  the  position  of  the  parties  has 
been  changed  so  that  the  former  state  of  things  cannot  be  restored. 

Where    the    party    in    fault    has    acted    on    the   faith   of   the    contract. 

This  may  happen  in  various  ways.  The  party  who  made  the  mis- 
representation in  the  first  instance  may  have  acted  on  the  faith  of 
the  contract  being  valid  in  such  a  manner  that  a  subsequent  rescis- 

(o)     But    Wickens    V.-C.    thought  the    defendants    through    more    than 

otherwise  in  the  Court  below   (L.  E.  one  succession. 

12   Eq.   331)    and  the   correctness   of  (r)  In  Newbigging  v.  Adam  ( 1880) 

the     reversal     is     doubted    by    Lord  34   Ch.   Div.   582,   56   L.   J.   Ch.   275, 

Lindley    (on  Companies,  777).  Bowen  L.J.  proposed  to  limit  the  in- 

(p)  Including  assignees  in  bank-  demnity  to  liabilities  created  by  the 
ruptcy:  Load  v.  Green  (1846)  15  M.  contract;  Cotton  and  Fry  L.JJ.  in- 
&  W.  216,  15  L.  J.  Ex.  113;  Donald-  clined  to  a  larger  view;  but  the  re- 
son  v.  Farwell  (1870)  93  U.  S.  631.  lief  actually  sought  came  within 
[Koch  v.  Lyon,  82  Mich.  513.]  either  definition.     The  case  went   in 

(a)    Gresley  v.   Mousley    (1861)    4  1888   to   the  House   of   Lords,   where 

De  G.  &  J.  78 ;  and  see  cases  cited  in  it   turned    out    that    in   the    circum- 

next    chapter,    ad    fin.,    and    Charter  stances  a,  decision  upon  this  branch 

v.  Trevelyan   (1844)    11  CI.  &  F.  714,  of  the  case  was  not  required,  and  no 

Where  the  parties  on  both  sides  were  opinion  was  given  on  it:   13  App.  Ca. 

ultimately  representatives  and  as  to  308,  57  L.  J.  Ch.  1066. 


LIMITS    OF    THE    RIGHT.  713 

sion  would  work  irreparable  injury  to  him.87  And  here  the  rule 
applies,  but  with  the  important  limitation,  it  seems,  that  he  must 
have  so  acted  to  the  knowledge  of  the  party  misled  and  without  pro- 
test from  him,  so  that  his  conduct  may  be  said  to  be  induced  by  the 
other's  delay  in  repudiating  the  contract.38  Thus  where  a  policy  of 
marine  insurance  is  voidable  for  the  non-disclosure  of  a  material  fact, 
but  the  delay  of  the  underwriters  in  repudiating  the  insurance  after 
they  know  the  fact  induces  the  assured  to  believe  that  they  do  not 
intend  to  dispute  it,  and  he  consequently  abstains  from  effecting  any 
other  insurance,  it  would  probably  be  held  that  it  is  then  too  late 
for  the  underwriters  to  rescind  (s). 

Common  dealings  with  subject-matter  of  contract.  Or  the  interest  taken 
under  the  contract  by  the  party  misled  may  have  been  so  dealt  with 
that  he  cannot  give  back  the  same  thing  he  received.  On  this  prin- 
ciple a  shareholder  cannot  repudiate  his  shares  if  the  character  and 
constitution  of  the  company  have  in  the  meantime  been  altered.  This 
was  the  case  in  Clarke  v.  Dickson  (t),  where  the  plaintiff  *had  [584 

(s)  Per  Cur.  Morrison  v.  Universal       v.  L.  &  N.  W.  Ry.  Co.    (1871)    (Ex. 
Marine   Insurance    Co.    (1873)     (Ex.        Ch.)   L.  B.  7  Ex.  at  p.  35. 
Ch.)  L.  E.  8  Ex.  at  p.  205;  cp.  Clough  (f )    (1859)  E.  B.  &  E.  148,  27  L.  J. 

Q.  B.  223. 

37  Quoted  and  applied  in  Bostwick  v.  Mutual  Ins.  Co.,  116  Wis.  392,  422. 

38  "  Where  a  party  seeking  to  rescind  a  contract,  on  the  ground  of  fraud, 
acts  without  unnecessary  delay,  and  restores  or  offers  to  restore  that  which  he 
has  received,  it  is  no  defense  that  the  wrong-doer  has,  by  his  own  act,  made  a 
full  restoration  impossible  on  his  part,  or  has  entered  into  obligations  to 
others.  He  cannot  prevent  a  restoration  as  far  as  is  within  his  power,  by 
showing  that  he  has  himself  done  acts  which  prevent  his  being  restored  to 
his  original  position."  Hammond  v.  Pennock,  61  N.  Y.  145;  Hopkins  v. 
Snedaker,  71  111.  449;  Harper  v.  Terry,  70  Ind.  264;  Brown  v.  Norman,  65 
Miss.  369 ;  Butler  v.  Prentiss,  158  N.  Y.  49,  63 ;  Gates  v.  Eaymond,  106  Wis. 
657. 

On  a  sale,  induced  by  fraud,  of  whisky  then  in  a  United  States  bonded 
warehouse,  the  fraudulent  vendee,  in  order  to  obtain  possession,  paid  the  tax 
due  on  the  whisky.  It  was  held  that  the  vendor  rescinding  could  reclaim 
the  whisky,  and  need  not  reimburse  the  vendee  for  the  sum  paid  for  taxes; 
Guckenheimer  v.  Angevine,  81  N.  Y.  394.  Similarly  in  the  case  of  other 
charges.  Soper  Lumber  Co.  v.  Halsted  Co.,  73  Conn.  547 ;  Snow  v.  Alley,  144 
Mass.  547,  552;  Weeks  v.  Currier,  172  Mass.  53. 

"  When  without  fault  on  the  part  of  the  one  defrauded,  seeking  relief  in 
equity  on  account  of  advantage  taken  of  fiduciary  relations,  it  is  impossible 
to  restore  the  one  guilty  of  the  fraud  to  his  original  condition,  the  general 
rule  of  restoration  is  not  strictly  applied,  because  it  would  become  a  loophole 
for  the  escape  of 'the  fraud.  Equity  makes  a  reasonable  application  of  the 
rule  by  requiring  whatever  fair  dealing  requires  under  all  the  circum- 
stances of  the  particular  case,  but  it  does  not  permit  the  rule  to  become  a 
shield  for  wrongdoing."  Butler  v.  Prentiss,  158  N.  Y.  49,  64.  See  also 
Thackrah  v.  Haas,  119  U.  S.  499;  McCarty  v.  New  York  Ins.  Co.,  74  Minn. 
530;  Mills  v.  Central  E.  Co.,  41  N.  J.  Eq.  1;  Henninger  v.  Heald,  51  N.  J. 
Eq.  74;  Conlan  v.  Eoemer,  52  N.  J.  L.  53. 


714  THE    EIGHT    OF    RESCISSION. 

taken  shares  in  a  cost-book  mining  company.  The  company  was 
afterwards  registered  under  the  Joint  Stock  Companies  Act  then  in 
force,  apparently  for  the  sole  purpose  of  being  wound  up.  In  the 
course  of  the  winding-up  the  plaintiff  discovered  that  fraudulent  mis- 
representations had  been  made  by  the  directors.  But  it  was  by  this 
time  impossible  for  him  to  return  what  he  had  got;  for  instead  of 
shares  in  a  going  concern  on  the  cost-book  principle  he  had  shares 
in  a  limited  liability  company  which  was  being  wound  up  (u).  It  was 
held  that  it  was  too  late  to  repudiate  the  shares,  and  his  only  remedy 
was  by  an  action  of  deceit  against  the  directors  personally  responsible 
ior  the  false  statements  (x).  As  Crompton  J.  put  it,  "You  cannot 
both  eat  your  cake  and  return  your  cake"  (y).  A  similar  case  on 
this  point  is  Western  Bank  of  Scotland  v.  Addie  (z).  There  the  com- 
pany was  an  unincorporated  joint  stock  banking  company  when  the 
respondent  took  his  shares  in  it.  As  in  Clarice  v.  Dickson,  it  was 
afterwards  incorporated  and  registered  for  the  purpose  of  a  volun- 
tary winding-up.  It  was  held  as  a  probable  opinion  by  Lord  Chelms- 
ford, and  more  positively  by  Lord  Cranworth,  that  the  change  in 
the  condition  of  the  company  and  of  its  shares  was  such  as  to  make 
restitution  impossible,  and  therefore  the  contract  could  not  be  re- 
scinded (a).  There  is  some  reason  to  think  that  where  goods  or 
securities  have  been  delivered  under  a  contract  voidable  by  the 
585]  *buyer  on  the  ground  of  fraud,  and  before  the  repudiation 
their  value  has  materially  fallen  through  some  cause  unconnected  with 
the  fraud,  this  is  such  a  change  in  the  condition  of  the  thing  con- 
tracted for  as  to  make  restitution  impossible  in  law  (&).39 

Conduct  of  party  misled.     The  case  is  simpler  where  the  party  misled 
has  himself  chosen  to  deal  with  the  subject-matter  of  the  contract,  by 

(u)    The    fact   of   the    winding-up  remitted   to   the   position  of  a   mere 

having  begun  before  the  repudiation  debtor    of    the    company    he    is    not 

of  the  shares  is  of  itself  decisive  ac-  bound    to    take    any    active    steps : 

cording  to  the  later  cases  under  the  Aaron's  Reefs  v.  Twiss   [1896]  A.  C. 

present  Companies  Act;  but  here  the  273,  65  L.  J.  P.  C.  54. 
point  was  hardly  made.  (y)    (1867)  E.  B.  &  E.  at  p.  152. 

(;r)    Which  course  was  accordingly  (g)  L.  R.  1  Sc.  &  D.  145. 

taken  with  success:    Clarke  v.  DicK-  (a)  It  would  seem,  but  it  does  not 

son  (1859)   6  C.  B.  N.  S.  453,  28  L.  J.  clearly  appear,  that  in  this  case  also 

C.   P.  225.     These  principles  do  not  the  misrepresentations  were  not  dis- 

apply    where    a    shareholder,    having  covered  till  after  the  commencement 

had  his  shares  forfeited  for  non-pay-  of  the  winding-up. 
ment  of  calls,  and  thereby  ceased  to  (ft)  Waddell  v.   Blockey    (1879)    4 

be  a  member  of  the  company,  is  sued  Q.  B.  Div.  678,  683,  48  L.  J.  Q.  B. 

for  the  calls   in  arrear   and  defends  517,  per  Thesiger  L.J. 
on  the  ground  of  fraud.     After  he  is 

39  But  see  contra,  Adam  v.  Newbigging,  13  A.  C.  308;  Neblett  v.  Macfarland, 
92  U.  S.  101 ;  Whitcomb  r.  Denio,  52  Vt.  382. 


WHERE   RESTITUTION    IMPOSSIBLE.  715 

exercising  acts  of  ownership  or  the  like,  in  such  a  manner  as  to  make 
restitution  impossible;  and  it  is  still  plainer  if  he  goes  on  doing  this 
with  knowledge  of  all  the  facts;  if  the  lessee  of  mines,  for  example, 
goes  on  working  out  the  mines  after  he  has  full  information  of  the 
circumstances  on  which  he  relies  as  entitling  him  to  set  aside  the 
lease  (c).40  So  a  settlement  of  partnership  accounts  or  a  release  con- 
tained in  a  deed  of  dissolution  (d)  cannot  be  disputed  by  one  of  the 
parties  if  in  the  meantime  the  concern  has  been  completely  wound  up 
and  he  has  taken  possession  of  and  sold  the  partnership  assets  made 
over  to  him  under  the  arrangement  (e)  ;  and  an  arrangement  between 
a  company  and  one  of  its  directors  which  has  been  acted  upon  by  the 
company  so  as  to  change  the  director's  position  cannot  afterwards  be 
repudiated  by  the  company  (/).  So  a  purchaser  cannot  after  taking 
possession  maintain  an  action  to  recover  back  his  deposit  (g). 

The  right  to  recover  back  money  paid  under  an  agreement  on  the 
ground  of  mistake,  failure  of  consideration,  or  default  of  the  other 
party  is  also  subject  to  the  same  rule.41  Thus  a  lessee  who  has  entered 
into  possession  cannot  recover  back  the  premium  paid  by  him  on  the 
ground  of  the  lessor's  default  in  executing  the  lease  and  doing  re- 
pairs *to  be  done  by  him  under  the  agreement  (h)  :  nor  can  a  [586 
party  recover  back  an  excessive  payment  after  his  own  dealings  have 
made  it  impossible  to  ascertain  what  was  really  due  (i). 

C.  No  rescission  against  innocent  purchasers  for  value.  The  contract 
cannot  be  rescinded  after  third  persons  have  acquired  rights  under  it 
for  value. 

(c)    Vigers  v.  Pike   (1840-2)   8  CI.  (g)    Blackburn  v.  Smith    (1848)    2 

&  F.  562,  650.  Ex.  783,  18  L.  J.  Ex.  187 ;  but  it  was 

{d)       Urquhart      v.      Macpherson  also   held   that  apart   from  this   the 

(1878)    3  App.  Ca.  831.  objection    came    too    late    under    the 

(e)    Skilbeck  v.  Hilton    (1866)    L.  conditions   of  sale   in   the  particular 

R.  2  Eq.  587.  case. 

if)    Sheffield  Nickel  Co.  v.  Unvnn  (h)    Hunt  v.   Silk    (1804)    5   East 

(1877)  2  Q.  B.  D.  214,  46  L.  J.  Q.  B.  449,  7  R.  R.  739. 

299.  (i)   Freeman  v.  Jeffries   (1869)    L. 

R.  4  Ex.  189,  197,  38  L.  J.  Ex.  116. 

40  Hough  v.  Richardson,  3  Story,  659,  699;  Bement  v.  La  Dow,  66  Fed. 
Rep.  185;  Lockwood  v.  Fitts,  90  Ala.  150;  Rigdon  v.  Walcott,  141  111.  649; 
Shaeffer  v.  Sleade,  7  Blackf.  178;  Watson  Coal,  etc.,  Co.  v.  Casteel,  68  Ind. 
476;  McCulloeh  v.  Scott,  13  B.  Mon.  172;  Handforth  v.  Jackson,  150  Mass. 
149;  Marshall  v.  Gilman,  47  Minn.  131;  Schiffer  v.  Dietz,  83  N.  Y.  300; 
Precious  Blood  Soc.  v.  Elsythe,  102  Tenn.  40;  McCrillis  v.  Carlton,  37  Vt. 
139. 

An  unsuccessful  attempt  by  a  defrauded  purchaser  to  sell  the  property 
to  a  third  person  was  held  not  to  destroy  the  right  to  rescind  in  Hoyle  v. 
Southern  Works,  105  Ga.  123. 

41  Chance  v.  Board  of  Commissioners,  5  Blackf.  441;  Reed  r.  McGrew,  5 
Ohio,  375;  Fay  v.  Oliver,  20  Vt.  118. 


716  THE    RIGHT    OF    EBSCISSION. 

The  present  rule  is  altogether,  as  the  last  one  is  to  some  extent,  a 
corollary  from  the  main  principle  that  a  contract  induced  by  fraud  or 
misrepresentation  is  as  such  not  void  but  only  voidable.  The  result 
is  that  when  third  persons  have  acquired  rights  under  the  transaction 
in  good  faith  and  for  value,  those  rights  are  indefeasible.  The  rule  is 
also  stated  to  be  an  application  of  the  principle  of  convenience  "  that 
■where  one  of  two  innocent  parties  must  suffer  from  the  fraud  of  a 
third,  the  loss  should  fall  on  the  one  who  enabled  the  third  party  to 
commit  the  fraud  "  (k). 

Fraudulent  sales.  Thus  when  a  sale  of  goods  is  procured  by  fraud, 
the  property  in  the  goods  is  transferred  by  the  contract  (l),i2  subject 
as  between  the  seller  and  the  buyer  to  be  revested  by  the  seller  exer- 
cising his  option  to  rescind  when  he  discovers  the  fraud.  A  purchaser 
in  good  faith  from  the  fraudulent  buyer  acquires  an  indefeasible 
title  (to)43  now  confirmed  by  the  Sale  of  Goods  Act,  1893,  which 

(k)  Babcock  v.   Lawson    (1880)    4  when  they  elected  to  rescind  and  de- 

Q.  B.  D.  at  p.  400.  manded   the   goods    from    the    assig- 

(l)  Load  v.  Green  (1846)  15  M.  &  nees. 
W.  216,  15  L.  J.  Ex.  113;  where  it  (m)  White  v.  Garden  (1851)  10 
was  held  that  a  fraudulent  buyer  be-  C.  B.  919,  20  L.  J.  C.  P.  167;  Steven- 
coming  bankrupt  had  not  the  goods  son  v.  Neivnham  (1853)  (Ex.  Ch.)  13 
in  his  order  and  disposition  with  the  C.  B.  285.  303,  22  L.  J.  C.  P.  110, 
consent  of  the  true  owner;  for  the  115;  cp.  12  App.  Ca.  at  p.  483. 
vendors  became  the  true  owners  only 

« Rowley  v.  Bigelow,  12  Pick.  307;  Whitman  v.  Merrill,  125  Mass.  127; 
Barnard  c.  Campbell,  58  N.  Y.  73,  75;  Powers  v.  Benedict,  88  N.  Y.  605,  609; 
Zoeller  i:  Riley,  100  N.  Y.  102;  Wise  r.  Grant,  140  N.  Y.  593;  Kellogg  r. 
State,  26  Ohio  St.  15,  18;  Schwartz  c.  McCloskey,  156  Pa.  258;  Fleming  v. 
Hanley,  21  R.  I.  141;  Arendale  c.  Morgan,  5  Sneed,  703,  714;  Williams  v. 
Given,  6  Gratt.  268;  Steamship  Co.  r.  Burckhardt,  31  Gratt.  664.  And  see 
cases  in  the  following  note. 

« Robinson  v.  Leir,  81  Ala.  134;  Williamson  v.  Russell,  39  Conn.  406; 
Mears  v.  Waples,  3  Houst.  581;  4  Houst.  62;  Kern  r.  Thurber,  57  Ga.  172; 
Railroad  Co.  v.  Kerr,  49  111.  458;  Titeomb  v.  Wood,  38  Me.  561;  Ehll  r. 
Hinks,  21  Md.  406;  Lee  v.  Portwood,  41  Miss.  109;  Porell  r.  Cavanaugh,  69 
X.  H.  364;  Padden  v.  Taylor,  44  N.  Y.  371;  Sinclair  v.  Healy,  40  Pa.  417; 
Dettra  t\  Kestner,  147  Pa.  566;  Singer  Mfg.  Co.  v.  Simmons,  49  Wis.  316; 
Arnett  v.  Cloudas,  4  Dana,  300 ;  Attenborough  v.  St.  Katharine's  Dock  Co., 
3  C.  P.  D.  450 ;  and  cases  cited  in  last  note. 

An  attaching  creditor  of  the  fraudulent  buyer  cannot  hold  the  goods  as 
against  the  seller  exercising  his  right  of  rescission.  Thompson  v.  Rose,  16 
Ccnn.  71;  Landauer  v.  Cochran,  54  Ga.  533;  Schweizer  v.  Tracy,  76  111.  345; 
Oswego  Starch  Factory  v,  Lendrum,  57  la.  573 ;  Hawes  r.  Dingley,  17  Me. 
341 ;  Jordan  v.  Parker,  56  Me.  557 ;  Tarr  v.  Smith,  68  Me.  97 ;  Wiggins  v. 
Day,  9  Gray,  97;  Goodwin  v.  Mass.  Trust  Co.,  152  Mass.  189,  199;  Bradley 
v.  Obear,  10  N.  H.  477;  Field  v.  Stearns,  42  Vt.  106.  See  Sargent  v.  Sturm, 
23  Cal.  359.     Cp.  Van  Duzor  r.  Allen,  90  111.  499. 

In  this  country  it  is  generally  held  that  one  who  receives  property  from 
a  fraudulent  buyer  in  payment  of  a  precedent  debt  is  not  a  bona  fide  pur- 
chaser for  value,  and  cannot  hold  the  property  as  against  the  defrauded 
seller.  Commercial  Bank  i\  Pirie,  82  Fed.  Rep.  799  (C.  C.  A.)  ;  Loeb  v. 
Flash,  65  Ala.  526;  Adam,  etc.,  Co.  v.  Stewart,  157  Ind.  678;   Henderson  v. 


EIGHTS    OF    THIRD    PERSONS.  717 

abolished  a  statutory  exception  (n).  And  a  person  who  takes 
with  *notice  of  the  fraud  is  a  lawful  possessor  as  against  third  [587 
persons,  and  as  such  is  entitled  to  sue  them  for  all  injuries  to  the 
property,  unless  and  until  the  party  defrauded  exercises  his  right  of 
rescission  (o). 

The  same  rules  hold  good  as  to  possession  or  other  partial  interests 
in  property.  A.  sells  goods  to  B.,  but  resumes  the  possession,  by 
arrangement  with  B.,  as  a  security  for  the  price.  Afterwards  B.  in- 
duces A.  to  re-deliver  possession  of  the  goods  to  him  by  a  fraudulent 
misrepresentation,  and  thereupon  pledges  the  goods  to  C,  who  ad- 
vances money  upon  them  in  good  faith  and  in  ignorance  of  the  fraud. 
This  pledge  is  valid,  and  C.  is  entitled  to  the  possession  of  the  goods 
as  against  A.  (p).u 

(n)  24  &  25  Vict.  c.  96,  s.  100,  ex-  (1878)   4  Q.  B.  D.  32,  48  L.  J.  Q.  B. 

tended  the  re- vesting  of  property  in  125;   the  Sale  of  Goods  Acts,  s.  24, 

the  true  owner  upon  the  thief's  con-  restores  the  older  law. 

viction  to  cases  of  obtaining  goods  by  ( o )     Stevenson    v.    Newnham,    see 

criminal     fraud     not     amounting    to  note  ( m ),  last  page, 

larceny:   Bentley  v.   Vilmont    (1887)  (p)   Pease  v.  Gloahec  (1866)   L.  R. 

12  App.   Ca.  471,  57  L.  J.  Q.  B.  18,  1  P.  C.  219,  35  L.  J.  P.  C.  66.     The 

overruling      Moyce      v.      Newington  dealings  were  in  fact  with  the  bill  of 

Gibbs,  39  Kan.  679;  Hurd  i:  Bickford,  85  Me.  217;  Schloss  v.  Feltus,  103 
Mich.  525;  Case  Works  v.  Boss,  74  Mo.  App.  437;  Sleeper  v.  Davis,  64  N.  H. 
59;  Stevens  v.  Brennan,  79  N.  Y.  254;  Eaton  v.  Davidson,  46  Ohio  St.  355; 
Wheeling,  etc.,  Co.  v.  Koontz,  61  Ohio  St.  551 ;  Belleville  Works  r.  Samuelson, 
16  Utah,  234;  Woonsocket  Bubber  Co.  v.  Loewenberg,  17  Wash.  29.  And  see 
•Barnard  v.  Campbell,  58  N.  Y.  73;  Devoe  f.  Brandt,  53  N.  Y.  462;  Johnson 
r.  Peck,  1  Woodb.  &  M.  334.  Cp.  Rodgers  i?.  Comptoir  d'Escomte,  L.  R.  2 
P.  C.  393;  Loeb  v.  Peters,  63  Ala.  243.  Contra,  Butters  v.  Haughwout,  42 
111.  18;  Horton  v.  Williams,  21  Minn.  187;  Shufeldt  v.  Pease,  16  Wis.  659. 
Cp.  Leask  v.  Scott,  2  Q.  B.  D.  376;  Lee  v.  Kimball,  45  Me.  172;  Skilling  v. 
Bollman,  73  Mo.  665;  Shepard,  etc.,  Co.  i:  Burroughs,  62  N.  J.  L.  469. 

A  transfer  as  security  for  an  antecedent  obligation  is.  a  fortiori,  not  a 
transfer  for  value.  Reid  r.  Bird,  15  Col.  App.  116;  Dinkier  v.  Potts,  90  Ga. 
103;  Mashburn  v.  Donnenberg  Co.,  117  Ga.  567;  Adam  v.  Meldrum,  157  Ind. 
678;  Cox  Shoe  Co.  v.  Adams,  105  la.  402;  Phelps  v.  Samson,  113  la.  145; 
Goodwin  v.  Mass.  Trust  Co.,  152  Mass.  189;  McGraw  r.  Solomon,  83  Mich. 
442;  Edson  v.  Hudson,  83  Mich.  450;  Bronson  Electric  Co.  v.  Bheubottom,  122 
Mich.  608;  Kemper,  etc.,  Co.  v.  Kidder  Bank,  81  Mo.  App.  280;  Phoenix  Co. 
f  McEvony,  47  Neb.  228;  Charles  P.  Kellogg  Co.  ir.  Horkey,  61  Neb.  751; 
Tate  r.  Security  Trust  Co.,  63  N.  J.  Eq.  559;  Button  v.  Rathbone.  126  N.  Y. 
187,  192.  But  see  contra,  Chapman  v.  Hughes,  134  Cal.  641,  658;  Knox  r. 
McFarran,  4  Col.  586,  596;  Kranert  v.  Simon,  65  111.  344.  A  transfer 
of  negotiable  paper  in  payment  of  or  security  for  an  antecedent  debt  must 
be  distinguished  from  such  a  transfer  of  other  property.  A  transfer  of  a 
bill  or  note  in  payment  of  an  antecedent  debt  is  by  the  weight  of  authority 
a  transfer  for  value.  1  Ames  Cas.  B.  &  N.  650  n.,  and  it  is  so  provided  m 
the  Negotiable  Instruments  Law.  Crawford,  Neg.  Inst.  Law,  §  51.  On  the 
other  hand  a  transfer  to  secure  a  pre-existing  debt  was  more  often  held  not 
a  transfer  for  value.  1  Ames  Cas.  B.  &  N.  650,  n.,  but  this  also  by  the 
Negotiable  Instruments  Law  is  made  value.    Crawford,  Neg.  Inst.  Law.  §  51. 

44  The  reason  why  the  pledge  to  C.  was  valid  was  because  B.  had  not  only 
possession  but  title  to  the  goods.  Mere  possession,  whether  procured  with  or 
without  fraud,  under  a   contract  or  without  a  contract,   cannot  enable   the 


718  THE    BIGHT    OF    KESCISSIOX. 

Distinction  where  there  is  no  contract,  but  goods  are  merely  obtained  by 
fraudulent  pretences.  It  must  be  carefully  observed  that  a  fraudulent 
possessor  cannot  give  a  better  title  than  he  has  himself,  even  to  an 
innocent  purchaser,  if  the  possession  has  not  been  obtained  under  a 
contract  with  the  true  owner,  but  by  mere  false  pretences  as  to  some 
matter  of  fact  concerning  the  true  owner's  contract  with  a  third 
person.  To  put  a  simple  case,  A.  sells  goods  to  B.  and  desires  B.  to 
send  for  them.  C.  obtains  the  goods  from  A.  by  falsely  representing 
himself  as  B.'s  servant :  now  C.  acquires  neither  property  nor  lawful 
possession,  and  cannot  make  any  sale  or  pledge  of  the  goods  which  will 
be  valid  against  A.,  though  the  person  advancing  his  money  have  no 
notice  of  the  fraud.  The  result  is  the  same  if  A.  means  to  sell  goods  to 
B.  &  Co.,  and  C.  gets  goods  from  A.  by  falsely  representing  himself  as 
a  member  of  the  firm  and  authorized  to  act  for  them  (</),45  or  if  B.,  a 
person  of  no  credit,  gets  goods  from  A.  by  trading  under  a  name  and 
588]  address  closely  resembling  *those  of  C,  who  is  known  to  A.  as  a 
respectable  trader  (r).46  It  is  also  the  same  in  the  less  simple  case  of 
a  third  person  obtaining  delivery  of  the  goods  by  falsely  representing 
himself  as  a  sub-purchaser ;  for  here  there  is  no  contract  between  him 
and  the  seller  which  the  seller  can  affirm  or  disaffirm ;  what  the  seller 
does  is  to  act  on  the  mistaken  notion  that  the  property  is  already  his 
by  transfer  from  the  original  buyer.     This  was  in  effect  the  decision 

lading;  but  as  this  completely  repre-  (r)     Guvdy    v.    Lindsay     (1378)     3 

sented  the  goods  for  the  purposes  of  App.    Ca.    459,    47    L.   J.    Q.   B.    481. 

the  case  the  statement  in  the  text  is  Otherwise     where     the     fraud     stops 

simplified  in  order  to  bring  out  the  short   of   personation,  and  is  only  a 

general    principle    more    clearly.      A  false    representation    of    the    party's 

later  case   of  the  same  kind  is  Bab-  condition   and   means:    Atteriborough 

cod;,  v.  Lauson    (1880)    5  Q.  B.  Div.  v.  .S7.  Katharine's  Dock  Co.   (1878)   3 

284,  49  L.  J.  Q.  B.  408.  C.  P.  Div.  450,  47  L.  J.  Ch.  763;  cp. 

(q)    Bardman  v.  Booth    (1863)    1  Edmunds  v.  Merchants'  Despatch  Go. 

H.  &  C.  803,  32  L.  J.  Ex.  105 ;  Hoi-  135  Mass.  283,  which  goes  farther. 
lins  v.  Fowler  (1874-5)   L.  R.  7  H.  L. 
757,  795. 

possessor  to  give  any  right  to  an  innocent  third  person,  which  will  be  good 
against  the  true  owner,  except  where  on  principles  of  agency  or  under  factors' 
acts  or  by  the  law  governing  negotiable  paper,  the  possessor  is  given  such  an 
apparent  power  of  disposition  of  the  property  as  to  bind  the  true  owner. 
When  a  watchmaker  obtains  possession  of  a  watch  under  a  contract  to  clean 
it,  he  cannot  make  a  valid  pledge  of  it.  See  Baehr  v.  Clark,  83  "la.  313; 
National  Bank  r.  Chicago,  etc.,  R.  Co.,  44  Minn.  224;  Heilbronn  r.  McAleenan, 
1  N.  Y.  Supp.  875;  Rohrbough  r.  Leopold,  68  Tex.  254. 

■ts  See  Alexander  v.  Swackhamer,  105  Ind.  81 ;  Peters  Co.  v.  Lesh,  119  Ind. 
98;  Moody  r.  Blake,  117  Mass.  23;  Edmunds  r.  Merchants'  Despatch  Co.,  135 
Mass.  283;  Hentz  p.  Miller,  94  N.  Y.  64;  Hamet  v.  Letcher,  37  Ohio  St.  356; 
Decan  r.  Shipper,  35  Pa.  239;  Barker  i\  Dinsmore,  72  Pa.  427;  supra, 
p.  592. 

46  See  Samuel  v.  Cheney,  135  Mass.  278. 


REPUDIATION    OF    SHARES.  719 

of  the  Exchequer  Chamber  in  Kingsford  v.  Merry  (s),47  though  the 
case  was  a  little  complicated  by  the  special  consideration  of  the  effect 
of  delivery  orders  or  warrants  as  "  indicia  of  title." 

Shareholder  can't  repudiate  after  winding  up:     Oakes  v.  Turquand.      The 

decision  of  the  House  of  Lords  in  Oakes  v.  Turquand  (t),  which  settled 
that  a  shareholder  in  a  company  cannot  repudiate  his  shares  after  the 
commencement  of  a  winding-up,  proceeded  to  a  considerable  extent 
upon  the  language  of  the  Companies  Act,  1862,  in  the  section  defining 
who  shall  be  contributories.  But  the  broad  principles  of  the  decision, 
or  if  we  prefer  to  say  so,  of  the  Act  as  interpreted  by  it,  are  these. 
The  rights  of  the  company's  creditors  and  of  the  shareholders  are  fixed 
at  the  date  of  the  winding-up  and  are  not  to  be  afterwards  varied. 
The  creditors  are  entitled  to  look  for  payment  in  the  first  instance  to 
all  persons  who  are  actually  members  of  the  company  at  the  date  of  the 
winding-up.  And  this  class  includes  shareholders  who  were  entitled 
as  against  the  company  to  repudiate  their  shares  on  the  ground  of 
fraud,  but  have  not  yet  done  so.  For  their  obligations  under  their 
contracts  with  the  company,  including  the  duty  to  Contribute  [589 
in  the  winding-up,  were  valid  until  rescinded,  and  the  creditors  in  the 
winding-up  must  be  considered  as  being,  to  the  extent  of  their  claims, 
purchasers  for  value  of  the  company's  rights  against  its  members. 
They  are  not  entitled  to  any  different  or  greater  rights:  no  share- 
holder can  be  called  upon  to  do  more  than  perform  his  contract  with 
the  company  (u).4S 

(s)    (1856)    1  H.  &  N.   503,  26  L.  (it)       Waterhouse      v.      Jamieson 

J.  Ex.  83    (see  per  Erie  J.  at  p.  88,  (1870)   L.  R.  2  Sc.  &  D.  29.     Tn  Hall 

revg.  s.  c.  in  Court  below,  11,  577,  25  v.    Old    Talargoch   Lead   Mining    Co. 

L.  J.  Ex.  166.  (1876)    3   Ch.   D.   749,   45   L.  J.   Ch. 

(*)   (1867)    L.  R.  2  H.  L.  325,  36  775,  an  action  for  rescission  and  in- 

L.  J.  Ch.  949.     This  principle  applies  demnity  commenced  by  a  shareholder 

to  a  voluntary  as  well  as  a  eompul-  after  a  resolution  for  winding-up  but 

sory  winding-up :    Stone  v.   City  and  in  ignorance  of  it  was  allowed  to  pro- 

County   Bank    (1877)    3    C.    P.    Div.  ceed.        Here     however     relief     was 

282,  47  L.  J.  C.  P.  681.  claimed  against  the  directors  person- 
ally as  well  as  the  company. 

47  See  Henderson  v.  Williams,  [1895]  1  Q.  B.  521;  Farquharson  v.  King, 
[1901]  2  K.  B.  697;  Collins  v.  Ralli,  20  Hun,  246,  affd.,  85  N.  Y.  637;  Soltau 
v.  Gerdau,  119  N.  Y.  380. 

48  Cp.  Banigan  i;.  Bard,  134  U.  S.  291;  Lantry  v.  Wallace,  182  U.  S.  536; 
Republic  Ins.  Co.  v.  Swigert,  135  111.  150.  In  this  country  an  agreement 
between  a  company  and  shareholders  that  shares  not  fully  paid  up  shall  be 
considered  as  paid-up  shares,  though  binding  on  the  company,  is  a  fraud 
in  law  on  its  creditors,  who,  when  their  claims  are  to  be  satisfied,  may  require 
the  shareholders  to  pay  for  their  shares  in  full.  Scovill  v.  Thayer,  105  U. 
S.  145,  154;  Insurance  Co.  v.  Frear  Stone  Mfg.  Co.,  97  111.  537:  Bent  v.  Under- 
down,  156  Ind.  516;  Crawford  v.  Rohrer,  59  Md.  599;  A.  Wight  Co.  r.  Steinke- 
meyer,  6  Mo.  App.  574;   Skrainka  V.  Allen,  7  Mo.  App.  434;   76  Mo.  384; 


720  THE    BIGHT    OF    RESCISSION'. 

It  is  now  settled  law  that  the  same  rule  applies  to  joint-stock  com- 
panies not  under  the  Companies  Acts.  And  the  date  after  which  it  is 
too  late  to  repudiate  shares  may  be  earlier  than  the  commencement  of 
the  winding-up.  Probably  the  actual  insolvency  of  the  company  fixes 
this  date;  at  all  events  a  shareholder  cannot  repudiate  after  the 
directors  have  convened  an  extraordinary  meeting  to  consider  whether 
the  company  shall  be  wound  up.  For  thus,  "  by  holding  out  to  the 
body  of  creditors  the  prospect  of  a  voluntary  winding-up,"  the  di- 
rectors, who  are  the  shareholder's  agents  as  long  as  he  remains  a 
shareholder,  stay  the  hands  of  the  creditors  from  compulsory  proceed- 
ings (a;).49  And  the  rule  holds  even  if  there  are  no  unpaid  creditors. 
"  The  doctrine  is,  that  after  the  company  is  wound  up  it  ceases  to 
exist,  and  rescission  is  impossible"  (y). 

Persons  taking  as  volunteers  under  fraudulent  contract,  though  innocent, 
no  better  off  than  original  defrauder.  On  the  other  hand,  persons  who 
have  taken  any  gratuitous  benefit  under  a  fraudulent  transaction, 
though  themselves  ignorant  of  the  fraud,  are  in  no  better  position 
than  the  original  contriver  of  it.,r>0  Thus  where  a  creditor  was  induced 
to  give  a  release  to  a  surety  by  a  fraud  practised  on  him  by  the  prin- 
cipal debtor,  of  which  the  surety  was  ignorant,  and  the  surety  gave 
no  consideration  for  the  release,  it  was  held  that  this  release  might  be 
590]  disaffirmed  by  the  creditor  on  discovering  the  fraud.  *But  third 
persons  who  on  the  faith  of  the  release  being  valid  had  advanced 

(.r)     Tennent    v.    City    of    Glasgoio  (y)    Burgess's  case    (1880)    15   Ch. 

Bank   (1879)   4  App.  Ca.  615.  D.  507,  509,  49  L.  J.  Ch.  541    (Jessel 

M.R.). 

Weatherbee  v.  Baker,  35  N.  J.  Eq.  501.  And  see  State  Trust  Co.  v.  Turner, 
111  la.  664,  and  many  cases  citad. 

But  an  innocent  purchaser  for  value  who  bought  such  shares  as  paid-up 
shares  is  entitled  to  have  them  treated  as  such.  Foreman  v.  Bigelow,  4 
Cliff.  508;  Steacy  c.  Railroad  Co.,  5  Dill.  348;  Brant  v.  Ehlen,  59  Md.  1; 
Keystone  Bridge  Co.  r.  McCluney,  8  Mo.  App.  496.  And  so  is  one  to  whom, 
in  the  absence  of  fraud,  shares  were  issued  by  the  company  in  payment  for 
property  conveyed  to,  or  of  a  debt  owing  by  it.  Coit  r.  N.  C.  Gold  Amalgamat- 
ing Co.,'  14  Fed.  Rep.  12,  119  U.  S.  343;-Phelan  c.  Hazard,  5  Dill.  45;  New 
Haven  Trust  Co.  r.  Nelson,  73  Conn.  477;  Troup  r.  Horbach,  53  Neb.  795; 
Rural  Homestead  Co.  r.  Wildes,  54  N.  J.  Eq.  668;  Van  Cott  v.  Van  Brunt, 
82  N.  Y.  535;  National  Bank  r.  Illinois  Lumber  Co.,  101  Wis.  247.  But  see 
Van  Cleve  r.  Berkey,  143  Mo.  109,  and  42  L.  R.  A.  593,  n. 

49  As  to  the  right  to  rescind  after  the  insolvency  of  the  corporation  and 
the  appointment  of  a  receiver  or  assignee  in  bankruptcy,  see  1  Am.  L.  Rev. 
(N.  P.)  208  sqq.;  Chubb  r.  Upton,  95  U.  S.  665,  667;  Lantry  r.  Wallace,  182 
U.  S.  536;  Michener  r.  Payson,  13  N.  B.  R.  49;  Farrar  v.  Walker,  3  Dill. 
506,  n. ;  Upton  r.  Englehart,  3  Dill.  496 ;  Turner  r.  Insurance  Co..  65  Ga.  649 ; 
Bissell  v.  Heath,  98  Mich.  472;  Ruggles  ;.  Brock,  6  Hun,  164;  Howard  r. 
Turner,  155  Pa.  349. 

ROMendenhall  v.  Treadway,  44  Ind.  131  ;  Hogan  r.  Wixted,  138  Mass.  270; 
Gordon  p.  McCarty,  3  Whart.  407;  Longenecker  v.  Church,  200  Pa.  567,  575. 


ACQUIESCENCE.  721 

money  to  the  surety  to  meet  other  liabilities  would  be  entitled  to 
assert  a  paramount  claim  (2). 

D.  Rescission  must  be  within  reasonable  time.  The  contract  must  be 
rescinded  within  a  reasonable  time,  that  is,  before  the  lapse  of  a  time 
after  the  true  state  of  things  is  known,  so  long  that  under  the  circum- 
stances of  the  particular  case  the  other  party  may  fairly  infer  that 
the  right  of  rescission  is  waived. 

Explanation  of  this:  the  importance  of  time  is  not  per  se,  but  as  evidence 
of  acquiescence  —  Authorities  in  equity.  It  is  believed  that  the  statement 
of  the  rule  in  some  such  form  as  this  will  reconcile  the  substance  and 
language  of  all  the  leading  authorities.  On  the  one  hand  it  is  often 
said  that  the  election  must  be  made  within  a  reasonable  time,51  while 
on  the  other  hand  it  has  several  times  been  explained  that  lapse  of  time 
as  such  has  no  positive  effect  of  its  own.52  The  Court  is  specially 
cautious  in  entertaining  charges  of  fraud  or  misrepresentation  brought 
forward  after  a  long  interval  of  time;  it  will  anxiously  weigh  the 
circumstances,  and  consider  what  evidence  may  have  been  lost  in 
consequence  of  the  time  that  has  elapsed  (a).  But  time  alone  is  no 
bar  to  the  right  of  rescinding  a  voidable  transaction ;  and  the  House  of 
Lords  in  one  case  set  aside  a  purchase  of  a  principal's  estate  by  his 
agent  in  another  name  after  the  lapse  of  more  than  half  a  century, 
the  facts  having  remained  unknown  to  the  principal  and  his  repre- 
sentatives for  thirty-seven  years  (b).  In  a  later  case  the  Lord  Justice 
Turner  stated  expressly  that  "the  two  proposition  of  a  bar  by  length  of 

(«)    Scholefield  v.   Templer   (1859)  it  simply  without  prejudice  to  their 

Johns.    155,   165,   4  De  G.   &  J.  429,  rights:   4  De  G.  &  J.  435. 

28  L.  J.  Ch.  452.     The  Court  below  (a)   Cp.  Bright  v.  Legerton  (1861) 

endeavoured  to  provide  for  the  pay-  2  D.  F.  &  J.  606,  617. 

ment   of   the   third   persons    in   ques-  (6)    Charter   v.   Trevelyan    (1844) 

tion    (Johns.   171),  but  the  Court  of  11  CI.  &  F.  714,  740. 
Appeal  varied  the  decree  by  making 

BlGrymes  v.  Sanders,  93  U.  S.  55,  62;  McLean  v.  Clapp,  141  U.  S.  429,  432; 
Rugan  v.  Sabin,  53  Fed.  Rep.  415;  Scheftel  r.  Hays,  58  Fed.  Rep.  457;  Young 
v.  Arintze,  86  Ala.  116;  Burke  f.  Levy,  68  Cal.  32;  Sutter  v.  Rose,  169  IH. 
66 ;  Mills  v.  City,  59  Kan.  463 ;  Wingate  v.  King,  23  Me.  35 ;  Key  v.  Jennings, 
66  Mo.  356,  370;  Bstes  v.  Reynolds,  75  Mo.  563;  Pollock  v.  Smith,  49  Neb. 
864;  Willoughby  v.  Moulton,  47  N.  H.  205;  Norfolk  Hosiery  Co.  v.  Arnold, 
49  N.  J.  Eq.  390;  Baird  v.  Mayor,  96  N.  Y.  567,  598;  Davis  v.  Stuard,  90 
Pa.  295. 

62Rackemann  v.  Riverbank  Co.,  167  Mass.  1;  Bradshaw  i\  Yates,  67  Mo. 
221;  Whitcomb  v.  Denio,  52  Vt.  382,  390.  "Delay  in  exercising  the  power 
of  rescission  is  evidence  of  an  election  to  treat  the  sale  as  valid,  of  more  or 
less  weight,  according  to  the  circumstances  of  the  case,  but  of  itself  does  not 
operate  as  an  estoppel,  unless,  in  the  meantime,  superior  rights  of  third 
persons  have  intervened."     Williamson  v.  Railroad  Co.,  29  N.  J.  Eq.  311,  320. 

46 


722  THE    BIGHT    OF    RESCISSION. 

time  and  by  acquiescence  are  not  distinct  propositions."  Length  of 
time  is  evidence  of  acquiescence,  but  only  if  there  is  knowledge  of  the 
59 1  ]  *f acts,  for  a  man  cannot  be  said  to  have  acquiesced  in  what  he 
did  not  know  (c).  Lord  Campbell  slightly  qualified  this  by  adding, 
that  although  it  is  for  the  party  relying  on  acquiescence  to  prove  the 
facts  from  which  consent  is  to  be  inferred,  "  it  is  easy  to  conceive  cases 
in  which,  from  great  lapse  of  time,  such  facts  might  and  ought  to  be 
presumed  "'  (d). 

The  rule  has  been  laid  down  and  acted  upon  by  the  Judicial  Com- 
mittee in  this  form :  "  In  order  that  the  remedy  should  be  lost  by 
laches  or  de]ay,  it  is,  if  not  universally,  at  all  events  ordinarily  .  .  . 
necessary  that  there  should  be  sufficient  knowledge  of  the  facts  con- 
stituting the  title  to  relief"  (e). 

To  the  same  effect  it  has  been  said  in  the  Supreme  Court  of  the 
United  States :  "  Acquiescence  and  waiver  are  always  questions  of  fact. 
There  can  be  neither  without  knowledge."  And  the  knowledge  must 
be  actual,  not  merely  possible  or  potential :  "  the  wrongdoer  cannot 
make  extreme  vigilance  and  promptitude  conditions  of  rescis- 
sion" (/).53 

Acquiescence  need  not  be  manifested  by  any  positive  act ;  the  ques- 
tion is.  whether  there  is  sufficient  evidence  either  from  lapse  of  time  or 
from  other  circumstances  of  "  a  fixed,  deliberate  and  unbiassed  deter- 
mination that  the  transaction  should  not  be  impeached"  (g).6i    In 

(c)  Life  Association  of  Scotland  v.  (e)  Lindsay  Petroleum  Co.  v.  Hurd 

Siddal  (1861)  3  D.  F.  &  J.  58,  72,  74;  (1874)  L.  R.  5  P.  C.  241. 

on   the    point   that   there    cannot   be  (f)    Pence  v.   Langdon    (1878)    99 

acquiescence  without  knowledge;   cp.  U.  S.  at  p.  581. 

Lloyd    v.    Attwood     (1858-9)     3    De  (d)  3  D.  F.  &  J.  at  p.  77.    Thecase 

G.  &  J.  614,  650,  29  L.  J.  Ch.  97 ;  per  was  one  not  of  rescinding  a  contract 

Alderson  B.  Load  v.  Green  (1846)  15  but   of   a   breach   of   trust;    but  the 

M.  &  W.  at  p.  217:   "A  man  cannot  principles  are  the  same. 

permit   who   does   not   know  that   he  (g)     Per    Turner    L.J.    Wriqht    v. 

has  a  right  to  refuse:"  and  per  Jes-  Vanderplank  (1855)  8  D.  M.  &  G.  133, 

sel  M.R.   1  Ch.  D.  528.  147,  25  L.  J.  Ch.  753.     The  epithets, 

.  53Veazie  r.  Williams,  8  How.  134,  158;  Mudsill  Min.  Co.  v.  Watrous,  61 
Fed.  Rep.  163,  186;  Newman  v.  Schwerin,  109  Fed.  Rep.  942,  947;  Nealon 
r.  Henry,  131  Mass.  153;  Baker  v.  Lever,  67  N.  Y.  304;  Indiana  Meeting  v. 
Haines,  47  Ohio  St.  423;  Bank  v.  Brown,  5  S.  &  R.  226,  234;  McGee  v. 
Hall,  26  S.  C.  179;  Wade  v.  Pulsifer,  54  Vt.  45,  65.  Where  a  party  is  de- 
frauded by  another,  between  whom  and  himself  special  relations  of  trust 
and  confidence  exist,  information  as  to  the  fraud,  given  by  third  persons, 
will  not  constitute  notice,  if  the  party  defrauded  refuses  to  credit  such 
information  by  reason  of  his  confidence  in  the  other  party.  Marston  r.  Simp- 
son, 54  Cal.  189. 

54  Where  the  party  after  knowledge  of  the  fraud  and  an  opportunity  to 
rescind  still  retains  the  possession  and  use  of  the  property,  without  any  offer 
to  return   it,   the   fraud   is   waived   and   the  contract  becomes   valid  by   a-c- 


ACQUIESCENCE.  723 

estimating  *the  weight  to  be  given  to  length  of  time  as  evidence  [592 
of  acquiescence  the  nature  of  the  property  concerned  is  material  (h).55 
And  other  special  circumstances  may  prevent  lapse  of  time  even  after 
even-thing  is  known  from  being  evidence  of  acquiescence;  as  when 
nothing  is  done  for  some  years  because  the  other  party's  affairs  are  in 
such  a  condition  that  proceedings  against  him  would  be  fruitless  (i). 
"  In  questions  of  this  kind  it  is  not  only  time  but  the  conduct  of  the 
parties  which  has  to  be  considered  "  (&).  • 

If  a  party  entitled  to  avoid  a  transaction  has  precluded  himself  by 
his  own  acts  or  acquiescence  from  disputing  it  in  his  lifetime,  his 
representatives  cannot  come  forward  to  dispute  it  afterwards  (I). 

Special  obligation  of  diligence  in  case  of  shareholders.  It  is  said  that 
holders  of  shares  in  companies  are  under  a  special  obligation  of  dili- 
gence as  to  making  their  election,  but  the  dicta  relate  chiefly  if  not 
wholly  to  objections  apparent  on  the  face  of  the  memorandum  or 
articles  of  association.  With  the  contents  of  these  a  shareholder  is 
bound  to  make  himself  acquainted,  and  must  be  deemed  to  become 
acquainted,  when  his  shares  are  allotted  (m).58  But  objections  which 
can  be  taken  upon  these  must  proceed  on  the  ground,  not  of  fraud  or 
misrepresentation  as  such,  but  of  the  undertaking  in  which  shares  are 
allotted  being  substantially  a  different  thing  from  that  which  the  pros- 
pectus described  and  in  which  the  applicant  offered  to  take  shares. 
Nor  are  we  aware  of  any  case  in  which  the  rule  has  been  applied  to  a 
repudiation  of  shares  declared  before  a  winding-up  and  on  the  ground 
of  fraud  or  misrepresentation  not  apparent  on  the  articles.     Still  it 

however,    are   more   specially   appro-  (i)    Scholefield  v.  Templer   (1859) 

priate   to   the   particular   ground    of  4  De  G.  &  J.  429,  28  L.  J.  Ch.  452. 

rescission   (undue  influence)   then  be-  {k)     Rochefoucauld     v.     Boustead 

fore  the  Court.     More  generally,  the  |"1897]  1  Ch.  196,  211,  C.  A.,  per  Cur. 

only  proper  meaning  of  acquiescence  (I)  Skottowe  v.  Williams  (1861)   3 

is     quiescence     under    such     circum-  D.  F.  &  J.  535,  541. 

stances   that  assent   may  be   reason-  (m)    Central  Ry.   of   Venezuela  v. 

ably  inferred  from  it:  per  Cur.  in  De  Kisch    (1867)    L.   R.   2   H.   L.    at   p. 

Bussohe  v.  Alt   (1877)    8  Ch.  Div.  at  125;    Oalces   v.   Turquand    (1867)    ib, 

p.  314,  47  L.  J.  Ch.  386.  at  p.  352;  and  see  Ch.  IX.,  p.  *479, 

(h)  8  D.  M.  &  G.  at  p.  150.  above. 

quiescence.  Barr  v.  New  York,  etc.,  R.  Co.,  125  N.  Y.  263,  275;  Scheftel  v. 
Hays,  58  Fed.  Rep.  457. 

55  See  Grymes  v.  Sanders,  93  U.  S.  55,  62;  Hoyt  v.  Latham,  143  U.  S. 
553 ;  Jesup  v.  Illinois,  etc.,  R.  Co.,  43  Fed.  Rep.  483 ;  Kinne  v.  Webb,  49  Fed. 
Rep.  512,  54  Fed.  Rep.  34  (C.  C.  A.)  ;  Sagadahoc  Co.  v.  Ewing,  65  Fed.  Rep. 
702  (C.  C.  A.)  ;  Curtis  v.  Lakin,  94  Fed.  Rep.  251;  Wheeler  v.  McNeil,  101 
Fed.  Rep.  685,  689;  Cox  v.  Montgomery,  36  111.  396;  Plympton  v.  Dunn,  148 
Mass.  523;  McQueen  r.  Burhans,  77  Minn.  382. 

56  "  That  the  defendant  did  not  read  the  charter  and  by-laws,  if  such  were 
the  fact,  is  his  own  fault."     Upton  v.  Tribilcock,  91  U.  S.  45,  50. 


724  THE    EIGHT    OF    EESCISSION. 

seems  quite  reasonable  to  hold  that  in  the  case  of  a  shareholder's 
593]  ^contract  lapse  of  time  without  repudiation  is  of  greater  im- 
portance as  evidence  of  assent  than  in  most  other  cases.57 

Same  general  rule  at  law.  The  authorities  thus  far  cited  have  been 
from  courts  of  equity.  The  same  general  principle  was  laid  clown  in 
the  Exchequer  Chamber  in  1871.  "We  think  the  party  defrauded 
may  keep  the  question  open  so  long  as  he  does  nothing  to  affirm  the 
contract  ...  In  such  cases  the  question  is,  has  the  person  on 
whom  the  fraud  was  practised,  having  notice  of  the  fraud,  elected  not 
to  avoid  the  contract?  or  has  he  elected  to  avoid  it?  or  has  he  made 
no  election?  We  think  that  so  long  as  he  has  made  no  election  he 
retains  the  right  to  determine  it  either  way,  subject  to  this,  that  if  in 
the  interval  whilst  he  is  deliberating  an  innocent  third  party  has  ac- 
quired an  interest  in  the  property,  or  if  in  consequence  of  his  delay 
the  position  even  of  the  wrongdoer  is  affected,  it  will  preclude  him 
from  exercising  his  right  to  rescind.  And  lapse  of  time  without 
rescinding  will  furnish  evidence  that  he  has  determined  to  affirm  the 
contract,  and  when  the  lapse  of  time  is  great  it  probably  would  in 
practice  be  treated  as  conclusive  evidence  to  show  that  he  has  so 
determined  "  (n). 

Fixed  period  of  limitation  by  French  law.  The  French  law  treats  the 
right  of  having  a  contract  judicially  set  aside  for  fraud,  &c.  as  a 
substantive  right  of  action,  and  limits  a  fixed  period  of  ten  years, 
running  from  the  discovery  of  the  truth,  within  which  it  must  be 
exercised  (o).  There  are  provisions  of  similar  effect  in  the  procedure 
codes  of  many  of  the  United  States. 

Unfounded  charges  of  fraud  discouraged:  parties  making  them  must  pay 
costs.  One  or  two  points  remain  to  be  mentioned,  which  we 
594]  *have  reserved  to  the  last  as  being  matter  of  procedure,  but 
which  depend  upon  general  principles.  Courts  of  justice  are  anxious 
to  discover  and  discourage  fraud  in  every  shape,  but  they  are  no  less 

(»)  Per  Cur.  Clough  v.  L.  iC-  N.  W.  eral       judgments      in      that      ca»e. 

Ry.  Co.   (1861)   L.  R.  7  Kx.  at  p.  34,  [Adopted  in  Williamson   v.  Railroad 

repeated    in    Morrison    v.     Universal  Co.,  28  N\  J.  Eq.  277,  293 ;   S.  C.  on 

Marine  Insurance  Go.   (1873)   U  R.  8  appeal,  29  N.  J.  Eq.  311,  320.] 
Ex.    at    p.    203,    and    cited    by    Lord  (o)    Code  Civ.    1304.     The   Indian 

Blackburn  in  Erlanger  v.  Xeio  Som-  Limitation    Act    (XV.   of    1877,   Sch. 

orero   Phosphate   Co.    (1878)    3   App.  2,  No.    114)    fixes   a  period  of  three 

Ca.  at  p.   1277.     See  the  remarks  on  years, 
delay    and    acquiescence    in    the    sev- 

57  Upton  v.  Tribilcock,  91  U.  S.  45,  55;  Upton  v.  Englehart,  3  Dill.  496, 
501,  502. 


CANCELLATION.  725 

anxious  to  discourage  and  rebuke  loose  or  unfounded  charges  of 
fraud  and  personal  misconduct.  The  facts  relied  on  as  establishing 
a  case  of  fraud  must  be  distinctly  alleged  and  proved  (p).58  Where 
such  charges  are  made  and  not  proved,  this  will  not  prevent  the  party 
making  them  from  having  any  relief  to  which  he  may  otherwise  ap- 
pear to  be  entitled,  but  he  must  pay  the  costs  occasioned  by  the  un- 
founded charges  (q).  And  in  one  case,  where  the  plaintiff  made 
voluminous  and  elaborate  charges  of  fraud  and  conspiracy,  which 
proved  to  be  unfounded,  the  Court  of  Appeal  not  only  made  him  pay 
the  costs  of  that  part  of  the  case,  but  refused  to  allow  him  the  costs 
even  of  the  part  on  which  he  succeeded.  It  was  held  that  he  had 
so  mixed  up  unfounded  and  reckless  aspersions  upon  character  with 
the  rest  of  the  suit  as  to  forfeit  his  title  to  the  costs  which  he  other- 
wise would  have  been  entitled  to  receive  (r). 

Independent  jurisdiction  of  equity  to  cancel  instruments  for  fraud,  &c. 
The  special  jurisdiction  of  courts  of  equity  to  order  the  cancellation 
of  an  instrument  obtained  by  fraud  or  misrepresentation  is  not  af- 
fected by  the  probability  or  practical  certainty  that  the  plaintiff  in 
equity  would  have  a  good  defence  to  an  action  on  the  instrument,  nor 
is  it  the  less  to  be  exercised  even  if  the  instrument  is  already  in  his 

(p)    In  equity,   pleading  a  charge  7    H.    L.    39,   51,    52;    London    Char- 

of  fraud  in  general  terms  would  not  tered  Bank  of  Australia  v.  Lempriere 

support  a  bill  on  demurrer:   Gilbert  (1873)     L.    R.    4    P.    C.    at   p.    597; 

V.  Lewis    ( 1862 )    1   D.  J.  &  S.  at  p.  Clinch      v.      Financial      Corporation 

49,  32  L.  J.  Ch.  347,  per  Lord  West-  (1868)  L.  R.  5  Eq.  at  p.  483,  38  L.  J. 

burv ;      cp.     Lawrance     V.     Norret/s  Ch.  1 ;  per  Lord  Cairns,     Thomson  v. 

(1890)   15  App.  Ca.  210,  59  L.  J.  Ch.  Eastivood    (1877)    2  App.   Ca.   at  p. 

681,    as    to   allegations    of   concealed  243. 

fraud  within  the  Statute  of  Limita-  (r)  Parker  v.  McKenna   (1874)    L. 

tions.  R.   10  Ch.  96,  123,  125,  44  L.  J.  Ch. 

(q)   Billiard  v.  Eiffe   (1874)   L.  R.  425. 

58  In  equity  a  charge  of  fraud  in  general  terms  will  not  support  a  bill  on 
demurrer.  Fogg  v.  Blair,  139  U.  S.  118,  127;  Lafayette  Co.  v.  Neely.  21 
Fed.  Rep.  738;  Lumley  r.  Wabash  Ry.  Co.,  71  Fed.  Rep.  21;  Chamberlain  r. 
Dorrance,  69  Ala.  40 ;  Stevens  r.  Moore,  73  Me.  559 ;  Nichols  v.  Rogers,  139 
Mass.  146;  Nye  v.  Storer,  168  Mass.  53;  MeMahon  v.  Rooney,  93  Mich.  390; 
Small  v.  Boudinot,  1  Stockt.  Ch.  381,  391;  Bryan  v.  Spruill,  4  Jones  Eq.  27. 
And  the  same  is  true  at  law.  Hazard  v.  Griswold,  21  Fed.  Rep.  178;  Giles 
r.  Williams,  3  Ala.  316;  Reynolds  v.  Excelsior  Co.,  100  Ala.  296;  Hynson  r. 
Dunn,  5  Ark.  395 ;  Cole  v.  Joliet  Opera-house  Co.,  79  111.  96 ;  Kingsman  R. 
Co.  r.  Quinn,  45  Kan.  477 ;  Bell  v.  Lamprey,  52  N.  H.  41 ;  Weld  v.  Locke,  18 
N.  H.  141;  Service  r.  Heermance,  2  Johns.  96;  Brereton  v.  Hull,  1  Denio,  75. 
But  see  contra,  Fivey  r.  Pennsylvania  R.  Co.,  66  N.  J.  L.  23. 

Under  the  reformed  procedure  "  pleadings  must  state  facts  and  not  legal 
conclusions,  and  fraud  is  never  sufficiently  pleaded  except  by  the  statement 
of  the  facts  upon  which  the  charge  is  based."  Ockendon  v.  Barnes,  43  la.  615, 
619;  Kent  v.  Snyder,  30  Cal.  666;  Capuro  r.  Insurance  Co.,  39  Cal.  123; 
Keller  v.  Johnson,  11  Ind.  337;  Joest  r.  Williams,  42  Ind.  565,  568;  Ladd  n. 
Nystol,  63  Kan.  23;  Tepoel  v.  Saunders  County  Bank,  24  Neb.  815;  Wood  v. 
Amory,  105  N.  Y.  278,  282. 


726 


THE    EIGHT    OF    RESCISSION. 


595]    possession.     He  is  entitled  not  only  to  have  the  *contract 
enforced  against  him,  but  to  have  it  judicially  annulled  (s). 


(s)  London  &  Provincial  Insurance 
Co.  v.  Seymour  (1873)  L.  R.  17  Eq. 
85,  43  L.  J.  Ch.  120  [Insurance  Co.  v. 
Hutchinson,  21  N.  J.  Eq.  107,  117; 
McHenry  v.  Hazard,  45  N.  Y.  580]  ; 
and  see  Hoare  v.  Bremridge  ( 1872 ) 
L.  R.  8  Ch.  22,  42  L.  J.  Ch.  1,  there 
explained  and  distinguished.  [C!p. 
Insurance  Co.  v.  Bailey,  13  Wall.  616; 
Buzzard  v.  Houston,  119  U.  S.  347; 
Wehrman  v.  Conklin,  155  U.  S.  328.] 
Therefore  a  defendant  sued  on  an  in- 
strument which  he  alleges  to  be  void- 
able may  properly  add  to  his  defence 
a  counter-claim  for  the  cancellation 


of  the  instrument.  It  may  also  be< 
proper  to  ask  for  a  transfer  to  the 
Chancery  Division  if  the  action  Is  in 
the  Queen's  Bench  Division,  but  this 
is  not  a  matter  of  course.  See 
Storey  v.  Waddle  (1879)  4  Q.  B. 
Div.  289.  Where,  conversely,  a  pur- 
chaser sues  for  the  return  of  his  de- 
posit, and  the  vendor  counter-claims 
for  specific  performance,  a  transfer 
to  the  Ch.  D.  will  generally  be  or- 
dered: London  Land  Co.  v.  Harris 
(1884)  13  Q.  B.  D.  540,  53  L.  J.  y. 
B.  536. 


DURESS  AND  UNDUE  INFLUENCE. 


727 


*CHAPTER  XII. 
Duress  and  Undue  Influence. 


[596 


PAGE. 

I.  Duress  at  Common  Law,         728 
Recovery  of  money  paid  un- 
der compulsion,  730 
II.  The  equitable  doctrine  of  Un- 
due Influence,  732 
Presumption       of       influence 

from  confidential  relations,  734 
Rules  as  to  burden  of  proof,  738 
Rules  as  to  voluntary  settle- 
ments, 738 
Presumptions     against     and 
duties  of  persons  in  fidu- 
ciary relations,                       739 
Family  arrangements,               743 
Particular    cases    where    in- 
fluence presumed:               744 
Relations      analogous      to 

parent  and  child,  744 

To  solicitor  and  client,         745 
Spiritual  influence,  746 

Undue  influence  without  fidu- 
ciary relation,  747 
Duty  of  trustees,  748 
Undervalue  material  only  as 

evidence,  749 

Whether  in  itself  a  ground 
for  refusing  specific  per- 
formance, 752 


PAGE. 

Exceptional  protection  of  ex- 
pectant   heirs    and    rever- 
sioners, 
Old   law   as    to    sales    of   re- 
versions, 
Act  of   1867, 

Rules  of  equity  as  to  "  catch- 
ing   bargains "    not    af- 
fected, 
What  are   "  catching  bar- 
gains," 
Burden  of  proof, 
Terms  of  relief, 
The       Money-Lenders       Act, 

•1900, 
Sales    of   reversionary    inter- 
ests, 
"  Surprise  "    and    "  improvi- 
dence "      not      substantive 
ground    of     relief    against 
contracts,     but '   only     evi- 
dence of  fraud,  &c, 
Right    of    rescission    for    un- 
due influence, 
Confirmation      and     acquies- 
cence, 

Special  questions  as  to  rela- 
tion of  solicitor  and  client,  770 


755 

758 
75!) 


759 

760 
761 
762 

763 

764 


765 


767 


769 


Contract  voidable  if  consent  not  free.  If  the  consent  of  one  party  to 
a  contract  is  obtained  by  the  other  under  such  circumstances  that  the 
consent  is  not  free,  the  contract  is  voidable  at  the  option  of  the  party 
whose  consent  is  so  obtained.  It  is  quite  clear  that  it  is  not  merely 
void  so  long  as  there  is  consent  in  fact  (a).1    The  transaction  might 


(a)  Co.  2  Inst.  482,  and  2nd  reso- 
lution in  Whelpdale's  case,  5  Co.  Rep. 
119.  In  two  modern  cases  a  marriage 
has  been  annulled  on  the  ground  that 
coercion,    or    a    mixture    of    coercion 


excluding  any  real  consent  on  the 
woman's  part:  Scott  v.  Sebright 
(1886)  12  P.  D.  21,  56  L.  J.  P.  11; 
Ford  v.  Stier  [1896]  P.  1,  65  L.  J.  P. 
13.      The   facts    of   both   these    cases 


and  fraud,  had  gone  to  the  point  of       were  most  exceptional. 

lPindley  v.  Hulsey,  79  Ga.  670;  Eberstein  r.  Willets,  134  111.  101;  Veach 
v.  Thompson,  15  la.  380;  Lewis  r.  Bannister,  16  Gray,  500;  Fairbanks  v. 
Snow,  145  Mass.  153;  Lyon  v.  Waldo,  36  Mich.  345;  Miller  v.  Minor  Co.,  98 


728  DUEESS    AND    UXDUE    INFLUENCE. 

indeed  be  void  if  the  party  were  under  actual  physical  constraint,  as 
if  his  hand  were  forcibly  guided  to  sign  his  name;2  but  this  would 
be  not  because  his  consent  was  not  free,  but  because  there  was  no 
consent  at  all. 

What  then  are  the  circumstances  which  are  held  by  English  courts 
to  exclude  freedom  of  consent?  The  treatment  of  this  question  has 
at  common  law  been  singularly  narrow  and  in  equity  singularly 
comprehensive. 

I.  Duress  at  Common  Law. 

The  common  law  doctrine  of  Duress.  At  common  law  the  coercion 
which  will  be  a  sufficient  cause  for  avoiding  a  contract  may  consist 
iu  duress  or  menace;  that  is,  either  in  actual  compulsion  or  in  the 
threat  of  it.  In  modern  books  the  term  duress  is  used  to  include  both 
species.  It  is  said  that  there  must  be  some  threatening  of  life  or 
597]  member,  or  of  imprisonment,  or  some  imprisonment  or  beat- 
ing itself.  Threatening  to  destroy  or  detain,  or  actually  detaining 
property,  does  not  amount  to  duress  (b).s  And  this  applies  to  agree- 
ments not  under  seal  as  well  as  to  deeds  (c).  The  reason  appears 
to  be  that  the  detainer  is  a  wrong  of  itself,  for  which  there  is  an 
appropriate  remedy.  Should  the  party  choose  to  make  terms  instead 
of  pursuing  his  rights  (at  all  events  when  there  is  nothing  to  pre- 
\ent  him  from  so  doing),  he  cannot  afterwards  turn  round  and 
complain  that  the  terms  were  forced  upon  him  (d).*  "It  must  be 
a  threatening,  beating,  or  imprisonment  of  the  party  himself  that 

(6)  Shepp.  Touch.  61.  (d)    See  Silliman  v.  United  States 

(c)  Atlee  v.  Backhouse  (1838)  3  M.        (1879)   101  TJ.  S.  465. 

&  W.  633;  Skeate  v.  Beale   (1840)    11 

A.  &  E.  983,  52  R.  R.  558. 

Mich.  163 ;  Mundy  r.  Whittemore,  15  Neb.  647 ;  Oregon  Pac.  R.  Co.  v.  For- 
rest, 128  N.  Y.  83;  Doolittle  v.  McCullough,  7  Ohio  St.  299;  National  Bank 
v.  Wheelock,  52  Ohio  St.  534.  But  see  Berry  v.  Berry,  57  Kan.  691.  See 
further,  generally,  on  the  question  of  duress,  33  Am.  L.  Reg.  885. 

2  Fairbanks  v.  Snow,  145  Mass.   153,  154 ;  24  Cent.  L.  J.  75. 

3  Lehman    v.    Shackleford,    50    Ala.    437 ;    Hazlerigg    i.    Donaldson,    2    Met. 

(Ky.)  445.  Cp.  French  r.  Shoemaker,  14  Wall.  314,  332;  United  States  f. 
Hu'ckabee,  16  Wall.  414,  432;  Spaids  v.  Barrett,  57  111.  289;  Adams  v.  Stringer, 
78  Ind.  175;  Williams  v.  Williams,  63  Md.  371;  Vyne  i.  Glenn,  41  Mich.  112 

(explained  in  Hackley  v.  Headley,  45  Mich.  569);  Dykes  c.  Wyman,  67  Mich. 
236;  Vereycken^.Vanden  Brooks,  lOz  Mich.  119;  State  v.  Nelson,  41  Minn.  25: 
Foshay  v.  Ferguson,  5  Hill,  154,  158;  McPherson  v.  Cox,  86  N.  Y.  472.  479: 
Sasportas  i\  Jennings,  1  Bay,  470:  Collins  r.  Westbury.  2  Bay,  211:  Walker 
v.  Parker,  5  Coldw.  476 :  Miller  r.  Miller,  68  Pa.  486. 

4  See  Hackley  v.  Headley,  45  Mich.  569 ;  Cable  v.  Foley,  45  Minn.  421 ;  Hey- 
\ham  c.  Dettre,  89  Pa.  506. 


DURESS.  729 

doth  make  the  deed,5  or  his  wife"  (b),6  or  (it  seems)  parent  or 
child  (e).1  And  a  threat  of  imprisonment  is  not  duress  unless  the 
imprisonment  would  be  unlawful.8 

(&)   Shepp.  Touch.  61.  (e)  Ro.  Ab.  1.  687,  pi.  5;  Bac.  Ab.  Duress  (B). 

5  Duress  to  the  principal  will  not  avoid  the  obligation  of  a,  surety.  Hazard 
v.  Griswold,  21  Fed.  Rep.  178;  McClintiek  v.  Cummins,  3  McLean,  158; 
Graham  v.  Marks,  98  Ga.  67;  Plummer  v.  People,  16  111.  358;  Oak  v. 
Dustin,  79  Me.  23;  Fairbanks  v.  Snow,  145  Mass.  153;  Robinson  v.  Gould,  11 
Cush.  55 ;  Bowman  i>.  Hiller,  130  Mass.  153 ;  Spaulding  v.  Crawford,  27  Tex. 
155.  At  least,  unless  the  surety,  at  the  time  of  executing  the  obligation,  is 
ignorant  of  the  circumstances  which  render  it  voidable  by  the  principal. 
Patterson  i\  Gibson,  81  Ga.  802;  Griffith  r.  Sitgreaves,  90  Pa,  161.  But  see 
Hyatt  r.  Robinson,  15  Ohio,  372,  400;  Ames,  Cas.  Suretyship,  125,  n.  9;  315, 
n.    1. 

6  Shepp.  Touch.  61;  McClintiek  v.  Cummins,  3  McLean,  158,  159;  Plum- 
mer v.  People,  16  111.  358,  360;  and  duress  to  the  husband  makes  voidable  the 
wife's  obligation.  Brooks  v.  Berryhill,  20  Ind.  97 ;  Bank  v.  Bryan,  62  la.  42 ; 
Heaton  r.  Norton  Co.  Bank,  59  Kan.  281;  State  Bank  v.  Hutchinson,  62  Kan. 
9;   City  Bank  v.  Kusworm,  88  Wis.  188. 

The  threat  made  by  a  husband,  through  the  procurement  of  one  of  the 
payees  of  a  note  executed  by  him,  that  unless  his  wife  would  sign  it,  he 
would  poison  himself,  whereby  she  was  induced  to  sign  it,  does  not  amount  to 
duress,  since  "  the  maker  and  object  of  the  threats  were  the  same."  Wright 
r.  Remington,  41  N.  J.  L.  48;  afl'd.,  nom.  Remington  v.  Wright,  43  N.  J.  L. 
451.  And  see  Insurance  Co.  v.  Meeker,  85  N.  Y.  614;  Girty  c.  Standard  Oil 
Co.,  1  N.  Y.  App.  Div.  224. 

It  has  been  held  that  a  deed  executed  by  a  woman  in  consequence  of  threats 
by  her  husband  to  abandon  her  if  she  refused,  to  one  who  has  notice  of  the 
means  used  to  procure  it,  is  voidable  for  duress.  Line  r.  Blizzard,  70  Ind. 
23;  Berry  v.  Berry,  57  Kan.  691;  Tapley  v.  Tapley,  10  Minn.  448;  Kocourek 
v.  Marak,  54  Tex.  201;  Schultz  v.  Catlin,  78  Wis.  611.  Unless  the  grantee 
or  promisee  had  notice  of  the  duress,  the  wife  would  be  bound.  Gardner  v. 
Case,  111  Ind.  494;  Fightmaster  v.  Levi,  13  Ky.  L.  Rep.  412;  Fairbanks  v. 
Snow,  145  Mass.  153.  These  are  properly  cases  not  of  duress,  but  of  undue 
influence.  See  Detroit  Bank  v.  Blodgett,  115  Mich.  160;  Adams  v.  Irving 
Bank,  116  N.  Y.  606,  611. 

7  Harris  v.  Carmody,  131  Mass.  51;  Weiser  v.  Welch,  112  Mich.  134; 
Osborn  v.  Bobbins,  36  N.  Y.  365,  372;  Owens  v.  Mynatt,  1  Heisk.  675;  Schultz 
v.  Culbertson,  46  Wis.  313;  49  Wis.  122.  See  further  as  to  duress  by  threats 
to  injure  a  relative,  26  L.  R.  A.,  n.  48. 

8  Eddy  v.  Herrin,  17  Me.  338;  Harmon  r.  Harmon,  61  Me.  227;  Hilborn 
v.  Buckman,  78  Me.  482;  Cribbs  v.  Sowle,  87  Mich.  340;  Sanford  r.  Sorn- 
borger,  26  Neb.  295;  McCormiek  Co.  v.  Miller,  54  Neb.  644;  Alexander  r. 
Pierce,  10  N.  H.  494;  Bodine  v.  Morgan,  37  N.  J.  Eq.  426;  Clark  v.  Turn- 
bull,  47  N.  J.  L.  265;  Dunham  v.  Griswold,  100  N.  Y.  224;  Landa  v.  Obert, 
45  Tex.  539,  548.  Cp.  Obert  v.  Landa,  59  Tex.  475.  But  see  infra,  p.  *G14, 
cases  in  note  46. 

Threats  of  suit  do  not  constitute  duress.  Atkinson  r.  Allen,  71  Fed.  Rep. 
58;  Morton  v.  Morris,  72  Fed.  Rep.  392;  McClair  r.  Wilson,  18  Col.  S2 ; 
Parker  r.  Lancaster,  84  Me.  512;  Minneapolis  Land  Co.  v.  McMillan,  79  Minn. 
287;  Jones  v.  Houghton,  61  N.  H.  51;  York  v.  Hinkle,  80  Wis.  624. 

Lawful  imprisonment  or  detention  of  the  person  does  not  itself  constitute 
duress.  lb.;  Plant  v.  Gunton,  94  U.  S.  664;  Smith  v.  Atwood,  14  Ga.  402; 
Jones  v.  Peterson,  117  Ga.  58;  Taylor  v.  Cottrell,  16  111.  93;  Heaps  r.  Dun- 
ham, 95  111.  583 ;  Neally  v.  Greenough,  25  N.  H.  325.  But  "  where  there  is 
an  arrest  for  an  improper  purpose  without  just  cause,  or  where  there  is 
an  arrest  for  a  just  cause,  but  without  lawful  authority,  or  for  a  just  cause, 
but  for  an  unlawful  purpose,  ...  in  either  of  those  events  the  party 
arrested,  if  he  was  thereby  induced  to  enter  into  a  contract,  may  avoid  it 
as  one  procured  by  duress."     Baker  r,  Morton,  12  Wall.  150,  158;  Morrill  v. 


730  DURESS    AND    UNDUE    INFLUENCE. 

In  a  case  of  menace  the  threat  must  be  of  something  unlawful.  This  is 
illustrated  by  two  rather  curious  modern  cases,  in  both  of  which  the 
party's  consent  was  determined  by  the  fear  of  confinement  in  a  lunatic 
asylum.  In  Gumming  v.  Ince  (f)  the  plaintiff  had  been  taken  to  a 
lunatic  asylum  and  deprived  of  the  title  deeds  of  certain  property 
claimed  by  her.  Proceedings  were  commenced  under  a  commission 
of  lunacy,  but  stayed  on  the  terms  of  an  arrangement  signed  by 
counsel  on  both  sides,  under  which  the  deeds  were  to  be  deposited  in 
certain  custody.  The  plaintiff  afterwards  repudiated  this  arrange- 
ment and  brought  detinue  for  the  deeds.  On  an  issue  directed  to 
try  the  right  to  the  possession  of  the  deeds  as  between  herself  and 
the  other  parties  the  Court  held  that  in  any  view  the  defendants  were 
wrong.  For  if  their  own  proceedings  under  the  commission  were 
justified,  they  could  not  say  the  plaintiff  was  competent  to  bind  her- 
self, and  if  not,  the  agreement  was  obtained  by  the  fear  of  a  merely 
unlawful  imprisonment  and  therefore  voidable  on  the  ground  of 
598]  duress.  And  it  made  no  difference  that  *the  plaintiff's  counsel 
was  party  to  the  arrangement.  His  assent  must  be  considered  as 
enforced  by  the  same  duress:  for  as  her  agent  he  might  well  have 
feared  for  her  the  same  evils  that  she  feared  for  herself.  In  Biffin 
v.  Bignell  (h),  on  the  other  hand,  the  defendant  was  sued  for  neces- 
saries supplied  to  his  wife.  She  had  been  in  a  lunatic  asylum  under 
treatment  for  delirium  tremens,  and  on  her  discharge  the  husband 
promised  her  12s.  a  week  to  live  apart  from  him,  adding  that  if  she 
would  not  he  would  send  her  to  another  asylum.  The  wife  was  ac- 
cordingly living  apart  from  the  husband  under  this  agreement.  It 
was  held  that  her  consent  to  it  was  not  obtained  by  duress,  for  under 
these  circumstances  "  the  threat,  if  any,  was  not  of  anything  con- 
trary to  law,  at  least  not  so  to  be  understood " :  consequently  the 
presumption  of  authority  to  pledge  the  husband's  credit  was  effectually 
excluded,  and  the  plaintiff  could  not  recover  (i). 

Money  paid  under  circumstances  of  compulsion  recoverable  back.  The 
narrowness  of  the  common  law  doctrines  above  stated  is  considerably 

(f)    (1847-8)  11  Q.  B.  112,  17  L.  J.  (t)    Qu.    whether   in    any    case   he 

Q.  B.  105.  could  have   recovered  without  show- 

(/i)    (1862)  7  H.  &  N.  877,  31  L.  J.  ing  that  the  wife  had  repudiated  the 

Ex.  189.  arrangement. 

Nightingale,  93  Cal.  452 ;  Schommer  r.  Farwell,  56  111.  542 ;  Bane  v.  Detrick, 
52  111.  19;  Rollins  v.  Lashus,  74  Me.  218;  Watkins  v.  Baird,  6  Mass.  306; 
Hackett  v.  King,  6  Allen,  58;  Sweet  v.  Kimball,  166  Mass.  332;  Seiber  v. 
Price,  26  Mich.  518;  Fossett  r.  Wilson,  59  Miss.  1;  Breck  r.  Blanchard,  22 
N.  H.  303,  310;  Clark  v.  Pease,  41  N.  H.  414;  Osborn  v.  Robbins,  36  N.  Y. 
365;  Guilleaume  r,  Rowe.  94  N.  Y.  268:  Reinhard  J'.  City,  49  Ohio  St.  257, 
270;  Phelps  i.  Zuschlag,  34  Tex.  371;  Behl  i:  Schuett,  104  Wis.  76. 


PAYMENT    UNDER    COMPULSION.  731 

mitigated  in  practice,  for  when  money  has  been  paid  under  circum- 
stances of  practical  compulsion,  though  not  amounting  to  duress,  it 
can  generally  be  recovered  back.  This  is  so  when  the  payment  is 
made  to  obtain  the  possession  of  property  wrongfully  detained  (fc)  ;9 
and  the  property  need  not  be  goods  for  which  the  owner  has  an 
immediate  pressing  necessity,  nor  need  the  claim  of  the  party  de- 
taining them  be  manifestly  groundless,  to  make  the  payment  for  this 
purpose  involuntary  in  contemplation  of  law  (I).  So  it  is  where 
excessive  fees  are  taken  under  colour  of  office,  though  it  be  usual  to 
pay  them  (m)  ;10  or  where  an  excessive  charge  for  the  performance 
of  a  duty  is  *paid  under  protest  (n)  .n  The  person  who  actually  [599 
receives  the  money  may  properly  be  sued,  though  he  receive  it  only 
as  an  agent  (o).12     The  case  of  one  creditor  exacting  a  fraudulent 

(k)   Wakefield  v.  Newborn,  (1844)  6  Williams   (1853)   8  Ex.  625,  22  L.  J. 

Q.  B.   276,  280,   13  L.  J.  Q.  B.  258;  Ex.  225. 

Green  v.  Duckett  (1883)   11  Q.  B.  D.  (m)  Parker  v.  G.  W.  Ry.  Co.  (1844) 

275,  52  L.  J.  Q.  B.  435.  7  M.  &  Gr.  253,  292,  13  L.  J.  C.  P. 

(I)  Shaw  v.  Woodcock  (1827)  7  B.  105.     And  see  other  authorities  col- 

&  C.  73,  31  R.  R.  158.  leeted  in  notes  to  Harriot  v.  Hamp- 

(m)   Dew  v.  Parsons   (1819)    2  B.  ton  (1796)  2  Sin.  L.  C.  409. 
&  Aid.  562,  21   R.  R.  404;  Steele  v.  (o)   Steele  v.  Williams,  note   (m), 

last  page. 

9  Elliott  v.  Swartwout,  10  Pet.  137;  Maxwell  v.  Griswold,  10  How.  242; 
Lonergan  v.  Buford,  148  U.  S.  581;  Tutt  v.  Ide,  3  Blatchf.  249;  Adams  v. 
Schiffer,  11  Col.  15;  Cobb  v.  Charter,  32  Conn.  358;  Railroad  Co.  v.  Pattison, 
41  Ind.  312;  Chase  v.  Dwinal,  7  Me.  134;  Chandler  v.  Sanger,  114  Mass.  364; 
Hackley  v.  Headley,  45  Mich.  569,  575;  Dykes  v.  Wyman,  67  Mich.  236; 
Fargusson  v.  Winslow,  34  Minn.  384;  Clinton  v.  Strong,  9  Johns.  370;  Har- 
mony i\  Bingham,  12  N.  Y.  99;  Briggs  c.  Boyd,  56  N.  Y.  289;  Scholey  r. 
Mumford,  60  N.  Y.  498;  Baldwin  r.  Liverpool,  etc.,  Co.,  74  N.  Y.  125;  Motz 
v.  Mitchell,  91  Pa.  114;  Alston  r.  Durant,  2  Strobh.  257;  Beckwith  v.  Fris- 
bie,  32  Vt.  559.     Cp.  De  la  Cuesta  r.  Insurance  Co.,  136  Pa.  62. 

Money,  which  he  is  under  no  legal  liability  to  pay,  obtained  from  a  master 
,  mechanic  whose  business  requires  the  employment  of  workmen,  by  inducing 
or  threatening  to  induce  workmen  to  leave  his  employ,  and  deterring  or 
threatening  to  deter  others  from  entering  it,  so  as  to  render  him  reasonably 
apprehensive  that  he  cannot  carry  on  business  without  making  the  payment, 
may  be  recovered  back.     Carew  v.  Rutherford,  106  Mass.  1. 

10 "  Whenever  a  person  is  compelled  to  pay  a  public  officer,  in  order  to 
induce  him  to  do  his  duty,  fees  which  he  had  no  right  to  claim,  they  can  be 
recovered  back."  Robinson  v.  Ezzell,  72  N.  C.  231;  Swift  Co.  r.  United 
States,  111  U.  S.  22;  Robertson  v.  Frank  Bros.  Co.,  132  U.  S.  17;  Ogden  r. 
Maxwell,  3  Blatchf.  319;  Magnolia  r.  Sharman,  46  Ark.  358;  Cunningham 
v.  Munroe,  15  Gray,  471;  Westlake  v.  St.  Louis,  77  Mo.  47;  Amer.  Steamship 
Co.  v.  Young,  89  Pa.  186. 

n  Railway  Co.  v.  Steiner,  61  Ala.  559,  595;  Railroad  Co.  v.  C.  V.  &  W. 
Coal  Co.,  79  111.  121;  Heiserman  v.  Railroad  Co.,  63  la.  732;  Panton  r. 
Duluth  Water  Co.,  50  Minn.  175;  Peters  v.  Railroad  Co.,  42  Ohio  St.  275. 
Cp.  Potomac  Coal  Co.  v.  Railroad  Co.,  38  Md.  226;  Killmer  v.  New  York 
Central  R.  Co.,  100  N.  Y.  395;  Kenneth  v.  Railroad  Co.,  15  Rich.  L.  284. 

12  Elliott  v.  Swartwout,  10  Pet.  138;  Ogden  v.  Maxwell,  9  Blatch.  319; 
Carew  v.  Rutherford,  106  Mass.  1;  First  Bank  v.  Watkins,  21  Mich.  483, 
489;  Bocchino  v.  Cook,  67  N.  J.  L.  467. 


732  DURESS    AND    UNDUE    INFLUENCE. 

preference  from  a   debtor  as  the  price  of  his  assent  to  a  composi- 
tion (/))   is  to  a  certain  extent  analogous. 

But  on  the  ground  not  of  coercion  in  itself  but  of  failure  of  consideration. 

But  in  all  these  cases  the  foundation  of  the  right  to  recover  back 
the  money  is  not  the  involuntary  character  of  the  payment  in  itself, 
but  the  fact  that  the  party  receiving  it  did  no  more  than  he  was 
bound  to  do  already,  or  something  for  which  it  was  unlawful  to  take 
money  if  he  chose  to  do  it,  though  he  had  his  choice  in  the  first 
instance.  Such  payments  are  thus  regarded  as  made  without  con- 
sideration. The  legal  effect  of  their  being  practically  involuntary, 
though  important,  comes  in  the  second  place;  the  circumstances 
explain  and  excuse  the  conduct  of  the  party  making  the  payment. 
Similarly  in  the  kindred  case  of  a  payment  under  mistake  the 
actual  foundation  of  the  right  is  a  failure  of  consideration,  and 
ignorance  of  material  facts  accounts  for  the  payment  having  been 
made.  The  common  principle  is  that  if  a  man  chooses  to  give  away 
bis  mone}r,  or  to  take  his  chance  whether  he  is  giving  it  away  or  not, 
he  cannot  afterwards  change  his  mind;  but  it  is  open  to  him  to 
show  that  he  supposed  the  facts  to  be  otherwise  or  that  he  really 
had  no  choice.13  The  difference  between  the  right  to  recover  money 
back  under  circumstances  of  this  kind  and  the  right  to  rescind  a 
contract  on  the  ground  of  coercion  is  further  shown  by  this,  that 
an  excessive  payment  is  not  the  less  recoverable  if  both  parties 
honestly  supposed  it  to  be  the  proper  payment  (q).  We  therefore 
dwell  no  farther  on  this  topic,  but  proceed  to  consider  the  more 
extensive  doctrines  of  equity. 

600]  *II.  The  equitable  doctrine  of  Undue  Influence. 

The  equitable  doctrine.  In  equity  there  is  no  rule  defining  inflexibly 
what  kind  or  amount  of  compulsion  shall  be  sufficient  ground  for 
avoiding  a  transaction,  whether  by  way  of  agreement  or  by  way  of 
gift.  The  question  to  be  decided  in  each  case  is  whether  the  party 
was  a  free  and  voluntary  agent  (r). 

Any  influence  brought  to  bear  upon  a  person  entering  into  an 
agreement,  or  consenting  to  a  disposal  of  property,  which,  having 
regard  to  the  age  and  capacity  of  the  party,  the  nature  of  the  trans- 

(p)  Atkinson  v.  Denby  (1861)  6  H.  (q)  Dew  v.  Parsons  (1819)   2  B.  & 

6  N.  778,  30  L.  J.  Ex.  361,  in  Ex.  Ch.  Aid.  562.  21  R.  R.  404. 

7  ib.   034,   31   L.  J.   Ex.  362.     Supra,  (r)    Williams  v.  Bayley    (1866)    L. 
Ch.  VII.  p.  *385.  R.  1  H.  L.  200,  210,  35  L.  J.  Ch.  717. 

13  Swift  Co.  r.  United  States,  111  U.  S.  22,  30;  Peters  v.  Railroad  Co.,  42 
Ohio  St.  275,  285    (quoting  text). 


DOCTRINE    OF   UNDUE   INFLUENCE.  73" 

action,  and  all  the  circumstances  of  the  case,  appears  to  have  been 
such  as  to  preclude  the  exercise  of  free  and  deliberate  judgment,  is 
considered  by  courts  of  equity  to  be  undue  influence,  and  is  a  ground 
for  setting  aside  the  act  procured  by  its  employment. 

Generality  of  the  principle.  "  The  principle  applies  to  every  case 
where  influence  is  acquired  and  abused,  where  confidence  is  reposed 
and  betrayed"  (s).14  Such  cases  are  thus  classified  by  Cotton  L.J. 
"  First,  where  the  Court  has  been  satisfied  that  the  gift  was  the  re- 
sult of  influence  expressly  used  by  the  donee  for  the  purpose;  second, 
where  the  relations  between  the  donor  and  donee  have  at  or  shortly 
before  the  execution  of  the  gift  been  such  as  to  raise  a  presumption 
that  the  donee  had  influence  over  the  donor.  In  such  a  case  the 
Court  sets  aside  the  voluntary  gift,  unless  it  is  proved  that  in  fact 
the  gift  was  the  spontaneous  act  of  the  donor  acting  under  cir- 
cumstances which  enabled  him  to  exercise  an  independent  will  and 
which  justifies  the  Court  in  holding  that  the  gift  was  the  result 
of  a  free  exercise  of  the  donor's  will.  The  first  class  of  cases  may 
be  considered  as  depending  on  the  principle  that  no  one  shall  be 
allowed  to  retain  any  benefit  arising  from  his  own  fraud  or  wrongful 
act.  In  the  second  class  of  cases  the  Court  interferes,  not  on  the 
ground  that  any  wrongful  act  has  in  fact  been  *committed  [601 
by  the  donee,  but  on  the  ground  of  public  policy,  and  to  prevent  the 
relations  which  existed  between  the  parties  and  the  influence  arising 
therefrom  being  abused"  (t).  Yet  in  many  cases  of  the  second  class 
the  circumstances  might,  if  they  could  be  fully  brought  out,  amount 
to  proof  of  actual  compulsion  or  fraud  (u) ;  so  that  it  may  perhaps 
be  said  that  undue  influence  means  an  influence  in  the  nature  of 
compulsion  or  fraud,  the  exercise  of  which  in  the  particular  instance 
to  determine  the  will  of  the  one  party  to  the  advantage  of  the  other 
is  not  specifically  proved,  but  is  inferred  from  an  existing  relation  of 
dominion  on  the  one  part  and  submission  on  the  other  (x).    Given  a 

(s)   Per  Lord  Kingadown,  Smith  v.  said  that,  taking  the  words  in  a  wide 

Kay  (1859)  7  H.  L.  C.  at  p.  779.  sense,  all  undue  influence  may  be  re- 
ft)   Allcard  v.  Skinner    (1887)    36  solved  into  coercion  and  fraud;   but 

Ch.  ~Div.  145,  171,  56  L.  J.  Ch.  1052.  the  case  there  considered  is  that  of  -i 

(«)    Cp.   per   Lindley  L.J.   36   Ch.  will,  in  which  undue  influence  has  a 

Div.  at  p.  183.  more     restricted     meaning     than     in 

(x)      In     Boyse     v.     Rossborough  transactions  inter  vivos :  see  note  (i), 

( 1856-7  )•  6  H.  L.  C.  at  p.  48,  it  is  p.  *603,  infra. 

WSee  Zimmerman  r.  Bitner,  79  Md.  115;  Munson  v.  Carter,  19  Neb.  293; 
Fisher  v.  Bishop,  108  N.  Y.  25 ;  Long  v.  Mulford,  17  Ohio  St.  484,  504,  505 ; 
Fishburne  v.  Ferguson,  85  Va.  321 ;  infra,  p.  736. 


734  DURESS    AND    UNDUE    INFLUENCE. 

position  of  general  and  habitual  influence,  its  exercise  in  the  particu- 
lar case  is  presumed. 

General  influence  presumed  from  certain  relations.  But  again,  this  ha- 
bitual influence  may  itself  be  presumed  to  exist  as  a  natural  conse- 
quence of  the  condition  of  the  parties,  though  it  be  not  actually 
proved  that  the  one  habitually  acted  as  if  under  the  domination  of 
the  other.  There  are  many  relations  of  common  occurrence  in  life 
from  which  "  the  Court  presumes  confidence  put "  in  the  general 
course  of  affairs  "  and  influence  exerted  "  in  the  particular  transaction 
complained  of  (y). 

Persons  may  therefore  not  only  be  proved  by  direct  evidence  of  con- 
duct, but  presumed  by  reason  of  standing  in  any  of  these  suspected 
relations,  as  they  may  be  called,  to  be  in  a  position  of  commanding 
influence  over  those  from  whom  they  take  a  benefit.  In  either  case 
they  are  called  upon  to  rebut  the  presumption  that  the  particular 
benefit  was  procured  by  the  exertion  of  that  influence,  and  was  not 
602]  given  with  due  freedom  and  deliberation.  They  *must  "take 
upon  themselves  the  whole  proof  that  the  thing  is  righteous"  (z). 
A  stringent  rule  of  evidence  is  imposed  as  a  safeguard  against  evasions 
of  the  substantive  law. 

"  Wherever  two  persons  stand  in  such  a  relation  that,  while  it  continues, 
confidence  is  necessarily  reposed  by  one,  and  the  influence  which  naturally 
grows  out  of  that  confidence  is  possessed  by  the  other,  and  this  confidence  is 
abused,  or  the  influence  is  exerted  to  obtain  an  advantage  at  the  expense  of 
the  confiding  party,  the  person  so  availing  himself  of  his  position  will  not 
be  permitted  to  retain  the  advantage,  although  the  transaction  could  not 
have  been  impeached  if  no  such  confidential  relation  had  existed  "  (a) . 

"  Nothing  can  be  more  important  to  maintain  than  the  jurisdic- 
tion, long  asserted  and  upheld  by  the  Court,  in  watching  over  and  pro- 
tecting those  who  are  placed  in  a  situation  to  require  protection  as 
against  acts  of  those  who  have  influence  over  them,  by  which  acts  the 

(y)    Per   Lord   Kingsdown,   Smith  v.  Buzby,  43  N.  J.  Eq.  154;   Boisau- 

v.  Kay  (1859)  7  H.  L.  C.  750,  779.  bin  v.  Boisaubin,  51   N.  J.  Eq.  252; 

(s)  Gibson  v.  Jeyes  (1801)  6  Ves.  Claffey  v.  Ledwith,  56  N.  J.  Eq.  333; 
266,  276,  5  R.  R.  295,  303.  The  like  Delafi'eld  v.  Parish,  25  N.  Y.  9,  35; 
burden  of  proof  is  cast  upon  those  Matter  of  Will  of  Smith,  95  N.  Y. 
who  take  any  benefit  under  a  will  516;  Boyd  v.  Boyd,  66  Pa.  St.  283; 
which  they  have  themselves  been  in-  Cuthbertson's  Appeal,  97  Pa.  St.  163; 
strumental  in  preparing  or  obtain-  Wilson's  Appeal,  99  Pa.  St.  545 ;  Rid- 
ing: Fulton  v.  Andrew  (1875)  L.  R.  dell  v.  Johnson,  26  Gratt.  152;  Pat- 
7  H.  L.  448,  472,  44  L.  J.  P.  17.  [See  ton  v.  Allison,  7  Humph.  320;  cp. 
Tyrell  i.  Painton,  [1894]  Prob.  151;  Carter  v.  Dixon,  66  Ga.  82;  Carpen- 
Keith  v.  Kellam,  35  Fed.  Rep.  243,  ter  v.  Hatch,  64  N.  H.  573;  Post  v. 
246;  Beall  r.  Mann,  5  Ga.  456;  Adair  Mason,  91  N.  Y.  539.] 
r.  Adair,  30  Ga.  102;  Wood's  Ex.  v.  (a)  Per  Lord  Chelmsford,  Tate  v. 
Devers.  14  Kv.  L.  R.  81;  Harvey  v.  Williamson  (1866)  L.  R.  2  Ch.  55, 
Sullens,    40    Mo.     147;     Waddington  61. 


CONFIDENTIAL   RELATIONS.  735 

person  having  such  influence  obtains  any  benefit  to  himself.  In  such 
cases  the  Court  has  always  regarded  the  transaction  with  jealousy  "  (b) 
— a  jealousy  almost  invincible,  in  Lord  Eldon's  words  (c). 

"  In  equity,  persons  standing  in  certain  relations  to  one  another,  such  as 
parent    and    child  (d),l5    man    and    wife  (e),Hi    doctor    and    patient  (f),17 

(6)  Lord  Hatherley,  Turner  v.  Col-  (1846-8)   11  Beav.  227;  showing  that 

lins   (1871)   L.  R.  7  Ch.  329,  338.  there  is  a   fiduciary  relation  between 

(c)  Hatch  v.  Hatch,  9  Ves.  at  p.  persons  engaged  to  be  married;  and 
296,  7  R.  R.  197.  Coulson  v.  Allison  (1860)   2  D.  F.  J. 

(d)  Archer-  v.  Hudson  (1844)  7  521,  524,  the  like  as  to  persons  living 
Beav.  551,  13  L.  J.  Ch.  380;  Turner  together  as  man  and  wife  though  not 
v.  Collins  (1871)  L.  R.  7  Ch.  329,  41  lawfully  married.  In  all  these  cases 
L.  J.  Ch.  558.  the  burden  of  proof  was  held  to  be  on 

(e)  Lord  Hardwieke's  remarks  in  the  man  (as  holding  under  such  cir- 
Grigby  v.  Cox  (1750)   1  Ves.  sen.  517  cumstances   a   position   of  influence) 

(though  not  the  decision,  for  it  was  to  support  the  transaction.     It  may 

not  a  gift  but  a  purchase,  and  ap-  not  be  so  however  in  a  case  of  mere 

parencly    there    was    no    evidence    to  illicit     intercourse :     see     Farmer    v. 

bear    out    the    charge    of   collusion),  Farmer  (1848)   1  H.  L.  C.  724,  752. 
and  the  decision  in  Nedby  v.  Nedby  (f)   Dent  v.  Bennett   (1839)   4  My. 

(1852),   5    De   G.    &   Sm.    377,   seem  &  Cr.  269,  48  R.  R.  94;  Ahearna  v. 

contra;    but    see    Cobbett    v.    Brock  Hogan  (1844)  Dru.  310;  s.  v.  Blackie 

(1855)   20  Beav.  524;  Page  v.  Home  v.  Clark  (1852)   15  Beav.  at  p.  603. 

is  See  Powell  v.  Powell,  [1900]  1  Ch.  243;  Jenkins  v.  Pye,  12  Pet.  241; 
Taylor  v.  Taylor,  8  How.  183;  Noble  v.  Moses,  81  Ala.  530;  Brown  v.  Bur- 
bank,  64  Cal.  99;  Ewing  v.  Bass,  144  Ind.  1;  Ashton  v.  Thompson,  32  Minn. 
25 ;  Miller  i:  Simonds,  72  Mo.  669 ;  Berkmeyer  v.  Kellerman,  32  Ohio  St.  239 ; 
Miskey's  Appeal,  107  Pa.  618;  Davis  v.  Strange's  Exrs.,  86  Va.  793.  Cp. 
Towson  v.  Moore,  173  U.  S.  17;  Couchman's  Adm'r.  v.  Couchman,  98  Ky.  109; 
Coleman's  Est.,   193   Pa.   605. 

16  Rogers  v.  Marshall,  13  Fed.  Rep.  60 ;  Harraway  v.  Harraway,  136  Ala. 
499;  White  v.  Warren,  120  Cal.  322;  Lewis  v.  McGrath,  191  111.  401;  Ilgen- 
fritz  v.  Ilgenfritz,  116  Mo.  429;  Ireland  v.  Ireland,  43  N.  J.  Eq.  311;  Boyd  v. 
De  La  Montagnie,  72  N.  Y.  498,  502;  Haack  v.  Weicken,  118  N.  Y.  67,  74; 
Darlington's  Appeal,  86  Pa.  512;  Way  v.  Union  Ins.  Co.,  61  S.  C.  501.  But 
see  contra,  Barron  v.  Willis,  [1899]  2  Ch.  578;  Daniels  v.  Benedict,  97  Fed. 
Rep.  367;  Sheehan  v.  Sullivan,  126  Cal.  189;  McDougall  v.  Perce,  135  Cal. 
316;  Hardy  v.  Van  Harlingen,  7  Ohio  St.  208;  Ford  v.  Ford,  193  Pa.  530; 
Earle  v.  Chace,  12  R.  I.  374.  There  is  a  fiduciary  relation  between  persons 
engaged  to  be  married.  Hessick  v.  Hessick,  169  111.  486 ;  Russell  v.  Russell, 
60  N.  J.  Eq.  282;  Pierce  v.  Pierce,  71  N.  Y.  154;  Graham  v.  Graham,  143 
X.  Y.  573;  Kline  v.  Kline,  57  Pa.  120.  And  see  Rockafellow  v.  Newcomb, 
57  111.  186,  where  relief  was  given  to  the  man.  Where  conveyances  were 
made  by  a  man  to  a  woman  with  whom  he  was  unlawfully  cohabiting,  it  has 
been  held  that  the  onus  of  showing  an  absence  of  undue  influence  was  on 
her.  Sbipman  v.  Furniss,  69  Ala.  555,  565;  Leighton  v.  Orr,  44  la.  679; 
Hanna  v.  Wilcox,  53  la.  547.  And  see  Bivins  v.  Jarnigan,  59  Tenn.  282.  The 
fact  that  the  beneficiary  under  a  will  has  been  living  in  illicit  relations  with 
the  testator  does  not  create  a  presumption  of  law  that  the  will  was  executed 
under  undue  influence.  Monroe  v.  Barclay,  17  Ohio  St.  302 ;  Donnelly's  Will, 
68  la.  126;  Waters  v.  Reed,  129  Mich.  131;  Arnault  v.  Arnault,  52  N.  J. 
Eq.  801;  Re  Mondorf's  Will,  110  N.  Y.  450;  Rudy  v.  Ulrich,  69  Pa.  177; 
Main  v.  Ryder,  84  Pa.  217. 

17  Kellogg  v.  Peddicord,  181  111.  22;  Cadwallader  v.  West,  48  Mo.  483,  496; 
Bogie  v.  Nolan,  96  Mo.  85;  Unruh  v.  Lukens,  166  Pa.  324;  cp.  Audenried's 
Appeal,  89  Pa.  114,  120,  121. 


736 


DUKE8S    AND    I'.NDUE    INFLUENCE. 


603]  attorney  and  client  (<7),18  confessor  and  penitent,i9  guardian  and 
ward  (h)  ~<>  are  subject  to  certain  presumptions  when  transactions  between 
them  are  brought  in  question;  and  if  a  gift  or  contract  made  in  favour  of  him 
who  holds  the  position  of  influence  is  impeached  by  him  who  is  subject 
to  that  influence,  the  courts  of  equity  east  upon  the  former  the  burthen  of 
proving  that  the  transaction  was  fairly  conducted  as  if  between  strangers, 
that  the  weaker  was  not  unduly  impressed  by  the  natural  influence  of  the 
stronger,  or  the  inexperienced  overreached  by  him  of  more  mature  intelli- 
gence "  (i) . 


(g)  Gibson  v.  Jeyes  (1801)  6  Ves. 
266,  5  R.  R.  295;  Holman  v.  Loynes 
(1854)  4  D.  M.  G.  270,  23  L.  J.  Ch. 
529;  Oreslcy  v.  Mousley  (1861)  4  De 
G.  &  J.  78,  94. 

(h)  Hatch  v.  Hatch  (1804)  9  Ves. 
297,  7  R.  R.  195;  Maitland  v.  Irving 
(1846)   15  Sim.  437. 

(t)  Per  Lord  Penzance,  Parfitt  v. 
Lawless  (1872)  L.  R.  2  P.  &  D.  462, 
468,  41  L.  J.  P.  68.  It  is  to  be  noted 
that  this  does  not  apply  to  wills 
rDamel  v.  Hill,  52  Ala.  430,  442; 
Bancroft  v.  Otis,  91  Ala.  275;  Bulger 
v.  Ross,  98  Ala.  267  (cp.  McQueen  v. 
Wilson,  131  Ala.  606)  ;  Tyson  v.  Ty- 
son's Exr's.,  37  Md.  567.  583;  Grif- 
fith i\  Diffenderffer,  50  Md.  466,  483 ; 
Re  Sparks'  Will,  63  X.  J.  Eq.  242; 
Re  Murphy's  Will,  48  N.  Y.  App. 
Div.  211;  Matter  of  Will  of  Smith, 
95  N  Y.  516;  Lee  v.  Lee,  71  N.  C. 
139;  Herster  (.  Herster,  116  Pa.  612. 
But  see  contra,  Morris  r.  Stoker,  21 
Ga.  552,  575;  Meek  r.  Perry,  36  Miss. 
190,  252 ;  Garvin  v.  Williams,  44  Mo. 
465,  477;  Gay  v.  Gillilan,  92  Mo. 
250 ;  Marx  r.  McGlynn,  88  N.  Y.  357, 
371],  as  to  which  undue  influence  is 
never  presumed:  ib. ;  Boyse  v.  Ross- 
borough  (1856-7)  6  H.  L.  C.  2,  49; 
Hindson  v.  Weatherill  (1854)  5  D. 
M.  &  G.  301,  311,  313  [Barnes  p. 
Barnes,  66  Me.  286,  297,  298;  Baldwin 
v.    Parker,    99   Mass.    79 ;    Cudney   v. 


Cudney,  68  N.  Y.  148]  ;  though  a 
disposition  by  will  may  be  set  aside 
as  well  as  an  act  inter  vivos  when 
undue  influence  is  actually  proved ; 
but  then,  it  seems,  the  influence  must 
be  such  as  to  "  overpower  the  voli- 
tion without  convincing  the  judg- 
ment": Hall  v.  Hall  (1868)  L.  R.  1 
P.  &  D.  482,  37  L.  J.  P.  40.  [See 
Conley  v.  Nailor,  118  U.  S.  127;  Bov- 
doin  College  v.  Merritt.  75  Fed.  Rep. 
480,  493 ;  Re  Nelson's  Will,  39  Minn. 
204;  Re  Snelling's  Will,  136  N.  Y. 
515.]  See  Walker  v.  Smith  (1861) 
29  Beav.  394,  where  between  the  same 
parties  gifts  by  will  were  supported 
and  a  gift  inter  vivos  set  aside.  Lord 
Penzance  added  to  the  list  of  sus- 
pected relations  that  of  promoters  of 
a  company  to  the  company  which  is 
their  creature :  Erlanger  v.  New 
Sombrero  Phosphate  Co.  (1877)  3 
App.  Ca.  at  p.  1230.  But  is  not  per- 
sonal confidence  essential  to  make  the 
present  doctrine  applicable?  And  has 
any  case  gone  the  length  of  casting 
on  a  promoter  the  burden  of  proving 
in  the  first  instance  that  a  contract 
between  him  and  the  company  was  a 
fair  one?  Cp.  Eden  v.  Ridsdale's  Rail- 
way Lamp  and  Lighting  Go.  (1889) 
23  Q.  B.  Div.  368,  58  L.  J.  Q.  B.  579, 
where  the  duty  is  put  on  the  ground 
of  agency. 


18  Barron  r.  Willis,  [1900]  2  Ch.  121;  United  States  v.  Coffin,  83  Fed. 
Rep.  337;  Yonge  i>.  Hooper,  73  Ala.  119;  Kisling  v.  Shaw,  33  Cal.  425; 
Jennings  r.  McConnell,  17  111.  148;  Zeigler  v.  Hughes,  55  111.  288;  Hughes  v. 
Wilson,  128  Ind.  491 ;  Ryan  v.  Ashton,  42  la.  365 :  Brigham  v.  Newton,  49 
La.  Ann.  1539;  Yeamans  v.  James,  27  Kan.  195,  207;  Dunn  v.  Record,  63 
Me.  17;  Burnham  v.  Heselton,  84  Me.  578;  Roman  v.  Mali,  42  Md.  513,  559; 
Merryman  v.  Euler,  59  Md.  588;  Whipple  v.  Barton,  63  N.  H.  613;  Brown 
v.  Bulkley,  1  McCarter,  451;  Howell  r.  Ransom,  11  Paige,  538;  Evans  v. 
Ellis,  5  Denio,  640;  Whitehead  r.  Kennedy,  69  N.  Y.  462,  466;  Place  v.  Hay- 
ward,  117  N.  Y.  487,  497;  Ah  Foe  v.  Bennett,  35  Oreg.  231;  Greenfield's 
Estate,  14  Pa.  489;  McMahan  v.  Smith,  6  Heisk.  167;  Cooper  r.  Lee,  75  Tex. 
114. 

19  See  infra,  p.  746,  n.  43. 

20  See  Malone  V.  Kellv,  54  Ala.  532;  Ferguson  t.  Lowery,  54  Ala.  510; 
Wickiser  r.  Cook,  85  111.'  68 ;  Carter  r.  Tice,  120  111.  277 ;  McParland  v.  Lar- 


VOLUNTARY    SETTLEMENT^.  737 

This  and  all  similar  specifications  are  merely  illustrative — "  As  no 
Court  has  ever  attempted  to  define  fraud,  so  no  Court  has  ever  at- 
tempted to  define  undue  influence,  which  includes  one  of  its  many 
\arieties"  (fc).  The  cases  in  which  this  jurisdiction  has  been  ac- 
tually exercised  are  considered  as  merely  instances  of  the  application 
of  a  principle  "  applying  to  all  the  variety  of  relations  in  which 
dominion  may  be  exercised  by  one  person  over  another"  (Z).21 
*As  to  certain  well-known  relations,  indeed,  the  Court  is  now  [604 
bound  by  authority  to  presume  influence.  As  to  any  other  relation 
which  the  Court  judges  to  be  of  a  confidential  kind  it  is  free  to  pre- 
sume that  an  influence  founded  on  the  confidence  exists,  or  to  require 
such  proof  thereof  as  it  may  think  fit. 

It  has  even  been  said  (m)  that  in  every  case  where  "one  person 
obtains,  by  voluntary  donation,  a  large  pecuniary  benefit  from  an- 
other," the  person  taking  the  benefit  is  bound  to  show  "  that  the  donor 
voluntarily  and  deliberately  performed  the  act,  knowing  its  nature 
and  effect;"  that  for  this  purpose  a  voluntary  donation  means  any 
transaction  in  which  one  person  confers  a  large  pecuniary  benefit  on 
another,  though  it  may  be  in  form  a  contract  (n) ;  and  that  such  is 
the  rule  whether  there  is  any  confidential  relation  or  not.  But  these 
dicta,  though  not  expressly  contradicted  in  any  reported  case,  are 

(k)     Lindley    L.J.    in    Allcard    v.  aux    confesseurs."      So   Pothier,    Tr. 

Skinner  (1887)  36  Ch.  Div.  at  p.  183.  des     donations     entre-vifs,     vol.     vii. 

{1)  Sir  S.  Romilly,  arg.  Huguemn  p.  441,  in  (Euvres,  ed.  Dupin,  1825. 
v.  Baseley    (1807)    14  Ves.  285,  9  R.  (m)    By  Lord  Romilly  in  Cooke  v. 

R.  283;  adopted  by  Lord  Cottenham,  Lamotte    (1851)     15   Beav.    234,  240, 

Dent  v.  Bennett    (1839)   4  My.  &  Cr.  21    L.    J.    Ch.   371;    and  Hoghton  v. 

269,  277,  48  R.  R.  94,  102;  Billage  v.  Hoghton    (1852)    15   Beav.  275,  298; 

Southee   (1852)    9  Ha.  534,  540.     Cp.  cp.    per   Lord    Hatherley   in    Phillips 

D'Aguesseau  ((Euvres,  1.  299)   "Par-  v.  Mulling s    (1871)   L.  R.  7  Ch.  244, 

ceque  la   raison   de   I'ordonnaree   est  246,  41  L.  J.  Ch.  211. 
generale,   et  qu'elle   comprend   egale-  (n)   E.g.  Cooke  v.  Lamotte   (1851) 

merit    tous    ceux    qui    peuvent    avoir  15  Beav.  234,  21  L.  J.  Ch.  371;  Dent 

quelque  empire  sur  l'esprit  des  dona-  v.  Bennett    (1839)    4  My.  &  Cr.  269, 

teurs,  vos  arrets  en  ont  etendu  la  dis-  273,  48  R.  R.  94,  99. 
position   aux  maltres,  aux  mSdeeins, 

kin,  155  111.  84;  Ashton  v.  Thompson,  32  Minn.  25;  Garvin  v.  Williams,  44 
Mo.  465,  50  Mo.  206;  Meek  v.  Perry,  36  Miss.  190;  Harris  v.  Carstarphen, 
69  N.  C.  614;  Hoppin  v.  Tobey,  9  R.  I.  42;  Womack  v.  Austin,  1  S.  C.  421; 
Wade  v.  Pulsifer,  54  Vt.  45. 

21  See  Morley  v.  Loughnan,  [1893]  1  Ch.  736,  752;  Starr  v.  Lashmutt,  76 
Fed.  Rep.  907 ;  Shipman  v.  Furniss,  69  Ala.  555,  564 ;  Cleere  v.  Cleere,  82 
Ala.  581 ;  Dowie  v.  Driseoll,  203  111.  480 ;  MeCormick  v.  Malin,  5  Blackf.  509, 
523;  McClure  v.  Lewis,  72  Mo.  314,  322;  Haydock  v.  Haydock,  34  N.  J.  Eq. 
570,  574;  Cowee  r.  Cornell,  75  N.  Y.  91;  Fisher  v.  Bishop,  108  N.  Y.  25; 
Doheny  v.  Lacy,  168  N.  Y.  213,  222;  Todd  v.  Grove,  33  Md.  188,  194;  Deaton 
v.  Munroe,  4  Jones  Eq.  39,  41 ;  Long  v.  Mulford,  17  Ohio  St.  484,  504,  505 ; 
Longenecker  r.  Zion  Church,  200  Pa.  567 ;  Bayliss  v.  Williams,  6  Coldw.  440, 
442. 

47 


738  DURESS    AND    UNDUE    INFLUENCE. 

certainly  not  law.  There  is  no  general  presumption  against  the  valid- 
ity of  gifts  as  such  (o).  Where  grounds  of  unfavourable  presumption 
exist,  it  is  easier  to  set  aside  a  mere  gift  than  a  transaction  from 
which  the  plaintiff  has  derived  some  benefit,  though  not  adequate 
to  what  was  given  for  it;  and  attempts  to  disguise  a  gift  as  a  dealing 
for  value  are  almost  always  fatal  (p).  Beyond  this,  it  is  conceived, 
the  law  does  not  go.22 

Burden  of  proof  where  no  special  relation.  In  the  absence  of  any  special 
relation  from  which  influence  is  presumed,  the  burden  of  proof  is 
605]  on  the  person  *impeaching  the  transaction  (gr),23  and  he  must 
show  affirmatively  that  pressure  or  undue  influence  was  employed. 

Auxiliary  rules  and  doctrines  on  special  points.  Having  thus  stated  the 
fundamental  rules,  we  may  proceed  to  say  something  more  of — 

(1.)  The  auxiliary  rules  applied  by  courts  of  equity  to  voluntary 
gifts  in  general : 

(2.)  The  like  as  to  the  influence  presumed  from  special  relations, 
and  the  evidence  required  in  order  to  rebut  such  presumption : 

(3.)  What  are  the  continuing  relations  between  the  parties  from 
which  influence  has  been  presumed : 

(4.)  From  what  circumstances,  apart  from  any  continuing  relation, 
undue  influence  has  been  inferred;  and  herein  of  the  doctrine  of 
equity  as  to  sales  at  an  undervalue  and  "  catching  bargains  " : 

(5.)    The  limits  of  the  right  of  rescission. 

1.  As  to  voluntary  dispositions  in  general.  (Cp.  Dav.  Conv.  3. 
pt.  1.  Appx.  No.  4.) 

General  principles.  A  voluntary  settlement  which  deprives  the  set- 
tlor of  the  immediate  control  of  the  property  dealt  with,  though  it  be 
made  not  for  the  benefit  of  any  particular  donee,  but  for  the  benefit 
of  the  settlor's  children  or  family  generally,  and  free  from  any  sus- 

(o)    If   there   were,    the    elaborate  in  equity  for  avoiding  the  gift:   Re 

discussion   which   took   place   e.g.    in  Olubb,  Bamfield  v.  Rogers   [1900]    1 

Alleard  v.  Skinner  (1887)  36  Ch.  Div.  Ch.  354,  69  L.  J.  Ch.  278,  C.  A. 
145,  would  have  been  superfluous.  (q)    Blackie   v.    Clark    (1852)     15 

(p)    Also   any   innocent   misrepre-  Beav.  595;  Toker  v.  Toker  (1863)   31 

sentation    by    the    donee    whereby    a  Beav.  629,  3  D.  J.  4  S.  487,  32  L.  J. 

voluntary  gift  is  obtained  is  ground  Ch.  322. 

22  See  Brown  v.  Mercantile  Co.,  87  Md.  377;  Hall  v.  Knappenberger,  97  Mo. 
509;  Haydock  v.  Haydock,  34  N.  J.  Eq.  570,  574;  Parker's  Adm.T.  Farker'8 
Adm.,  45  N.  J.  Eq.  224;  Doran  v.  McConlogue,  150  Pa.  98. 

23Willemin  t.  Dunn,  93  111.  511:  Brown  v.  Mercantile  Co.,  87  Md.  377; 
Cowee  v.  Cornell,  75  N.  T.  91;  Deaton  v.  Munroe,  4  Jones  Eq.  39;  Pressly  V. 
Kemp,  16  S.  C.  334;  Millican  r.  Milliean,  24  Tex.  426,  445. 


VOLUNTAHY    SETTLEMENTS.  739 

picion  of  unfair  motive,  is  not  in  a  much  better  position  than  an 
absolute  and  immediate  gift.  It  seems  indeed  doubtful  whether  the 
Court  does  not  consider  it  improvident  to  make  in  general  indefinite 
contemplation  of  marriage  the  same  kind  of  settlement  which  in  con- 
templation and  consideration  of  a  definitely  intended  marriage  it  is 
thought  improvident  not  to  make  (r). 

It  is  conceived  that  the  ground  on  which  such  dispositions  are 
readily  set  aside  at  the  instance  of  the  settlor's  representatives  is  not 
the  imprudence  of  the  thing  alone,  *but  an  inference  from  [606 
that,  coupled  with  other  circumstances — such  as  the  age,  sex,  and 
capacity  of  the  settlor — that  the  effect  of  the  act  was  not  really  con- 
sidered and  understood  at  the  time  when  it  was  done  (s)  .2i 

As  to  power  of  revocation.  The  absence  of  a  power  of  revocation  has 
often  been  insisted  upon  as  a  mark  of  improvidence  in  a  voluntary 
settlement;  and  it  has  been  even  held  to  be  in  itself  an  almost  fatal 
objection:  but  the  doctrine  now  settled  by  the  Court  of  Appeal  is  that 
it  is  not  conclusive,  but  is  only  to  be  taken  into  account  as  matter 
of  evidence,  and  is  of  more  or  less  weight  according  to  the  other 
circumstances  of  each  case  (t).25 

It  was  a  rule  of  Chancery  practice  that  a  voluntary  settlement 
could  not  be  set  aside  at  the  suit  of  a  defendant.  The  person  im- 
peaching it  had  to  do  so  by  a  substantive  proceeding  in  either  an 
original  or  a  cross  suit  («).  Under  the  existing  practice  he  can  pro- 
ceed by  counter-claim  if  sued  on  the  deed. 

2.  Auxiliary  rules  as  to  the  influence  presumed  from  special 
relations. 

Age,  &c  not  material.  The  principle  on  which  the  Court  acts  in 
such  cases  is  not  affected  either  by  the  age  or  capacity  of  the  per- 

(r)  Everitt  v.  Everitt  (1870)  L.  R.  ignorance  or  mistake  of  both  parties 

10  Eq.  405,  39  L.  J.  Ch.  777 ;  but  here  as  to  the  effect  of  an  instrument  may 

some    of    the   usual    provisions   were  sometimes  be  inferred  on  the  face  ol 

omitted.  it  from  its  unreasonable  or  unusual 

(s)     lb.;     Prideaux    v.     Lonsdale  character:  see  p.  *500,  supra. 
(1863)  1  D.  J  .&  S.  433:  this  ground  (t)    Hall  v.  Hall    (1873)    L.  E.  8 

is   strongly  taken  by  Jessel  M.R.  in  Ch.  430,  42  L.  J.  Ch.  444,  where  the 

Dutton  v.   Thompson    (1883)    23   Ch.  former  cases  are  reviewed. 
Div     at   p     281,   52   L.    J.    Ch.    661;  («)   Way' g  trust   (1864)   2  D.  J.  & 

James  v.  Couehman  (1885)  29  Ch.  D.  S.  365,  372,  34  L.  J.  Ch.  49;  Hall  v. 

212,  54  L.  J.   Ch.  838.     So  common  Hall  (1873)  L.  R.  14  Eq.  365,  377. 

24  Garnsey  r.  Mundv,  24  N.  J.  Eq.  243. 

25Finuean  v.  Kendig,  109  111.  198;  Brown  v.  Mercantile  Co.,  87  Md.  377; 
Dunn  v.  Dunn,  42  N.  J.  Eq.  431;  Russell's  Appeal,  75  Pa.  269;  Miskey's 
Appeal,  107  Pa'.  618;  Potter  v.  Fidelity  Co.,  199  Pa.  366;  Aylsworth  v.  Whit- 
comb,  11  R.  I.  298 ;  Sargent  V.  Baldwin,  60  Vt.  17. 


740  DTJHESS    AND    "UNDUE    INFLUENCE. 

son  conferring  the  benefit,   or  by  the  nature  of  the  benefit  con- 
ferred (a;).26 

"  Where  a  relation  of  confidence  is  once  established,  either  some 
positive  act  or  some  complete  case  of  abandonment  must  be  shown  in 
607]  order  to  determine  it:"  it  will  not  *be  considered  as  deter- 
mined whilst  the  influence  derived  from  it  can  reasonably  be  supposed 
to  remain  (x). 

Influence  presumed  to  continue.  Where  the  influence  has  its  inception 
in  the  legal  authority  of  a  parent  or  guardian,  it  is  presumed  to  con- 
tinue for  some  time  after  the  termination  of  the  legal  authority, 
until  there  is  what  may  be  called  a  complete  emancipation,  so  that  a 
free  and  unfettered  judgment  may  be  formed,  independent  of  any 
sort  of  control  (y).21  It  is  obvious  that  without  this  extension  the 
rule  would  be  practically  meaningless.  It  is  said  that  as  a  general 
rule  a  year  should  elapse  from  the  termination  of  the  authority  be- 
fore the  judgment  can  be  supposed  to  be  wholly  emancipated:  this 
of  course  does  not  exclude  actual  proof  of  undue  influence  at  any 
subsequent  time  (2). 

Evidence   required   to   rebut  presumption   of   influence  —  Father   and   son. 

With  regard  to  the  evidence  to  be  adduced  to  rebut  the  presumption 

in  a  transaction  between  a  father  and  a  son  who  has  recently  attained 

majority,  the  father  is  bound  "  to  show  at  all  events  that  the  son  was 

really  a  free  agent,  that  he  had  adequate  independent  advice    .     .     . 

that  he  perfectly  understood  the  nature  and  extent  of  the  sacrifice 

he  was  making,  and  that  he  was  desirous  of  making  it." 

"  So  again,  where  a  solicitor  purchases  or  obtains  a  benefit  from  a  client, 
a  court  of  equity  expects  him  to  be  able  to  show  that  he  has  taken  no 
ad-vantage  of  his  professional  position;  that  the  client  was  so  dealing  with 
him  as  to  be  free  from  the  influence  which  a  solicitor  must  necessarily  possess, 
and  that  the  solicitor  has  done  as  much  to  protect  his  client's  interest  as  he 
would  have  done  in  the  case  of  a  client  dealing  with  a  stranger  "  (a)  .28 

(x)     Per   Turner,   L.J.    Rhodes   v.  (s)   See  per  Lord  Cranworth,  7  H. 

Bate  (1866)  L.  R.  1  Ch.  252,  257,  260,  L.  C.  at  p.  772. 

35  L.  J.  Ch.  267;  Holman  v.  Loynes  (a)  Savery  v.  King  (1865)  5  H.  L. 

(1854)   4  D.  M.  &  G.  270,  283,  23  L.  C.  at  p.  655,  25  L.  J.  Ch.  482;  Cas- 

J.  Ch.  529.                      .  home  v.  Barsham   (1839)  2  Beav.  76, 

(y)    Archer   v.    Hudson    (1844)    7  50  R.   R.   106,   seems  not  quite   con- 

Beav.    551,   560,    13   L.    J.  ■  Ch.    380;  sistent  with,  this :  but  there  the  plain- 

Wright  v.  Vanderplanh   (1855)    8  D.  tiff  was  not  the  client  himself,  but 

M.  &  G.  133,   137,  146,  25  L.  J.  Ch.  his   assignee   in    insolvency,   and   the 

753.  client's  own  evidence  was  rather  fa- 
vourable to  the  solicitor. 

26  See  Barron  v.  Willis,  [1900]  2  Ch.  121;  McQueen  v.  Wilson,  131  Ala.  606; 
Pironi  v.  Corrigan,  48  N.  J.  Eq.  607  (quoting  text)  ;  Mason  v.  Ring,  3  Abb. 
App.  Dec.  210. 

2T  Ferguson  v.  Lowery,  54  Ala.  510;  McConkey  v.  Cockey,  69  Md.  286; 
Garvin  1:  Williams.  44  Mo.  465.  50  Mo.  206. 

28  See  Tar.cre  v.  Pullman,  35  Minn.  476. 


FIDUCIARY    RELATIONS.  741 

He  must  give  all  the  reasonable  advice  against  himself  that  he 
would  have  given  against  a  third  person  (b).™  And  *he  must  [608 
not  deal  with  his  client  on  his  own  account  as  an  undisclosed  prin- 
cipal. "  Prom  the  very  nature  of  things,  where  the  duty  exists  that 
he  should  give  his  client  advice,  it  should  be  disinterested  advice; 
he  cannot  properly  give  that  advice  when  he  is  purchasing  himself 
without  telling  his  client  that  he  is  purchasing"  (c).  If  the  client 
becomes  bankrupt,  his  trustee  is  entitled  to  the  benefit  of  this  special 
duty  (d). 

The  result  of  the  decisions  has  been  thus  summed  up  by  the  Judi- 
cial Committee  of  the  Privy  Council.  "The  Court  does  not  hold 
that  an  attorney  is  incapable  of  purchasing  from  his  client;  but 
watches  such  a  transaction  with  jealousy,  and  throws  on  the  attorney 
the  onus  of  showing  that  the  bargain  is,  speaking  generally,  as  good 
as  any  that  could  have  been  obtained  by  due  diligence  from  any  other 
purchaser"  (e).  He  is  not  absolutely  bound  to  insist  on  the  inter- 
vention of  another  professional  adviser.  But  if  he  does  not,  he  must 
not  be  surprised  at  the  transaction  being  disputed,  and  may  have  to 
pay  his  own  costs  even  if  in  the  result  it  is  upheld.  As  to  gifts,  the 
rule  is  that  the  client  must  have  competent  independent  advice  (f). 

Generally  — "  The  broad  principle  on  which  the  Court  acts  in  cases  of  this 
description  is  that,  wherever  there  exists  such  a  confidence,  of  whatever 
character  that  confidence  may  be,  as  enables  the  person  in  whom  confidence  or 
trust  is  reposed  to  exert  influence  over  the  person  trusting  him,  the  Court 
will  not  allow  any  transaction  between  the  parties  to  stand  unless  there  has 

(5)   Gibson  v.  Jeyes  (1801)   6  Ves.  (d)     Luddy's     Trustee    v.     Peard 

266,  278,   5   R.  R.   295,   306.     As  to  (1886)  33  Ch.  D.  500. 
solicitor's    charges,     see    Lyddon    v.  (e)    Pisani  v.  A.-G.   for  Gibraltar 

Moss  (1859)  4  De  G.  &  J.  104.  (1874)   L.  R.  5  P.  C.  516,  536,  540. 

(c)     MoPherson    v.    Watt     (1877)  (f)   Liles  v.  Terry   [1895]   2  Q.  B. 

(Sc.)  3  App.  Ca.  254,  272.  679,  65  L.  J.  Q.  B.  34,  C.  A. 

29  McPherson  v.  Watt,  3  App.  Ca.  254,  266 ;  Dunn  v.  Record,  63  Me.  17 ; 
Evans  v.  Ellis,  5  Denio,  640,  643;  Bank  v.  Hornberger,  4  Coldw.  531,  571. 
"An  attorney  who  seeks  to  avail  himself  of  a  contract  made  with  his  client 
is  bound  to  establish  affirmatively  that  it  was  made  by  the  client  with  full 
knowledge  of  all  the  material  circumstances  known  to  the  attorney,  and  was 
in  every  respect  free  from  fraud  on  his  part,  or  misconception  on  the  part  of 
the  client,  and  that  a  reasonable  use  was  made  by  the  attorney  of  the  confi- 
dence reposed  in  him."  Whitehead  v.  Kennedy,  69  N.  Y.  462,  466 ;  Be  Bowers, 
83  Fed.  Rep.  944,  955;  Yeamans  v.  James,  27  Kan.  195,  207;  Brigham  v. 
Newton,  49  La.  Ann.  1539;  Burnham  v.  Heselton,  84  Me.  578;  Dunn  v.  Dunn, 
42  N.  J.  Eq.  431;  Place  v.  Hayward,  117  N.  Y.  487,  497;  Thomas  v.  Turner's 
Adm.,  87  Va.  1.  "An  attorney  cannot  sustain  a  purchase  from  his  client 
without  showing  that  he  communicated  to  such  client  everything  necessary 
to  enable  him  to  form  a  correct  judgment  as  to  the  real  value  of  the  subject 
of  the  purchase,  and  as  to  the  propriety  of  selling  at  the  price  offered.  And 
the  neglect  of  the  attorney  to  inform  himself  of  the  true  state  of  the  facts  will 
not  enable  him  to  sustain  a  purchase,  from  his  client,  for  an  inadequate  con- 


742  DURESS    AND    UNDUE    INFLUENCE. 

been  the  fullest  and  fairest  explanation  and  communication  of  every  par- 
ticular resting  in  the  breast  of  the  one  who  seeks  to  establish  a  contract  with 
the  person  so  trusting  him"  (g).s0 

In  other  words,  every  contract  entered  into  by  persons  standing  in 
609]  such  a  relation  is  treated  as  being  uberrimae  *fidei,  and  may  be 
vitiated  by  silence  as  to  matters  which  one  of  two  independent  parties 
making- a  similar  contract  would  be  in  no  way  bound  to  communicate 
to  the  other;  nor  does  it  matter  whether  the  omission  is  deliberate, 
or  proceeds  from  mere  error  of  judgment  or  inadvertence  (/i).  The 
rule  extends  not  only  to  beneficial  transactions  with  the  confidential 
adviser  himself,  but  to  such  as  confer  a  benefit  on  any  one  closely 
connected  with  him  (i). 

Thus  a  medical  attendant  who  makes  with  his  patient  a  contract 
in  any  way  depending  on  the  length  of  the  patient's  life  is  bound 
not  to  keep  to  himself  any  knowledge  he  may  have  professionally  ac- 
quired, whether  by  forming  his  own  opinion  or  by  consulting  with 
other  practitioners,  as  to  the  probable  duration  of  the  life  (Jc).  Per- 
haps the  only  safe  way,  and  certainly  the  best,  is  to  avoid  such  con- 
tracts altogether. 

In  Grosvenor  v.  Sherratt  (I),  where  a  mining  lease  had  been 
granted  by  a  young  lady  to  her  brother-in-law  (the  son  of  her  father's 
executor)  and  uncle,  at  the  inducement  of  the  said  executor,  "  in 
whom  she  placed  the  greatest  confidence,"  it  was  held  that  it  was  not 
enough  for  the  lessees  to  show  that  the  terms  of  the  lease  were  fair; 
they  ought  to  have  shown  that  no  better  terms  could  possibly  have 
been  obtained;  and  as  they  failed  to  do  this,  the  lease  was  set  aside. 

This  comes  very  near  to  the  case  of  an  agent  dealing  on  his  own 
account  with  his  principal,  when  "it  must  be  proved  that  full  in- 
formation has  been  imparted,  and  that  the  agreement  has  been  en- 
tered into  with  perfect  good  faith." 31     Nor  is  the  agent's  duty  altered 

(g)  Per  Page  Wood  V.-C.  Tate  v.  ent  advice,  not  followed  up,  will  not 

Williamson    (1866)    L.   R.   1   Eq.   at  validate'  such  a  transaction. 

p.  536.  (h)    Popham  v.  Brooke    (1828)    5 

(h)    Molony   v.   Kernan    (1842)    2  Euss.  8. 

Dr.  &  W.  at  p.  39.  (I)    (1860)  28  Beav.  659,  663.    This 

(*)   Barron  v.  Willis  [1900]  2  Ch.  is   an  extreme  case;    but   there  was 

121,  69  L.  J.  Ch.  832,  C.  A.;   which  some  evidence   of  independent  offers 

also  shows    (if  authority  be  needed)  being  discouraged, 
that  a,  mere  suggestion  of  independ- 

sideration."  Howell  ».  Ransom,  11  Paige,  538;  Rogers  v.  Marshall,  3  Mc- 
Crary,  76. 

so  Ilgenfritz  v.  Ilgenfritz,  116  Mo.  429   (quoting  text). 

31  Brooks  i».  Martin,  2  Wall.  70,  85;  Kimberly  v.  Arms,  129  U.  S.  512,  527: 
Ralston  v.  Turpin,  129  U.  S.  663,  674;  Waddeil  v.  Lanier,  62  Ala.  347,  350; 


FIDUCIARY    RELATIONS.  743 

though  the  proposal  originally  came  from  the  principal  and  the 
*principal  shows  himself  anxious  to  complete  the  transaction  as  [610 
it  stands  (m).  The  same  rules  apply  to  an  executor  who  himself  be- 
comes the  purchaser  of  part  of  his  testator's  estate  (n).32  But  this 
obligation  of  agents  and  trustees  for  sale  appears  (as  we  have  already 
considered  it,  p.  *285,  above)  to  be  incidental  to  the  special  nature 
of  their  employment,  and  to  be  a  duty  founded  on  contract  rather  than 
cue  imposed  by  any  rule  of  law  which  guards  the  freedom  of  con- 
tracting parties  in  general. 

The  duty  cast  upon  a  solicitor,  or  other  person  in  a  like  position 
of  confidence,  who  deals  on  his  own  account  with  his  client,  of 
disclosing  all  material  circumstances  within  his  knowledge,  does  not 
however  bind  him  to  communicate  a  "  speculative  and  consequential  " 
possibility  which  may  affect  the  future  value  of  the  subject-matter 
of  the  transaction,  but  which  is  not  more  in  his  own  knowledge  than 
in  the  client's  (o). 

Family  arrangements  exceptionally  favoured.  It  must  not  be  forgotten 
that  the  suspicion  with  which  dealings  between  parents  and  children 
presumably  still  under  parental  influence  are  regarded  by  courts  of 
equity  is  to  a  certain  extent  counteracted  by  the  favour  with  which 
dispositions  of  the  kind  known  as  family  arrangements  are  treated. 
In  many  cases  a  balance  has  to  be  struck  between  these  partly  con- 
flicting presumptions.  "  Transactions  between  parent  and  child  may 
proceed  upon  arrangements  between  them  for  the  settlement  of 
property,  or  of  their  rights  in  property  in  which  they  are  interested. 
Id  such  cases  this  Court  regards  the  transactions  with  favour.  It 
does  not  minutely  weigh  the  considerations  on  one  side  or  the  other. 
Even  ignorance  of  rights,  if  equal  on  both  sides,  may  not  avail  to  im- 

(m)   Dally  v.  Wonham    (18G3)    33  fused    on    the    ground    of    seventeen 

Beav.  154.  years'  delay. 

(n)  Baker  v.  Bead  (1854)   18  Beav.  (o)   Edivards  v.  Meyrick   (1842)   2 

398;    where    however    relief   was    re-  Ha.  60,  74;  Holman  v.  Loynes  (1854) 

,  4  D.  M.  &  G.  at  p.  280. 

Smith  v.  Sweeney,  69  Ala.  524,  527;  Rubidoex  v.  Parks,  48  Oal.  215;  Casey  r. 
Casey,  14  111.  112;  McCormick  v.  Malin,  5  Blackf.  509;  Rochester  v.  Levering, 
104  Ind.  562;  Farnam  v.  Brooks,  9  Pick.  212;  Rath  v.  Vanderlyn,  44  Mich. 
597;  Hicks  v.  Steel,  126  Mich.  408;  Hegenmyer  v.  Marks,  37  Minn.  6;  Merriam 
17.  Johnson,  86  Minn.  61;  Condit  v.  Blaekwell,  22  N.  J.  Eq.  481;  Tappan  r. 
Aylsworth,  13  R.  I.  582. 

32  Johnson  v.  Johnson,  5  Ala.  90;  Williams  v.  Powell,  66  Ala.  20;  Jones  i>. 
Jones,  131  Mo.  194;  Farmer's  Exr.  v.  Farmer,  39  N.  J.  Eq.  211;  People  v. 
Open  Board,  92  N.  Y.  103 ;  Statham  v.  Ferguson,  25  Gratt.  28.  And  see  Good- 
win v.  Goodwin,  48  Ind.  584;  Handlin  v.  Davis,  81  Ky.  34. 


744  DURESS    AND    UNDUE    INFLUENCE. 

61 1  ]  peach  the  transaction  (p).33  *0n  the  other  hand,  the  transac- 
tion may  be  one  of  bounty  from  the  child  to  the  parent,  soon  after 
the  child  has  attained  twenty-one.  In  such  cases  this  Court  views 
the  transaction  with  jealousy,  and  anxiously  interposes  its  protection 
to  guard  the  child  from  the  exercise  of  parental  influence"  (q). 

It  must  be  observed  that  the  rules  concerning  gifts,  or  trans- 
actions in  the  form  of  contract  which  are  substantially  gifts,  from  a 
son  to  a  father,  do  not  apply  to  the  converse  case  of  a  gift  from  an 
ancestor  to  a  descendant :  there  is  no  presumption  against  the  validity 
of  such  a  gift,  for  it  may  be  made  in  discharge  of  the  necessary  duty 
of  providing  for  descendants  (r).34 

Classification  of  relations.  3.  Eelations  between  the  parties  from 
which  influence  has  been  presumed. 

It  would  be  useless  to  attempt  an  exact  classification  of  that  which 
the  Court  refuses  on  principle  to  define  or  classify:  but  it  may  be 
convenient  to  follow  an  order  of  approximate  analogy  to  the  cases 
of  well-known  relations  in  which  the  presumption  is  fully  established. 

a.  Relations  in  which  there  is  a  power  analogous  to  that  of  parent 
or  guardian. 

Uncle  in  loco  parentis  and  niece:  Archer  v.  Hudson  (1844)  7  Beav. 
551,  13  L.  J.  Ch.  380;  Maitland  v.  Irving    (1S46)    15  Sim.  437.35     Step-father 

(p)  Perhaps  it  is  safer  to  say  that  of  family  arrangement  not  applying 

the  "  almost  invincible  jealousy "  of  when    a    son    without    consideration 

the  Court  is  reduced  to   "  a  reason-  gives  up  valuable  rights  to  his  father : 

able   degree    of   jealousy":    cp.    Lord  Sarery  v.  King   (1856)    5  H.  L.  C.  at 

Eldon's  language  in  Hatch  v.  Hatch  p.   657.     A  sale  by  a  nephew  to  his 

(1804)    9  Ves.  at  p.  296,  7  R.  R.  at  [great]   uncle  of  his  reversionary  in- 

p.    197,    and    Tweddell    v.    Tweddell  terest  in  an  estate  of  which  the  uncle 

(1822)   Turn.  &  R.  at  p.  13,  23  R.  R.  is  tenant  for  life  is  not  a  family  ar- 

168.    On  the  question  of  consideration  rangement:        Talbot     v.     Staniforth 

see   Williams   v.    Williams    (1866-7)  (1861)   1  J.  &  H.  484,  501.    As  to  the 

L.  R.  2  Ch.  294,  304,  36  L.  J.  Ch.  200.  amount   of  notice  that  will  affect  a 

(q)    Bakery.  Bradley   (1855)    7  L>.  purchaser:      Bainbrigge     v.     Browne 

M.&G.  597,620.    See  also  Wallace  v.  (1881)    18  Ch.  D.  188,  50  L.  J.  Ch. 

Wallace  (1842)  2  Dr.  &  W.  452,  470;  522. 

Bellamy  v.  Sabine    (1835)   2  Ph.  425,  (r)   Beanland  v.  Bradley    (1854)    2 

439;   Hoghton  v.  Hoghton    (1852)    15  Sm.  &  G.  339. 
Beav.  278,  300;   and  on  the  doctrine 

33  See  Supreme  Assembly  v.  Campbell,  17  R.  I.  402. 

34  See  Towson  r.  Moore,  173  U.  S.  17;  Fitch  v.  Reiser,  79  la.  34;  Bauer  v. 
Bauer,  82  Md.  241;  McKinney  v.  Hensley,  74  Mo.  326;  Millican  v.  Millican, 
24  Tex.  426;  Saufley  v.  Jackson,  16  Tex.  579;  Davis  v.  Dean,  66  Wis.  100. 
But  the  unfavorable  presumption  may  arise  "  where  the  natural  position  of 
the  parties  is  reversed  by  the  influence  of  time,  and  the  parent  has  become  a 
child,  and  the  child  is  guardian  to  the  parent."  Highberger  v.  Stiffler,  21 
Md.  338;  Ennis  v.  Burnham,  156  Mo.  494;  Ten  Eyck  v.  Whitbeck,  156  N".  Y. 
341,  353;   Brummond  v.  Krause,  8  N.  Dak.  573. 

35  Earhart  v.  Holmes,  97  la.  649;  uncle  and  nephew,  Hall  v.  Perkins,  3 
Wend.  626;   Graham  v.  Little,  3  Jones  Eq.  152. 


RELATIONS    WHENCE    INFLUENCE    PRESUMED.  745 

in*loco  parentis  and  step-daughter:  Kempson  v.  Ashbee  (1874)  10  [613 
Ch.  15,  44  L.  J.  Ch.  195;  Espey  v.  Lake,  10  Ha.  260.36  Executor  of  a  will 
(apparently  in  a  like  position)  and  the  testator's  daughter:  Grosvenor  v. 
Sherratt   (1860)   28  Beav.  659. 

Husband  of  a  minor's  sister  with  whom  the  minor  had  lived  for  some  time 
before  he  came  of  age:  Griffin  v.  Deveuille  (1781)  3  P.  Wms.  131,  n.  But 
the  mere  fact  of  a  minor  living  with  a,  relative  of  full  age  does  not  raise  a 
presumption  of  influence;  or  the  presumption,  if  any,  is  rebutted  by  proof  of 
,Voon^SS;^ ke  habits  and  capacity  on  the  donor's  part:  Taylor  v.  Johnston 
(1882)    19  Ch.  D.  603,  51  L.  J.  Ch.  879. 

Two  sisters  living  together,  of  whom  one  was  in  all  respects  the  head  of  the 
house  and  might  be  considered  as  in  loco  parentis  towards  the  other,  though 
the  other  was  of  mature  years:  Harvey  v.  Mount  (1845)  8  Beav.  439.37 
Brother  and  sister,  where  the  sister  at  the  age  of  46  executed  a  voluntary 
settlement  under  the  brother's  advice  and  for  his  benefit:  Sham  v  Leach 
(1862)  31  Beav.  491.38  e     ' 

Husband  and  wife  on  the  one  part,  and  aged  and  infirm  aunt  of  the  wife 
on  the  other:      'Griffiths   v.   Robins    (1818)    3   Mad.    191.39 

Distant  relationship  by  marriage:  the  donor  old,  infirm,  and  his  sound- 
ness of  mind  doubtful;  great  general  confidence  in  the  donee,  who  was 
treated  by  him  as  a  son:  Steed  v.  Galley  (1836)  1  Kee.  620.  This  rather 
than  the  donor's  insanity  seems  the  true  ground  of  the  case :    see  p.  644. 

Keeper  of  lunatic  asylum  and  recovered  patient:  Wright  v.  Proud  (1806) 
13  Ves.   136. 

There  are  also  cases  of  general  control  obtained  by  one  person  over  another 
without  any  tie  of  relationship  or  lawful  authority:  Bridgman  v.  Green 
(1755)  2  Ves.  Sr.  627,  Wilm.  58,  where  a  servant  obtained  complete  control 
over  a  master  of  weak  understanding.  Kay  r.  Smith  (1856)  21  Beav.  522, 
affirmed  nom.  Smith  v.  Kay  (1859)  7  H.  L.  C.  750,  where  an  older  man  living 
with  a  minor  in  a  joint  course  of  extravagance  induced  him  immediately  on 
his  coming  of  age  to  execute  securities  for  bills  previously  accepted  by  him 
to  meet  the  joint  expenses. 

In  Lloyd  v.  Clark  (1843)  6  Beav.  309,  the  influence  of  an  officer  over  his 
junior  in  the  same  regiment  was  taken  into  account  as  increasing  the  weight 
of  other  suspicious  circumstances;  but  there  is  nothing  in  the  case  to  war- 
rant including  the  position  of  a  superior  officer  in  the  general  category  of 
"  suspected  relations." 

B.  Positions  analogous  to  that  of  solicitor.40 

Certified  conveyancer  acting  as  professional  adviser:  Rhodes  v.  Bate  (1866) 
L.  R.  1  Ch.  252,"35  L.  J.  Ch.  267.  Counsel  and  confidential  adviser:  Broun 
v.  Kennedy  (1863)   33  Beav.  133,  148,  4  D.  J.  S.  217. 

36Bradshaw  v.  Yates,  67  Mo.  221;  Berkmeyer  v.  Kellerman,  32  Ohio  St. 
239;  step-mother  and  step-daughter,  Powell  v.  Powell  [1900],  1  Ch.  243;  step- 
father and  step-son,  Givan  v.  Masterson,  152  Ind.  187  ;  grandparent  and  grand- 
child' Brown  v.  Burbank,  64  Cal.  99;   Chambers  v.  Chambers,  139  Ind.  111. 

37Watkins  v.  Brant,  46  Wis.  419;  two  brothers,  Todd  v.  Grove,  33  Md.  188. 

38  See  Boney  v.  Hollingsworth,  23  Ala.  690;  Million  v.  Taylor,  38  Ark.  428; 
Thornton  v.  Ogden,  32  N.  J.  Eq.  723 ;  Sears  v.  Shafer,  6  N.  Y.  268 ;  Jones  v. 
Jones,  120  N.  Y.  589. 

39McClure  v.  Lewis,  72  Mo.  314;  Graves  v.  White,  4  Baxt.  38;  nephew  and 
aged  and  dying  uncle,  Duncombe  v.  Richards,  46  Mich.  166. 

It  has  been  decided  that  there  is  no  such  relation  of  trust  and  confidence 
between  a  man  and  his  mother-in-law,  that  in  dealings  between  them  the 
latter  should  be  supposed  to  act  upon  the  assumption  that  there  would  be  no 
concealment  of  facts  from  her.  Fish  v.  Cleland,  33  111.  238;  43  111.  282; 
McHarry  v.  Irwin,  85  Ky.  322.  See  also  Herron  v.  Herron,  71  la.  428; 
Zimmerman  v.  Bitner,  79  Md.  115. 

40  See  Buffalow  v.  Buffalow,  2  Dev.  &  Bat.  Eq.  241;  Bayliss  v.  Williams,  t 
Coldw.  440 ;   Poillon  v.  Martin,  1  Sandf .  Ch.  569. 


74G  DL'KiibS    AND    UNDUE    INFLUENCE. 

Confidential  agent  substituted  for  solicitors  in  general  management  of 
affairs:  Muguenm  v.  Baseiey  (1807)  14  Ves.  273,  9  R.  R.  276  (s). 
613]  *A  person  deputed  by  an  elder  relation,  to  whom  a  young  man  applied  for 
advice  and  assistance  in  pecuniary  difficulties,  to  ascertain  the  state  of  his 
affairs  and  advise  on  relieving  him  from  his  debts:  Tate  V.  Williamson  (I860) 
L.  R.  1  Eq.  528,  2  Ch.  55. 

The  relation  of  a  medical  attendant  and  his  patient  is  treated  as  a  con- 
fidential relation  analogous  to  that  between  solicitor  and  client:  Dent  v. 
Bennett  (1839)  4  My.  &  Cr.  269,  48  R.  R.  94;  Billaye  v.  Southee  (1852) 
9  Ha.  534;  Ahearne  v.  Hogan  (1844)  Dru.  310;4l  though  in  Blackie  v.  Clark 
(1852)  15  Beav.  595,  603,  somewhat  less  weight  appears  to  be  attached  to  it.42 
It  does  not  appear  in  the  last  case  whether  the  existence  of  "  anything  like 
undue  persuasion  or  coercion''  (p.  604)  was  merely  not  proved  or  positively 
disproved:  on  the  supposition  that  it  was  disproved  there  would  be  no  incon- 
sistency with  the  other  authorities.  For  another  unsuccessful  attempt  to 
set  aside  a  gift  to  a  medical  attendant,  see  Pratt  v.  Barker  ( 1826-28 )  1  Sim. 
1,  4  Russ.  507,  27  R.  R.  136,  there  the  donor  was  advised  by  his  own  solicitor, 
who  gave  positive  evidence  that  the  act  was  free  and  deliberate. 

c.  Spiritual  influence. 

It  is  said  that  influence  would  be  presumed  as  between  a  clergyman  or 
any  person  in  the  habit  of  imparting  religious  instruction  and  another  person 
placing  confidence  in  him:  Dent  v.  Bennett  (1835)  7  Sim.  at  p.  546,  48  R.  R. 
p.  97.43  There  have  been  two  remarkable  modern  cases  of  spiritual  influence 
in  which  there  were  claims  to  spiritual  power  and  extraordinary  gifts  on  the 
one  side,  and  implicit  belief  in  such  claims  on  the  other ;  it  was  not  necessary 
to  rely  merely  on  the  presumption  of  influence  resulting  therefrom,  for  the 
evidence  which  proved  the  relation  of  spiritual  confidence  also  went  far  to 
prove  as  a  fact  in  each  case  that  a  general  influence  and  control  did  actually 
result:  Nottidge  v.  Prince  (1860)  2  Giff.  246.  29  L.  J.  Ch.  857;  Lyon  v. 
Home  (1868)  L.  R.  6  Eq.  655,  37  L.  J.  Ch.  674  (t)  M  In  the  former  case 
at  all  events  there  was  gross  imposture,  but  the  spiritual  dominion  alone 
would  have  been  sufficient  ground  to  set  aside  the  gift:  for  the  Court  con- 
sidered the  influence  of  a  minister  of  religion  over  a  person  under  his  direct 

(s)    A    fortiori,    where   characters  25  R.  R.  150,  30  R.  R.  1.    In  Rossiter 

of    steward    and    attorney    are    com-  v.    Walsh    (1843)    4  Dr.   &   W.   485, 

bined :  Harris  v.  Tremenheere  ( 1808 )  where    the   transaction   was   between 

15  Ves.  34,  10  R.  R.  5.  A  flagrant  an  agent  and  »  sub-agent  of  the  same 
case  is  Baker  v.  Loader  (1872)   L.  R.  principals,  the  case  was  put  by  the 

16  Eq.  49,  42  L.  J.  Ch.  113.  Cp-  bill  (p.  487),  but  not  decided,  on  tne 
Moxon  v.  Payne  (1873)  L.  R.  8  Ch.  ground  of  fiduciary  relation.  See 
881,  43  L.  J.  Ch.  240,  where  however  p.  609,  above. 

the  facts  are  not  given  in  any  detail.  (i)   In  Lyon  v.  Home  the  evidence 

As   to   a.   land   agent    purchasing   or  appears  to  have  been  in  a  very  un- 

taking  a  lease  from  his  principal,  see  satisfactory  condition,  and  on  many 

also  Molony  v.  Kernan   (1842)   2  Dr.  particulars  to  have  led  to  no  definite 

&   W.    31;    Lord   Selsey   v.    Rhoades  conclusion:  the  case  is  therefore  more 

(1824-27)   2  Sim.  &  St.  41,  1  Bli.  1,  curious  than  instructive. 

41  Cadwallader  v.  West,  48  Mo.  483,  496. 

42  And  see  Watson  v.  Mahan,  20  Ind.  223;  Audenried's  Appeal,  89  Pa.  114. 

43  Thompson  v.  Hawks,  14  Eed.  Rep.  902;  McQueen  v.  Wilson,  131  Ala.  606; 
Ross  t.  Conway,  92  Cal.  632;  Dowie  v.  Driscoll,  203  111.  480;  Good  v.  Zook, 
116  la.  582;  Caspari  v.  First  Church,  12  Mo.  App.  293;  Ford  v.  Hennessy, 
70  Mo.  580;  Pironi  v.  Corrigan,  48  N.  J.  Eq.  607;  Marx  v.  McGlynn,  88  N.  Y. 
357. 

44  See  also  Connor  v.  Stanley,  72  Cal.  556;  Ross  v.  Conway,  92  Cal.  632; 
Middleditch  v.  Williams,  45  N.  J.  Eq.  726;  Hides  v.  Hides,  65  How.  Pr.  17. 


SPECIAL    CASES.  74^ 

spiritual  charge  to  be  stronger  than  that  arising  from  any  other  relation  (w)  .45 
There  seems  to  have  been  also  in  Norton  v.  Relly  (1764)  *2  Eden,  286,  [614 
the  earliest  reported  case  of  this  class,  a,  considerable  admixture  of  actual 
fraud  and  imposition. 

A  peculiar  case  is  Allcard  v.  Skinner  (1887)  36  Ch.  Div.  145,  56  L.  J.  Ch. 
10.52.  The  plaintiff,  a  lady  of  full  age,  had  joined  a  religious  sisterhood, 
apparently  of  her  own  mere  motion  and  free  will.  Its  rules,  known  to  her 
before  she  applied  for  admission,  required  the  members  to  abandon  all  their 
individual  property;  not  necessarily  to  the  sisterhood,  but  the  common  prac- 
tice was  to  give  it  to  the  superior  for  the  purposes  of  the  sisterhood.  Other 
rules  required  strict  obedience  to  the  superior,  restrained  communication 
with  "  externs  '*  about  the  affairs  of  the  convent,  and  forbade  members  to 
"  seek  advice  of  any  extern  without  the  superior's  leave."  At  various  times 
after  entering  the  sisterhood  the  plaintiff  made  transfers  of  considerable 
sums  of  money  and  stock  to  the  superior,  in  fact  "  gave  away  practically  all 
she  could.''  After  some  years  she  left  the  sisterhood,  and  after  nearly  six 
years  more  she  claimed  the  return  of  the  funds  remaining  in  the  superior's 
hands.  It  was  held  that,  having  regard  to  the  position  of  the  plaintiff  as  a 
member  of  the  sisterhood,  and  to  the  rules  she  had  undertaken  to  obey, 
especially  the  rules  against  communication  with  "  externs,"  she  was  not  a 
free  agent  at  the  time  of  making  the  gifts.  But  the  majority  of  the  Court 
held  that  her  subsequent  conduct  amounted  to  confirmation. 

A  still  later  case  where  a  weak  rich  man  became  a  mere  puppet  in  the 
hands  of  an  amateur  spiritual  director,  who  used  his  ascendancy  for  the  most 
grossly  selfish  ends,  is  Morley  v.  Loughnan  [1893]  1  Ch.  736,  62  L.  J.  Ch.  515. 

The  authority  of  Huguenin  v.  Baselcy  (1807)  14  Ves.  273,  9  R.  R.  276,  as 
to  this  particular  kind  of  influence,  is  to  be  found  not  in  the  judgment,  which 
proceeds  on  the  ground  of  confidential  agency,  but  in  Sir  S.  Romilly's  argu- 
ment in  reply,  to  which  repeated  judicial  approval  has  given  a  weight  scarcely 
if  at  all  inferior  to  that  of  the  decision  itself. 

4.  Circumstances  held  to  amount  to  proof  of  undue  influence,  apart 
from  any  continuing  relation. 

Securities  obtained  by  pressure:  Williams  v.  Bay  ley.  In  a  case  where 
a  father  gave  security  for  the  amount  of  certain  notes  believed  to  have 
been  forged  by  his  son,  the  holders  giving  him  to  understand  that 
otherwise  the  son  would  be  prosecuted  for  the  felony,  the  agreement 
was  set  aside,  as  well  on  the  ground  that  the  father  acted  under  undue 
pressure  and  was  not  a  free  and  voluntary  agent,  as  because  the  agree- 
ment was  in  itself  illegal,  as  being  substantially  an  agreement  to  stifle 
a  criminal  prosecution  (x).*e 

(u)  2  Giff.  269,  270.  R.  1  H.  L.  200,  35  L.  J.  Ch.  717;  cp. 

(as)   Williams  v.  Bayley   (1866)   L.       p.  *329,  above. 

«  See  also  Nachtrieb  v.  The  Harmony  Settlement,  3  Wall.  Jr.  66 ;  Connor  v. 
Stanley,  72  Cal.  556;  Orehardson  v.  Cofleld,  171  111.  14. 

46  Sharon  ■».  Gager,  46  Conn.  189;  Ingalls  v.  Miller,  121  Ind.  188;  Singer 
Mfg.  Co.  v.  Rawson,  50  la.  634 ;  Winfield  Bank  v.  Croco,  46  Kan.  620 ;  Thorne 
v.  Pinkham,  84  Me.  103;  Rau  v.  Von  Zedlitz,  132  Mass.  164;  Silsbee  v. 
Webber,  171  Mass.  378;  Benedict  V.  Roome,  106  Mich.  340;  Allen  v.  Leflore 
Co.,  78  Miss.  671;  Bell  v.  Campbell,  123  Mo.  1;  Lomerson  v.  Johnston,  44 
N.'j.  Eq.  93 ;  Ingersoll  v.  Roe,  65  Barb.  346 ;  Eadie  v.  Slimmon,  26  N.  Y.  9 ; 
Haynes  v.  Rudd,  102  N.  Y.  372;  Adams  v.  Irving  Bank,  116  N.  Y.  606;  Weber 
v.  Barrett,  125  N.  Y.  18 ;  Anthony  v.  Hutchins,  10  R.  I.  165 ;  Foley  r.  Greene, 


748  DURESS    AND    UNDUE    INFLUENCE. 

615]  *In  Ellis  v.  Barker  (y)  the  plaintiff's  interest  under  a  will  was 
practically  dependent  as  to  part  of  its  value  on  his  being  accepted  as 
tenant  of  a  farm  the  testator  had  occupied  as  yearly  tenant.  One  of 
the  trustees  was  the  landlord's  steward,  and  in  order  to  induce  the 
plaintiff  to  carry  out  the  testator's  supposed  intentions  of  providing 
for  the  rest  of  the  family  he  persuaded  the  landlord  not  to  accept 
the  plaintiff  as  his  tenant  unless  he  would  make  such  an  arrange- 
ment with  the  rest  of  the  family  as  the  trustees  thought  right. 
Under  this  pressure  the  arrangement  was  executed :  it  was  practically 
a  gift,  as  there  was  no  real  question  as  to  the  rights  of  the  parties. 
Afterwards  the  deeds  by  which  it  was  made  were  set  aside  at  the  suit 
of  the  plaintiff,  and  the  trustees  (having  thus  unjustifiably  made 
themselves  partisans  as  between  their  cestuis  que  trust)  had  to  pay  the 
costs.47 

These  are  the  most  distinct  cases  we  have  met  with  of  a  transaction 
being  set  aside  on  the  ground  of  undue  influence  specifically  proved 
to  have  been  used  to  procure  the  party's  consent  to  that  particular 
transaction  (z). 

Smith  v.  Kay.  In  Smith  v.  Kay  (a)  a  young  man  completely  under 
the  influence  and  control  of  another  person  and  acting  under  that 
influence  had  been  induced  to  execute  securities  for  bills  which  he 
had  accepted  during  his  minority  without  any  independent  legal  ad- 
vice; and  the  securities  were  set  aside.  There  was  in  this  case  evidence 
of  actual  fraud ;  but  it  was  distinctly  affirmed  that  the  decision  would 
have  been  the  same  without  it,  it  being  incumbent  on  persons  claim- 
ing under  the  securities  to  give  satisfactory  evidence  of  fair  deal- 
ing (6). 

(y)    (1871)   L.  R.  7  Ch.  104,  41  L.  (a)    (1859)   7  H.  L.  C.  750. 

J.  Ch.  64.  (6)   Pp.  *761,  *770.   The  securities 

(a)   Cp.  Ormes  v.  Bea-del   (1860)  2  given  were  for  an  amount  very  much 

Giff.   166,  30  L.  J.  Ch.  1,  revd.  2  D.  exceeding    the    whole    of    the    sums 

F.  &  J.  333,  on  the  ground  that  the  really  advanced  and  the  interest  upon 

agreement  had   afterwards  been  vol-  them:  p.  *778. 
untarily  acted  upon  with  a  knowledge 
of  all  the  facts. 

14  R.  I.  618;  Coffman  v.  Bank,  5  Lea,  232;  Obert  v.  Landa,  59  Tex.  475; 
Landa  u.  Obert,  78  Tex.  33;  Gorringe  v.  Read,  23  Utah,  120;  Bank  v.  Kus- 
worm,  88  Wis.  188.  But  see  Russell  v.  Durham,  16  Ky.  L.  Rep.  516;  Phillips 
v.  Henry,  160  Pa.  24;  Loud  v.  Hamilton,  51  S.  W.  Rep.  140   (Tenn.). 

47  "  While  a  man  in  the  full  possession  of  his  faculties  and  under  no  duress 
may  give  away  his  property,  and  equity  will  not  recall  the  gift,  yet  it  looks 
with  careful  scrutiny  upon  all  transactions  between  trustee  and  beneficiary, 
and  if  it  appears  that  the  trustee  has  taken  any  advantage  of  the  situation  of 
the  beneficiary,  and  has  obtained  from  him,  even  for  only  the  benefit  of  other 
beneficiaries,  large  property  without  consideration,  it  will  refuse  to  uphold  the 
transaction  thus  accomplished."     Adams  v.  Cowen,  177  U.  S.  471,  484. 


UNDERVALUE.  749 

*This  comes  very  near  to  the  peculiar  class  of  cases  on  "  catch-  [61 6 
ing  bargains"  with  which  we  shall  deal  presently. 

Other  circumstances  from  which  undue  influence  inferred.  Undue  in- 
fluence may  be  inferred  when  the  benefit  is  such  as  the  taker  has  no 
right  to  demand  [i.e.  no  natural  or  moral  claim]  and  the  grantor 
no  rational  motive  to  give  (c). 

Undervalue.  Inadequacy  of  the  consideration,  though  in  itself  not 
decisive,  may  be  an  important  element  in  the  conclusion  arrived  at 
by  a  court  of  equity  with  respect  to  a  contract  of  sale. 

General  rule:  undervalue  has  of  itself  no  effect.  The  general  rule  of 
equity  in  this  matter  has  been  thus  stated  by  Lord  Westbury :  "  It  is 
true  that  there  is  an  equity  which  may  be  founded  upon  gross  inade- 
quacy of  consideration.  But  it  can  only  be  where  the  inadequacy  is 
such  as  to  involve  the  conclusion  that  the  party  either  did  not  under- 
stand what  he  was  about  or  was  the  victim  of  some  imposition "  (d).48 

The  established  doctrine  is  that  mere  inadequacy  of  price  is  in 
itself  of  no  more  weight  in  equity  than  at  law  (e).49  It  is  evidence 
of  fraud,  but,  standing  alone,  by  no  means  conclusive  evidence (/).50 

(c)  Purcell  v.  M'Namara  (1807)  set  aside  a  conveyance  there  must  De 
14  Ves.  91,  115.  an   inequality  so    strong,   gross,   and 

(d)  Tennent  v.  Tennents  (1870)  L.  manifest,  that  it  must  be  impossible 
R.  2  Sc,  &  D.  6,  9.  For  a  modern  to  state  it  to  a,  man  of  common  sense 
instance  of  such  a  conclusion  being  without  producing  an  exclamation  at 
actually  drawn  by  the  Court  from  a  the  inequality  of  it." 

sale  at  a  gross  undervalue,  see  Bice  (e)   Wood  v.  Abrey  (1818)   3  Mad. 

v.  Gordon   (1847)   11  Beav.  265,  270;  417,  423,  18  R.  R.  264,  268;  Peacock 

cp.   Underhill  v.  Horwood   (1804)    10  v.  Evans  (1809)    16  Ves.  512,  517,  10 

Ves.  at  p.  219;  Summers  v.  Griffiths  R.  R.  218,  222;     Stilwell  v.  Wilkins 

(1866)     35    Beav.    27,    33,    and    the  ( 1821)  Jac.  280,  282,  23  R.  R.  56. 

earlier   dictum   there   referred   to    of  (f)    Gookell   v.    Taylor    (1851)     15 

Lord  Thurlow  in  Gwynne  v.  Heaton  Beav.  105,  115,  21  L.  J.  Ch.  545. 
(1778)    1  Bro.  C.  C.  1,  9,  that  "to 

48  See  Eyre  v.  Potter,  15  How.  42,  60;  Wann  v.  Coe,  31  Fed.  Rep.  369; 
Juzan  v.  Toulmin,  9  Ala.  662,  686;  Wiest  v.  Garman,  3  Del.  Ch.  422,  442; 
4  Houst.  119;  Witherwax  v.  Riddle,  121  111.  140;  Railroad  Co.  v.  Commrs.  of 
Miami  Co.,  12  Kan.  482;  Gay  v.  Witherspoon,  13  Ky.  L.  Rep.  20;  Hyer  v 
Little,  20  N.  J.  Eq.  443,  459;  Phillips  v.  Pullen,  45  N.  J.  Eq.  5;  Dunn  v. 
Chambers,  4  Barb.  376,  379;  Parmelee  v.  Cameron,  41  N.  Y.  392;  Steele 
v.  Worthington,  2  Ohio,  182,  195 ;  Coffee  v.  Ruffin,  4  Coldw.  487,  507 ;  Mann  v. 
Russey,  101  Tenn.  596;  Stephens  v.  Ozbourne,  107  Tenn.  572;  Howard  v. 
Edgell,  17  Vt.  9,  27 ;  Jones  v.  Degge,  84  Va.  685 ;  Hanna  v.  Kasson,  26  Wash. 
568. 

49  Eyre  r.  Potter,  15  How.  42,  59,  60;  Hemingway  v.  Coleman,  49  Conn.  390; 
Chaires  v.  Bradv,  10  Fla.  133;  Exrs.  of  Wintermute  v.  Exrs.  of  Snyder,  2 
Green's  Ch.  489,' 496;  Miles  r.  Dover  Iron  Co.,  125  N.  Y.  294. 

BOHoyle  v.  Southern  Saw  Works,  105  Ga.  123;  Talbot's  Devisees  v.  Hooser, 
12  Bush,  408;  Davidson  v.  Little,  22  Pa.  245. 


750  DUHESS    AND    UNDUE    INFLUENCE. 

Even  when  coupled  with  an  incorrect  statement  of  the  consideration 
it  will  not  alone  be  enough  to  vitiate  a  sale  in  the  absence  of  any 
fiduciary  relation  between  the  parties   (g). 

617]  *But  coupled  with  other  circumstances  may  be  material  as  evidence  that 
consent,  or  freedom  of  consent,  was  wanting.  But  if  there  are  other  cir- 
cumstances tending  to  show  that  the  vendor  was  not  a  free  and 
reasonable  agent,  the  fact  of  the  sale  having  been  at  an  undervalue 
may  be  a  material  element  in  determining  the  Court  to  set  it  aside. 
Thus  it  is  when  one  member  of  a  testator's  family  conveys  his  in- 
terest in  the  estate  to  others  for  an  inadequate  consideration,  and  it 
is  doubtful  if  he  fully  understood  the  extent  of  his  rights  or  the 
effect  of  his  act  (/i).51  If  property  is  bought  at  an  inadequate  price 
from  an  uneducated  man  of  weak  mind  (i)  or  in  his  last  illness  (fc),52 
who  is  not  protected  by  independent  advice,  the  burden  of  proof  is 
on  the  purchaser  to  show  that  the  vendor  made  the  bargain  deliber- 
ately and  with  knowledge  of  all  the  circumstances.  Nay,  more,  when 
the  vendor  is  infirm  and  illiterate  and  employs  no  separate  solicitor, 
"  it  lies  on  the  purchaser  to  show  affirmatively  that  the  price  he  has 
given  is  the  value,''  and  if  he  cannot  do  this  the  sale  will  be  set  aside 
at  the  suit  of  the  vendor  (I).  In  1871  a  case  in  the  Court  of  Appeal 
was  decided  on  the  ground  that  "  if  a  solicitor  and  mortgagee  .  .  . 
obtains  a  conveyance  [of  the  mortgaged  property]  from  the  mort- 
gagor, and  the  mortgagor  is  a  man  in  humble  circumstances,  without 

{g)  Harrison  v.  Guest  (1855)   6  D.  (i)   Longmate  v.  Ledger   (1860)   2 

M.  &  G.  424,  8  H.  L.  C.  481.  Giff.  157,  163  (affirmed  on  appeal,  see 

(h)    Sturge    v.    Sturge    (1849)     12  4  D.  F.  &  J.  402). 

Beav.  229,  19  L.  J.  Ch.  17;  cp.  Dun-  (k)    Clark   v.    Malpas    (1862)     31 

nage  v.  White   (1818)   1  Swanst.  137,  Beav.  80,  4  D.  F.  t  J.  401. 

150,  18  R.  R.  33,  41.  (?)  Baker  v.  Monk  (1864)  33  Beav. 

419,  4  D.  J.  &  S.  388,  391. 

51  Million  v.  Taylor,  38  Ark.  428 ;  Thornton  V.  Ogden,  32  N.  J.  Eq.  723. 

62 "  It  may  be  stated  as  settled  law,  that  whenever  there  is  great  weak- 
ness of  mind  in  a  person  executing  a  conveyance  of  land,  arising  from  age, 
sickness,  or  any  other  cause,  though  not  amounting  to  absolute  disqualification, 
and  the  consideration  given  for  the  property  is  grossly  inadequate,  a  court 
of  equity  will,  upon  proper  and  seasonable  application  of  the  injured  party, 
or  his  representatives  or  heirs,  interfere  and  set  the  conveyance  aside."  Al- 
lore  v.  Jewell,  94  U.  S.  506,  511,  512;  Griffith  v.  Godey,  113  U.  S.  89,  95. 
And  see  Farkhurst  v.  Hosford,  21  Fed.  Rep.  827 ;  St.  Louis,  etc.,  Ry.  Co. 
i\  Phillips,  (C.  C.  A.)  66  Fed.  Rep.  35;  Moore  r.  Moore,  56  Cal.  89:  Taylor 
v.  Atwood,  47  Conn.  498;  Reed  v.  Peterson,  91  111.  288;  Perkins  r.  Scott,  23 
la.  237 ;  Harris  r.  Wamsley,  41  la.  671 ;  Clough  r.  Adams,  77  la.  17 ;  Hunter 
v.  Owens,  10  Ky.  L.  Rep.  651;  Goodrich  v.  Shaw,  72  Mich.  109;  Rielly  v. 
Brown,  87  Mich.  163 ;  Clark  r.  Lopez,  75  Miss.  932 ;  Cadwallader  v.  West,  48 
Mo.  483;  Tracy  r.  Sackett,  1  Ohio  St.  54;  Scovill  v.  Barney,  4  Oreg.  288; 
Buffalow  F.  Buffalow,  2  Dev.  &  Bat.  Eq.  241 ;  Varner  v.  Carson,  59  Tex.  303 ; 
Cole  v.  Getzinger,  96  Wis.  559. 


UNDERVALUE.  751 

any  legal  advice,  then  the  onus  of  justifying  the  transaction,  and 
showing  that  it  was  a  right  and  fair  transaction,  is  thrown  upon  the 
mortgagee "(m).53  Still  more  lately  the  poverty  and  ignorance  of 
the  seller  of  a  reversionary  interest  have  been  held  enough,  without 
infirmity  of  body  or  mind,  to  throw  the  burden  of  proof  on  the 
buyer  (n). 

Similarly  if  a  purchase  is  made  at  an  inadequate  price  *from  [618 
vendors  in  great  distress,  and  without  any  professional  assistance  but 
that  of  the  purchaser's  solicitor,  "these  circumstances  are  evidence 
that  in  this  purchase  advantage  was  taken  of  the  distress  of  the  ven- 
dors," and  the  conveyance  will  be  set  aside  (o).54 

"  Equality  between  the  contracting  parties."  It  has  even  been  said  that  to 
sustain  a  contract  of  sale  in  equity  "  a  reasonable  degree  of  equality 
between  the  contracting  parties"  is  required  (p).55  But  such  a  dic- 
tum can  be  accepted  only  to  this  extent:  that  when  there  is  a  very 
marked  inequality  between  the  parties  in  social  position  or  intelli- 
gence, or  the  transaction  arises  out  of  the  necessities  of  one  of  them 
and  is  of  such  a  nature  as  to  put  him  to  some  extent  in  the  power 
of  the  other,  the  Court  will  be  inclined  to  give  much  more  weight 
to  any  suspicious  circumstances  attending  the  formation  of  the 
contract,  and  will  be  much  more  exacting  in  its  demands  for  a  satis- 

(m)    Lord   Hatherley    C.   Frees   v.  Giff.  at  p.   163,  by  Stuart  V.C.;   cp. 

Coke   (1870-1)  L.  R.  6  Ch.  645,  649:  the  same  judge's  remarks  in  Barrett 

though   in  general   there   is   no   rule  v.   Hartley    ( 1866 )    L.   B.   2    Eq.   at 

against  a  mortgagee  buying  from  his  p.    794.      But  see   the  more   guarded 

mortgagor:    Knight  v.   Marjoribanks  statement  in  Wood  v.  Abrey,  3  Mad. 

(1849)  2  Mao.  &  G.  10;  and  see  Ford  at  p.  423,  18  B.  B.  p.  268.     "A  court 

v.  Olden   (1867)    L.  B.  3  Eq.  461,  36  of   equity   will    inquire   whether    the 

L.  J.  Ch:  651.     [See  supra,  p.   *507,  parties     really    did    meet    on    equal 

n.  93.]  terms;   and  if  it   be  found  that  the 

(n)  Fry  v.  Lane  (1888)   40  Ch.  D.  vendor     was     in     distressed    circum- 

312,  58  L.  J.  Ch.  113.  stances,     and    that     advantage    was 

(o)   Wood  v.  Abrey  (1818)  3  Mad.  taken  of  that  distress,  it  will  avoid 

417,  424,  18  B.  B.  264,  269.  the  contract." 

(p)   Longmate  v.  Ledger  (1860)   2 

53  See  Wildrick  t\  Swain,  34  N.  J.  Eq.  167. 

64  Wheeler  v.  Smith,  9  How.  55;  Lester  v.  Mahan,  25  Ala.  445;  McCor- 
mick  v.  Malin,  5  Blackf.  509,  530;  Esham  v.  Lamar,  10  B.  Mon.  43; 
Admrs.  of  Hough  v.  Hunt,  2  Ohio,  495;  McKinney  v.  Pinckard,  2  Leigh,  149. 

Where  plaintiff  had  sold  and  transferred  to  the  defendant  a  policy  of  in- 
surance of  $1,477.73,  which  the  insurance  company  was  willing  to  pay  if  the 
plaintiff  would  place  her  signature  to 'the  release  on  the  policy,  and  plaintiff, 
taking  advantage  of  her  assignee's  situation,  exacted  his  promise  to  pay  her 
$477.73  for  the  mere  inconvenience  of  writing  her  name,  it  was  held  that 
the  promise  was  not  binding,  and  that  plaintiff  was  entitled  to  recover  only 
the  fair  value  of  her  services  in  writing  her  signature  (which  was  fixed  at 
one  cent).     Capliee  v.  Kelley,  23  Kan.  474,  27  Kan.  359. 

55  See  Dundee  Works  v.  Connor,  46  N.  J.  Eq.  576. 


7o2  DURESS    AND    I  XDl'E    INFLUENCE. 

factory  explanation  of  them,  than  when  the  parties  are  on  such  a 
footing  as  to  be  presumably  of  equal  competence  to  understand  and 
protect  their  respective  interests  in  the  matter  in  hand.  The 
true  doctrine  is  well  expressed  in  the  Indian  Contract  Act,  s.  25, 
expl.  2.  "  An  agreement  to  which  the  consent  of  the  promisor  is 
freely  given  is  not  void  merely  because  the  consideration  is  inade- 
quate; but  the  inadequacy  of  the  consideration  may  be  taken  into  ac- 
count by  the  Court  in  determining  the  question  whether  the  consent 
of  the  promisor  was  freely  given."  A  sale  made  by  a  person  of  in- 
ferior station,  and  for  an  inadequate  price,  was  upheld  by  the  Court 
of  Appeal  in  Chancery,  and  ultimately  by  the  House  of  Lords,  when- 
it  appeared  by  the  evidence  that  the  vendor  had  entered  into  the 
619]  transaction  deliberately,  and  *had  deliberately  chosen  not  to 
take  independent  professional  advice  (q). 

Can  specific  performance  be  refused  on  the  ground  of  undervalue  alone? 

It"  is  not  so  clear  however  that  a  degree  of  inadequacy  of  considera- 
tion which  does  not  amount  to  evidence  of  fraud  may  not  yet  be 
a  sufficient  ground  for  refusing  specific  performance.  The  general 
rule  as  to  granting  specific  performance,  so  far  as  it  bears  on  this 
point,  is  that  the  Court  has  a  discretion  not  to  direct  a  specific  per- 
formance in  cases  where  it  would  be  highly  unreasonable  to  do  so: 
it  is  also  said  that  one  cannot  define  beforehand  what  shall  be  con- 
sidered unreasonable  (r).  On  principle  it  might  perhaps  be  doubted 
whether  it  should  ever  be  considered  unreasonable  to  make  a  man 
perform  that  which  he  has  the  present  means  of  performing,  and 
which  with  his  eyes  open  he  has  bound  himself  to  perform  by  a  con- 
tract valid  in  law.  And  it  is  said  in  Watson  v.  Marston  (r)  that  the 
Court  "  must  be  satisfied  that  the  agreement  would  not  have  been 
entered  into  if  its  true  effect  had  been  understood."  Perhaps  this 
may  be  considered  to  overrule  those  earlier  decisions  which  furnish 
authority  for  refusing  a  specific  performance  simply  on  the  ground 
of  the  apparent  hardship  of  the  contract.  The  question  now  in  hand 
is  whether  inadequacy  of  consideration,  not  being  such  as  to  make 
the  validity  of  the  contract  doubtful  (s),  is  regarded  as  making  the 

(q)  Harrison  v.  Guest  (1855)  6  D.  that  it  is  not  valid,  has  always  been 

M.   &   G.   424.,   8   H.   L.   C.   481 ;    cp.  .  held  a  sufficient  ground  for  refusing 

Rosher  v.  Williams   ( 1875 )   L.  R.  20  specific   performance.     Probably   this 

Eq.  210,  44  L.  J.  Ch.  419.  arose  from  the  habit  or  etiquette  by 

(r)   See  Watson  v.  Marston  (1853)  which  courts  of  equity,  down  to  re- 

4  D.  M.  &  G.  230,  239,  240,  and  dicta  cent    times,    never    decided    a    legal 

there  referred  to.  point  when  they  could  help  it.     Now 

(s)    Doubt   as   to   the   validity   of  that  legal  and  equitable  jurisdiction 

the  contract,  short  of  the  conclusion  are   united,   the   Court   will   consider 


UNDERVALUE.  753 

performance  of  it  highly  unreasonable  within  the  meaning  of  the 
above  rule:  and  for  this  purpose  we  assume  the  generality  of  the 
rule  not  to  be  affected  by  anything  that  was  said  in  Watson  v.  Mar- 
ston. 

♦Conflicting  authorities  collected.  In  the  absence  of  any  final  de-  [620 
cision,  it  is  still  thought  right  to  set  out  the  conflicting  authorities  and 
leave  the  matter  to  the  reader's  judgment.  The  opinion  to  which  Lord 
Eldon  at  least  inclined,  and  which  was  expressed  by  Lord  St.  Leonards 
and  Lord  Eomilly,  is,  we  believe,  generally  received  as  the  better 
one.  The  weight  of  American  authority  seems  to  be  on  the  same 
side.69 

In  favour  of  treating  inadequacy  of  Contra, 

consideration  as  a  ground  for  refus- 
ing specific  performance. 

Young  v.  Clark  (1720)  Pre.  Ch. 
538. 

Raville  v.  Saville  (1721)  1  P.  Wms.  Collier  v.  Brown  (1788)  1  Cox  428, 

745.  1  R.  R.  70. 

Underwood  v.  Hitchcow  (1749)  1 
Ves.  Sr.  279. 

Other  cases  of  the  early  part  of 
the  18th  century  cited  from  MS.  in 
Howell  v.  George  (1815)  1  Madd. 
p.  9,  note  (I) . 

Day  v.  Newman  (1788)   2  Cox  77,  Anon.  Cited  in  Mortimer  v.  Capper 

see  p.  80,  and  ad  fin.,  2  R.  R.  1,  4;        (1782)    1  Bro.  C.  C.  158    (sale  of  an 

the  question  of  damages  if  an  action  missed,  without  prejudice   to   an   ac- 

for  specific  performance  is  brought  in  tion:    Tamplin   v.   James    (1880)     15 

a  case  such  that  under  the  old  prac-  Ch.  Div.  215. 
tice   the    bill   would   have   been   dis- 

M  Although  there  are  dicta  and  cases  in  this  country  to  the  effect  that  in- 
adequacy of  consideration  not  amounting  to  evidence  of  fraud  may  be  a 
ground  for  refusing  specific  performance.  Espert  v.  Wilson,  190  111.  029 ; 
Powers  v.  Hale,  25  N.  H.  145;  Eastman  v.  Plumer,  46  N.  H.  464;  Osgood 
V.  Franklin,  2  Johns.  Ch.  1,  23 ;  Seymour  v.  Delancy,  6  Johns.  Ch.  222 : 
Knobb  r.  Lindsay,  5  Ohio,  468,  472;  Clitherall  r.  Ogilvie,  1  Dess.  250;  Casque 
V.  Small,  2  Strobh.  Eq.  72.  The  great  weight  of  authority  is  in  favor  of  the 
rule  that  inadequacy  of  consideration  when  urged  as  a  defense  against  specific 
performance  stands  upon  the  same  ground  as  when  presented  as  a  reason  for 
avoiding  a  contract.  Supra,  pp.  *616-*618;  Cathcart  v.  Robinson,  5  Pet. 
264,  271 ;  January  v.  Martin,  1  Bibb,  586 ;  Garnett  r.  Macon,  2  Marsh.  Dec. 
185,  246;  Wollums  r.  Horsley,  14  Ky.  L.  Rep.  642;  Shepherd  v.  Bevin. 
9  Gill,  32;  Young  v.  Frost,  5  Gill,  287,  313;  Railroad  Co.  r.  Babcock, 
6  Met.  346;  Lee  r.  Kirby,  104  Mass.  420;  New  England  Trust  Co.  v.  Abbott, 
162  Mass.  148,  155;  O'Brien  v.  Boland,  166  Mass.  481;  Harrison  v.  Town, 
17  Mo.  237;  Ready  v.  Noakes,  29  N.  J.  Eq.  497;  Shaddle  r.  Disbrough,  30 
N.  J.  Eq.  370,  384;  Viele  v.  Railroad  Co.,  21  Barb.  381;  Losee  v.  Morey,  57 
Barb.  561;  Seymour  v.  Delancy,  3  Cow.  445-,  revg.  S.  C,  6  Johns.  Ch.  222; 
Woodfolk  r.  Blount,  3  Havw.  147;  Fripp  v.  Fripp,  Rice's  Eq.  84;  Sarter  r. 
Gordon,  2  Hill  Ch.  121;  White  r.  Thompson,  1  Dev.  &  Bat.  Eq.  493;  Hale 
r.  Wilkinson.  21  Gratt.  75 ;  Talley  v.  Robinson's  Assignee,  22  Gratt.  888 ; 
White  v.  McGannon,  29  Gratt.  511. 
48 


."54 


DURESS    AND    UNDUE    INFLUENCE. 


the  case  was  of  a  sale  at  a  great  over- 
value (nearly  double  the  real  value), 
and  there  were  cross  suits  for  specific 
performance  and  for  rescission.  There 
was  nothing  to  show  fraud,  but  it  was 
considered  "  too  hard  a  bargain  for 
the  Court  to  assist  in."  Both  bills 
were  dismissed. 

White  v.  Damon   ( 1802 )   7  Ves.  30, 
6  R.  R.  71,  before  Lord  Rosslyn. 


In  Wedgwood  v.  Adams  (1843)  6 
Beav.  600,  G06,  specific  performance 
was  not  enforced  against  trustees  for 
sale,  when  the  contract  (as  the  Court 
inclined  to  think,  but  with  some 
doubt  whether  such  could  have  been 
the  real  intention  of  the  parties) 
bound  them  personally  to  exonerate  the 
621]  estate  from  incumbrances,  and 
it  was  doubtful  whether  these  did  not 
exceed  the  amount  of  the  purchase 
money.  But  this  was  not  like  the 
ordinary  case  of  an  agreement  be- 
tween a  purchaser  and  a  vendor  in 
his  own  right,  since  the  trustees  un- 
dertook a  personal  risk  without 
even  the  chance  of  any  personal 
advantage. 

Faine  v.  Brown  (1750)  before  Lord 
Hardwicke,  cited  2  Ves.  Sr.  307,  and 
referred  to  by  Lord  Langdale  m 
WedgiDOod  v.  Adams,  was  a  peculiar 
case:  the  hardship  was  not  in  any 
inadequacy  of  the  purchase-money, 
but  in  the  fact  that  the  vendor  would 
lose  half  of  it  by  the  condition  on 
which  he  was  entitled  to  the  prop- 
erty. 

In  Falcke  v.  Gray  (1859)  4  Drew. 
651,  29  L.  J.  Ch.  28,  there  was  some- 
thing beyond  mere  inadequacy:  the 
agreement  was  for  a  purchase  at  a 
valuation,  and  there  was  no  valua- 
tion by  a  competent  person.  V.-C. 
Kindersley  however  expressed  a  dis- 
tinct opinion  that  specific  perform- 
ance ought  to  be  refused  on  the  mere 
ground  of  inadequacy,  even  if  there 
were  none  other,  relying  chiefly  on 
White  v.  Damon  and  Day  v.  Newman. 

He  referred  also  to  Taughan  v. 
Thomas  (1783)  1  Bro.  C.  C.  556  (a 
not  very  intelligibly  reported  case, 
where  the  agreement  was  for  the  re- 
purchase of  an  annuity:  the  state- 
ment of  the  facts  raises  some  sus- 
picion of  fraud): — to  Heathrnte  v. 
Paignon  (1787)  2  Bro.  C.  C.  167 
(but  this  and  other  cases  there  cited 


allotment  to  be  made  by  Inclosure 
Commissioners ;  value  unascertained 
at  date  of  contract). 


White  V.  Damon  (1802)  7  Ves.  30, 
34,  6  R.  R.  71,  75,  on  re-hearing  be- 
fore Lord  Eldon  (but  limited  to  sales 
by  auction ) . 

Coles  v.  Trecothick  (1804)  9  Ves. 
234,  246,  7  R.  R.  167,  175,  per  Lord 
Eldon :  "  Unless  the  inadequacy  of 
price  is  such  as  shocks  the  conscience, 
and  amounts  in  itself  to  conclusive 
and  decisive  evidence  of  fraud  in  the 
transaction,  it  is  not  itself  a  suffi- 
cient ground  for  refusing  a  specific 
performance." 


Western  v.  Russell  (1814)  3  Ves.  & 
B.  187,  193,  13  R.  R.  178. 


Borell  v.  Dann   (1843)    2  Ha.  440, 
450,  per  Wigram  V.-C. 


Abbott  v.  Sworder  (1852)  4  De  G. 
&  Sm.  448,  461:  per  Lord  St.  Leon- 
ards, "  the  undervalue  must  be  such 
as  to  shock  the  conscience "  [i.e.  as 
to  be  sufficient  evidence  of  fraud:  cp. 
Lord  Eldon's  dictum  supra]. 

Sir  Edward  Fry,  writing  in  1858, 
considered  this  to  be  "  the  well  estab- 
lished principle  of  the  Court"  (On 
Specific  Performance,  §  281);  and 
this  is  substantially  repeated  in  the 
second  and  third  editions  (3rd  ed. 
1892.  p.  206)  notwithstanding  the 
case  of  Falclee  v.  Gray,  which  is  said 
to  "  break  the  recent  current  of  au- 
thorities." 

Haywood  v.  Cope  (1858)  25  Beav. 
140,  153,  27  L.  J.  Ch.  468. 


EXPECTANT    HEIRS    AND   REVERSIONERS.  755 

in  the  reporter's  notes  prove  too  much, 
for  they  are  authorities  not  for  re- 
fusing specific  performance,  but  for 
actually  setting  aside  agreements  on 
the  ground  of  undervalue  *alone,  [622 
which  we  have  seen  is  contrary  to 
the  modern  law)  : — and  to  Kien  v. 
Stukeley  (1722)  1  Bro.  P.  C.  191, 
where  specific  performance  was  re- 
fused by  the  House  of  Lords,  revers- 
ing the  decree  of  the  Exchequer  in 
equity  (but  on  another  ground,  the 
question  of  value  being  "  a  very 
doubtful  point  among  the  Lords,"  S. 
C.  Gilb.  155  nom.  Keen  v.  Stuckley) . 
The  decisions  in  Costigan  v.  Hastier 
(1804)  2  Sch.  &  L.  160,  and  Howell 
v.  George  (1815)  1  Madd.  1,  15  R.  R. 
203  (though  the  dicta  go  farther), 
show  only  that  a  man  who  has  con- 
tracted to  dispose  of  a  greater  inter- 
est than  he  has  will  not  be  compelled 
to  complete  his  title  by  purchase  in 
order  to  perform  the  contract. 

A  brief  notice  of  the  French  law  on  the  head  of  captation  (partly 
corresponding  to  our  Undue  Influence),  will  be  found  in  the  Ap- 
pendix (t). 

Exceptional  cases  of  expectant  heirs  and  reversioners.  We  have  still  to 
deal  with  an  important  exceptional  class  of  eases.  That  which  may 
have  been  a  discretionary  influence  when  the  discretion  of  courts  of 
equity  was  larger  than  it  now  is  has  in  these  cases  become  a  settled 
presumption,  so  that  fraud,  or  rather  undue  influence,  is  "  presumed 
from  the  circumstances  and  condition  of  the  parties  contracting"  (u). 
The  term'  "  fraud "  is  indeed  of  common  occurrence  both  in  the 
earlier  (u)  and  in  the  later  authorities :  but  "  fraud  does  not  here 
mean  deceit  or  circumvention;  it  means  an  unconscientious  use  of 
the  power  arising  out  of  these  circumstances  and  conditions  "  (x)  : 
*and  this  does  not  come  within  the  proper  meaning  of  fraud,  [623 
which  is  a  misrepresentation  (whether  by  untrue  assertion,  suppression 
of  truth  or  conduct)  made  with  the  intent  of  creating  a  particular 

( * )  Note  L.  or  several  species  of  fraud :  "  but  the 

(u)    Lord    Hardwicke   in   Chester-  phrase  as  to  presumption  is   almost 

field  v.  Janssen   (1750-1)   2  Ves.  Sr.  literally  repeated,  and  it  is  obvious 

at  p.    125,   classifies  this   in  general  that  these    cases   really   come   under 

terms   as  "a  third  kind  of  fraud:"  his  third  head. 

he  proceeds    (at  p.   157)    to  make  a  (x)   Per    Lord    Selborne,    Earl   of 

separate   head   of   catching  bargains,  Aylesford  v.  Morris  (1873)    L.  R.  8 

as  "  mixed  cases   compounded  of  all  Ch.  484,  491,  42  L.  J.  Ch.  546. 


756  DUEESS    AND    UNDUE    INFLUENCE. 

wrong  belief  in  the  mind  of  the  party  defrauded.  Perhaps  the  best 
word  to  use  would  be  "imposition,"  as  a  sort  of  middle  term  between 
fraud,  to  which  it  comes  nearer  in  popular  language,  and  compulsion, 
which  it  suggests  by  its  etymology. 

The  class  of  persons  in  dealing  with  whose  contracts  the  Court  of 
Chancery  has  thus  gone  beyond  its  general  principles  are  those  who 
stand,  in  the  words  of  Sir  George  Jessel,  "  in  that  peculiar  position 
of  reversioner  or  remainderman  which  is  oddly  enough  described  as 
an  expectant  heir.  This  phrase  is  use#d,  not  in  its  literal  meaning, 
but  as  including  every  one  who  has  either  a  vested  remainder  or  a 
contingent  remainder  in  a  family  property,  including  a  remainder 
in  a  portion  as  well  as  a  remainder  in  an  estate,  and  every  one  who 
has  the  hope  of  succession  to  the  property  of  an  ancestor — either 
by  reason  of  his  being  the  heir  apparent  or  presumptive,  or  by  reason 
merely  of  the  expectation  of  a  devise  or  bequest  on  account  of  the 
supposed  or  presumed  affection  of  his  ancestor  or  relative.  More 
than  this,  the  doctrine  as  to  expectant  heirs  has  been  extended  to  all 
reversioners  and  remainderman,  as  appears  from  Tottenham  v. 
Emmet  (y)  and  Earl  of  Aylesford  v.  Morris  (z).  So  that  the  doc- 
trine not  only  includes  the  class  I  have  mentioned,  who  in  some 
popular  sense  might  be  called  expectant  heirs,  but  also  all  remainder- 
men and  reversioners"  (a). 

Motives  for  exceptional  treatment.  The  Act  31  Vict.,  c.  4  modified 
the  practice  of  the  Court  of  Chancery  (which  now  continues  in  the 
Chancery  Division)  less  than  might  be  supposed:  it  is  therefore  neces- 
sary to  give  in  the.  first  place  a  connected  view  of  the  whole  doctrine 
as  it  formerly  stood. 

624]  1-  Presumption  of  fraud.  It  was  considered  that  ^persons  rais- 
ing money  on  their  expectancies  were  at  such  a  disadvantage  as  to 
be  peculiarly  exposed  to  imposition  and  fraud,  and  to  require  an  ex- 
traordinary degree  of  protection  (b)  : 

2.  Public  policy  as  to  welfare  of  families.  And  it  was  also  thought 
right  to  discourage  such  dealings  on  a  general  ground  of  public  policy, 
as  tending  to  the  ruin  of  families  (c)  and  in  most  cases  involving  "  a 

(y)    (1865)   14  W.  R.  3.  Sir  W.   Grant   in  Peacock   v.   Evans 

(z)    (1873)   L.  R.  8  Ch.  484,  42  L.  (1809)    16  Ves.  at  p.  514,   10  R.  K. 

J.  Ch.  546.  218,  220. 

(a)   Beynon  v.  Cook    (1875)   L.  R.  (c)    Twisleton  v.  Griffith   (1716)    1 

10  Ch.  391,  n.  P.  Wms.  at  p.  312;  Cole  v.  Gibbons, 

( 6 )    "A   degree   of   protection    ap-  3  P.  Wms.  at  p.  293 ;   Chesterfield  v. 

proaching  nearly  to  an  incapacity  to  Janssen  (1750-1)  2  Ves.  Sr.  at  p.  158. 
bind    themselves    by    any    contract:" 


REVERSIONARY    INTERESTS.  757 

sort  of  indirect  fraud  upon  the  heads  of  families  from  whom  these 
transactions  are  concealed"  (d). 

3.  Evasion  of  usury  laws.  Moreover  laws  against  usury  were  in  force 
at  the  time  when  courts  of  equity  began  to  give  relief  against  these 
"catching  bargains"  as  they  are  called  (e)  ;  any  transactions  which 
looked  like  an  evasion  of  those  laws  were  very  narrowly  watched,  and 
it  may  be  surmised  that  when  they  could  not  be  brought  within  the 
scope  of  the  statutes  the  Courts  felt  justified  in  being  astute  to  defeat 
them  on  any  other  grounds  that  could  be  discovered  (f). 

Extension  of  the  doctrine.  The  doctrine  which  was  at  first  intro- 
duced for  the  protection  of  expectant  heirs  was  in  course  of  time  ex- 
tended to  all  dealings  whatever  with  reversionary  interests.57  In  its 
finally  developed  form  it  had  two  branches : — 

*1.  As  to  reversionary  interests,  whether  the  reversioner  were  [625 
also  an  expectant  heir  or  not : 

a.  The  rule  of  law  that  the  vendor  might  avoid  the  sale  for  under- 
value alone; 

(d)  Per  Lord  Selborne,  Earl  of  But  rn  Ardglasse  v.  Musehamp  (1684) 
Aylesford  v.  Morris  (1873)  L.  R.  8  1  Vern.  238,  it  is  said  that  many 
Ch.  484,  492,  42  L.  J.  Ch.  546;  Ches-  precedents  from  Lord  Bacon's,  Lord 
terfield  v.  Janssen  (1750-1)  2  Ves.  Ellesmere's,  and  Lord  Coventry's 
Sr.  124,  157.  times  were  produced. 

(e)  In  Wiseman  v.  Beake,  2  Vern.  (f)  The  reports  of  the  cases  on 
121,  it  appears  from  the  statement  of  this  head  anterior  to  Chesterfield  v. 
the  facts  that  twenty  years  or  there-  Janssen  are  unfortunately  so  meagre 
abouts  after  the  Restoration  this  that  it  is  difficult  to  ascertain  whether 
jurisdiction  was  regarded  as  a  nov-  they  proceeded  on  any  uniform  prin- 
elty:  for  the  defendant's  testator  ciple.  But  the  motives  above  alleged 
"  understanding  that  the  Chancery  seem  on  the  whole  to  have  been  those 
began  to  relieve  against  such  bar-  which  determined  the  policy  of  the 
gains "  took  certain  steps  to  make  Court.  On  the  gradual  extension  of 
himself  safe,  but  without  success,  the  the  remedy  cp.  the  remarks  of  Bur- 
Court  pronouncing  them  "  a  contriv-  nett  J.  in  Chesterfield  v.  Janssen 
ance  only  to  double  hatch  the  cheat."  (1750-1)  2  Ves.  Sr.  at  p.  145. 

67  The  English  doctrine,  in  so  far  as  it  relates  to  vested  interests,  has  been 
denied  to  be  in  force  in  this  country.  Cribbins  v.  Markwood,  13  Gratt.  495; 
Mays  v.  Carrington,  19  Gratt.  74;  Davidson  v.  Little,  22  Pa.  245,  252. 

"A  court  of  equity  will  not,  in  the  absence  of  fraud  or  undue  influence,  in- 
terfere to  set  aside  a  sale  by  a  legatee  of  a  legacy  of  a  fixed  and  certain  sum 
of  money,  payable  at  a  fixed  period  after  the  death  of  the  testator,  with  in- 
terest, although  such  sale  was  made  some  years  before  the  legacy  was  due, 
and  for  an  inadequate  consideration;  and  although  the  legatee  was  at  the 
time  of  the  sale  a.'  reckless,  dissipated,  improvident,  and  weak-minded  young 
man.'  Such  a  sale  is  not  within  the  equity  rule,  which  enables  the  court  to 
relieve  expectant  heirs,  remaindermen,  and  reversioners,  from  disadvantageous 
bargains,  where  both  the  amount  or  value  of  the  interest  sold,  and  the  time 
of  its  enjoyment  are  uncertain."  Parmelee  v.  Cameron,  41  N.  Y.  392.  Cp. 
Butler  v.  Duncan,  47  Mich.  94,  stated  infra,  p.  761,  n.  59. 


758  DURESS    AND    UNDUE    INFLUENCE. 

b.  The  rule  of  evidence  that  the  burden  of  proof  was  on  the  pur- 
chaser to  show  that  he  gave  the  full  value. 

It  is  this  part  of  the  doctrine  that  is  changed  by  the  Act  31  Vict. 
c.  4. 

2.  As  to  "  catching  bargains  "  with  expectant  heirs  and  remainder- 
men or  reversioners  in  similar  circumstances,  i.e.  bargains  made  in 
substance  on  the  credit  of  their  expectations,  whether  the  property 
in  expectancy  or  reversion  be  ostensibly  the  subject-matter  of  the 
transaction  or  not  (g)  : 

The  rule  of  evidence  that  the  burden  of  proof  lies  on  the  other 
contracting  party  to  show  that  the  transaction  was  a  fair  one.  We 
use  the  present  tense,  for  neither  the  last-mentioned  Act  nor  the 
repeal  of  the  usury  laws,  as  we  shall  see  presently,  has  made  any 
change  in  this  respect. 

Former  doctrine  as  to  sales  of  reversionary  interests.  The  part  of  the 
doctrine  which  is  abrogated  was  intimately  connected  both  in  prin- 
ciple and  in  practice  with  that  which  remains;  and  though  it  seems 
no  longer  necessary  to  go  through  the  authorities  in  detail,  it  may 
still  be  advisable  to  give  some  account  of  the  manner  in  which  it  was 
applied  (h). 

The  general  rule  established  by  the  cases  was  that  the  purchaser 
was  bound  to  give  the  fair  market  price,  and  to  preserve  abundant 
evidence  of  the  price  having  been  adequate,  however  difficult  it  might 
be  to  ascertain  what  the  true  value  was.  It  was  applied  to  rever- 
sionary interests  of  every  kind,  and  the  vendor  was  none  the  less  en- 
titled to  the  benefit  of  it  if  he  had  acted  with  full  deliberation.  The 
presumption  originally  thought  to  arise  from  transactions  of  this  kind 
had  in  fact  become  transformed  into  *an  inflexible  rule  of  law,  [626 
which,  consistently  carried  out,  made  it  well-nigh  impossible  to  deal 
with  reversionary  interests  at  all.  The  modern  cases  almost  look 
as  if  the  Court,  finding  it  too  late  to  shake  off  the  doctrine,  had  sought 
to  call  the  attention  of  the  legislature  to  its  inconvenience  by  ex- 
treme instances.  Sales  were  set  aside  after  the  lapse  of  such  a 
length  of  time  as  19  years,  and  even  40  years  (i).  A  sub-purchaser 
who  bought  at  a  considerably  advanced  price  was  held  by  this  alone 
to  have  notice  of  the  first  sale  having  been  at  an  undervalue  (&). 

.  (g)    Earl    of   Aylesford   v.    Morris  (i)    St.  A.Tban  v.   Harding    (1859) 

(1873)  L.  R.  8  Ch.  at  p.  497.  27    Beav.    11;    Salter    v.    Bradshaw 

(h)  A  digest  of  the  cases  was  given  (1858)   26  Beav.  161. 

in  the  first  two  editions  (p.  550,  2nd  (h)   Nesiitt  v.  Berridge  (1363)   32 

ed.).  Beav.  280. 


CATCHING    BARGAINS.  759 

In  one  case  where  the  price  paid  was  2001.,  and  the  true  value  as 
estimated  by  the  Court  2381.,  the  sale  was  set  aside  on  the  ground 
of  this  undervalue,  though  the  question  was  only  incidentally  raisSd 
and  the  plaintiff's  case  failed  on  all  other  points  (I). 

Act  to  amend  the  law  relating  to  sales  of  reversions,  31  Vict.  c.  4. 
Finally  Parliament  found  it  necessary  to  interfere,  and  in  1867, 
by  the  "  Act  to  amend  the  law  relating  to  sales  of  reversions,"  31  Vict. 
c.  4,  it  was  enacted  (s.  1)  that  no  purchase  (defined  by  s.  2  to  include 
every  contract,  &c,  by  which  a  beneficial  interest  in  property  may 
be  acquired),  made  bona  fide  and  without  fraud  or  unfair  dealing  of 
.any  reversionary  interest  in  real  or  personal  estate,  should  after 
January  1,  1868  (s.  3),  be  opened  or  set  aside  merely  on  the  ground 
of  undervalue.  The  Act  is  carefully  limited  to  its  special  object  of 
putting  an  end  to  the  arbitrary  rule  of  equity  which  was  an  impedi- 
ment to  fair  and  reasonable  as  well  as  to  unconscionable  bargains. 
It  leaves  undervalue  still  a  material  element  in  cases  in  which  it 
is  not  the  sole  equitable  ground  for  relief  (m). 

General  rules  of  equity  as  to  "  catching  bargains "  unaffected.        It  had 

already  been  decided  (n)  that  the  repeal  of  the  usury  laws  (0)  did 
not  alter  the  general  rules  of  the  Court  *of  Chancery  as  to  deal-  [627 
ings  with  expectant  heirs.  This  decision  was  followed  in  Miller  v. 
Cook  (p),  and  adhered  to  in  Tyler  v.  Yates  (q),  and  lastly  in  Earl 
of  Aylesford  v.  Morris  (r)  and  Beynon  v.  Cook  (s),  and  in  the  two 
latter  cases  it  has  been  clearly  laid  down  that  the  rules  are  in  like 

(l)    Jones   v.   Ricketts    (1862)    31  the   subject.     It   should   be   observed 

Beav.  130,  31  L.  J.  Ch.  753.  that  in   Tyler   v.    Yates   a   principal 

(m)    Earl  of  Aylesford  v.   Morris  and    surety    made    themselves    liable 

( 1873 )    Li.  R.   8  Ch.  at  p.  490.     See  for  a  bill  which  the  principal  had  ac- 

also  O'Rorke  v.  Bolingbroke  (1877')  2  cepted  during-  his  minority,  without 

App.  Ca.  814;  Fry  v.  Lane  (1888)  40  knowing  that  there  was  no  existing 

Ch.  D.  312,  58  L.  J.  Ch.  113.  legal  liability  on  the  bill,  and  all  the 

(n)    Croft  v.  Graham    (1863)    2  D.  subsequent   transactions   were   bound 

J.   &  S.    155.  up  with  this:  and  the  case  was  rested 

(0)    17  &  18  Vict.  c.  90.     But  be-  on  this  ground  in  the  Court  of  Ap- 

fore   this   complete   repeal   exceptions  peal     (p.    671).      Cp.    on    this    point 

had  been  made  from  the  usury  laws  Coward  v.  Hughes   (1855)    1  K.  &  J. 

in  favour  of  certain  bills  of  exchange  443,  where,  a  widow  who  during  her 

and  loans  exceeding  10Z.  not  secured  husband's  life  had  joined  as   surety 

on  land:  3  &  4  Will.  4,  c.  98,  s.  7,  2  in    his    promissory   note    executed    a 

&  3  Vict.  c.  37,  s.   1,  and  comments  new  note  under  the   impression   that 

thereon  in  Lane  v.  Eorlock   (1855)   5  she  was   liable   on   the   old   one,   and 

H.  L.  C.  480,  25  L.  J.  Ch.  253.  without  any  new  consideration,   and 

(p)     (1870)    L.  R.   10  Eq.   641,  40  the  note  was  set  aside;   see  Houthall 

L  J   Ch    11  v.  Rigg  (1851)  and  Forman  v.  Wright 

'  (?)    (1871)  L.  R.  11  Eq.  265,  L.  R.  (1851)    11  C.  B.  481,  20  L.  J.  C.  P. 

6  Ch.  665,  40  L.  J.  Ch.  768.  145. 

(r)  L.  R.  8  Ch.  484;  this  may  now  (s)    (1875)   10  Ch.  389. 
be   regarded  as  the   leading   case  on 


760  DURESS    AND    UNDUE    INFLUENCE. 

manner  unaffected  by  the  change  in  the  law  concerning  sales  of 
reversions.  And  this  was  confirmed  by  all  the  opinions  delivered  in 
Q'Rorke  v.  Bolingbroke  (t)  in  the  House  of  Lords,  though  the  par- 
ticular transaction  in  dispute  was  upheld. 

The  effect  of  these  rules  is  not  to  lay  down  any  proposition  of 
substantive  law,  but  to  make  an  exception  from  the  ordinary  rules  of 
evidence  by  throwing  upon  the  party  claiming  under  a  contract 
the  burden  of  proving  not  merely  that  the  essential  requisites  of  a 
contract,  including  the  other  party's  consent,  existed,  but  also  that 
the  consent  was  perfectly  free. 

Conditions  throwing  burden  of  proof  on  lender.  The  question  is  there- 
fore, what  are  "  the  conditions  which  throw  the  burden  of  justifying 
the  righteousness  of  the  bargain  upon  the  party  who  claims  the 
benefit  of  it  "  («).  Xow  these  conditions  have  never  been  fixed  by 
any  positive  authority.  We  have  seen  that  the  Court  of  Chancery  has 
refused  to  define  fraud,  or  to  limit  by  any  enumeration  the  standing 
628]  relations  from  which  influence  will  be  presumed.  In  like  man- 
ner there  is  no  definition  to  be  found  of  what  is  to  be  understood 
by  a  "  catching  bargain."  This  being  so  we  can  only  observe  the 
conditions  which  have  in  fact  been  generally  present  in  the  bargains 
against  which  relief  has  been  given  in  the  exercise  of  this  jurisdic- 
tion.    These  are : — 

1.  A  loan  in  which  the  borrower  is  a  person  having  little  or  no 

property  immediately  available,  and  is  trusted  in  substance  on  the 

credit  of  his  expectations. 

Obs.  It  is  immaterial  whether  there  is  or  not  any  actual  dealing  with  the 
estate  in  remainder  or  expression  of  the  contingency  on  which  the  fund  for 
payment  of  the  principal  advanced  substantially  depends.  Earl  of  Aylesford 
v.  Morris  (1873)  L.  R.  8  Ch.  at  p.  497.  It  is  also  immaterial  whether  any 
particular  property  is  looked  to  for  ultimate  payment.  A  general  expecta- 
tion derived  from  the  position  in  society  of  the  borrower's  family,  the  lender 
intending  to  trade  on  their  probable  fear  of  exposure,  may  have  the  same 
effect.  Nevill  v.  Snelling  (1880)  15  Ch.  D.  679,  702,  49  L.  J.  Ch.  777 
(Denman   J.). 

2.  Terms  prima  facie  oppressive  and  extortionate   (i.e.  such  that 

a  man  of  ordinary  sense  and  judgment  cannot  be  supposed  likely  to 

give  his  free  consent  to  them). 

06s.  An  excessive  rate  of  interest  is  in  itself  nothing  more  than  a  dispro- 
portionately large  consideration  given  by  the  borrower  for  the  loan :  and  it 
is  not  sufficient,  standing  alone,  to  invalidate  a  contract  in  equity:  Webster 
v.  Cook  ( 1867 )  L.  R.  2  Ch.  542,  where  a  loan  at  60  per  cent,  per  annum 
was  upheld.     Stuart  V.-C.  disapproved  of  the  case  in  Tyler  v.  Yates   (1871) 

(t)    (1877)  2  App.  Ca.  814.  («)    Earl   of   Aylesford   v.   Morris 

(1873)  L.  R.  8  Ch.  at  p.  492. 


CATCHING    BARGAINS.  761 

L.  R.   11  Eq.  at  p.  276,  but  on  another  point.     And  see  Parker  v.  Butcher 
(1867)   L.  R.  3  Eq.  762,  767,  38  L.  J.  Ch.  552.68 

3.  A  considerable  excess  in  the  nominal  amount  of  the  sums  ad- 
vanced over  the  amount  actually  received  by  the  borrower.59 

06s.  This  appears  in  all  the  recent  eases  in  which  relief  has  been  given : 
deductions  being  made  on  every  advance,  according  to  the  common  practice 
of  professed  money-lenders,  under  the  name  of  discount,  commission,  and  the 
like.  The  result  is  that  the  rate  of  interest  appearing  to  be  taken  does  not 
show  anything  like  the  terms  on  which  the  loan  is  in  truth  *made:  [629 
and  this  may  be  considered  evidence  of  fraud  so  far  as  it  argues  a  desire 
on  the  part  of  the  lender  to  gloze  over  the  real  terms  of  the  bargain.  A 
jury  could,  perhaps,  not  be  directed  so  to  consider  it  in  a  trial  where  fraud 
was  distinctly  in  issue;  though  no  doubt  such  circumstances,  or  even  an 
exorbitant  rate  of  interest,  would  be  made  matter  of  observation. 

4.  The  absence   of  any  real  bargaining  between  the  parties,   or 

of  any  inquiry  by  the  lender  into  the  exact  nature  or  value  of  the 

borrower's  expectations. 

Obs.  These  circumstances  are  relied  on  in  Earl  of  Aylesford  v.  Morris 
(1873)  L.  R.  8  Ch.  at  p.  496,  as  increasing  the  difficulty  of  upholding  the 
transaction:  cp.  Nevill  v.  Snelling  (1880)  15  Ch.  D.  at  pp.  702-3.  This- 
again  is  the  usual  practice  of  the  money-lenders  who  do  this  kind  of  busi- 
ness. Their  terms  are  calculated  to  cover  the  risk  of  there  being  no  security 
at  all ;  moreover  the  borrower  often  wishes  the  lender  not  to  make  any 
inquiries  which  might  end  in  the  matter  coming  to  the  knowledge  of  the 
ancestor  or  other  person  from  whom  the  expectations  are  derived.  The 
concealment  of  the  transaction  from  the  ancestor  was  held  by  Lord  Brougham 
in  King  v.  Hamlet  ( 1835)  2  M.  &  K.  456,  39  R.  R.  24,  237,  to  be  an  indis- 
pensable condition  of  equitable  relief;  but  this  opinion  is  not  now  accepted: 
Earl  of  Aylesford  v.  Morris  (1873  L.  R.  8  Ch.  at  p.  491.  The  decision  in 
King  v.  Hamlet  (affirmed  in  the  House  of  Lords,  but  without  giving  any 
reasons,  3  CI.  &  F.  218,  39  R.  R.  24)  can  be  supported  on  the  ground  that  the 
party  seeking  relief  had  himself  acted  on  the  contract  he  impeached  so  as  to 
make  restitution  impossible. 

It  seems  safe  to  assert  that  in  any  case  where  these  conditions 
concur,  the  burden  of  proof  is  thrown  on  the  lender  to  show  that  the 

58  See  Brown  v.  Hall,  14  R.  I.  249,  where  relief  was  given  in  respect  of  a 
loan  secured  by  mortgage,  and  bearing  interest  at  the  rate  of  5  per  cent. 
per  month,  in  advance,  the  court  finding,  however,  that  the  relation  of  the 
parties  was  such  that  the  lender  had  upon  him  the  duty  of  protecting  the 
borrower.     See  also  Gottlieb  v.  Thatcher,  34  Fed.  Rep.  435. 

59  "A  dissolute  spendthrift  of  twenty-five  years  gave  a  mortgage  on  all  the 
real  estate  to  which  he  was  entitled  as  his  father's  heir,  to  a,  man  who  knew 
all  about  the  circumstances,  to  secure  the  payment  of  an  alleged  loan  of 
$5,000,  for  which  he  gave  his  note,  and  which  was  made  up  of  the  following 
items:  $1,000  in  cash;  a  former  due  bill  for  $47,  given  up;  $199,  interest 
credited  on  a  previous  mortgage;  $110.35,  paid  as  premium  upon  an  insurance 
policy  assigned  to  the  mortgagee;  $556.75,  withheld  by  the  latter  to  pay  an- 
nual premiums  thereafter  as  they  shall  fall  due;  and  $3,200,  as  the  purchase 
price  of  160  acres  of  land  worth  but  little  more  than  $1,000,  which  the 
mortgagee  required  him  to  buy  as  a  condition  of  lending  him  any  money, 
though  he  had  no  use  for  the  land  and  knew  nothing  about  its  value.  Held, 
an  unconscionable  transaction,  which  a  court  of  chancery  could  not  sustain." 
Butler  v.  Duncan,  47  Mich.  94. 


762  DURESS    AND    UNDUE    INFLUENCE. 

transaction  was  a  fair  one :  it  seems  equally  unsafe  to  assert  that  they 
must  all  concur,  or  that  any  one  of  them  (except  perhaps  the  first) 
is  indispensable. 

Can  lender  so  situated  ever  exonerate  himself?  It  may  then  be  asked, 
By  what  sort  of  evidence  is  the  lender  to  satisfy  the  Court  that  the 
borrower  was  not  imposed  on  ?  As  there  is  no  reported  case  in  which 
it  was  considered  that  the  burden  of  proof  lay  upon  the  lender,  and 
yet  he  did  so  satisfy  the  Court,  it  is  impossible  to  give  any  certain, 
answer  to  this  question.  It  is  evidently  most  improbable  that  in  any 
case  where  the  above-mentioned  conditions  are  present,  any  satisfac- 
630]  tory  evidence  should  be  *forthcoming  to  justify  the  lender  (x). 
Practically  the  question  is  whether  in  the  opinion  of  the  Court 
the  transaction  was  a  hard  bargain  (y) — that  is,  not  merely  a  bargain 
in  which  the  consideration  is  inadequate,  but  an  unconscionable  bar- 
gain where  one  party  takes  an  unfair  advantage  of  the  other  (z). 
This  jurisdiction  is  of  considerable  importance  in  British  India,  and 
especially  in  the  North-West  Provinces,  which  have  furnished  an 
interesting  line  of  cases  (a). 

An  account  stated  for  the  purpose  of  a  contract  of  this  description 
is  of  no  more  validity  than  the  contract  itself,  and  a  recital  of  it 
in  the  security  does  not  preclude  the  borrower  from  re-opening  the 
account  even  as  against  purchasers  or  sub-mortgagees  of  the  original 
lender  who  have  notice  of  the  general  character  of  the  transaction. 
For  such  notice  is  equivalent  to  notice  of  all  the  legal  consequences  (&). 

Terms  on  which  relief  is  given.  The  borrower  who  seeks  relief  against 
a  contract  of  this  description  must  of  course  repay  whatever  sums 
have  been  actually  advanced,  with  reasonable  interest  (according  to 

(x)  "  No  attempt  has  been  made  to  (a)    See  Kunwar  Ram  Lai  v.  Nil 

show    by    any    independent    evidence  Kanth,    L.    R.    20    Ind.    App.     112; 

(if  such  a  thing  could  be  conceived  Rajah  Mokham  Singh  v.  Rajah  Rup 

possible)     that    the    terms    thus    im-  Singh,  ib.   127,  and  cp.  note    (e),  p. 

posed  on  the  plaintiff  were  fair  and  345,  above,   and  the  present  writer's 

reasonable,"  L.  R.  8  Ch.  496.  Law  of  Fraud,  &c,  in  British  India 

(y)   See  the  judgment  of  the  M.  R.  (Tagore   Law  Lectures,   1893-4)    pp. 

Beynon  v.  Cook  ( 1875 )   L.  R.  10  Ch.  77—79. 

39i,  «.,  and  Nevill  v.  Snelling  (1880)  (6)   Tottenham,  v.  Green  (1863)  32 

15  Ch.  D.  at  p.  703.  L.  J.  Ch.  201 :   a  case  decided  under 

(a)  Per  Jessel   M.R.   in   Middleton  the  old  rule  as  to  dealings  with  re- 

v.  Brown  (C.  A.)    (1878)  47  L.  J.  Ch.  versionary  interests,   but  the   princi- 

411 ;  Nevill  v.  Snelling  (1880)  15  Ch.  pies  seem  applicable  in  all  cases  where 

D.   679,  49  L.  J.  Ch.  777,  where  the  the  burden   of   proof   is  still  on  the 

lender  systematically  took  advantage  lender, 
of  a  mistaken  over-payment  of  inter- 
est by  the  borrower. 


CATCHING    BARGAINS.  763 

the  usual  practice  of  the  Court,  5  per  cent.),  and  the  relief  is  granted 
only  on  those  terms.  Moreover  it  is  held  not  unjust  that  he  should 
obtain  it  at  his  own  expense,  since  he  calls  in  the  assistance  of  the 
Court  to  undo  the  con*sequences  of  his  own  folly  (c)  :  and  ac-  [631 
cordingly  the  general  rule  is  to  give  no  costs  on  either  side  (d). 

As  to  the  lender  suing  on  the  contract.  The  rule  of  evidence  casting 
a  special  burden  of  proof  on  the  lender  being-  peculiar  to  equity, 
there  was  generally  no  defence  at  law  to  an  action  brought  by  him  to 
enforce  a  contract  of  this  kind.  But  since  the  rule  of  evidence  es- 
tablished in  equity  now  prevails  in  every  branch  of  the  High  Court, 
it  seems  that  when  a  lender  of  money  sues  on  a  special  contract, 
whether  the  contract  be  embodied  in  a  negotiable  instrument  or  not, 
and  the  borrower  proves  facts  which  bring  the  contract  within  the 
description  of  a  "  catching  bargain "  as  understood  by  Courts  of 
equity,  the  lender  must  prove  the  reasonableness  of  the  bargain  (e)  ; 
and  if  he  fails  to  do  so,  he  cannot  recover  on  the  special  contract,  but 
can  recover  his  principal  and  reasonable  interest  as  on  a  common 
ccunt  for  money  lent.  It  must  be  noticed  that  the  importance  of  this 
class  of  cases  is  much  diminished,  though  the  law  is  not  affected,  by 
the  Infants'  Belief  Act,  1874,  which  makes  loans  of  money  to  in- 
fants absolutely  void  and  forbids  any  action  to  be  brought  on  a  prom- 
ise to  pay  debts  contracted  during  infancy.     See  p.  *62,  supra. 

Money-lenders  Act,  1900.  The  Money-lenders  Act,  1900  (63  &  64 
Vict.  c.  51),  imposes  special  burdens  on  professional  money-lenders 
by  way  of  registration  and  otherwise,  but  does  not  *seem  to  [632 
enlarge  the  equitable  jurisdiction  of  the  Court :  for  sect.  1  makes  it  an 
express  condition  that  the  transaction  re-opened  must  in  some  way 

(c)  Earl  of  Aylesford  v.  Morris  misconduct  on  his  part:  Tottenham 
(1873)  L.  R.  8  Ch.  at  p.  499.  v.  Green  ( 1863)  32  L.  J.  Ch.  201,  206. 

(d)  In  the  cases  of  sales  of  rever-  In  Nevill  v.  Snelling  (1880),  note  (z) 
sions  under  the  former  law  On  that  last  page',  the  plaintiff  having  offered 
head  the  practice  was  for  some  time  before  action  brought  to  repay  the 
to  treat  the  suit  as  a  redemption  suit,  sums  actually  advanced  with  interest 
and  give  the  purchaser  his  costs  as  a  at  5  per  cent.,  the  defendant  was 
mortgagee :  but  the  later  rule  was  to  ordered  to  pay  the  costs :  15  Ch.  D.  at 
give  no  costs  on  either  side,  except  p.  705;  ep.  Beynon  v.  Cook  (1875)  L. 
that  the  plaintiff  had  to  bear  such  as  E.  10  Ch.  at  p.  393,  in  judgment  of 
were    occasioned    by    any    unfounded  Jessel  M.R. 

charges  of  actual  fraud:  Edwards  v.  (e)  Qu.  is  this  a  question  for  the 
Burt  (1852)  2  D.  M.  &  G.  at  p.  65:  jury  or  for  the  Court?  Prima  facie 
Bromley  v.  Smith  (1859)  26  Beav.  at  it  should  be  a  question  of  fact:  but 
p.  676,  and  costs  might  be  given  there  are  some  analogies  (e.g.  the 
against  the  defendant  as  to  any  cases  on  restraint  of  trade)  for  treat- 
transaction  in  which  there  had  been  ing  it  as  a  question  of  law. 


764  DURESS    AND    UNDUE    INFLUENCE. 

be  "  such  that  a  Court  of  equity  would  give  relief,"  and  a  case  where 
a  Court  of  equity  would  not  do  so  is  not  within  the  Act  (f). 

Application  of  principles  to  sales  of  reversionary  interests  by  persons  in 
dependent  position.  The  same  principles  apply,  so  far  as  they  are  appli- 
cable to  a  transaction  of  sale  as  distinguished  from  loan,  to  the  sale 
of  reversionary  interests  by  persons  who  are  not  in  an  independent 
position,  as  when  the  sale  is  made  by  a  man  only  just  of  age  in  pur- 
suance of  terms  settled  while  he  was  still  an  infant.  Here  the  burden 
is  on  the  purchaser  to  show  the  fairness  of  the  transaction.  He  is  not 
bound  to  show  that  the  price  given  was  absolutely  adequate;  but  he  is 
bound,  notwithstanding  the  Act  of  1867  (31  Vict.  c.  4,  p.  *623, 
above),  to  show  that  it  was  such  as,  upon  the  facts  known  to  him  at 
the  time,  he  might  have  reasonably  thought  adequate.  Moreover  he 
ought  to  see,  where  practicable,  that  the  seller  has  independent  legal 
advice.  These  rules  seem  to  be  established  by  O'Rorke  v.  Boling- 
broke  (g),  which  is  remarkable  as  an  almost  singular  instance  of  an 
impeached  transaction  with  an  "  expectant  heir  "  being  upheld.  There 
a  father  and  son  negotiated  with  a  purchaser  for  the  sale  of  the  son's 
reversionary  interest  expectant  on  the  death  of  the  father.  The  sale 
was  completed  three  weeks  after  the  son  came  of  age.  The  price  was 
agreed  to  after  some  bargaining;  it  was  founded  on  a  statement  of 
value  furnished  by  a  third  person,  and  would  have  been  adequate  if 
the  father's  life  had  been  a  good  one.  The  purchaser  did  not  know 
and  had  no  reason  to  believe  anything  to  the  contrary,  but  it  was  in 
fact  a  bad  life.  The  young  man  took  no  independent  advice, 
being  "penniless,  and  except  for  his  father  friendless"  (h).  The 
633]  *father  died  within  three  months  after  the  sale.  Four  years 
later  the  son  sued  to  have  the  whole  transaction  set  aside,  but  failed  in 
the  House  of  Lords  after  succeeding  in  the  Court  of  Appeal  in  Ireland. 
Ihe  majority  of  the  Lords  (i)  held  that  the  burden  of  proof  was  in- 
deed on  the  buyer,  but  that  he  had  satisfied  it.  In  some  cases  un- 
conscionable bargains  of  this  kind  are  complicated  with  champerty. 
Where  this  is  so  the  transaction  cannot,  of  course,  be  upheld  (fc). 

(f)  Wilton  &  Co.  v.  Osborn  [1901]  (h)  Lord  Blackburn,  2  App.  Ca.  at 
2  K.  B.  110,  70  L.  J.  K.  B.  507.     The       p.  837. 

utility  of  the  Act  seems  doubtful.  (i)    Lord   Blackburn,    Lord   O'Ha- 

(g)  (1877)  2  App.  Ca.  814.  Cp.  gan,  and  Lord  Gordon,  diss.  Lord 
Fry  v.  Lane  (1888)  40  Ch.  D.  312,  58       Hatherley. 

L.  J.   Ch.   113,  where  the  seller  was  (h)  Rees  v.  De  Bernardy  [1896]  2 

poor    and    ignorant,    and    the    same       Ch.  437,  65  L.  J.  Ch.  656. 
solicitor   purported   to   act   for   both 
parties. 


SURPRISE.  765 

"  Surprise  "  and  "  improvidence."  Another  alleged  ground  of  equitable 
relief  against  contracts  founded  on  the  notion  of  an  inequality  be- 
tween the  contracting  parties,  has  been  "  surprise,"  or  "  surprise  and 
improvidence."  But  this  seems  to  be  only  a  way  of  describing  evi- 
dence of  fraud  or  of  a  relation  of  dependence  between  the  parties. 

Evans  v.  Llewellin.  The  case  of  Evans  v.  Llewellin  (I)  may  be  taken 
as  the  typical  instance.  The  plaintiff  was  a  person  of  inferior  sta- 
tion and  education  who  acquired  by  descent  a  title  in  fee  simple  to 
a  share  in  land  in  which  the  defendant  had  a  limited  interest.  His 
title  was  first  communicated  to  him  by  the  defendant,  who  represented 
to  him  (as  the  fact  appears  to  have  been)  that  the  circumstances  of 
the  family  created  a  moral  obligation  in  the  plaintiff  not  to  insist  on 
his  strict  rights,  and  offered  to  purchase  his  interest  for  a  sub- 
stantial though  not  adequate  consideration.  The  defendant  sug- 
gested to  the  plaintiff  to  consult  his  friends  in  the  matter,  which  how- 
ever he  did  not  do.  Three  days  intervened  between  the  first  inter- 
view and  the  conclusion  of  the  business  by  the  acceptance  of  the  de- 
fendant's offer.  It  was  considered  that  the  plaintiff  was  under  the 
circumstances  not  a  free  agent  and  not  equal  to  protecting  himself, 
and  was  taken  by  surprise,  and  the  sale  was  set  aside  (m).  The  case 
seems  somewhat  anomalous,  but  it  has  *been  suggested  by  very  [634 
high  authority  that  it  would  still  be  followed  in  setting  aside  a  con- 
tract as  "improvident  and  hastily  carried  into  execution"  (n),  and 
it  has  been  distinctly  approved  in  the  Court  of  Appeal  in  Chancery  (o). 

Whether  "  surprise,"  &c.  is  any  substantive  cause  for  avoiding  contracts. 
It  is  submitted,  however,  that  there  is  no  intelligible  reason  for  treat- 
ing surprise  or  improvidence  as  a  substantive  cause  for  setting  aside 
contracts,  much  less  for  attempting  to  give  these  words  a  technical 
signification.  Both  terms  are  in  fact  merely  negative  and  relative. 
Surprise  is  nothing  else  than  the  want  of  mature  deliberation:  im- 
providence is  nothing  else  than  the  want  of  that  degree  of  vigilance 

(I)  See  following  note.  (ra)    Lord  St.  Leonards  in   Cureon 

(m)     (1787)    2   Bro.   C.  C.    150,   1  v.  Belworthy  (1852)   3  H.  L.  C.  742; 

Cox,  333    (1   R.  R-  49),  a  fuller  re-  there  the  appellant  relied  on  express 

port,    which    is    here    followed;    the  charges    of    fraud,    which    were    not 

other  if  correct  would  reduce  it  to  a  made    out:    but    Lord    St.    Leonards 

plain  case  of  fraud  or  at  all  events  thought  he  might  possibly  have  suc- 

misrepresentation.      In    Haygarth   v.  ceeded  if  he  had  rested  his  case  on  the 

Wearing  (1871)   L.  R.  12  Eq.  320,  40  ground  suggested. 
L    J.  Ch.  577,  which  to  some  extent  (o)    Per  Turner  L.J.   in  Baker  v. 

resembled  this,  the  ground  of  the'de-  Monk  (1864)  4  D.  J.  &  S.  at  p.  392. 
cision  was  a  positive  misrepresenta- 
tion as  to  the  value  of  the  property. 


766  DURESS    -VXD    UNDUE    INFLUENCE. 

which  a  man  of  ordinary  prudence  may  be  expected  to  use  in  guarding 
his  own  interest.  Xow  one  mans  deliberation  and  prudence  are  not  the 
same  as  another  man's,  nor  is  the  same  man  equally  deliberate  or  pru- 
dent at  all  times.  A  man  may  enter  into  a  contract  with  less  delibera- 
tion than  the  average  wisdom  of  mankind  would  counsel,  or  than  he 
himself  commonly  uses,  in  affairs  of  the  like  nature,  and  yet  the  con- 
tract may  be  perfectly  valid. 

But  circumstances  of  this  kind  may  be  material  for  proving  the  existence 
of  distinct  grounds  for  avoiding  the  contract,  as  fundamental  error  or  fraud. 

But  if  it  be  disputed  whether  there  was  or  not  any  real  consent,  or 
whether  consent  was  or  not  freely  given,  then  circumstances  of  what  is 
called  surprise  or  improvidence  may  be  very  material  as  evidence  bear- 
ing on  those  issues.  Unusual  haste  or  folly  in  entering  into  an  en- 
gagement is  a  circumstance  to  be  accounted  for:  and  the  best  way 
of  accounting  for  it  may  in  all  the  circumstances  of  a  particular  case 
be  to  suppose  that  the  party  did  not  know  what  he  was  about,  or  that 
he  was  wrought  upon  by  conduct  of  the  other  party  of  such  a  kind 
635]  as  to  make  the  ^contract  voidable  on  the  ground  of  fraud. 
Surprise  and  improvidence,  therefore,  are  matters  from  which  it  may 
be-  inferred,  as  a  fact  in  particular  cases,  that  there  was  no  true  con- 
sent, or  that  the  consent  was  not  free.  But  it  is  not  to  be  affirmed  as 
a  general  proposition  of  law  that  haste  or  imprudence  can  of  itself 
be  a  sufficient  cause  for  setting  aside  a  contract,  nor  even  that  there 
is  any  particular  degree  of  haste  or  imprudence  from  which  funda- 
mental error,  fraud,  or  undue  influence,  will  be  invariably  presumed. 
"The  Court  will  not  measure  the  degrees  of  understanding"  (p). 
It  seems  to  follow  that  what  is  recorded  in  such  a  case  as  Evans  v. 
Llewellin  (q)  is  not  an  enunciation  of  law,  but  an  inference  of  fact. 
Such  an  inference  may  be  useful  in  the  way  of  analogy  when  similar 
circumstances  recur,  but  is  not  binding  as  an  authority. 

Opinions  of  judges  in  Earl  of  Bath  and  Mountague's  case.         The  view 

here  taken  may  be  supported  by  the  observations  of  the  judges  in  the 

Earl  of  Bath  and  Mountague's  case   (a.d.  1693)  (r).     In  that  case 

Baron  Powel  said  (3  Ch.  Ca.  at  p.  56)  : 

"It  is  said,  This  is  a  Deed  that  was  obtained  by  Surprize  and  Circum- 
vention. Now  I  perceive  this  word  Surprize  is  of  a  very  large  and  general 
Extent.  .     .     I   hardly  know  any   Surprize   that   should  be   sufficient  to 

set  aside  a  Deed  after  a  Verdict,  unless  it  be  mixed  with  Fraud,  and  that 
expressly  proved."     [I.e.  the  verdict  in  favour  of  the  deed  precludes  the  party 

(p)     Bridgman    v.     Green     (1755)  (r)    3  Ch.  Ca.  55.     Cp.  Story,  Eq. 

Wilmot,  58,  61.  Jurisp.  §  251. 

(q)    (1787)   1  Cox,  333,  1  R.  E.  49. 


SURPRISE.  767 

from  asserting  in  equity  that  he  did  not  know  what  he  was  about:  for  he 
should  have  set  up  that  case  at  law  on  the  plea  of  non  est  factum.]  "It 
must  be  admitted  that  there  was  Deliberation,  and  Consideration  and  Inten- 
tion enough  proved  to  make  it  a.  good  Deed  at  Law,  otherwise  there  would 
not  have  been  a  Verdict  for  it":    per  L.  C.  J.  Treby,  ib.  at  p.  74. 

The  judgment  of  the  Lord  Keeper  Somers  is  even  more  decided, 
and  points  out  clearly  the  difference  between  an  instrument  which  is 
void  both  at  law  and  in  equity,  and  one  which  is  voidable  in  equity 
(p.  108)  :- 

"  It  is  true,  it  is  charged"  in  the  Bill  that  this  Deed  was  obtained  by 
*Fraud  and  Surprize  .  .  But  whosoever  reads  over  the  Depositions  will  [636 
see  that  the  End  they  aimed  at  was  to  attack  the  Deeds  themselves  as 
false  Deeds  and  not  truly  executed;  but  that  being  Tried  at  Law,  and  the 
Will  and  Deeds  verified  by  a  Verdict,  the  Counsel  have  attempted  to  make  use 
of  the  same  Evidence,  and  read  it  all,  or  at  least  the  greatest  Part  of  it,  as 
Evidence  of  Surprize  and  Circumvention 

"Now,  for  this  word  (Surprize)  it  is  a  Word  of  a  general  Signification, 
so  general  and  so  uncertain,  that  it  is  impossible  to  fix  it ;  a  Man  is  sur- 
priz'd  in  every  rash  and  indiscreet  Action,  or  whatsoever  is  not  done  with 
so  much  Judgment  and  Consideration  as  it  ought  to  be:  But  I  suppose  the 
Gentlemen  who  use  that  Word  in  this  Case  mean  such  Surprize  as  is  attended 
and  accompanied  with  Fraud  and  Circumvention;  such  a  Surprize  indeed  may 
be  a.  good  ground  to  set  aside  a  Deed  so  obtain'd  in  Equity  and  hath  been  ao 
in  all  times:  but  any  other  Surprize  never  was,  and  I  hope  never  will  be, 
because  it  will  introduce  such  a  wild  Uncertainty  in  the  Decrees  and  Judg- 
ments of  the  Court,  as  will  be  of  greater  Consequence  than  the  Relief  in  any 
Case  will  answer  for." 

Analogy  to  doctrine  as  to  inadequacy  of  consideration.  Moreover  the 

doctrine  thus  stated  is  exactly  analogous  to  the  undoubted  law  con- 
cerning inadequacy  of  consideration.  The  value  of  the  subject-matter 
of  a  contract,  and  therefore  the  adequacy  of  the  consideration,  which 
depends  on  it,  is  in  most  cases  easier  to  measure  than  the  degree  of 
deliberation  or  prudence  with  which  the  contract  was  entered  into. 
"  Surprise  "  or  "  improvidence  "  represents  nothing  but  an  opinion  of 
the  general  character  of  a  transaction,  founded  on  a  precarious  estimate 
of  average  human  conduct,  and  cannot  well  have  a  greater  legal  effect 
than  inadequacy  of  consideration,  which  generally  admits  of  being  de- 
termined by  reference  to  the  market  value  of  the  object  at  the  date  of 
the  contract. 

5.  Limits  of  the  right  of  rescission. 

The  right  of  rescission  is  like  that  in  cases  of  fraud,  &c.  and  governed  by 
same  rules.  The  right  of  setting  aside  a  contract  or  transfer  of  prop- 
erty voidable  on  the  ground  of  undue  influence  is  analogous  to  the 
right  of  rescinding  a  transaction  voidable  on  any  other  ground,  and 
follows  the  same  rules  with  some  slight  modifications  in  detail. 

What  is  said  in  the  last  chapter  of  rescinding  contracts  for  fraud 


768  DUEESS    AND    UNDUE    INFLUENCE. 

637]  or  misrepresentation  may  be  taken  as  generally  *applicable 
here.  We  proceed  to  give  some  examples  of  the  special  application  of 
the  principles. 

Examples.  The  right  to  set  aside  a  gift  or  beneficial  contract  void- 
able for  undue  influence  may  be  exercised  by  the  donor's  representa- 
tives or  successors  in  title  (s)ao  as  well  as  by  himself,  and  against 
not  only  the  donee  but  persons  claiming  through  him  (i)61  otherwise 
than  as  purchasers  for  value  without  notice  (w).82  But  the  juris- 
diction is  not  exercised  at  the  suit  of  third  persons.63  The  Court  will 
not  refuse,  for  example,  to  pay  a  fund,  at  the  request  of  a  petitioner 
entitled  thereto,  to  the  trustees  of  a  deed  of  gift  previously  executed 
by  the  petitioner,  because  third  parties  suggest  that  the  gift  was  not 
freely  made  (x). 

Jurisdiction   not   confined   to   influence   of   actual   party   to   the   contract. 

On  the  other  hand  it  is  not  necessary  to  the  support  of  a  claim  to  set 
aside  a  contract  on  the  ground  of  undue  influence  to  show  that  the  in- 
fluence was  directly  employed  by  another  contracting  party.  It  is 
enough  to  show  that  it  was  employed  by  some  one  who  expected  to 
derive  benefit  from  the  transaction,  and  with  the  knowledge  of  the 
other  party  or  under  circumstances  sufficient  to  give  him  notice  of  it. 
The  most  frequent  case  is  that  of  an  ancestor  or  other  person  in  loco 

(s)    E.g.  Executor:   Hunter  v.  At-  (t)  Huguenin  v.  Baseley  (1807)   14 

kins  ( 1832-4)  3  M.  &  K.  113,  41  R.  R.  Ves.  273,  289,  9  R.  R.  276,  286.     Cp. 

30;   Coutts  v.  Acworth   (1869)   L.  K.  Molony  v.  Eernan  (1842)   2  Dr.  &  W, 

8  Eq.  558.     Assignee  in  bankruptcy:  31,  40. 

Ford  v.  Olden  (1867)  L.  R.  3  Eq.  461,  (u)    Gobbett   v.   Brock    (1855)    20 

36   L.  J.   Ch.  651.     Devisee:    Gresley  Beav.  524,  528. 

v.  Mousley   (1861)   4  De  G.  &  J.  78.  (x)    Metcalfe's  trust    (1864)    2  D. 

Heir :  Holman  v.  Loynes  ( 1854 )  4  D.  J.  &  S.  122,  33  L.  J.  Ch.  308. 
M.  &  G.  270,  23  L.  J.  Ch.  529. 

60  Yard  v.  Yard,  27  N.  J.  Eq.  114;  Boyd  v.  De  La  Montagnie,  73  N.  Y. 
498;  Buffalow  v.  Buffalow,  2  Dev.  &  Bat.*  Eq.  241.  TrustPe  in  bankruptcy: 
see  Chattanooga  Bank  v.  Rome  Iron  Co.,  102  Fed.  Rep.  755  (C.  C.  A.)  ; 
Duplan  Silk  Co.  v.  Spencer,  115  Fed.  Rep.  689  (C.  C.  A.).  Devisee:  Lee  v. 
Pearce.  68  N.  C.  76.  Heir:  Allore  v.  Jewell,  94  U.  S.  506;  Churchill  v. 
Scott.  05  Mich.  485;  Cadwallader  f.  West.  48  Mo.  483;  Ford  r.  Hennessy,  70 
Mo.  580;  Sears  v.  Shafer,  6  N.  Y.  208;  Darlington's  Appeal,  86  Pa.  512; 
Martin  v.  Martin,  1  Heisk.  644. 

ei  Barron  r.  Willis,  [1900]  2  Ch.  121,  133;  Adams  r.  Cowen,  177  U.  S.  471; 
Poillon  v.  Martin,  1  Sandf.  Ch.  569;  Darlington's  Appeal.  86  Pa.  512.  A  con- 
veyance procured  by  undue  influence  will  be  set  aside  against  all  who  take  a 
gratuitous  benefit  under  it,  though  they  themselves  took  no  part  in  procuring 
it.  Ranken  v.  Patton,  65  Mo.  378;  Miller  v.  Simonds,  72  Mo.  669,  687; 
Whelan  v.  Whelan,  3  Cow.  537,  577;  Bergen  v.  Udall,  31  Barb.  9,  21;  Lee  v. 
Pearce,  68  N.  C.  76. 

62  Valentine  v.  Lunt,  115  N.  Y.  496. 

63  Andrews  v.  Jones,  10  Ala.  400,  419;  Davidson  v.  Little,  22  Pa.  245. 


COXilUJIATION.  769 

■parentis  inducing  a  descendant,  etc.,  to  give  security  for  a  debt  of  the 
ancestor.  But  if  the  other  part}-  does  all  he  reasonably  can  to  guard 
against  undue  influence  being  exerted  (as  by  insisting  on  the  person 
in  a  dependent  position  having  independent  professional  advice),  and 
tbe  precautions  he  demands  are  satisfied  in  a  manner  he  cannot  ob- 
ject to  at  the  time,  the  contract  cannot  as  against  him  be  im- 
peached (y). 

*It  appears  to  be  at  least  doubtful  whether  a  contract  can  be  [638 
set  aside  on  the  ground  of  influence  exerted  on  one  of  the  parties  by  a 
stranger  to  the  contract  who  did  not  expect  to  derive  any  benefit  from 
it  (z)  i64  except  where  the  contract  is  an  arrangement  between  cestuis 
que  trust  claiming  under  the  same  disposition,  and  the  trustee  puts 
pressure  on  one  of  the  parties  to  make  concessions ;  the  ground  in  this 
case  being  the  breach  of  a  trustee's  special  duty  to  act  impartially  (a) . 

Confirmation  and  acquiescence.  The  right  to  set  aside  a  contract  or 
gift  originally  voidable  on  the  ground  of  undue  influence  may  be  lost 
by  express  confirmation  (&)65  or  by  delay  amounting  to  proof  of 
acquiescence  (c).66  But  any  subsequent  confirmation  will  be  inopera- 
tive if  made  in  the  same  absence  of  independent  advice  and  assistance 
which  vitiated  the  transaction  in  the  beginning  (d).  This  has  been 
strongly  stated  in  the  judgment  of  the  Lords  Justices  in  Moxon  v. 

(y)     Compare    Cobbett    v.    Brock  Royal    (1806)    12  Ves.  355,  8  R.  R. 

(1855)   20  Beav.  524,  with  Berdoe  v.  338. 

Dawson   (1865)   34  Beav.  603.     As  to  (c)  Wright  v.  Vanderplank  (1855) 

what  amounts  to  notice,  Haitland  v.  8  D.  M.  &  G.  133,  147,  25  L.  J.  Ch. 

Backhouse    (1847)    16  Sim.  58;   Tot-  753;   Turner  v.  Collins   (1871)   L.  R. 

tenham  v.  Green   (1863)   32  L.  J.  Ch.  7  Ch.  320,  41  L.  J.  Ch.  558;  Allcard 

201.  v.   Skinner    (1887)    36  Ch.   Div.    145, 

(«)    Bentley  v.  Mackay    (1869)    31  see  especially  per  Lindley  L.J.  at  p. 

Beav    143,  151.     On  principle  the  an-  187.     Cp.  Nutt  v.  Easton  [1899]  1  Ch. 

swer  should  clearly  be  in  the  negative.  873,  68  L.  J.  Ch.  367,  affd.   [1900]   1 

(a)  Ellis  v.  Barker  (1871)  L.  R.  Ch.  29,  69  L.  J.  Ch.  46,  where  the 
7  Ch.  104,  41  L.  J.  Ch.  64.  plaintiff's   case   also   failed   on   otheT 

(b)  Stump  v.  Gaby  (1852)  2  D.  M.  grounds. 

&  G.  623,  22  L.  J.  Ch.  352;  Morse  v.  {d)  Savery  v.  King  (1856)  5  H.  L. 

C.  lit  p.  664,  25  L.  J.  Ch.  482. 

64  Such  a  contract  or  conveyance  should  never  be  set  aside  as  against  a 
party  who  has  given  value  without  notice  of  the  undue  influence.  Dent  v. 
Long,  90  Ala.  172;  Walker  V.  Nicrosi,  135  Ala.  353,  357;  but  a  deed  of  gift 
should  be  set  aside  though  the  donee  had  no  knowledge  of  the  undue  influence. 
Ross  v.  Conway,  92  Cal.  632;  Kraft  v.  Koenig,  3  S.  W.  Rep.  803  (Ky.)  ; 
Ranken  v.  Patton,  65  Mo.  378;  Miller  fl.Simonds,  72  Mo.  669,  687;  at  least 
unless  the  donee  has  acted  on  the  faith  of  the  gift  to  such  an  extent  as  to 
make  it  inequitable  to  set  the  deed  aside. 

PS  Rogers  v.  Higgins,  57  111.  244,  250. 

66  Jenkins  r.  Pye,  12  Pet.  241 ;  Wells  v.  Wood,  28  Kan.  400 ;  Price's  Appeal,  t 
54  Pa.  472. 

49 


770  DURESS    AND    UNDUE    INFLUENCE. 

Payne  (e)  :  "  Frauds  or  impositions  of  the  kind  practised  in  this 
case  cannot  be  condoned;  the  right  to  property  acquired  by  such  means 
cannot  be  confirmed  in  this  Court  unless  there  be  full  knowledge  of 
all  the  facts,  full  knowledge  of  the  equitable  rights  arising  out  of  those 
facts,  and  an  absolute  release  from  the  undue  influence  by  means  of 
which  the  frauds  were  practised.  To  make  a  confirmation  or  com- 
promise of  any  value  in  this  Court  the  parties  must  be  at  arm'a 
639]  *length,  on  equal  terms,  with  equal  knowledge,  and  with  suffi- 
cient advice  and  protection."  And  delay  which  can  be  accounted  for 
as  not  unreasonable  in  all  the  circumstances  is  no  bar  to  relief  (f).67 
In  short,  an  act  "  the  effect  of  which  is  to  ratify  that  which  in  justice 
ought  never  to  have  taken  place  "  ought  to  stand  only  upon  the  clearest 
evidence  (g).m  The  effect  of  delay  on  the  part  of  the  person  seeking 
relief  is  also  subject  to  a  special  limitation.  In  a  case  between  solicitor 
and  client,  or  parties  standing  in  any  other  confidential  relation,  less 
weight  is  given  to  the  lapse  of  time  than  is  due  to  it  when  no  such 
relation  subsists  (/i),69  and  it  is  of  special  importance  that  the  con- 
firming party  should  not  only  be  fully  acquainted  with  his  or  her 
rights  but  have  independent  advice  (t). 

In  the  case  of  a  deliberate  confirmation  after  the  relation  of  in- 
fluence has  ceased  to  exist,  it  need  not  be  shown  that  the  donor  knew 
the  gift  to  be  voidable  (h)  :  otherwise  where  the  alleged  confirmation 

(e)    .(1873)    L.  R.   8  Ch.   881,  885,  delay  of  eighteen  years  has  been  held 

43  L.  J.  Ch.  240.     And  a  confirmation  fatal:    Champion  V.  Rigby    (1830)    1 

will  not  be  helped  by  the  presence  of  Russ.  &  M.  539,  31  R.  R.  107. 
an  independent  adviser  of  the  party  (i)   Barron  v.  Willis   [1900]   2  Ch. 

confirming,  if,  in  consequence  of  the  121,  137,  69  L.  J.  Ch.  532,  C.  A. 
continuing     influence     of     the     other  (/>•)   Mitchell  v.  Eomfray   (1881)  8 

party,    his    advice    is    in   fact   disre-  Q.   B.  Div.   587,  50  L.  J.  Q.  B.  460. 

garded:  ib.  In  Tomson  v.  Judge   (1855)    3  Drew. 

if)   Kempson  v.  Ashbee    (1874)    L.  306,   there   was   not   independent   ad- 

R.  10  Ch.  15,  44  L.  J.  Ch.  195.  vice,    and   there  was   an   attempt   to 

(g)   Morse  v.  Royal  (1806)   12  Ves.  conceal    the    real    character    of    the 

at  p.  374,  8  R.  R.  at  p.  341.  transaction.        But     the     considered 

(h)    Gresley  v.  Mousley    (1861)    4  opinion    of   Kindersley   V.-C.    on   tlie 

De  G.  &  J.   78,   96.     But  even  in  »  general     principle     is     doubtless     a 

case   between    solicitor    and   client   a  weighty  one. 

«T  Thompson  v.  Lee,  31  Ala.  292,  304;  McCormick  c.  Malm,  5  Blackf.  509, 
532;  Rau  v.  Von  Zedlitz,  132  Mass.  164;  McClure  v.  Lewis,  72  Mo.  314;  Boyd 
v.  Hawkins,  2  Dev.  Eq.  195,  215;  Butler  v.  Haskell,  4  Dess.  651,  708;  Wade  v. 
Pulsifer,  54  Vt.  45. 

68  [n  Montgomery  v.  Perkins,  116  Mass.  227,  A.  by  fraud  obtained  a  bond  for 
a  deed  of  land  from  B.,  who  afterwards,  with  full  knowledge  of  the  facts,  and 
after  taking  legal  advice,  executed  and  delivered  the  deed;  it  was  held  that 
the  deed  did  not  operate  as  a  confirmation  of  the  previous  transaction,  not 
having  been  given  with  that  intent. 

69  See  Tyars  v.  Alsop,  61  L.  T.  8. 


CONFIRMATION.  771 

is  connected  with  the  original  transaction  and  takes  place  under  simi- 
lar circumstances  (/).70 

An  adoption  of  the  instrument  impeached  for  a  particular  purpose 
(as  by  the  exercise  of  a  power  contained  in  it)  may  operate  as  an 
absolute  confirmation  of  the  whole  (I). 

There  seems  no  presumption  of  undue  influence  where  the  gain  is  trifling. 

It  seems  that  the  presumption  of  influence  arising  from  confidential 
relations  is  not  to  be  extended  to  cases  where  *a  merely  trifling  [640 
benefit  is  conferred  (in).  This  is  more  than  a  simple  application  of 
the  maxim  De  minimis  non  curat  lex,  for  the  transaction  brought  in 
question  might  be  in  itself  of  great  magnitude  and  importance,  though 
the  advantage  gained  by  one  party  over  the  other  were  not  large.  In- 
deed the  case  to  which  this  principle  seems  most  likely  to  be  appli- 
cable is  that  of  a  transaction  not  of  a  commercial  nature,  and  on  such 
a  scale  that  the  parties,  dealing  fairly  and  deliberately,  might  choose 
not  to  be  curious  in  weighing  a  comparatively  small  balance  of  profit 
or  loss. 

(f)  Kempson  v.  AsKbee    (1874)    L.  (m)     Per    Turner    L.J.    Rhodes   v. 

R.  10  Ch.  15,  44  L.  J.  Ch.  195.  Bate    (1866)    L.  R.   1  Ch.  at  p.  258, 

[I)  Jarratt  v.  Aldam  (1870)  L.  R.  and  Lindley  L.J.  Allcard  v.  Skinner, 

9  Eq.  463,  39  L.  J.  Ch.  349.  36  Ch.  Div.  at  p.  185. 

70  See  cases  cited  supra,  n.  67. 


772 


AGREEMENTS    OF    IMPERFECT    OBLIGATION. 


641  ]    '  *CHAPTEE  XIII. 

Agreements  of  Imperfect  Obligation. 


Nature    of    Imperfect    Obliga- 
tions : 
Right  without  remedy, 

1.  Remedy  lost.     Statutes  of  Lim- 

itation, 

Rights  of  creditor  notwith- 
standing loss  of  remedy  by 
action, 

Acknowledgment, 

What  is  sufficient  acknowledg- 
ment, 

Statutes  of  Limitation  belong 
to  lex  fori, 

2.  Conditions  precedent  to  remedy 

not  satisfied, 
A.  Statute  of  Frauds,  s.  4, 

A  law  of  procedure  only, 
not  of   substance, 

Results  of  informal  agree- 
ment, 

Where  money  paid, 

Where  agreement  executed,  787 

Part  performance  in  equity,  790 

Informal  ante-nuptial  agree- 
ments, and  confirmation 
by  post-nuptial  writing, 

Informal  agreement  as  de 
fence, 

Distinction  of  equitable  es 
toppel, 

The  "  Slip  "  in  marine  in 
surance, 


772 


773 


774 

777 

777 

779 

782 
782 

784 

785 
785 


792 


794 


795 


B. 


795 


PAGE. 

Recognition    of   it    for    col- 
lateral purposes  by  mod- 
ern decisions,  796 
Of  stamp  duties  in  general,  798 
C.  Statutes      regulating      pro- 
fessions, 
Costs   of   uncertificated   so- 
licitors, 
Medical   practitioners, 
Medical  Act,  1886, 
Apothecaries  Act, 
Special   questions   on   Med- 
ical Act, 
3.  No  remedy  at  all, 
Arbitrators, 
Counsel's  fees, 
As  to  non-litigious  business,  or 

account  with  solicitor, 
Judicial    recognition    of    coun- 
sel's fees, 
Solicitors'    Remuneration    Act, 

1881, 
Special  agreements  between  so- 
licitor and  client, 
Certain    contracts    of    infants 

since  Infants'  Relief  Act, 
Tippling  Act, 
Trade  Union  agreements, 
A   converse   case   on  repeal   of 

usury  laws, 
Treatment  of  equitable  obliga- 
tions at  Common  Law, 
Summary    of    results    of    this 
chapter, 


799 

800 
801 
802 
802 

S02 
803 
803 
803 

804 

806 

800 

806 

807 
807 
808 

808 

809 

810 


Nature  of  imperfect  obligations.  Under  this  head  we  propose  to  deal 
with  topics  of  a  miscellaneous  kind  as  regards  their  subject-matter, 
and  forming  anomalies  in  the  general  law  of  contract,  but  present- 
ing in  those  anomalies  some  remarkable  uniformities  and  analogies 
of  their  own. 

Between  contracts  which  can  be  actively  enforced  by  the  persons 
entitled  to  the  benefit  of  them,  and  agreements  or  promises  which  are 
not  recognized  as  having  any  legal  effect  at  all  there  is  another  class 
of  agreements  which  though  they  confer  no  right  of  action  are  recog- 


DEBTS  BARRED  BY  STATUTE.  773 

nized  by  the  law  for  other  purposes.  These  may  be  called  agree- 
ments of  imperfect  obligation.  Some  writers  (as  Pothier)  speak  of 
imperfect  obligations  in  the  sense  of  purely  moral  duties  which  are 
wholly  without  tbe  scope  of  law:  and  what  we  here  call  Imperfect 
Obligations  are  in  the  civil  law  called  Natural  Obligations.  But  this 
term,  the  use  of  which  in  Eoman  law  is  intimately  connected  with 
the  distinction  between  ius  civile  and  ius  gentium  (a),  would  be  in- 
appropriate in  English  (b). 

How  produced.  Where  there  is  a  perfect  obligation,  there  is  a  right 
coupled  with  a  remedy,  i.e.,  an  appropriate  process  of  law  by  which 
the  authority  of  a  competent  court  can  be  set  in  motion  to  enforce 
the  right. 

*  Where  there  is  an  imperfect  obligation,  there  is  a  right  with-  [642 
out  a  remedy.  This  is  an  abnormal  state  of  things,  making  an  excep- 
tion whenever  it  occurs  to  the  general  law  expressed  in  the  maxim 
Ubi  ius  ibi  remedium.  And  it  can  be  produced  only  by  the  operation 
of  some  special  rule  of  positive  law.  Such  rules  may  operate  in  the 
following  ways  to  produce  an  imperfect  obligation: 

1.  By  way  of  condition  subsequent,  taking  away  a  remedy  which 
once  existed. 

2.  By  imposing  special  conditions  as  precedent  to  the  existence  of 
the  remedy. 

3.  By  excluding  any  remedy  altogether. 

We  shall  now  endeavour  to  show  what  are  the  effects  of  an  imper- 
fect obligation  in  these  three  classes  of  cases. 

1.  Remedy  lost  — Statutes  of  Limitation.  Under  the  first  head  we  have 
to  notice  the  operation  of  the  statutes  of  limitation,  so  far  as  it  illus- 
trates the  present  subject  (c).  The  Statute  of  Limitation  of  James  I. 
(21  Jac.  1,  c.  16,  s.  3)  enacts  that  the  actions  therein  enumerated — 
which,  with  an  exception  since  repealed,  comprise  all  actions  on  simple 

(a)  Savigny,  Obi.  1.  22,  sqq.  For  by  the  statutes  of  limitation;  and 
a  summary  statement  of  the  effects  the  comparison  is  just  to  this  extent;, 
of  a  natural  obligation  in  Roman  law  that  at  common  law  they  might  be 
see  Muirhead's  note  on  Gai.  3.  119,  a.  rendered    enforceable    in    much    the 

( b )  The  term  "  covenant  en  ley  de  same  manner,  and  practically  the 
nature "  was  applied  by  Bishop  Stil-  authorities  are  interchangeable  on 
lington,  C,  to  a  parol  agreement  not  this  point.  But  an  infant's  contract 
to  sue:   9  Ed.  4,  41,  pi.  26.  is   in   its  inception   not   of  imperfect 

(c)  Debts  contracted  by  an  infant  obligation,  but  simply  voidable, 
are  often   compared  to  debts  barred 


774  AGREEMENTS    OF    IMPEBFECT    OBLIGATION. 

contracts  (d)1 — "shall  be  commenced  and  sued"  within  six  years 
after  the  cause  of  action,  and  not  after.  By  the  modern  statute  3  &  4 
Will.  4,  c.  42,  s.  3  (e),  following  the  presumption  of  satisfaction 
after  the  lapse  of  twenty  years  which  already  obtained  in  practice  (/), 
643]  it  is  enacted  that  (inter  alia)  all  ^actions  of  covenant  or  debt 
upon  any  bond  or  other  speciality  "  shall  be  commenced  and  sued  " 
within  twenty  years  of  the  cause  of  action.  We  need  not  stop  to  con- 
sider the  exceptions  for  disability,  or  the  rules  as  to  the  time  from 
which  the  statutes  begin  to  run ;  for  the  object  throughout  this  chap- 
ter will  not  be  to  define  to  what  cases  and  under  what  conditions  the 
laws  under  consideration  apply,  when  that  is  abundantly  done  in  other 
treatises,  but  to  observe  the  general  results  which  follow  when  they  do 
apply. 

The  right  not  gone.  Now  there  is  nothing  in  these  statutes  to  extin- 
guish an  obligation  once  created.  The  party  who  neglects  to  enforce 
his  right  by  action  cannot  insist  upon  so  enforcing  it  after  a  certain 
time.  But  the  right  itself  is  not  gone.  It  is  not  correct  even  to  say 
without  qualification  that  there  is  no  right  to  sue,  for  the  protection 
given  by  the  statutes  is  of  no  avail  to  a  defendant  unless  he  expressly 
claims  it.  Serjeant  Williams,  after  noticing  the  earlier  conflicts  of 
opinion  on  this  point,  and  some  unsatisfactory  reasons  given  at  dif- 
ferent times  for  the  rule  which  has  prevailed,  concludes  the  true  reason 
to  be  that  "  the  Statute  of  Limitations  admits  the  cause  or  considera- 
tion of  the  action  still  existing,  and  merely  discharges  the  defendant 
from  the  remedy"  (g).2  This  alone  shows  that  an  imperfect  obliga- 
te) As  to  the  extent  to  which  the  (f)  Roddam  v.  Morley  (1856-7)  1 
statute  applies  to  proceedings  in  De  G.  &  J.  17,  26  L.  J.  Ch.  438. 
equity  see  Knox  v.  Gye  (1871-2)  L.  (g)  2  Wms.  Saund.  163:  cp.  Scar- 
R.  5  H.  L.  656,  42  L.  J.  Ch.  234.  pellini  v.  Atcheson  (1845)  7  Q.  B.  at 
(e)  This  section  is  not  affected  by  p.  878,  14  L.  J.  Q.  B.  at  p.  338,  on 
the  Real  Property  Limitation  Act,  the  technical  effect  of  a  plea  of  the 
1874,  except  that  proceedings  to  re-  statute.  The  rule  continues  under 
cover  rent  or  money  charged  on  land  the  Judicature  Acts,  Order  XIX.  r. 
now  have  to  be  taken  within  12  15  [No.  211]. 
years:  37  &  38  Vict.  c.  57,  ss.  1,  S. 

i  As  to  the  extent  to  which  the  statute  applies  to  proceedings  in  equity, 
see  Knox  r.  Gye,  L.  R.  5  H.  L.  656 ;  Metropolitan  Bank  v.  St.  Louis  Dispatch 
Co.,  149  U.  S.436,  448;  Alsop  v.  Riker,  155  U.  S.  448;  Kelley  v.  Boettcher,  85 
Fed.  Rep.  55,  62  ;  McGaughey  c.  Brown,  46  Ark.  25  ;  Moore  v.  Moore,  103  Ga.  517; 
Hancock  r.  Harper,  86  111.  445;  Wilhelm  v.  Caylor,  32  Md.  151;  Story  Eq. 
Jur.,  §   1520. 

2  Campbell  v.  Holt,  115  U.  S.  620;  Booth  v.  Hoskins,  75  Cal.  271;  Shaw  v. 
Silloway,  145  Mass.  503';  Johnson  v.  Railroad  Co.,  54  N.  Y.  416 ;  Campbell  r. 
Maple's  Adm.,  105  Pa.  304;  Jordan  v.  Jordan,  85  Tenn.  561;  Criss  v.  Criss, 
28  W.  Va.  388.  396.  But  in  Wisconsin  the  statute  extinguishes  the  right. 
Carpenter  r.  State,  41  Wis.  36;  Pierce  v.  Sevmour,  52  Wis.  272.  See  also 
McCracken  Co.  v.  Mercantile  Trust  Co.,  84  Ky.  344,  349. 


DEBTS  BARRED  BY  STATUTE.  775 

tion  subsists  between  the  parties  after  the  time  of  limitation  has  run 
cut.  In  the  case  of  unliquidated  demands  that  obligation  is  practically 
inoperative,  since  an  unliquidated  demand  cannot  be  rendered  certain 
except  by  action  or  an  express  agreement  founded  on  the  relinquish- 
ment of  an  existing  remedy.  But  in  the  case  of  a  liquidated  debt  the 
continued  existence  of  the' debt  after  the  loss  of  the  remedy  by  action 
may  have  other  important  effects. 

Results  —  Incidental  rights  of  creditor  preserved.  Although  the  creditor 
cannot  enforce  payment  by  direct  process  of  *law,  he  is  not  the  [644 
less  entitled  to  use  any  other  means  of  obtaining  it  which  he  might 
lawfully  have  used  before.  Thus  if  he  has  a  lien  on  goods  of  the 
debtor  for  a  general  account,  he  may  hold  the  goods  for  a  debt  barred 
by  the  statute  (h).  And  any  lien  or  express  security  he  may  have  for 
the  particular  debt  remains  valid  (i).3  If  the  debtor  pays  money  to 
him  without  directing  appropriation  of  it  to  any  particular  debt,  he 

(ft)  Spears  v.  Hartly  (1800)  3  &  Ad.  413,  36  R.  R.  607;  Seager  v. 
Esp.  81,  6  R.  R.  814.  Aston    (1857)    26  L.  J.  Ch.   800    (on 

(i)    Higgins  v.  Scott    (1831)    2  B.       the  statute  of  3  &  4  Will.  4). 

3. Jones  v.  Bank,  6  Rob.  (N.  Y.)  162;  Davis  v.  Wrigley,  1  Tex.  App.  399. 
A  vendor  of  land  may  enforce  his  equitable  lien  for  the  unpaid  purchase 
money,  although  an  action  for  the  debt  is  barred  by  the  Statute  of  Limitations. 
Hardin  t'.  Boyd,  113  U.  S.  756,  765;  Clay  v.  Freeman,  118  U.  S.  97;  Buckner 
r.  Street,  15  Fed.  Rep.  365;  Gage  v.  Riverside  Trust  Co.,  86  Fed.  Rep.  984; 
Ware  v.  Curry,  67  Ala.  274;  Hood  v.  Hammond,  128  Ala.  569;  Coldcleugh  r. 
Johnson,  34  Ark.  312;  Magruder  v.  Peter,  11  G.  &  J.  217;  Railroad  Co.  v. 
Trimble,  51  Md.  99,  109-112;  Hopkins  v.  Corkerell,  2  Gratt.  88;  Paxton  v. 
Rich,  85  Va.  378.  And  see  Whitmore  v.  San  Francisco  Sav.  Union,  50  Cal. 
145.  Contra,  Ilett  i\  Collins,  103  111.  74;  Vandiver  i:  Hodge,  4  Bush,  538; 
Tate  v.  Hawkins,  81  Ky.  577;  Trotter  r.  Erwin,  27  Miss.  772;  Littlejohn  v. 
Gordon,  32  Miss.  235;  Borst  v.  Corey,  15  N.  Y.  505.  Where  a  note  is  secured 
by  mortgage  on  real  or  personal  property,  the  fact  that  the  remedy  on  the  note 
becomes  barred  by  the  statute  will  not  take  away  the  remedy  of  foreclosure 
of  the  mortgage.  Chenev  v.  Stone,  29  Fed.  Rep.  885:  Bailey  v.  Butler,  138 
Ala.  153;  Birnie  v.  Main,  29  Ark.  591;  Belknap  v.  Gleason,  11  Conn.  160; 
Jordan  v.  Sayre,  24  Fla.  1;  Harding  v.  Durand,  138  111.  515;  Kittredge  v. 
Nieholes,  162  111.  410;  Jenks  v.  Shaw,  99  la.  604;  Joy  v.  Adams,  26  Me.  330; 
Townsend  v.  Tyndale,  165  Mass.  293;  Wilkinson  v.  Flowers,  37  Miss.  579; 
Everman  r.  Piron,  151  Mo.  107;  Omaha  Bank  v.  Simerall,  61  Neb.  741, 
743;  Shoecraft  V.  Beard,  20  Nev.  182;  Hulbert  v.  Clark,  128  N.  Y.  295; 
Taylor  r.  Hunt,  118  N.  C.  168;  Kerr  v.  Lydecker,  51  Ohio  St.  240,  254;  Camp- 
hell  p.  Maple,  105  Pa.  304,  307 ;  Ballou  v.  Taylor,  14  R.  I.  277 ;  McGowan  v. 
Reid,  28  S"  C.  74 ;  Richmond  v.  Aiken,  25  Vt.  324 ;  Smith's  Exrx.  v.  Railroad 
Co.,  33  Gratt.  617;  Potter  v.  Stransky,  48  Wis.  243.  But  in  some  States  it  is 
held  that  when  the  remedy  on  the  debt  is  barred,  the  remedy  on  the  mortgage 
given  to  secure  it  is  gone.  Whipple  v.  Johnson,  66  Ark.  204;  Jackson  v. 
Longwell,  63  Kan.  93;  First  Bank  v.  Thomas.  3  S.  W.  Rep.  12  (Ky.).  So  in 
California  and  New  Mexico  by  statute.  And  see  Jones  on  Mortgages,  §  1207. 
One  who  becomes  surety  by  a  deed  for  the  performance  of  an  unsealed  con- 
tract remains  liable  to  an  action  after  the  remedy  on  the  principal  contract 
is  barred  by  the  statute.    Wagoner  v.  Watts,  44  N.  J.  L.  126. 


776  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

may  appropriate  it  to  satisfy  a  debt  of  this  kind  (fc)  :4  much  more  is 
he  entitled  to  keep  the  money  if  the  debtor  pays  it  on  account  of  the 
particular  debt,  but  not  knowing,  whether  by  ignorance  of  fact  or  of 
law,  that  the  creditor  has  lost  his  remedy.  So  an  executor  may  retain 
out  of  a  legacy  a  barred  debt  owing  from  the  legatee  to  the  testator (Z)  .5 
He  may  also  retain  out  of  the  estate  such  a  debt  due  from  the  testator 
to  himself :  and  he  may  pay  the  testator's  barred  debts  to  other  per- 
sons (in),6  though  not  any  particular  debt  which  has  been  judicially 
declared  to  be  not  recoverable  from  the  estate  (n)  :  and  this  even  if  the 
personal  estate  is  insufficient  (o).7  But  though  a  creditor  may  retain 
a  barred  debt  if  he  can,  he  may  not  resist  another  claim  of  the  debtor 
against  him  by  a  set-off  of  the  barred  debt:  for  the  right  of  set-off  is 
statutory,  and  introduced  merely  to  prevent  cross  actions,  so  that  a 
claim  pleaded  by  way  of  set-off  is  subject  to  be  defeated  in  any  way  in 
which  it  could  be   defeated  if  made  by  action  (p).8     This   reason 

(it)     Mills    v.    Foivkes     (1839)     5  (n)    Midgley  v.   Midgley   [1893]    3 

Bing.  N.  C.  455,  50  E.  R.  750 ;  Nash  Ch.  282,  62  L.  J.  Ch.  905,  C.  A. 
v.  Hodgson  (1855)   6  D.  M.  &  G.  474,  (o)  Loins  v.  Bumney  (1867)  L.  R. 

25  L.  J.  Ch.  186.  4  Eq.  451.     This  is  a,  peculiar  rule. 

(I)    Courtenay  v.  Williams   (1844)  It  is  otherwise  as  to  claims  not  en- 

3  Ha.  539,  13  L.  J.  Ch.  461 ;  cp.  Rose  forceable  by  reason  of  the  Statute  of 

v.  Gould   (1852)   15  Beav.  189.  Frauds:   Be  Bovmson   (1885)    29  Ch. 

(to)  Hill  v.  Walker  (1858)   4K.4  Div.  358,  54  L.  J.  Ch.  950. 
J.  166;  Stahlschmidt  v.  Lett   (1853)  [p)   The  defence  of  set-off  must  be 

1  Sm.  &  G.  415.  specially  met  by  replying  the  statute 

of  limitation,  see  1  Wms.  Saund.  431. 

4Armistead  r.  Brooke,  18  Ark.  521;  Brown  r.  Burns,  67  Me.  535  $  Ramsay 
v.  Warner,  97  Mass.  8,  13. 

5Be  Akerman,  [1891]  3  Ch.  212;  Garrett  v.  Pierson,  29  la.  304;  Cum- 
mings  v.  Bramhall,  120  Mass.  552;  Be  Bogart,  28  Hun,  466.  But  see  contra, 
Harrod  v.  Carder's  Adnr.,  3  Ohio  C.  C.  479;  Reed  v.  Marshall,  90  Pa.  345; 
Milne's  Appeal,  99  Pa.  483. 

6  Re  Huger,  100  Fed.  Rep.  805;  Distributees  of  Knight  v.  Godbolt,  7  Ala. 
304;  Payne  v.  Pusey,  8  Bush,  564.  But  see  Fairfax  ik  Fairfax's  Exr.,  2  Cr. 
C.  C.  25 ;  Pollard  r.  Scears,  28  Ala.  484 ;  Richmond,  Admr.,  Petitioner,  2  Pick. 
567;  Hodgdon  v.  White,  11  N.  H.  208,  213;  Rogers  v.  Rogers,  3  Wend.  503; 
Hoch's  Appeal,  21  Pa.  280;  Seig  v.  Acord's  Exr.,  21  Gratt.  365,  371;  Batson 
r.  Murrell,  10  Humph.  301.  Cp.  Ritter's  Appeal,  23  Pa.  95.  And  see 
Woods  v.  Elliott,  49  Miss.  168;  Byrd  v.  Wells,  40  Miss.  711;  Oates  v.  Lilly, 
84  N.  C.  643. 

7  To  a  petition  by  an  administrator  or  executor  to  sell  real  estate  of  the 
decedent  for  the  payment  of  debts,  the  heir  or  devisee  ma3'  plead  that  the 
debts  are  barred  bv  the  Statute  of  Limitations.     Heirs  of  Bond  r.   Smith, 

2  Ala.  660;  Pollard  a.  Scears,  28  Ala.  484;  Lee  r.  Downey,  68  Ala.  98; 
Riser  v.  Snoddy,  7  Ind.  442;  Payne  r.  Pusey,  8  Bush,  564;  McKinlay  v. 
Gaddy,  26  S.  C  573.  And  see  cases  in  last  note,  ad  fin.  Contra,  Hodgdon 
r.  White,  11  N.  H.  208. 

8  Harwell  v.  Steele.  17  Ala.  372;  Gilchrist  v.  Williams,  3  A.  K.  Marsh. 
235:  Nolin  v.  Black-well,  31  N.  J.  L.  170;  Hinkley  r.  Walters,  8  Watts,  260: 
Taylor  v.  Gould.  57  Pa.  152:  "Verrier  v.  Gujllou,  97  Pa.  63;  Turnbull  v. 
Strohecker,  4  McCord,  210;  Trimyer  v.  Pollard,  5  Gratt.  460. 


DEBTS  BAEEED  BY  STATUTE.  777 

applies  equally  to  all  other  cases  of  imperfect  obligations.  Herein 
*our  law  differs  from  the  Boman,  in  which  compensatio  did  not  [645 
depend  on  any  positive  enactment,  but  was  an  equitable  right  derived 
from  the  ius  gentium. 

Acknowledgment  by  debtor.  Again,  the  creditor's  lost  remedy  may  be 
revived  by  the  act  of  the  debtor.  The  decisions  on  the  statute  of 
James  I.  have  established  that  a  renewed  promise  to  pay,  or  an  ac- 
knowledgment from  which  a  promise  can  be  inferred,  excludes  the 
operation  of  the  statute.  It  was  formerly  held  that  the  statute  rested 
wholly  on  a  presumption  of  payment,  and  therefore  that  any  acknowl- 
edgment of  the  debt  being  unpaid,  even  though  coupled  with  a  refusal 
to  pay,  was  sufficient.  But  this  opinion  has  long  since  been  over- 
ruled (q).  Again,  it  has  been  said  that  although  the  original  remedy 
is  gone,  the  original  consideration  remains  as  a  sufficient  foundation 
for  a  subsequent  promise.  But  this  explanation  is  not  satisfying,  since 
the  consideration  for  the  new  promise  is  wholly  past,  and  therefore 
insufficient  according  to  modern  doctrine  (r).  The  only  theory  ten- 
able on  principle  seems  to  be  that  the  statute  is  a  law  merely  of  pro- 
cedure, giving  the  debtor  a  defence  which  he  may  waive  if  he  think 
fit.  Nevertheless  it  is  held  that  the  acknowledgment  operates  as  evi- 
dence of  a  new  promise,  and  therefore  it  is  not  effectual  unless  made 
before  action  brought  (s).9 

What  is  sufficient  acknowledgment.  The  modern  law  has  been  con- 
cisely stated  by  Mellish  L.J.  "  There  must  be  one  of  three  things  to 
tcke  the  case  out  of  the  statute.  Either  there  must  be  an  acknowl- 
edgment of  the  debt,  from  which  a  promise  to  pay  is  to  be  implied ;  or 
secondly,  there  must  be  an  unconditional  promise  to  pay  the  debt; 
or  thirdly,  there  must  be  a  conditional  promise  to  pay  the  debt,  and 
evidence  that  the  condition  has  been  performed"  (t).10    The  prom- 

(</)    2  Wms.   Saund.   183,  184.  Frohlioh    (1878)    3   C.   P.  D.   333,   in 

(r)  See  p.  *182,  above.  C.  A.,  4  C.  P.  Div.  63,  48  L.  J.  C.  P. 

(s)    Bateman  v.  Pinder    (1842)    3  43,  which  also  show  how  much  diffi- 

Q.  B.  574,  11  L.  J.  Q.  B.  281.  culty  there  may  be  in  determining  in 

(/)    Mitchell's  claim    (1871)    L.  R.  a  particular  case  whether  there  has 

6  Ch.  at  p.   828.     And  see  "Wilby  v.  been      an      unconditional      promise: 

Elgee   (1875)    L.  R.  10  C.  P.  497,  44  Quincey  v.   Sharpe    (1876)    1   Ex.  D. 

L   J   C    P   254 ;  Chasemore  v.  Turner  72,  45  L.  J.  Ex.  347 ;   Sheet  v.  Lind- 

(1874)    (Ex.  Ch.)  L.  R.  10  Q.  B.  500,  say  (1877)  2  Ex.  D.  314,  46  L.  J.  Ex. 

506,  510,  520,  45  L.  J.  Q.  B.  66,  and  249. 
the      later     case     of     Meyerhoff     v. 

9  Martin  v.  Jennings,  52  S.  C.  371.  Contra,  Soper  r.  Baum,  6  Mackey 
(D  C),  29:  Love  v.  Hackett,  6  Ga.  486;  Danforth  v.  Culver,  11  Johns.  146; 
Stevens  V  Hewitt,  30  Vt.  262. 

10  This  is  an  accurate  summary  of  the  American  law  in  most  jurisdic- 
tions.    See  Bell  v.  Morrison,   1  Pet.   351,  362;    Shepherd  v.  Thompson,    122 


778  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

646]  ise  must  be  to  pay  the  debt  as  *ex  debito  iustitiae;  a  promise  to 
pay  as  a  debt  of  honour  is  insufficient,  as  it  excludes  the  admission  of 
legal  liability  (u).  When  the  promise  is  implied,  it  must  be  as  an  in- 
ference of  fact,  not  of  law ;  the  payment  of  interest  under  compulsion 
of  law  does  not  imply  any  promise  to  pay  the  principal  (x).u 

The  acknowledgment  or  promise,  if  express,  must  be  in  writing 
and  signed  by  the  debtor  (9  Geo.  4,  c.  14,  s.  1)  or  his  agent  duly  au- 
thorized (Mercantile  Law  Amendment  Act,  1856,  19  &  20  Vict.  c.  97, 
e.  13).     But  an  acknowledgment  may  still  be  implied  from  the  pay- 

(«)    Haccord  v.  Osborne    (1876)    1  (x)    Morgan  v.   Rowlands    (1872) 

C.  P.  D.  568,  45  L.  J.  C.  P.  727  (on  L.  R.  7  Q.  B.  493,  498,  41  L.  J.  Q.  B. 
Lord  Tenterden's  Act).  187. 

U.  S.  231;  Bullion  Bank  v.  Hegler,  93  Fed.  Rep.  890;  Re  Lorillard,  107 
Fed.  Rep.  677  (C.  C.  A.);  Chapman  v.  Barnes,  93  Ala.  433;  Thomas  r. 
Casev.  26  Col.  485;  Carroll  r.  Forsj'th,  69  111.  127;  Johnston  v.  Hussey,  92 
Me.  92;  Wald  v.  Arnold,  16S  Mass.  134;  Wells  r.  Hargrave,  117  Mo.  563; 
Enge]  v.  Brown,  69  N.  H.  183;  Miller  v.  Teeter,  53  N.  ,T.  Eq.  262;  Man- 
chester v.  Braedner,  107  N.  Y.  346;  Patterson  v.  Neuer,  165  Pa.  66;  Ward 
r.  Jack,  172  Pa.  416;  Wiley  v.  Brown.  18  R.  I.  615;  Suber  v.  Richard,  61 
S.  C.  393;  Liberman  r.  Gurensky,  27  Wash.  410;  Stiles  v.  Laurel  Fork  Co., 
47  W.  Va.  838.    See  further,  19  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.) ,  288  et  seq. 

In  a  few  States,  however,  the  law  has  followed  the  earlier  English  doc- 
trine that  an  admission  of  indebtedness  is  sufficient  though  no  promise  can 
fairly  be  implied  from  the  admission.  Southern  Pac.  Co.  v.  Prosser.  122 
Cal.  413;  la.  Code  (1897),  §  3456;  Stewart  v.  McFarland,  84  la.  55;  First 
Bank  r.  Woodman,  93  la.  668;  Beeler  v.  Clarke,  90  Md.  221;  N.  Mex.  Comp.  L. 
(1897),  §  2926;  Reymond  r.  Newcomb,  10  N.  Mex.  151;  Hunter  v.  Starkes, 
8  Humph.  658. 

ll "  No  payment  can  fall  within  this  principle  which  was  enforced  by  a 
mere  proceeding  in  rem  without  any  act  upon  the  part  of  the  debtor."  Thomas 
v.  Brewer,  55  la.  227,  229.  And  see  Taylor  v.  Hollard,  [1902]  1  K.  B.  676; 
Campbell  i.  Baldwin,  130  Mass.  199;  Brown  v.  Latham,  58  N.  H.  30; 
Anderson  r.  Baxter,  4  Oreg.  105,  113:  Goodwin  v.  Buzzell,  35  Vt.  9.  Cp. 
Whipple  v.  Blackington,  97  Mass.  476;  Porter  v.  Blood,  5  Pick.  54;  Sornberger 
v.  Lee,  14  Neb.  193. 

The  payment  of  a  dividend  by  an  assignee  of  an  insolvent  debtor  is  not 
such  a  part  payment  as  will  take  the  residue  of  the  debt  out  of  the  statutory 
limitation  as  against  such  debtor.  Stoddard  r.  Doane,  7  Gray,  387 ;  Rich- 
ardson v.  Thomas,  13  Gray,  381;  Parsons  v.  Clark,  59  Mich.  414;  Chambers 
i\  Whitney,  17  Neb.  70;  Roosevelt  r.  Mark,  6  Johns.  Ch.  266;  Pickett  v. 
Leonard,  34  N.  Y.  175;  Marienthal  v.  Mosler,  16  Ohio  St.  566;  Read  v.  John- 
son, 1  R.  I.  81;  Benton  v,  Holland,  58  Vt.  533.  And  see  Christy  r.  Flem- 
ington,  10  Pa.  129;  Black  v.  White,  13  S.  C.  37.  Contra,  Letson  v.  Kenyon, 
31  Kan.  301.    And  see  Lilley  r.  Ford,  [1899]  2  Ch.  107. 

From  an  acknowledgment  drawn  out  from  the  debtor  when  testifying  as  a 
witness  no  promise  can  be  implied.    Bloodgood  v.  Bruen,  8  N.  Y.  362. 

Nor  from  an  admission  in  answer  in  equity.  Holberg  i\  Jaffray,  64  Miss. 
646.  But  may  be  from  a  decree  entered  by  consent  of  the  debtor.  Bissell  r. 
.Jaudon,  16  Ohio  St.  498. 

A  clause  in  a  conveyance  to  the  effect  that  the  lands  conveyed  are  charged 
with  the  payment  of  a  debt  of  the  grantor,  which  the  grantee  assumes  and 
agrees  to  pay,  is  such  an  acknowledgment  as  interrupts  the  running  of  the 
statute.     De'  Freest  v.  Warner,  98  N.  Y.  217. 

A  new  promise  made  under  the  mistaken  belief  that  the  creditor's  remedy  is 
not  vet  barred  will  take  the  case  out  of  the  statute.  Langston  v.  Aderhold,  60 
Ga.  376. 


STATUTES    OF    LIMITATION.  779 

ment  of  interest  or  of  part  of  the  principal  on  account  of  the  whole, 
without  any  admission  in  writing  (y).12 

Statutory  provision  for  acknowledgment  of  specialty  debts.  The  more 
recent  statute  which  limits  the  time  for  suing  on  contracts  by  specialty 
contains  an  express  proviso  as  to  acknowledgment  and  part  payment 
(3  &  4  Will.  4,  c.  42,  s.  5)  (z).  The  cases  as  to  acknowledgment,  &c. 
under  the  statute  of  James,  and  Lord  Tenterden's  Act,  are  not  appli- 
cable to  this  proviso.  Here  the  operation  of  the  acknowledgment  is  in- 
dependent of  any  new  promise  to  pa}r,  and  the  action  in  which  the 
acknowledgment  is  to  be  operative  must  be  founded  on  the  original 
obligation  alone  (a). 

Statute  of  limitation  as  to  real  property:  right  as  well  as  remedy  taken 
away.  The  Act  for  the  Limitation  of  Actions  and  Suits  relating  to 
Real  Property  (3  &  4  Will.  4,  c.  27,  s.  34)  does  not  only  bar  the 
remedy,  but  extinguishes  the  right  at  the  end  of  the  period  of  limita- 
tion.    It  is  therefore  unconnected  with  out  present  subject. 

*English  statutes  of  limitation  and  analogous  foreign  laws  affecting  the  [  647 
remedy  only,  treated  as  part  of  lex  fori.  We  have  seen  that  by  the  opera- 
tion of  the  statutes  of  limitation  applicable  to  contracts  the  right 
itself  is  not  destroyed,  but  only  the  conditions  of  enforcing  it  are 
affected.  The  law  of  limitation  is  a  law  relating  not  to  the  substance 
of  the  cause  of  action,  but  to  procedure.  Hence  follows  a  conse- 
quence which  is  important  in  private  international  law,  namely,  that 

(y)    2   Wms.   Saund.   181,   187,  see  (a)  Roddam  v.  Morley   (1856-7)   1 

also  the  notes  to  WHtcomb  v.  W hit-  De  G.  &  J.  1,  26  L.  J.  Ch.  438,  opin- 

ing  (1781)  1  Sm.  L.  C.  ion  of  Williams  and  Crowder  JJ.  at 

(z)    See'  Pears  V.  Laing    (1871)   L.  p.  15. 
E.  12  Eq.  41,  40  L.  J.  Ch.  225. 

12  This  statute  has  been  generally  copied  in  this  country.  See  19  Am.  & 
Eng.   Encyc.   of  Law    (2d   ed.),   320. 

In  Pennsylvania,  however,  a  writing  is  not  necessary.  Patterson  v.  Neuer, 
165  Pa.  66';  Simrell  v.  Miiler,  169  Pa.  326.  So  in  Delaware.  Morrow  v. 
Turner,  2  Marv.  332. 

The  debt  intended  by  a  written  promise  may  be  identified  by  oral  evidence. 
McConaughy  v.  Wilsey,  115  la.  589;  McGinty  v.  Henderson,  41  La.  Ann. 
382;   Russell  v.   Davis,  51   Minn.  482. 

In  Shapley  r.  Abbott,  42  N.  Y.  443,  it  was  held  that  where  a  creditor 
was  induced' to  forbear  collecting  his  claim  by  an  oral  promise  on  the  part 
of  the  debtor  not  to  take  advantage  of  the  statute,  this  promise  was  no 
answer  to  the  defense  of  the  statute.  See  also  Andreae  v.  Redfield,  08 
U.  S.  225.  But  in  other  cases  it  is  held  that  under  such  circumstances  the 
debtor  is  estopped  to  plead  the  statute.  Bridges  v.  Stevens,  132  Mo.  524; 
Cecil  v.  Henderson,   121  N.   C.   244. 

The  numerous  cases  on  part  payment  are  collected  in  19  Am.  &  Eng.  Encyc. 
of  Law    (2d  ed.),  323  et  seq. 


780  AGREEMENTS    OF    IMPEEFECT    OBLIGATION. 

these  enactments  belong  to  the  lex  fori,  not  to  the  lex  contractus,  and 
are  binding  on  all  persons  who  seek  their  remedy  in  the  courts  of  this 
country.  A  suitor  in  an  English  court  must  sue  within  the  time  lim- 
ited by  the  English  statute,  though  the  cause  of  action  may  have  arisen 
in  a  country  where  a  longer  time  is  allowed  (&).13  Conversely,  an 
action  brought  in  an  English  court  within  the  English  period  of 
limitation  is  maintainable  although  a  shorter  period  limited  by  the  law 
of  the  place  where  the  contract  was  made  has  elapsed,14  even  if  a  com- 
petent court  of  that  place  has  given  judgment  in  favour  of  the  de- 
fendant on  the  ground  of  that  period  having  expired  (c).1B  And  for 
this  purpose  a  document  under  seal  has  been  treated  by  an  English 

( 6 )    British   Linen   Co.    v.    Drum-  such  judgment  or  decree  was  or  shall 

tnond  (1830)  10  B.  &  C.  903,  34  R.  R.  be  rendered,  was  or  shall  be  a  resi- 

595.  dent  of  this  state,  in  any  ease  where 

(c)  Ruber  v.  Steiner  (1835)  2  the  cause  of  action  would  have  been 
Bing.  N.  C.  202,  42  R.  R.  598  (debt  barred  by  any  act  of  limitation  of 
barred  by  French  law)  :  Harris  v.  this  state,  if  such  suit  has  been 
Quine  (1869)  L.  R.  4  Q.  B.  653,  38  brought  therein,'  is  unconstitutional 
L.  J.  Q.  B.  331  (debt  barred  by  Manx  and  void,  as  destroying  the  right  of 
law)  :  in  the  latter  case  Cockburn  a  party  to  enforce  a  judgment  regu- 
C.J.  expressed  some  doubt  as  to  the  larly  obtained  in  another  state,  and 
principle,  admitting  however  that  conflicting  therefore  with  the  pro- 
file rule  was  settled  by  authority:  vision  of  the  Constitution  (art.  iv. 
[And  see  Leroy  r.  Crowninshield,  2  §  1)  which  ordains  that  'full  faith 
Mason,  151,  175,  per  Story,  J.  "A  and  credit  shall  be  given  in  each 
state  statute  which  enacts  that  '  no  state  to  the  public  acts,  records,  and 
action  shall  be  maintained  on  any  judicial  proceedings  of  every  other 
judgment  or  decree  rendered  by  any  state;'"  Christmas  v.  Russell,  5 
court  without  this  state  against  any  Wall.  290.]  Savigny  too  (Syst.  8. 
person  who,  at  the  time  of  the  com-  273)  is  for  applying  that  law  which 
mencement   of   the    action    in    which  governs  the  substance  of  the  contract. 

MMcElmoyle  v.  Cohen,  13  Pet.  312;  Nicolls  ads.  Rogers,  2  Paine.  437; 
Brunswick  Terminal  Co.  v.  National  Bank,  88  Fed.  Rep.  607 ;  Underwood 
v.  Patrick,  94  Fed.  Rep.  468  ( C.  C.  A. )  ;  McArthur  v.  Goddin,  12  Bush,  274 ; 
Home  Ins.  Co.  v.  Elwell,  111  Mich.  689;  Robinson  v.  Peyton,  4  Tex.  276.  But 
see  Shillito  Co.  v.  Richardson,  19  Ky.  L.  Rep.  1020. 

l*  Townsend  v.  Jemison,  9  How.  407 ;  Dexter  v.  Edmands,  89  Fed.  Rep. 
467;  Whitman  v.  Citizens'  Bank,  110  Fed.  Rep.  503;  Jones  v.  Jones,  18  Ala. 
248;  Medbury  v.  Hopkins,  3  Conn.  472;  Fanton  v.  Middlebrook,  50  Conn. 
44;  O'Bear  v.  First  Bank,  97  Ga.  587;  Hendricks  v.  Comstock,  12  Ind.  238; 
Graves  v.  Graves'  Exrs.,  2  Bibb,  207;  Thibodeau  v.  Levasseur,  36  Me.  362; 
Thompson  v.  Reed,  75  Me.  404;  Bulger  v.  Roche,  11  Pick.  36;  Putnam  v. 
Dike,  13  Gray,  535;  Home  Ins.  Co.  v.  Elwell,  111  Mich.  689;  McMerty  v. 
Morrison,  62  Mo.  140;  Paine  v.  Drew,  44  N.  H.  306;  Lincoln  v.  Battelle,  6 
Wend.  475;  Miller  v.  Brenham,  68  N.  Y.  83;  Crocker  v.  Arey,  3  R.  I.  178; 
Sawyer  v.  Macaulay,  18  S.  C.  543 ;  Jones  v.  Hook,  2  Rand.  303. 

But  where  a  statute  creates  a  new  right  of  action  with  a  provision  requiring 
it  to  be  asserted  within  a  limited  time,  the  provision  is  not  a  part  of  the 
law  of  the  remedy,  but  a  condition  attached  to  the  right  itself  and  hence 
operative  in  anv  jurisdiction  wherein  the  plaintiff  mav  sue.  Walsh  v.  Mayer, 
111  TJ.  R.  31,  37;  Stern  i>.  La  Compagnie  Generate,  110  Fed.  Rep.  996;  Rail- 
road r.  Hine,  25  Ohio  St.  629. 

15  But  see  Sweet  v.  Brackley,  53  Me.  346. 


STATUTES    OF    LIMITATION.  781 

court  as  creating  a  specialty  debt,  though  made  in  a  country  where 
our  distinction  between  simple  contract  and  specialty  debts  does  not 
exist,  and  more  than  six  years  before  action  brought  (d).16 

The  House  of  Lords,  as  a  Scots  court  of  appeal,  has  had  to  decide 
a  similar  question .  as  between  the  law  of  Scotland  and  the  law  of 
France.  It  was  held  that  the  Scottish  law  of  prescription  applied  to 
an  action  brought  *in  Scotland  on  a  bill  of  exchange  drawn  and  [648 
accepted  in  France,  the  right  of  action  on  which  in  France  had  been 
saved  by  judicial  proceedings  there  (e).  In  the  case  where  the 
shorter  of  the  two  periods  of  limitation  is  that  allowed  by  the  foreign 
law  governing  the  substance  of  the  contract,  and  that  period  has 
elapsed,  it  is  of  course  necessary  to  ascertain  that  the  foreign  law  is 
analogous  to  our  own  in  its  operation,  and  merely  takes  away  the 
remedy  without  making  the  contract  void  at  the  end  of  the  time  of 
prescription.  But  it  is  considered  that  an  actual  destruction  of  the 
right  would  be  so  inconvenient  and  unreasonable  that  it  may  almost  be 
presumed  that  such  is  not  the  operation  of  the  law  of  any  civilized 
state ;  and  the  English  courts  would  not  put  such  a  construction  on  the 
foreign  law  unless  compelled  so  to  do  by  very  strong  evidence  (/) ." 

We  shall  presently  see  that  analogous  questions  concerning  the  lex 
fori  may  arise  in  other  cases  of  imperfect  obligations. 

(d)     Alliance    Bank    of    Simla    v.  (e)  Don  v.  Lippmann  (1837)   5  CI. 

Carey  (1880)  5  C.  P.  D.  429,  49  L.  J.  &  F.  1,  47  R.  R.  1.     See  also  2  Wms. 

C.  P.  781   (a  bond  executed  in  British  Saund.    399. 

India).     Possibly  the  use  by  British  (f)     Buber   v.    Steiner    (1835)     2 

subjects    of    an    English    form,    un-  Bing.  N.  0.  202,  42  R.  R.  598,  where 

meaning   at   the    place    of    execution,  it    was    in    vain    attempted   to   show 

may  justify  the  inference  that  they  that  by  the  French  law  of  prescrip- 

at  the  time  intended  the  document  to  tion  the  right  was  absolutely  extin- 

operate  as   an  English  deed.     Other-  guished. 
wise  the  decision  seems  not  easy  to 
support. 

19  See  Bank  v.  Donally,  8  Pet.  361;  Kerper  v.  Wood,  48  Ohio  St.  613. 

IT  See  Campbell  v.  Holt,  115  U.  S.  620;  Hendricks  v.  Comstock,  12  Ind.  238; 
Chapin  v.  Freeland,  142  Mass.  383;  Perkins  v.  Guy,  55  Miss.  153;  McMerty 
v  Morrison,  62  Mo.  140;  Lincoln  v.  Battelle,  6  Wend.  475;  Kempe  v.  Bader, 
86  Tenn.  189.  For  instances,  however,  where  the  right  was  held  to  have  been 
extinguished,  see  Baker  v.  Stonebraker's  Admrs.,  36  Mo.  338;  Brown  r. 
Parker,  28  Wis.  21.  And  see  per  Matthews,  J.,  in  Pritchard  r.  Norton,  106 
U.  S.  124,  131. 

In  Shelby  v.  Guy,  11  Wheat.  361,  it  was  held,  that  as  five  years  bona  fide 
possession  of  a  slave  constitutes  a  title,  by  the  laws  of  Virginia,  upon  which 
the  possessor  may  recover  in  detinue,  this  title  may  be  set  up  by  the  vendee 
of  such  possessor  in  the  courts  of  Tennessee.  Ace.  Howell  v.  Hair,  15  Ala. 
194-  Newcombe  r.  Leavitt,  22  Ala.  631;  McDufne  v.  Sinnott,  119  111.  449; 
Fears  v.  Sykes,  35  Miss.  633;  Eingartner  r.  Illinois  Steel  Co.,  103  Wis.  373. 
See  e  converso,  Goodwin  v.  Morris,  9  Oreg.  322. 


782  AGREEMENTS    OF    IMPEBFECT    OBLIGATION. 

2.  Conditions  precedent  to  remedy.  Under  the  second  head  fall  the 
cases  of  particular  classes  of  contracts  where  the  law  requires  par- 
ticular acts  to  be  done  by  the  parties  or  one  of  them  (in  respect  of  the 
form  of  the  contract  or  otherwise)  as  conditions  precedent  to  the  con- 
tract being  recognized  as  enforceable. 

A.  Statute  of  Frauds,  s.  4.  The  most  important  of  the  enactments 
thus  imposing  special  conditions  on  contract  is  the  fourth  section 
of  the  Statute  of  Frauds  (29  Car.  2,  c.  3). 

The  fourth  section  enacts  that  after  the  date  there  men- 
tioned 

"  no  action  shall  be  brought  "whereby  to  charge  any  executor  or  adminis- 
trator upon  any  special  promise  to  answer  damages  out  of  his  own  estate;  or 
whereby  to  charge  the  defendant  upon  any  special  promise  to  answer  for 
649]  the  debt,  default,  or  miscarriage  of  another  person;  or  to  charge  any  *per- 
son  upon  any  agreement  made  upon  consideration  of  marriage;  or  upon 
any  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any  interest 
in  or  concerning  them ;  or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof;  unless  the  agreement 
upon  which  such  action  shall  be  brought  or  some  memorandum  or  note 
thereof  shall  be  in  writing,  and  signed  by  the  party  to  be  charged  therewith 
or  some  other  person  thereunto  by  him  lawfully  authorized." 

The  terms  of  the  17th  section  (now  superseded  in  England  by 
s.  -i  of  the  Sale  of  Goods  Act,  1893)  were  different,  and  raised  a 
question  whether  they  did  not  wholly  avoid  agreements  not  satisfy- 
ing its  conditions;  yet  the  better  opinion  was  that  the  17th  section, 
like  the  4th,  was  only  a  law  of  procedure  (g)  ;18  and  the  Sale  of 
Goods  Act  has  so  settled  it  for  the  future  by  using  the  words  "  shall 

(g)    Lord  Blackburn  in   Maddison       siter  (1879)   11  Q.  B.  D.  at  p.  127,  48 
v.  Alderson   (1883)    8  App.  Ca.  at  p.       L.  J.  Ex.  362. 
488;    Brett    L.J.    in    Britain   v.   Ros- 

18  In  Houghtaling  r.  Ball,  20  Mo.  563,  it  was  expressly  decided  that  a  sale 
of  goods  made  in  Illinois  and  valid  there  should  be  enforced  in  Missouri, 
although  if  made  in  the  latter  State,  it  would  have  been  void  under  what 
corresponds  to  the  seventeenth  section  of  the  statute.  Ace.  Allen  r.  Schuchardt, 
Fed.  Cas.  No.  236  (affd.,  without,  however,  any  reference  to  this  question, 
in  1  Wall.  359).  But  see  Miller  r.  Wilson,  146  111.  523;  Cochran  r.  Ward,  5 
lnd.  App.  89.  In  Townsend  v.  Hargraves,  118  Mass.  325,  it  is  held  that  both 
sections  affect  only  the  remedy,  and  not  the  validity  of  the  contract.  See 
also  Merchant  v.  O'Rourke,  111  la.  351;  Head  v.  Goodwin,  37  Me.  181;  Bird 
r.  Munroe,  66  Me.  337 ;  Denny  v.  Williams,  5  Allen,  1 ;  Emery  v.  Burbank,  165 
Mass.  326,  327;  Alderton  v.  Buchoz,  3  Mich.  322;  Daniel  r.  Frazer,  40  Miss. 
507. 

That  the  operation  of  section  17  is  not  confined  to  actions  on  the  contract 
itself,  but  affects  rights  of  property  as  against  third  persons,  see  Taylor  »;. 
Great  Eastern  Ry.  Co.,  [1901]  1  K.  B.  774;  Coombs  v.  Railway  Co.,  3  H.  &  N. 
510;  Mahan  r.  United  States,  16  Wall.  143;  Hicks  v.  Cleveland,  48  N.  Y.  84; 
O'Neil  r.  Railroad  Co.,  60  N.  Y.  138;  Ely  v.  Ormsby,  12  Barb.  570;  Browne  on 
Stat,  of  Frauds,  §  138  f.  sqq. 


AGREEMENTS    WITHIN    STATUTE    OF    FRAUDS.  7S3 

not  be  enforceable  by  action."  And  it  seems  that  the  statute  does 
not  prevent  property  from  passing  on  an  informal  sale  (A).  The 
cases  of  part  acceptance  of  the  goods  or  part  payment  of  the  price 
are  expressly  provided  for,  either  of  these  having  the  same  effect  as 
a   duly  made  memorandum  in  writing. 

Effect  of  section  4  for  some  time  not  settled.  We  now  return  to  the 
fourth  section.  For  the  sake  of  brevity  we  shall  use  the  term  "  in- 
formal agreement"  to  signify  any  agreement  which  comes  within 
this  section  and  does  not  comply  with  its  requirements. 

For  some  time  it  was  not  fully  settled  what  was  the  effect  of  this 
enactment  on  informal  agreements.  There  was  some  authority  for 
saving  it  made  them  void.  It  was  never  held  necessary  in  the  courts 
of  law  for  a  defendant  sued  on  an  informal  agreement  to  plead  the 
statute  specially,  as  in  the  case  of  the  statutes  of  limitation:  and 
it  has  been  held  (before  the  C.  L.  P.  Act)  that  a  special  plea  was 
not  only  unnecessary  but  bad  as  an  "  argumentative  denial "  of  the 
contract  declared  upon  (i).  Moreover  an  *action  cannot  be  [650 
maintained  when,  although  it  is  not  brought  to  enforce  any  right 
ex  contractu,  the  right  which  is  the  foundation  of  the  plaintiff's 
claim  depends  on  an  informal  agreement.  In  Carrington  v.  Roots  (k) 
the  plaintiff  sued  in  trespass  for  seizing  his  horse  and  cart:  the  de- 
fendant pleaded  that  they  were  incumbering  and  doing  damage  on 
his  ground :  the  plaintiff  replied  a  verbal  agreement  that  the  defend- 
ant should  sell  the  crop  and  grass  growing  there  to  the  plaintiff,  and 
that  the  plaintiff  might  enter  with  his  horse  and  cart  to  take  them. 
It  was  held  that  this  agreement  was  for  the  sale  of  an  interest  in 
land  within  s.  4,  and  that  the  plaintiff  could  not  set  it  up,  though 
it  might  have  been  available  as  a  licence  only,  in  answer  to  an  action 
for  trespass  (Z).19  Both  here  and  in  the  later  case  of  Reade  v.  Lamb 
above  cited  the  judges  said  distinctly  enough  that  informal  agree- 

(h)   Taylor  V.  0.  E.  By.  Co.  [1901]   '     (on  other  grounds)  65  L.  T.  544.    As 

1  K.  B.  774,  70  L.  J.  K.  B.  499.  to  the  former  practice  in  equity,  see 

(i)  Reade  v.  Lamb  (1851)  6  Ex.  Johnasson  v.  Bonhote  (1876)  2  Ch. 
130,  20  L.  J.  Ex.  161.  Since  the  Div.  298,  45  L.  J.  Ch.  651.  Once 
Judicature  Acts  the  defence  of  the  properly  raised  the  defence  is  avail- 
statute  must  always  be  distinctly  able  without  further  repetition  at 
raised  on  the  pleadings.  Order  XIX.  any  subsequent  stage  of  the  proceed- 
r.  15,  cp.  r.  20.     The  defendant  need  ings:   ib. 

not  specify  on  which  section  he  re-  (k)    (1837)   2  M.  &  W.  248,  46  R. 

lies,  but  if  he  does,  he  cannot  alter  R.  583. 

it    by   amendment:    James   v.   Smith  (I)      Cp.     Crosby     v.     Wadsworth 

[1891]   1  Ch.  384,  63  L.  T.  524,  affd.  (1805)   6  East  602,  8  R.  R.  566. 

19  Owens  v.  Lewis,  46  Ind.  488.  An  oral  sale  of  growing  timber,  though 
unenforceable  under  the  Statute  of  Frauds,  is  valid  as  a  license  to  enter  upon 


784  AGREEMENTS    01'    lilPEBFECT   OBLIGATION. 

ments  were  not  only  not  enforceable  but  void.  And  so  Sir  W.  Grant 
appears  to  have  thought  in  Randall  v.  Morgan  (m).  These  dicta  are 
not  consistent  with  the  decisions  to  be  presently  mentioned  in  which 
the  existence  of  an  imperfect  obligation  is  implied.  And  there  had 
also  been  judicial  expressions  of  opinion  the  other  way. 

Decision  in  Leroux  v.  Brown:  agreement  not  void,  but  only  not  enforceable. 

But  it  is  not  necessary  to  notice  these,  for  the  point  was  expressly 
decided  by  the  Court  of  Common  Pleas  in  Leroux  v.  Brown  (n),20 
where  the  earlier  dicta  are  also  considered.  The  action  was  on  a 
contract  not  to  be  performed  within  one  year,  and  made  in  France, 
651  ]  where  by  the  French  law  the  plaintiff  *might  have  sued  on  it. 
For  the  plaintiff  it  was  argued  that  s.  4  of  the  Statute  of  Frauds 
applied  to  the  substance  of  the  contract,  and  therefore,  on  general 
principles  of  private  international  law,  did  not  affect  contracts  which 
were  made  out  of  England,  and  which  as  to  their  substance  were  to 
be  governed  by  the  law  of  the  place  where  they  were  made.  But  for 
the  defendant  it  was  answered  that  this  enactment,  like  the  Statute 
of  Limitation,  only  affected  the  remedy,  and  was  therefore  a  law  of 
the  procedure  of  the  English  courts,  and  as  such  binding  on  all 
suitors  who  might  seek  to  enforce  their  rights  in  those  courts:  the 
agreement  might  be  good  enough  for  any  other  purpose,  but  the 
plaintiff  could  not  sue  on  it  in  England.  And  this  view  was  adopted 
by  the  Court.  Jervis  C.  J.  said :  "  The  statute  in  this  part  of  it 
does  not  say  that  unless  those  requisites  are  complied  with  the  con- 
tract shall  be  void,  but  merely  that  no  action  shall  be  brought  upon 
it.  .  .  .  The  fourth  section  relates  only  to  the  procedure  and  not 
to  the  right  and  validity  of  the  contract  itself."  It  will  be  observed 
that  the  plaintiff  was  here  in  the  curious  position  of  contending,  in 
order  to  support  his  right  to  recover  on  a  contract  made  in  France, 
that  it  would  have  been  absolutely  void  if  made  in  England  (o).     If 

(to)     (1805)    12   Ves.   at  p.   73,   8  was  doubted  by  Willea  J.  in  Williams 

E.  E.  at  p.  293.  app.    Wheeler   resp.    (1860)    8    C.   B. 

(n)    (1852)    12  C.  B.  801,  22  L.  J.  N.    S.    299,    316.      Savigny,    Syst.    8. 

C.  P.  1 ;  and  see  per  Lord  Blackburn  270,    also    takes    the    opposite    view. 

in   Maddison  v.   Alderson,  note    (g),  The. case  also  took  {obiter)  a  distinc- 

last  page.  tion  between   s.   4   and   s.    17,   which 

(o)    Leroux   v.    Broion,    last   note,  was  not  generally  accepted. 

the  land  and  cut  the  trees,  and  if  the  timber  is  cut  before  revocation  of  the 
license  title  to  it  passes.  Owens  v.  Lewis,  46  Ind.  488 ;  Erskine  r.  Plummer, 
7  Me.  447 ;  Spalding  v.  Archibald,  52  Mich.  365 ;  Williams  v.  Flood,  63  Mich. 
487 ;  Macomber  r.  Detroit,  etc.,  E.  Co.,  108  Mich.  491 ;  Pierrepont  r.  Barnard, 
6  N.  Y.  279;  Buck  r.  Pickwell,  27  Vt.  157. 

zo  Ace.  Eochefoucauld  v.  Boustead,  [1897]  1  Ch.  196,  207;  Buhl  v.  Stephens, 
84  Fed.  Eep.  922 ;  Kleeman  r.  Collins,  9  Bush,  460 ;  Heaton  v.  Eldridge.  But 
see  Miller  v.  Wilson,  146  111.  527;   Cochran  r.  Ward,  5  Ind.  App.  89. 


AGREEMENTS    WITHIN    STATUTE    OF    FRAUDS.  785 

this  decision  and  the  reasons  given  for  it  are  correct,  it  would  seem 
to  follow  that  a  foreign  or  colonial  court  ought  to  enforce  an  English 
agreement,  notwithstanding  that  it  was  informal  under  s.  4  of  the 
Statute  of  Frauds,  if  it  had  the  general  requisites  of  a  valid  con- 
tract in  English  law,  and  was  not  informal  according  to  the  local 
law  of  procedure. 

It  has  even  been  argued  that  the  words  "  no  action  shall  be 
brought "  confine  the  operation  of  the  statute  to  civil  process,  so  that 
an  informal  agreement  for  service  not  to  be  performed  within  a  year 
might  be  enforced  by  criminal  *process  under  the  Master  and  [652 
Servant  Act,  1867.  But  the  Court  held  that  such  a  construction 
would  be  too  unreasonable,  and  the  statute  must  mean  that  informal 
agreements  are  not  to  be  enforced  in  any  way  (p). 

Results  of  imperfect  obligation  under  section  4  of  Statute  of  Frauds. 
It  being  established  that  the  informal  agreements  we  are  considering 
are  not  void,  it  follows  that  they  give  rise  to  imperfect  obligations. 
We  will  now  indicate  the  results.  We  have-  seen  that  neither  the 
obligation  itself,  nor  any  right  immediately  founded  on  it,  can  be 
directly  enforced.  But  it  is  recognized  for  the  purpose  of  explaining 
anything  actually  done  in  pursuance  of  it,  and  anything  so  done  may 
in  many  cases  be  a  good  consideration  for  a  new  obligation  on  a 
subsequent  and  distinct  contract,  or  a  sufficient  foundation  for  a 
new  obligation  quasi  ex  contractu.21 

a.  As  to  money  paid.  Money  paid  under  an  informal  agreement 
cannot  be  recovered  back  merely  on  the  ground  of  the  agreement 
not  being  enforceable.22  Thus  if  a  responsibility  has  been  assumed 
and  executed  under  a  verbal  guaranty,  the  guarantor  cannot  recover 

(p)   Banks  v.  Crossland   (1874)   L.  breaches    of    contract    in    particular 

R.  10  Q.  B.  97,  44  L.  J.  M.  C.  8.    The  cases    which    are    made    substantive 

Act  is  now  repealed  by  the  Employ-  offences  by  the  Conspiracy  and  Pro- 

ers   and   Workmen   Act,   1875    (38   &  tection  of  Property  Act,  1875    (38  & 

39  Vict.  c.  90).     Qu.  whether  the  de-  39  Vict.  c.  86). 
cision  be  applicable  to  the  malicious 

21  Consult  Browne  on  the  Stat,  of  Frauds,  Ch.  VIII.  Consenting  to  the 
rescission  of  a  contract  unenforceable  because  within  the  statute  is  a  good  con- 
sideration for  a  promise.  Merchant  v.  O'Rourke,  111  la.  351;  Stout  r.  Ennis, 
28  Kan.  706. 

22  Mueller  v.  Wiebracht,  47  Mo.  468.  "  The  Statute  of  Frauds  does  not  affect 
the  common  law  right  of  retainer  by  an  administrator."  Berry  v.  Graddy, 
1    Met.    (Ky.)    553. 

So  a  creditor  receiving  a  payment  from  his  debtor,  without  any  direction  as 
to  its  application,  may  apply  it  to  payment  of  a  debt  on  which  the  statute 
does  not  permit  an  action  to  be  maintained.  Murphy  v.  Webber,  61  Me.  478; 
Haynes  v.  Nice,  100  Mass.  327.      Cp.  supra,  p.  775. 

50 


?86  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

back  the  money  paid  by  him  (q).23  So  a  purchaser  cannot  recover 
a  deposit  paid  on  an  informal  agreement  for  the  sale  of  land,  the 
vendor   remaining   ready   and   willing  to   complete  (r).2i     And   not 

(?)    Shaw  v.   Woodcock    (1827)    7  (r)   Thomas  v.  Brown   (1876)   1  Q. 

B.  &  C.  73.  83,  84,  31  R.  R.  158.     Cp.        B.  D.  714,  45  L.  J.  Q.  B.  811. 
Sweet  v.  Lee  (1841)   3  M.  &  Gr.  452. 

23  "  One  who  has  verbally  guaranteed  the  debt  of  another,  at  hia  request, 
may  pay  the  same  and  recover  the  amount  so  paid  in  an  action  against  the 
original  debtor."  Beal  v.  Brown,  13  Allen,  114;  Simpson  r.  Hall,  47  Conn. 
417  ;  Madden  r.  Floyd,  69  Ala.  221. 

"  Where  one  summoned  as  trustee  made  answer  that  a.  debt  was  due  from 
him  to  the  defendant,  but  that  he  had  verbally  promised  and  he  considered  him- 
self bound  to  pay  a  debt  to  a  greater  amount  due  from  the  defendant  to  a  third 
person,  it  was  held  that  he  was  not  obliged  to  set  up  the  Statute  of  Frauds  to 
avoid  this  promise,  and  that  if  he  chose  not  to  avail  himself  of  it  he  was  not 
chargeable  as  trustee."  Cahill  v.  Bigelow,  18  Pick.  369.  Ace.  Browning  v. 
Parker,   17   R.   I.    183. 

A  party  who  has  entered  into  an  agreement  which  he  cannot  be  compelled 
to  perform,  because  it  is  within  the  Statute  of  Frauds  and  not  in  writing,  is 
not  obliged,  in  behalf  of  a  third  person  not  interested  in  the  contract,  to  take 
that  objection,  nor  can  such  third  person  take  advantage  of  the  statute  on 
that  account,  to  avoid  a  collateral  liability  to  him.  Tibbetts  v.  Flanders,  18 
N.  H.  284.  And  see  Moore  v.  Crawford,  130  U.  S.  122;  Kemp  v.  National 
Bank,  109  Fed.  Rep.  48  (C.  C.  A.)  ;  Lavender  v.  Hall,  60  Ala.  214;  Cooper  v. 
Hornsby,  71  Ala.  62;  Brown  v.  Rawlings,  72  Ind.  505;  Dixon  r.  Duke,  85  Ind. 
434;  Chicago  Dock  Co.  v.  Kinzie,  49  111.  289;  King  v.  Bushnell,  121  III.  650; 
A.  R.  Beck  Co.  v.  Rupp,  188  111.  562;  Bohannon  v.  Pace,  6  Dana,  194;  Ames 
V.  Jackson,  115  Mass.  507,  512;  Bullard  v.  Smith,  139  Mass.  492;  Rickards 
v.  Cunningham,  10  Neb.  417;  Cresswell  v.  McCaig,  11  Neb.  222;  Livermore 
r.  Northrup,  44  N.  Y.  107 ;  Stowell  r.  Hazlett,  57  N.  Y.  637 ;  Rice  r .  Manly, 
66  N.  Y.  82 ;  Davis  r.  Inseoe,  84  N.  C.  396 ;  Lefferson  v.  Dallas,  20  Ohio  St. 
68;  Houser  v.  Lamont,  55  Pa.  311;  Bank  v.  Bertschy,  52  Wis.  438. 

The  same  is  true  of  a  claim  unenforceable  because  barred  by  the  Statute  of 
Limitations.  Allen  r.  Smith,  129  U.  S.  465;  Mathesius  r.  Railroad  Co.,  96 
Fed.  Rep.  792;  Hanchett  v.  Blair,  100  Fed.  Rep.  817;  Wright  v.  Wright, 
103  Fed.  Rep.  580;  Vansickle  r.  Wells,  Fargo  &  Co.,  105  Fed.  Rep.  16; 
Brookfield  Bank  v.  Kimble,  76  Ind.  195;  Jackson  r.  Stanfield,  137  Ind.  592; 
City  Bank  v.  Wright,  68  la.  132;  Ullman  r.  Thomas,  126  Mich.  61;  Frost  v. 
Steele,  46  Minn.  1 ;  Davton  Co.  r.  Sloan,  49  Neb.  622 ;  Manchester  v.  Tibbetts, 

121  N.  Y.  219;  McConnell  v.  Barber,  86  Hun,  360;  McAfee  v.  McAfee,  28 
S.  C.  188. 

But  an  exception  has  been  made  as  to  the  Statute  of  Limitations.  Where 
a  court  of  equity  or  bankruptcy  has  taken  possession  of  an  estate  for  distribu- 
tion among  creditors,  any  creditor  can  set  up  the  bar  of  the  statute  against 
the  claim  of  anothar.     Shewen  v.  Vanderhorst,  1  Russ.  &  M.  347 ;  Re  Lafferty, 

122  Fed.  Rep.  558;  Grattan  v.  Wiggins,  23  Cal.  25;  Sawyer  r.  Sawyer,  74 
Me.  579 ;  Dunn  r.  Beaman,  126  N.  C.  766 ;  Cartney  v.  Tyrer,  94  Va.  198,  202 ; 
Calloway's  Admr.  v.  Saunders,  99  Va.  350;  Werdenbaugh  v.  Reed,  20  W.  Va. 
588. 

24  See  Nelson  v.  Shelby  Mfg.  Co..  96  Ala.  515;  Venable  v.  Brown,  31  Ark. 
564;  Laffey  v.  Kaufman,  134  Cal.  391;  Day  v.  Wilson,  83  Ind.  463;  Whitnell 
r.  Bigham,  5  T.  B.  Mon.  191;  Gray  r.  Gray,  2  J.  J.  Marsh.  21;  Plummer  v. 
Bucknam,  55  Me.  105;  Coughlin  r.  Knowles,  7  Met.  57;  Clark  v.  Shehan,  27 
Minn.  328;  McKinney  v.  Harvie,  38  Minn.  18;  Sims  r.  Hutchins,  8  S.  &  M. 
328;  Galway  r.  Shields,  66  Mo.  313;  Abbott  r.  Draper,  4  Denio,  51;  Green 
r.  Railroad  Co.,  77  N.  C.  95;  Cobb  r.  Hall,  29  Vt.  510;  Hoskins  v.  Mitcheson, 
14  U.  C.  Q.  B.  551. 


MONEY    PAID    UNDER    INFORMAL    AGREEMENTS.  78? 

only  can  the  one  party  keep  money  actually  paid  to  him  by  the 
ether,  but  if  money  is  paid  by  A.  to  B.  in  order  to  be  paid  over  to  C. 
in  pursuance  of  an  informal  agreement  between  A.  and  C.  which 
C.  has  executed,  then  C.  can  recover  it  as  money  received  to  his  use.25 
In  Griffith  v.  Young  (s)  the  plaintiff  was  the  defendant's  landlord. 
The  defendant  wished  to  assign  to  one  P.,  which  he  could  not 
*do  without  the  plaintiff's  consent.  It  was  verbally  agreed  that  [653 
P.  should  pay  the  defendant  100L  for  goodwill,  out  of  which  the  de- 
fendant was  to  pay  40 1,  to  the  plaintiff  for  his  consent  to  the  as- 
signment. P.  knowing  of  this  agreement  paid  the  100L  to  the 
defendant :  it  was  held  that  the  defendant  was  liable  to  the  plaintiff 
for  iOl.  in  an  action  for  money  received  to  his  use.  Lord  Ellenborough 
said :  "  If  one  agree  to  receive  money  for  the  use  of  another  upon 
consideration  executed,  however  frivolous  or  void  the  consideration 
might  have  been  in  respect  of  the  person  paying  the  money,  if  indeed 
it  were  not  absolutely  immoral  or  illegal,  the  person  so  receiving  it 
cannot  be  permitted  to  gainsay  his  having  received  it  for  the  use 
of  that  other." 

On  the  same  principle,  if  on  the  faith  of  an  informal  agreement 
money  has  been  paid  in  advance  to  a  party  who  afterwards  refuses 
or  fails  to  perform  lis  part  of  it,  or  has  been  expended  on  his  ac- 
count, it  is  conceived  that  proof  of  the  agreement  may  be  admitted 
to  show  what  was  in  fact  the  consideration  which  has  failed  (t).26 

But  an  executor  may  not  pay  or  retain  a  debt  which  by  reason  of 
the  Statute  of  Frauds  the  creditor  cannot  enforce  (u). 

B.  As  to  agreement  executed.  The  execution  of  an  informal  agree- 
ment may  be  shown  as  a  fact,  and  the  party  who  has  had  some  benefit 

(s)    (1810)    12  East  513,  11  R.  R.  («)    Re    Bownson    (1885)     29    Ch. 

478.  Div.  358,  54  L.  J.  Ch.  950. 

(t)   See  Pulirook  v.  Lowes  (1876) 
1  Q.  B.  D.  284,  45  L.  J.  Q.  B.  178. 

25  Garrett's  Admrs.  v.  Garrett,  27  Ala.  687. 

28 "  The  principle  seems  to  be  perfectly  well  settled,  and  is  sustained  by 
very  numerous  authorities,  that  where  a  party  to  an  agreement  void  by 
the  Statute  of  Frauds  fails  to  execute  it,  the  price  advanced,  or  the  value 
of  the  article  delivered  in  part  performance  of  the  contract,  whether  in 
money,  labor,  or  chattels,  may  be  recovered  back."  Smith  v.  Admrs.  of  Smith, 
28  N.  J.  L.  208,  217;  Barickman  v.  Kuykendall,  6  Blackf.  21;  Jarboe  v. 
Severin,  85  Ind.  496;  Bogard  v.  Turner,  23  Ky.  L.  Rep.  625;  Jellison  v. 
Jordan,  68  Me.  373;  Segars  v.  Segars,  71  Me.  530;  Kidder  r.  Hunt,  1  Pick.  328; 
Cook  v.  Doggett,  2  Allen,  439;  White  v.  Wheland,  109  Mass.  291;  Parker  v. 
Tainter,  123>  Mass.  185;  Sovereign  v.  Ortman,  47  Mich.  181;  Herrick  v.  New- 
ell 49  Minn.  198 ;  Hairston  r.  Jaudon,  42  Miss.  380 ;  Dickerson  v'.  Mays,  60 
Miss.  388;  Lucy  v.  Bundy,  9  N.  H.  298;  Moody  v.  Smith,  70  N.  Y.  598; 
Wilkie  v.  Womble,  90  N.  C.  254;  Hawley  r.  Moody,  24  Vt.  603;  Gifford  v. 
Willard,  55  Vt.  36;  Clark  r.  Davidson,  53  Wis.  317. 


788  AGEEEMEXTS    OF    IMPEEFECT    OBLIGATION. 

l'rom  such  execution,  so  as  in  fact  to  get  what  he  bargained  for,  can- 
not treat  the  bargain  as  a  nullity.  Thus  the  delivery  of  possession 
under  an  informal  agreement  for  the  sale  of  land  is  a  good  con- 
sideration for  a  promissory  note  for  the  balance  of  the  purchase- 
money  (a;).27  It  was  held  in  the  case  cited  that  the  bargain  was  for  a 
future  conveyance,  and  that  the  defendant,  who  did  not  deny  the 
654]  plaintiffs'  allegation  that  they  were  willing  to  convey,  had  got 
all  he  bargained  for. 

The  same  holds  of  an  account  stated.  In  Cocking  v.  Ward  (y) 
there  was  an  oral  agreement  by  an  incoming  tenant  from  year  to  year 
to  pay  100/.  to  the  outgoing  tenant:  it  was  held  that  the  agreement 
was  within  s.  4  of  the  statute,  and  the  outgoing  tenant  could  not 
recover  the  100Z.  on  the  agreement  itself,  but  that  on  an  account 
stated  he  could. 

Again,  money  due  simply  under  an  informal  agreement  from  the 
plaintiff  to  the  defendant  cannot  of  course  be  set  off;  but  the  per- 
formance of  an  informal  agreement  by  the  defendant  may  be  good 
as  an  accord  and  satisfaction.  In  Lavery  v.  Turley  («)28  the  plain- 
tiff sued  for  goods  sold,  &c. :  the  defendant  pleaded  an  equitable  plea 
showing  that  in  pursuance  of  an  agreement  between  the  parties 
(which  turned  out  to  be  verbal)  the  defendant  had  given  up  to  the 
plaintiff  possession  of  a  house  and  premises  in  satisfaction  of  the 
causes  of  action  sued  upon.  The  plea  was  held  good,  and  it  seems 
it  was  good  enough  at  law  (per  Bramwell  and  Channell  BB.).  Pol- 
lock C.B.  said :  "  It  is  pleaded  as  a  fact  that  the  defendant  performed 
the  agreement  and  the  plaintiff  accepted  such  performance  in  satis- 
faction. The  objection  that  the  agreement  was  not  in  writing  is 
got  rid  of.    The  fourth  section  of  the  Statute  of  Frauds  does  not  ex- 

(x)   Jones  v.  Jones   (1840)   6  M.  &  (z)    (1860)  6  H.  &  N.  239,  30  L.  J. 

W.  84.  Ex.  49. 

(y)    (1845)    1   C.  B.  858,  15  L.  J. 
C.  P.  245. 

27  Gillespie  v.  Battle,  15  Ala.  276;  Eidelin  v.  Clarkson's  Exrs.,  3  B.  Man. 
31;  Ott  i".  Garland,  7  Mo.  28.  An  oral  promise  to  convey  land  is  a  sufficient 
consideration  for  a  promissory  note,  and  if  the  vendor  shows  himself  able 
and  willing  to  perform,  he  can  recover  upon  the  note.  Sehierman  t".  Beckett. 
88  Ind.  52;  McGowen  v.  West,  7  Mo.  569;  Crutchfield  v.  Donathori,  49  Tex. 
691. 

In  an  action  for  use  and  occupation  of  land,  the  existence  of  a  parol  agree- 
ment may  be  proved  to  show  that  the  defendant  entered  by  permission  of  the 
plaintiff.  Whitney  r.  Cochran,  1  Scam.  209;  Little  t.  Martin,  3  Wend. 
219. 

28  Ace.  Bechtel  v.  Cone,  52  Md.  698. 


AGREEMENTS  WITHIN  STATUTE  OF  FRAUDS.  789 

elude  unwritten  proof  in  the  case  of  executed  contracts  "  (a) .  This 
of  course  does  not  mean  that  the  agreement  itself  can  in  any  case  be 
sued  upon  (a).29 

It  is  admitted  that  if  A.  agrees  informally  with  X.  to  sell  land 
to  him,  and  afterwards  agrees  in  writing  to  sell  the  same  land  to  Z., 
and  then  conveys  to  X.  in  pursuance  *of  the  first  agreement,  [655 
Z.  has  no  equity  as  against  X.  (&). 

(a)      Cp.     Souch     v.     Stradvbridge  L.  E.   10  Ex.  234,  238,  241,  44  L.  J. 

(1846)   2  C.  B.  808,  814,  15  L.  J.  C.  Ex.  210. 

P.   170,   and  remarks   on  the  dictum  (6)    Dawson  v.  Ellis    (1820)    1   J. 

there  in  Sanderson  v.  Graves   (1875)  &  W.  524,  21  R.  R.  227. 

29 "  The  Statute  of  Frauds  has  no  application  to  a  contract  which  has 
been  fully  performed  on  both  sides."  Stone  v.  Dennison,  13  Pick.  1.  See 
post,  p.  823.  In  the  case  at  least  of  contracts  not  to  be  performed  within  a 
year  the  weight  of  authority  is  to  the  effect  that  if  the  contract  is  executed 
on  one  side  -the  statute  does  not  apply.  Donellan  r.  Read,  3  B.  &  A.  899 ; 
Cherry  v.  Heming,  4  Ex.  631 ;  Fernald*  v.  Gilman,  123  Fed.  Rep.  797 ;  Rake's 
Admr.  r.  Pope,  7  Ala.  161;  Manning  v.  Pippen,  95  Ala.  537,  541;  Johnson  r. 
Watson,  1  Ga.  348;  Fraser  v.  Gates,  118  111.  99,  112;  Haugh  v.  Blythe,  20 
Ind.  24;  Piper  r.  Fosher,  121  Ind.  407;  Smalley  v.  Greene,  52  la.  241;.  Dant 
v.  Head,  90  Ky.  255;  Jones  v.  Comer,  25  Ky.  L.  Rep.  773;  Blanton  r.  Knox, 
3  Mo.  342 ;  Bless  r.  Jenkins,  129  Mo.  647 ;  Marks  v.  Davis,  72  Mo.  App.  557 ; 
Blanding  v.  Sargent,  33  N.  H.  239;  Little  r.  Little,  36  N.  H.  224;  Perkins 
r.  Clay,  54  N.  H.  518;  Durfee  r.  O'Brien,  16  R.  I.  213;  Gee  v.  Hicks,  1  Rich. 
Eq.  5;  Reed  v.  Gold,  102  Va.  37;  McGlellan  v.  Sanford,  26  Wis.  595;  Wash- 
burn v.  Dosch,  68  Wis.  436.  See  also  Sheehy  v.  Adarene,  41  Vt.  541.  Contra, 
Berry  r.  Graddy,  1  Met.  (Ky.)  553;  Marcy  v.  Marcy,  9  Allen,  8;  Ivelley  v. 
Thompson,  175  Mass.  427;  Buckley  v.  Buckley,  9  Nev!  373;  Bartlett  v.  Whee- 
ler, 44  Barb.  162;  Broadwell  v.  Getman,  2Deeio,  87;  Parks-rr.  Francis,  50 
Vt.  626.  And  see  also  Reinheimer  v.  Carter,  31  Ohio  St.  579,  587.  When  an 
agreement  within  the  statute  has  been  fully  performed,  by  one  of  the  parties, 
and  the  benefit  thereof  has  inured  to  the  others  so  that-in  the  absence  of  an 
express  promise  of  compensation  one  would  have  been  implied  (see  Diddle 
V.  Needham,  39  Mich.  147 ) ,  an  action  lies  in  favor  of  the  party  who  has 
performed.  Walsh  v.  Colclough,  56  Fed.  Rep.  778;  Butler  v.  Lee,  11  Ala. 
885;  Worden  v.  Sharp,  56  111.  104;  McDonald  r.  Crosby,  192  111.  283;  Curran 
V.  Curran,  40  Ind.  473;  StephensoiTTTr  Arnold,  89  Ind.  426;  Wallace  v. 
Long,  105  Ind.  522;  Schoonover  r.  Voochow,  121  Ind.  3;  Atchison,  etc.,  R. 
Co.  i:  English,  38  Kan.  110;  Wonsettler  r.  Lee,  40  Kan.  367;  Dant  v.  Head 
90  Ky.  255 ;  Lally  r,  Crookston  Co.,  85  Minn.  256 ;  Galley  v.  Galley,  14  Neb. 
174;  Griffith  v.  Thompson,  50  Neb.  424 ;  yMcElroy  r.  Ludlum,  32  N.  J.  Eq. 
828;  Buckingham  v.  Ludlum,  37  N.  J.  Eq.  137;  Towsley  v.  Moore,  30  Ohio 
St.  184;  King  v.  Brown,  2  Hill,  485;  Brown  r.  Bell,  20  Johns.  338;  Durfee 
v.  O'Brien,  16  R.  I.  213;  King  v.  Smith,  33  Vt.  22,  25;  Carter  i:  Brown,  3 
S.  C.  298;  Grace  v.  Lynch,  80  Wis.   166. 

In  the  case  of  an  agreement  of  hiring  and  service  not  to  be  performed 
within  a  year,  if,  after  part  performance  thereof,  the  employer  refuses  to  go 
on  the  employee  may  recover  upon  a  quantum  meruit.  W.  B.  Steel  Work 
V.  AtHnson,  68  111.  421;  Wallace  v.  Long,  105  Ind.  522;  Murphy  r.  De  Haahn, 
116  la.  61;  Hambell  v.  Hamilton,  3  Dana,  591;  Hamilton  r.  Thirston,  93 
Md.  213;  Williams  r.  Bemis,  108  Mass.  91;  Spinney  r.  Hill,  81  Minn.  316; 
Updike  r.  Ten  Broeck,  32  N.  J.  L.  105,  116.  But  not  if  the  plaintiff  himself 
has  refused  to  go  on,  the  defendant  having  been  willing  to  perform  the 
agreement.  Swanzey  r.  Moore,  22  111.  63;  Kriger  v.  Leppel,  42  Minn,  i; 
Galvin  r.  Prentice,  45  N.  Y.  162;  Abbott  r.  Inskip,  29  Ohio  St.  59;  Mack  v. 
Bragg,   30  Vt.  571.     Contra,  Comes  v.  Lamson,   16  Conn.  246    (ep.  Clark  v. 


790  AGREEMENTS    OF    IMPERFECT    OBLIGATION". 

0.  Part  performance  in  equity.  It  is  a  well-known  doctrine  of  equity30 
that  one  who  has  partly  performed  an  informal  agreement  for  the 
purchase  or  hiring  of  land  (c)  is  entitled  to  and  can  sue  for  a  specific 
performance  at  the  hands  of  the  other  party,  if  the  acts  of  part  per- 
formance have  been  done  on  the  faith  of  an  existing  agreement,  and 
have  been  of  such  a  kind  that  the  parties  cannot  be  restored  to  their 
original  position,  and  if  the  existence  of  an  agreement  is  reasonably 
to  be  inferred  from  the  acts  themselves,  or  they  are  "unequivocally 
referable  to  the  contract"  (d).sl  This  seems  to  be  the  real  mean- 
ing of  the  distinctions  as  to  what  is  or  is  not  a  sufficient  part  per- 
formance. Payment  of  money  is  in  itself  an  equivocal  act,  and 
therefore  the  part  payment  of  purchase-money  is  not  a  sufficient  part 
performance  (e).32  But  payment  of  increased  rent  by  a  yearly  tenant 
holding  over  has  been  held  a  sufficient  part  performance  of  an  agree- 
ment for  a  lease  (/)  .^  Here  the  part  performance  consists  not  in  the 
payment  itself,  but  in  a  possession  which,  though  continuous  in  time 
with  the  old  possession  of  the  plaintiff  as  yearly  tenant,  is  shown  to 
be  in  fact  referable  to  some  new  agreement  (g).     This  doctrine  of 

(c)  The  doctrine  is  not  extended  planation  of  that  ease  by  Baggallay 
to  other  transactions,  Britain  v.  Ros-  L.J.  in  Humphreys  v.  Green  (1882) 
siter  (1879)  11  Q.  B.  Div.  123,  131,  10  Q.  B.  Div.  at  p.  156,  52  L.  J.  Q.  B. 
48  L.  J.  Ex.  362.  See,  however,  per  140;  diss.  Brett  L.J.  10  Q.  B.  Div.  p. 
Kay  J.  McManus  v.  Cooke  (1887)  160;  and  per  Byrne  J.  Miller  &  Aid- 
35  Ch.  D.  68L.  697,  56  L  J.  Ch.  662.  worth  v.  Sharp  [1899]  1  Ch.  622,  624. 

(d)  Maddison  v.  Alderson  (1883)  (g)  On  the  general  theory  of  pos- 
8  App.  Ca.  at  p.  476;  Bell's  Princi-  session  as  constituting  part  perform- 
ples,  479,  cited  by  Lord  Selborne,  ib.  ance  see  per  Jessel  MR.  Ungley  f. 
at  p.  477.  Ungley   (1877)   5  Ch.  Div.  at  p.  890: 

(e)  Lord  Selborne,  8  App.  Ca.  at  "The  reason  is  that  possession  by  a 
p.  479.  stranger   is   evidence  that  there  was 

(f)  Nunn  v.  Fabian  (1865)  L.  R.  some  contract,  and  is  such  cogent 
1  Ch.  35,  35  L.  J.  Ch.  140.     See  ex-  evidence   as   to  compel  the   Court  to 

Terry,  25  Conn.  395);  Tague  v.  Hayward,  25  Ind.  427;  King  v.  Welcome, 
5  Gray,  41;  Freeman  v.  Foss,  145  Mass.  361.  And  see  Bernier  v.  Cabot  Mfg. 
Co.,  71  Me.  506;  Fuller  v.  Rice,  52  Mich.  435;  Draheim  v.  Evison,  112  Wis.  27. 
so  This  doctrine  is  confined  to  courts  of  equity.  See  Ames'  Cas.  Eq.  Jur. 
314,  n.  3;  Kling  v.  Bordner,  65  Ohio  St.  86. 

31  See  also  Hodson  r.  Heuland,  [1896]  2  Ch.  428;  Riggles  v.  Erney,  154 
U.  S.  224;  Harman  v.  Harman,  70  Fed.  Rep.  894;  Cooley  v.  Lobdell,  153  N.  Y. 
596 ;  Shahan  v.  Swan,  48  Ohio  St.  25,  38 ;  Scott  v.  Lewis,  40  Oreg.  37. 

32  See  Pomeroy  on  Spec.  Perf.,  §§  112-114;  Townsend  r.  Vanderwerker, 
160  U.  S.  171 ;  Cooley  v.  Lobdell,  153  N.  Y.  596. 

Services  rendered  were  held  insufficient  in  Edward  v.  Estelle,  48  Cal.  194, 
196;  Crabill  v.  Marsh,  38  Ohio  St.  331;  Kling  v.  Bordner,  65  Ohio  St.  86. 
See  also  Maddison  v.  Alderson,  8  A.  C.  467.  But  see  contra,  Sharkey  r. 
McDermott,  91  Mo.  647  (see  also  Kinney  r.  Murray,  170  Mo.  674)  ;  Davison 
v.  Davison,  13  N.  J.  Eq.  246;  Rhodes  r.  Rhodes,  3  Sandf.  Ch.  279;  Lothrop 
v.  Marble,  12  S.  Dak.  511. 

33  See  Franke  r.  Riggs,  93  Ala.  252;  Spear  r.  Orendorf,  26  Md.  37;  Sim- 
mons v.  Headlee,  94  Mo.  482;  Gallagher  r.  Gallagher,  31  W.  Va.  9;  Conner 
v.  Fitzgerald,  11  L.  R.  Ir.  106. 


PART    PERFORMANCE.  791 

part  performance  is  not  in  *direct  contradiction  of  the  Statute  [656 
of  Frauds.  It  would  be  erroneous  to  say  that  a  court  of  equity  accepts 
proof  of  an  oral  agreement  and  part  performance  of  a  substitute  for 
the  evidence  required  by  the  statute.  The  plaintiff's  right  in  the 
first  instance  rests  not  on  contract  but  on  a  principle  akin  to  estoppel ; 
the  defendant's  conduct  being  equivalent  to  a  continuing  statement 
to  some  such  effect  as  this:  It  is  true  that  our  agreement  is  not 
binding  in  law,  but  you  are  safe  as  far  as  I  am  concerned  in  acting 
as  if  it  were.  A  man  cannot  be  allowed  to  set  up  the  legal  invalid- 
ity of  an  agreement  on  the  faith  of  which  he  has  induced  or  allowed 
the  other  party  to  alter  his  position  (h).3*  In  the  law  of  Scotland 
such  facts  are  said  to  "raise  a  personal  exception"  (i).  The  same 
principle  of  equity  is  carried  out  in  cases  of  representation  independ- 
ent of  contract  (see  pp.  *659,  *660,  below)  and  even  of  mere  acquies- 
cence. In  equity  an  owner  may  be  estopped  by  acquiescence  from 
asserting  his  rights,  although  there  has  not  been  any  agreement  at 
all  (h).35    This  also  explains  why  the  plaintiff  must  show  part  per- 

admit   evidence  of  the  terms   of  the  law    are    compared    by    Lord    Cran- 

contract   in   order   that   justice   may  worth  in  Jorden  v.  Money    (1854)    5 

be    done    between    the    parties";    to  H.  L.  C.  185,  213,  23  L.  J.  Ch.  865: 

same  effect  Cotton  L.J.  in  Britain  v.  and  by  Lord  Campbell  in  Piggott  v. 

Rossiter   (1879)    11   Q.  B.  Div.  at  p.  titration  (1859)  1D.F.4  J.  33,  49,  29 

131.     This  holds  even  where  the  pos-  L.   J.   Ch.    1.     It  must  be   admitted, 

session  was   taken   before   the   agree-  however,  that  the  recent  authorities 

ment     was     concluded:      Hodson     v.  do  not  exhibit  a  very  definite  or  set- 

Heuland   [1896]   2  Ch.  428,  65  L.  J.  tied  theory. 
Ch.  754.'  (i)  Bell,  cited  by  Lord  Selborne,  8 

(h)    Caton  v.  Caton   (1865)    L.  R.  App.  Ca.  476. 
1    Ch.   at  p.   148,   35   L.  J.   Ch.   292;  (ft)   See  Ramsden  v.  Dyson   (1865) 

Morphett  v.  Jones    (1818)    1  Swanst.  L.  R.  1  H.  L.   129,   140,  168;  Powell 

at  p.    181,   18  R.   R.   p.   54;   Dale  v.  v.    Thomas    (1848)    6   Ha.    300;    and 

Hamilton    (1846)    5   Ha.   at   p.   381;  the  remarks   of   Fry  J.   in   Willmott 

accordingly  the  cases  on  estoppel  at  v.  Barber  (1881)    15  Ch.  D.  96,  105. 

34  Williams  v.  Morris,  95  U.  S.  444,  457;  Tate  r.  Jones,  16  Fla.  216,  242; 
Temple  v.  Johnson,  71  111.   13;   Morrison  r.  Herrick,   130  111.  631;   Edwards 
v.  Fry,  9  Kan.  417;   Green  v.  Jones,  76  Me.  563;  Woodbury  v.  Gardner,  77 
Me.  68;  Bennett  r.  Dyer,  89  Mfe.   17;   Semmes   v.  Worthington,  38  Md.  298, 
327;    Glass  v.   Hulbert,   102  Mass.   24;    Potter  v.   Jacobs,   111   Mass.   32,  37 
Jorgensen  v.  Jorgensen,  81  Minn.  428;   Brown  r.  Brown,  33  N".  J.  Eq.  650 
Nibert  v.  Baghurst,  47   N.  J.  Eq.  201;    Freeman  v.   Freeman,  43   N.  Y.   34 
Beardsley  v.  Duntley,  69  N.  Y.  577;  Armstrong  v.  Kattenhorn,  11  Ohio,  265, 
271;  Wright  v.  Puckett,  22  Gratt.  370. 

35  Foster  v.  Bear  Valley  Co.,  65  Fed.  Rep.  836 :  Blake  v.  Cornwell.  65  Mich. 
467;  Slingerland  v.  Slingerland,  39  Minn.  197;  Railroad  Co.  r.  Ragsdale,  54 
Miss.  200 ;  Dellett  v.  Eemble,  23  N.  J.  Eq.  58 ;  Sumner  v.  Seaton,  44  N.  J.  Eq. 
103;  Brown  v.  Bowen,  30  N.  Y.  519,  541,  544;  Burkard  v.  Crouch,  169  N.  Y. 
399 ;  Brooks  v.  Curtis,  4  Lans.  283 ;  Quinlan  r.  Myers,  29  Ohio  St.  500 ;  Curtis 
v.  La  Grande  Water  Works,  20  Oreg.  34;  Marines  v.  Goblet,  31  S.  C.  153; 
Wampol  v.  Kountz,  14  S.  Dak.  334;  Stone  v.  Tyree,  30  W.  Va.  687.  See 
also  Peek  v.  Peek,  77  Cal.  107. 


792  AGBEEMENTS    OF    IMPERFECT   OBLIGATION. 

formance  on  his  own  side,  and  part  performance  by  the  defendant 
would  be  immaterial  (Z).S6  AVhen  the  Court  is  satisfied  that  the 
plaintiff  has  altered  his  position  on  the  faith  of  an  agreement,  and 
that  the  defendant  cannot  be  heard  to  deny  the  existence  of  that 
agreement,  it  proceeds  to  ascertain  by  the  ordinary  means  what  the 
terms  of  the  agreement  were.  The  proof  of  this  is  strictly  collateral 
657  ]  to  *the  main  issue,  though  the  practical  result  is  that  the  agree- 
ment is  enforced. 

D.  Ante-nuptial  agreements.  The  case  of  an  agreement  in  considera- 
tion of  marriage  presents  special  difficulties,  and  has  to  be  treated 
iu  an  exceptional  manner.  This  subject  is  fully  discussed  in  the  late 
Mr.  Davidson's  volume  on  settlements  (Dav.  Conv.  vol.  3,  part  1, 
appendix  No.  1,  to  which  place  the  reader  is  referred  for  details). 
It  is  thoroughly  settled  that  the  marriage  itself  does  not  constitute 
such  a  part  performance  as  to  make  the  agreement  binding  in  equity 
in  the  manner  just  mentioned,  though  other  acts  may  have  that 
effect  (m).37 

Effect  of  confirmation  by  post-nuptial  writing.  The  next  question  is, 
what  is  the  effect  of  a  post-nuptial  "  note  or  memorandum  "  satisfying 
the  requisites  of  the  statute  on  ante-nuptial  informal  agreement? 

The  authorities  are  not  very  clear  on  this  point.  It  is  submitted 
however  that  if  attention  be  given  to  the  actual  decisions  rather  than 
to  the  language  used  on  various  occasions,  little  or  no  real  conflict 
will  be  found.  It  is  not  the  Statute  of  Frauds  alone  that  has  to  be 
considered  in  these  cases,  but  also  the  statute  of  13  Eliz.  c.  5,  and 
the  extensive  application  of  it  by  judicial  construction  to  voluntary 
dispositions  of  property.  Two  distinct  questions  are  in  fact  raised : 
namely  whether  an  informal  ante-nuptial  agreement  can  after  the 
marriage  be  rendered  valid  as  against  the  promisor,  and  whether 
a  post-nuptial  settlement  can  be  made  to  relate  back  to  such  an 
agreement  so  as  to  be  deemed  a  settlement  made  for  valuable  con- 
sideration and  thus  be  rendered  valid  as  against  creditors. 

(I)    Caton  v.  Caton,  note  (h).  come  v.  Pinniger  (1853)  3  D.  M.  &  G. 

(m)      See     Lassence     v.      Tierney       571,  575,  22  L.  J.  Ch.  419. 
(1849)    1  Mac.  &  6.  551,  571;   Sur- 

36  Glass  r.  Hulbert,  102  Mass.  24,  31;  Luckett  r.  Williamson.  37  Mo.  388. 

37  See  Peek  v.  Peek,  77  Cal.  107;  Moore  v.  Allen.  26  Col.  197;  Bradley  r. 
Sadler,  54  Ga.  681;  White  r.  Bigelow,  154  Mass.  593;  Xowack  r.  Berger, 
133  Mo.  24;  Manning  v.  Riley,  52  N.  J.  Eq.  39;  Russell  c.  Russell,  60  N.  J. 
Eq.  282 ;  Finch  v.  Finch,  10  Ohio  St4,  501 ;  Henry  v.  Henry,  27  Ohio  St.  121 ; 
Adams  v.  Adams,  17  Oreg.  248;  Flory  r.  Hauck,  186  Pa.  263. 


AGREEMENTS    IN    CONSIDERATION    OF    MARRIAGE.  793 

Good  as  against  promisor:  Barkworth  v.  Young.  The  first  question  is 
answered  in  the  affirmative  by  the  decision  in  Barkworth  v.  Young  (k)-38 
The  case  was  decided  on  demurrer,  and  the  facts  assumed  by  the 
Court  on  the  case  made  by  the  plaintiff's  bill  were  to  this  effect.  The 
testator  against  whose  estate  the  suit  was  brought  had  *orally  [658 
promised  his  daughter's  husband  before  and  in  consideration  of  the 
marriage  that  at  his  death  she  should  have  an  equal  share  of  his 
property  with  his  other  children.  After  the  marriage  the  testator 
made  an  affidavit  in  the  course  of  a  litigation  unconnected  with  this 
agreement,  in  which  he  incidentally  admitted  it.  It  was  held  that 
the  affidavit  was  a  sufficient  note  or  memorandum  of  the  agreement 
within  the  Statute  of  Frauds,  and  that  as  such,  although  subse- 
quent to  the  marriage,  it  rendered  the  agreement  binding  on  the 
testator. 

Bad  as  against  settlor's  creditors:  Warden  v.  Jones.  The  second  ques- 
tion is  answered  in  the  negative  by  the  almost  contemporaneous  de- 
cision in  Warden  v.  Jones  (o).  That  was  a  creditor's  suit  to  set  aside 
a  post-nuptial  settlement.  It  was  attempted  to  support  the  settlement 
as  having  been  made  pursuant  to  an  oral  ante-nuptial  agreement. 
This  agreement  was  not  referred  to  in  the  settlement  by  any  recital 
or  otherwise.  It  was  held  both  by  Eomilly  M.R.,  and  by  Lord  Cran- 
worth  C.  on  appeal,  that  the  settlement  could  not  be  supported :  and 
Lord  Cranworth  inclined  to  think  (p)  that  if  the  settlement  had  ex- 
pressly referred  to  the  agreement  it  would  have  made  no  difference. 
It  has  now  been  held,  following  this  decision,  that  a  post-nuptial  set- 
tlement reciting  a  parol  ante-nuptial  agreement  is  void  against  the 
husband's  trustee  in  bankruptcy  (q). 

The  result  appears  to  be  that  even  if  the  imperfect  obligation 
arising  from  an  informal  ante-nuptial  agreement  can  be  made  perfect 
and  binding  as  between  the  parties  by  a  post-nuptial  note  or  memo- 
randum, the  marriage  consideration  cannot  in  this  way  be  imported 
into  a  post-nuptial  settlement  made  in  pursuance  of  the  agreement 
so  as  to  protect  it  from  being  treated  as  a  voluntary  settlement 
and  *subject  to  the  consequent  danger  of  being  set  aside  at  the  [659 

(n)    (1856)  4  Drew.  1,  26  L.  J.  Ch.  (q)   Re  Holland  [1901]  2  Ch.  145, 

153.  70  L.  J.  Ch.  625.     The  judgment  sug- 

(o)    (1867)   23  Beav.  487,  9  De  G.  gests  that  Barkworth  v.  Young  must 

&  J.  76,  27  L.  J.  Ch.  190.  be  treated  as  entirely  overruled,  but 

(p)     Notwithstanding    Dundas    v.  this,   it   is   submitted,   is   no   part  of 

Dutens   (1790)    1  Ves.  jun.  196,  1  R.  the  decision. 
R.   112. 

38  Ace.  Moore  v.  Harrison,  26  Ind.  App.  408 ;  Brinkley  v.  Brinkley,  128 
N.  C.  503.     But  see  McAnnulty  v.  McAnnulty,   120  111.  26. 


794  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

suit  of  the  settlor's  creditors.  There  seems  to  be  no  ground  in  either 
case  for  drawing  any  distinction  between  promises  made  by  one 
of  the  persons  to  be  married  and  promises  made  by  a  third  person 
to  either  of  them.  These  doctrines  appear  to  be  both  reasonable 
in  themselves  and  not  inconsistent  with  one  another.  There  is 
nothing  unexampled  in  a  transaction  being  valid  as  regards  the  parties 
to  it  and  invalid  as  regards  the  rights  of  other  persons.  It  is  diffi- 
cult to  see  why  a  writing  satisfying  the  requisites  of  the  statute 
should  in  this  case  be  deprived  of  its  effect  as  against  the  party  to  be 
charged  merely  by  reason  of  the  marriage  having  taken  place  between 
the  dates  of  the  original  promise  and  of  the  writing.  On  the  other 
hand  the  rights  of  creditors  would  be  in  serious  danger  if  a  mere 
reference  to  the  ante-nuptial  agreement,  of  which  there  was  no 
evidence  beyond  the  memory  of  the  persons  who  for  this  purpose 
would  have  a  common  interest  in  upholding  its  existence,  were  to  be 
admitted  to  make  a  post-nuptial  settlement  unimpeachable  (r).39 

E.  Informal  agreement  as  defence.  It  is  doubtful  how  far  an  in- 
formal agreement  varying  a  perfect  one  can  be  relied  on  as  a  defence 
to  an  action  brought  on  the  original  agreement.  On  principle  it 
would  seem  that  an  agreement  which  will  not  support  an  action 
ought  not  to  support  a  defence  (s),  and  there  is  good  authority  to 
that  effect  (t)  :  but  a  different  practice  appears  to  have  gained  ground 
of  late  years  (u). 

(r)     Cp.    the    remarks    of    Sir    T.  Voluntary    and    Fraudulent    Aliena- 

Plumer   M.R.    in   Battersbee   v.   Far-  tions  of  Property,  oh.  5,  p.  346  sqq. 
rington    (1818)    1   Swanst.    106,   113,  (s)  Cp.  Chapin  v.  Freeland  (1886) 

18    R.    R.    32,    doubting    whether    a  142  Mass.  383. 

recital    in   a,   post-nuptial    settlement  (t)   Nolle  v.  Ward   (1867)   L.  R.  2 

of      ante-nuptial      written      articles  Ex.   135,  Ex.  Ch. 
would  of   itself   as   against   creditors  (u)    Mr.  Ernest  C.  C.  Firth,  in  L. 

be  sufficient  evidence  of  the  existence  Q.  R.  ix.  366 — 372. 
of   such   articles.     And   see   May   on 

39 "  It  seems  very  idle,  not  to  say  frivolous,  to  attempt  any  distinction 
between  the  case  where  the  settlement  recites  the  parol  agreement,  and 
where  it  is  made  in  fulfillment  of  such  contract,  but  without  reciting  it." 
Story  Eq.  Jur.,  §  987a;  Satterthwaite  v.  Emley,  3  Green's  Ch.  489;  Reade 
v.  Livingston,  3  Johns.  Ch.  481. 

A  post-nuptial  settlement,  made  in  pursuance  of  an  oral  ante-nuptial  agree- 
ment, is,  so  far  as  creditors  are  concerned,  a  voluntary  conveyance.  Keady 
r.  White,  168  111.  76;  Elwell  r.  Walker,  52  la.  256;  White  v.  O'Bannon,  86 
Ky.  93;  Asher  v.  Brock,  95  Ky.  270;  Winn  v.  Albert,  5  Md.  66;  Deshon  r. 
Wood,  148  Mass.  132 ;  Manning  v.  Riley,  52  N.  J.  Eq.  39  ;  Reade  v.  Livingston, 
3  Johns.  Ch.  481;  Borst  v.  Corey,  15  N.  Y.  505;  Flory  v.  Hauck,  186  Pa. 
263;  Barnes  v.  Black,  193  Pa.  447,;  Izard  v.  Izard,  Bailey's  Eq.  228;  Smith 
i.  Green,  3  Humiph.   118. 

But  in  Clark  v.  McMahon,  170  Mass.  91,  such  a  conveyance  was  upheld 
against  creditors,  though  it  made  the  grantor  insolvent  on  the  ground  that 
it  did  not  appear  that  there  was  actual  fraudulent  intent. 


EQUITABLE  ESTOPPEL.  795 

Cases  of  equitable  estoppel  distinguished.  There  is  yet  another  class  of 
cases,  not  resting  on  contract  or  agreement  at  all,  in  which  courts  of 
equity  have  *compelled  persons  to  make  good  the  representa-  [660 
tions  concerning  existing  facts  (a;)  on  the  faith  of  which  they  have 
induced  others  to  act.40  The  distinction  is  pointed  out  hy  Eomilly 
M.E.  in  Warden  v.  Jones  (y)  :  and  the  extension  of  the  doctrine  to 
married  women  shows  very  forcibly  that  it  has  nothing  to  do  with 
contract  or  capacity  for  contracting:  for  a  married  woman's  in- 
terest in  property,  though  not  settled  to  her  separate  use,  has  re- 
peatedly been  held  to  be  bound  by  this  kind  of  equitable  estoppel  (2)  .41 

B.  "  Slip  "  in  marine  insurance  —  Acts  requiring  stamped  policy.  An- 
other curious  and  important  instance  of  an  imperfect  obligation  aris- 
ing out  of  special  conditions  imposed  on  the  formation  of  a  complete 
contract  is  to  be  found  in  the  case  of  marine  insurance.  In  practice 
the  agreement  is  concluded  between  the  parties  by  a  memorandum 
called  a  slip,  containing  the  terms  of  the  proposed  insurance  and 
initialed  by  the  underwriters  (a).  It  is  the  practice  of  some  insurers 
always  to  date  the  policy  as  of  the  date  of  the  slip  (&).  At  common 
law  the  slip  would  constitute  a  binding  contract.  This  however  is 
not  allowed  by  the  revenue  laws.  By  the  Stamp  Act,  1891  (54  &  55 
Vict.  c.  39),  s.  93  (c),  "A  contract  for  sea  insurance  (other  than 
such  insurance  as  is  referred  to  in  the  55th  section  of  the  Merchant 
Shipping  Act  Amendment  Act,  1862  (d))  [i.e.  *against  the  [661 
owner's  liability  for  accidents  of  the  kinds  mentioned  in  s.  54  of  that 

(x)  Per  Lord  Selborne,  Citizens'  complete  contract  of  insurance;  the 
Bank  of  Louisiana  V.  First  National  burden  of  proof  is  on  the  underwriter 
Bank  of  New  Orleans  (1873)  L.  B.  to  show  a  contrary  intention;  and 
6  H.  L.  352,  360,  43  L.  J.  Ch.  269;  there  is  not  any  implied  condition 
and  Maddison  v.  Alderson  ( 1883 )  8  that  a  policy  shall  be  put  forward 
App.  Ca.  at  p.  473.  for  signature  within  a  reasonable 
(y)  (1857)  23  Beav.  at  p.  493;  cp.  time:  Thompson  v.  Adams  (1889)  23 
Yeomans  v.  Williams  (1865)  L.  B.  Q.  B.  D.  361. 
1  Eq.  184,  186,  35  L.  J.  Ch.  283;  and  (6)  See  L.  E.  8  Ex.  199. 
see  Da  v.  Conv.  3,  640 — 646.  (0)  As  to  stamping  and  produc- 
ts) Shwrpe  v.  Foy  (1868)  L.  E.  4  tion  in  evidence  (which  does  not 
Ch.  35;  Lush's  trusts  (1869)  ib.  591.  affect  our  present  subject),  see  ss. 
(a)  For  the  form  of  this,  see  L.  E.  95 — 97:  there  is  a  special  penalty  of 
8  Q.  B.  471,  9  Q.  B.  420.  In  the  case  lOOi.  instead  of  the  usual  10Z.  for 
of  fire  insurance,  there  being  no  stamping  in  Court, 
statutory  requirement,  there  13  noth-  (d)  Now  Merchant  Shipping  Act. 
ing  to  prevent  a  slip  from  forming  a  1894,  s.  506. 

40  See  Pomeroy  Eq.  Jur.,   §   1294 ;   Ames'  Cas.  Eq.  Jur.   306-309 ;    Scott  r. 
Lane,  66  Pac.  Eep.  299   (Oreg.). 

41  As  to  estoppel  against  married  women,  see  supra,  p.  88,  n.  34 ;  against 
infants,  supra,  p.  82,  n.  27. 


796  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

Act]   shall  be  void  unless  the  same  is  expressed  in  a  policy  of  sea 
insurance." 

Earlier  statutes  on  the  matter  now  before  us  were  differently  worded, 
and  made  every  contract  of  insurance  "  null  and  void  to  all  intents 
and  purposes  "  which  was  not  written  on  duly  stamped  paper  or  did 
not  contain  the  prescribed  particulars.  (35  Geo.  3,  c.  63,  ss.  11,  14; 
54  Geo.  3,  c.  144,  s.  3 :  the  latter  statute  was  expressly  pointed,  as 
appears  by  the  preamble,  against  the  practice  '*  of  using  unstamped 
slips  of  paper  for  contracts  or  memorandums  of  insurance,  previously 
to  the  insurance  being  made  by  regular  stamped  policies.")  It  was 
settled  on  these  statutes  that  the  preliminary  slip  could  not  be  re- 
garded as  having  any  effect  beyond  that  of  a  mere  proposal  (e)  : 
and  it  was  even  held  that  the  slip  could  not  be  looked  at  by  a  court 
of  justice  for  any  purpose  whatever  (f).  The  change  in  the  language 
of  the  modern  statute  law,  which  dates  from  1867  (g),  has  given  the 
Courts  the  opportunity  of  adopting  a  more  liberal  construction  with- 
out actually  overruling  any  former  authorities. 

Modem  recognition  of  the  slip.  It  has  now  for  many  years  been  judici- 
ally recognized  that  the  slip  is  in  practice  and  according  to  the  under- 
standing of  those  engaged  in  marine  insurance  the  complete  and  final 
contract  between  the  parties,  fixing  the  terms  of  the  insurance  and  the 
premium,  and  neither  party  can  without  the  assent  of  the  other  deviate 
from  the  terms  thus  agreed  on  without  a  breach  of  faith.  Accord- 
ingly, though  the  contract  expressed  in  the  slip  is  not  valid,  that 
is,  not  enforceable,  it  may  be  given  in  evidence  wherever  it  is,  though 
662]  not  valid,  material  (h).  In  the  case  referred  *to  the  slip  was 
admitted  to  show  whether  the  intention  of  the  parties  was  to  insure 
goods  by  a  particular  named  ship  only,  or  by  that  in  which  they 
might  be  actually  shipped,  whatever  her  name  might  be.  A  still  more 
important  application  of  the  same  principle  was  made  in  Ccry  v- 
Pattern  (i),  where  it  was  held  that  the  time  when  the  contract  is  con- 
cluded and  the  risk  accepted  is  the  date  of  the  slip,  at  which  time 
the  underwriter  becomes  bound  in  honour,  though  not  in  law,  to 
execute  a  formal  policy;  that  the  Court,  when  a  duly  stamped  policy 

(e)  See  per  Willes  J.  in  Xenos  v.  except  two  sections  not  here  relevant, 
Wickham   (1866)    L.  R.  2  H.  L.  296,  and  on   this   point   substantially   re- 
314,  36  L.  J.  C.  P.  313;  Smith's  case  enacted,  by  the  Stamp  Act,  1891. 
(1869)   L.  R.  4  Ch.  611,  38  L.  J.  Ch.  (h)   Per  Cur.  Ionides  v.  Pacific  In- 
681.  surar.ee  Co.  (1871)  L.  R.  6  Q.  B.  674. 

(f)  See  per  Blackburn  J.  in  685,  affd.  in  Ex.  Ch.  7  Q.  B.  517,  41 
Fisher  v.  Liverpool  Marine  Insurance        L.  J.  Q.  B.  33,  190. 

Co.    (1873)    L.   R.   8   Q.  B.   469,  474,  (i)    (1872)   L.  R.  7  Q.  B.  304,  see 

43  L.  J.  Q.  B.  114.  further  s.  c.  9  Q.  B.  577,  43  L.  J.  Q. 

(g)  30  &  31  Vict.  c.  23,  repealed,       B.   181. 


UNSTAMPED    INSTRUMENTS.  797 

is  once  before  it,  may  look  to  the  slip  to  ascertain  the  real  date  of 
the  contract;  and  therefore  that  if  a  material  fact  comes  to  the 
knowledge  of  the  assured  after  the  date  of  the  slip  and  before  the 
execution  of  the  policy,  it  is  not  his  duty  either  in  honour  or  in  law 
to  disclose  it,  and  the  non-disclosure  of  it  does  not  vitiate  the  policy. 
This  holds  though  after  the  completion  of  the  contract  by  the  slip 
a  new  term  be  added  for  the  benefit  of  the  underwriters  (fc). 

Collateral  bearings  of  the  doctrine.  The  same  doctrine  has  been  con- 
sidered, and  allowed,  though  not  directly  applied,  in  other  cases. 
In  Fisher  v.  Liverpool  Marine  Insurance  Co.  (I)  the  slip  had  been 
initialed  but  the  insurance  company  had  executed  no  policy.  In 
the  case  of  an  insurance  with  private  underwriters  it  is  the  duty  of 
the  broker  of  the  assured  to  prepare  a  properly  stamped  policy  and 
present  it  for  execution.  But  in  the  case  of  a  company  the  policy 
is  prepared  by  the  company,  executed  in  the  company's  office,  and 
handed  over  to  the  assured  or  his  agent  on  application.  It  was  held 
that  there  was  no  undertaking  by  the  company,  distinguishable  from 
the  contract  of  insurance  itself,  to  do  that  which  it  would  be  the 
duty  of  a  broker  to  do  in  the  case  of  private  underwriters;  that  the 
only  agreement  with  the  company  *with  the  assured  was  one  en-  [663 
tire  agreement  made  by  the  initialing  of  the  slip,  and  that  as  this 
was  an  agreement  for  sea  insurance,  the  statute  applied  and  made  it 
impossible  to  maintain  any  action  for  a  breach  of  duty  with  regard 
to  the  preparation  and  execution  of  a  policy.  In  Morrison  v.  Uni- 
versal Marine  Insurance  Co.  (m),  the  question  arose  of  the  effect 
of  delivering  without  protest  a  stamped  policy  pursuant  to  the  slip 
after  the  insurers  had  discovered  that  at  the  date  of  the  slip  a  material 
fact  had  been  concealed.  It  was  held  in  the  Exchequer  Chamber, 
reversing  the  judgment  of  the  Court  below,  that  the  delivery  of  the 
policy  did  not  preclude  the  insurers  from  relying  on  the  concealment, 
but  that  it  was  a  question  properly  left  to  the  jury  whether  they 
had  or  had  not  elected  to  abide  by  the  contract.  This  implies  not 
only  that  the  rights  of  the  parties  are  determined  at  the  date  of 
the  slip,  but  that  the  execution  of  the  stamped  policy  afterwards  has 
little  or  no  other  significance  than  that  of  a  necessary  formality  (n). 

(k)  Lishman  V.  Northern  Maritime  (m)    (1873)  L.  R.  8  Ex.  40,  in  Ex. 

Insurance  Co.    (1875)   L.  R.  8  C.  P.  Ch.  ib.  197,  42  L.  J.  Ex.  115. 
216,  affirmed  in  Ex.  Ch.  10  C.  P.  179,  (n)    See  the  judgment  of  Cleasby 

44  L.  J.  O.  P.  185.  B.  in  the  Court  below,  L.  R.  8  Ex. 

(I)     (1874)     L.    R.    8    Q.    B.    469  at  p.  60. 
(Blackburn  J.  diss.)  affd.  in  Ex.  Ch. 
9  Q.  B.  418,  43  L.  J.  Q.  B.  114. 


798  Af.BEEMEXT.S    OF    IMPERFECT   OBLIGATION". 

Application  in  winding  up  insurance  companies.  In  the  case  of  a  mu- 
tual marine  insurance  association,  a  letter  by  which  the  assured  un- 
dertook to  become  members  of  the  association  was  admitted  as  part 
of  one  agreement  with  the  stamped  policy,  to  show  that  the  assured 
were  contributories  in  the  winding-up  of  the  association  (o).  In 
the  winding-up  of  another  such  association  a  member  has  been  ad- 
mitted as  a  creditor  for  the  amount  due  on  his  policy,  though  un- 
stamped, when  the  liability  was  admitted  by  entries  in  the  minute 
books  of  the  association,  which  seem  to  have  been  considered  equiva- 
lent to  an  account  stated  (p). 

Stamp  duties  in  general.  It  has  already  been  observed  that  the  gen- 
eral revenue  laws  as  to  stamp  duties  are  on  a  different  footing.42 
However  their  effects  may  in  one  or  two  cases  resemble  to  some  ex- 
664]  tent  those  which  under  the  present  head  we  have  *attempted  to 
exhibit.  Thus,  if  an  unstamped  document  combines  two  characters 
(as,  for  instance,  if  it  purports  to  show  both  an  account  stated  and 
a  receipt),  and  if  in  one  of  those  characters  it  requires  a  stamp, 
and  in  the  other  not,  it  may  be  given  in  evidence  in  the  second 
character  for  any  purpose  unconnected  with  the  first  (q). 

Variation  by  subsequent  unstamped  agreement.  In  a  case  where  the 
parties  to  an  agreement  in  writing  had  afterwards  varied  its  terms 
by  a  memorandum  in  writing,  and  the  memorandum  was  not  stamped, 
the  plaintiff  joined  in  his  action  a  count  on  the  agreement  in  its 

(o)    Bhjth  do  Co.'s  case    (1872)    L.  (q)   Matheson  v.  Ross  (1849)  2  H. 

R.  13  Eq.  529.  L.  C.  286. 

(p)    Martin's  claim    (1872)    L.   R. 
14  Eq.   148,  41  L.  J.  Ch.  679. 

42  The  act  of  Congress,  in  force  during  and  shortly  after  the  Civil  War, 
providing  that  no  instrument  or  document  not  duly  stamped  as  required  by 
the  internal  revenue  laws  of  the  United  States  should  be  admitted  or  used 
as  evidence  in  any  court,  was  generally  held  by  the  State  courts  inapplicable 
to  or  not  binding  upon  them.  Duffy  v.  Hobson,  40  Cal.  240';  Bumps  v. 
Taggart,  26  Ark.  398 ;  Griffin  r.  Ranney,  35  Conn.  239 ;  Forchheimer  v.  Holly, 
14  Fla.  239;  Latham  v.  Smith,  45  111.  29;  Craig  v.  Dimock,  47  111.  308; 
Hunter  v.  Cobb,  1  Bush,  239;  Wallace  v.  Cravens,  34  Ind.  534;  Carpenter  v. 
Snelling,  97  Mass.  452;  Green  v.  Holway,  101  Mass.  243;  Moore  v.  Quirk, 
105  Mass.  40;  Davis  v.  Richardson,  45  Miss.  499;  Sammons  ?\  Halloway,  21 
Mich.  162;  Woodward  v.  Roberts,  58  N.  H.  503;  People  v.  Gates,  43  N.  Y. 
40;  Moore  )'.  Moore,  47  N.  Y.  467;  Stewart  v.  Hopkins,  30  Ohio  St.  502,  525; 
Sporrer  r.  Eifler,  1  Heisk.  633;  Dailey  v.  Cohen,  33  Tex.  815;  Talley  v. 
Robinson's  Assignee,  22  Gratt.  888.  Contra,  Turnpike  Co.  v.  McNamara,  72 
Pa.  278. 

The  decisions  were  similar  under  the  act  passed  in  1898.  Hooper  !'.  Whit- 
aker,  130  Ala.  324;  Sloeumb  v.  Small,  112  Ga.  279;  Steeley's  Creditors  v. 
Steeley,  23  Ky.  L.  Rep.  996;  Knox  c.  Rossi,  25  Nev.  96:  People  v.  Fromme,  35 
N.  Y.  App.  *Div.  459;  Cassidy  v.  St.  Germain,  22  R.  I.  53;  Plunkett  v. 
Hanseka,  14  S.  Dak.  454. 


UNSTAMPED    INSTRUMENTS.  799 

original  form  and  another  on  the  agreement  as  varied:  and  when 
it  appeared  by  his  own  evidence  that  the  memorandum  did  ma- 
terially alter  the  first  agreement,  but  was  unavailable  for  want 
of  a  stamp,  it  was  held  that  he  could  not  fall  back  on  the  agreement 
as  it  originally  stood  (r).  Neither  this  decision,  nor  the  earlier 
authorities  on  which  it  rested,  were  referred  to  in  Noble  v.  Ward  (s). 
In  that  case  there  was  a  substituted  agreement  which  was  unenforce- 
able under  sect.  17  of  the  Statute  of  Frauds  (t)  :  and  it  was  held 
that  as  the  parties  had  no  intention  of  simply  rescinding  the  former 
agreement,  that  former  agreement  remained  in  force.  The  two 
cases,  if  they  can  stand  together,  must  do  so  by  reason  of  the  dis- 
tinction between  a  contract  the  record  of  which  is  unavailable  for 
want  of  a  stamp,  and  an  agreement  which  cannot  be  sued  on  at  all 
if  the  defendant  pleads  the  statute. 

Attempt  to  use  unstamped  document  in  a  different  character.  In  a  much 
litigated  case  of  Evans  v.  Prothero  (u),  the  question  arose  whether 
a  document  purporting  to  be  a  *receipt  for  purchase-money  on  [665 
a  sale  of  land,  but  insufficiently  stamped  for  that  purpose,  can  be 
admitted  as  evidence  to  prove  the  existence  of  an  agreement  for  sale. 
In  a  series  of  motions  for  new  trials,  Lord  Cottenham  and  Lord  St. 
Leonards  took  different  views.  The  judges  before  whom  the  applica- 
tions came  in  the  Court  of  Chancery  in  the  first  instance,  and  those 
before  whom  the  issues  were  tried  at  Cardiff  Assizes,  were  also  divided 
in  opinion.  The  opinion  of  Lord  St.  Leonards,  who  held  the  docu- 
ment admissible,  has  now  been  recognized  as  authorative  (x). 

C.  Statutory  conditions  affecting  professions,  &c.  There  are  also  many 
statutes  which  impose  special  conditions  on  the  exercise  of  particular 
professions  and  occupations  and  the  sale  of  particular  kinds  of  goods. 
Most  of  these,  however,  are  so  framed,  or  have  been  so  construed,  as 

(r)   Reed  v.  Deere   (1827)    7  B.  &  justice.    See  Mr.  Ernest  C.  C.  Firth's 

C.  261,  31  R.  R.  190.  article  in  L.  Q.  R.  ix.  366. 

(s)    (1867)  L.  R.  1  Ex.  117,  in  Ex.  (t)     Now    repealed    and    substan- 

Ch.  2  Ex.   135 :   but  otherwise  where  tially  re-enacted  by  the  Sale  of  Goods 

the   substituted   agreement  has   been  Act,  1893,  s.  4. 

executed  in  part;  for  this  shows  that  (u)    (1852)   2  Mac.  &  G.  319,  1  D. 

the    old    one    is    gone:    Sanderson   v.  M.  &  G.  572,  21  L.  J.  Ch.  772. 
Graves    (1875)    L.  R.   10  Ex.  234,  44  (as)   Ashling  v.  Boon  [1891]   1  Ch. 

L.  J.  Ex.  210.    There  has  been  a  tend-  568,  60  L.  J.  Ch.   306,  where  it  was 

ency  in  some  recent  cases   (not  regu-  held    that    an    insufficiently    stamped 

larly  reported)   to  depart  from  Nolle  promissory  note  could  not  be  admit- 

v.  Ward.     Whether  correct  or  not  in  ted  as  a,  receipt  for  the  consideration 

law,  such  a  doctrine  has  nothing  to  money,   this   being   "  of   the  very   es- 

recommend  it  in  point  of  substantial  sence  of  the  promissory  note  itself." 


800  AGREEMENTS    OF    lMPEIU-'LOT    OBLIGATION. 

to  have  an  absolutely  prohibitory  effect,  that  is,  not  merely  to  take 
away  or  suspend  the  remedy  by  action,  but  to  render  any  transaction 
in  which  their  provisions  are  disregarded  illegal  and  void.  The  prin- 
ciples applicable  to  such  cases  have  been  considered  under  the  head 
of  Unlawful  Agreements.  In  a  few  cases,  however,  there  is  not 
anything  to  prevent  a  right  from  being  acquired,  or  to  extinguish 
it  when  acquired,  but  only  a  condition  on  which  the  remedy  depends.4'5 
Of  this  kind  are  the  provisions  of  the  Act  6  &  7  Vict.  c.  73,  with 
respect  to  attorneys  and  solicitors,  and  of  the  Medical  Act,  1858  (21 
&  22  Vict.  c.  90),  with  respect  to  medical  practitioners. 

Attorneys  and  solicitors  —  Costs  of  uncertificated  solicitor,  how  far  allowed. 

By  the  6  &  7  Vict.  c.  73,  s.  26,  extended  by  37  &  38  Vict.  c.  68,  it 
is  enacted  in  substance  that  an  attorney  or  solicitor  practising  in  any 
court  without  having  a  stamped  certificate  then  in  force  (as  pro- 
666]  vided  for  by  ss.  22-25,  and  now  23  &  *24  Vict.  c.  127,  ss.  18- 
23)  shall  not  be  capable  of  recovering  his  fees  for  any  business  so 
done  by  him  while  uncertificated.  This,  however,  does  not  make 
it  unlawful  for  the  client  to  pay  such  fees  if  he  thinks  fit,  nor  for 
the  solicitor  to  take  and  keep  them.  It  has  been  held  that  a  defeated 
party  in  an  action  who  has  to  pay  his  adversary's  costs  is  bound 
by  any  such  payment  which  has  been  actually  made,  and  cannot 
claim  to  have  it  disallowed  after  taxation  (y).  But,  since  the 
Act  of  1874  at  all  events,  a  successful  party  whose  solicitor  was  un- 
certificated cannot  recover  costs  if  the  objection  is  made  on  taxation  (2). 
This  appears  to  leave  untouched  an  earlier  case  (a)  where  it  was 
decided  that  items  for  business  done  by  a  solicitor  while  uncertifi- 
cated must  be  allowed  as  against  the  client  in  a  taxation  on  the 
client's  own  application;  for  the  client  submits  to  pay  what  shall 
be  found  due,  not  only  what  the  solicitor  might  have  sued  for,  and 
the  debt  is  not  destroyed.  Proceedings  taken  by  a  solicitor  who  has 
not  renewed  his  certificate  cannot  be  on  that  account  set  aside  as 
irregular  (b).  It  is  said  that  an  attorney  can  have  no  lien  for  busi- 
ness done  by  him  while  uncertificated  (c).  But  the  case  cited  for 
this  (d)  was  on  the  earlier  Attorneys  Act,  37  Geo.  3,  c.  90,  by  which 

(y)  Fullalove  v.  Parker  (1862)   12  (6)    Sparling   v.   Brereton    (1866) 

C.  B.  N.  S.  246,  31  L.  J.  C.  P.  239,  L.  R.  2  Eq.  64,  35  L.  J.  Ch.  461. 
240.  (c)   Chitty's  Archbold's  Pr.  69,  ed. 

(«)    Fender  v.  Monmouthshire  Ca-  1866. 
-nal  Co.   (1879)   4  Q.  B.  D.  334,  48  L.  (d)   Wilton  v.  Chambers   (1837)   7 

J.  Q.  B.  457.  A.  &  E.  524. 

(a)    Re  Jones    (1869)    L.  E.   9   Eq. 
63,  39  L.  J.  Ch.  83. 

43  See  supra,  pp.  *296-*298,  n.   54-57. 


MEDICAL    PRACTITIONERS.  801 

the  admission  of  an  attorney  neglecting  to  obtain  his  certificate  as 
thereby  directed  was  in  express  terms  made  void  (s.  31) :  it  was  held 
that  under  the  special  circumstances  of  the  case  (which  it  is  unneces- 
sary to  mention),  there  had  been  a  neglect  within  the  meaning  of 
the  statute  so  that  the  attorney's  admission  was  void,  and  that  he 
must  be  regarded  as  having  been  off  the  roll  of  attorneys.  He  was 
therefore,  as  a  necessary  consequence,  incapable  of  acquiring  any  right 
whatever  as  an  attorney  *  while  thus  disqualified.  It  is  sub-  [667 
mitted  that  under  the  modern  Act  there  is  no  reason  for  depriving 
an  uncertificated  solicitor  of  his  lien,  at  any  rate  in  the  absence  of 
any  wrong  motive  or  personal  default  in  the  omission  to  take  out 
the  certificate. 

As  to  time  of  suing  for  costs.  Apart  from  this,  a  solicitor  cannot  in 
any  case  sue  for  costs  till  a  month  after  the  bill  has  been  delivered 
(C  &  7  Vict.  c.  73,  s.  37),  unless  authorised  by  a  judge  to  sue  sooner 
on  one  of  certain  grounds  now  much  enlarged  by  the  Legal  Prac- 
titioners Act,  1875   (38  &  39  Vict.  c.  79)  (e). 

Medical  practitioners.  The  rights  of  medical  practitioners  now  de- 
pend on  the  Medical  Acts,  1858  and  1886,  and  (in  England  only) 
the  Apothecaries  Act,  55  Geo.  3,  c.  194  (/). 

Common  law  as  to  physicians.  Before  the  Medical  Act  the  state  of 
the  law,  so  far  as  concerned  physicians  (but  not  surgeons  or  apothe- 
caries) was  this :  It  was  presumed,  in  accordance  with  the  general 
usage  and  understanding,  that  the  services  of  a  physician  were 
honorary,  and  were  not  intended  to  create  any  legal  obligation :  hence 
no  contract  to  pay  for  them  could  be  implied  from  his  rendering 
them  at  the  request  either  of  the  patient  or  of  a  third  person.  But 
this  was  a  presumption  only,  and  there  was  nothing  contrary  to  law 
in  an  express  contract  to  pay  a  physician  for  his  services,  which 
contract  would   effectually   exclude   the   presumption  (<7).44 

(e)  As  to  special  agreements  be-  kuna  (1885)  29  Ch.  Div.  596,  54  L.  J. 
tween  solicitor  and  client,  see  p.  *672,       Ch.  1148. 

below.  (.9)    Veitch  v.  Russell   (1842)    3  Q. 

(f)  This  is  still  in  force  subject  to  B.  928,  12  L.  J.  Q.  B.  13.  No  such 
certain  amendments  made  in  1874,  37  presumption  exists  in  the  United 
&   38  Vict.  c.   34,  see  Daines  v.   Ma-  States;  and  qu.  how  far,  if  at  all,  it 

exists  in  English  colonies. 

4*  That  there  is  no  presumption  in  this  country  that  the  services  of  a 
physician  are  honorary  or  gratuitous,  and  that  he  may,  therefore,  recover 
reasonable  compensation  for  his  services  rendered  on  request,  see  Todd  v. 
Myers,  40  Cal.  355 ;  Judah  r.  M'Namee,  3  Blackf.  269 ;  Shelton  v.  Johnson, 
40  la.  84;   Succession  of  Dickey,  41  La.  Ann.    1010;  McClallen  v.  Adams,  19 

51 


802  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

Provisions  of  Medical  Act,  1886.  The  Medical  Act,  1886  (49  &  50 
Vict.  c.  48),  s.  G,  enables  every  registered  medical  practitioner  to 
recover  his  expenses,  charges,  and  fees,  unless  restrained  by  a  pro- 
hibitory by-law  of  a  college  of  physicians  of  which  he  is  a  fellow  (li). 
668]  Accordingly  there  is  no  longer  any  presump*tion  of  honorary 
employment  (t).  It  remains  compet?nt  however  for  a  medical  man 
to  attend  a  patient  on  the  understanding  that  his  attendance  shall 
be  gratuitous,  and  whether  such  an  understanding  exists  or  not  in 
a  disputed  case  is  a  question  of  fact  for  a  jury  (h). 

Apothecaries  Act,  55  Geo.  3.  By  the  Act  55  Geo.  3,  c.  194,  s.  21,  an 
apothecary  cannot  recover  his  charges  without  having  a  certificate 
from  the  Apothecaries'  Society :  and  this  is  not  repealed  by  the  Medi- 
cal Acts  (I). 

It  seems  that  a  practitioner  must  have  been  registered  at  the  time 
of  rendering  the  services  sued  for,  not  merely  at  the  time  of  suing  (m), 
decisively  and  at  all  events  as  to  apothecaries ;  for  an  unrepealed  sec- 
tion of  the  Apothecaries  Act  (55  Geo.  3,  c.  194,  s.  20)  expressly  for- 
bids unqualified  persons  to  practise:  and  in  the  clear  opinion  of  the 
Court  on  the  construction  and  intention  of  the  Medical  Act  also.45 

~(h)    Such  by-laws  have  been  made  practitioner   to   sue   only   "according 

by   the    Royal    College    of   Physicians  to  his  qualification,''  and  a  qualifica- 

in   London,   and    (though   apparently  tion  in  one  capacity  did  not  entitle 

without  compulsory  force   under  the  him  to  sue  for  services   rendered  in 

Act)    the  Royal  College  of  Surgeons  another:    Lernan  v.   Fletcher    (1873) 

of  England.  L.  R.  8  Q.  B.  319,  42  L.  J.  Q.  B.  214. 

(i)   Gibbon  v.  Budd  (1863)  2  H.  &  But  these  words  do  not  occur  in  the 

C.  92,  32  L.  J.  Ex.  182   (on  the  simi-  Act  of  1886,  which  on  the  other  hand 

lar    provision    of    the    Act    of    1858,  requires   all  practitioners  to  be  gen- 

whieh    is    repealed    by    the    Act    ot  erally  qualified. 

1886).     See  judgment  of  Martin  B.  (m)    Leman  v.  Houseley   (1874)   L 

(k)    Gibbon  v.  Budd,  last  note.  R.  10  Q.  B.  66,  44  L.  J.  Q.  B.  22  (not- 

(l)    See   decisions  on  this  Act  col-  withstanding      Turner      v.      Reynall 

lected,    1   Wms.   Saund,   513-4.      S.  31  (1863)    14  C.  B.  N.  S.  328,  32  L.  J.  C. 

of  the  Medical  Act  of  1858  enabled  a  P.   164). 

Pick.  333:  Adams  v.  Stevens,  26  Wend.  451,  455;  Prince  v.  McRae,  84  N.  C. 
674;  Vilas  r.  Downer,  21  Vt.  419;  Garrey  v.  Stadler,  67  Wis.  512. 

45  It  was  held  that  a  compensation  for  physician's  services,  rendered  in  vio- 
lation of  a  statute  requiring  a  license,  could  not  he  recovered  in  Mayfield  r. 
Nale,  26  Ind.  App.  240;  Bohn  v.  Lowry,  77  Miss.  424;  Peterson  v.  Seagraves, 
94  Tex.  390. 

In  Hewitt  v.  Wilcox,  1  Met.  154,  it  was  held  that  an  unlicensed  physician 
could,  after  the  repeal  of  an  act  depriving  unlicensed  physicians  "  of  the 
benefit  of  law  for  the  recovery  of  any  debt  or  fee  accruing  for  professional 
services, "  recover  for  services  rendered  while  the  act  was  in  force.  Contra, 
Bailey  v.  Mogg,  4  Den.  60;  olitrr.  where  the  repealed  act  made  the  contract 
not  simply  unenforceable,  but  absolutely  void.  Nichols  r.  Poulson,  6  Ohio, 
305;   Warren  v.  Saxby,  12  Vt.  146. 


counsel's  fees.  803 

A  qualified  practitioner  cannot  recover  for  services  rendered  by 
an  unqualified  assistant  who  in  fact  acted  without  his  specific  direc- 
tion or  advice  (n). 

Similarly  an  agreement  by  a  qualified  practitioner  to  assist  an 
unqualified  one  is  bad,  though  perhaps  an  unqualified  person  might 
lawfully  carry  on  medical  business  through  qualified  assistants  if  he 
did  not  act  as  a  practitioner  himself  (o). 

*3.  No  remedy  allowed.  We  now  come  to  the  cases  in  which  [669 
some  positive  rule  of  law  or  statutory  enactment  takes  away  the 
remedy  altogether. 

The  only  cases  known  to  the  writer  in  which  there  is  a  rule  of  law 
to  this  effect  independent  of  any  statute  are  those  of  the  remunera- 
tion of  barristers  engaged  as  advocates  in  litigation,  and  (to  a  limited 
extent)   of  arbitrators. 

Arbitrators.  With  regard  to  arbitrators  the  better  opinion  appears 
to  be  that  they  are  in  the  same  condition  as  physicians  were  at  common 
law.  It  is  said  that  an  arbitrator  cannot  recover  on  any  implied 
contract  for  his  remuneration,  but  this  is  by  no  means  certain.  There 
is  no  doubt  that  he  can  sue  on  an  express  contract  (p).46 

Barristers.      The  position  of  a  barrister  is  different. 

It  was  formerly  a  current  opinion  that  in  the  case  of  counsel,  as 
in  that  of  a  physician,  there  was  a  presumption  of  purely  honorary 
employment,  derived  from  the  custom  of  the  profession,  but  that 
this  presumption  would  be  excluded  by  proof  of  an  express  con- 
tract (q). 

(n)   Alvarez  de  la  Rosa  v.  Prieto  arbitrator's    services    might    well    be 

(1864)    16  C.  B.  N.  S.  578,  33  L.  J.  implied.     When  a  case  is  referred  by 

C.     P.     262;     Howarth    v.     Brearley  the   Court,   the   referee's   or   arbitra- 

(1887)    19  Q.  B.  D.  303,  56  L.  J.  Q.  tor's    remuneration    is    determinable 

B_  543.  by  the  Court:  Arbitration  Act,  1889, 

(o)    Davies  v.  Makuna    (1885)    29  s.  15. 
Ch.  Div.  596,  54  L.  J.  Ch.  1148.  (?)   So  Lord  Denman  seems  to  have 

(p)    Hoggins  v.   Gordon    (1842)    3  been  inclined   to  think   in    Veitch  v. 

Q.  B.  466,  11  L.  J.  Q.  B.  286;  Veitch  Russell  (1842)  3  Q.  B.  928,  12  L.  J. 

v.  Russell  (1842)   3  Q.  B.  928,  12  L.  Q.  B.  13;  and  a  modern  Irish  case  of 

J.  Q.  B.  13.     In  Crampton  v.  Ridley  Hohart  v.  Butler   (1859)    9  Ir.  C.  L. 

(1887)  20  Q.  B.  D.  48,  52,  A.  L.  Smith  157,    though    it   did   not    decide    the 

J.   thought  that  in  mercantile  arbi-  point,   proceeded   to  some  extent   on 

trations   a   promise   to   pay   for   the  the  same  assumption. 

46  In  this  country  an  arbitrator  may  recover  compensation  for  his  services 
in  the  absence  of  an  express  promise  to  pay  for  them.  Holcomb  v.  Tiffany, 
38  Conn.  271;  Goodall  v.  Cooley,  29  N.  H.  48,  55;  Hinman  v.  Hapgood,  1 
Den.  188. 


804  AGEEEMENTS    OF    IMPEBFECT    OBLIGATION. 

No  remedy  against  client  in  respect  of  litigious  business.  But  the  deci- 
sion of  the  Court  of  Common  Pleas  in  Kennedy  V.  Broun  (r)  has  es- 
tablished the  unqualified  doctrine  that  "the  relation  of  counsel  and 
client  renders  the  parties  mutually  incapable  of  making  any  legal 
contract  of  hiring  and  service  concerning  advocacy  in  litigation." 
The  request  and  promises  of  the  client,  even  if  there  be  express 
promises,  and  the  services  of  the  counsel,  "  create  neither  an  obligation 
670]  nor  an  inception  of  obligation,  nor  *any  inchoate  right  what- 
ever capable  of  being  completed  and  made  into  a  contract  by  any  sub- 
sequent promise." 

Distinction  when  barrister  acts  as  arbitrator,  &c.  On  the  other  hand 
these  is  apparently  no  reason  to  doubt  the  validity  of  an  express  con- 
tract to  remunerate  a  barrister  for  services  which,  though  to  some 
extent  of  a  professional  kind,  and  involving  the  exercise  of  pro- 
fessional knowledge,  do  not  involve  any  relation  of  counsel  and  client 
between  the  contracting  parties :  as  when  a  barrister  acts  as  arbitrator 
or  returning  officer  (s).  The  want  of  attending  to  this  distinction 
has  led  to  such  cases  being  cited  as  authorities  for  the  general 
proposition  that  a  barrister  can  recover  fees  on  an  express  contract. 

Express  contract  with  client  as.  to  non-litigious  business.  Moreover,  it 
lias  been  argued  that  an  express  contract  even  between  counsel  and 
client  may  still  be  good  as  to  non-litigious  business.  A  claim  of 
this  sort  made  against  an  estate  under  administration  was  disposed 
of  by  Giffard  L.J.  on  the  ground,  which  was  sufficient  for  the  par- 
ticular decision,  that  at  all  events  a  solicitor  has  no  general  authority 
to  bind  his  client  by  such  a  contract :  but  he  also  observed  that  such 
applications  had  never  been  successful,  and  expressed  a  hope  that 
they  never  would  be  (t).  And  it  must  be  remembered  that  al- 
though the  rule  laid  down  in  Kennedy  v.  Broun  is  in  its  terms  confined 
to  litigation,  and  the  word  advocate,  not  counsel,  is  studiously  used 
throughout  the  judgment,  yet  the  rule  is  founded  not  on  any  tech- 

(r)    (1863)    13  C.  B.  N.  S.  677,  32  L.     157,     irrelevant.      For     instance, 

L.  J.  C.  P.  137.  Doe  d.  Bennett  v.  Hale   (1850)    15  Q. 

(s)  Hoggins  v.  Gordon  (1842)  3  Q.  B.  71,  18  L.  J.  Q.  B.  353,  shows  only 

B.  466,  11  L.  J.  Q.  B.  286;  Egan  v.  that  there  is  no  absolute  rule  of  law 

Guardians      of     Kensington      Union  that  in  a  civil  cause  a  barrister  may 

(1841)    3  Q.  B.  935,  n.  not    be    instructed    directly    by    the 

(t)    Mostyn  v.   Mostyn    (1870)    L.  client,  and  throws  no  light  whatever 

R.  5  Ch.  457.  459,  39  L.  J.  Ch.  780.  on  any  question  of  a  right  to  recover 

The  cases  there  referred  to  in  argu-  fees.      Hobart    v.    Butler    was    itself 

ment     in     favour     of    the     counsel's  really   a   decision    against   a   similar 

claim   seem,   with  the  sole  exception  claim    and    on    an    almost    identical 

of  Hobart  v.  Butler   (1859)    9  Ir.  C.  point. 


counsel's  fees.  805 

nieal  distinction  between  one  sort  of  business  and  another,  nor  on  any 
mere  presumption,  but  on  a  principle  of  general  convenience  supported 
by  unbroken  custom.  No  doubt  it  may  be  said  that  some  of  the 
reasons  given  *for  the  policy  of  the  law  do  not  apply  in  their  [671 
full  extent  to  non-litigious  business  (u) ;  and  it  is  doubtful  whether 
they  apply  even  to  those  English  colonies  where  the  common  law 
is  in  force  (x).  But  there  is  no  reason  to  suppose  that  English 
courts  of  justice  are  likely  to  narrow  the  scope  of  a  decision  called  by 
the  late  Lord  Justice  Giffard  "  a  landmark  of  the  law  on  this  sub- 
ject"(y). 

Rights  of  barrister  as  against  solicitor.  There  is  no  express  authority 
to  show  whether  a  barrister  can  or  cannot  contract  with  his  client's 
solicitor  for  payment  of  his  fees  any  more  effectually  than  with  the 
client  himself.  It  is  apprehended  that,  inasmuch  as  counsel's  services 
are  given  not  to  the  solicitor  but  to  the  client,  there  would  be  no 
consideration  to  support  such  a  contract  unless  the  solicitor  had 
actually  received  the  fees  from  the  client.  In  that  case  it  is  difficult 
to  see  on  what  ground  of  principle  or  policy  the  barrister  should  not 
be  legally  entitled  to  them  as  money  received  by  the  solicitor  for  his 
use.  A  barrister  has  in  fact  been  admitted  to  prove  in  bankruptcy 
against  the  estate  of  a  firm  of  solicitors  for  fees  (apparently  for 
conveyancing,  not  litigious  business)  which  had  been  actually  paid 
by  clients  to  the  bankrupts  before  the  bankruptcy  (z).  If  this  be 
rights  it  is  also  difficult  to  see  why  an  express  promise  by  the  solicitor 
to  pay  such  fees,  or  an  account  stated  between  the  solicitor  and  the 
counsel  in  respect  of  them,  should  not  be  binding.  On  the  other 
hand  the  Court  of  Common  Pleas  has  refused  to  exercise  a  summary 
jurisdiction,  on  the  motion  of  the  client,  to  compel  an  attorney  to  pay 
to  counsel  fees  alleged  *to  have  been  paid  by  the  client,  or  else  [672 
to  return  them  to  the  client  (a).    The  case,  however,  was  a  peculiar 

(u)     In    addition    to    Kennedy    v.  law   of   the  Province   of   Quebec:    in 

Broun,  see  Morris  v.  Hunt   (1819)    1  that  law  there  is  nothing  to  prevent 

Chitty,     544,     550,     554,     where     the  an   advocate   from   suing   for   profes- 

rule   is   put   on  the  ground  that  the  sional  services. 

remuneration  of  the  counsel  ought  to  (y)    Mostyn  v.   Mostyn,   note    (t) , 

be   independent  of  the   result  of  the  last  page. 

cause,    and   therefore   counsel  should  (z)   Re  Hall   (1856)    2  Jur.  N.  S. 

rely  on  prepayment  alone.     This  rea-  1076. 

son  would  however  be  equally  inap-  (a)    Re  Angell   (1861)    29  L.  J.  C. 

plicable   to  an  express   and  uncondi-  P.  227.     And  see  Re  he  Brasseur  and 

tional   contract  to  pay  fees   for   ad-  Oakley   [1896]    2  Ch.   487,  493,  495: 

vocacy,     if    made    before    the    com-  "  I  doubt  whether  anything  short  of 

mencement  of  the  litigation.  a  bond  would  enable  counsel  to  sue 

(x)  Reg.  v.  Doutre   (1884)   9  App.  a  solicitor  for  his  fees,"  Lindley  L.J. 

Ca.  at  p.  751,  where  it  was  held  that  at  p.  492. 
the  case  at  bar  was  governed  by  the 


806  AGREEMENTS    OF    IMPERFECT    OBLIGATION. 

one  and  goes  but  a  very  little  way  towards  answering  the  general 
question. 

Recognition  of  counsel's  fees  in  taxation  of  costs.  It  is  hardly  neces- 
sary to  add  that  although  counsel's  fees  cannot  be  recovered  in  any 
way  by  action,  except  possibly  in  some  of  the  cases  which  have  been 
mentioned  as  still  doubtful,  the  propriety  of  paying  such  fees  is 
judicially  recognized  by  the  constant  practice  of  the  courts  in  the 
taxation  of  costs :  and  the  solicitor  needs  no  authority  from  the  client 
beyond  his  general  retainer  to  enable  him  to  retain  and  pay  counsel 
and  charge  the  fees  to  his  client  (b).  The  payment  of  counsel's  fees 
may  in  this  manner  be  indirectly  enforced  either  against  the  client 
himself  or  against  an  unsuccessful  adversary  who  is  liable  for  the 
taxed  costs.  Notwithstanding  the  strong  expressions  used  by  the 
Court  in  Kennedy  v.  Broun  (c),  the  judicial  notice  thus  taken  of 
the  obligation  of  a  client  to  pay  his  counsel  seems  to  show  that  it  is 
in  the  nature  of  a  legal  duty,  though  not  a  perfect  one,  and  is  on 
a  different  footing  from  a  mere  moral  obligation. 

Solicitors'  Remuneration  Act,  i88r.  The  Solicitor's  Eemuneration  Act, 
1881  (d),  establishes  complete  freedom  of  contract  between  solicitor 
and  client  as  to  conveyancing  and  other  non-contentious  business, 
and  to  that  extent  expressly  supersedes  the  earlier  Act  of  1870. 

Special  agreements  between  solicitor  and  client  under  Act  of  1870.  By  the 
Attorneys  and  Solicitors  Act,  1870  (33  &  3-1  Vict.  c.  28),  special 
agreements  for  remuneration  between  solicitor  and  client  were  made 
lawful  (s.  4)  and  in  a  qualified  manner  enforceable.  Agreements 
under  this  Act  cannot  be  sued  upon  as  ordinary  contracts,  but  the 
procedure  is  by  motion  or  petition,  when  the  Court  may  enforce 
673  ]  the  *agreement  if  it  appears  to  be  in  all  respects  fair  and  reason- 
able, or  otherwise  set  it  aside.  In  the  last  case  the  Court  may  direct 
the  costs  of  the  business  included  in  the  agreement  to  be  taxed  in 
the  regular  way  (ss.  8,  9).  Where  there  is  an  agreement  to  employ 
a  solicitor  on  certain  terms  at  a  future  time,  this  does  not  prevent 
the  solicitor  from  suing  the  client  in  a  court  of  law  if  the  client 
refuses  to  let  him  transact  the  business  at  all.  The  Act  applies 
only  to  that  part  of  an  agreement  which  fixes  the  mode  of  payment 
for  work  done  (e). 

(6)    See  Morris  v.  Bunt    (1819)    1  10  Ex.  200,  44  L.  J.  Ex.  116.     By  the 

Chitty,  544.  terms  of  the  Act  the  agreement  must 

(c)  (1863)  13  C.  B.  N.  S.  677,  32  be  in  writing,  and  it  seems  it  must 
L.  J.  C.  P.  137.  be  signed  by  both  parties:   Ex  parte 

(d)  44  &  45  Vict.  c.  44,.  Munro    (1876)    1  Q.  B.  D.  724,  45  L. 

(e)  Bees  v.  Williams   (1375)   L.  R.  J.  Q.  B.  816. 


TIPPLING   ACT.  807 

Voidable  contracts  of  infants  affirmed  at  full  age.  Since  the  Infants 
Relief  Act,  1874,  any  contract  of  an  infant  voidable  at  common  law 
and  affirmed  by  him  on  attaining  his  majority  must  be  reckoned  as  an 
imperfect  obligation  of  this  class,  viz.  on  which  there  has  not  been 
and  cannot  be  any  remedy.  The  special  features  of  this  subject  have 
been  already  considered  (/),  and  there  is  nothing  to  add  except  that 
the  general  principles  set  forth  in  the  present  chapter  seem  to  be 
applicable  to  these,  so  far  as  they  still  exist,  as  well  as  to  other 
agreements  of  imperfect  obligation. 

Other  cases  where  contract  not  illegal,  but  remedy  taken  away  by  statute. 
There  are  sundry  other  cases  of  a  less  important  kind  in  which  the 
remedy  naturally  attached  to  a  contract  is  taken  away  by  statute, 
without  the  contract  itself  being  forbidden  or  avoided. 

Small  debts  for  spirits  by  Tippling  Act,  24  Geo.  2;  for  beer,  &c,  by  County 
Courts  Act,  1888.  By  the  Act  24  Geo.  "2,  c.  40,  s.  12,  commonly  known 
as  the  Tippling  Act,  no  debt  can  be  recovered  for  spirituous  liquors 
supplied  in  quantities  of  less  than  twenty  shillings'  worth  at  one 
time  (g).  The  County  Courts  Act,  1888,  s.  182  (h),  similarly  enacts 
that  no  action  shall  be  brought  *in  any  court  for  the  price  of  [674 
beer  or  other  specified  liquors  ejusdem  generis  consumed 'on  the 
premises.  The  Act  of  Geo.  2  applies  whether  the  person  to  whom 
the  liquor  is  supplied  be  the  consumer  or  not  (i).  As  these  enact- 
ments do  not  make  the  sale  illegal,  money  which  has  been  paid  for 
spirits  supplied  in  small  quantities  cannot  be  recovered  back  (fc) 
A  debt  for  such  supplies  was  once  held  to  be  an  illegal  consideration 
for  a  bill  of  exchange  (I)  :  but  this  decision  seems  dictated  by  an 
excess  of  zeal  to  carry  out  the  policy  of  the  Act,  and  is  possibly 
questionable.  In  a  later  case  at  Nisi  Prius  (m)  Lord  Tenterden 
held  that  where  an  account  consisted  partly  of  items  for  spirituous 
liquors  within  the  Tippling  Act,  and  partly  of  other  items,  and  pay- 
ments had  been  made  generally  in  reduction  of  the  account,  the 
vendor  was  at  liberty  to  appropriate  these  payments  to  the  items  for 
liquor,  so  as  to  leave  a  good  cause  of  action  for.  the  balance ;  thus 

(f)  In  Chap.  II.,  above.  (i)     Hughes    v.     Done    or    Doane 

(g)  By  25  &  26  Viet.  c.  38,  an  ex-  (1841)  1  Q.  B.  294,  10  L.  J.  Q.  B.  65. 
ception  is  made  in  favour  of  sales  of  (k)  Philpott  v.  Jones  (1834)  2  A. 
spirituous  liquor  not  to  be  consumed  &  E.  41,  41  R.  R.  371. 

on  the  premises,  and  delivered  at  the  (I)    Scott    v.    Gillmore     (1810)     3 

purchaser's  residence  in  quantities  of  Taunt.  226,  12  R.  R.  641. 

not  less  than  a  reputed  quart.  (m)   Grookshank  v.  Rose  (1831)  5 

{h)    Superseding  a  similar  enact-  C.  &  P.  19,  38  R.  R.  788. 
ment  in  the  County  Courts  Act,  1867. 


808  AGBEEMENTS    OF    IMPEEFECT   OBLIGATION. 

treating  these  debts,  like  debts  barred  by  the  Statute  of  Limitation 
01  James  I.,  as  existing  though  not  recoverable. 

The  writer  is  not  aware  of  any  decision  on  the  modern  enactment 
as  to  beer,  &c,  in  the  County  Courts  Act. 

Trade  union  agreements  under  Trade  Union  Act,  1871.        By  the  Trade 

Union  Act,  1871  (34  &  35  Vict.  c.  31),  s.  4,  certain  agreements 
therein  enumerated  and  relating  to  the  management  and  operations 
of  trade  unions  cannot  be  sued  upon,  but  it  is  expressly  provided 
that  they  are  not  on  that  account  to  be  deemed  unlawful.  In  this 
enumeration  are  included  agreements  to  pay  subscriptions.  It  has 
also  been  decided  that  a  member  of  a  trade  union  who  complains 
of  having  been  wrongfully  expelled  cannot  be  reinstated  by  the  Court, 
though  this  may  be  done  in  the  case  of  a  club  or  other  voluntary 
association  holding  property  for  purposes  lawful  at  common  law, 
on  the  ground  of  the  expelled  member  being  deprived  of  a  right  of 
675]  pro*perty  (n).  Practically  trade  union  subscriptions  are  thus 
placed  on  the  same  footing  as  subscriptions  to  any  club  which  is 
not  proprietary  (0).  Not  that,  so  far  as  we  are  aware,  there  is  any- 
thing in  principle  against  the  payment  of  subscriptions  to  a  club  being 
legally  enforced:  the  practical  difficulty  lies  in  ascertaining  who  are 
the  proper  persons  to  sue.  The  same  difficulty  exists  in  the  case  of 
any  numerous  unincorporated  association.  But  this  belongs  to  an- 
other division  of  our  subject  (p). 

Cases  of  analogy  to  imperfect  obligations  —  Effect  of  repeal  of  usury  laws 
as  to  advances  made  before.  The  present  place  seems  on  the  whole  the 
most  appropriate  one  for  mentioning  a  singular  case  which  may  be 
regarded  as  the  converse  of  those  we  have  been  dealing  with.  A 
valuable  consideration  is  given  in  the  course  of  a  transaction  which 
as  the  law  stands  at  the  time  is  wholly  illegal  and  confers  no  right 
of  action  on  either  party.  Afterwards  the  law  which  made  the 
transaction  illegal  is  repealed.  Is  the  consideration  so  received  a 
good  foundation  for  a  new  express  promise  on  the  part  of  the  receiver? 
The  question  came  before  the  Court  of  Exchequer  in  1863,  some 
years  after  the  repeal  of  the  usury  laws.  The  plaintiff  sued  on  bills 
of  exchange  drawn  and  accepted  after  that  repeal,  but  in  renewal  of 
other  bills  given  before  the  repeal  in  respect  of  advances  made  on 

(n)  Rigby  v.  Connol  (1880)   14  Ch.  gett  V.  Bishop  (1826)   2  C.  &  P.  343, 

D.  482,  49  L.  J.  Ch.  328;   cp.  Wolfe  31   R.  R.   668;   Raggett  v.  Musgrave 

v.   Matthews    (1882)    21   Ch.  D.   194,  (1827)   2  C.  &  P.  556.     The  practical 

51  L.  J.  Ch.  833.  sanction  is  the  power  of  excluding  a 

( 0 )    In   the   case  of  a   proprietary  member  in  default, 

club  the  proprietor  can  sue;  see  Rag-  (p)    See  pp.  *216,  *234,  supra. 


EQUITABLE    OBLIGATIONS.  809 

terms  which  under  the  old  law  were  usurious.  The  former  bills  were 
unquestionably  void:  but  it  was  held  by  the  majority  of  the  Court 
that  the  original  advance  was  a  good  consideration  for  the  new  bills. 
The  question  was  thus  stated  in  the  judgment  of  the  majority: — 
"  Whether  an  advance  of  money  under  such  circumstances  as  to  create 
no  legal  obligation  at  the  time  to  repay  it  can  constitute  a  good  con- 
sideration for  an  express  promise  to  do  so."  And  the  answer  was 
given  *thus: — "The  consideration  which  would  have  been  [676 
sufficient  to  support  the  promise  if  the  law  had  not  forbidden  the 
promise  to  be  made  originally  does  not  cease  to  be  sufficient  when  the 
legal  restriction  is  abrogated.  ...  A  man  by  express  promise 
may  render  himself  liable  to  pay  back  money  which  he  has  received 
as  a  loan,  though  some  positive  rule  of  law  or  statute  intervened  at 
the  time  to  prevent  the  transaction  from  constituting  a  legal 
debt"  (q).47  The  debt,  therefore,  which  was  originally  void  by  the 
usury  laws,  seems  to  have  been  put  in  the  same  position  by  their  re- 
peal as  if  it  had  been  a  debt  once  enforceable  but  barred  by  the 
Statute  of  Limitation.  But  the  decision  seems  wrong,  for  the  con- 
sideration was  wholly  past  at  the  time  of  the  promise.  The  considera- 
tion for  accepting  a  renewed  bill  of  exchange  is  not  the  value  re- 
ceived which  was  the  consideration  of  the  original  bill,  but  the 
abandonment  of  the  right  of  action  thereon. 

Treatment  of  equitable  obligations  at  common  law.  There  is  one  other 
analogy  to  which  it  is  worth  while  to  advert,  although  it  was  never 
of  much  practical  importance,  and  what  little  it  had  has  in  England 
been  taken  away  by  the  Judicature  Acts.  Purely  equitable  liabilities 
have  to  a  certain  extent  been  treated  by  common  law  courts  as  im- 
perfect obligations.  The  mere  existence  of  a  liquidated  claim  on 
a  trust  against  the  trustee  confers  no  legal  remedy.  But  the  trustee 
may  make  himself  legally  liable  in  respect  of  such  a  claim  by  an 
account  stated  (r),  or  by  a  simple  admission  that  he  holds  as  trustee 

(g)   Flight  V.  Reed   (1863)    1  H.  &  payment  of  the  usurious  loan.    Quod 

C.  703     715,   716,  32  L.   J.   Ex.   265,  nimium  subtiliter  dictum  videtur. 
269.      'Prof.      Langdell       (Summary  (r)   Topham  v.  Morecraft   (1858)  8 

§  76)  supports  the  case  on  the  ground  E.  &  B.  972,  983;  Howard  v.  Brown- 

that  the  bills  sued  on  were  an  actual  hill   (1853)   23  L.  J.  Q.  B.  23. 

47  Ace.  Garvin  v.  Linton,  62  Ark.  370;  Kilbourn  v.  Bradley,  3  Day,  356 
Phillips  v  Columbus  Assoc,  53  la.  719;  Vermeule  v.  Vermeule,  95  Me.  138 
Early  v.  Mahon,  19  Johns.  147;  Hammond  v.  Hopping,  13  Wend.  505, 
Sheldon  v.  Haxtun,  91  N.  Y.  124;  Marstin  v.  Hall,  9  Gratt.  8.  See  also 
Tucker  v.  West,  29  Ark.  386;  Gwinn  v.  Simes,  61  Mo.  335;  Melchoir  v. 
McCarty  31  Wis.  252.  Cp.  Holden  v.  Cosgrove,  12  Gray,  216;  Ludlow  v. 
Hardy,  38  Mich.  690;  Fulton  v.  Day,  63  Wis.  112. 


810  DISCHAEGE    OF    CONTRACTS. 

a  certain  sum  due  to  the  cestui  que  trust  (s).  A  court  of  law  has 
also  held  that  a  payment  made  by  a  debtor  without  appropriation 
may  be  appropriated  by  the  creditor  to  an  equitable  debt  (t). 

677  ]  *Summary  of  results.  It  may  be  useful  to  sum  up  in  a  more  gen- 
eral form  the  results  which  have  been  obtained  in  this  chapter. 

An  imperfect  obligation  is  an  existing  obligation  which  is  not 
directly  enforceable. 

This  state  of  things  results  from  exceptional  rules  of  positive  law, 
and  especially  from  laws  limiting  the  right  to  enforce  contracts  by 
special  conditions  precedent  or  subsequent. 

When  an  agreement  of  imperfect  obligation  is  executory  a  right 
of  possession  immediately  founded  on  the  obligation  can  be  no  more 
enforced  than  the  obligation  itself. 

Acts  done  in  fulfilment  of  an  imperfect  obligation  are  valid,  and 
may  be  the  foundation  of  new  rights  and  liabilities,  by  way  of  con- 
sideration for  a  new  contract  or  otherwise. 

A  party  who  has  a  liquidated  and  unconditional  claim  under  an 
imperfect  obligation  may  obtain  satisfaction  thereof  by  any  means 
other  than  direct  process  of  law  which  he  might  have  lawfully  em- 
ployed to  obtain  it  if  the  obligation  had  not  been  imperfect. 

The  laws  which  give  rise  to  imperfect  obligations  by  imposing 
special  conditions  on  the  enforcement  of  rights  are  generally  treated 
as  part  of  the  law  of  procedure  of  the  forum  where  they  prevail  (u), 
and  as  part  of  the  lex  fori  they  are  applicable  to  a  contract  sued  upon 
in  that  forum  without  regard  to  the  law  governing  the  substance  of 
the  contract  (x)  ;  but  on  the  other  hand  they  are  not  regarded  in  any 
other  forum. 

(s)   Roper  v.  Holland  (1835)   3  A.  (%)    This    (it    is    conceived)     does 
&  E.  99.  not  apply  to   revenue   laws,   and  en- 
it)    Bosanquet  v.  ~Wray    (1816)    6  actments  which  are  merely  ancillary 
Taunt.  597,  16  R.  R.  677.  to  revenue  laws,  such  as  the  provi- 
(w)    Contra  Savigny,  Syst.  8.  270,  sions   relating  to  marine   insurances 
273.  (p.  *660,  above). 


DISCHARGE   OF   CONTRACTS. 


811 


CHAPTEK  XIV. 
Discharge  of  Contracts. 


PAGE. 

Methods  of  discharge,  811 

Release,  812 

Nature  and  effect  of,  812 

Effect  of  statutes,  813 

Covenant  to  forbear,  813 

Conditional  release,  814 

Construction,  814 

Rescission  by  parol  agreement,       815 
Elements  of  such  agreement,     815 
Agreements    before    breach    of 
unilateral    contract    to    dis- 
charge the  obligor,  817 
Agreements     to     discharge     a 

party  to  a  bill  or  note,  819 

Written  contracts',  821 

Contracts  under  seal,  825 

Accord  and  satisfaction,  828 

Definition,  828 

Whether  an  accord  is  a  valid 

contract,  829 

Unexecuted  no  bar  at  law,  831 

Equitable  relief,  833 

Accord  if  taken  as  satisfaction 

is  a  bar,  834 

Sealed  contracts,  835 

Debts  of  record,  836 

Requisites  of  satisfaction,  837 

Check  sent  in  satisfaction  of  a 

disputed  claim,  838 

Accord  and  satisfaction  with  a 
third  person,  840 


Cancellation  and  surrender, 

Normal  method  of  discharging 
specialties, 

Bills  and  notes, 

Simple  contracts, 
Alteration, 

Common     law     rule  —  Pigot's 
case, 

Distinction      between       convey 
ances  and  covenants, 

Kinds  of  contract  to  which  the 
rule  is  applicable, 

Excusable    alteration,    author- 
ity, and  ratification, 

Effect    of    immaterial    altera- 
tions, 

What  alterations  are  material, 

What    alterations    are    imma- 
terial, 

Assignment     of     altered     con- 
tracts, 

When  a  debt  survives  the  writ- 
ing. 

Alteration  before  execution, 

Pleading  and  evidence, 
Merger, 

By  judgment  or  bond, 

Requisites  of  merger, 
Arbitration  and  OAoard, 

Authority      revocable      before 
award, 

Arbitrator  must  follow  author- 
ity, 

Statutory  arbitration, 


PAGE. 

843 


84:: 

844 
844 
845 

84.') 

84:') 

8.31 

852 

85S 

850 

863 


868 
871 
872 
874 
874 
87« 
877 

878 

879 
880 


Methods  of  discharge.  A  contract  may  be  discharged  in  the  follow- 
ing ways: 

1.  Performance  according  to  its  terms. 

2.  A  breach  of  such  a  nature  as  to  justify  the  innocent  party  in 
treating  the  contract  as  rescinded  or  as  giving  rise  to  a  right  of 
action  for  breach  of  the  entire  contract. 

3.  Eescission  of  a  voidable  contract,  at  the  will  of  one  party,  as 
for  fraud,  mistake,  duress. 


812  DISCHARGE    OF    CONTRACTS. 

4.  Eelease. 

5.  Rescission  by  parol  agreement. 

6.  Accord  and  satisfaction. 

7.  Cancellation  and  surrender. 

8.  Alteration. 

9.  Merger. 

10.  Arbitration  and  award. 

11.  Impossibility. 

12.  Bankruptcy. 

13.  Statutes  of  Limitation,  though  in  general  barring  the  remedy 
only,  may  be  added. 

A  right  of  action  upon  a  contract  may  be  discharged  in  any  of  these 
ways  except  the  second  and  the  eleventh. 

Treatment  of  these  methods.  The  first  three  and  the  last  three  meth- 
ods here  specified  have  been  treated  with  more  or  less  fulness  in 
earlier  parts  of  this  volume.  It  remains  to  consider  the  other  meth- 
ods. A  distinction  may  be  taken  between  the  discharge  of  a  contract 
and  the  discharge  of  a  right  of  action  that  has  arisen  for  breach  of  a 
contract,  but  as  the  principles  applicable  to  the  two  cases  are  in 
general  the  same,  it  has  been  thought  simpler  to  treat  the  questions 
together.  Where  the  requirements  of  law  differ  according  as  the  con- 
tract has  or  has  not  been  broken,  attention  is  called  to  the  difference. 

Release. 

Nature  and  effect  of  release.  A  release  is  a  discharge  under  seal  of 
an  existing  obligation  or  right  of  action.  Any  contract  either  before 
or  after  breach  may  be  discharged  by  release.  Like  other  sealed  in- 
struments it  needs  no  consideration.1 

Early  law.  In  very  early  times  it  may  be  that  a  release  did  not 
operate  as  a  legal  discharge  of  a  specialty,2  since  payment3  or  a  judg- 
ment* did  not.  Even  at  the  present  day  a  negotiable  instrument  be- 
fore maturity  cannot  be  effectually  discharged  by  release.5  Nothing 
tut  cancellation,  destruction,  or  surrender  of  the  instrument  itself 

1  Tiger  v.  Lincoln,  1  Col.  394;  Union  Bank  v.  Call,  5  Fla.  409;  Ingersoll 
(i.  Martin,  58  Md.  67 ;  Tyson  v.  Dorr,  6  Whart.  256 ;  Benson  v.  Mole,  9 
Phila.  60;  Sheer  r.  Austin,  2  Rich.  L.  330.  See  also  Mills  v.  Larrance,  186 
111.  635;  Saunders  v.  Blvthe,  112  Mo.  1;  Winter  v.  Kansas  City  Ry.  Co., 
160  Mo.   159. 

2  See  Fowell  v.  Forrest,  2  Wms.  Saund.  47  ff. 

3  Ames,  Specialty  Contracts  and  Equitable  Defenses,  9  Harv.  L.  Rev.  54. 

4  See  infra,  p.  875. 

SDod  v.  Edwards,  2  C.  &  P.  602;  Schoen  v.  Houghton,  50  Cal.  528. 


RELEASE.  813 

can  fully  discharge  a  negotiable  instrument  before  maturity.     But 
this  is  now  the  only  exception  to  the  efficacy  of  a  release. 

Effect  of  statutes  in  regard  to  seals.  The  legislation  in  many  states6 
in  this  country,  depriving  a  seal  of  the  efficacy  which  it  had  at 
common  law,  has  been  unfortunate  in  depriving  the  law  of  a  simple 
and  easy  means  for  the  voluntary  discharge  of  liabilities.  For  a 
voluntary  parol  agreement  to  discharge  a  debtor  from  liability  was  not 
efficacious  at  common  law,7  and  in  states  where  a  seal  is  at  most  pre- 
sumptive evidence  of  consideration,  a  release  with  or  without  a  seal 
must  be  on  the  footing  of  a  parol  agreement.8  In  a  few  jurisdictions9 
statutes  have  qualified  this  result  by  giving  an  unsealed  release  in 
writing  the  effect  which  the  common  law  gave  to  sealed  writings  only. 
The  courts  of  a  few  other  states  by  judicial  legislation  have  given 
the  effect  of  a  sealed  release  to  a  written  discharge  or  acknowledgment 
of  receipt  in  full.10  • 

Covenant  to  forbear.  A  release  properly  is  a  present  discharge,  and 
a  release  of  a  right  to  be  acquired  in  the  future  is,  therefore,  anoma- 
lous;11 but  a  covenant  of  perpetual  forbearance  has  been  from  early 
times,  in  order  to  avoid  circuity  of  action,  a  bar  at  law  to  an  action,12 

6  See  supra,  p.  217,  n.  25. 

I  See  infra,  p.  816. 

8  A  sealed  release  made  in  Michigan  was  disregarded  on  this  ground  in 
Wabash  Ry.  r.  Brow,  65  Fed.  Rep.  941  (C.  C.  A.).  So  in  Missouri,  Winter 
v.  Kansas  City  Ry.  Co.,  160  Mo.  159. 

It  should  be  noticed  that  in  New  York  (and  perhaps  other  states)  the 
statute  depriving  a  seal  of  its  common-law  effect  applies  only  to  execu- 
tory contracts.  Hence  a  voluntary  release  is  good.  Homans  v.  Tyng,  56 
N.  Y.  App.  Div.  383,  387;  Finch  v.  Simon,  61  N.  Y.  App.  Div.  139. 

9Cal.  Civ.  Code,  §  1541;  Ind.  Code  Civ.  Pro.,  §  450;  Mont.  Civ.  Code, 
§  2080;  N.  Dak.  Rev.  Stat.,  §  3892;  S.  Dak.  Annot.  Stat.,  §  4538;  Shannon's 
Tenn.  Code,  §  5570.  An  informal  waiver  or  agreement  does  not  come  within 
these  statutes.  The  instrument  must  purport  to  be  a  release.  Wheelock 
v.  Pacific  Gas  Co.,  51  Cal.  223;  Upper  San  Joaquin  Co.  v.  Roach,  78  Cal.  552. 
See  also  Miller  v.  Fox,  76  S.  W.  Rep.  893   (Tenn.). 

10  Green  4-.  Langdon,  28  Mich.  221;  Holmes  v.  Holmes,  129  Mich.  412; 
Gray  v.  Barton,  55  N.  Y.  68;  Ferry  v.  Stephens,  66  N.  Y.  321;  Carpenter 
v.  Soule,  88  N.  Y.  251.  See  contra,  Reynolds  r.  Reynolds,  55  Ark.  369; 
Warren  v.  Skinner,  20  Conn.  559 ;  Stamper  r.  Hayes,  25  Ga.  546 ;  Bingham 
v.  Browning,  197  111.  122;  Dennett  v.  Lamson,  30  Me.  223;  First  Bank  r. 
Marshall,  73  Me.  79;  Sigourney  v.  Sibley,  21  Pick.  101;  Gold  Medal  Sewing 
Mach.  Co.  v.  Harris,   124  Mass"  206. 

II  Hoe  v.  Marshall,  Cro.  Eliz.  579;  Hoe's  Case,  5  Rep.  70b,  71;  Neal  v. 
Sheffield,  Brownl.  110;  S.  C,  Yelv.  192;   18  Vin.  Abr.  *327. 

12  Hodges  v.  Smith,  Cro.  Eliz.  623;  Smith  v.  Mapleback,  1  T.  R.  441,  446; 
Ford  v.  Beech,  11  Q.  B.  852. 

A  covenant  of  permanent  forbearance  is,  therefore,  as  effective  as  a  release. 
Flinn  v.  Carter,  59  Ala.  364 ;  Jones  v.  Quinnipiack  Bank,  29  Conn.  25 ;  Guard 
v.  Whiteside,  13  111.  7;  Peddicord  v.  Hill,  4  T.  B.  Mon.  370;  Foster  v.  Purdy, 
5  Met.  442;  Stebbins  v.  Niles,  25  Miss.  267;  Line  v.  Nelson,  38  N.  J.  L.  358; 
Phelps  t\  Johnson,  8  Johns.  54;   Thurston  v.  James,  6  R.  I.  103. 

So  a  bond  to  indemnify  against  a  debt  will  bar  an  action  by  the  obligor 
on  the  debt.     Richards  v'  Fisher,  2  Allen,  527;  Clark  v.  Bush,  3  Cow.  151. 


<s14  DISCHABGE    OF    CONTRACTS. 

and  as  an  attempted  release  of  a  future  right  must  be  construed  as 
amounting  at  least  to  a  covenant  not  to  enforce  the  right  whenever  it 
arises,  such  a  release  is  fully  effectual.13 

Conditional  releases.  A  release  may  be  subject  to  the  happening  of  a 
condition  precedent,14  and  it  has  been  held  that  it  may  also  be  sub- 
ject to  a  condition  subsequent.15  There  seems  difficulty  in  this  re- 
sult, however.  It  was  a  settled  doctrine  of  the  common  law  that  a 
cause  of  action  once  discharged  was  gone  forever.  If  such  a  release 
can  be  successfully  pleaded  to  the  action  before  the  condition  subse- 
quent happens,  a  court  of  law  must  give  judgment  for  the  defendant, 
and  if  after  the  condition  subsequent  has  happened  an  action  is  again 
brought  on  the  same  cause  of  action,  the  plea  of  res  judicata  seems 
unanswerable.16  The  intention  of  the  parties  can  be  effectuated  in 
great  measure,  however,  by  construing  the  so-called  condition  subse- 
quent as  a  promise  to  pay  the  released  claim  in  a  given  event.  The 
creditor's  right  of  action  on  the  happening  of  that  event  would  then 
be  on  the  new  promise  contained  in  the  release,  not  on  the  original 
cause  of  action.    But  consideration  would  be  essential. 

Construction.  Most  of  the  cases  on  releases  involve  questions  of  con- 
struction only,  and  some  technical  rules  of  construction  have  been 
established,  but  these,  like  most  rules  of  construction,  would  be  held 
subordinate  to  the  broad  rule  that  the  intention  which  the  words  of 
the  instrument  express  in  the  light  of  the  circumstances  existing  at  the 
time  shall  prevail.17  Thus  "  by  a  release  of  all  actions,  suits,  and 
quarrels,  a  covenant  before  the  breach  of  it  is  not  released,  because 
there  is  not  any  cause  of  action,  nor  any  certain  duty  before  the 
breach  of  it,  but  the  breach  of  it  ought  to  precede  the  action,  and 
the  cause   of  the  duty.     .     .  But     ...     by   release  of   cove- 

nants, the  covenant  is  discharged  before  the  breach  of  it."  18 

"  If  a  man  release  to  another  all  manner  of  demands,  this  is  the 
best  release  to  him  to  whom  the  release  is  made,  that  he  can  have, 
and  shall  enure  most  to  his  advantage.     For  by  such  release  of  all 

13  Pierce  r.  Parker,  4  Mete.  80 ;  Reed  r.  Tarbell.  4  Mete.  93.  See  also  Crum 
v.  Sawyer,  132  111.  443;  Curtis  r.  Curtis,  40  Me.  24;  Power's  Appeal,  63 
Pa.   443. 

"  Gibbons  v.  Vouillon,  8  C.  B.  483 ;  Corner  r.  Sweet,  L.  P.  1  C.  P.  456. 

15  Slater  v.  Jones,  L.  R.  8  Ex.  186;  Newington  v.  Lew,  L.  R.  5  C.  P. 
607,  L.  R.  6  C.  P.  180. 

16  See  Ford   r.  Beech,  11  Q.  B.  852. 

Therefore,  in  Tyson  v.  Dorr,  6  Whart.  256,  the  condition  subsequent  was 
held  void  and  the  release  absolute. 

17  See  Rowe  v.  Rand,   111   Ind.   206. 
is  Hoe's  Case,  5  Coke,  706,  71a. 


RESCISSION.  815 

manner  of  demands  all  manner  of  actions  reals,  personals  and  actions 
of  appeals  are  taken  away  and  extinct,  and  all  manner  of  executions 
are  taken  away  and  extinct."  19 

The  most  important  rule  of  construction  relating  to  releases  was 
thus  expressed  in  a  recent  case  by  Lindley,  M.R.  "  General  words 
of  release  are  always  controlled  by  recitals  and  context  which  show 
that  unless  the  general  words  are  restricted,  the  object  and  purpose 
of  the  document  in  which  they  occur  must  necessarily  be  frustrated. 
General  words  are  always  construed  so  as  to  give  effect  to,  and  not  so 
as  to  destroy,  the  expressed  intentions  of  those  who  use  them."  20 

Rescission  by  Parol  Agreement. 

Elements  of  such  agreement.  The  discharge  of  a  contract  by  the  parol 
agreement  of  the  parties  would  seem  on  principle  to  require  the  same 
elements  of  mutual  consent  and  consideration  that  are  necessary  for 
the  formation  of  simple  contracts;  and  certainly  this  is  the  general 
rule. 

Bilateral  contracts.  If  the  parties  to  a  bilateral  contract  agree  to 
rescind  it  there  is  no  difficulty  in  regard  to  consideration,  whether 
the  agreement  to  rescind  is  made  before  or  after  the  breach  of  the 
original  contract,  so  long  as  neither  party  has  completely  performed 
or  been  discharged  from  his  obligation.  The  promise  of  one  party 
to  forego  his  rights  under  the  contract  is  sufficient  consideration  for 
the  promise  of  the  other  party  to  forego  his  rights.21 

l9Litt.,  §  508;  Co.  Litt.,  291a.     See  Suit  v.  Suit,  97  Md.  539. 

The  nicety  of  construction  which  the  early  law  sanctioned  may  be  illus- 
trated by  some  other  sections  of  Littleton.  Thus,  section  498,  "  If  I  have  any 
cause  to  have  a  writ  of  detinue  of  my  goods  against  another,  albeit  that  I 
release  to  him  all  actions  personals,  yet  I  may  by  the  law  take  my  goods  out 
of  his  possession,  because  no  right  of  the  goods  is  released  to  him  but  only 
the  action." 

Again,  section  504,  "  If  a  man  recover  debt  or  damages,  and  he  releaseth 
to  the  defendant  all  manner  of  actions,  yet  he  may  lawfully  sue  execution  by 
capias  ad  satisfaciendum,  or  by  elegit,  or  fieri  facias;  for  execution  upon 
such  a  writ  cannot  be  said  an  action." 

20  Re  Perkins,  [1898]  2  Ch.  182,  190.  To  the  same  effect  are  Payler  v. 
Homersham,  4  M.  &  S.  423 ;  Lindo  v.  Lindo,  1  Beav.  496 ;  London,  &c.  Ry.  Co. 
P.  Blackmore,  L.  R.  4  H.  L.  610;  Turner  v.  Turner,  14  Ch.  D.  829;  Tryon  v. 
Hart,  2  Conn.  120;  Seymour  v.  Butler,  8  la.  304;  Rich  v.  Lord,  18  Pick.  322; 
Wiggin  v.  Tudor.  23  Pick.  434;  Hoes  v.  Va,n  Hoesen,  1  Barb.  Ch.  379;  Mat- 
lack's  Appeal,  7  Watts  &  S.  79.     See  also  Danby  v.  Coutts,  29  Ch.  D.  500. 

21  King  v.  Gillett,  7  M.  &  W.  55;  Farrar  v.  Toliver,  88  111.  408;  Rollins 
r  Marsh,  128  Mass.  116;  Brigham  v.  Herrick,  173  Mass.  460,  467;  Blagborne 
V.  Hunger,  101  Mich.  375;  Spier  v.  Hyde,  78  N.  Y.  App.  Div.  151,  158; 
Dreifus  r.  Columbian  Salvage  Co.,  194  Pa.  475,  486;  Blood  v.  Enos,  12  V4. 
C25;  Montgomery  V.  American  Central  Ins.  Co.,  108  Wis.  146,  159. 


816  DISCHABGE    OF    CONTEACTS. 

Agreement  may  be  inferred  from  facts.  The  agreement  to  rescind  need 
not  be  express.  Mutual  assent  to  abandon  a  contract  may  be  in- 
ferred from  circumstances22  and  sometimes  from  circumstances  of  a 
negative  character,  such  as  the  failure  to  take  any  steps  looking 
towards  the  enforcement  or  performance  of  the  contract.23  Also  "  a 
subsequent  contract  completely  covering  the  same  subject-matter,  and 
made  by  the  same  parties,  as  an  earlier  agreement,  but  containing 
terms  inconsistent  with  the  former  contract,  so  that  the  two  cannot 
stand  together,  rescinds,  substitutes,  and  is  substituted  for  the  earlier 
contract  and  becomes  the  only  agreement  of  the  parties  on  the  sub- 
ject." M 

Unilateral  contracts.  If  the  original  contract  was  unilateral  or  has 
since  its  formation  become  unilateral  by  the  discharge  of  one  party 
to  the  contract,  either  by  his  own  performance  or  otherwise,  a  mutual 
agreement  to  rescind  without  more  has  no  consideration.  As  one 
party  only  was  entitled  to  anything  under  the  original  contract  at 
the  time  of  the  attempted  rescission,  he  alone  promises  to  give  up 
anything  by  agreeing  to  rescind. 

Two  special  classes  of  cases.  These  principles  are  clearly  recognized 
by  the  decisions25  except  in  two  classes  of  cases : 

1.  Agreements  made  before  breach  of  a  unilateral  contract  to  dis- 
charge the  promisor. 

22  Green  r.  Wells,  2  Cal.  584;  Heinlin  v.  Fish,  8  Minn.  70;  Fine  v.  Rogers, 
15  Mo.  315;  Chouteau  v.  Jupiter  Iron  Works,  94  Mo.  388;  Wheeden  r. 
Fiske,  50  N.  H.  125.     See  also  cases  cited  in  the  following  two  notes. 

23Hobbs  r.  Columbia  Falls  Brick  Co.,  157  Mass.  109;  Mowry  t.  Kirk, 
19  Ohio  St.  375. 

24  Housekeeper  Pub.  Co.  v.  Swift,  97  Fed.  Rep.  290  (C.  C.  A.).  See  in 
accord,  Patmore  v.  Colburn,  1  C.  M.  &  R.  65,  71;  Stow  r.  Russell,  36  111. 
18,  30;  Harrison  v.  Polar  Star  Lodge,  116  111.  279,  287;  Holbrook  v.  Electric 
Appliance  Co.,  90  111.  App.  S6;  Western  Ry.  Equipment  Co.  v.  Missouri  Iron 
Co..  91  111.  App.  28,  37;  Thompson  v.  Elliott,  28  Ind.  55;  Paul  v.  Meservev, 
58  Me.  419;  Howard  v.  Wilmington,  &c.  R.  Co.,  1  Gill,  311,  340;  Smith  v. 
Kelly,  115  Mich.  411;  Chresman  v.  Hodges,  75  Mo.  413,  415;  Tuggles  v. 
Callison,  143  Mo.  527,  536;  McClurg  v.  Whitney,  82  Mo.  App.  625;  Renard 
v.  Sampson,  12  N.  Y.  561,  568.  Compare  Rhoades  v.  Chesapeake,  &e.  R.  Co., 
49  W.  Va.  494. 

25  Poster  r.  Dawber,  6  Ex.  851;  Edwards  v.  Walters,  2  Ch.  157.  168:  West- 
moreland v.  Porter,  75  Ala.  452;  Florence  Cotton  Co.  v.  Field,  104  Ala. 
471;  Mobile,  &c.  R.  R.  Co.  v.  Owen,  121  Ala.  505;  Swan  r.  Benson,  31  Ark. 
728;  Mendall  v.  Davis,  46  Ark.  420;  Davidson  v.  Burke,  143  111.  139;  Metcalf 
r,  Kent,  104  la.  487;  Averill  v.  Wood,  78  Mich.  342,  354;  Young  r.  Power. 
41  Miss.  197;  Northwestern  Nat.  Bank  v.  Great  Falls  Opera  House.  23 
Mont.  1;  Landon  r  Hutton,  50  N.  J.  Eq.  500;  Crawford  r.  Millspausrh,  13 
Johns.  87;  Whitehill  r.  Wilson,  3  Pen.  &  Watts,  405,  413;  Kidder  r.  Kidder, 
33  Pa.  268;   Collyer  v.  Moulton,  9  R.  I.  90. 


rescission:  unilateral  contract  before  breach.        817 

2.  Agreements  to  discharge  a  party  to  a  negotiable  instrument, 
whether  the  agreement  be  made  before  or  after  maturity  of  the 
instrument. 

Agreements  Made  Before  Breach  of  a  Unilateral  Simple  Contract  to 
Discharge  the  Promisor. 
Early  cases.  In  several  short  cases  decided  about  the  year  1600,  it 
was  decided  or  said  that  such  an  agreement  was  effectual.28  The 
appropriate  words  for  alleging  such  an  agreement  were  that  the  plain- 
tiff exonerated  or  discharged  the  defendant.  The  point  seems  not  to 
have  been  again  discussed  until  the  nineteenth  century,  when  several 
cases  were  decided  which  touch  upon  it. 

King  v.  Gillett.  In  King  v.  Gillett,27  the  plea  to  an  action  for  breach 
of  promise  of  marriage  was  that  before  any  breach  the  plaintiff  "  ab- 
solved, exonerated,  and  discharged  the  defendant."  On  special  de- 
murrer it  was  urged  that  the  plea  should  have  alleged  rescission  by 
mutual  assent.  But  the  plea  was  held  good  on  the  strength  of  the 
early  decisions.  The  court,  however,  said  the  question  was  merely 
as  to  a  matter  of  form,  for  though  the  plea  was  good,  "  yet  we  think 
the  defendant  will  not  be  able  to  succeed  upon  it  at  nisi  prius,  in  case 
issue  be  taken  upon  it,  unless  he  proves  a  proposition  to  exonerate  on 
the  part  of  the  plaintiff,  acceded  to  by  himself,  and  this  in  effect 
will  be  a  rescinding  of  the  contract  previously  made."  It  is  apparently 
thought  by  some  writers28  that  the  decision  in  some  way  discredits 
the  early  authorities,  but  this  seems  a  mistake.  The  court  simply 
said  that  mutual  assent  was  necessary  to  make  out  the  defend', 
but  this  is  not  saying  that  consideration  was  unnecessary.  In  later 
decisions  the  English  courts  have  never  considered  King  v.  Gillett. 
As  the  contract  in  that  case  was  bilateral,  there  was,  undoubtedly, 
consideration  if  there  was  an  agreement  to  rescind.  The  question 
was  merely  whether  mutual  assent  was  alleged  with  sufficient  certainty. 

Dobson  v.  Espie.  Dobson  v.  Espie29  was  an  action  for  the  breach  of 
an  independent  obligation  to  pay  a  deposit  to  an  auctioneer  as  se- 
curity for  future  performance  of  a  contract  for  the  sale  of  property, 
and  the  defendant  pleaded  leave  and  license.    On  demurrer  the  court 

26  Corners  and  Holland's  Case,  2  Leon.  214;  Langden  v.  Stokes,  Cro.  Car. 
.389;  Edwards  v.  Weeks,  2  Mod.  259.  See  also  Treswaller  r.  Keyne,  Cro.  Jac. 
020;  May  v.  King,  12  Mod.  537;  Weston  v.  Mowlin,  2  Burr.  969,  978. 

27  7  M.  &  W.  55. 

28  Anson  on  Contracts   (10th  ed.),  292;  Clark  on  Contracts,  609. 
2!.  2  H.  &  N.  79. 

52 


818  DISCHARGE    OF    CONTRACTS. 

held  the  pica  bad  as  not  equivalent  to  "  exonerated  and  discharged/' 
but  the  implication  is  clear  that  a  plea  in  the  latter  form  would  have 
been  held  good,  and  one  member  of  the  court,  Bramwell,  B.,  not  only 
said  so,  but  expressed  the  opinion  that  even  in  its  actual  form  the 
plea  was  good,  saying: 

"  In  an  action  on  a  simple  contract,  a  plea  of  exoneration  before  breach 
is  good.  The  law  is  thus  laid  down  in  Byles  on  Bills,  p.  1C8  (7th  ed. )  :»o  '  It 
is  a  general  rule  of  law,  that  a  simple  contract  may,  before  breach,  be; 
waived  or  discharged,  without  a  deed  and  without  consideration;  but  after 
breach  there  can  be  no  discharge  except  by  deed  or  upon  sufficient  consid- 
eration.' Assuming,  then,  that  a  plea  of  exoneration  before  breach  would 
have  been  good  in  this  case,  I  thought  that  the  present  plea  might  be  so 
read;  and,  therefore,  if  sitting  alone,  I  should  have  been  disposed  to  hold 
it  good.'' 

There  is  a  dictum  to  the  same  effect  by  Lindley,  L.  J.,  in  the  recent 
case  of  Edwards  v.  Walters.31 

Foster  v.  Dawber.  It  is  true  that  Parke,  B.,  in  Foster  v.  Dawber32 
said  obiter  "  an  executed  contract  cannot  be  discharged  except  by  re- 
lease under  seal,  or  by  performance  of  the  obligation,  as  by  payment, 
where  the  obligation  is  to  be  performed  by  payment."  It  is  to  be 
noticed,  however,  that  Parke  is  not  speaking  of  the  situation  before 
breach  and  though  his  remark  is  applicable  both  to  broken  and  un- 
broken contracts,  cases  arise  far  more  commonly  in  regard  to  the 
former.  In  any  event,  Parke  was  speaking  without  having  the  au- 
thorities before  him  and  with  his  mind  addressed  to  another  matter. 
In  view  of  the  later  case  of  Dobson  v.  Espie,33  the  English  law  seems 
still  to  be  that  exoneration  before  breach  is  good  without  consideration. 

American  decisions.  In  the  United  States  there  are  a  few  dicta34  to 
the  same  effect,  and  there  is  a  decision  in  Wisconsin35  involving  the 
point,  which  held  exoneration  good.  But  there  are  authorities  of 
contrary  effect,36  and  in  view  of  this  as  well  as  the  opinion  of  Ameri- 
can text  writers,37  and  the  absence  of  any  underlying  principle  to  sup- 
so  So  in  16th  ed.,  p.  311;  1  Smith's  Leading  Cases  (11th  Eng.  ed.),  350; 
(9th  Am.  ed.)   614. 

31  [1896]   2  Ch.  157,  168. 

32  6  Ex.  851. 

33  2  H.  &  N.  79. 

34  Robinson  v.  McEaul,  19  Mo.  549;  Seymour  v.  Minturn,  17  Johns.  169, 
175;  Kelly  v.  Bliss,  54  Wis.  187,  191. 

35  Hathaway  r.  Lynn,  75  Wis.  551. 

36  Hale  v.  Dresser,,  76  Minn.  183;  Collyer  v.  Moulton,  9  R.  I.  90;  Ripley 
i\  .Etna  Ins.  Co.,  30  N.  Y.  136,  164.  See  also  Bowman  r.  Wright,  65  Neb. 
(;<;l;  Purdy  v.  Rome,  etc.,  R.  Co.,  125  N.  Y.  209. 

3T  Clark  on  Contracts,  608;  Harrimnn  on  Contracts  (2d  ed.),  §  505;  24 
Am.  &  Eng.  Encvc.  of  Law   (2d  ed.),  287. 


rescission:  negotiable  instruments.  819 

port  the  English  doctrine,  it  seems  probable  that  consideration  will, 
in  most  states,  be  held  essential.  Cases  may  be  suggested,  however,, 
where  the  promisor  should  clearly  be  held  discharged.  Suppose  the 
promisee  informs  the  promisor  that  performance  will  not  be  re- 
quired, and  relying  on  this  the  promisor  is  not  ready  to  perform  at 
the  day,  or  has  so  altered  his  position  that  he  cannot  perform  at  all. 
Though  estoppel  is  not  ordinarily  a  substitute  for  consideration  justice 
demands  that  in  the  cases  supposed  the  promisee  should  not  be  allowed 
to  hold  the  promisor  liable  for  his  non-performance. 

It  may  well  be  that  a  recognition  of  this  possibility  of  injustice  here 
suggested  led  the  early  judges  to  hold  exoneration  good  without  con- 
sideration. At  the  present  day  it  would  seem  better  to  apply  the  doc- 
trines of  estoppel  in  pais  when  necessary,  but  in  general  to  require 
consideration. 

Agreement  to  Discharge  a  Party  to  a  Negotiable  Instrument. 

Foster  v.  Dawber.  The  following  extract  from  the  opinion  of  Parke, 
B.,  in  Foster  v.  Dawber,58  the  leading  case  on  the  subject  sufficiently 
expresses  the  English  law  prior  to  the  enactment  of  the  Bills  of  Ex- 
change Act  in  1882. 

"  Mr.  Willes  disputed  the  existence  of  any  rule  of  law  by  which  an  ob- 
ligation on  a  bill  of  exchange  by  the  law  merchant  can  be  discharged  by 
parol,  and  he  questioned  the  decisions,  and  contended  that  the  authorities 
merely  went  to  show  that  such  an  obligation  might  be  discharged  as  to 
remote  but  not  as  between  immediate  parties.  The  rule  of  law  has  been 
so  often  laid  down  and  acted  upon,  although  there  is  no  case  precisely  on  the 
point  as  between  immediate  parties,  that  the  obligation  on  a  bill  of  ex- 
change may  be  discharged  by  express  waiver,  that  it  is  too  late  now  to 
question  the  propriety  of  that  rule.  In  the  passage  referred  to  in  the  work 
of  my  brother  Byles,  the  words  '  it  is  said '  are  used,  but  we  think  the  rule 
there  laid  down  is  good  law.  We  do  not  see  any  sound  distinction  be- 
tween the  liability  created  between  immediate  and  distant  parties.  Whether 
they  are  mediate  or  immediate  parties  the  liability  turns  on  the  law  mer- 
chant, for  no  person  is  liable  on  a  bill  of  exchange  except  through  the 
law  merchant;  and,  probably,  the  law  merchant  being  introduced  into  this 
country,  and  differing  very  much  from  the  simplicity  of  the  common  law, 
at  the  same  time  was  introduced  that  rule  quoted  from  Pailliet39  as  prevail- 
ing in  foreign  countries,  viz.,  that  there  may  be  a  release  and  discharge 
from  a  debt  by  express  words,  although  unaccompanied  by  satisfaction  or 
by  any  solemn  instrument.  Such  appears  to  be  the  law  of  France,  and 
probably  it  was  for  the  reason  above  stated  that  it  has  been  adopted  here 
with  respect  to  bills  of  exchange.  But  Mr.  Willes  further  contended,  that 
though  the  rule  might  be  true  with  respect  to  bills  of  exchange,  it  did  not 
apply  to  promissory  notes,  inasmuch  as  they  are  not  put  upon  the  same  foot- 
ing as  bills  of  exchange  by  the  statute  law.  The  negotiability  of  promis- 
sory notes  was  created  by  the  statute  3  &  4  Anne,  c.  9,  which  recites  that 
'  notes  in  writing  signed  by  the  party  who  makes  the  same,  whereby  such 
party  promises  to  pay  unto  any  other  person  or  his  order  any  sum  of  money 
therein  mentioned  are  not  assignable  or  indorsable  over,  within  the  custom 

38  6  Ex.  839,  851.    , 

39  Manuel  de  Droit  Civil,  Code  Civ.,  liv.  3,  tit.  3,  s.  3. 


820  DISCHAEGE    OF    CONTRACTS. 

of  merchants  to  any  other  person'  (that  is  one  of  the  properties  promissory 
notes  are  recited  not  to  have)  ;  '  and  that  such  persons  to  whom  the  sum  of 
money  mentioned  in  sueh  note  is  payable  cannot  maintain  an  action  by  the 
custom  of  merchants  against  the  person  who  first  made  and  signed  the 
same ;  and  that  any  person  to  whom  such  note  shall  be  assigned,  indorsed,  or 
made  payable,  could  not,  within  the  said  custom  of  merchants,  maintain 
any  action  upon  such  note  against  the  person  who  first  drew  and  signed 
the  same.'  That  appears  to  apply  to  cases  of  the  original  liability  on  a 
note,  as  well  as  to  those  cases  where  the  liability  has  been  created  by  the 
assignment  of  that  instrument.  Now  bills  of  exchange  and  promissory 
notes  differ  from  other  contracts  at  common  law  in  two  important  particu- 
lars: first,  they  are  assignable,  whereas  choses  in  action  at  common  law  are 
not;  and  secondly,  the  instrument  itself  gives  a  right  of  action,  for  it  is  pre- 
sumed to  be  given  for  value,  and  no  value  need  be  alleged  as  a  consideration 
for  it.  In  both  these  important  particulars  promissory  notes  are  put  on  the 
same  footing  as  bills  of  exchange  by  the  statute  of  Anne,  and,  therefore,  we 
think  the  same  law  applies  to  both  instruments.  This  court  was  of  this 
opinion  in  »  case  of  Mayhew  v.  Cooze,40  in  which  there  was  a  plea  similar 
to  the  present,  although  the  expression  of  that  opinion  was  not  necessary 
for  1  he  decision  of  that  case."  41 

Bills  of  Exchange  Act.    The  Bills  of  Exchange  Act  now  provides  :4B 

"62  ( 1 )  When  the  holder  of  a  billys  at  or  after  its  maturity  absolutely 
and  unconditionally  renounces  his  rights  against  the  acceptor  the  bill  is 
discharged. 

"  The  renunciation  must  be  in  writing,  unless  the  bill  is  delivered  up  to 
the  acceptor. 

"  ( 2 )  The  liabilities  of  any  party  to  a  bill  may  in  like  manner  be  renounced 
by  the  holder  before,  at,  or  after  its  maturity,  but  nothing  in  this  section 
shall  affect  the  rights  of  a  holder  in  due  course  without  notice  of  the 
renunciation." 

The  requirement  of  a  writing  effected  a  change  in  the  English 
law.     It  was  adopted  from  the  Scotch  law.44 

American  decisions.     The   doctrine   of  Foster  v.   Dawoer  was   never 
adopted  by  the  American  courts  and  it  was  uniformly  held  that  con- 
sideration was  necessary  to  make  effectual  an  agreement  to  discharge 
a  party  to  a  negotiable  instrument.45     The  draftsman  of  the  Ameri- 
go 23d  November,  1849,  not  reported. 

41  In  White  v.  Bluett,  23  L.  J.  Ex.  (N.  S.)  36,  the  defendant,  when 
sued  upon  a  promissory  note,  pleaded  an  agreement  by  the  payee  to  dis- 
charge it  in  consideration  of  an  agreement  by  the  defendant  to  forbear 
to  make  certain  complaints.  The  court  held  the  alleged  consideration 
insufficient  and  gave  judgment  for  the  plaintiff,  but  as  the  forbearance 
asked  for  was  in  fact  given  and  as  there  was  nothing  illegal  in  the  bargain, 
it  is  difficult  to  see  why  the  doctrine  of  Foster  i .  Dawber,  to  which  Parke,  B., 
alluded,  should  not  have  been  applied. 

42  45  &  46  Vict.,  ch.  61. 

43  The  provisions  of  this  section  are  made  applicable  to  promissory  notes 
by  section  89. 

44  Chalmers'  Bills  of  Exchange   (5th  ed.),  212. 

45  Maness  v.  Henry,  96  Ala.  454;  Scharf  r.  Moore,  102  Ala.  468;  Upper 
San  Joaquin  Co.  v.  Roach,  78  Cal.  552;  Rogers  r.  Kimball,  121  Cal.  247;' 
Heckman  r.  Manning,  4  Col.  543;  Aihimson  r.  Lamb,  3  Blackf.  446;  Denman 
r.  McMahin.  37  Ind.  241;  Carter  v.  Zenblin,  68  Ind.  437;  Hanlon  v.  Doherty, 
109  Ind.  39;  Franklin  Bank  v.  Severin,  124  Ind.  317;  Shaw  /;.  Pratt,  22  Pick. 


rescission:  written  contracts.  821 

can  Negotiable  Instruments  Law,46  however,  copied  the  provision  of 
the  English  act,  and  in  States  where  this  law  has  been  enacted,47  there- 
fore, a  written  renunciation  or  discharge  is  good  without  consideration. 

Written  Contracts. 
May  be  varied  by  subsequent  agreement.  "  By  the  general  rules  of  the 
common  law,  if  there  be  a  contract  which  has  been  reduced  into 
writing,  it  is  competent  to  the  parties,  at  any  time  before  breach  of  it, 
by  a  new  contract  not  in  writing,  either  altogether  to  waive,  dissolve, 
or  annul  the  former  agreement,  or  in  any  manner  to  add  to,  or  sub- 
tract from,  or  vary,  or  qualify  the  terms  of  it,  and  thus  to  make  a 
new  contract,  which  is  to  be  proved,  partly  by  the  written  agreement, 
and  partly  by  the  subsequent  verbal  terms  engrafted  upon  what  will 
be  thus  left  of  the  written  agreement."48 

After  breach.  It  is  also  true  that  if  the  agreement  to  discharge  or 
vary  a  contract  is  made  after  its  breach,  it  is  immaterial  whether  the 
original  bargain  was  or  was  not  in  writing.  The  later  agreement  is 
an  accord,  and  if  the  parties  so  intend  will  operate  at  once  without 
performance  to  discharge  the  liability  for  breach  of  the  original 
contract.49 

305;  Smith  v.  Bartholomew,  1  Met.  276;  Bragg  t.  Danielson,  141  Mass.  195; 
Hale  r.  Dressen,  76  Minn.  183;  Henderson  v.  Henderson,  21  Mo.  379-;  Irwin 
v.  Johnson,  36  N.  J.  Eq.  347 ;  Crawford  v.  Millspaugh,  13  Johns.  87 ;  Seymour 
v.  Minturn,  17  Johns.  169;  Campbell's  Est.,  7  Pa.  100,  101;  McGuire  v. 
Adams,  8  Pa.  286;  Kidder  V,  Kidder,  33  Pa.  268;  Horner's  App.,  2  Penny- 
packer,  289;  Corbett  v.  Lucas,  4  McCord  L.  323.  See,  however,  Nolan  v. 
Bank  of  New  York,  07  Barb.  24,  34. 

46  Crawford  Nego.  Inst.  Law,  §  203. 

47  New  York  Laws  of  1897,  ch.  612;  New  York  Laws  of  1898,  ch.  336; 
Connecticut  Laws  of  1897,  ch.  74;  Colorado  Laws  of  1897,  ch.  64;  Florida 
Laws  of  1897,  ch.  4524;  Massachusetts  Laws  of  1898,  ch.  533:  Massa- 
chusetts Laws  of  1899,  ch.  130;  Maryland  Laws  of  1898,  ch.  119;  Virginia, 
Laws  of  1897-8,  ch.  866;  Rhode  Island  Laws  of  1899,  ch.  674;  Tennessee 
Laws  of  1899,  ch.  94;  North  Carolina  Laws  of  1899,  ch.  733;  Wisconsin 
Laws  of  1899,  ch.  356;  North  Dakota  Laws  of  1899,  ch.  113;  Utah  Laws  of 
1899,  ch.  149;  Oregon  Laws  of  1899,  Sen.  Bill  27;  Washington  Laws  of  1899, 
ch.  149;  District  of  Columbia  Laws  of  1899;  U.  S.  Stats.  Arizona  R.  S. 
1901,  tit.  XLIX,  §§  3304-3491;  Pennsylvania  Laws  of  1901,  ch.  162;  Ohio 
Laws  of  1902,  Sen.  Bill  10;  Iowa  Laws  of  1902,  ch.  130;  New  Jersey 
Laws  of  1902,  ch.  184;  Montana  Laws  of  1903,  ch.  121;  Idaho  Laws  of 
1903,  Sen.  Bill  86;  Kentucky  Laws  of  1904;  Louisiana  Laws  of  1904. 

48  Goss  t.  Lord  Nugent,  5  B.  &  Ad.  58,  64.  See  in  accord  Pioneer  Sav- 
ings Co.  v.  Nonnemacher,  30  So.  Rep.  79  (Ala.)  ;  Swain  v.  Seamens,  9 
Wall.  254,  271;  Calliope  Min.  Co.  v.  Herzinger,  21  Col.  482;  Ward  v.  Wal- 
ton, 4  Ind.  75;  Walter  v.  Victor  G.  Bloede  Co.,  94  Md.  80,  85;  Cummings 
v.  Arnold,  3  Mete.  486,  489;  Barton  v.  Gray,  57  Mich.  622;  Van  Santvoord 
v.  Smith,  79  Minn.  316;  Chouteau  v.  Jupiter  Iron  Works,  94  Mo.  388;  War- 
ren v.  Mayer  Mfg.  Co.,  161  Mo.  112,  121;  Bryan  v.  Hum,  4  Sneed,  543; 
Montgomery  v.  American  Ins.  Co.,  108  Wis.  146,  J  59. 

49  See  infra,  p.  834. 


02*4  DISCHARGE    OF    CONTRACTS. 

Contracts  within  the  Statute  of  Frauds  —  Rescission.  If  an  executory 
contract  is  within  the  Statute  of  Frauds  and  is  in  writing  or  a  proper 
written  memorandum  has  at  some  time  been  made,  a  subsequent  oral 
agreement  to  rescind  the  contract  is  effectual  if  the  oral  agreement 
fulfills  the  requisites  of  a  contract  at  common  law.  The  Statute  of 
Fiauds  does  not  mention  contracts  of  rescission  or  discharge  and  such 
contracts  are  therefore  not  affected  by  its  terms.50  An  exception  to 
this  rule  should,  perhaps,  be  made  in  the  case  of  contracts  relating 
to  land.  As  such  contracts  create  immediately  an  equitable  interest 
in  the  land,51  the  contract  to  rescind  necessarily  involves  the  sur- 
render of  an  interest  in  land.  This  has  been  so  held52  and  the  reason- 
ing seems  unanswerable,  but  there  is  contrary  authority,53  which 
takes  no  distinction  between  contracts  for  an"  interest  in  land  and 
other  contracts  within  the  statute.  If  the  agreement  to  rescind  was 
paid  for,  or  anything  was  done  in  accordance  with  the  agreement 
which  could  operate  as  an  accord  and  satisfaction,  the  original  agree- 
ment is  doubtless  effectually  discharged.54  On  the  other  hand  it 
should  be  noticed  that  if  a  contract  has  been  partly  executed  by  the 
transfer  Of  either  real  or  personal  property,  an  agreement  of  rescis- 
sion which  contemplates  not  simply  a  discharge  of  unexecuted  obliga- 
tions but  a  re-transfer  of  the  property  must  certainly  be  within  the 
section  of  the  statute  relating  to  sales  of  land  or  that  relating  to 
sales  of  goods. 

Variation.  More  difficult  questions  are  presented  when  the  subse- 
quent oral  agreement  does  not  purport  totally  to  rescind  but  only  to 
vary  some  of  the  terms  of  an  original  bargain,  which  was  within  the 
.Statute  of  Frauds  but  of  which  a  memorandum  had  been  made.  It 
seems  clear  on  principle  that  no  right  of  action  can  lie  for  breach  of 
the  second  agreement  or  of  the  first  and  second  combined.  To  allow 
such  a  right  would  be  to  enforce  a  contract  within  the  statute  when 

50  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58,  66. 

51  Equitable  interests  -ire  within  the  statutes.  Toppin  v.  Lomas,  16  C.  B. 
145;  Smith  V.  Burnham,  3  Sumn.  435;  Dougherty  v.  Catlett,  129  111.  431; 
Browne  on  the  Statute  of  Frauds,  §  220. 

52  Catlett  r.  Dougherty,  21  111.  App.  116  (see  Dougherty  v.  Catlett,  129 
111.  431)  ;  Dial  r.  Grain,  10  Tex.  444,  454  (see  also  Huffman  v.  Mulkey,  78 
Tex.  556). 

53  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58,  66  ( see,  however,  Harvey  v,  Grabham, 
5  A.  &  E.  61,  73)  ;  Buel  v.  Miller,  4  N.  H.  196;  Boyce  p.  MeCulloch,  3  W.  &  S. 
429;  Brownfield's  Ex.  r.  Brownfield,  151  Pa.  565.  See  also  Browne  on  the 
Statute  of  Frauds,  §  431  rt  seq. 

54  Burns  r.  Fidelity  Real  Estate  Co.,  52  Minn.  31,  36;  Warren  v.  Mayer 
Mfg.  Co.,  161  Mo.  112,  122;  Long  v.  Hartwell,  36  N.  .T.  L.  116;  Miller  v. 
Pierce,  104  N.  C.  3S9;  Jones  v.  Booth,  38  Ohio  St.  405;  Phelps  v.  Seely,  22 
Graft.  573;  Jordan  r.  Katz,  89  Va.  62S,  630. 


RESCISSION  :    WRITTEN"    CONTRACTS.  823 

some  terms  at  least  of  the  contract  were  oral.65  On  the  other  hand, 
if  the  terms  of  the  oral  contract  have  been  performed,  such  perform- 
ance operates  as  a  satisfaction  of  the  liability  on  the  original  contract. 
Ihe  Statute  of  Frauds  does  not  apply  to  executed  contracts,  so  that 
when  the  oral  agreement  is  performed  its  performance  has  the  effect 
which  the  parties  agreed  it  should  have.58  If  the  terms  of  the  oral 
agreement  have  not  been  performed;  the  original  contract  still  re- 
mains in  force.  Though  an  oral  agreement  to  rescind  without  more 
would  be  effectual,  where  the  rescission  is  to  be  effected  only  by  the 
necessary  implication  contained  in  the  agreement  to  substitute  a  new 
contract  differing  in  some  of  its  terms  from  the  old  one,  there  can 
be  no  rescission  if  the  agreement  for  substitution  is  invalid.57  Even 
if  one  party  offers  to  perform  his  promise  under  the  new  agreement, 
the  other  party  may,  according  to  the  better  view,  still  insist  on  the 
original  contract,  and  refuse  to  accept  the  substituted  performance  to 
which  he  had  orally  agreed.58  In  an  early  case,59  however,  the  Su- 
preme Court  of  Massachusetts  adopted  a  distinction  that  was  sug- 
gested by  Lord  Ellenborough  in  Cuff  v.  Penn,m  between  the  contract 
and  its  performance.  "  The  statute,"  Wilde,  J.,  says,  "  requires  a 
memorandum  of  the  bargain  to  be  in  writing,  that  it  may  be  made 
certain ;  but  it  does  not  undertake  to  regulate  its  performance."  The 
court  then  proceeds  to  argue  that  as  a  substituted  performance  would 
operate  as  a  satisfaction  of  the  original  contract,  and  tender  is  equiva- 
lent to  performance,  the  plaintiff  could  sue  on  the  original  contract 
and  prove  in  support  of  it  an  offer  to  perform  with  the  alterations 

65  Stead  r.  Dawber,  10  A.  &  E.  57  (overruling  Cuff  v.  Penn,  1  M.  &  S. 
21)  ;  Marshall  v.  Lynn,  6  M.  &  W.  116;  Noble  v.  Ward,  L.  R.  1  Ex.  117; 
Carpenter  v.  Galloway,  73  Ind.  418;  Bradley  v.  Harter,  156  Ind.  499;  Cum- 
mings  v.  Arnold,  3  Mete.  486,  491;  King  r.  Faist,  161  Mass.  449,  456;  Heisley 
v.  Swanstrom,  40  Minn.  199;  Burns  v.  Fidelity  Real  Est.  Co.,  52  Minn.  31; 
Thompson  v.  Thompson,  78  Minn.  379;  Rucker  v.  Harrington,  52  Mo!  App. 
481;  Warren  v.  Mayer  Mfg.  Co.,  161  Mo.  112;  Dana  v.  Hancock,  30  Vt.  616. 

56  Moore  v.  Campbell,  10  Ex.  323 ;  Leather  Cloth  Co.  v.  Hieronymus,  L.  R. 
10  Q.  B.  140 ;  Swain  v.  Seamens,  9  Wall.  254 ;  Long  v.  Hartwell,  34  N.  J.  L. 
116,  127;  Jackson  v.  Litch,  62  Pa.  451;  Ladd  v.  King,  1  R.  I.  224,  231.  Cp. 
Dana  v.  Hancock,  30  Vt.  616. 

57  Noble  v.  Ward,  L.  R.  2  Ex.  135;  Hasbrouck  r.  Tappen,  15  Johns.  200; 
Barton  v.  Gray,  57  Mich.  622,  632. 

58Stowell  r.  Robinson,  3  Bing.  N.  C.  937;  Noble  v.  Ward,  L.  R.  2  Ex.  135; 
Plevins  v.  Downing,  1  Q.  P.  D.  220;  Swain  r,  Seamens,  9  Wall.  254,  271; 
Lawyer  v.  Post,  109  Fed.  Rep.  512;  Bradley  v.  Harter,  156  Ind.  499;  Walter 
v  Victor  G.  Bloede  Co.,  94  Md.  80 1  Rucker  v.  Harrington,  52  Mo.  App.  481; 
Warren  V.  Mayer  Mfg.  Co.,  161  Mo.  112;  Clark  v.  Fey,  121  N.  Y.  470.  See 
also  Dana  v.  Hancock,  30  Vt.  616. 

50  Cummings  r.  Arnold,  3  Mete.  486. 

eu  l  M.  &  S.  21.  The  suggestion  was  repudiated  in  Stead  v.  Dawber,  10 
A.  &  E.  57,  and  Marshall  v.  Lynn,  6  M.  &  W.  109,  and  is  wholly  discredited 
in  England. 


Is 24  DISCHARGE    OF    CONTBACTS. 

later  agreed  upon.  But  the  prevailing  view  is  that  even  in  the  case 
of  a  binding  contract  of  accord,  tender  is  not  equivalent  to  perform- 
ance, and  there  is  no  satisfaction  even  if  the  tender  is  wrongfully 
refused.61  However  this  may  be,  a  tender  where  there  is  no  obliga- 
tion to  accept  it  cannot  possibly  have  the  effect  of  performance.  The 
learned  author  of  the  leading  text  book  on  the  subject62  gives  his  ap- 
proval to  the  decision,  but  the  current  of  authority  seems  strongly 
against  it. 

Amount  of  variation.  No  distinction  is  taken  in  the  cases  between 
large  changes  from  the  original  agreement  and  slight  ones,  such  as 
the  extension  for  a  brief  period  of  the  time  for  performance.  The 
validity  of  such  a  distinction  has  been  explicitly  denied.63  "  Every 
part  of  the  contract  in  regard  to  which  the  parties  are  stipulating  must 
be  taken  to  be  material."  M 

Part  performance  of  varied  agreement.  Though  an  attempted  oral 
modification  of  a  contract  within  the  statute  is  wholly  ineffectual  to 
accomplish  the  intent  of  the  parties,  yet  the  actual  forbearance  by  one 
party  at  the  request  of  the  other  to  enforce  a  contract  at  the  time 
when  performance  was  due  may  produce  important  legal  consequences. 
In  Ogle  v.  Vane?6  it  was  held  that  the  plaintiff  who  had  contracted 
to  buy  iron  from  the  defendant  in  July,  and  who,  after  waiting  at 
the  defendant's  request  till  the  following  February,  then  bought  in 
the  market,  could  charge  the  defendant  for  damages  based  on  the 
price  in  February,  though  the  price  was  higher  J:hen  than  in  July. 
The  court  relied  to  some  extent  on  the  fact  that  though  there  was 
forbearance  at  the  defendant's  request  there  was  no  agreement  to 
forbear,  but  it  seems  an  agreement  would  have  made  no  difference, 
for  the  agreement  would  neither  have  rescinded  the  original  contract 
nor  have  had  any  effect  itself  except  in  so  far  as  it  was  performed.68 

Hickman  v.  Haynes.  In  Hickman  v.  Ilaynes?1  the  plaintiff  had 
agreed  to  sell  and  the  defendant  to  buy  iron  in  the  future.     The 

''l  Infra,  p.  832. 

t>2  Browne  on  the  Statute  of  Frauds,  §  424.  See  also  Smith  v.  Loomis,  74 
Me.  503;  Lee  v.  Hawks,  68  Miss.  669.     Cp.  Wiessner  v.  Ayer,  176  Mass.  425. 

63  Goss  v.  Lord  Nusrent,  5  B.  &  Ad.  67 ;  Harvey  v.  Grabham,  5  A.  &  E.  74 ; 
Marshall  v.  Lynn,  6  M.  &  W.  116. 

«4Per  Parke,  B.,  Marshall  v.  Lynn,  6  M.  &  W.  116,  117. 

<■"  L.  R.  2  Q.  B.  275,  L.  R.  3  Q.  B.  272. 

«"  Smiley  v.  Barker.  83  Fed.  Rep.  684  (C.  C.  A.)  ;  Barton  r.  Gray,  57  Mich. 
622,  636.  See  Hasbrouck  r.  Tappen,  15  Johns.  200.  Cp.  Sanderson  v.  Graves, 
JL.  R.   10  Ex.  234. 

67  L.  R.  10  C.  P.  598. 


rescission:  written  contracts.  825 

defendant  had  requested,  before  the  time  for  performance,  an  en- 
largement of  the  time  for  taking  delivery.  This  was  granted,  but 
the  defendant  ultimately  refused  altogether  to  take  the  iron.  In  an 
action  on  the  contract  the  defendant  set  up  that  the  plaintiff  was  not 
himself  ready  and  willing  to  perform  -the  contract  at  the  time  when 
performance  was  due  according  to  the  written  memorandum.  The 
court  held  that  though  before  that  time  "  either  party  could  have 
changed  his  mind  and  required  the  other  to  perform  the  contract 
according  to  its  original  terms,"  *  yet  after  having  induced  the  plain- 
tiff to  withhold  delivery  the  defendant  could  not  thereafter  insist 
that  prompt  delivery  was  a  condition  precedent  to  a  right  of  action. 
In  this  case,  as  in  the  preceding,  the  court  said  there  was  no  agree- 
ment to  forbear,  but  merely  a  voluntary  forbearance,  but  here  also  it 
is  hard  to  see  that  a  mutual  agreement,  which  was  unenforceable, 
would  have  altered  the  decision.69 

Performance  of  part  of  contract  within  the  statute.  If  so  much  of  a  con- 
tract as  is  within  the  Statute  of  Frauds  is  fully  performed,  other 
obligations  or  liabilities  on  the  contract  may  obviously  be  discharged 
or  modified  in  any  way  that  contracts  not  within  the  statute  may  be. 
Thus  in  Negley  v.  Jeffers,™  there  was  a  contract  for  the  sale  of  land 
and  the  land  was  actually  conveyed.  After  the  conveyance  an  agree- 
ment was  made  by  the  vendee  for  valuable  consideration  to  waive 
certain  conditions  precedent  to  his  obligation  to  pay  the  price.  It 
was  held  this  agreement  though  oral  was  binding. 

Contracts  under  Seal. 

Common  law  rule.  If  the  original  contract  was  under  seal  the  same 
questions  are  presented  with  the  additional  difficulty,  which  at  com- 
mon law  was  insuperable,  that  an  obligation  by  deed  could  not  be 
discharged  or  varied  by  anything  of  inferior  nature.71 

When  applicable.  This  rule  was  applicable  to  any  discharge  at- 
tempted either  before  breach  of  the  deed  or  after  the  breach  of  the 
deed  if  the  obligation  created  by  the  deed  was  to  pay  a  fixed  sum  of 
money.    If,  however,  a  covenant  was  for  the  performance  of  anything 

68  Quwre  if  the  change  of  mind  was  so  near  the  time  for  performance  as 
to  make  performance  extremely  difficult  for  the  other  party.  See  Tyers  v. 
Rosedale  Co.,  L.  R.  8  Ex.  305,  L.  R.  10  Ex.  195. 

69  Smiley  r.  Barker,  83  Fed.  Rep.  684  ( C.  C.  A. )  ;  Barton  v.  Gray,  57  Mich. 
622,  636.     But  see  Sanderson  v.  Graves,  L.  R.  10  Ex.  234. 

70  28  Ohio  St.  90. 

71  See  cases  infra,  passim. 


826  DISCHARGE    OF    CONTRACTS. 

other  than  the  payment  of  a  fixed  sum  of  money,  breach  of  the  cove- 
nant gave  rise  merely -to  a  right  of  action  for  unliquidated  damages, 
and  such  a  right  of  action  was  subject  to  the  same  rules  as  to  dis- 
charge that  are  applicable  to  simple  contracts.72 

Modern  relaxation.  Accordingly,  if  an  obligation  under  seal  created 
reciprocal  rights,  a  mutual  agreement  before  breach  of  the  obliga- 
tion to  surrender  such  rights  or  to  substitute  others  for  them  did 
not  discharge  or  alter  the  effect  of  the  deed.73  The  suggested  mutual, 
agreement  by  parol  evidently  contains  all  the  requisite  elements  of 
a  contract,  but  there  seems  no  recognition  of  its  validity  as  a  contract 
in  any  decision  before  the  beginning  of  the  nineteenth  century,  and 
it  is  hard  to  distinguish  it  from  an  unexecuted  accord  which  was  held 
not  valid  as  a  contract.74  In  Nash  v.  Armstrong,''5  however  (which 
was  decided  after  the  passage  of  the  Common  Law  Procedure  Act  of 
185476  had  permitted  the  use  of  equitable  pleas  at  law),  it  was  not 
only  held  that  such  a  parol  agreement  was  in  itself  a  binding  contract, 
but  it  was  also  said  that  the  performance  of  the  contract  would  "  be 
ground  for  an  unconditional  perpetual  injunction  against  proceeding 
upon  the  deed,"  and  consequently  would  be  the  basis  of  a  good  equi- 
table plea  in  an  action  at  law.  At  the  present  day  this  doctrine  would 
be  generally  accepted.  Indeed,  many  modern  authorities  go  farther 
than  this.  Even  though  the  parol  agreement  has  not  been  performed, 
if  it  was  intended  in  substitution  of  the  earlier  sealed  contract,  this 
intention  is  frequently  given  full  effect.  In  jurisdictions  where  by 
statute  the  effect  of  a  seal  has  been  abolished  or  seriously  diminished, 
this  result  is  based  on  clear  principle,  for  if  a  contract  under  seal 
is  reduced  to  the  level  of  a  mere  written  contract  in  other  respects, 
there  is  no  reason  why  it  should  not  be  discharged  or  varied  by  sub- 
sequent written  or  oral  bargains.77  But  in  leading  jurisdictions, 
where  seals  still  have  in  most  respects  their  old  value,  the  rule  for- 

72  Blake's  Case,  6  Rep.  342. 

73  Rogers  v.  Payne,  2  Wils.  376;  Braddiek  v.  Thompson,  8  East,  344;  West 
r.  Blakewav,  2  Man.  &  G.  729;  Ellen  r.  Topp,  6  Ex.  424;  Herzog  r.  Sawyer, 
61  Md.  344,  352.     See  also  infra,  p.  835. 

"i  Allen  v.  Harris,  1  Ld.  Ravm.  122;  Lynn  v.  Bruce,  2  IT.  Bl.  317;  Reeves 
v.  Hearne,  1  M.  &  W.  323. 

75  10  C.  B.  N.  S.  259.  In  Braddiek  r.  Thompson,  8  East,  344,  346,  the 
court  said  obiter,  in  denying  that  a  parol  agreement  could  discharge  a  bond : 
"  His  only  remedy  was  by  bringing  a  cross-action  upon  the  agreement  against 
the  plaintiff,  for  suing  upon  the  bond  in  breach  of  such  agreement." 

76  Section   83. 

77  So  held  in  Barton  v.  Gray,  57  Mich.  634;  Blagborne  r.  Hunger,  101  Mich. 
375;  Bowman  v.  Wright,  65  Neb.  661;  Mcintosh  v.  Miner,  37  N.  Y.  App. 
Div.  483. 


rescission:  sealed  contracts.  8'27 

bidding  discharge  or  variation  by  parol  has  been  done  away  with.78 
In  some  jurisdictions,  however,  this  rule  still  persists,79  and  as  it  has 
the  support  of  the  whole  early  law,  English  and  American,  the  matter 
cannot  be  considered  settled  in  any  jurisdiction  unless  the  court  of 
that  jurisdiction  has  either  abrogated  the  rule,  in  which  case  it  is  not 
likely  to  recede,  or  has  expressly  considered  it  in  a  recent  case.  In 
Illinois  the  court  takes  a  middle  ground.  Thus  in  Star  in,  v.  Kraft,80 
the  Supreme  Court  of  that  state  held  that  a  sealed  executory  option 
to  sell  a  tract  of  land  "  estimated  to  contain  forty-five  acres  . 
the  precise  quantity  .  .  .  to  be  ascertained  by  a  correct  sur- 
vey," could  not  be  changed  so  as  to  make  good  a  tender  of  a  sum 
based  on  the  estimated  quantity,  by  proof  of  a  parol  agreement  be- 
tween the  parties  to  treat  this  quantity  as  correct.     The  court  said: 

"  It  cannot  be  maintained  .  .  .  that  the  parol  agreement  to  substi- 
tute the  fixed  amount  of  forty-five  acres  for  the  actual  amount  to  be  as- 
certained by  survey  was  an  executed  parol  agreement.  The  entire  agree- 
ment which  is  set  up  by  defendant  in  error  as  to  the  basis  of  his  suit  is 
partly  under  seal  and  partly  by  parol,  and  altogether  executory;  and  that  it 
has  never  been  executed,  either  as  to  the  provisions  under  seal  or  the  pro- 
vision by  parol,  is  determined  by  the  fact  that  a  tender  of  performance,  in 
accordance  with  the  parol  provision  on  the  one  side,  and  a  refusal  to  so 
perform  on  the  other,  constitute  the  grounds  of  the  suit.  But  it  is  con- 
tended by  counsel  for  appellee  .  .  .  that  where,  by  parol,  a  condition 
of  a  sealed  instrument  is  waived,  and  the  parties  act  or  fail  to  act,  because  vrf 
such  waiver,  the  doctrine  of  estoppel  will  preclude  a  denial  of  the  effect  of 
the  parol  agreement,  and  in  support  of  this  contention  they  cite  White  r. 
Walker,  31  111.  422;  Vroman  v.  Darrow,  40  Id.  171;  Fisher  v.  Smith,  48 
Id.  184;  Defenbaugh  v.  Weaver,  87  Id.  132;  Worrell  v.  Forsyth,  141  Id. 
22;  Moses  v.  Loomis,  156  Id.  392.81  In  Worrell  v.  Forsyth,  the  parol  agree- 
ment had  been  fully  executed.  In  each  of  the  other  cases  it  will  be  found, 
upon  examination,  that  the  facts  constituted  a  waiver  of  the  terms  or  con- 
ditions in  question,  which  waiver  was  in  the  nature  of  a  release,  surrender,  or 
discharge,  and  hence  would  come  under  the  rule  here  obtaining,  that  a 
contract  under  seal  may  be  released,  surrendered,  or  discharged  by  matters 
in  pais.  .  .  .  There  is  not  here  the  mere  subtraction  of  an  element  or 
condition  of  the  sealed  contract  without  changing  its  import,  but,  on  the 
contrary,  there  is  the  attempted  substitution  of  new  matter  which  is  essen- 
tial to   sustain   the  right   of  action.     .     .     .     Nor   can   we   concede   that   the 

TS  Steeds  v.  Steeds',  22  Q.  B.  D.  537 ;  Canal  Co.  v.  Ray,  101  U.  S.  522 :  Hast- 
ings v.  "Lovejoy,  140  Mass.  261;  Tuson  v.  Crosby,  172  Mass.  478;  Stees  v. 
Leonard,  20  Minn.  494 ;  McGrann  v.  North  Lebanon  R.  Co.,  29  Pa.  82 ;  Ham- 
ilton r.  Hart,  109  Pa.  629;  Hydeville  Co.  v.  Eagle  R.  R.  Co.,  44  Vt.  395.  See 
also  Phelps  v.  Seely,  22  Gratt.  573. 

79  Miller  v.  Hemphill,  9  Ark.  488;  Lew  v.  Very.  12  Ark.  148;  Smith  v. 
Lewis,  24  Conn.  624;  Tischler  v.  Kurtz,  35  Fla.  323;  Sinard  v.  Patterson,  3 
Blackf.  353;  McMurphy  v.  Garland,  47  N.  H.  316;  Armijo  v.  Abeytia,  5 
N  Mex.  533:  Delacroix  v.  Bulkley,  13  Wend.  71;  Bddv  r.  Graves,  23  Wend. 
82;  Coe  r.  Hobby,  72  N.  Y.  141;  Smith  v.  Kerr,  108  N.  Y.  31;  McKenzie  v. 
Harrison,  120  N.  Y.  260,  263  (but  see  McCreery  v.  Day,  119  N.  Y.  1;  Mc- 
intosh v.  Miner,  37  N.  Y.  App.  Div.  483 )  ;  Bond  v.  Jackson,  Cooke,  500 ; 
Sherwin  v.  Rutland,  &c.  R.  Co.,  24  Vt.  347.  Some  of  these  decisions  would 
not  perhaps  now  be  followed  in  their  own  jurisdictions. 

80  174   111.    120. 

Si  To  these  cases  may  be  added  Palmer  v.  Meriden  Britannia  Co.,  188  111.  508. 


828  DISCHARGE    OF    CONTEACTS. 

doctrine  of  equitable  estoppel  may  be  applied  at  law  to  enforce  such  a 
change  by  parol  in  a  sealed  executory  contract.  We  regard  the  parol 
agreement  sought  to  be  made  a  part  of  this  executory  contract  under  seal 
as  insufficient,  if  established,  to  support  his  suit  for  breach  of  it." 

Accords  and  similar  agreements.  If  an  agreement  for  the  discharge  of 
a  sealed  obligation  contemplates  not  an  immediate  mutual  surrender 
of  rights  but  the  performance  of  something  other  than  the  duty  im- 
posed by  the  deed  in  satisfaction  of  that  duty,  and  further  contem- 
plates that  until  such  performance  the  deed  shall  remain  in  force, 
the  agreement  is  one  of  accord  if  made  after  a  right  of  action  on  the 
deed  has  arisen;  if  made  before  a  right  of  action  has  arisen  the 
agreement  is  not  properly  called  an  accord  but  such  agreements  are 
more  conveniently  considered  in  connection  with  accords. 

Doctrine  of  exoneration  inapplicable.  The  doctrine  of  exoneration  or 
discharge  of  a  contract  before  breach  without  consideration  never 
applied  to  sealed  instruments.82 

Accord  and  Satisfaction. 

Definition.  "  From  time  immemorial  the  acceptance  of  anything  in 
satisfaction  of  the  damages  caused  by  a  tort  would  bar  a  subsequent 
action  against  the  wrong-doer."  8S  As  this  doctrine  arose  long  before 
the  validity  of  simple  contracts  was  recognized,  it  is  obvious  that  it 
was  not  by  virtue  of  any  preliminary  agreement  or  accord  between 
the  parties,  but  only  by  virtue  of  the  ultimate  acceptance  of  the  satis- 
faction that  the  discharge  was  effected.  The  only  importance  of  the 
accord  was  as  evidence  to  prove  that  the  performance  relied  upon  by 
the  defendant  as  satisfaction  was  actually  received  by  the  plaintiff  as 
such.  This  would  be  proved  as  well  by  the  plaintiff's  offer  to  receive 
the  thing  as  satisfaction  as  by  a  bilateral  agreement  between  the 
parties  by  which  the  plaintiff  promised  to  receive  the  thing  as  satis- 
faction and  the  defendant  promised  to  give  it.  There  was,  therefore, 
no  occasion  to  distinguish  between  a  mere  offer  on  the  part  of  the 
plaintiff  and  a  bilateral  contract.  The  distinction  is  now,  however,  of 
great  importance.  If  there  is  a  mere  offer  or  promise  by  the  creditor 
to  accept  something  as  satisfaction  and  the  debtor  makes  no  promise 

82  Irwin  r.  Johnson,  36  N.  J.  Eq.  347 ;  Traphagen  r.  Voorhees,  44  N.  J. 
Eq.  21;  Tulane  v.  Clifton,  47  N.  J.  Eq.  351;  Jackson  v.  Stackhouse,  1  Cow. 
122;  Albert's  Ex.  v.  Ziegler's  Ex.,  29  Pa.  50;  Horner's  App.,  2  Pennypacker, 

289  ;   Ewing  v.  Ewing,  2  Leigh,  337. 

83  9  Harv.  L.  Rev.  55',  by  Professor  Ames,  citing  Y.  B.  21  &  22  Edw.  I.  586 
(Rolls  series)  ;  Y.  B.  Hen.  VI.  25-13;  Y.  B.  34  Hen.  VI.  43,  44;  Andrew  r. 
Boughey,  Dyer,  75  pi.  23. 


ACCORD    AND    SATISFACTION.  829 

to  give  it,  the  offer  of  the  creditor  is  revocable  at  his  pleasure  and 
the  rights  of  the  parties  are  unchanged  until  the  agreed  satisfaction  is 
actually  given  and  received.  This  distinction  is  not  always  observed 
in  the  cases.84  The  word  "  accord,"  to  avoid  confusion,  should  be  used 
only  to  designate  a  bilateral  contract,  by  which  the  defendant  prom- 
ises to  give  the  proposed  satisfaction,  and  the  plaintiff  promises  to 
accept  it.85 

Accord  held  not  a  valid  contract  —  Peyto's  Case.  It  might  well  be  sup- 
posed that  such  an  accord  would  have  been  recognized  as  a  valid  con- 
tract as  soon  as  the  validity  of  other  bilateral  contracts  was  recog- 
nized, but  such  was  not  the  case.  The  courts  were  doubtless  led 
astray  by  the  assumption  that  if  the  contract  of  accord  was  valid,  it 
necessarily  would  be  a  defence  to  the  original  cause  of  action.  Even 
burdened  with  this  assumption,  the  Court  of  King's  Bench  said,  in 
1681,86  that  "though  in  Peyto's  case,  and  formerly,  it  hath  been  held 
that  an  accord  cannot  be  pleaded  unless  it  appears  to  be  executed, 
9  Co.  79  b,  3  Cro.  46,  pi.  2,  yet  of  late  it  hath  been  held  that  upon 
mutual  promises  an  action  lies,  and  consequently,  there  being  equal 
remedy  on  both  sides,  an  accord  may  be  pleaded  without  execution 
as  well  as  an  arbitrament,  and  by  the  same  reason  that  an  arbitrament 
is  a  good  plea  without  performance;  to  which  the  court  agreed;  for 
the  reason  of  the  law  being  changed,  the  law  is  thereby  changed; 
and  anciently  remedy  was  not  given  for  mutual  promises,  which  now  is 
given." 

Allen  v.  Harris.  But  this  dictum  being  urged  in  the  Common  Pleas 
twenty  years  later  in  the  case  of  Allen  v.  Harris87  as  a  reason  for 
holding  an  accord  unexecuted  a  defence  to  an  action,  the  court  gave 
judgment  for  the  plaintiff,  saying:  "  If  arbitrament  be  pleaded  with 
mutual  promises  to  perform  it,  though  the  party  has  not  performed 
his  part  who  brings  the  action,  yet  he  shall  maintain  his  action; 
because  an  arbitrament  is  like  a  judgment,  and  the  party  may  have 
his  remedy  upon  it.  But  upon  accord  no  remedy  lies.  And  the  books 
are. so  numerous  that  an  accord  ought  to  be  executed  that  it  is  now 

84  Cases  in  which  there  seems  to  have  been  merely  an  offer  by  the  creditor 
are:  W'ray  v.  Milestone,  5  M.  &  W.  21;  Francis  v.  Deming,  59  Conn.  108; 
Harbor  v.  Morgan,  4  Ind.  158 ;  Burgess  v.  Denison  Mfg.  Co.,  79  Me.  266 ; 
Cannon  Rivers  Assoc,  v.  Rogers,  46  Minn.  376;  Hawley  v.  Foote,  19  Wend. 
516;   Keen  v.  Vaughan's  Exrs.,  48  Pa.  477. 

85Langdell,  Summ.  Cont.,  §  87. 

80  Case  17.  Barber,  T.  Kay.  450. 

87  Allen  v.  Harris,  1  Ld.  Kay.  122. 


S30  DISCHAEGE    OF    CONTBACTS. 

impossible  to  overthrow  all  the  books.     But  if  it  had  been  a  new 
point,  it  might  be  worthy  of  consideration." 

Lynn  v.  Bruce.  Accordingly  in  Lynn  v.  Bruce88  breach  of  a  bilateral 
agreement  to  give  and  receive  a  specified  sum  of  money  as  satisfaction 
for  a  previous  cause  of  action  was  held  to  give  the  plaintiff  no  right. 
Eyre,  C.  J.,  quoted  from  the  case  of  Allen  v.  Harris,  and  gave  his 
approval  of  the  result  for  a  reason  not  mentioned  in  the  earlier  cases. 
"Interest  reipublicae  ut  sit  finis  litium.  Accord  executed  is  satisfac- 
tion, accord  executory  is  only  substituting  one  cause  of  action  in  the 
room  of  another,  which  might  go  on  to  any  extent." 

Reeves  v.  Hearne.  The  decision  of  Lynn  v.  Bruce  was  correct  upon 
its  facts,  since  the  accord  was  in  that  case  merely  an  agreement  to 
pay  part  of  an  admitted  debt  in  satisfaction  of  the  whole,89  but  no 
such  explanation  is  possible  in  the  case  of  Reeves  v.  II earned 
Though  the  declaration  in  that  case  set  forth  mutual  promises,  each 
to  do  something  of  detriment  to  the  promisor,  and  a  breach  of  the  de- 
fendant's promise,  the  court  held  on  demurrer  that  no  cause  of  action 
was  stated.  These  cases  have  never  been  in  terms  overruled,  and  the 
fourth  edition  of  Leake  on  Contracts91  on  their  authority  says :  "  The 
accord  is  in  the  nature  of  a  mere  offer  which  either  party  may  refuse 
or  withdraw;  and  upon  which  no  action  will  lie." 

Inconsistent  decisions.  Nevertheless  it  is  hardly  credible  that  Reeves 
v.  II came  would  now  be  followed  even  in  England.  The  ease  of 
Crowiher  v.  Farrcr?2  though  not  purporting  to  overrule  it,  is  in  fact 
inconsistent  with  it,  and  allowed  recovery  of  damages  for  breach  of 
a  contract  to  settle  an  existing  liability  by  an  agreed  payment.  Other 
decisions  show  clearly  enough  that  if  an  agreement  by  way  of  accord 
is  broken,  an  action  may  be  maintained  on  the  ordinary  principles 
of  contract.93 

Effect  of  accord  on  previous  cause  of  action  —  Intention  of  parties.      The 

more  difficult  question  is,  what  effect  does  the  unexecuted  accord  have 
upon  the  previous  cause  of  action?  So  far  as  it  is  possible  for  the 
law  to  reach  this  result,  the  effect  should  be  that  which  the  parties 

88  2  H.  Bl.  317. 

89  See,  however,  13  Harv.  L.  Rev.   38,  by  Professor  Ames. 

90  l  M.  &  W.  323.     To  the  same  effect  is  Elliott  v.  Dazey,  3  T.  B.  Mon.  268. 

91  P.   623. 

92  15  Q.  B.  677. 

93  Xash  r.  Armstrong,  10  C.  B.  N.  S.  259;  Verv  v.  Levy,  13  How.  345, 
349;  White  r.  Gray,  68  Me.  .379,  580;  Chicora  Fertilizer  Co.  r.  Dunan,  91  Md. 
144;  Hunt  v.  Brown,  146  Mass.  253;  Palmer  i.  Bosley,  62  S.  W.  Rep.  195 
(Tenn.   Ch.). 


ACCORD    AND    SATISFACTION.  831 

intend.  Generally  no  intention  is  definitely  expressed,  and  it  is  neces- 
sary to  resort  to  inference.  When  a  creditor  agrees  to  accept  from 
his  debtor  something  in  satisfaction  of  the  debt  in  consideration  of 
the  debtor's  promise  to  give  the  satisfaction,  it  can  hardly  be  supposed 
that  the  parties  intended  that  the  creditor  should  immediately  have 
the  right  to  proceed  on  his  original  claim,  without  giving  the  debtor 
a  chance  to  give  the  agreed  satisfaction.  Temporary  forbearance  at 
least  must  have  been  contemplated,  though  not  expressly  promised. 
So  that  if  no  time  is  fixed  by  the  parties  for  the  performance  of  the 
accord,  it  is  a  natural  inference  that  the  parties  intended  that  the 
«  editor  should  forbear  for  a  reasonable  time ;  if  a  date  is  fixed  by  the 
parties  for  the  performance  of  the  accord,  the  inference  is  that  the 
parties  intended  forbearance  upon  the  original  claim  to  last  until  that 
date.  In  some  cases  the  circumstances  show  that  the  parties  intended 
more  than  a  temporary  forbearance.  They  may  and  sometimes  do,  in 
effect,  agree  that  the  original  liability  shall  be  immediately  extin- 
guished and  the  accord  substituted  in  its  place.  But  this  is  excep- 
tional. 

Accora  no  defence  at  common  law.  After  the  true  construction  of  the 
accord  is  determined,  its  legal  effect  must  be  considered.  Let  it  be 
supposed,  first,  that  the  accord  was  not  intended  immediately  to  satisfy 
and  destroy  the  original  cause  of  action,  and  further  that  the  cred- 
itor, in  violation  of  his  agreement,  brings  action  on  the  original 
cause  before  the  time  has  arrived  for  the  debtor  to  give  the  agreed 
satisfaction.  If  the  debtor  pleads  the  accord,  the  defence  cannot  be 
sustained.94  To  sustain  it  would  lead  to  the  result  that  even  though 
the  debtor  subsequently  failed  to  perform  the  accord,  the  creditor's 
claim  would  be  barred,  for  judgment  having  once  been  given  for  the 
defendant  on  that  very  cause  of  action  the  matter  has  become  res 
judicata.  Of  course,  the  creditor  could  sue  upon  the  accord,  but  to 
limit  his  rights  to  this  would  in  effect  put  him  in  the  same  position 
that  he  would  have  occupied  if  he  had  agreed  to  accept  the  accord 
and  not  its  performance  as  the  satisfaction  of  the  debt.  The  rule  of 
the  common  law,  therefore,  that  an  unexecuted  accord  is  no  defence 
is  based  on  sound  principles. 

94  Many  decisions  to  this  effect  are  collected  in  1  Am.  &  Eng.  Encyc.  of 
Law  (2d  ed.),  422.  A  few  recent  cases  are  Crow  v.  Kimball  Lumber  Co.,  09 
Fed.  Rep.  61  (C.  C.  A.);  Crass  v.  Scruggs,  115  Ala.  258;  Martin- Alexander 
Co  'v.  Johnson,  70  Ark.  215;  Goble  v.  American  Nat.  Bank,  40  Neb.  891; 
Gowing  v.  Thomas,  67  N.  H.  399;  Arnett  v.  Smith,  11  N.  Dak.  55,  64.  The 
decisions  cited  in  the  first  paragraph  of  the  next  note  are  a  fortiori  in  point 
to  the  same  effect. 


8'.)'-i  DISCHAKGE    OF    CONTRACTS. 

Even  though  perfonnance  tendered.  The  case  may  be  carried  a  step 
further.  Suppose  the  debtor  within .  the  time  agreed  or  within  a 
reasonable  time  tenders  performance  of  his  promise,  but  the  creditor 
in  violation  of  his  agreement  refuses  to  accept  the  performance  in 
satisfaction  of  his  claim,  and  brings  suit  on  the  original  cause  of 
action.  Here,  too,  the  unexecuted  accord  is  no  defence.95  The  cred- 
itor's claim  is  not  satisfied.  Tender  is  not  the  same  as  performance. 
To  assert  such  a  doctrine  is  to  say  that  the  debtor  after  making  his 
tender  has  satisfied  his  debt,  though  he  is  still  the  owner  of  the  thing 
which  was  agreed  upon  as  the  satisfaction.  Even  in  the  rare  case 
where  the  tender  is  not  only  made,  but  kept  good  by  setting  aside  as 
the  creditor's  the  proposed  satisfaction,  to  give  relief  involves  an  ex- 
tension of  the  powers  of  a  court  of  law.  If  the  court  holds  that  the 
debt  was  satisfied  and  that  the  tendered  property  became  the  property 
of  the  creditor  by  setting  it  aside  for  him,  the  court  is  doing  more  than 
merely  ordering  specific  performance.  It  is  holding  that  the  debtor 
himself  by  his  own  action  in  appropriating  the  property  to  the  cred- 
itor, in  spite  of  the  latter's  express  refusal  to  receive  it,  has  himself 
specifically  enforced  the  bargain  transferring  title  to  the  creditor  and 
extinguishing  the  original  obligation.  Doubtless  the  law  of  sales  fur- 
nishes a  certain  analogy  with  such  a  result.  In  many  jurisdictions  a 
seller  may,  if  the  buyer  in  breach  of  his  contract  refuses  to  receive 
the  goods  agreed  upon,  set  them  aside  for  him  and  sue  him  for  the 
full  price,  instead  of  damages  for  loss  of  the  bargain,96  but  unless 
there  is  no  way  to  work  out  a  just  result  without  such  violation  of 
fundamental  legal  distinctions  the  analogy  should  not  be  followed. 

85  Shepherd  v.  Lewis,  T.  Jones,  6;  Lynn  v.  Bruce,  2  H.  Bl.  317;  Carter  r. 
Worniald,  1  Ex.  81;  Gabriel  v.  Dresser,  15  C.  B.  622;  Humphreys  r.  Third 
Nat.  Bank,  75  Fed.  Rep.  852,  859;  Long  v.  Scanlan,  105  Ga.  424;  Woodruff 
r.  Dobbins,  7  Blackf.  582;  Deweese  r.  Cheek,  35  Ind.  514;  Young  r.  Jones, 
04  Me.  563;  White  r.  Gray,  68  Me.  579;  Clifton  r.  Litchfield,  106  Mass.  34; 
Ha3'es  v.  Allen,  160  Mass.  34;  Prest  v.  Cole,  183  Mass.  2S3;  Hoxsie  v. 
Empire  Lumber  Co.,  41  Minn.  548,  549;  Clarke  r.  Dinsmore,  5  N.  H.  136; 
Rochester  r.  Whitehouse,  15  N.  H.  468 ;  Kidder  r.  Kidder,  53  N.  H.  561 : 
Gowing  r.  Thomas,  67  N.  H.  399;  Russell  r.  Lytle,  6  Wend.  390;  Brooklyn 
Bank  v.  De  Grauw,  23  Wend.  342;  Til  ton  r.  Alcott,  16  Barb.  598;  Kramer 
t7.  Heim,  75  N.  Y.  574 ;  Hearn  r.  Kiehl,  38  Pa.  147 ;  Blackburn  r.  Ormsby. 
41  Pa.  97;  Hosier  v.  Hursh,  151  Pa.  415;  Clarke  v.  Hawkins,  5  R.  I.  219; 
Carpenter  r.  Chicago,  etc.,  Ry.  Co.,  7  S.  Dak.  594 ;  Gleason  r.  Allen,  27  Vt.  304. 

But  see  contra,  Bradley  v.  Gregory,  2  Camp.  383;  Very  p.  Levy,  13  How. 
345;  Latapee  r.  Pecholier,  2  Wash.  C'.  C.  180;  Whitsett  v.  Clayton,  5  Col.  476; 
Jenness  r.  Lane,  26  Me.  475;  Heirn  r.  Carron,  19  Miss.  361;  Coit  r.  Houston, 
3  Johns.  Cas.  243  (overruled);  Bradshaw  r.  Davis,  12  Tex.  336;  Johnson 
(.  Portwood,  89  Tex.  235,  239. 

96Meehem  on  Sales,  §  1694.  In  many  jurisdictions,  however,  the  seller 
cannot  recover  the  full  price  unless  the  title  to  the  goods  had  passed.     Ibid. 


ACCOKD    AND    SATISFACTION.  833 

Equitable  relief.  It  is  clear  that  the  debtor  has  just  reason  to  com- 
plain if  the  law  allows  the  creditor  to  proceed  at  once  with  his  original 
cause  of  action  without  giving  the  debtor  an  opportunity  to  satisfy  it 
as  the  parties  agreed  in  the  accord.  Eecognized  principles,  however, 
suffice  to  protect  the  debtor.  His  grievance  is  that  the  creditor  has 
broken  the  promise  of  temporary  forbearance  necessarily  implied  from 
the  accord,  and  he  should  be  entitled  to  the  same  redress  that  is  al- 
lowed for  breach,  of  contracts  for  temporary  forbearance  where  there 
is  no  agreement  of  accord.  A  covenant  or  other  contract  for  tempo- 
rary forbearance  is  not  a  good  plea  at  law  to  an  action  brought  in 
violation  of  the  contract.97  To  allow  such  a  plea  and  give  judgment 
for  the  defendant  would  involve  the  consequence  that  the  plaintiff 
could  never  sue,  though  he  had  agreed  to  temporary  forbearance  only, 
and  would  be  repugnant  to  the  rule  of  the  common  law  that  if  a 
cause  of  action  is  once  suspended,  it  is  gone  forever;  nor  is  there 
better  ground  for  an  equitable  plea  to  the  action,  since  equity  would 
not  grant  a  permanent  injunction  against  the  creditor's  action,  for 
the  same  difficulty  that  forbids  upholding  the  plea  as  a  legal  defence 
is  equally  insuperable  to  an  equitable  defence.  The  defendant  is 
entitled  to  delay,  not  to  a  defense  on  the  merits.  The  debtor  must, 
therefore,  apply  to  a  court  of  equity  powers  for  a  temporary  injunc- 
tion against  the  prosecution  of  the  action,  and  such  an  injunction 
should  be  granted.98  In  the  case  of  an  accord  there  is  a  further 
difficultjr.  It  will  not  greatly  help  the  debtor  to  get  a  temporary 
injunction  on  the  express  or  implied  promise  of  the  creditor  to  for- 
bear if  the  creditor  is  permitted  ultimately  to  refuse  -to  accept  the 
agreed  satisfaction,  and  may  then  enforce  his  original  cause  of  action. 
In  order  to  give  effectual  relief,  therefore,  equity  must  specifically 
enforce  the  performance  of  the  accord.  As  a  court  of  law  cannot 
give  adequate  relief,  and  as  the  promise  of  temporary  forbearance 
necessarily  included  in  the  accord  gives  equity  jurisdiction  of  the 
mattrr,  there  seems  good  reason  for  equity  to  deal  with  the  whole 
matter  by  granting  specific  performance.  Though  there  is  strangely 
little  authority  upon  the  matter,  and  though  in  the  few  cases  on  the 

97  Ford  v.  Beech,  11  Q.  B.  852;  Ray  v.  Jones,  19  C.  B.  N.  S.  416;  Dow  v. 
Tuttle,  4  Mass.  414;  Perkins  v.  Gilman,  8  Pick.  229;  Winans  v.  Huston.  6 
Wend.  471.  See,  however,  Walker  v.  Nevill,  34  L.  J.  Ex.  73;  Slater  v.  Jones, 
L.  R.  8  Ex.  186;  Newington  v.  Levy,  L.  R.  5  C.  P.  607,  6  C.  P.  180. 

88  0'ompleat  Attorney  (1st  ed.),  325;  Blake  v.  White,  1  Y.  &  C.  Ex.  420, 
424,  426;  Greely  v.  Dow,  2  Met.  176,  178.  See  also  Billington  v.  Wagoner. 
33  N.  Y.  31;  Bomeisler  v.  Forster,  154  N.  Y.  229.  But  see  Hall  r.  First 
Bank,  173  Mass.  16. 

53 


834  DISCHARGE    OF    CONTRACTS. 

point  the  reasoning  is  not  very  full  or  satisfactory,  the  result  here 
advocated  seems  to  be  justified  by  the  decisions." 

Accord  may  itself  be  taken  as  satisfaction  and  is  then  a  bar.  Though 
an  executory  promise  to  give  something  in  satisfaction  of  a  cause 
of  action  cannot  be  while  unperformed  a  legal  bar  to  an  action  upon 
the  original  cause,  the  parties  may,  as  has  already  been  said,  agree 
that  an  executory  promise  shall  itself  be  the  satisfaction  of  the  old 
right;  and  if  the  claimant  accepts  a  promise  with  that  agreement, 
his  original  claim  is  at  once  and  finally  extinguished.  Thereafter 
he  must  find  his  only  remedy  upon  the  new  promise.  This  doctrine 
is  modern,1  and  it  may  well  be  doubted  whether  early  courts  would 
have  admitted  the  possibility,  under  any  circumstances,  of  an  ex- 
ecutory simple  contract  extinguishing  an  existing  cause  of  action  f 
but  the  principle  seems  logically  correct,  and  is  now  well-settled  law.3 

Presumption  that  accord  is  not  intended  as  satisfaction.  It  is  often  ex- 
tremely difficult  to  determine  as  matter  of  fact  whether  the  parties 
agreed  that  the  new  promise  should  be  itself  the  satisfaction  of  the 
original  cause  of  action,  or  whether  they  contemplated  the  per- 
formance of  the  accord  as  the  satisfaction.  Unless  there  is  clear  evi- 
dence that  the  former  was  intended,  the  latter  kind  of  agreement 
must  be  presumed,  for  it  is  not  a  probable  inference  that  a  creditor 
intends  merely  an  exchange  of  his  present  cause  of  action  for  another. 
It  is  generally  more  reasonable  to  suppose  that  he  bound  himself 
to  surrender  his  old  rights  only  when  the  new  contract  of  accord  was 

99  Very  v.  Levy,  13  How.  345,  349;  Apperson  r.  Gogin,  3  111.  App.  48; 
Chicora  Fertilizer  Co.  v.  Dunan,  91  Md.  144.     See  Re  Hatton,  L.  R.  7  Ch.  723. 

1  Good  v.  Cheesman,  2  B.  &  Ad.  328,  is  regarded  as  the  leading  case  on  the 
point,  but  the  doctrine  was  not  clearly  stated  until  after  that  decision. 

2  The  reason  given  by  Eyre,  C.  J.,  in  Lynn  p.  Bruce,  2  H.  Bl.  317,  against 
the  validity  of  unexecuted  accords  generally,  that  they  are  merely  "  sub- 
stituting one  cause  of  action  in  the  room  of  another,"  is  obviously  as  appli- 
cable to  an  agreement  which  is  itself  to  be  satisfaction  of  a  cause  of  action 
as  to  an  agreement  where  the  performance  is  to  be  the  satisfaction. 

3  Evans  v.  Powis,  1  Ex.  601;  Buttigieg  v.  Booker,  9  C.  B.  689;  Edwards 
V.  Hancher,  1  C.  P.  D.  Ill,  119;  Acker  v.  Bender,  33  Ala.  230;  Smith  n. 
Elrod,  122  Ala.  269;  Heath  r.  Vaughn,  11  Col.  App.  384;  Warren  v.  Skinner, 
20  Conn.  350;  Goodrich  v.  Stanley,  24  Conn.  613;  Brunswick,  etc.,  Ry.  Co.  r. 
Clem,  80  Ga.  534;  Simmons  r.  Clark,  56  111.  96;  Hall  r.  Smith,  10  la.  45,  15 
la.  584;  Whitney  r.  Cook,  53  Miss.  551;  Yazoo,  etc.,  R.  Co.  v.  Fulton,  71  Miss. 
385;  Worden  v.  Houston,  92  Mo.  App.  371;  Gerhart  Realty  Co.  v.  Northern 
Assur.  Co.,  94  Mo.  App.  356;  Frick  r.  Joseph,  2  N.  Mex.  138;  Perdew  v. 
Tillma,  62  Neb.  865;  Morehouse  v.  Second  Nat.  Bank,  98  N.  Y.  503;  Nnssoiv 
v.  Tomlinson,  148  N.  Y.  326;  Spier  r.  Hyde,  78  N.  Y.  App.  Div.  151;  Babcock 
r.  Hawkins,  23  Vt.  561.  See  also  Hunt  p.  Brown,  146  Mass.  253.  Cp.  Camp- 
bell v.  Hurd,  74  Hun,  235;  Wentz  v.  Meyersohn,  59  N.  Y.  App.  Div.  130;  Hos- 
ier v.  Hursh,  151  Pa.  415. 


ACCOBD    AND    SATISFACTION.  835 

performed.  The  earliest  decision  in  which  it  was  held  that  the  accord 
itself  might  operate  as  an  extinguishment  of  the  creditor's  claim 
was  on  an  agreement  of  composition;4  and  it  is  in  such  instruments 
perhaps  that  it  is  most  frequently  and  naturally  inferred  that  the  in- 
tention of  the  parties  was  to  substitute  ai  once  the  right  to  the 
agreed  composition  for  the  old  claims. 

Consequence  of  non-performance  of  accord.  If  such  is  the  construc- 
tion of  the  agreement,  it  must  follow  that  even  though  the  accord  is 
never  performed  the  creditor's  right  to  sue  on  the  old  claim  is  lost.5- 
If,  however,  it  is  the  performance  of  the  accoid  which  is  to  be  the 
satisfaction  of  the  claim,  the  creditor  may,  on  default  in  performance 
of  the  accord  by  the  debtor,  sue  either  on  the  accord  or  on  the  original 
cause  of  action  ;6  and  similarly,  if  the  creditor,  contrary  to  his  agree- 
ment, sues  on  the  original  claim  without  giving  opportunity  for  the 
performance  of  the  accord,  the  debtor  need  make  no  attempt  to  use 
the  accord  as  a  ground  for  injunction,  even  though  the  local  law 
permits  him  to  do  so,  but  may  suffer  judgment  to  go  against  him 
and  resort  to  a  separate  action  on  the  accord.7 

Sealed  contracts.  A  contract  under  seal  presented  some  peculiar 
difficulties.  The  maxim  "  Nihil  tarn  conveniens  est  naturali  aequitate^ 
ut  unumquodque  dissolvi  eo  li gamine  quo  ligaium  est!'  seemed  to 
forbid  discharge  by  accord  and  satisfaction  as  completely  as  by  mere 
parol  agreement.  Blake's  case,8  however,  decided  that  a  right  of 
action  for  unliquidated  damages  for  breach  of  covenant  could  be  dis- 
charged in  this  way.  The  Court  distinguished  the  case  from  that 
of  a  covenant  to  pay  a  sum  of  money.  "  For  there  is  a  difference, 
when  a  duty  accrues  by  the  deed  in  certainty,  tempore  confectionis 
scripti,  as  by  covenant,  bill,  or  bond  to  pay  a  sum  of  money,  there 
this  certain  duty  takes  its  essence  and  operation  originally  and  solely 
by  the  writing;9  and  therefore  it  ought  to  be  avoided  by  a  matter  of 
as  high  a  nature,  although  the  duty  be  merely  in  the  personalty,  but 
when  no  certain  duty  accrues  by  the  deed,  but  a  wrong  or  default 

4  Good  v.  Cheesman,  2  B.  &  Ad.  328. 

5  Sioux  City  Stock  Yards  Co.  r.  Sioux  City  Packing  Co.,  110  la.  396. 
6Babcock  v.  Hawkins,  23  Vt.  561. 

7  Hunt  r.  Brown,  146  Mass.  253. 

8  6  Coke,  43  6. 

9  In  further  illustration  of  the  theory  of  our  early  law,'  that  an  obligation 
to  pay  money  was  an  immediate  conveyance  or  grant,  rather  than  merely  an 
executory  promise  to  do  something  in  the  future,  see  Langdell,  Sum.  Cont., 
§  100;  Pollock  &  Maitland,  Hist,  of  Eng.  Law  (2d  ed.),  ii.,  205;  8  Harv. 
L.  Eev.  252 ;  14  id.  429. 


836  DISCHAHGE    OF    CONTRACTS. 

subsequent,  together  with  the  deed,  gives  an  action  to  recover  damages 
which  are  only  in  the  personalty  for  such  wrong  or  default,  accord 
with  satisfaction  is  a  good  plea.10 

Before  breach  of  a  covenant,  not  only  was  a  parol  agreement  in- 
effectual to  discharge  it,  but  even  though  property  were  accepted  in 
satisfaction  the  covenant  was  not  discharged,  whether  the  covenant 
was  for  the  payment  of  money11  or  for  the  performance  of  some  duty, 
breach  of  which  would  sound  in  damages.12  Doubtless  equity  would, 
if  necessary,  enjoin  the  enforcement  of  any  kind  of  bond13  where 
satisfaction  had  been  given  either  before  or  after  maturity.  The 
acceptance  of  property  in  satisfaction  necessarily  imports  an  agree- 
ment never  to  enforce  the  original  obligation,  and  covenants  to  for- 
bear perpetually  were  early  given  effect  to  as  a  defence,  even  by  courts 
of  law.  The  reason  sometimes  given  is  that  such  a  covenant  amounts 
to  a  release.14  The  more  accurate  reason,  however,  and  that  generally 
given  in  the  books,  is  that  circuity  of  action  is  thereby  avoided.16 
This  latter  reason  is  as  applicable  to  the  case  of  a  parol  contract 
never  to  sue  as  to  the  case  of  a  covenant  not  to  sue,  so  that  it  would 
seem  that  even  a  court  of  law  might  well  have  held  satisfaction  be- 
fore breach  a  defence.  There  can  now  be  no  doubt  that  wherever 
equitable  defences  are  allowed  at  law,  there  would  be  a  good  defence 
to  an  action  at  law  on  the  covenant,  and  probably  few  coarts  would 
hesitate  to  accept  such  a  defence,  even  though  no  statute  had  au- 
thorized the  general  use  of  equitable  pleas.16 

Debts  of  record.  A  debt  of  record  presented  a  difficulty  similar  to 
that  of  a  debt  by  specialty.  Accordingly  it  could  not  be  discharged 
at  common  law  even  by  payment.   By  Statute  of  4  Anne,  c.  16,  §  12, 

10  See  to  the  same  effect,  Herzog  v.  Sawyer,  61  Md.  344,  352;  Cabe  v.  Jame- 
son, 10  Ired.  L.  193;  Smith  r.  Brown,  3  Hawks,  580. 

n  Spence  r.  Healey,  8  Ex.  668. 

isivaye  r.  Waghorne,  1  Taunt.  428;  Berwick  v.  Oswald,  1  E.  &  B.  295; 
Harper  r.  Hampton,  1  H.  &  J.  022,  673;   Smith  r.  Brown,  3  Hawks,  580. 

13  Steeds  v.  Steeds,  22  Q.  B.  D.  537 ;  Nash  v.  Armstrong,  10  C.  B.  N.  S. 
259;   Hurlbut  v.  Phelps,  30  Conn.  42;  McCreery  v.  Day,  119  N.  Y.   1. 

14  Deux  v.  Jefferies,  Cro.  Eliz.  3.52. 

15  Hodges  r.  Smith,  Cro.  Eliz.  623;  Lacy  v.  Kynaston,  2  Salk.  575;  S.  C, 
1   Ed.  Ray.  690;   12  Mod.  551;   Ford  v.  Beech,   11   Q.  B.  852,  871.     See  also 

Smith  v.  Mapleback,  1  T.  E.  441,  446;  Ledger  v.  Stanton,  Johns.  &  H.  687. 

16  Green  v.  Wells,  2  Cal.  584 ;  McDonald  r.  Mountain  Lake  Co.,  4  Cal.  335 ; 
Worrell  v.  Forsyth,  141  111.  22  (see  also  Starin  v.  Kraft,  174  111.  120;  Jones 
r.  Chamberlain,  97  111.  App.  328)  ;  Munroe  r.  Perkins,  9  Pick.  298;  Savage 
r.  Blanchard,  148  Mass.  348;  Siebert  v.  Leonard,  17  Minn.  433,  436;  Armijo 
o.  Abeytia,  5  N.  Mex.  533,  545;  Eeichel  r.  Jeffrey,  9  Wash.  250. 

Cases  where  a  parol  agreement  to  rescind  or  discharge  a  sealed  contract  is 
held  effectual,  also  a  fortiori  imply  that  accord  and  satisfaction  would  be 
good. 


ACCORD    AND    SATISFACTION.  837 

this  was  changed  in  England.  The  English  statute  may  be  regarded 
as  part  of  the  American  common  law  inheritance,  but  it  did  not 
cover  the  case  of  accord  and  satisfaction,  and  that  has  been  held 
within  comparatively  recent  times  to  constitute  no  defence  to  an 
action  on  the  judgment.17  It  may  be  doubted,  however,  whether 
these  decisions  would  now  be  followed  anywhere.  The  Supreme 
Court  of  the  United  States,  though  it  holds  itself  obliged  to  preserve 
the  distinctions  between  law  and  equity  as  they  existed  a  century  ago, 
has  held  the  defence  good,18  and  other  decisions  are  to  the  same 
effect.19 

Requisites  of  satisfaction  like  those  of  consideration.  Though  the  de- 
fence of  accord  and  satisfaction  was  recognized  long  before  the  doc- 
trine of  consideration  was  developed,  the  requirements  for  a  legally 
effective  satisfaction  became  confused  and  regarded  as  identical  with 
the  requirements  for  the  consideration  of  a  promise.  As  an  accord 
and  satisfaction  is  an  executed  transaction,  and  as  the  validity  of 
the  satisfaction  as  a  discharge  of  the  previous  cause  of  action  cannot 
have  rested  on  any  view  that  the  satisfaction  was  rather  the  con- 
sideration of  a  promise  of  perpetual  forbearance  than  a  technical 
extinction  of  the  old  cause  of  action,  the  essentials  of  consideration 
and  of  satisfaction  might  well  have  varied.  But  it  was  not  unnatural 
that  what  had  been  regarded  as  inadequate  to  work  a  satisfaction 
of  a  cause  of  action  should  also  have  been  regarded  as  insufficient 
consideration,  and  later  that  whatever  was  insufficient  considera- 
tion should  be  inadequate  also  for  the  satisfaction  of  a  cause  of 
action.  Brian,  C.  J.,  said  in  1455  of  an  attempted  satisfaction  by 
part  payment :  "  The  action  is  brought  for  20  pounds  and  the  con- 
cord is  that  he  shall  pay  only  10  pounds  which  appears  to  be  no 
f-atisfaction  for  20  pounds.  For  payment  of  10  pounds  cannot  be 
payment  of  20  pounds.  But  if  it  were  a  horse,  which  horse  is  paid 
according  to  the  concord,,  that  is  a  good  satisfaction;  for  it  does  not 
appear  whether  the  horse  is  worth  more  or  less  than  the  sum  in  de- 
mand." 20  This  soon  became  settled  law  as  to  satisfaction,  but  the 
doctrine  of  consideration  was  expressly  distinguished  by  Coke  at  .least, 

17  Riley  r.  Riley,  20  N.  J.  L.  (Spencer)  114;  Mitchell  v.  Hawley,  4  Denio, 
414 ;  Garvev  v.  Jarvis,  54  Barb.  179. 

lSBofflnger  v.  Tuyes,  120  U.  S.   198,  205. 

IS  Re  Freeman,  117  Fed.  Rep.  680,  684;  Jones  r.  Ransom,  3  Ind.  327; 
McCullough  v.  Franklin  Coal  Co.,  21  Md.  256;  Savage  r.  Blanchard,  148  Mass. 
348;  Weston  v.  Clark,  37  Mo.  568,  572;  Fowler  v.  Smith,  153  Pa.  639;  Reid 
r.  Hibbard,  6  Wis.  175.  Accord  and  satisfaction  was  held  a  good  plea  to  an 
action  on  a  foreign  judgment  in  Hardwick  v.  King,  1  Stew.    (Ala.)    312. 

20  Y.  B.  33  Hen.  VI.  48  A.  pi.  32 ;   12  Harv.  L.  Rev.  521. 


838  DISCHABGE    OF    CONTEACTS. 

who  held  that  though  part  payment  of  a  debt  could  not  in  the  nature 
of  things  be  a  satisfaction  of  the  debt,  it  might  be  consideration  for  a 
promise.21  Lord  Ellenborough,  however,  made  no.  such  distinction,- 
and  regarded,  apparently,  consideration  as  a  test  both  for  satisfaction 
and  for  executory  contracts.  "  There  must  be  some  consideration  for 
the  relinquishment  of  the  residue ;  something  collateral  to  shew  a  pos- 
sibility of  benefit  to  the  party  relinquishing  his  further  claim,  other- 
wise the  agreement  is  nudum  pactum."  w 

Reasonableness  of  satisfaction.  In  Cumber  v.  Wane,23  Pratt,  C.  J., 
&aid :  "  It  must  appear  to  the  Court  to  be  a  reasonable  satisfaction ; 
or  at  least  the  contrary  must  not  appear."  But  in  modern  cases  no 
such  test  is  applied.  The  same  rule  that  governs  the  formation  of 
contracts — that  the  adequacy  of  the  consideration  is  for  the  parties 
— governs  the  satisfaction  of  causes  of  action.  Thus  in  Cooper  v. 
Parker,2*  Parke,  B.,  said :  "  The  Court  cannot  enter  into  a  considera- 
tion of  the  value  of  the  satisfaction,  which  upon  the  face  of  it  is 
uncertain."  So  in  Curlewis  v.  Clark,  an  incomplete  bill  of  exchange 
was  held  a  good  satisfaction ;  Alderson,  B.,  saying :  "  We  cannot 
value  the  signature  of  the  Earl  of  Mexborough;  possibly  it  may  be 
worth  something  as  an  autograph."  2B 

Cases  where  satisfaction  ineffectual.  Though  the  common  case  where 
an  agreed  satisfaction  is  held  ineffectual  for  lack  of  consideration 
arises  when  part  of  a  liquidated  and  undisputed  debt  has  been  paid/6 
doubtless  decisions  on  other  facts  would  turn  on  similar  principles.27 
Thus  where  performance  of  a  duty  other  than  a  debt  is  held  insuffi- 
cient consideration  to  support  a  promise,  such  performance  would 
also  be  held  insufficient  to  satisfy  any  cause  of  action.  The  legal 
requirements  in  this  respect  for  a  valid  satisfaction  should,  there- 
fore, be  sought  under  the  heading  of  consideration. 

Check  sent  in  payment  of  disputed  claim.  It -seems  obvious  that  noth- 
ing can  operate  as  a  satisfaction,  unless  both  debtor  and  creditor 
agree  that  it  shall,  but  there  is  one  commonly  recurring  state  of  facts 
where  this  principle  seems  to  be  lost  sight  of  by  many  courts.      The 

2iBagge  v.   Slade,   3  Bulst.   162. 

22  Fitch  v.  Sutton,  5  East,  230,  232.  The  early  cases  are  stated  and  dis- 
cussed by  Professor  Ames  in   12  Harv.  L.  Rev.   524. 

23  1   Stra.   426. 

24  15   C.   B.   822,   828. 

2-r>  3  Ex.   375,   379.     See  also  Reed  v.  Bartlett,  19  Pick.   273. 
£'j  See  these  cases  collected  and  distinctions  discussed  in  12  Harv.  L.  Rev. 
525  et  seq.;  1  Am.  &  Eng.  Encyc.  413  et  seq. 
2T  Leake   on   Contracts    (4th  ed.),   622. 


ACCORD    AND    SATISFACTION.  839 

case  is  this :  A  debtor  sends  to  a  creditor  whose  claim  is  unliquidated 
or  disputed  a  check  with  a  letter  stating  that  the  check  is  sent  in 
full  satisfaction  of  the  claim,  and  that  if  the  creditor  is  unwilling  to 
accept  it  as  such' he  must  return  it.  The  creditor  takes  the  check, 
but  immediately  writes  a  letter  stating  that  he  refuses  to  accept  the 
check  as  full  satisfaction,  but  will  apply  it  in  reduction  of  the  in- 
debtedness. Upon  these  facts  the  English  Court  of  Appeal  held  that 
there  was  no  satisfaction  of  the  cause  of  action,28  and  a  few  jurisdic- 
tions in  the  United  States  have  made  the  same  ruling.29  But  the 
great  weight  of  authority  in  the  United  States  is  to  the  contrary.30 
It  is  said  that  the  acceptance  of  the  check  necessarily  involves  an 
acceptance  of  the  condition  upon  which  it  was  tendered. 

Principles  governing  the  question.  If  the  parties  are  dealing  orally 
with  one  another  and  the  debtor  offer  the  creditor  a  check  in  full 
satisfaction  which  the  creditor  takes,  it  must  be  inferred  that  he  as- 
sents to  the  terms.  If  the  creditor  refuses  to  receive  the  check  in  full 
satisfaction  and  yet  takes  it,  either  he  must  have  assented  to  the 
terms,  or  the  debtor  must  have  assented  to  the  creditor's  refusal, 
for  the  voluntary  giving  of  the  check  by  one,  and  the  taking 
it  by  the  other,  if  neither  misunderstood  the  words  that  were 
spoken,  necessarily  indicate  assent,81  and  it  becomes  a  question  of 

28  Bay  v.  McLea,  22  Q.  B.  D.  610. 

29  Louisville,  etc.,  Ry.  Co.  r.  Helm,  22  Ivy.  L.  Rep.  964;  Rosenfield  r. 
Fortier,  94  Mich.  29.  See  also  Kistler  v.  Indianapolis  R.  Co.,  88  Ind.  460; 
Mortloek  v.  Williams,  76  Mich.  568 ;  Mitterwallner  v.  Supreme  Lodge,  86 
N.  Y.  Supp.  786;  Krauser  i:  McCurdy,  174  Pa.  174;  Rapp  v.  Giddings,  4 
S.  Dak.  492. 

30  Potter  r.  Douglass,  44  Conn.  541;  Hamilton  r.  Stewart,  108  Ga.  472; 
Ostrander  v.  Scott,  161  111.  339;  Lapp  v.  Smith,  183  111.  179;  Bingham  v. 
Browning,  197  111.  122;  Michigan  Leather  Co.  r.  Foyer,  104  111.  App.  208; 
Talbott  v.  English,  156  Ind.  299,  313;   Neely  r.  Thompson,  75  Pac.  Rep.   117 

(Kan.)  ;  Anderson  r.  Standard  Granite  Co.,  92  Me.  429,  432;  Fremont  Foundry 
Co.  r.  Norton,  92  N.  W.  Rep.  1058,  1060  (Neb.)  ;  Nassoiy  v.  Tomlinson,  148 
N.  Y.  326;  Logan  V-.  Davidson,  162  N.  Y.  624;  Lewinson  v.  Montauk  Theatre 
Co.,  60  N.  Y.  App.  Div.  572;  Wbitaker  r.  Eilenberg,  70  N.  Y.  App.  Div.  489; 
De  Lovenzo  r.  Hughes,  84  N.  Y.  Supp.  857;  Petit  v.  Woodlief,  115  N.  C.  120; 
Hull  t\  Johnson,  22  R.  I.  66;  McDaniels  v.  Rutland,  29  Vt.  230;  Connecticut 
River  Lumber  Co.  v.  Brown,  68  Vt.  239.  See  also  Bull  v.  Bull,  43  Conn.  455 ; 
Cooper  r.  Yazoo,  etc.,  R.  Co.,  35  So.  Rep.  162  (Miss.)  ;  Pollman  Coal  Co.  r. 
St.  Louis,  145  Mo.  651;  MeCormick  v.  St.  Louis,  166  Mo.  315,  335;  Perkins 
v.  Hadley,  49  Mo.  App.  556.  As  to  the  necessity  of  an  explicit  statement 
that  the  check  sent  is  intended  as  full  payment,  cp.  Hillestad  v.  Lee,  91  Minn. 
335;  Fremont  Foundry  Co.  v.  Norton,  92  N.  W.  Rep.  1058  (Neb.)  ;  Whitaker 
v.  Eilenberg,  70  N.  Y.  App.  Div.  489;  Arner  v.  Folk,  28  N.  Y.  Misc.  Rep.  598; 
Boston  Rubber  Co.  v.  Peerless  Wringer  Co.,  58  Vt.  551;  Van  Dyke  v.  Wilder, 
66  Vt.  583. 

31  Potter  r.  Douglass,  44  Conn.  541 ;  Cooper  v.  Yazoo,  etc.,  Ry.  Co.,  35  So. 
Rep.  182  (Miss.)  ;  MeCormick  v.  St.  Louis,  166  Mo.  315.  See  also  McKeen 
r.  Morse,  49  Fed.  Rep.  253;  Porter  r.  Cook,  114  Wis.  60. 


840  DISCHAHGE    OF    CONTRACTS. 

fact,  what  the  bargain  was  to  which  they  assented.  But  if  the 
debtor  laid  down  the  check  and  departed,  saying,  if  this  is  taken 
it  is  full  satisfaction,  it  is  hard  to  see  why  the  creditor  may  not  steal 
or  convert  the  cheek.  Doubtless,  if  he  take  the  check,  saying  nothing, 
his  taking  will  be  equivalent  to  an  expression  of  assent  to  the  offer, 
whatever  his  mental  intent,32  and  even  if  he  indicate  by  some  act 
or  word  at  the  time  that  he  takes  the  check  that  his  intention  is  not 
to  treat  the  debt  as  satisfied,  he  should  still  be  regarded  as  assenting 
to  the  terms  of  the  debtor's  offer,  for  under  the  circumstances  the 
debtor  has  reason  to  suppose  that  the  taking  of  the  check  is  an  ex- 
pression of  assent  unless  informed  to  the  contrary.33  But  if  as  soon 
as  the  check  is  taken  notice  is  promptly  given  to  the  debtor  that  it  is 
not  taken  as  satisfaction,  it  seems  impossible  to  find  the  elements 
of  a  bargain.  The  most  forcible  argument  upon  the  other  side  is 
that  the  creditor  should  not  be  allowed  to  assert  his  tortious  conver- 
sion of  the  check,  though  the  effect  of  such  a  ruling  is  to  fix  upon 
the  creditor  a  bargain  which  he  never  made.  The  case  of  sending 
the  check  by  mail  is  essentially  the  same  as  that  just  discussed,  in 
that  the  creditor  is  given  the  power  in  fact  to  take  the  check  without 
making  an  agreement  with  the  debtor,  though  forbidden  to  exercise 
such  power. 

Accord  and  satisfaction  with  a  third  person  —  English  cases.  The  ques- 
tion whether  accord  and  satisfaction  entered  into  by  the  creditor  with 
a  person  other  than  the  debtor  discharges  the  debt  has  been  much 
disputed.  Even  though  the  third  person  pays  in  money  the  exact 
amount  of  the  debt  there  can  in  strictness  be  at  most  an  accord  and 
satisfaction,  for,  as  payment  by  A.  is  a  different  thing  from  payment 
by  B.,  the  obligation  has  not  been  performed  according  to  its  tenor. 
In  the  early  case  of  Grymes  v.  Blofield3*  the  defendant  pleaded  to  an 
action  of  debt  satisfaction  given  by  a  third  person,  but  it  was  held 
no  plea.  This  is  inconsistent  with  a  still  earlier  case  thus  stated  by 
Fitzherbert :35     "If  a  stranger  doth  trespass  to  me  and  one  of  his 

32Creighton  r.  Gregory,  142  Cal.  34;  Keck  v.  Hotel  Owners'  F.  I.  Co.,  89 
la.  200 ;  Le  Page  v.  Lalance  Mfg.  Co.,  90  N.  Y.  Supp.  676. 

33  Hull  r.  Johnson,  22  R.  I.  66.  In  this  case  the  debtor  wrote  on  the  check: 
"  Good  only  ...  if  endorsed  in  full  of  all  demands."  The  creditor  struck 
this  out  and  cashed  the  check.  The  court  said :  "  The  erasure  on  the  check 
was  not  made  in  the  presence  of  the  defendants,  and  could  not  have  been 
known  to  them  until  the  check  had  reached  their  bank  and  had  been  paid. 
The  plaintiff  gave  them  no  notice  of  his  rejection  of  their  offer,  but  took  their 
money." 

34  Cro.  Eliz.  541.  This  case  is  elaborately  considered  in  Jones  r.  Broad- 
hurst,  9  C.  B.  173,  195  et  seg.,  and  the  result  of  an  examination  of  the  orig- 
inal   rolls    is    stated. 

35  Tit.   "Barre,"   pi.    166. 


ACCORD    AND    SATISFACTION.  841 

relations,  or  any  other,  gives  anything  to  me  for  the  same  trespass, 
to  which  I  agree,  the  stranger  shall  have  advantage  of  that  to  bar 
me;  for,  if  I  be  satisfied,  it  is  not  reason  that  I  be  again  satisfied. 
Quod  tota  curia  concessit."  Gryrnes  v.  Blofield  was  followed  in  Edg- 
combe  v.  Rodd,3®  and  though  its  correctness  seems  to  have  been 
doubted  in  Jones  v.  Broadhurst?1  where  Cresswell,  J.,  considered 
the  question  elaborately,  the  English  law  was  settled  soon  after  by 
several  cases  thus  summarized  by  Baron  Parke  in  Simpson  v.  Egging- 
ton.38 

"  The  general  rule  as  to  payment  or  satisfaction  by  a  third  person, 
not  himself  liable  as  a  co-contractor  or  otherwise,,  has  been  fully 
considered  in  the  cases  of  Jones  v.  Broadhurst,  9  C.  B.  193 ;  Belshww 
v.  Bush,  11  C.  B.  191,  and  James  v.  Isaacs,  22  L.  J.  C.  P.  73;  and 
the  result  appears  to  be  that  it  is  not  sufficient  to  discharge  a  debtor 
unless  it  is  made  by  the  third  person,  as  agent  for  and  on  account 
of  the  debtor,  and  with  his  prior  authority  or  subsequent  ratification. 
In  the  first  of  these  cases,  in  an  elaborate  judgment  delivered  by  Mr. 
Justice  Cresswell,  the  old  authorities  are  cited,  and  the  question 
whether  an  unauthorized  payment  by  and  acceptance  in  satisfaction 
from  a  stranger  is  a  good  plea  in  bar  is  left  undecided.  It  was  not 
necessary  for  the  decision  of  that  case.  In  Belshaw  v.  Bush,  it  was 
decided  that  a  payment  by  a  stranger  considered  to  be  for  the  de- 
fendant and  on  his  account,  and  subsequently  ratified  by  him,  is  a 
good  payment;  and  in  the  last  case  of  James  v.  Isaacs,  a  satisfaction 
from  a  stranger,  without  the  authority,  prior  or  subsequent,  of  the 
defendant,  was  held  to  be  bad."  39 

In  Simpson  v.  Eggington40  it  was  held  that  ratification  might  be 
made  at  the  trial  of  such  an  action. 

American  cases.  In  the  United  States  the  weight  of  authority  sus- 
tains the  validity  of  the  defence,41  though  wherever  there  is  any 
evidence  that  the  payment  or  satisfaction  was  made  on  behalf  of 

36  5  East,  294.      See  also  Thurman  c.  Wild,  11  A.  &  E.  453. 

37  9  C.  B.  173,  193. 

38  10  Ex.  844. 

39  See  in  accord  with  James  v.  Isaacs,  Kemp  v.  Balls,  10  Ex.  607 ;  Lucas 
r.  Wilkinson,  1H.4N.  420. 

40  10  Ex.  844.     See  also  Neely  v.  Jones,  16  W.  Va.  625. 

•41  Harrison  v.  Hicks,  1  Port.  (Ala.)  423;  Underwood  v.  Lovelace,  61  Ala 
155;  Martin  v.  Quinn,  37  Cal.  55;  White  v.  Cannon,  125  111.  412;  Poole  v. 
Kelsey,  95  111.  App.  233,  240;  Ritenour  i:  Mathews,  42  Ind.  7;  Binford  v 
Adams',  104  Ind.  41;  Thompson  v.  Conn.  Mut.  L.  I.  Co.,  139  Ind.  325,  345; 
Harvey  v.  Tama  County,  53  la.  228;  Porter  v.  Chicago,  etc.,  Ry.  Co.,  99  la 
351,  359;  Marshall  v.  Bullard,  114  la.  462;  Oliver  r.  Bragg,  15  La.  Ann.  402; 
LeaVitt  r.  Morrow,  6  Ohio  St.  71;  Royalton  r.  Cushing,  53  Vt.  321,  326; 
Crumlish's  Admr.  v.  Central  Imp.  Co.,  38  W.  Va.  390;  Gray  v.  Herman,  75 
Wis.  453. 


842  DISCHAEGE    OF    CONTRACTS. 

the  debtor  and  was  ratified  by  him,  these  facts  are  relied  upon.42  In 
New  York,  however,  the  strictness  of  the  early  English  law  was  long 
maintained,43  and  a  similar  result  has  been  reached  in  Kentucky44 
and  Missouri.45 

Ratification  by  the  debtor.  The  difference  in  the  authorities  is  of  less 
importance  than  it  might  seem  on  first  consideration.  The  courts 
which  require  the  satisfaction  to  be  made  on  behalf  of  the  debtor 
and  ratified  by  him  are  disposed  to  find  these  facts  upon  rather 
slight  evidence.  The  difficulty  is  generally  that  the  third  person  did 
not  purport  to  act  on  behalf  of  the  debtor.  If  the  payment  was  so 
made  as  to  be  capable  of  ratification,  there  can  be  no  difficulty  so 
far  as  the  debtor  himself  is  concerned  in  making  out  such  ratifica- 
tion. The  mere  assertion  by  the  debtor  that  the  debt  has  been  satis- 
fied though  made  by  plea  or  at  the  trial  after  action  has  been 
brought  on  the  debt  is  sufficient.  If  the  question  whether  the  debt 
has  been  paid  comes  in  issue  between  the  creditor  and  third  persons, 
then  indeed  trouble  ma}'  arise  over  the  question  of  ratification. 

Equitable  defence.  Even  though  satisfaction  from  a  third  person 
does  not  legally  discharge  the  obligation,  there  may  be  ground  for 
an  equitable  defence.  There  must  be  implied  from  the  creditor's 
acceptance  of  the  satisfaction  a  promise  to  forbear  perpetually  to 
Mie  the  original  debtor.  Whether  the  original  debtor  can  enforce  this 
piomise  in  any  jurisdiction  should  depend  upon  the  doctrines  there 
held  in  regard  to  the  enforcement  by  third  persons  of  contracts  for 
their  benefit  or  for  the  discharge  of  obligations  due  to  them.46  If 
the  promise  is  enforceable  by  the  original  debtor,  either  a  permanent 
injunction  or  an  equitable  plea  at  law  is  an  appropriate  remedy. 

Rescission  of  arrangement.  It  has  been  held  in  England  that  before 
ratification  by  the  debtor,  it  is  competent  for  the  creditor  and  the 
third  person  to  rescind  their  arrangement,  and  the  original  debtor 

42  See  the  careful  opinions  in  Snyder  v.  Pharo,  25  Fed.  Rep.  398,  and 
Jackson  v.  Pennsylvania  R.  Co.,  66  N.  J.  L.  632. 

43  Clow  v.  Borst,  6  Johns.  37 ;  Daniels  v.  Hallenbeck,  19  Wend.  408 ;  Bleak- 
lev  i'.  White,  4  Paige,  654;  Muller  v.  Kno,  14  N.  Y.  597,  605;  Atlantic  Dock 
Co.  r.  New  York,  53  N.  Y.  64;  Dusenbury  r.  Callaghan,  8  Hun,  541,  544. 
Cp.  Hun  v.  Van  Dyck,  26  Hun,  567 ;  affirmed,  without  opinion,  92  N.  Y.  660. 
See  also  Wellington  r.  Kelly,  84  N.  Y.  543;  Knapp  v,  Roche,  92  N.  Y.  329, 
334.  But  in  Danziger  v.  Hoyt,  120  N.  Y.  190,  194,  the  court  say:  "But  if 
ratification  of  the  latter  (i.  e. )  the  debtor  may  be  deemed  essential,  it  appears 
by  the  fact  of  her  asserting  payment  and  seeking  to  avail  herself  of  the 
benefit  of  the  receipt  as  a  defense." 

4-1  Stark's  Admr.   r.  Thompson's  Exrs.,  3  T.  B.  Mon.  296,  302. 
Vi  Armstrong    r.    School   District,    28    Mo.    App.    169.      See   also    Carter   v. 
Black,  4  Dev.  '&  Bat.  425,  427. 

46  See  supra,  p.  242  et  seq.;  Armstrong  r.  School  District,  28  Mo.  App.  169. 


CANCELLATION  AND  SURRENDER.  843 

will  then  still  continue  liable.47  In  this  case,  too,  if  it  be  granted 
that  satisfaction  by  a  third  person  is  not  a  legal  discharge,  the  cor- 
rectness of  the  result  depends  on  the  doctrine  held  as  to  the  right 
of  parties  to  a  contract  in  which  a  third  person  is  interested,  to  rescind 
it.48 

Cancellation  and  Surrender. 

Normal  method  of  discharging  specialty.  At  common  law  the  normal 
method  of  discharging  a  contract  under  seal  was  by  the  cancellation 
of  the  document.  As  such  a  contract  was  not  merely  evidence  of  the 
intent  of  the  parties,  but  was  itself  regarded  as  the  obligation,  even 
more  fully  than  a  railroad  or  government  bond  is  to-day,  when  the 
physical  identity  of  the  document  was  destroyed,  the  obligation  ceased 
to  exist.49  Though  the  destruction  of  the  document  was  accidental, 
the  legal  obligation  was  destroyed,  and  equitable  relief  was  neces- 
sary to  save  the  obligee's  rights.50 

Surrender  insufficient  in  early  law.  In  order  to  give  a  contract  under 
seal  validity,  delivery  by  the  obligor  was  essential.  What  constitutes 
delivery  is  a  question  which  to-day  depends  largely  on  intention,  but 
originally  the  physical  act  of  delivery  was  undoubtedly  the  essential 
thing.  Surrender  might  have  been  regarded  as  the  converse  of  de- 
livery and  for  that  reason  as  undoing  the  effect  of  delivery.  This, 
however,  was  not  the  doctrine  of  our  early  law,  which  held  that  "  even 
though  the  specialty  was  upon  payment  surrendered  to  the  obligor, 
the  latter  was  still  not  safe  unless  he  cancelled  or  destroyed  the 
specialty,  for,  if  the  obligee  should  afterwards  get  possession  of  the 
instrument,  even  by  a  trespass,  the  obligor,  notwithstanding  the  pay- 
ment, the  surrender,  and  the  trespass,  would  have  no  defence  to  an 
action  at  law  by  the  obligee."  51 

Equitable  relief.  Equity,  however,  early  gave  relief  in  such  cases 
and  at  the  present  clay  there  can  be  no  doubt  that  even  a  voluntary 

47  Walter  v.  James,,  L.  R.  6  Ex.  124.  In  this  case  the  creditor  when  he 
received  payment  thought  that  it  was  authorized  by  the  debtor,  and  the  fact 
that  he  accepted  the  payment  under  this  mistake  had  weight  with  the  court. 

48  See  supra,  p.  273,  et  seq. 

49  9  Harv.  L.  Rev.  49,  by  Professor  Ames.  This  is  illustrated  by  the 
doctrine  in  regard  to  alteration.     See  infra,  p.  845  et  seq. 

50  9    Harv.    L.    Rev.    49. 

51  9  Harv.  L.  Rev.  49,  54,  by  Professor  Ames,  citing  "  Y.  B.  5  Hen.  IV.  2-6 ; 
Y.  B.  22  Hen.  VI.  522-4;  Y.  B.  37  Hen.  VI.  14-3;  Y.  B.  5  Ed.  IV.  4-10; 
Y.  B.  1  Hen.  VII.  14-2;  Waberley  v.  Cockerell,  Dy.  51,  pi.  12;  Cross  v. 
Powell.  Cro.  El.  483 ;  Atkins  v.  Farr,  2  Eq.  Ab.  247 ;  Licey  v.  Licey,  7  Barr, 
251,  253.  In  the  last  case  Gibson,  C.  J.,  said:  'Even  if  a  bond  thus  deliv- 
ered [to  the  obligor]  but  not  canceled  come  again  to  the  hands  of  the  obligee, 
though  it  be  valid  at  law,  the  obligor  will  be  relieved  in  equity.'  " 


844  DISCHAEGE    OF    CONTBACTS. 

surrender  of  a  bond,  if  made  with  intent  to  extinguish  it,  would  be 
effectual  between  the  parties.52 

Bills  and  notes  —  Insurance  policies.  Cancellation  and  surrender  being 
appropriate  means  of  discharge  for  sealed  contracts  are  similarly  ap- 
propriate to  discharge  other  formal  obligations  as  bills  and  notes53  or 
policies  of  insurance,  and  in  jurisdictions  where  written  contracts  are 
by  statute  presumptively  founded  on  good  consideration54  it  may  be 
that  all  written  contracts  are  thereby  given  a  formal  character. 

Simple  contracts.  The  effect  of  cancellation  or  surrender  upon  writ- 
ten contracts  which  are  not  formal  contracts  must  depend  somewhat 
upon  the  particular  circumstances  of  the  case.  Surrender  or  cancella- 
tion frequently  forms  part  of  and  is  evidence  of  a  parol  agreement 
to  discharge  the  contract.  The  validity  of  such  an  agreement  depends 
upon  rules  previously  considered.55  Even  though  it  is  impossible  to 
make  out  a  binding  parol  contract  of  discharge,  the  rules  of  evidence 
may  save  the  original  promisor  from  liability  upon  his  contract ; 
for  the  voluntary  cancellation  of  the  writing  by  the  promisee  may 
have  deprived  him  of  his  only  legal  evidence.56  If  the  writing  is 
still  in  existence  the  mere  fact  that  it  has  been  surrendered  would  not, 
however,  it  seems,  prevent  its  use  in  evidence,  or  prevent  the  admis- 

52  Hurst  V.  Beach,  5  Madd.  351;  Beach  r.  Endress,  51  Barb.  570;  Picot  v. 
Sanderson,  1  Dev.  309;  Wentz  v.  Dehaven,  1  S.  4  E.  317;  Licey  r.  Licey, 
7  Pa.  251;  Albert's  Exrs.  r.  Ziegler's  Exrs.,  29  Pa.  50;  Piercy's  Heirs  c. 
Piercy's  Exrs.,  5   W.  Va.   199. 

53  Voluntary  destruction  of  a  note  operates  as  a  discharge  of  the  maker. 
Gilbert  r.  Wetherell,  2  Sim.  &  St.  358;  Darland  v.  Taylor,  52  la.  503;  Mc- 
Donald i\  Jackson,  56  la.  643 ;  Fisher  v.  Mershon,  3  Bibb.  527 ;  Vanauken 
r.  Hornbeck,  2  Green,  178;  Blade  v.  Noland,  12  Wend.  173.  So  of  a  bond. 
Gardner  v.  Gardner,  22  Wend.  526;  Bond  v.  Bunting,  78  Pa.  210,  218;  Eees 
v.  Rees,  11  Rich.  Eq.  86. 

Surrender  of  a  note  to  the  maker  with  intent  to  extinguish  it  has  that 
effect.  Sherman  v.  Sherman,  3  Ind.  337;  Gibson  i\  Gibson,  15  111.  App.  328; 
Denman  r.  McMahin,  37  Ind.  241,  246;  Peabody  r.  Peabody,  59  Ind.  556;  Slade 
v.  Mutrie,  156  Mass.  19;  Stewart  r.  Hidden,  13  Minn.  43;Marston  v.  Marston, 
64  N.  H.  146;  Vanderbeck  v.  Vanderbeck,  30  N.  J.  Eq.  26g;  Larkin  r. 
Hardenbrook,  90  N.  Y.  333;  Jaffray  r.  Davis7"l2TT3'7Y:  Ifl27l70;  Kent  r. 
Reynolds,  8  Hun,  559;  Bridgers  r.  Hutehins,  11  Ired.  68;  Melvin  r.  Bullard, 
82  "N.  C.  33 ;  Dittoe's  Admr.  r.  Cluney's  Exrs.,  22  Ohio  St.  436 ;  Ellsworth  r. 
Fogg,  35  Vt.  355;  Lee's  Exrs.  r.  Boak,   11  Gratt.  182. 

If  the  surrender  was  after  maturity  it  is  immaterial  -whether  surrender 
is  still  to  be  regarded  as  an  equitable  defense  or  has  become  a  legal  extinction 
of  the  obligation.  If,  however,  surrender  was  before  maturity,  and  the 
document  was  wrongfully  obtained  and  put  in  circulation  al^o  before  maturity 
by  a  party  to  whom  it  was  made  payable  or  indorsed,  the  question  would 
be  vital.  Where  the  Negotiable  Instruments  Law  is  in  force  (see  supra, 
p.  821,  n.  47),  it  would  seem  that  the  maker  would  be  liable  again  to  a  holder 
in  due  course.     Crawford's  Neg.  Inst.  L.,  §   35. 

54  See  supra,  p.  217,  n.  25. 

55  See  supra,  p.  815  et  seq. 

56  See  infra,  p.  847. 


ALTERATION  :    CONVEYANCES    AND    COVENANTS.  845 

sion  of  secondary  evidence  of  its  contents  if  the  holder  of  it  refused 
to  produce  it. 

Alteration. 
Common-law  rule  —  Pigot's  case.       It    was    an    early    doctrine    of    the 
common  law   that  alteration  avoided  a   deed.     The  leading  case  is 
Pigot's  case,51  and  the  doctrine  is  stated  therein  by  Lord  Coke,  as 
follows : 

"These  points  were  resolved:  1.  When  a  lawful  deiid  is  rased,  whereby 
it  becomes  void,  the  obligor  may  plead  non  est  factum,  and  give  the  matter 
in  evidence,  because  at  the  time  of  the  plea  pleaded,  it  is  not  his  deed. 

"  Secondly,  it  was  resolved,  that  when  any  deed  is  altered  in  a  point 
material,  by  the  plaintiff  himself,  or  by  any  stranger,  without  the  privity  of 
the  obligee,  be  it  by  interlineation,  addition,  rasing,  or  by  drawing  of  a  pen 
through  a  line,  or  through  the  midst  of  any  material  word,  that  the  deed 
thereby  becomes  void.  .  .  .  So  if  the  obligee  himself  alters  the  deed  by 
any  of  the  said  ways,  although  it  is  in  words  not  material,  yet  the  deed  is 
void:  but  if  a  stranger,  without  his  privity,  alters  the  deed  by  any  of  the 
said  ways  in  any  point  not  material,  it  shall  not  avoid  the  deed. 

"  If  a  deed  contains  divers  distinct  and  absolute  covenants,  if  any  of  the 
covenants  are  altered  by  addition,  interlineation,  or  rasure,  this  misfeasance 
ex  post  facto,  avoids  the  whole  deed,  as  it  is  held  in  14  H.  8,  25,  26.  For 
although  they  are  several  covenants,  yet  it  is  but  one  deed,  3  H.  7,  fol.  5,  a. 
If  two  are  bound  in  a  bond,  and  afterwards  the  seal  of  one  of  them  is  broken 
off,  this  misfeasance  ex  post  facto  avoids  the  whole  deed  against  both.  Tide 
the  case  of  Matthewson,  Mich.  39  &  40  Eliz.  in  the  Fifth  Part  of  my  Reports, 
fol.  23  a." 

Distinction  between  Conveyances  and  Covenants. 

Conveyance  though  altered  vests  title,  but  covenant  must  be  valid  when 
enforcement  sought.  A  distinction  should  be  observed  between  a  deed 
of  conveyance  and  a  bond  or  covenant  obliging  the  maker  to  some 
future  performance.  If  a  conveyance  is  valid  when  delivered,  the 
title  to  the  property  vests  in  the  grantee,  and  no  subsequent  altera- 
tion58 or  loss59  of  the  deed  can  affect  the  title  of  the  grantee,  though 

57  11    Coke,   266. 

58  Argoll  t.  Cheney,  Palmer,  402 ;  Doe  v.  Hirst,  3  Stark.  60 ;  Agricultural 
Cattle  Ins.  Co.  r.  Fitzgerald,  16  Q.  B.  432;  West  v.  Steward,  14  M.  &  W.  47 ; 
United  States  i\  West,  22  How.  315;  Mallory  r.  Stodder,  6  Ala.  401;  Sharpe 
v.  Orme,  61  Ala.  263;  Pansier  v.  Vanorsdol,  50  la.  130;  Hollingsworth  v. 
Holbrook,  80  la.  151;  Slattery  r.  Slattery,  120  la.  717;  Barrett  v.  Thorn- 
dike,  1  Me.  73;  Goodwin  v.  Norton,  92  Me.  532;  Hatch  v.  Hatch,  9  Mass.  307; 
Chessman  v.  Whittemore,  23  Pick.  231,  233;  Alexander  v.  Hickox,  34  Mo.  496; 
Woods  v.  Hilderbrand,  46  Mo.  284;  Donaldson  v.  Williams,  50  Mo.  407; 
Holladay-Klotz  Co.  v.  T.  J.  Moss  Co.,  89  Mo.  App.  556;  Chesley  r.  Frost,  1 
N.  H.  145 ;  Jackson  v.  Gould,  7  Wend.  364 ;  Herrick  v.  Malin,  22  Wend.  388 ; 
Waring  v.  Smyth,  2  Barb.  Ch.  119;  Bifener  v.  Bowman,  53  Pa.  318;  Booker 
V.  Stivender,  13  Rich.  L.  85,  90;  Morgan  v.  Elam,  4  Yerg.  375;  Stanley  v. 
Epperson,  45  Tex.   645;  North  v.  Henneberry,  44  Wis.   306. 

In  Argoll  V.  Cheney,  Palmer,  402,  a  little  boy  had  torn  the  seals  off  a  deed 
to  crude  the  uses  of  a  recovery,  but  the  effect  of  the  deed  was  held  not 
destroyed. 

59  Bolton  v.  Bishop  of  Carlisle,  2  H.  Bl.  259,  263,  per  Eyre,  C.  J. .  "  God 
forbid  that  a  man  should  lose  his  estate  by  losing  his  title  deeds."  Donald- 
son r.   Williams,  50  Mo.   407. 


846  DISCHARGE    OF    COXTEACTS. 

for  want  of  evidence  he  may  find  difficulty  in  enforcing  his  title.  A 
bond  or  covenant  for  future  performance,  however,  must  be  valid 
when  the  obligee  seeks  to  enforce  it,  and-  the  rules  in  Pig  of  s  case  are 
applicable.60 

Conveyances  of  corporeal  and  incorporeal  hereditaments.  This  distinction 
between  conveyances  and  obligations,  while  clear  on  principle,  was  not 
that  which  the  early  English  law  adopted.  As  to  conveyances  of  cor- 
poreal hereditaments  where  there  was  a  transfer  of  possession,  it  was 
early  held  that  a  subsequent  alteration  could  not  divest  a  title  which 
had  passed  by  the  deed,61  for  it  was  said  that  the  property  lay  in 
livery  and  the  deed  was  but  evidence  of  the  transfer.  But  in  the 
case  of  incorporeal  hereditaments,  which  lie  in  grant,  it  was  other- 
wise; the  title  was  regarded  as  continuously  dependent  on  the  deed, 
and  a  subsequent  alteration  divested  a  title  previously  passing  by 
the  deed.62 

60  Compare  with  Argoll  v.  Cheney,  n.  58,  supra;  Bayly  v.  Garford,  March, 
125,  where  the  seal  of  two  obligors  had  been  eaten  by  mice  and  rats,  and  this 
was  thought  to  discharge  a  third  person  jointly  bound  with  them,  though 
his  seal  was  uninjured.  See  also  Michaell's  Case,  Owen,  8 ;  Nichols  v.  Hay- 
wood,  Dyer,  59a;  Seaton  i:  Henson,  2  Lev.  220;  S.  C,  2  Show.  28.  The 
numerous  modern  decisions  are  cited  passim  infra. 

61  Bro.  Ab.  "Lease,"  pi.  16;  Moore  v.  Waldron,  1  Rolle,  188;  Argoll  r. 
Cheney,  Palm.  402;  Miller  v.  Manwaring,  Cro.  Car.  397,  399;  Woodward  r. 
Aston,  1  Vent.  296;  Nelthorp  v.  Dorrington,  2  Lev.  113;  Ladv  Hudson's  Case, 
cited  in  2  Vern.  476,  and  Ch.  Prec.  235 ;  Doe  v.  Hirst,  3  Stark.  60. 

62  Miller  v.  Manwaring,  Cro.  Car.  397,  399;  Moor  v.  Salter,  3  Bulstr. 
79.  In  Miller  v.  Manwaring,  the  report  reads:  "And  Jones  and  Berkley, 
Justices,  .  .  took  a  difference  when  an  estate  loseth  his  essence  by  a  deed, 
viz.,  where  it  may  not  have  an  essence  without  a.  deed,  as  a  lease  by  a  cor- 
poration, or  of  tithes,  or  grant  of  a  rent-charge,  or  such  like,  if  the  deed  be 
rased  after  delivery,  it  determines  the  estate  and  makes  it  void,  but  when 
the  estate  may  have  essence  without  a  deed,  there  although  it  be  created  by  a 
deed,  and  the  deed  is  after  rased  by  the  party  himself  or  a  stranger,  that 
shall  not  destroy  the  estate  although  it  destroys  the  deed."  The  court, 
therefore,  held  rasure  in  a  lease  did  not  avoid  the  lessee's  estate.  Croke's 
opinion  was,  however,  that  the  rasure  destroyed  the  deed  and  also  the  estate 
of  the  lessee,  as  by  a  surrender. 

So  in  Gilbert  on  Evidence  (1st  ed.,  p.  84,  6th  ed.,  p.  75),  "  There  is  a  dif- 
ference to  be  taken  between  things  that  lie  in  livery,  and  things  that  lie 
in  grant,  for  things  that  lie  in  livery  may  be  pleaded  without  deed,  but  for 
a  thing  that  lies  in  grant  regularly  a  deed  must  be  shown."  See  also  ibid. 
1st  ed.,  p.  109,  6th  ed.,  p.  95. 

In  Woodward  v.  Aston,  1  Vent.  296,  297  (1677),  "The  Court  said  in  this 
case  that  a.  rent  or  other  grant  was  not  lost  by  the  destruction  of  the  deed, 
as  a  bond  or  chose  en  action  was.      (Quwre,  if  the  party  himself  cancel  it.)" 

The  Statute  of  Frauds  introduced  a  new  element  into  the  case,  since  it 
made  impossible  the  transfer  or  surrender  (except  by  operation  of  law) 
of  an  estate  without  a  writing.  Consequently  even  voluntary  cancellation  of 
a  lease  granting  an  estate  within  the  statute  could  not  operate  as  a  sur- 
render. Magennis  v.  McCulloch,  Gilb.  Eq.  236;  Leech  r.  Leech,  2  Ch.  Rep. 
100 ;  Roe  v.  York,  6  East,  86. 


ALTERATION  :    SUBSTANTIVE    LAW    AND    EVIDENCE.  847 

Distinction  not  now  essential.  By  the  present  English  law,  however, 
a  title  once  vested  whether  to  corporeal  or  incorporeal  property  cannot 
be  divested,63  and  probably  the  distinction  of  the  earlier  law  would 
not  now  be  followed  in  this  country.64 

Substantive  law  and  evidence  —  Equitable  relief.  The  question  of  sub- 
stantive law  is  complicated  with  the  question  of  evidence.  The  origi- 
nal reason  that  a  deed  was  discharged  by  alteration  applied  equally 
to  the  loss  or  accidental  destruction  of  such  an  instrument.  The  deed 
was  itself  the  obligation,  not  merely  evidence  of  it,  and  if  the  deed 
ceased  to  exist  in  its  original  form  the  obligation  necessarily  ceased. 
But  an  obvious  consequence  of  alteration,  loss,  or  destruction  was  a 
difficulty  of  proving  that  a  deed  of  a  particular  character  had  been 
made.  In  case  of  accidental  loss63  or  destruction68  courts  of  equity 
early  gave  relief,  and  later  courts  of  law  made  equitable  relief  un- 
necessary by  accepting  secondary  evidence  of  the  deed  and  enforcing 
its  provisions.67  But  alteration  was  regarded  as  due,  if  not  to  wrong- 
doing, at  least  to  laches  of  the  obligee  or  grantee,  and  equity  gave 
him  no  relief.68    If  a  court  of  law  also  would  not  receive  in  evidence 

63  The  old  distinction  was  criticised  by  Eyre,  C.  J.,  in  Bolton  v.  The 
Bishop  of  Carlisle,  2  H.  Bl.  259,  263 :  "  I  hold  clearly  that  the  cancelling  a 
deed  will  not  divest  property,  which  has  once  vested  by  transmutation  of 
possession,  and  I  would  go  farther  and  say  that  the  law  is  the  same  with 
respect  to  things  which  lie  in  grant.  In  pleading  a  grant,  the  allegation 
is  that  the  party  at  such  time  '  did  grant,'  but  if  by  accident  the  deed  be 
lost,  there  are  authorities  enough  to  shew  that  other  proof  may  be  ad- 
mitted. The  question  in  that  case  is,  Whether  the  party  did  grant?  To 
prove  this  the  best  evidence  must  be  produced,  which  is  the  deed:  but  if 
that  be  destroyed,  other  evidence  may  be  received  to  shew  that  the  thing 
was  once  granted." 

64  It  was  stated  as  law,  however,  in  Lewis  v.  Payn,  8  Cow.  71. 
65GrifHn  v.  Boynton,  2  Nelson,  82;  Collet  v.  Jaques,  1  Eq.  Cas.  Ab.  32,  pi. 

2 ;   Lightbone  v.  Weeden,  1  Eq.  Cas.  Ab.  24 ;  pi.  7 ;  so  in  the  case  of  a,  lost 
bill  of  exchange.     Tercese  ;;.  Geray,  Finch,  301. 

66  Brown  v.  Savage,  Finch,  184 ;  Bennett  v.  Ingoldsby,  Finch,  262 ;  Brook- 
bank  v.  Brookbank,  1  Eq.  Cas.  Ab.  168,  pi.  7 ;  Wilcox  v.  Stuart,  1  Vern.  78 ; 
Sanson  v.  Rumsey,  2  Vern.  561,  and  note. 

67  See  1  Greenleaf,  Ev.  §  563,6.;  Leake,  Cont.  (4th  ed.),  580.  In  the 
case  of  a  negotiable  instrument  the  aid  of  a  court  of  equity  remained  necessary, 
for  the  plaintiff  in  such  a  case  could  not  fairly  be  given  relief  except  upon 
the  terms  of  giving  a  bond  to  indemnify  the  defendant  from  possible  subsequent 
liability  on  the  instrument  if  it  were  found.  See  2  Ames  Cas.  B.  &  N.  38, 
42,  n.  But  this  was  not  applied  to  non-negotiable  instruments.  Wain  v. 
Bailey,  10  A.  &  E.  616.  And  in  the  case  of  negotiable  instruments,  reformed 
procedure  or  statutes  have  made  resort  to  equity  unnecessary  in  many  juris- 
dictions.    2  Ames  Cas.  B.  &  N.  19,  u. 

68Sel.  C.  Chanc.  temp.  King,  24.  In  Arrison  v.  Harmstead,  2  Barr,  191, 
193,  counsel  argued  that  equity  would  reform  an  altered  deed  in  favor  of  a 
purchaser,  but  Gibson,  C.  J.,  interrupted,  "  The  deed  is  dead  and  equity 
cannot  put  life  into  it."  This  was  cited  with  approval  in  Wallace  v.  Harm- 
sted,  44  Pa.  492,  494.     See  also  Marcy  v.  Dunlap,  5  Lans.  365. 


848  DisciiAKui;  oi-'  contracts. 

the  altered  deed  or  secondary  proof  of  its  contents,  the  consequence 
would  be  to  deprive  any  grantee  or  obligee  of  all  legal  rights  in  any 
case  where  such  rights  could  be  shown  only  by  proof  of  the  deed. 
Even  if  the  deed  vested  an  estate  in  the  grantee  prior  to  the  altera- 
tion, no  one  would  be  bound  to  respect  the  title  if  the  only  legal  evi- 
dence of  it  were  destroyed.  The  case  is  analogous  to  that  of  the 
voluntary  destruction  of  a  conveyance  by  the  grantee.  Though  this 
is  not  a  reconveyance  of  the  estate,  the  effect  is  similar  if  the  grantee 
cannot  prove  his  title  nor  show  that  the  grantor's  title  has  been  di- 
vested. The  rule  of  evidence  is  often  broadly  enough  stated  to  lead 
lo  these  results.  In  the  last  edition  of  Greenleaf  on  Evidence  it  is 
said  that  if  a  writing  has  been  destroyed  by  the  party  wishing  to 
prove  its  contents  no  secondary  evidence  will  be  received,  unless  the 
party  can  show  that  the  destruction  was  not  for  the  purpose  of 
suppressing  evidence  or  any  fraudulent  purpose.69  jSTo  English  cases, 
however,  are  cited  which  support  so  severe  a  rule.  On  the  contrary, 
the  English  courts  have  held  that  not  only  in  the  case  of  alteration 
by  a  stranger  may  the  altered  deed  be  given  in  evidence  as  proof 
that  a  title  passed,70  but  that  this  may  be  done  even  where  the  altera- 
tion was  chargeable  to  the  party  offering  the  deed,71  and  similarly 
that  the  cancellation  of  a  conveyance  does  not  prevent  proof  by  one 
consenting  to  the  cancellation  that  such  a  conveyance  was  made.72 
The  Supreme  Court  of  Alabama  has  followed  the  English  decisions.73 

Eule  in  the  United  States.  In  this  country  alteration  by  a  stranger 
does  not  generally  avoid  a  deed,  so  that  such  a  deed  can  of  course 
be  given  in  evidence,  but  it  has  been  held  generally,  in  accordance 
with  the  rule  of  evidence  stated  above,  that  if  a  material  altera- 
tion is  fraudulently  made  the  altered  deed  cannot  thereafter  be  given 
in  evidence.74     Whether  this  in  effect  transfers  the  title  back  to  the 

09  l  Greenleaf,  Ev.   ( 16th  ed. ) ,  §  563,  6,  citing  numerous  decisions. 

70  Doe  v.  Hirst,  3  Stark.  60 ;  Hutchins  v.  Scott,  2  M.  &  W.  809 ;  West  v. 
Steward,  14  M.  &  W.  47.  See  also  Woods  v.  Hilderbrand,  46  Mo.  284;  Jack- 
son v.  Gould,  7  Wend.  364. 

71  Agricultural  Ins.  Co.  r.  Fitzgerald,  16  Q.  B.  432. 

72  Ward  v,  Lumley,  5  H.  &  N.  656.  See  also  S.  C,  5  H.  &  N.  87 ;  Harris 
v.  Owen,  West  Ch.  527 ;  S.  C,  sub  nom*  Harrison  v.  Owen,  1  Atk.  520. 

73  Alabama  Land  Co.  v.  Thompson,  104  Ala.  570 ;  Burgess  v.  Blake,  128 
Ala.  105;  Harper  v.  Reaves,  132  Ala.  625.  See  also  Woods  v.  Hilderbrand, 
46  Mo.  284;  Holladay-Klotz  Co.  v.  T.  J.  Moss  Co.,  89  Mo.  App.  556. 

74  Chesley  r.  Frost,  1  N.  H.  145;  Babb  v.  Clemson,  10  S.  &  R.  419;  Withers 
v.  Atkinson,  1  Watts,  236;  Bliss  r.  Mclntyre,  18  Vt.  466;  Newell  v.  Mayberry, 
3  Leigh,  250;  Batehelder  v.  White,  80  Va.  103. 

So  of  a  written  contract.     Hayes  r.  Wagner,  89  111.  App.  390. 

The  numerous  decisions  holding  that  a  writing  with  an  apparent  altera- 
tion cannot  be  received  in  evidence  unless  the  alteration  is  explained  neces- 
sarily involve  the  same  point.     Decisions  which  allow  such  documents  to  be 


ALTERATION  :   DESTRUCTION   OF  CONVEYANCE.  849 

grantor  depends  on  whether  the  rule  is  aimed  solely  against  the  party 
guilty  of  the  fraudulent  alteration  and  his  heirs  or  donees,  or  whether 
even  a  bona  fide  purchaser  from  him  would  acquire  no  better  title. 
It  may  be  urged  that  if  a  purchaser  is  protected  the  fraudulent  per- 
son is  in  effect  given  the  benefit  of  his  title  by  being  allowed  to 
sell  it,  though  he  cannot  directly  enforce  it.  Accordingly  the  Penn- 
sylvania Supreme  Court  has  held  that  a  bona  fide  purchaser  can  no 
more  assert  a  title  than  his  wrongdoing  grantor.75  This  conclusion 
is  supported  by  the  rule  in  regard  to  executory  contracts  avoided  by 
alteration.  Even  though  the  contract  is  negotiable  an  innocent  pur- 
chaser acquires  no  rights.76 

Rights  of  creditors.  The  rights  of  creditors  are  also  frequently  in- 
volved. If  the  owner  of  property  is  so  deeply  indebted  that  he  could 
not  legally  make  a  voluntary  conveyance  of  it,  he  cannot  be  allowed 
to  produce  the  same  effect  by  destroying  the  evidence  of  his  title  by 
alteration  or  cancellation  of  the  conveyance.  His  creditors  may  levy 
on  the  property.  If,  however,  the  debtor  cancelled  a  deed  for  ade- 
quate consideration,  or  if  he  had  other  property  sufficient  to  satisfy 
his  debts,  the  creditors  should  have  no  greater  rights  than  their 
debtor  had,  except  so  far  as  recording  acts  or  other  statutes  may  pro- 
vide.77 

Voluntary  destruction  of  conveyance.  The  voluntary  destruction  or 
cancellation  by  the  grantee  of  a  conveyance  is  not  ordinarily  done  for 
any  fraudulent  purpose,  but  it  is  an  intentional  destruction  of  the 
appropriate  evidence  of  his  title,  and  it  would  seem  that  a  court 
might  as  well  decline  to  allow  a  grantee  who  has  done  this  for  the 
very  purpose  of  depriving  himself  of  his  rights  to  prove  his  title 
by  secondary  evidence,  as  to  deny  that  privilege  to  one  who  has  been 
guilty  of  some  fraudulent  purpose.  Many  cases  accordingly  hold 
that  neither  the  grantee  nor  any  one  claiming  under  him  can  assert 
his  title  after  such  cancellation.78     These   decisions  have  not  met 

received  in  evidence  on  proof  of  the  signature,  leaving  the  question  of  altera- 
tion to  be  decided  as  an  issue  in  the  case,  perhaps  have  a  contrary  implica- 
tion.    These  decisions  are  hereafter  referred  to. 

75Arrison  v.  Harmstead,  2  Barr,  191,  197;  Wallace  v.  Harmstad,  15  Pa. 
402;  Wallace  v.  Harmstad,  44  Pa.  492.  See  also  Marr  v.  Hobson,  22  Me. 
321.     But  see  Chesley  v.  Frost,  1  N.  H.  145. 

76  See  infra,  p.  866. 

77  See  Steeley's  Creditors  v.  Steeley,  23  Ky.  L.  Rep.  996. 

78  Thompson  v.  Thompson,  9  Ind.  323;  Patterson  v.  Yeaton,  47  Me.  308,  314; 
Trull  v.  Skinner,  17  Pick.  213,  215;  Howe  r.  Wilder,  11  Gray,  267  (but  see 
Chessman  v.  Whittemore,  23  Pick.  231)  ;  McAllister  v.  Mitchner,  68  Miss.  672, 
679;  Potter  v.  Adams,  125  Mo.  118;  Farrar  r.  Farrar,  4  ST.  H.  191;  Bank  v. 
Eastman,  44  N.  H.  431;  Sawyer  v.  Peters,  50  N.  H.  143;  Dukea  v.  Spangler, 

54 


850  DISCHARGE    OF    CONTRACTS. 

uniform  approval  in  this  country,™  but  there  are  not  many  cases  to 
the  contrary.  Cases  are  not  in  point  where  primary  evidence  of  the 
destroyed  deed  was  obtainable,  or  where  the  party  seeking  to  use 
secondary  evidence  was  not  bound  by  the  default  or  estoppel  binding 
the  original  grantee.  Thus  the  doctrine  is  applicable  only  to  un- 
recorded deeds,80  for  when  a  deed  has  been  recorded  and  subsequently 
fraudulently  altered  or  dstroyed,  there  is  no  difficulty  of  proof  if 
the  statute  makes  a  copy  from  the  records  primary  evidence.  If, 
however,  a  deed  is  altered  before  it  is  recorded,  the  record  can  afford 
no  help.81  If  a  writing  is  not  necessary  to  the  transfer  of  property, 
a?  is  the  case  with  chattel  property,  alteration  of  a  bill  of  sale  or 
ether  writing  conveying  such  property  will  not  prevent  proof  of  the 
transfer.82 

Alteration  of  separable  part  of  a  deed.  A  deed  to  which  there  are  sev- 
eral parties  will  not  be  avoided  as  to  one  party  by  the  alteration  of  a 
provision  which  relates  wholly  to  other  parties.83     Also  a  deed  may 

35  Ohio  St.  119  (see  Spangler  r.  Dukes,  39  Ohio  St.  642)  ;  Wiley  v.  Christ, 
4  Watts,  196,  199;  Howard  v.  Huffman,  3  Head,  562;  Bliss  v.  Mclntyre,  18 
Vt.  466  (lease)  ;  Parker  v.  Kane,  4  Wis.  1,  22  How.  1  (but  see  Rogers  v. 
Rogers,  53  Wis.  36;  Slaughter  v.  Bernards,  97  Wis.  184,  190). 

So  where  the  name  of  the  grantee  in  a  deed  was  changed  with  the  concur- 
rence of  the  grantee  first  named,  it  was  held  he  could  not  afterwards  claim 
title  in  himself.     Abbott  r,  Abbott,  189  111.  488. 

ro  Cunningham  r.  Williams.  42  Ark.  170;  Diver  v.  Friedheim,  43  Ark.  203: 
Cranmer  v.  Porter,  41  Cal.  462;  Weygant  v.  Bartlett,  102  Cal.  224;  Botsford 
v.  Morehouse,  4  Conn.  550;  Gilbert  v.  Bulkley,  5  Conn.  262;  Furguson  r.  Bond, 
39  W.  Va.  561.  See  further  2  Devlin  on  Deeds,  §  300  et  seq.;  2  Jones  on  Real 
Property,  §  1258. 

80  See  cases  cited  in  note  78,  supra;  Wheeler  r.  Single,  62  Wis.  380.  See  also 
Van  Riswick  v.  Goodhue,  50  Md.  57. 

siMarr  v.  Hobson,  22  Me.  321.  See  also  Moelle  v.  Sherwood,  148  U.  S.  21; 
Respass  i'.  Jones,  102  N".  C.  5.    Cp.  Chessman  r.  Whittemore,  23  Pick.  231. 

82Ransier  v.  Vanorsdol,  50  la.  130;  Babb  v.  Clemson,  10  S.  &  R.  419. 

83  Doe  v.  Bingham,  4  B.  &  Aid.  072;  Agricultural  Cattle  Ins.  Co.  r.  Fitz- 
gerald, 16  Q.  B.  432,  440;  Robinson  v.  Phoenix  Ins.  Co.,  25  la.  430;  Shelton  , 
v.  Deering,  10  B.  Mon.  405;  Bird  r.  Bird,  40  Me.  394;  Kendall  v.  Kendall, 
12  Allen,  92;  Herrick  i.  Baldwin,  17  Minn.  209;  Holladay-Klotz  Co.  r.  T.  J. 
Moss  Co.,  89  Mo.  App.  556;  Wright  v.  Kellev,  4  Lans.  57,  63;  Arrison  r. 
Harmstead,  2  Barr,  191,  194.     But  see  Pigot's  Case,  11  Coke,  266. 

In  Woods  v.  Hilderbrand,  46  Mo.  284,  and  Burnett  r.  McCluey,  78  Mo.  676, 
it  was  held  that  an  alteration  in  the  description  of  one  tract  in  a  deed,  what- 
ever its  effect  on  the  conveyance  of  this  tract,  would  not  affect  the  validity 
of  the  deed  as  to  another  tract.  But  see  Powell  v.  Pearlstine,  43  S.  C.  403 ; 
Bowser  v.  Cole,  74  Tex.  222,  where  it  was  held  that  the  insertion  of  an  addi- 
tional tract  avoided  a  mortgage  as  to  the  tract  originally  included. 

And  similarly  the  addition  in  a  mortgage  of  other  notes  than  that  which  it 
was  actually  given  to  secure  avoids  the  mortgage  as  to  all  the  notes.  Johnson 
v.  Moore,  33  Kan.  90;  Russell  v.  Reed,  36  Minn.  376. 

In  Parke  Co.  v.  White  River  Lumber  Co.,  110  Cal.  658,  it  was  held  that 
alteration  of  n  contract  secured  by  a  mortgage  discharged  the  mortgage  as 
far  as  the  contract  was  concerned,  but  not  so  far  as  a  separate  note  also 
secured  by  the  same  mortgage  was  concerned. 


ALTERATION  :    TO    WHAT    CONTRACTS    APPLICABLE.  851 

operate  both  as  a  conveyance  and  as  an  obligation.  Indeed  most  con- 
veyances contain  covenants.  In  such  a  case  a  material-  wrongful 
alteration  will  discharge  the  obligation,  though  it  may  not  divest 
the  title  conveyed,84  except  in  so  far  as  the  grantee's  lack  of  legal 
evidence  to  prove  his  title  by  record  or  otherwise  may  in  effect  revest 
the  grantor  with  the  property.  Accordingly,  when  a  mortgage  is 
materially  and  wrongfully  altered  by  the  mortgagee,  any  executory 
right  which  the  mortgage  deed  gives  is  thereby  discharged,85  as  for 
instance  a  right  to  enter  on  the  mortgagor's  premises  and  take  mort- 
gaged chattels.86  But  the  mortgaged  estate  is  still  in  the  mortgagee, 
where  the  common  law  theory  of  the  effect  of  a  mortgage  prevails.87 
Where  a  mortgage  is  held  to  give  the  mortgagee  only  a  lien,  however, 
such  alteration  discharges  the  lien.88  Alteration  of  the  mortgage 
in  such  a  waj*  as  to  invalidate  it  does  not,  however,  discharge  a  note 
given  with  the  mortgage  for  the  mortgage  debt.89  When  alteration 
of  -the  note  will  not  only  avoid  the  note,  but  altogether  discharge 
the  debt,  will  be  discussed  hereafter.90 

Kinds  of  Contract  to  which  the  Eule  is  Applicable. 

Originally  applicable  to  specialties.  The  rule  denying  recovery  where 
a  writing  has  been  altered  might,  so  far  as  relates  to  the  fundamental 
reason  of  the  rule,  have  been  confined  to  specialities,  which  by  our 
law  are  more  than  mere  evidence  of  obligations,91  but  this  reason  was 
early  obscured,  and  the  rule  was  largely  rested  on  principles  of  evi- 
dence and  policy  that  were  equally  applicable  to  any  written  con- 
tract.   It  is  true  that  the  rule  was  first  extended  from  deeds  to  bills 

84  Ward  v.  Lumley,  5  H.  &  N.  87,  656 ;  Withers  v.  Atkinson,  1  Watts,  236 ; 
Arrison  r.  Harmstead,  2  Barr,  191,  194;  North  v.  Henneberry,  44  Wis.  306. 

86  Harris  v.  Owen,  West  Ch.  527 ;  S.  C,  sub.  nom.  Harrison  v.  Owen,  1  Atk. 
520;  Cutler  v.  Rose,  35  la.  456;  Hollingsworth  v.  Holbrook,  80  la.  151; 
Johnson  V,  Moore,  33  Kan.  90;  Coles  v.  Yorks,  28  Minn.  464;  Pereau  v. 
Frederick,  17  Neb.  117;  Kime  v.  Jesse,  52  Neb.  606;  Waring  v.  Smyth,  2 
Barb.  Ch.  119;  Marcy  v.  Dunlap,  5  Lans.  365;  Mclntyre  v.  Velte,  153  Pa. 
350 ;  Powell  v.  Pearlstine,  43  S.  C.  403,  409. 

86  Hollingsworth  v.  Holbrook,  80  la.  151;   Bacon  v.  Hooker,  177  Mass.  335. 

8T  Harris  i\  Owen,  West  Ch.  527 ;  S.  C,  sub.  nom.  Harrison  v.  Owen,  1  Atk. 
520-  Kendall  v  Kendall,  12  Allen,  92  (see  also  Bacon  r.  Hooker,  177  Mass. 
335)  ;  Cheek  v.  Nail,  112  N.  C.  370;  Heath  v.  Blake,  28  S.  C.  406.  See  also 
Williams  v.  Van  Tuyl,  2  Ohio  St.  336. 

88  Johnson  v.  Moore,  33  Kan.  90;  Russell  v.  Reed,  36  Minn.  376;  Powell 
v  Banks,  146  Mo.  620;  Kime  !'.  Jesse,  52  Neb.  606;  Waring  v.  Smyth,  2 
Barb.  Ch.  119;  Mclntyre  v.  Velte,  153  Pa.  350. 

89  Kime  v.  Jesse,  52  Neb.  606.    See  also  Powell  v.  Pearlstine,  43  S.  C.  403. 

90  In  the  January  number  of  the  Review. 

Pi  "  The  alteration  was  a  cancellation  of  the  deed,  having  the  same  effect 
that  tearing  off  the  seals  would  have  had.  This  rule  comes  down  to  us  from 
a  time  when  the  contract  contained  in  a  sealed  instrument  was  bound  so  in- 
'dissolubly  to  the  substance  of  the  document  that  the  soul  perished  with  the 


S52  DISCHARGE    OF    CONTRACTS. 

of  exchange,92  which,  are  in  truth  mercantile  specialities,93  being  them- 
selves obligations,  not  merely  evidence;  and  the  same  may  perhaps 
be  said  of  policies  or  insurance94  to  which  the  rule  was  soon  ex- 
tended,95 but  the  grounds  on  which  these  extensions  were  actually 
made  were  those  of  lack  of  legal  evidence  and  requirements  of  policy. 

Now  applicable  to  all  written  contracts.  It  is  not  surprising  therefore 
to  find  in  this  century  the  rule  against  alteration  applied  not  only 
to  all  written  contracts,96  but  even  to  writings  like  memoranda  to 
satisfy  the  Statute  of  Frauds,97  which  are  written  evidence,  but 
cannot  properly  be  regarded  as  written  contracts. 

Excusable  Alteration. 

Alteration  by  a  stranger.  The  original  reason  for  the  rule  against 
alteration  was  obviously  applicable  as  well  when  the  alteration  was 
made  by  a  stranger,  or  when  it  was  made  by  the  obligee  without 
fraudulent  intent  to  correct  a  real  or  supposed  mistake,  as  when  made 
by  the  obligee  with  fraudulent  purpose ;  but  after  relief  was  given  by 
equity  and  by  the  allowance  of  secondary  evidence  in  cases  of  acci- 
dental loss  or  destruction,  it  would  seem  as  if  similar  relief  should 
have  been  given  in  case  of  alteration,  where  the  obligee  was  innocent  of 
any  fraudulent  intent,  certainly  where  he  had  no  part  whatever  in 
the  alteration.     But  the  English  law  did  not  take  this  step.     Altera- 

body   when  the   latter   was   destroyed   or   lost   its   identity   for   any   cause."  ' 
Per  Holmes,  C.  J.,  in  Bacon  v.  Hooker,  117  Mass.  335,  337. 

"  Bonds  and  negotiable  instruments  are  more  than  merely  evidences  of 
debt.  The  debt  is  inseparable  from  the  paper  which  declares  and  constitutes 
it,  by  a  tradition  which  comes  down  from  more  archaic  conditions."  Per 
Holmes,  J.,   in  Blackstone  v.  Miller,   188  U.  S.   189,  206. 

92  Master  v.  Miller,  4  T.  R.  320,  2  H.  Bl.  141. 

The  doctrine  has  been  more  frequ?ntly  applied  to  bills  and  notes  than  to 
any  other  instruments.  See  numerous  cases  collected  in  1  Ames  Cas.  B.  &  N. 
447-449 ;   Daniel,  Neg.  Inst. 

93  See  2  Ames  Cas.  B.  &  N.  872 ;  Langdell,  Summ.  Cont.,  §  49  et  seq, 
o*  Ibid. 

95  Campbell  v.  Christie,  2  Stark.  64;  Forshaw  v.  Chabert,  3  Brod.  &  B.  158. 

96  Powell  r.  Divett,  15  East,  29;  Forshaw  v.  Chabert,  3  Brod.  &  B.  158; 
United  States  Glass  Co.  v.  West  Va.  Bottle  Co.,  81  Fed.  Rep.  993;;  Baxter 
p.  Camp,  71  Conn.  245;  Johnson  v.  Brown,  51  Ga.  498;  Kline  v.  Raymond,  70 
Ind.  271;  Andrews  v.  Burdick,  62  la.  714,  720;  Davis  r.  Campbell,  93  la. 
524;  Lee  v.  Alexander,  9  B.  Mon.  25;  Phoenix  Ins.  Co.  v.  McKernan,  100  Ky. 
97;  Osgood  v.  Stevenson,  143  Mass.  399;  Fletcher  v.  Minneapolis  Ins.  Co., 
80  Minn.  152;  Burton  p.  American  Ins.  Co.,  88  Mo.  App.  392;  Consaul  v. 
Sheldon,  35  Neb.  247 ;  Meyer  v.  Huneke,  55  N.  Y.  412 ;  Martin  p.  Tradesmen's 
Ins.  Co.,  101  N.  Y.  498;  Cline  v.  Goodale,  23  Oreg.  406;  American  Pub.  Co. 
r.  Fisher,  10  Utah,  147;  Consumers'  Ice  Co.  v.  Jennings,  100  Va.  719;  Schwalm 
v.  Mclntyre,  17  Wis.  232. 

»7  Nichols  v.  Johnson,  10  Conn.  192 ;  A.  A.  Cooper  Wagon  Co.  v.  Wooldridge, 
98  Mo.  App.  648;  Schmidt  v.  Quinzel,  55  N.  J.  Eq.  792.  So  where  several 
writings  are  essentia)  to  prove  the  agreement  of  the  parties,  fraudulent  altera- 
tion of  one  invalidates  all.    Meyer  v.  Huneke,  55  N.  Y.  412. 


ALTERATION  :    WHEN    EXCUSABLE.  853 

tion  by  a  stranger  still  operates  as  a  discharge  of  a  contract,  pro- 
vided the  instrument  was  at  the  time  in  the  custody  of  the  obligee, 
for  it  is  said  that  "  a  party  who  has  the  custody  of  an  instrument 
made  for  his  benefit  is  bound  to  preserve  it  in  its  original  state."  98 
Why  he  should  be  bound  to  more  care  to  prevent  alteration  by  a 
stranger  than  to  prevent  the  total  loss  or  destruction  of  the  instru- 
ment, is  difficult  to  see.  An  alteration  made  under  a  mistake  of  fact 
has  been  held  not  fatal;99  but  otherwise  if  the  alteration  was  inten- 
tionally made  and  the  mistake  was  only  as  to  the  legal  effect  of  the 
contract.1  In  this  country  the  more  equitable  rule  prevails  that  altera- 
tion by  a  stranger  or  spoliation,  as  it  is  often  called,  will  not  discharge 
the  obligation.2  The  rule  is  the  same  for  alteration  by  the  obligee's 
agent  or  attorney  if  the  obligee  himself  did  not  authorize  it;3  or  by 

98  Davidson  v.  Cooper,  13  M.  &  W.  343,  352. 

99Raper  v.  Birkbeck,  15  East,  17;  Wilkinson  v.  Johnson,  3  B.  &  C.  428; 
Prince  v.  Oriental  Bank,  3  App.  Cas.  325.  These  were  cases  where  the  can- 
cellation under  a  mistake  of  fact  of  the  name  of  a,  party  to  an  obligation  was 
held  not  to  discharge  the  party. 

iBank  of  Hindustan  v.  Smith,  36  L.  J.  (N.  S.)  C.  P.  241.  The  distinction 
between  this  case  and  those  in  the  preceding  note  seems  trivial.  The  court 
may  well  have  been  influenced  by  the  fact  that  there  were  in  this  case  equi- 
table grounds  for  holding  the  defendant  not  liable,  aside  from  any  question 
of  alteration. 

2  United  States  v.  Hatch,  1  Paine,  336 ;  Davis  v.  Carlisle,  6  Ala.  707 ;  Nichols 
v.  Johnson,  10  Conn.  192 ;  Orlando  v.  Gooding,  34  Fla.  244 ;  Condict  v.  Flower, 
106  111.  105;  Paterson  v.  Higgins,  58  111.  App.  268;  State  v.  Berg,  50  Ind. 
496;  Eekert  v.  Louis,  84  Ind.  99;  Lee  v.  Alexander,  9  B.  Mon.  25;  Blakey 
v.  Johnson,  13  Bush,  197;  Chessman  v.  Whittemore,  23  Pick.  231;  Drum  v. 
Drum,  133  Mass.  566;  Church  v.  Fowle,  142  Mass.  12;  Croft  v.  White,  36  Miss. 
455 ;  Medlin  v.  Platte  Co.,  8  Mo.  235 ;  Moore  v.  Ivers,  83  Mo.  29 ;  Fisherdick 
v.  Hutton,  44  Neb.  122,  127;  Perkins  Windmill  Co.  v.  Tillman,  55  Neb.  652; 
Schlageck  ('.  Widhalm,  59  Neb.  541;  Goodfellow  v.  Tnslee,  1  Beas.  355;  Rees 
v.  Overbaugh,  6  Cow.  746;  Lewis  v.  Payn,  8  Cow.  71;  Dinsmore  v.  Duncan,  57 
N.  Y.  573;  Martin  v.  Tradesmen's  Ins.  Co.,  101  N.  Y.  498;  Evans  V.  William- 
son, 79  N.  C.  86;  Whitlock  v.  Manciet,  10  Oreg.  166;  NefF  v.  Horner,  63  Pa. 

'  327;  Robertson  v.  Hay,  91  Pa.  242;  Pope  v.  Chafee,  14  Rich.  Eq.  69;  Harrison 
v.  Turbeville,  2  Humph.  242;  Boyd  v.  MeConnell,  10  Humph.  68;  Murray 
v.  Peterson,  6  Wash.  418;  Union  Nat.  Bank  v.  Roberts,  45  Wis.  373.  See  also 
cases  cited  in  the  following  note.  So  in  Ireland.  Swinev  v.  Barry,  1  Jones,  109. 
Contra,  Den  v.  Wright,  2  Halst.  175,  177. 

3  Forbes  v.  Taylor,  139  Ala.  286 ;  Langenberger  v.  Kroeger,  48  Cal.  147 ; 
Brooks  v.  Allen,  62  Ind.  401;  Mathias  v.  Leathers,  99  la.  18,  21;  Nickerson 
v.  Swett,  135  Mass.  514;  White  Co.  v.  Dakin,  86  Mich.  581;  Christian 
County  Bank  v.  Goode,  44  Mo.  App.  129;  Hays  v.  Odom,  79  Mo.  App.  425; 
Hunt  v.  Gray,  35  N.  J.  L.  227;  Rees  v.  Overbaugh,  6  Cow.  746;  Casoni 
v.  Jerome,  58  N.  Y.  321;  Martin  v.  Tradesmen's  Ins.  Co.,  101  N.-  Y.  498- 
GJeason  v.  Hamilton,  64  Hun,  96,  138  N.  Y.  353;  Waldorf  v.  Simpson,  15 
N.  Y.  App.  Div.  297 ;  Fullerton  v.  Sturges,  4  Ohio  St.  529 ;  Acme  Harvester 
Co.  v.  Butterfield,  12  S.  Dak.  91;  Port  Huron  Co.  v.  Sherman,  14  S.  Dak.  461; 
Deering  Harvester  Co.  v.  White,  72  S.  W.  Rep.  962  (Tenn.)  ;  Bigelow  v. 
Stilphen,  35  Vt.  521;  Yeager  v.  Musgrave,  28  W.  Va.  90;  Jesup  v.  City  Bankj 
14  Wis.  331.  But  see  contra,  White  Sewing  Machine  Co.  v.  Saxon,  121  Ala. 
399;  Hollingsworth  v.  Holbrook,  80  la.  151  (cp.  Mathias  v.  Leathers,  89  la! 
18)  ;  Gettysburg  Nat.  Bank  v.  Chisholm,  169  Pa.  564.  See  also  Pew  v. 
Laughlin,   3   Fed.  Rep.   39;   Bowser  v.   Cole,  74  Tex.   222.     If  the  principal 


854  DISCHARGE    OF    CONTEACTS. 

a  trustee.4  So  far  as  negotiable  instruments  are  concerned,  however, 
a  reversion  to  the  English  doctrine  in  regard  to  alteration  by  a 
stranger  has  been  brought  about  in  states  which  have  enacted  the 
Negotiable  Instruments  Law.  The  draftsman  of  that  law  copied  the 
section  on  the  subject  from  the  English  Bills  of  Exchange  Act.5 

Alteration  by  the  obligor.  An  unauthorized  alteration  by  the  obligor 
is,  of  course,  not  allowed  to  affect  the  rights  of  the  obligee.6 

Innocent  alteration  by  the  obligee.  The  propriety  of  relieving  a  party 
who  has  altered  a  written  contract  by  allowing  secondary  evidence 
of  the  contract  depends  on  his  freedom  from  fraudulent  or  wrong- 
ful intent  in  making  the  alteration.  Therefore,  if  the  alteration  was 
made  to  express  more  clearly  the  intent  of  the  parties  or  to  correct 
a  real  or  supposed  mistake,  the  contract  is  in  this  country  generally 
held  not  avoided.7    Similarly,  a  cancellation  by  mistake  is  not  fatal.8 

seeks  to  take  the  benefit  of  the  agent's  alteration,  the  effect  is  the  same  as  if 
the  principal  had  himself  made  the  alteration.  Nichols  v.  Rosenfeld,  181 
Mass.  52.5;   Sherwood  c.  Merritt,  83  Wis.  232. 

4  Flinn  v.  Brown,  6  Rich.  L.  209.  But  see  contra,  as  to  an  administrator, 
McMurtrev  r.  Sparks,  71  Mo.   126. 

5  Keg.  Inst.  Act.,  §  205,  following  Bills  of  Exch.  Act,  §  64.  See  16  Harv. 
L.  Rev.  260;  Hoffman  v.  Planters'  Bank,  99  Va.  480.  But  see  Jeffrey  v. 
Rosenfeld,  179  Mass.  506. 

sCutts  v.  United  States,  1  Gall.  69;  United  States  r.  Spalding,  2  Mason 
478;  Lane  v.  Pacific,  etc.,  Ry.  Co.,  67  Pac.  Rep.  656  (Idaho);  Osborn  v. 
Andrees,  37  Kan.  301;  Hughes  v.  Littlefield,  18  Me.  400;  Natchez  v.  Minor, 
17  Miss.  544;   Fritz  v.  Commissioners,  17  Pa.  130. 

7  Brutt  v.  Picard,  Ryan  &  M.  37  ;  Winnipisiogee  Paper  Co.  v.  New  Hamp- 
shire Land  Co.,  59  Fed.  Rep.  542;  Montgomery  R.  Co.  v.  Hurst,  9  Ala.  513; 
Webb  v.  Mullins,  78  Ala.  Ill;  Turner  i:.  Billagram,  2  Cal.  520;  Sill  v.  Reese, 
47  Cal.  294;  Sullivan  r.  California  Realty  Co.,  75  Pac.  Rep.  767  (Cal.); 
Hotel  Lanier  Co.  v.  Johnson,  103  Ga.  604;  Burch  v.  Pope,  114  Ga.  334; 
Miller  v.  Slade,  116  Ga.  772;  Shirlev  r.  Swafford,  45  S.  E.  Rep.  722  (Ga.)  ; 
Day  v.  Fort  Scott  Co.,  53  111.  App.  105;  Osborn  v.  Hall,  160  Jnd.  153;  Busjahn 
r.  McLean,  3  Ind.  App.  281;  Andrews  v.  Burdick,  62  Ta.  714;  Barlow  v. 
Buckingham,  68  la.  169;  Duker  r.  Franz,  7  Bush,  273;  Thornton  r.  Appleton, 
29  Me.  298;  Croswell  v.  Labree,  81  Me.  44;  Outoun  v.  Dulin,  72  Md.  536; 
Ames  v.  Colburn,  1 1  Gray.  390 ;  Produce  Exchange  Trust  Co.  v.  Bieberbach, 
176  Mass.  577;  James  v.  Tilton,  183  Mass.  275;  McRaven  r.  Crisler,  53  Miss. 
542 ;  Foote  e.  Hambrick,  70  Miss.  157 ;  Cole  v.  Hills,  44  N.  H.  227 ;  Seymour 
v.  Mickey,  15  Ohio  St.  515;  Wallace  v.  Jewell,  21  Ohio  St.  163;  Cline  V. 
Goodale,  "23  Oreg.  406;  Wallace  v.  Tice,  32  Oreg.  283  (cp.  Savage  r.  Savage, 
36  Oreg.  268)  ;  Express  Pub.  Co.  e.  Aldine  Press,  126  Pa.  347;  Gunter  r.  Addy, 
58  S.  C.  178;  McClure  r.  Little,  15  Utah,  379;  Wolferman  r.  Bell,  6  Wash. 
84 ;  Young  r.  Wright,  4  Wis.  144 ;  Gordon  v.  Robertson,  48  Wis.  493.  But  see 
contra,  Warpole  v.  Ellison,  4  Houst.  322;  Kelly  r.  Trumble,  74  111.  428;  Soaps 
r.  Eichberg,  42  111.  App.  375,  381;  Hamilton  r.  Wood,  70  Ind.  306;  Letcher  r. 
Bates,  6  J.  J.  Marsh.  524;  Phoenix  Ins.  Co.  p.  McKernan,  100  Ky.  97,  103; 
Evans  v.  Foreman,  60  Mo.  449;  Bowers  r.  Jewell,  2  N.  H.  543;  Lewis  r. 
Schenck,  3  C.  E.  Green,  459;  Wegner  v.  State,  28  Tex.  App.  419.  And  see  also 
Green  r.  Sneed,  101  Ala.  205;  White  Sewing  Machine  Co.  r.  Saxon,  121  Ala. 
:;r;f):  Heath  r.  Blake,  28  S.  C.  406;  Capital  Bank  v.  Armstrong,  62  Mo.  59; 
Otto  r.  Halff,  89  Tex.  384. 

»Lowremore  v.  Berry,  19  Ala.  130;  Brett  v.  Marston,  45  Me.  401;  Russell 
r.  Longmoor,  29  Neb.  209.     See  also  Chamberlin  v.  White,  79  111.  549. 


altl:;at;<;,\  :   when  excusable.  855 

Authorized  alteration  —  Sealed  instruments.  As  to  alterations  author- 
ized by  the  obligor,  the  common  law  made  a  distinction  between  an 
alteration  affecting  a  sealed  contract  and  one  affecting  other  writings. 
As  the  common  law  required  that  the  authority  of  an  agent  to  execute 
a  sealed  instrument  should  be  itself  under  seal,9  parol  authorization 
could  not  make  the  deed  in  its  altered  form  the  deed  of  the  obligor.10 
Nor  could  the  deed  be  valid  according  to  its  original  terms  for  the 
deed  in  that  form  was  destroyed  by  the  mere  fact  that  it  possessed 
no  longer  physical  identity  with  the  original  obligation.11  It  is 
plain,  however,  that  if  this  be  granted  the  obligee  should  be  relieved 
from  the  consequences  of  such  a  destruction  of  the  obligation,  and 
in  modern  times  wherever 'the  instrument  is  unenforceable  at  law  in 
its  altered  form,  secondary  evidence  would  be  allowed  to  prove  the 
original  terms  of  the  obligation,  and  if  valid  in  that  form  it  would 
be  enforced,12  or  if  the  Statute  of  Frauds  did  not  prevent,  equity 
should  reform  the  deed  to  conform  to  the  agreement  of  parties  or 
should  treat  it  as  if  reformed.13 

Contracts  within  the  Statute  of  Frauds.  Similar  reasoning  is  appli- 
cable if  the  law  requires  a  contract  of  the  kind  which  has  been  altered 
to  be  in  writing  signed  by  the  promisor.14 

9  Mechem  on  Agency,  §  93. 

io  Hibblewhite  v.  McMorine,  6  M.  &  W.  200;  United  States  v.  Nelson,  2 
Brock.  64;  Cross  v.  State  Bank,  5  Ark.  525;  Upton  v.  Archer,  41  Cal.  85; 
People  v.  Organ,  27  111.  27;  Simms  v.  Hervey,  10  la.  273;  Ayres  v.  Probasco, 
14  Kan.  175;  Burns  v.  Lynde,  6  Allen,  305;  Basford  v.  Pearson,  9  Allen,  387; 
Lindsley  v.  Lamb,  34  Mich.  509;  Williams  r.  Crutcher,  6  Miss.  71;  Blacknall 
v.  Parish,  6  Jones  Eq.  70;  Graham  v.  Holt,  3  Ired.  300;  Barden  v.  Souther- 
land,  70  N.  C.  528;  Martin  v.  Buffaloe,  121  N.  C.  34,  36;  Gilbert  v.  Anthony, 
1  Yerg.  69 ;  Mosby  v.  State,  4  Sneed,  324 ;  Walla  Walla  Co.  v.  Ping,  1  Wash. 
T.  339. 

If  the  alteration  is  made  before  delivery  by  an  agent  of  the  grantor  author- 
ized to  deliver,  the  grantor  is  held  bound  by  the  alteration,  if  not  broadly  on 
the  ground  that  parol  authority  is  good,  then  on  principles  of  estoppel. 
Allen  v.  Withrow,  110  U.  S.  119;  Swartz  v.  Ballou,  47  la.  188;  State  r. 
Tripp,  113  la.  698,  704;  Dolbeer  v.  Livingston,  100  Cal.  617;  Phelps  v.  Sulli- 
van, 140  Mass.  36;  Field  v.  Stagg,  52  Mo.  534;  Thummel  r.  Holden,  149  Mo. 
677,  684;  Cribben  v.  Deal,  21  Oreg.  211;  Van  Etta  v.  Evenson,  28  Wis.  33. 
Cp.  Vaca  Valley  E.  P.  v.  Mansfield,  84  Cal.  560.  If  a  new  delivery  of  the 
deed  is  made  after  the  alteration,  the  deed  is,  of  course,  binding  in  its  altered 
form.  De  Malarin  i'.  United  States,  1  Wall.  282;  Prettyman  v.  Goodrich,  23 
111.  330;  but  held  otherwise  if  the  new  delivery  was  made  without  knowledge 
of  the  alterations.     Nesbitt  v.  Turner,  155  Pa.  429. 

11  In  McNab  v.  Young,  81  111.  11,  it  was  held  that  the  objection  that  an 
authorized  insertion  was  made  after  execution  could  not  be  taken  by  one  not 
claiming  in  the  right  of  the  grantor. 

i2Gunter  v.  Addy,  58  S.  C.  178. 

l3Burnside  v.  Wayman,  49  Mo.  356;  McQuie  v.  Peay,  58  Mo.  56;  Bryant  v. 
Bank,  107  Tenn.  560.     See  also  Mohlis  v.  Trauffler,  91  la.  751. 

14  Upton  r.  Archer,  41  Cal.  85;  Ingram  r.  Little.  14  Ga.  173  (overruled  by 
Brown  v.  Colquitt,  73  Ga.  59;  Smith  r.  Farmers'  Mut.  Ins.  Assoc,  111  Ga. 
737 ) .     But  see  Bluck  v.  Gompertz,  7  Ex.  862 ;  Winslow  v.  Jones,  88  Ala.  496. 


856  DISCHAEGE    OF    CONTRACTS. 

Unsealed  contracts  —  Ratification.  If  the  writing  was  unsealed,  an  au- 
thorized alteration  is  binding  upon  both  parties,  and  the  altered  form 
of  the  contract,  not  the  original  form,  will  be  enforced.15  In  juris- 
dictions where  the  peculiar  doctrines  applicable  to  sealed  contracts 
are  no  longer  in  force,  the  same  result  is  necessarily  reached  as  to 
such  contracts,16  and  even  in  other  states,  for  practical  reasons,  the 
same  result  is  often  reached.17  Ratification,  subsequent  to  the  altera- 
tion, has  as  full  effect  as  authority  originally  granted  ;18  and  ratifica- 
tion may  be  shown  by  any  conduct  from  which  assent  can  fairly  be 
implied.19 

Ratification  of  alteration  of  sealed  instrument.  Indeed  ratification  may 
be  more  effectual  in  the  case  of  a  sealed  instrument  than  prior  author- 
ity could  have  been.    A  sealed  instrument  takes  its  validity  from  de- 

15  Gardiner  v.  Harback,  21  111.  129;  Grimsted  v.  Briggs,  4  la.  559;  Stewart 
o.  First  Nat.  Bank,  40  Mich.  348;  Wilson  v.  Henderson,  17  Miss.  375; 
Humphreys  v.  Guillow,  13  X.  H.  385;  Taddiken  v.  Cantrell,  69  N.  Y.  597; 
Schmelz  v.  Rix,  95  Va.  509.     See  also  eases  in  the  following  notes. 

i°Dolbeer  v.  Livingston,  100  Cal.  617;  Gardiner  v.  Harbaek,  21  111.  129; 
Swartz  v.  Ballou,  47  la.  188;   State  v.  Tripp,  113  la.  698,  704. 

iTSpeake  v.  United  States,  9  Cranch,  28;  Drury  v.  Foster,  2  Wall.  24,  33: 
Woodbury  r.  Allegheny,  etc.,  Co.,  72  Fed.  Rep.  371;  Bridgeport  Bank  v.  New 
York,  etc.,  R.  Co.,  30  Conn.  274;  Inhabitants  v.  Huntress,  53  Me.  89;  State 
v.  Young,  23  Minn.  551;  Field  v.  Stagg,  52  Mo.  534;  Otis  v.  Browning,  59 
Mo.  App.  326;  Cribben  v.  Deal,  21  Oreg.  211;  Fitzpatrick  v.  Fitzpatrick,  6 
R.  I.  64;  Bank  v.  Hammond,  1  Rich.  L.  281;  Lamar  v.  Simpson,  1  Rich.  Eq. 
71;    Schintz  v.  McManamy,  33  Wis.  301. 

isSpeake  r.  United  States,  9  Cranch,  28;  Goodspeed  v.  Cutler,  75  111.  534; 
Scott  i'.  Bibo,  48  111.  App.  657;  Emerson  v.  Opp,  9  Ind.  App.  581;  Pelton  v. 
Prescott,  13  la.  567;  Brownings.  Gosnell,  91  la.  448;  Fletcher  v.  Minneapolis 
Ins.  Co.,  80  Minn.  152;  Workman  r.  Campbell,  57  Mo.  53;  Humphreys  v. 
Guillow,  13  N.  H.  385;  Conable  v.  Smith,  61  Hun,  185;  Wester  v.  Bailey,  118 
N.  C.  193;  Matlock  v.  Wheeler,  29  Oreg.  64;  Jacobs  v.  Gilreath,  45  S.  C.  46; 
Ratcliff  v.  Planters'  Bank,  2  Sneed,  425;  Chezum  v.  McBride,  21  Wash.  558. 
But  held  otherwise  as  to  a  surety.  Mulkey  v.  Long,  5  Idaho,  213;  Warren  i\ 
Fant,  79  Ivy.  1  (contra,  Bell  v.  Mahin,  69  la.  408.  See  also  Knoebel  v. 
Kincher,  33  111.  308).  Where  the  original  alteration  amounted  to  a  forgery, 
it  was  held  that  ratification  was  not  possible.  Wilson  r.  Hayes,  40  Minn. 
531  (contra,  Marks  v.  Schram,  109  Wis.  452.  See  also  Ofenstein  v.  Bryan,  20 
App.  D.  C.  1 ) .     See  also  supra,  p.  443. 

19  Barnsdall  r.  Boley,  119  Fed.  Rep.  191;  Montgomery  p.  Crossthwait.  90 
Ala.  553;  Dickson  v.  Bamberger,  107  Ala.  293;  Payne  v.  Long,  121  Ala.  385, 
131  Ala.  438;  Jackson  r.  Johnson,  67  Ga.  167;  Yocum  v.  Smith,  63  111.  321; 
Oswego  l\  Kellogg,  99  111.  590;  Linington  v.  Strong,  107  111.  295;  Canon  v. 
Grisby,  116  111.  151;  Bell  V.  Mahin,  09  la.  408;  Dover  v.  Robinson,  64  Me. 
1S3;  Ward  v.  Allen,  2  Met.  53;  Prouty  v.  Wilson,  123  Mass.  297;  Stewart  r. 
First  Nat.  Bank,  40  Mich.  348;  Janney  V,  Goehringer,  52  Minn.  428;  Board 
v.  Gray,  61  Minn.  242;  Evans  v.  Foreman,  60  Mo.  449;  Reed  i\  Morton,  24 
Neb.  760;  Perkins  Windmill  Co.  r.  Tillman,  55  Neb.  652;  Wright  v.  Buck,  62 
>v.  H.  650;  Conable  r.  Keeney,  61  Hun,  624:  Jacobs  ).  Gilreath,  45  S.  C.  46. 
(']>•  State  r.  Churchill,  48  Ark.  426;  Benedict  v.  Miner,  58  111.  19;  Fraker  r. 
Cullum,  21  Kan.  555;  Fraker  r.  Little,  24  Kan.  598;  German  Bank  r.  Dunn, 
62  Mo.  79;  Kennedy  v.  Lancaster  Bank,  18  Pa.  347;  McDnniel  v.  Whitsett, 
96  Tenn.  10. 


ALTERATION  :    WHEN    EXCUSABLE.  857 

livery,  and  the  maker  may  adopt  a  signature  or  seal  previously  made 
and  make  them  his.  own  by  delivering  them  as  his.  A  redelivery 
therefore  of  a  sealed  instrument  by  the  obligor  after  it  has  been 
altered  will  make  it  binding  in  its  altered  form.  A  prior  consent 
to  an  alteration  can  hardly  amount  to  a  redelivery  'after  the  altera- 
tion, but  if  the  maker  himself  assists  or  takes  part  in  the  alteration 
it  would  generally  be  easy  to  find  a  new  delivery,  and  courts  which, 
like  those  of  England,  hold  that  there  is  always  a  delivery  when  the 
maker  of  a  deed  indicates  his  assent  to  be  bound  by  it  as  a  completed 
instrument  have  no  difficulty  in  finding  delivery  when  the  maker 
after  an  alteration  has  been  made  ratifies  it.20  But  if  acknowledg- 
ment21 or  witnesses22  are  necessary  to  the  validity  of  the  deed,  the 
assent  of  the  parties,  even  though  amounting  to  a  redelivery,  would 
be  insufficient  to  make  the  alterations  part  of  the  deed. 

Several  obligors.  If  there  are  several  obligors  bound  by  an  obliga- 
tion, a  material  alteration  of  the  obligation  made  with  the  assent  of 
one  or  more  parties  will  be  binding  upon  those  who  assent,23  but  will 
totally  avoid  the  obligation  of  any  who  do  not  assent.24 

20  Hudson  v.  Revett,  4  Bing.  368 ;  Winslow  v.  Jones,  88  Ala.  496 ;  Stiles  v. 
Probst,  09  111.  382;  Abbott  v.  Abbott,  189  111.  488,  497;  Bassett  v.  Bassett,  55 
Me.  127;  Vidvard  v.  Cushman,  35  Hun,  18;  Wester  v.  Bailey,  118  N.  C.  193. 

21  Booker  v.  Stivender.  13  Rich.  L.  85. 

22Drury  v.  Foster,  2  Wall.  24;  Bryant  v.  Bank,  107  Tenn.  560,  567.  See 
also  Keene  Mach.  Co.  v.  Barratt,  100  Fed.  Rep.  590  (C.  C.  A.).  But  the  deed 
may  be  good  as  between  the  parties.  Walkley  v.  Clarke,  107  la.  451;  Bryant 
v.  Bank,  107  Tenn.  560. 

23Hochmark  v.  Richler,  16  Col.  263;  Browning  v.  Gosnell,  91  la.  448; 
Rhoades  v.  Leach,  93  la.  337;  Brownell  v.  Winnie,  29  N.  Y.  400,  409. 

24  Gardner  v.  Walsh,  5  E.  &  B.  83;  Martin  v.  Thomas,  24  How.  315;  Mundy 
V.  Stevens,  61  Fed.  Rep.  77;  State  v.  Churchill,  48  Ark.  426;  State  v.  Smith, 
9  Houst.  143;  Gardiner  v.  Harback,  21  111.  129;  State  v.  Van  Pelt,  1  Ind. 
304 ;  Zimmerman  v.  Judah,  13  Ind.  286,  22  Ind.  388 ;  Horn  v.  Newton  Bank, 
32  Kan.  518;  Warring  v.  Williams,  8  Pick.  322;  Greenfield  Bank  v.  Stowell, 
123  Mass.  196;  Board  v.  Gray,  61  Minn.  242;  Love  v.  Shoape,  1  Miss.  508; 
Morrison  v.  Garth,  78  Mo.  434;  State  v.  Findley,  101  Mo.  368;  McMillan  v. 
Hefferlin,  18  Mont.  385;  Davis  v.  Bauer,  41  Ohio  St.  257;  Wills  v.  Wilson,  3 
Oreg.  308;  Rittenhouse  v.  Levering,  6  Watts  &  S.  190;  Broughton  v.  Fuller, 
9  Vt.  373;  Bank  of  Ohio  Valley  v.  Lockwood,  13  W.  Va.  392. 

See  also  Reese  v.  United  States,  9  Wall.  13;  United  States  v.  Freel,  186 
U.  S.  309;  People  v.  Kneeland,  31  Cal.  288;  Cotten  v.  Williams,  1  Fla.  42; 
Thompson  f.  Williams,  1  Fla.  64 ;  Ames  Cas.  Suretyship  246,  n. 

The  court  will  not  restore  such  an  obligation  to  its  original  form,  so  as  to 
make  sureties  liable  again  on  the  obligation  which  they  assumed.  Ruby  v 
Talbott,  5  N.  Mex.  251 ;  Fulmer  r.  Seitz,  68  Pa.  237.  Cp.  Davis  v.  Shafer,  50 
Fed.  Rep.  764;   Nickerson  v.  Swett,  135  Mass.  514. 

Of  course,  if  there  are  entirely  distinct  obligations  created  by  the  same 
instrument,  an  alteration  of  one  obligation  only  does  not  invalidate  the 
others.  But  the  fact  that  an  obligation  is  several  at  law  is  not  conclusive. 
Collins  v.  Prosser,  1  B.  &  C.  682,  which  held  that  tearing  off  the  seal  of  one 
obligor    on    a    several   bond    thereby    discharging   him   did    not    destroy   the 


858  DISCHAEGE    OF    CONTRACTS. 

Signature  made  in  ignorance  of  alteration.  If  an  obligor  signs  an  obliga- 
tion after  it  has  been  signed  by  others,  in  ignorance  of  the  fact  that 
the  obligation  has  been  altered  or  by  his  signature  is  altered  and  that 
thereby  the  other  obligors  are  discharged,  the  obligor  signing  last  is 
also  discharged  if  the  obligee  is  cognizant  of  the  facts  before  accept- 
ing the  obligation.  The  signature  of  the  last  obligor  does  not  bind 
him,  because  given  under  a  mistake,  induced  by  what  is  equivalent 
to  misrepresentation.25  If,  however,  the  obligee  was  not  notified  of 
the  alteration  either  constructively  by  the  appearance  of  the  docu- 
ment or  actually,  his  legal  right  to  enforce  the  obligation  cannot  be 
defeated  by  the  unknown  equity  of  the  deceived  obligor.26 

Restoration.  If  a  contract  has  been  avoided  by  alteration,  the  sub- 
sequent restoration  of  the  writing  to  its  original  form  without  the 
assent  of  the  obligor  will  not  restore  the  legal  obligation.27  But  if 
the  alteration,  because  made  by  mistake  or  without  wrongful  intent, 
was  not  such  as  to  avoid  the  obligation,  and  the  document  has  been 
restored  to  its  original  form,  it  will  be  rec'eived  in  evidence  and  en- 
forced.28 


obligors,  is  clearly  erroneous.  The  court  admit  that  the  right  of  contribution 
in  equity  was  affected,  and  this  is  surely  material. 

In  Brownell  v.  Winnie,  29  N.  Y.  400,  the  name  of  an  obligor  was  added  as 
maker  to  a  note,  and  the  court,  in  holding  the  alteration  immaterial,  relied  on 
the  fact  that  the  obligation  created  was  several  rather  than  joint  and  several. 
This  alone  would  not  support  the  decision,  but  as  the  added  signer  was  in 
fact  a  surety  the  conclusion  is  sound,  since  the  original  maker's  liability  in 
law  and  equity  remained  unchanged. 

25ElIesmere  Co.  v.  Cooper,  [1896]  1  Q.  B.  75;  People  v.  Kneeland,  31  Ca!. 
288 ;  State  v.  Craig,  58  la.  238 ;  Howe  r.  Peabodv,  2  Gray,  556 ;  State  v.  Mc- 
Gonigle,  101  Mo.  353.     Cp.  Evans  r.  Partin,  22  Ky.  L.  Rep.  20. 

28Crandall  v.  Auburn  Bank,  61  Ind.  349;  Rhoades  v.  Leach,  93  la.  337; 
Ward  v.  Hackett,  30  Minn.  150.  And  see  numerous  cases  cited  in  Ames  Cas. 
Suretyship  305,  n.  to  the  effect  that  in  general  fraud  or  misrepresentation 
inducing  the  surety  to  enter  into  an  obligation  is  no  defense  against  a  cred- 
itor innocent  and  ignorant  of  the  facts.  This  principal  was  lost  sight  of  by 
the  court  in  the  contrary  decision  of  Ellesmere  Co.  v.  Cooper,  [1896]  1 
Q.  B.  75. 

2?  Wood  r.  Steele,  6  Wall.  80 ;  Warpole  r.  Ellison,  4  Houst.  322 ;  Hayes  v. 
Wagner,  SO  111.  390,  401;  Robinson  r.  Reed,  46  la.  219;  Shepard  v.  Whet- 
stone, 51  la.  457;  Cotton  v.  Edwards,  2  Dana,  106;  Locknane  r.  Emmerson,  11 
Bush,  69;  Citizens'  Nat.  Bank  v.  Richmond,  121  Mass.  110;  McMurtrey  v. 
Sparks,  71  Mo.  App.  126;  McDaniel  v.  Whitsett,  96  Tenn.  10;  Newell  v. 
Mayberry,  3  Leigh,  250. 

28  Rogers  v.  Shaw,  59  Cal.  260;  Kountz  v.  Kennedy,  63  Pa.  187  (see  remarks 
on  this  case  in  Citizens'  Bank  v.  Williams,  174  Pa.  66). 


ALTERATION  :    WHEN    MATERIAL.  859 

Material  and  Immaterial  Alterations- 
Effect  of  immaterial  alterations.  It  was  laid  down  in  Pigofs  case20 
that  even  an  immaterial  alteration  if  made  by  the  obligee  avoids  a 
deed..  But  in  Sanderson  v.  Symonds?0  the  English  court  refused  in 
apply  the  rule  to  a  policy  of  insurance,  and  in  Aldous  v.  Cornwellm 
this  resolution  in  Pigofs  case  was  dissented  from.  It  has  been  fol- 
lowed in  some  cases  in  this  country/2  but  most  of  them  were  decided 
a  number  of  years  ago,  and  no  such  severe  rule  is  generally  in  force. 
As  has  been  shown,  even  material  alterations  by  the  obligee,  when 
innocently  made,  do  not  bar  the  obligee's  rights.33  This  must  be 
true  a  fortiori  of  immaterial  alterations.  And  the  prevailing  doctrine 
is  that  no  immaterial  alteration  will  affect  rights  and  liabilities  under 
a  writing,  irrespective  of  the  person  by  whom  the  alteration  was 
made  or  his  purpose  in  making  it.34 

What  alterations  are  material.  The  following  alterations  have  been 
held  material:  erasing  the  obligee's  name  and  substituting  the  name 
of  another  as  obligee;35  changing  the  name  of  the  obligor  in  a  deed, 

29  Supra,  p.  845. 

so  l  Brod.  &  Bing.  426. 

31  L.  R.  3  Q.  B.  573. 

32Herdman  v.  Bratten,  2  Har.  (Del.)  396;  Johnson  v.  Bank,  2  B.  Mon. 
310,  311  j  Wickes  v.  Caulk,  5  Har.  &  J.  36;  Haskell  v.  Champion,  30  Mo. 
136;  First  Bank  v.  Fricke,  75  Mo.  178;  Hord  v.  Taubman,  79  Mo.  101;  Kelly 
v,  Thuey,  143  Mo.  422;  Bailey  v.  Gilman  Bank,  99  Mo.  App.  571;  Vanauken 
v.  Hornback,  2  Green  (N.  J.),  178;  Wright  v.  Wright,  2  Halst.  175;  Jones  r. 
Crowley,  57  N.  J.  L.  222;  Jaekson  v.  Malin,  15  Johns.  293;  Nunnery  v. 
Cotton,  1  Hawks,  222;  Morris  v.  Vanderen,  1  Dall.  64;  Crockett  v.  Thomason, 
5  Sneed,  342,  344. 

33  Supra,  p.  853. 

34  First  Bank  v.  Weidenbeck,  97  Fed.  Rep.  896,  897  (C.  C.  A.);  Prim  v. 
Hammel,  134  Ala.  652;  Nichols  v.  Johnson,  10  Conn.  192;  Reed  v.  Kemp,  16 
111.  445 ;  Ryan  v.  First  Bank,  148  111.  349 ;  Lisle  v.  Rogers,  18  B.  Mon.  528 ; 
Tranter  v.  Hibbard,  108  Ky.  265 ;  Cushing  v.  Field,  70  Me.  50 ;  Move  v.  Hern- 
don,  30  Miss.  110;  Burnham  v.  Ayer,  35  N.  H.  351;  Robertson  v.  Hay,  91  Pa. 
242;  Note  Holders  v.  Funding  Board.  16  Lea,  46. 

36  Sneed  v.  Sabinal  Co.,  71  Fed.  Rep.  493,  73  Fed.  Rep.  925  (C.  C.  A.)  ; 
Horst  v.  Wagner,  43  la.  373;  Bell  r.  Mahin,  69  la.  408;  Horn  v.  Newton 
Bank,  32  Kan.  518;  Dolbier  r.  Norton,  17  Me.  307;  Stoddard  r.  Penniman, 
108  Mass.  366;  Aldrieh  v.  Smith,  37  Mich.  -IIP;  German  Bank  r.  Dunn,  62 
Mo.  79;  Robinson  v.  Berryroan,  22  Mo.  App.  509;  Erickson  r.  First  Bank,  44 
Neb.  622;  Cumberland  Bank  v.  Penniman,  1  Halst.  215;  Gillette  v.  Smith,  18 
Hun,  10;  Davis  v.  Bauer,  41  Ohio  St.  257;  Hoffman  v.  Planters'  Bank,  99  Va. 
480.  See  also  Park  v.  Glover,  23  Tex.  469 ;  Broughton  v.  Fuller,  9  Vt.  373. 
Contra,  Latshaw  ».  Hiltebeitel,  2  Penny.  257. 

Changing  the  name  of  a  special  indorsee  in  a  note  is  therefore  material 
(Grimes  v.  Piersol,  25  Ind.  246),  or  adding  a  name  of  another  person  on  a  rail- 
road mileage-book  as  one  entitled  to  ride.  Holden  v.  Rutland  R.  Co.,  73  Vt. 
317.  But  changing  the  name  of  the  insured  in  a  policy  from  the  name  of  the 
ag-ent  of  mortgagors  to  the  name  of  a  trustee  for  them,  the  loss  being  made 


860  DISCHARGE    OF    CONTRACTS. 

who  in  fact  signed  as  agent  but  did  not  so  indicate  on  the  deed, 
to  the  name  of  the  principal;36  or  changing  the  signature  of  an 
obligor  so  as  to  make  the  obligation  purport  to  be  that  of  a  cor- 
poration37 or  firm38  instead  of  an  individual,  or  that  of  an  individual 
instead  of  a  corporation,39  or  that  of  a  surety  instead  of  a  principal.40 
Erasing  the  name  of  a  joint  or  prior  obligor,41  and  changing  the 
amount,  time  of  payment,  place  of  payment,  or  rate  of  interest  are 
obviously  material,  as  are  the  addition  of  words  of  negotiability,42  or 
of  a  cause  requiring  payment  in  gold;43  a,  waiver  of  demand  and 
notice  written  over  a  blank  indorsement;44  the  insertion  of  words  of 

payable,  both  before  and  after  the  alteration,  to  the  mortgagee,  was  held  im- 
material since  it  effected  no  material  change  in  the  ultimate  rights  under 
the  policy.     Martin  r.  Tradesmen's  Ins.  Co.,  101  N.  Y.  498. 

The  addition  of  the  word  "  junior  "  to  the  name  of  the  grantee  in  a  deed 
was  held  immaterial,  as  the  only  effect  was  to  designate  more  clearly  the 
grantee  actually  intended.  Coit  v.  Starkweather,  8  Conn.  289.  So  the  ad- 
dition of  "  with  the  will  annexed,"  after  the  word  "  administrator."  C'asoni 
v.  Jerome,  58  N.  Y.  315. 

But  otherwise  of  an  addition  of  a  designation,  which  makes  the  payee  in 
effect  different.  Hodge  v.  Farmers'  Bank,  7  Ind.  App.  94  (cashier)  ;  First 
Bank  r.  Fricke,  75  Mo.  178  (president);  York  r.  Janes,  43  N.  J.  L.  332 
( collector ) . 

38  North  v.  Henneberry, .  44  Wis.  306.  But  erasure  of  an  initial  of  the 
grantor's  name  in  a  deed  is  immaterial,  where  no  change  in  the  person  is 
thereby  intended  or  indicated.  Banks  v.  Lee,  73  Ga.  25.  See  also  Chadwick 
e.  Eastman,  53  Me.  12. 

37  Sheridan  v.  Carpenter,  61  Me.  83. 

38  Montgomery  v.  Crossthwait,  90  Ala.  553  (though  the  alteration  was  made 
by  one  having  no  power  to  bind  the  firm)  ;  Haskell  v.  Champion,  30  Mo.  136. 

39  Texas  Printing  Co.  v.  Smith,  14  S.  W.  Rep."  1074   (Tex.  App.). 

40  Laub  v.  Paine,  46  la.  550. 

«  Smith  v.  United  States,  2  Wall.  219;  Gillett  v.  Sweat,  6  111.  475;  State 
v.  Griswold,  32  Ind.  313;  State  v.  Craig,  58  la.  238;  Bracken  Co.  v,  Daum,  80 
Ky.  388;   State  v.  Findley,  101  Mo.  217;  Blanton  v.  Commonwealth,- 91  Va.  1. 

But  not  if  the  obligor  whose  name  was  erased  was  an  infant  and  had  repudi- 
ated his  contract.     Young  v.  Currier,  63  N.  H.  419. 

42  Many  authorities  as  to  such  changes  in  negotiable  paper  are  collected  in 
1  Ames  Cas.  Bills  and  Notes  447,  448;  2  Century  Digest,  241  seq. 

In  Tranter  v.  Hibbard,  108  Ky.  265,  a  note  was  altered  by  writing  the  word 
"  fixed  "  after  the  date  of  payment,  which  is  equivalent  to  "  without  grace." 
By  the  law  of  Kentucky  such  negotiable  paper  only  as  is  discounted  at  a  bank 
is  entitled  to  grace.  The  note  in  question  never  was  so  discounted,  and  the 
court  therefore  held  the  alteration  immaterial,  though  admitting  the  note 
might  have  been  discounted.  The  case  seems  wrong.  The  alteration  pur- 
ported to  give  the  payee  an  added  right  to  discount  the  note  without  entitling 
the  maker  to  grace.  The  fact  that  the  payee  did  not  exercise  this  right  can- 
not make  any  difference. 

Similarly  changing  the  penal  sum  in  n  bond.  Howe  v.  Peabody,  2  Gray, 
556;   Board  v.  Gray,   61  Minn.  242. 

43  Hanson  v.  Crawley,  41  Ga.  303;  Bridges  v.  Winters,  42  Miss.  135;  Fox- 
worthv  r.  Colbv,  64  Neb.  216;  Church  v.  Howard,  17  Hun,  5;  Darwin  v.  Ripley, 
63  N.'C.  318;   Wills  r.  Wilson,  3  Oreg.  308;  Bogarth  v.  Breedlove,  39  Tex.  561. 

44  Andrews  o.  Simms,  33  Ark.  771;  Davis  v.  Eppler,  38  Kan.  629;  Farmer  v. 
Rand,  16  Me.  453;  Schwartz  v.  Wilmer,  90  Md.  136;  Harnett  v.  Holdrege,  97 
N.  W.  Rep.  443   (Neb.). 


ALTERATION  :    WHEN    MATERIAL.  861 

guaranty  over  such  an  indorsement,46  unless  the  indorsees  intention 
was  in  fact  to  be  liable  as  a  guarantor;46  the  addition  of  other  prop- 
erty to  that  described  in  a  deed  or  mortgage;47  the  insertion  in  a 
mortgage  of  a  statement  that  it  was  given  to  secure  other  debts  be- 
sides that  for  which  it  was  in  fact  given;48  the  insertion  in  a  bond 
for  title  of  a  provision  that  the  vendee  shall  have  immediate  pos- 
session;49 the  insertion  or  clteration  of  the  date  if  that  results  in 
altering  the  legal  effect  of  the  instrument,  as  by  changing  the  day 
of  maturity  ;50  the  addition51  or  cancellation62  of  a  seal  after  the  sig- 
nature of  an  obligor,  unless  a  seal  would  in  no  way  alter  the  legal 
effect  of  the  document.53 

Alterations  advantageous  to  the  obligor.  An  alteration  is  none  the  less 
material  because  the  change  in  the  contract  is  advantageous  to  the 
obligor.  Thus  where  a  later  day  of  payment  is  substituted  the  obliga- 
tion is  avoided.54  So  where  a  smaller  amount  is  substituted  in  an 
obligation,55  or  where  the  specified  rate  of  interest  is  altered  to  a 
lower  rate,66  or  where  the  name  of  a  joint  obligor  or  co-surety  is 

But  otherwise,  if  the  indorser  is  also  the  maker,  and  henee  in  no  event 
entitled  to  demand  or  notice.     Gordon  c.  Third  Bank,  144  CJ.  S.  97. 

In  Schwartz  v.  Wilmer,  90  Md.  136,  the  words  inserted  were  "  protest 
waived."  The  court  assumed  that  this  was  equivalent  to  »  waiver  of  demand 
and  notice,  and  that  "  it  converted  the  contingent  liability  of  the  indorser  into 
an  absolute  liability.''  This  seems  wrong.  Waiver  of  protest  does  not  mean 
waiver  of  demand  and  notice.  It  did  not  even  appear  that  the  note  was  a 
foreign  note,  and  as  such  entitled  to  protest. 

48  Robinson  v.  Reed,  46  Ia«  219;  Belden  v.  Ham,  61  la.  42;  Clawson  v. 
Gustin,  2  South.  947;  Orrick  v.  Colston,  7  Gratt.  189. 

46  Iowa  Valley  Bank  v.  Sigstad,  96  la.  491;   Levi  v.  Mendell,  1  Duv.  77. 

47  Powell  v.  Pearlstine,  43  S.  C.  403 ;  Bowser  v.  Cole,  74  Tex.  222.  See  also 
Moelle  v.  Sherwood,  148  U.  S.  21.     Cp.  Burnett  v.  McCluey,  78  Mo.  676. 

48  Carlisle  v.  People's  Bank,  122  Ala.  446;  Johnson  v.  Moore,  33  Ka;i.  90. 

49  Kelly  v.  Trumble,  74  111.  428. 

60  Hirsehman  v.  Budd,  L.  R.  8  Ex.  17 1 ;  Inglish  v.  Breneman,  5  Ark.  377 ; 
Wyman  v.  Yoemans,  84  111.  403;  Hamilton  v.  Wood,  70  Ind.  306;  McCormick 
Co.  v.  Lauber,  7  Kan.  App.  730;  Lisle  v.  Rogers,  18  B.  Mon.  528;  Britton  v. 
Dierker,  46  Mo.  591;  McMurtrey  v.  Sparks,  71  Mo.  App.  126;  Bowers  v. 
Jewell,  2  N.  H.  543;  Crawford  v.  West  Side  Bank,  100  N.  Y.  50;  Miller  v. 
Gilleland,  19  Pa.  119;  Taylor  i\  Taylor,  12  Lea,  714. 

«  State  v.  Smith,  9  Houst.  143;  Morrison  v.  Welty,  18  Md.  169;  Rawson  v. 
Davidson,  49  Mich.  607,;  Fred  Heim  Co.  v.  Hazen,  55  Mo.  App.  277 ;  Biery  v. 
Haines,  5  Whart.  563 ;  Vaughan  v.  Fowler,  14  S.  C.  355. 

82  Porter  v.  Doby,  2  Rich.  Eq.  49 ;  Organ  v.  Allison,  9  Baxt.  459 ;  Piercy  v. 
Piercy.  5  W.  Va.  199. 

eaTruett  v.  Wainwright,  9  111.  411. 

54  Wood  v.  Steele,  6  Wall.  80;  Wyman  v.  Yoemans,  84  111.  403;  I'ost  v, 
Losey,  111  Ind.  74;  McCormick  Co.  v.  Lauber,  7  Kan.  App.  730;  First  Bank 
v.  Payne,  19  Ky.  L.  Rep.  839.  But  see  contra,  Union  Bank  v.  Cook,  2  Oranch 
C.  C.  218. 

55  Prim  v.  Hammel,  134  Ala.  652 ;  Johnston  v.  May,  76  Tnd.  293.  See  also 
Doane  v.  Eldridge,  16  Gray.  254. 

66  post  v.  Losey,  111  Ind.  74;  Board  v.  Greenleaf,  80  Minn.  242;  Whitmer 
v.  Frye,  10  Mo.  348.     But  see  contra,  Burkholder  v.  Lapp's  Ex.,  31  Pa.  322. 


862  DISCHARGE    OF    CONTRACTS. 

added,57  or  of  a  prior  obligor.58  The  addition  of  a  collateral  guaranty 
does  not,  however,  discharge  the  principal  debtor,59  for  the  addition 
neither  increases  nor  diminishes  his  immediate  liability  or  his  ulti- 
mate equitable  liability.  The  same  is  true  of  the  erasure  of  the 
name  of  a  collateral  guarantor.60 

Materiality  of  the  addition  of  a  surety's  name.  If,  however,  a  surety's 
name  is  added  in  such  a  way  that  he  incurs  or  purports  to  incur  at 
law  a  joint  obligation  with  others  previously  bound  by  the  instrument, 
the  alteration  seems  technically  a  material  one,  though  his  equitable 
liability  was  one  of  suretyship,  for  the  alteration  if  effective  would 
create  a  new  and  different  obligation  at  law  on  the  part  of  the  pre- 
vious obligors.  They  could  be  sued  jointly  with  the  surety.  The 
answer  adopted  in  one  decision61  to  this  reasoning  is  that  the  surety 
having  signed  after  delivery  of  the  note  was  not  in  fact  a  joint  maker, 
and  that  as  the  original  maker  could  effectively  object  to  the  joinder 
of  the  new  signer  the  former's  obligation  remained  unaltered.  But 
this  is  unsound.  An  alteration  to  which  he  has  not  consented  never 
binds  an  obligor.  He  is  discharged  not  because  an  alteration  is  in 
legal  effect  wrought  upon  his  obligation,  but  because  it  purports  to 
be;  and  in  the  case  in  question  the  obligation  of  the  defendant  was 
on  the  face  of  the  instrument  changed  to  a  joint  obligation.  Never- 
theless, on  account  of  the  hardship  of  the  case  the  addition  has  in 

• 

57  Gardner  r.  Walsh,  5  E.  &  B.  83;  Taylor  v.  Johnson,  17  Ga.  521;  Henry  v. 
Coats.  17  lnd.  161;  Bowers  v.  Briggs,  20  Ind.  139;  Houek  i:  Graham,  106 
Ind.  195;  Hall's  Adra.  i.  McHenry,  19  la.  521;  Hamilton  r.  Hooper,  46  la. 
515:  Berryman  v.  Manker,  56  la.  150;  Sullivan  a.  Rudisill,  63  la.  158;  Shipp 
r.  Suggett.  9  B.  Mon.  5;  Singleton  r.  McQuerry,  85  Ky.  41;  Lunt  r.  Silver,  5 
Mo.  App.  186;  Wallace  v.  Jewell,  21  Ohio  St.  163;  Harper  r.  Stroud,  41  Tex. 
367.  But  see  contra,  Produce  Exchange  Trust  Co.  v.  Bieberbach,  176  Mass. 
577,  590;  Gano  v.  Heath,  36  Mich.  441;  Union  Banking  Co.  v.  Martin's  Es- 
tate, 113  Mich.  521;   Standard  Cable  Co.  P.  Stone,  35  N.  Y.  4  pp.  Div.  62,  65. 

The  alteration  is  none  the  less  material  if  the  added  signature  is  forged. 
Farmers'  Bank  v.  Myers,  50  Mo.  App.  157;  Harper  r.  Stroud,  41  Tex.  367. 

If  the  addition  is  without  the  knowledge  of  the  obligee,  it  is  an  alteration 
by  a  stranger  and  hence  in  this  country  would  generally  have  no  effect. 
Anderson  v.  Bellenger,  87  Ala.  334;  Ward  v.  Hackett,  30  Minn.  150;  Standard 
Cable  Co.  v.  Stone,  35  N.  Y.  App.  Div.  62. 

68  Haskell  v.  Champion.  30  Mo.  136. 

59  Ex  parte  Yates,  2  De  G.  &  J.  191;  First  Bank  v.  Weidenbeck,  97  Fed. 
Rep.  896  (C.  C.  A.)  ;  Burnham  v.  Gosnell,  47  Mo.  App.  637;  Wallace  v.  Jewell, 
21  Ohio  St.  163,  172;  Hutches  v.  J.  I.  Case  Co.,  35  S.  W.  Rep.  60  (Tex.  Civ. 
App. ) .     See  a  fortiori  eases  in  note  62,  infra.     Cp.  Oneale  r.  Long,  4  Cranch,  60. 

"0  First  Bank  v.  Weidenbeck.  97  Fed.  Rep.  896  (C.  C.  A.)  ;  Broughton  v. 
West,  8  Ga.  248;  People  r.  Call,  1  Denio,  120;  Huntington  r.  Finch,  3  Ohio 
St.  445. 

61  McCaughev  v.  Smith.  27  N.  Y.  39.  See  also  Ex  parte  Yates,  2  De  G.  &  J. 
101;   Bowser  v.  Rendell,  31  Ind.  128. 


ALTERATION  :    WHEN    MATERIAL.  863 

stich  a  case  frequently  been  held  immaterial.92    But  there  are  mamr 
cases  enforcing  the  strict  rule.63 

Criticism  of  decisions.  In  two  cases64  where  the  name  added  created 
or  purported  to  create  a  several  liability  on  the  part  of  the  new  signer 
the  previous  signer  was  held  not  discharged  because  no  joint  liability 
.  was  created.  The  terms  of  the  legal  obligation  of  the  previous  signer 
are  certainly  not  affected  by  such  an  addition,  but  if  the  consequence 
of  carrying  out  the  obligation  assumed  by  the  new  signer  is  that 
equitably  the  latter  must  pay  equally  with  the  previous  signer,  the 
contract  is  certainly  altered  by  the  added  signature.  Such  is  the 
situation  where  the  new  signer  is  a  co-surety.  If,  however,  the  only 
previous  signer  is  the  principal  debtor,  the  contract  is  not  altered, 
for  he  remains  liable  immediately  at  law  and  ultimately  in  equity 
for  the  whole. 

What  alterations  are  immaterial.  The  following  changes  have  been 
held  immaterial:  the  alteration  of  the  name  of  the  grantee85  or 
grantor66  or  other  party67  by  correcting  a  mistake  in  spelling  or 
initials,  where  no  change  in  the  person  designated  is  intended  or 
apparently  indicated;  the  insertion  of  a  more  specific  description  of 
the  mortgaged  property  in  a  chattel  mortgage;68  the  addition  in  a 

MEx  parte  Yates,  2  De  G.  4  J.  191;  Mersman  v.  Werges,  112  U.  S.  139; 
Montgomery  Railroad  v.  Hurst,  9  Ala.  513;  Rudulph  r.  Brewer,  96  Ala.  189 
(overruled)  ;  Bowser  v,  Rendell,  31  Ind.  128;  Taylor  v.  Acom,  1  Ind.  Ty.  436; 
Stone  v.  White,  8  Gray,  589;  Miller  v.  Finley,  26  Mich.  249;  Barnes  v.  Van 
Keuren,  31  Neb.  165;  Royse  v.  State  Bank,  50  Neb.  16;  McOaughey  v.  Smith, 
27  N.  Y.  3D;  Hecker  v.  Mahler,  64  Ohio  St.  398.  See  also  Ryan  v.  First 
Bank,  148  111.  349;   Heath  v.  Blake.  28  S.  C.  406. 

63  Gardner  v.  Walsh,  5  E.  &  B.  83;  First  Bank  v.  Weidenbeck,  81  Fed.  Rep. 
271  (reversed,  97  Fed.  Rep.  896)  ;  Brown  v.  Johnson,  126  Ala.  93  (overruling 
Montgomery  R.  Co.  v.  Hurst,  9  Ala.  513,  and,  it  seems,  Rudulph  v.  Brewer, 
96  Ala.  189)  ;  Soaps  v.  Eichberg,  42  111.  App.  375;  Bowers  c.  Briggs,  20  Ind. 
139;  Nicholson  v.  Combs,  90  Ind.  515;  Dickerman  v.  Miner,  43  la.  508; 
Hamilton  v.  Hooper,  46  la.  515;  Sullivan  v,  Rudisill,  63  la.  158;  Browning 
v.  Gosnell,  91  la.  44S;  Rhoades  v.  Leach,  93  la.  337;  Shipp  v.  Suggett,  9 
B.  Mon.  5;  Singleton  v.  MeQuerry,  85  Ky.  41;  Lunt  v.  Silver,  5  Mo.  App.  186; 
Farmers'  Bank  v,  Myers,  50  Mo.  App.  157 ;  Allen  c.  Dornan,  57  Mo.  App. 
288;  Wright  v.  Kelley,  4  Lans.  57;  Harper  v.  Stroud,  41  Tex.  367;  Ford  v. 
Cameron  Bank,  34  S.  W.  Rep.  684   (Tex.  Civ.  App.). 

64  Collins  v.  Prosser,  1  B.  &  C.  682 ;   Brownell  v.  Winnie,  29  N.  Y„  400. 

65  State  v.  Dean,  40  Mo.  464;  Cole  v.  Hills,  44  N.  H.  227;  Derby  v.  Thrall, 
44  Vt.  413. 

06  Banks  v.  Lee,  73  Ga.  25. 

67  Re  Howgate  &  Oeborn's  Contract,  [1902]   1  Ch.  451. 

68  Starr  v.  Blatner,  76  la.  356;  Chicago  Trust  Co.  »\  O'Marr,  18  Mont.  568. 
See  also  Heman  v.  Gilliam,  171  Mo.  258;  Gunter  v.  Addy,  58  S.  C.  178.  But 
see  contra,  McKinney  »;.  Cobell,  24  Ind.  App.  676,  which  went  on  the  ground 
that  the  more  specific  description  would  charge  third  persons  with  notice. 
See  further  S.  C,  31  Ind.  App.  548. 


864  DISCHARGE    OF    CONTRACTS. 

bond  to  pay  a  judgment  of  a  provision  for  payment  of  legal  costs, 
since  that  was  the  effect  of  the  bond  originally;69  the  insertion  or 
alteration  of  the  date  when  that  does  not  alter  the  legal  effect  of  the 
instrument  by  changing  the  day  of  maturity  or  otherwise;70  the  in- 
sertion of  the  name  of  the  obligor  in  the  body  of  a  bond,  after  the 
execution  of  the  bond,71  since  the  obligor  would  be  liable  though  his 
name  had  not  been  inserted;  the  alteration  of  the  courses  named  in 
a  deed  where  the  alteration  was  required  by  the  context  and  was  in 
accordance  with  the  facts;72  the  insertion  of  a  recital  of  unessential 
circumstances;73  the  addition74  or  cancellation75  of  words  of  descrip- 
tion, or  the  addition  of  a  place  of  residence,76  after  the  signature  of 
an  obligor;  the  erasure  of  the  name  of  a  surety,  so  far  as  the  prin- 
cipal debtor  is  concerned;77  the  addition  of  a  memorandum,  which 
does  not  purport  to  form  part  of  the  document  itself.78  Under  this 
last  rule  the  addition  or  alteration  of  the  figures  indicating  the 
amount  of  a  bill  or  note  is  immaterial,  if  the  body  of  the  writing 
clearly  states  the  amount,79  for  the  figures  are  rather  a  memorandum 

69Kleeb  v.  Bard,  12  Wash.  140. 

70  Parry  v.  Nicholson,  13  M.  &  W.  778;  Gill  r.  Hopkins,  19  111.  App.  74; 
Lee  v.  Lee,  83  la.  565;  Prather  v.  Zulauf.  38  Ind.  155;  Terry  v.  Hazlewood,  1 
Duv.  104;  State  v.  Miller,  3  Gill,  335;  Hepler  i\  Mt.  Carmel  Bank,  97  Pa.  420; 
Whiting  v.  Daniel,  1  Hen.  &  M.  391;  Bashaw's  Adm.  r.  Wallace's  Adm.,  45 
S.  E.  Rep.  290  (Va.).  But  see  Bills  of  Ex.  Act,  §  64  (2)  ;  Crawford,  Neg. 
Inst.  L.,  §  206. 

71  Smith  v.  Crooker,  5  Mass.  538. 

72  Burnham  v.  Ayer,  35  N.  H.  351. 

73  Rudesill  r.  County  Court,  85  111.  446. 

74  Manufacturers'  Bank  v.  Follett,  11  R.  I.  92  (agent). 

75  Burlingame  r.  Brewster,  79  111.  515;  Marx  v.  Luling  Assoc,  17  Tex.  Civ. 
App.  40S. 

76Struthers  t.  Kendall,  41  Pa.  214.  Cp.  Commercial  Bank  v.  Patterson,  2 
Cranch  C.  C.  346. 

77  Lynch  r.  Hicks,  80  Ga.  200;  Loque  v.  Smith,  Wright  (Ohio),  10;  Tutt  r. 
Thornton,  57  Tex.  35. 

78  Manning  r.  Maronev,  87  Ala.  563;  Maness  v.  Henry,  96  Ala.  454;  Mente 
D.  Townsend,  68  Ark.  391;  Can-  v.  Welch,  46  111.  88;  Huff  v.  Cole,  45  Ind. 
300;  Toner  v.  Wagner,  158  Ind.  447;  Light  v.  Killinger,  16  Ind.  App.  102; 
Reed  r.  Culp,  63  Kan.  595 ;  Nugent  v.  Delhomme,  2  Mart.  ( O.  S. )  308 ;  Little- 
field  i>.  Coombs,  71  Me.  110;  Cole's  Lessee  v.  Pennington,  33  Md.  476;  Cam- 
bridge Bank  r.  Hyde,  131  Mass.  77;  Boutelle  v.  Carpenter,  182  Mass.  417; 
American  Bank  r.  Bangs,  42  Mo.  450;  Moore  v.  Macon  Bank,  22  Mo.  App. 
684;  Johnson  r.  Parker,  86  Mo.  App.  660;  Palmer  v.  Largent,  5  Neb.  223; 
Edward  Thompson  Co.  v.  Baldwin,  62  Neb.  530;  Kinard  v.  Glenn,  29  S.  C. 
590;  Yost  v.  Watertown  Steam  Engine  Co.,  24  S.  W.  Rep.  657  (Tex.  Civ. 
App.)  ;  Tremper  v.  Hemphill,  8  Leigh,  623.  See  also  Sawyer  v.  Campbell,  107 
la.  397 ;  Steeley's  Credr's  v.  Steeley,  23  Ky.  L.  Rep.  996.  Cp.  Warrington  v. 
Early,  2  E.  &  B.  763;  Woodworth  v.  Bank  of  America,  19  Johns.  391.  " 

79Horton  r.  Horton's  Est.,  71  la.  448;  Woolfolk  j>.  Bank  of  America,  10 
Bush,  504;  Fisk  r.  McNeal,  23  Neb.  726;  Smith  r.  Smith,  1  R.  I.  398. 

In  Schryver  (-.  Hawkes,  22  Ohio  St.  308,  a  bona  fide  purchaser  was  allowed 
to  recover  on  a  note  where  the  figures  had  been  raised,  though  the  amount  was 
left  blank  in  the  body  of  the  note  and  the  figures  had  been  written  by  the 


ALTERATION  :    WHEN    MATERIAL.  865 

than  an  integral  part  of  the  obligation.  But  if  a  memorandum  col- 
lateral in  form  is  in  fact  a  part  of  the  contract,  the  erasure  of  the 
memorandum  is  a  material  alteration.80 

Further  illustrations  —  Test  of  materiality.  Alteration  by  adding  or 
changing  a  statement  of  the  consideration  does  not  ordinarily  change 
the  legal  effect  of  an  obligation,  and  if  that  is  the  correct  test,  as  i3 
generally  held,  in  the  American  decisions,81  such  an  alteration  is 
immaterial.82  But  a  statement  of  consideration  may  be  important  as 
evidence  of  the  terms  of  a  transaction,  and  if  added  or  erased  fraudu- 
lently should  make  the  writing  inadmissible  as  evidence  upon  that 
question  at  least.83     If  the  writing  was  the  sole  legal  evidence  by 

defendant  in  order  to  limit  the  amount  for  which  the  blank  space  for  the 
amount  could  be  filled  in. 

80  Cochran  v.  Nebeker,  48  Ind.  459 ;  Scofield  v.  Ford,  56  la.  370 ;  Johnson  v. 
Heagan,  23  Me.  329;  Wheeloek  v.  Freeman,  13  Pick.  165;  Wait  v.  Pomeroy,  20 
Mich.  425;  Bav  v.  Shrader,  50  Miss.  326;  Davis  v.  Henry,  13  Neb.  497; 
Gerrish  v.  Glines,  56  N.  H.  9;  Price  v.  Tallrnan,  Coxe  (N.  J.),  447;  Benedict 
v.  Cowden,  49  N.  Y.  396;  Stephens  v.  Davis,  So  Term.  271.  See  also  Law  v. 
Crawford,  67  Mo.  App.  150.  Cp.  Thepold  v.  Deike,  76  Minn.  121 ;  Law  v. 
Blomberg,  91  N.  W.  Rep.  206  (Neb.)  ;  Hubbard  v.  Williamson,  5  Ired.  397. 
But  if  a  condition  qualifying  the  liability  of  the  maker  of  a  note  is  written 
with  a  pencil  and  the  condition  is  afterwards  erased,  the  maker  has  been  held 
liable,  because  of  his  negligence,  to  a  bona  fide  purchaser  without  notice  on 
the  note  in  its  altered  form.  Harvey  v.  Smith,  55  111.  224;  Seibel  v.  Vaughan, 
69  111.  257.     This  principle  has  been  carried  so  far  in  some  eases  as  to  hold 

_  the  maker  liable  when  a  condition  written  below  the  note  has  been  cut  off. 
Noll  v.  Smith,  64  Ind.  511;  Phelan  v.  Moss,  67  Pa.  59;  Zimmerman  v.  Rote, 
75  Pa.  188.  These  decisions  are  on  their  facts  opposed  to  several  of  the 
cases  cited  above.     Cp.  Brown  v.  Reed,  79  Pa.  370. 

81  See  the  American  cases  here  cited  on  materiality  and  immateriality.  So 
in  Caldwell  v.  Parker,  Ir.  Rep.  3  Eq.  519.  This  decision  was  dissented  from  in 
Suffell  v.  Bank  of  England,  9  Q;  B.  D.  555. 

82Riggs  v.  St.  Clair,  1  Cranch  C.  C.  606;  Murray  v.  Klinzing,  64  Conn.  78; 
Gardiner  v.  Harbaek,  21  111.  129;  Magers  v.  Dunlap,  39  111.  App.  618;  Cheek 
v.  Nail,  112  N.  C.  370.  But  see  Knill  r.  Williams,  10  East,  431;  Wright  v. 
lnshaw,  1  Dowl.  N.  S.  802;  Suffell  v.  Bank  of  England,  9  Q.  B.  D.  555,  571; 
Benjamin  v.  McConnel,  9  111.  536;  Low  v.  Argrove,  30  Ga.  129.  Cp.  Richard- 
son v.  Fellner,  9  Okl.  513. 

83  See  infra,  p.  848.  In  Suffell  r.  Bank  of  England,  9  Q.  B.  D.  555,  the  Court 
of  Appeal  held  an  alteration  of  the  number  of  a  bank  note  material,  though 
admitting  the  change  did  not  alter  the  legal  effect  of  the  contract.  In  Craig- 
head v.  McLoney,  99  Pa.  211,  it  was  said,  "Any  alteration  which  changes  the 
evidence  or  mode  of  proof  is  material,"  and  in  Brady  v.  Berwind- White  Co., 
94  Fed.  Rep.  28,  106  Fed.  Rep.  824  (E.  D.,  Pa.)  ;  an  addition  was  held  material 
which  did  not  change  the  meaning  of  the  writing,  because  it  would  render 
inadmissible  parol  evidence  of  facts  contradicting  the  inserted  words.  This 
is  in  accordance  with  earlier  Pennsylvania  cases  holding  the  addition  of  an 
attesting  witness  material.  Foust  v.  Renno,  8  Pa.  378;  Henning  v.  Werk- 
heiser,  8  Pa.  518.  See  also  White  Sewing  Machine  Co.  r.  Saxon,  121  Ala. 
399;  International  Bank  v.  Parker,  88  Mo.  App.  117.  If  this  principle  were 
logically  applied  it  would  overthrow  many  of  the  cases  of  immaterial  altera- 
tion collected  here.  With  the  English  and  Pennsylvania  decisions  may  be 
compared  Rowe  v.  Bowman,  183  Mass.  488.  In  that  case  it  was  argued  that 
the  unauthorized  addition  of  a  United  States  revenue  stamp  was  a  material 

55 


866  DISCHARGE    OF    CONTRACTS. 

which  the  debt  could  be  proved,  the  alteration  would  then  be  fatal 
to  any  recovery  by  the  plaintiff;  otherwise  not.84  The  same  may  be 
&aid  in  regard  to  an  alteration  of  the  number  of  a  bond  or  bank 
note;85  or  of  adding86  or  erasing87  the  name  of  an  attesting  wit- 
ness, where  the  legal  effect  of  the  instrument  is  not  affected  by 
attestation,  but  only  the  mode  of  proof. 

Materiality  is  a  question  of  law.  Whether  an  alteration  is  material  is 
a  question  of  law,  to  be  decided  by  the  court.88 

Assignment  of  Altered  Contracts. 

Assignment  of  altered  contract  generally  gives  no  validity  —  Contract 
with  blanks.  If  a  contract  has  been  made  void  by  alteration,  no  sub- 
sequent assignment,  even  if  the  contract  is  a  negotiable  bill  or  note, 
can  give  it  validity.  The  assignee  or  indorsee,  though  an  innocent 
purchaser  for  value,  has  no  greater  rights  than  the  previous  holder.80 

alteration.  The  lack  of  a  stamp,  though  it  would  not  have  made  the  note 
inadmissible  in  evidence  in  the  Massachusetts  courts,  would  have  made  it 
inadmissible  in  the  Federal  courts.  The  addition  therefore  purported  to 
enlarge  the  rights  of  the  holder  by  affording  evidence  legal  in  the  Federal 
courts.     The  plaintiff  nevertheless  recovered. 

84  See   infra,  pp.   848,  873. 

85  Such  a  change  was  held  material  in  Suffell  r.  Bank  of  England,  9  Q.  B.  D. 
555;  but  immaterial  in  Wvlie  r.  Missouri  Pac.  Ry.  Co.,  41  Fed.  Rep.  023; 
State  v.  Cobb,  64  Ala.  127,  157;  Coram.  i\  Emigrant  Bank,  98  Mass.  12; 
Elizabeth  v.  Force,  29  N.  J.  Eq.  587 ;  Birdsall  v.  Russell,  29  N.  Y.  239 ;  Note 
Holders  v.  Funding  Board,  16  Lea,  46;  Fisk's  Claim,  11  Op.  Atty.  Gen.  258. 
Sometimes  the  number  of  a  bond  may  affect  the  contract,  as  where  bonds  are 
paid  as  their  numbers  are  drawn.  See  Suffell  v.  Bank  of  England,  9  Q.  B.  D. 
555,  563. 

88  Held  immaterial  in  Hall  v.  Weaver,  34  Fed.  Rep.  104 ;  Ford  v.  Ford,  17 
Pick.  418;  State  r.  Gherkin,  7  Ired.  L.  206;  Beary  v.  Haines,  4  Whart.  17; 
Fuller  v.  Green,  64  Wis.  159.  But  see  contra.  White  Sewing  Machine  Co.  v. 
Saxon,  121  Ala.  399;  Adams  v.  Frve,  3  Met.  107;  Girdner  v.  Gibbons,  91  Mo. 
App.  412;  Foust  v.  Renno,  8  Pa.  378;  Hcnning  r.  Werkheiser,  8  Pa.  518.  It 
is  material  if  the  legal  effect  of  the  instrument  would  be  changed  thereby,  as 
bv  extending  the  Statute  of  Limitations.  Milberry  v.  Stover,  75  Me.  69; 
Homer  v.  Wallis,  11  Mass.  309.     See  also  Richardson  v.  Mather,  178  111.  449. 

•*7  Wickes  v.  Caulk,  5  H.  &  J.  36.     Cp.  Nunnery  v.  Cotton,  1  Hawks,  222. 

88  Steele  v.  Spencer,  1  Pet.  552;  Payne  v.  Long,  121  Ala.  385;  Overton  v. 
Matthews,  35  Ark.  146;  Ofenstein  r.  Brvan,  20  App.  D.  C.  1;  Milliken  v. 
Mnrlin,  66  111.  13;  Cochran  v.  Nebeker,  48  Ind.  459:  Heard  v.  Tappan,  116 
Ga.  930 ;  Belfast  Nat.  Bank  v.  Harriman,  68  Me.  522 ;  Fisherdiek  v.  Hutton, 
44  Neb.  122:  Burnham  v.  Aver,  35  N.  H.  351;  Stephens  v.  Graham,  7  S.  &  R. 
505;   Kinard  v.  Glenn,  29  S.*C.  590. 

89  Master  v.  Miller,  4  T.  R.  320;  "Vance  v.  Lowther,  1  Ex.  D.  176;  Suffell  v. 
Bank  of  England,  9  Q.  B.  D.  555;  Overton  v.  Matthews,  35  Ark.  146;  Burwell 
r.  Orr,  84  111.  465;  Merritt  v.  Boyden,  191  111.  136;  McCoy  v.  Lockwood,  71 
Ind.  319;  Eckert  v.  Louis.  84  Ind.  99,  104;  Horn  r.  Newton  Bank,  32  Kan. 
518;  Farmer  V.  Rand.  14  Me.  225:  Schwartz  v.  Wilmer,  90  Md.  136;  Belknap 
r.  National  Bank,  100  Mass.  376;  Cape  Ann  Bank  v.  Burns,  129  Mass.  596; 
Hunter  r.  Parson?,  22  Mich.  96:  Coles  r.  Yorks,  28  Minn.  464  (mortgage)  ; 
Tricrg  r.  Tavlor,  27  Mo.  245;  Hurlbut  v.  Hall.  39  Neb.  889;  Erickson  r.  First 
Bank,  44  Neb.  622;  Haines  v.  Dennett,  11   N.  H.   180;   Gettysburg  Bank  v. 


ALTEEATION  :    EFFECT    OF    ASSIGNMENT.  867 

How  far  this  rule  is  subject  to  an  exception  if  the  alteration  con- 
sisted in  filling  in  a  blank  left  by  the  obligor  is  a  disputed  question. 
If  the  instrument  was  incomplete  and  a  blank  in  it  was  later  filled 
in  accordance  with  express  or  implied  authority,  the  case  is  covered 
by  what  has  been  said  of  alterations  made  by  consent.90  If  the 
instrument  was  incomplete  and  the  obligee  or  another  authorized 
to  fill  the  blank  in  a  certain  way  fills  it  in  a  different  way,  the  case 
is  one  of  an  agent  exceeding  his  actual  but  not  his  apparent  author- 
ity. In  such  a  case  his  principal  should  be  liable  on  the  instrument 
in  its  .altered  form  to  an  innocent  purchaser  buying  without  notice, 
actual  or  constructive,  of  the  excess  of  authority.91    Where,  however, 

Chisholm,  169  Pa.  564.  See  also  Burwell  v.  Orr,  84  111.  46S ;  Pereau  v.  Fred- 
eric, 17  Neb.  117;   Walla  Walla  Co.  v.  Ping,  1  Wash.  Ty.  339. 

The  English  Bills  of  Exchange  Act,  §  64  ( 1 ) ,  qualified  this  rule  by  the 
following  proviso :  "  Provided  that  where  a  bill  has  been  materially  altered, 
but  the  alteration  is  not  apparent,  and  the  bill  is  in  the  hands  of  a  holder  in 
due  course,  such  holder  may  avail  himself  of  the  bill  as  if  it  had  not  been 
altered,  and  may  enforce  payment  of  it  according  to  its  original  tenour."  And 
the  substance  of  this  proviso  has  been  adopted  in  the  Negotiable  Instruments 
Law  in  this  country.  Crawford,  Neg.  Inst.  L.,  §  205;  Schwartz  v.  Wilmer,  90 
Md.  136,  143. 

90  Such  cases  are  State  v.  Bean,  40  Mo.  464 ;  Kinney  v.  Schmitt,  12  Hun, 
521;  Stahl  v.  Berger,  10  S.  &  R.  170;  Walla  Walla  Co.  v.  Ping,  1  Wash.  Ty. 
339.     See  further,  supra,  p.  855  et  seq. 

Issuing  a  negotiable  instrument  with  blanks  gives  any  bona  fide  holder 
authority  to  fill  them  with  appropriate  words.  Michigan  Bank  v.  Eldred,  9 
Wall.  544;  Huntington  v.  Bank,  3  Ala.  186;  Visher  v.  Webster,  8  Cal.  109; 
Norwich  Bank  v.  Hyde,  13  Conn.  279;  Riddle  v.  Stevens,  32  Conn.  378,  390; 
Young  t>.  Ward,  21  111.  223;  Spitler  v.  James,  32  Ind.  202;  Gillaspie  v.  Kelley, 
41  Ind.  158;  Lowden  v.  Schoharie  Bank,  38  Kan.  533;  Bank  v.  Curry,  2  Dana, 
142;  Cason  r.  Grant  County  Bank,  97  Ky.  487;  Ives  v.  Farmers'  Bank,  2 
Allen,  236;  Russell  v.  Langstaffe,  Doug.  514;  Scotland  Bank  v.  O'Connel,  23 
Mo.  App.  165;  Mitchell  r.  Culver,  7  Cow.  336;  Redlieh  v.  Doll,  54  N.  Y. 
234;  Waggoner  v.  Mlllington,  8  Hun,  142;  Porter  p.  Hardy,  10  N.  Dak. 
551;  Fullerton  i\  Sturges,  4  Ohio  St.  529;  Cox  v.  Alexander,  30  Oreg.  438; 
Wessell  v.  Glenn,  108  Pa.  104;  Douglass  v.  Scott,  8  Leigh,  43.  But  see  contra, 
Inglish  v.  Breneman,  9  Ark.  122 ;  Holmes  v.  T romper,  22  Mich.  427 ;  More- 
head  v.  Parkersburg  Bank,  5  W.  Va.  74  (overruled  in  First  Bank  v.  Johns, 
22  W.  Va.  520).  See  also  Young  v.  Baker,  29  Ind.  App.  130;  Greenfield  Bank 
v.  Stowell,  123  Mass.  196. 

This  principle  was  applied  to  other  contracts  in  Roe  v.  Town  Ins.  Co.,  78 
Mo.  App.  452;  Kinney  r.  Schmitt,  12  Hun,  521.  Cp.  Solon  v.  Williamsburgh 
Bank,  114  N.  Y.  122. 

81  Hatch  v.  Searles,  2  Sm.  &  G.  147;  Garrard  v.  Lewis,  10  Q.  B.  D.  30; 
Michigan  Bank  v.  Eldred,  9  Wall.  544;  Prim  v.  Hammel,  134  Ala.  652; 
Overton  v.  Matthews,  35  Ark.  146;  Elliott  v.  Levings,  54  111.  214;  Spitier  v. 
James,  32  Ind.  202;  De  Pauw  v.  Bank,  126  Ind.  551,  557;  Geddes  v.  Black- 
more,  132  Ind.  551  (cp.  Pope  v.  Branch  County  Bank,  23  Ind.  App.  210)  ; 
Woolfolk  v.  Bank  of  America,  10  Bush,  517;  Breckenridge  v.  Lewis,  84  Me. 
349;  Weidman  v.  Symes,  120  Mich.  657;  Simmons  v.  Atkinson,  69  Miss. 
862;  865;  Redlieh  r.  Doll,  54  N.  Y.  234;  Ross  v.  Doland,  29  Ohio  St.  473; 
Cox  v.  Alexander,  30  Oreg.  438;  Wessell  v.  Glenn,  108  Pa.  104;  Orrick  v. 
Colston,  33  Gratt.  377.  But  see  Riddle  v.  Stevens,  32  Conn.  378;  Holmes 
r.  Trumper,  22  Mich.  427;  Solon  v.  Williamsburgh  Bank,  114  N.  Y.  122; 
Porter  v.  Hardy,  10  N.  Dak.  551. 


868  DISCHARGE    OF    CONTRACTS. 

the  instrument  was  complete  when  issued  but  contained  spaces  which 
could  be  filled  in  without  exciting  suspicion,  there  is  no  agency.  If 
the  obligor  is  liable,  it  must  be  because  he  was  so  negligent  in 
leaving  spaces  which  invited  alteration  that  he  cannot  be  allowed  to 
assert  the  defense  of  alteration  against  an  innocent  holder.  In  the 
leading  case  of  Young  v.  Groie92  the  maker  was  held  liable  where 
be  had  carelessly  left  an  unfilled  space  after  the  amount  of  a  check. 
The  case  seems  sound  in  principle  and  has  been  followed  in  this 
country.93  It  has,  however,  been  practically  overruled  in  England.94 
Of  course,  it  is  only  when  spaces  are  left  in  such  a  way  that  the 
obligor  must  be  regarded  as  careless  in  view  of  existing  mercantile 
usage  that  the  doctrine  of  Young  v.  Grote  is  applicable.95  It  is  not 
applicable  to  instruments  other  than  negotiable  paper.96 

When  a  Debt  Survives,  though  the  "Writing  is  Destroyed. 

Formerly  debt  died  with  the  writing  —  Reason  for  the  rule.  While  the 
doctrine  of  alteration  was  applied  only  to  obligations  under  seal,  there 
was  no  question  that  if  the  validity  of  the  document  was  destroyed 
by  alteration,  the  debt  represented  by  the  document  was  equally 
destroyed,  and  in  no  form  of  action  could  the  holder  get  relief.  But 
with  the  extension  of  the  doctrine  of  alteration  to  writings  which 
are  only  evidence,  and  perhaps  not  the  sole  evidence,  of  the  obligation, 
the  technical  reason  for  regarding  the  obligation  as  totally  destroyed 
does  not  hold  good,  for  the  existence  of  a  simple  contract  obligation 

So  where  a  note  apparently  complete  is  delivered  on  the  condition  that 
another  maker's  name  shall  be  obtained,  the  condition  is  invalid  against  an 
innocent  purchaser.  Ward  r.  Hackett,  30  Minn.  150.  And  see  many  de- 
cisions in  accord  in  Ames  Cas.  Suretyship,  305,  n. 

82  4  Bing.  254. 

93  Young  r.  Lehman,  63  Ala.  519;  Winter  v.  Pool,  104  Ala.  580;  Yocum 
v.  Smith,  63  111.  321;  Lowden  v.  National  Bank,  38  Kan.  533;  Blakey  v. 
Johnson,  13  Bush,  204;  Cason  v.  Grant  County  Bank,  97  Ky.  487;  Isnard  v. 
Torres,  10  La.  Ann.  103;  First  Bank  i\  Webster,  121  Mich.  149;  Scotland 
County  Bank  v.  O'Connel,  23  Mo.  App.  166;  Garrard  r.  Haddan,  67  Pa.  82; 
Zimmerman  v.  Rote,  75  Pa.  188 ;  Johnson  Harvester  Co.  v.  McLean,  57  Wis. 
258.  But  see  Fordyce  v.  Kosminski,  49  Ark.  40;  Walsh  v.  Hun,  120  Cal. 
46;  Cronkhite  r.  Nebeker,  81  Ind.  319;  De  Pauw  r.  Bank  of  Salem,  126  Ind. 
553;  Knoxville  Bank  r.  Clarke,  51  la.  264;  First  Bank  r.  Zeims,  93  la. 
140;  Burrows  r.  Klunk,  70  Md.  451;  Greenfield  Bank  i:  Stowell,  123  Mass. 
196;  Burson  v.  Huntington,  21  Mich.  415;  Simmons  v.  Atkinson,  69  Miss.  862; 
Goodman  v.  Eastman,  4  N.  H.  455 ;  Worrall  r.  Gheen,  39  Pa.  388. 

94Scholfield  v.  Earl  of  Londesborough,  [1895]  1  Q.  B.  536,  T1896]  A.  C.  514. 

95  See  cases  in  note  93,  supra,  also  Harvey  v.  Smith,  55  111.  224 ;  Derr  v. 
Keaough,  96  la.  397;  Bank  of  Billings  v.  Wade,  73  Mo.  App.  558;  Leas  v. 
Walls,  101  Pa.  57. 

96  Lehman  r.  Central  Co.,  12  Fed.  Rep.  595;  Cronkhite  r.  Nebeker,  81 
Ind.  319;  Smith  r.  Holzhauer,  67  N.  J.  L.  202.  See  also  Solon  v.  WilliamB- 
burgh  Bank,  114  N.  Y.   122,  136. 


ALTERATION  :  SURVIVAL  OF  DEBT.  869 

is  not  in  theory  dependent  on  the  evidence  by  which  it  is  proved. 
If,  therefore,  in  such  a  case  the  obligee  is  held  to  lose  all  rights,  even 
though  it  would  be  possible  to  prove  the  obligation  by  legal  evidence, 
it  is  because  the  policy  requiring  that  the  purity  of  written  evidence 
shall  be  maintained  demands  the  imposition  of  a  severe  penalty  on 
those  who  tamper  with  such  evidence.97 

Recovery  on  original  debt  allowed  in  this  country  where  alteration  not 
fraudulent.  In  most  of  the  cases  upon  the  point  the  altered  writing 
was  a  bill  of  exchange  or  promissory  note,  and  it  has  been  held  in 
England  that  as  between  the  original  parties  the  alteration  does 
not  extinguish  the  liability  on  account  of  which  the  instrument  was 
given.98  In  this  country  the  distinction  has  been  taken  between  an 
alteration  made  fraudulently  and  an  alteration  not  made  fraudulently. 
In  the  latter  case,  as  has  been  seen,  the  alteration  in  many  jurisdic- 
tions will  not  bar  recovery  on  the  instrument  itself;99  but  where  such 
recovery  is  barred,  relief  is  granted  by  allowing  recovery  on  the 
original  debt  or  consideration  for  which  the  instrument  was  given.1 

67  Whether  the  rule  against  alteration  is  wider  in  its  effect  than  a  rule  of 
evidence,  forbidding  the  use  of  writings  materially  and  wrongfully  altered, 
is  well  illustrated  by  the  case  of  a  contract  executed  in  duplicate,  one  part 
of  which  is  thereafter  fraudulently  and  materially  altered.  If  the  require- 
ment of  the  law  is  merely  that  the  altered  writing  shall  not  be  given  in  evi- 
dence, the  fraudulent  party  may  still  prove  his  right  by  the  unaltered  part, 
for  each  part  is  an  original.  1  Greenl.  Ev.  (16th  ed.),  §  563.  But  if  the 
fact  that  he  has  fraudulently  altered  a  "writing  which  embodies  the  contract 
is,  as  matter  of  substantive  law,  a  defense  there  can  be  no  recovery.  The 
former  view  is  supported  by  two  decisions  in  regard  to  duplicate  leases. 
Lewis  v.  Payn,  8  Cow.  71;  Jones  v.  Hoard,  59  Ark.  42.  Since  a  lease  is 
primarily  a  conveyance,  these  cases  may  perhaps  be  distinguished  from  the 
case  supposed.  Certainly  the  conclusion,  if  applied  to  executory  contracts, 
cannot  be  regarded  as  free  from  doubt.  An  affirmative  plea  alleging  altera- 
tion of  the  contract  would,  it  seems,  set  up  a,  good  defense  and  would  be 
supported  by  proof  of  the  facts.  Chitty,  Pleading  (16th  Am.  ed.),  299;  infra, 
p.  872. 

88  Atkinson  v.  Hawdon,  2  A.  &  E.  628;  Sloman  v.  Cox,  1  C.  M.  &  R.  471. 
See  also  Hall  v.  Fuller,  5  B.  &  C.  750. 

But  there  could  be  no  recovery  against  a  party  secondarily  liable  on  the 
instrument,  for  the  consideration  received  by  him,  since  the  alteration  has 
deprived  him  of  any  right  to  recover  over  against  prior  parties  to  the  instru- 
ment.    Alderson  v.  Langdale,  3  B.  &  Ad.  663. 

99  See  supra,  p.  853. 

l  Little  v.  Fowler,  1  Root,  94;  Warren  v.  Layton,  3  Harring.  (Del.)  404; 
Vogle  v.  Ripper,  34  111.  100;  Elliott  v.  Blair,  47  111.  342;  Hayes  v.  Wagner, 
89  111.  390;  Wallace  v.  Wallace,  8  111.  App.  69;  First  Bank  v.  Ryan,  31  111. 
App.  271,  3'8  111.  App.  268;  affd.,  148  111.  349;  Hampton  v.  Mayes,  3  Ind. 
Ty.  65 ;  Krause  v.  Meyer,  32  la.  566 ;  Morrison  v.  Huggins,  53  la.  76 ;  Eckert 
v.  Pickel,  59  la.  545;  Maguire  v.  Eichmeier,  109  la.  301,  304;  Hervey  r. 
Hervey,  15  Me.  357;  Morrison  v.  Welty,  18  Md.  169;  Owen  v.  Hall,  70  Md. 
97 ;  State  Bank  v.  Shaffer,  9  Neb.  1 ;  Lewis  v.  Schenck,  18  N.  J.  Eq.  459;  Hunt 
v  Gray,  35  N.  J.  L.  227 ;  Merrick  v.  Boury,  4  Ohio  St.  60 ;  Savage  v.  Savage, 
36  Ore'g.  268 ;  Keene  v.  Weeks,  19  R.  I.  309 ;  Wyckoff  v.  Johnson,  2  S.  D.  91 ; 
Otto  v.  Halff,  89  Tex.  384;   Matteson  v.  Ellsworth,  33  Wis.  488.     See  also 


870  DISCHARGE    OF    CONTRACTS. 

"Where  the  instrument  was  given  in  conditional  payment  of  an 
antecedent  debt,  there  is  no  difficulty  in  reaching  this  result.  The 
instrument  has  not  been  paid  at  maturity,  and  the  old  debt  there- 
fore still  exists.  But  the  same  result  would  probably  be  reached 
in  this  country,  though  no  debt  had  ever  existed  before  the  trans- 
action of  which  the  delivery  of  the  instrument  was  a  part,  though 
a  recovery  of  the  consideration  or  its  value  must  in  such  a  case  be 
supported  on  principles  of  quasi-contract.  If  a  material  alteration 
is  made  fraudulently,  however,  no  recovery  can  be  had  in  any  form 
of  action  either  on  the  instrument  or  the  original  debt  or  considera- 
tion.2 

Application  of  doctrine  to  mortgages.  The  application  of  these  prin- 
ciples seems  clear  in  the  case  of  alteration  of  a  mortgage  note  or 
bond.  If  the  effect  of  the  alteration  is  to  discharge  not  simply  the 
note  or  bond,  but  the  debt  itself,  the  mortgage,  being  an  incident 
of  the  debt,  must  also  fall.3  If,  however,  the  alteration  was  not 
due  to  fraud  of  the  holder,  the  debt  is  not  discharged,  whether  the 
altered  obligation  is  or  not;  and  if  the  debt  is  not  discharged  the 
mortgage  will  survive.4  If  a  mortgage  is  given  to  secure  several  sepa- 
rate obligations,  such  an  alteration  of  one  of  them  as  avoids  the 
debt  represented  thereby,  avoids  also  the  lien  of  the  mortgage  as 
to  that  obligation,  but  not  as  to  the  other  obligations.5 

Craig  v.  Lowe,  36  Ga.  117.  Contra  are  White  t'.  Hass,  32  Ala.  430;  Toomer 
v.  Rutland,  57  Ala.  379. 

As  the  note,  though  void  because  of  alteration,  may  be  injurious  to  the 
defendant  if  it  remains  outstanding,  the  plaintiff  is  required  to  surrender  the 
note  in  order  to  recover  on  the  consideration.  Morrison  r.  Welty,  18  Md. 
169;  Smith  v.  Mace,  44  N.  H.  553,  560;  Booth  v.  Powers,  56  N.  Y.  22,  31. 
Cp.  Eckert  v.  Pickel,  59  la.  545. 

2  Elliott  17.  Blair,  47  111.  342;  Ballard  r.  Franklin  Ins.  Co.,  81  Ind.  239; 
Woodworth  v.  Anderson,  63  la.  503;  Hocknell  r.  Sheley,  66  Kan.  357; 
Warder,  etc.,  Co.  v.  Willyard,  46  Minn.  531 ;  Walton  Plow  Co.  v.  Campbell, 
35  Neb.  173;  Martendale  v.  Follett,  1  N.  H.  95;  Smith  v.  Mace,  44  N.  H.  553; 
Clute  v.  Small,  17  Wend.  238 ;  Kennedy  v.  Crandell,  3  Lans.  1 ;  Meyer  v. 
Huneke,  55  N.  Y,  412;  Booth  v.  Powers,  56  N.  Y.  22.  Otherwise  in  South 
Carolina.     See  the  following  note. 

3  Vogle  v.  Ripper,  34  111.  100 ;  Elliott  v.  Blair,  47  111.  342 ;  Tate  v.  Fletcher, 
77  Ind.  102;  Bowman  v.  Mitchell,  79  Ind.  S4;  Hocknell  v.  Sheley,  66  Kan. 
357 ;  Walton  Plow  Co.  i .  Campbell,  35  Neb.  173. 

In  South  Carolina,  even  a  fraudulent  alteration  by  the  holder  of  the  note 
or  bond  will  not  discharge  the  mortgage.  Plvler  r.  Elliott,  19  S.  C.  264; 
Smith  v.  Smith,  27  S.  C.  166 ;  Heath  r.  Blake,  '28  S.  C.  406.  See  also  Bailey 
i\  Gilman  Bank,  99  Mo.  App.  571,  578. 

4  Elliott  v.  Blair,  47  111.  342;  Clough  r.  Sonr,  49  la.  411;  Simpson  v.  Sheley, 
9  Kan.  App.  512;  Jeffrey  v.  Rosenfeld.  170  Mass.  506;  Hoffman  r.  Molloy, 
91  Mo.  App.  367;  Bailey  v.  Gilman  Bank,  99  Mo.  App.  571;  Gillette  v. 
Smith,  18  Hun,  10;  Cheek  r.  Nail,  112  N.  C.  370. 

5  Parke  Co.  v.  White  River  Lumber  Co.,  110  Cal.  658;  Hoffman  v.  Molloy, 
91  Mo.  App.  367. 


ALTERATION  :  BEFORE  EXECUTION.  871 

Though  an  obligor  whose  obligation  has  been  materially  and  fraudu- 
lently altered  may  thus  keep  the  consideration  which  he  has  received 
without  giving  any  equivalent  for  it,  he  would  not  be  allowed  to 
enforce  an  executory  obligation,  given  in  exchange  for  the  altered 
obligation,  while  repudiating  his  own  obligation  on  account  of  the 
alteration.  He  must  either  perform  his  obligation  as  if  it  had  not 
been  altered,  or  rescind  both  obligations.6 

Alteration  of  a  Writing  before  Execution. 

Alteration  before  contract  becomes  binding  is  fatal.  To  speak  of  altera- 
tion as  a  method  of  discharging  contracts  necessarily  assumes  a  con- 
tract at  one  time  binding,  and  subsequently  altered.  In  some  cases, 
however,  a  writing  is  altered  before  it  has  by  delivery  or  assent  be- 
come a  binding  contract.  This  most  commonly  happens  where  a 
surety  or  joint  obligor  signs  an  obligation  and  entrusts  it  to  the 
principal  debtor  or  co-obligor,  who  alters  it  before  delivering  it  to 
the  creditor,  but  the  same  question  may  arise  in  any  case  where 
a  writing  is  entrusted  to  an  agent  to  deliver  and  is  altered  before 
delivery.  It  seems  clear  on  principle  that,  however  innocent  the 
obligee  may  be  or  however  innocently  the  alteration  may  have  been 
made,  so  long  as  it  is  material,  the  obligor  cannot  be  held.7  He 
cannot  be  held  on  the  obligation  in  its  altered  form,  because  he 
never  made  or  assented  to  such  an  obligation.  He  cannot  be  held 
on  the  obligation  in  its  original  form,  because  that  obligation  was 
never  delivered  nor  assented  to  by  the  creditor.  A  court  may  on 
equitable  principles  enforce  an  obligation,  once  valid,  though  tech- 
nically destroyed  or  discharged,  but  it  can  hardly  construct  and  en- 
force an  obligation  which  never  existed  on  the  ground  that  the  de- 
fendant was  once  willing  to  enter  into  such  an  obligation  and  would 
have  done  so  if  the  writing  had  not  been  altered.8 

e  Singleton  v.  McQuerry,  85  Ky.  41. 

7Elleamere  Brewery  Co.  v.  Cooper,  [1896]  1  Q.  B.  75;  Wood  r.  Steele,  6 
Wall.  80;  State  v.  Churchill,  48  Ark.  426;  People  v.  Kneeland,  31  Cal.  288; 
Pelton  v.  San  Jacinto  Co.,  113  Cal.  21;  Hill  v.  O'Neill,  101  Ga.  832;  Mulkey 
v.  Long,  5  Idaho,  213;  Weir  Plow  Co.  v.  Walrasley,  110  Ind.  242;  State  v. 
Craig,  58  la.  238;  Warren  v.  Fant,  79  Ky.  1;  Waterman  r.  Vose,  43  Me. 
504;  Howe  v.  Peabody,  2  Gray,  556;  Citizens'  Bank  v.  Richmond,  121  Mass. 
110;  Britton  p.  Dierker,  46  Mo.  591;  Robinson  v.  Berryman,  22  Mo.  App. 
509;  Mockler  v.  St.  Vincent's  Inst.,  87  Mo.  App.  473;  MeGavock  v.  Morton, 
57  Neb.  385;  Goodman  v.  Eastman,  4  N.  H.  455;  McGrath  r.  Clark,  56 
X.  Y.  34;  Crawford  r.  West  Side  Bank,  100  N.  Y.  50,  57;  Cheek  v.  Nail,  112 
N.  C.  370;  Jones  v.  Bangs,  40  Ohio  St.  139;  Newman  v.  King,  54  Ohio  St. 
273.     See  also  Bracken  Co.  V.  Daum,  80  Ky.  388;  Sharpe  v.  Bellis,  61  Pa.  69. 

a  This,  however,  was  done  in  Latshaw  r.  Hiltebeitel,  2  Penny.  257. 


872  DISCHAEGE    OF    CONTRACTS. 

Qualification  of  the  rule.  This  principle  is,  however,  subject  to  a 
qualification.  If  the  writing  was  entrusted  to  one  with  actual  or 
apparent  authority  to  make  the  alteration  in  question,  the  obligor 
will  be  bound  by  the  instrument  in  its  altered  form,  and  the  courts 
have  gone  very  far  in  inferring  such  authority.  Thus  where  a  note 
is  entrusted  by  a  signer  to  one  who  is  to  borrow  money  upon  it,  and 
the  latter  without  authority  procures  additional  signatures  to  the 
note,9  or  an  attesting  witness,10  the  original  signer  is  liable.  So 
where  a  note  signed  in  blank  for  accommodation  and  entrusted  to 
the  accommodated  party  is  filled  out  by  him,  and  later  before  de- 
livery altered,11  and  where  a  note  entrusted  to  the  accommodated 
party  in  a  complete  form  'was  wrongly  drawn  and  was  altered  be- 
fore delivery  so  that  it  should  conform,  to  the  intention  of  the  par- 
ties;12 and  even  where  names  of  obligors  previously  on  the  note  have 
been  erased  and  others  substituted,  the  same  result  has  been  reached.13 

Pleading  and  Evidence. 
Pleading.  The  pleading  appropriate  to  enable  a  defendant  to  take 
advantage  of  alteration  depends  on  whether  the  plaintiff  bases  his 
action  on  the  obligation  in  its  original  or  in  its  altered  form.  In  the 
latter  case  the  defendant  should  deny  the  making  of  the  contract 
alleged  by  plea  of  non  est  factum  or  non  assumpsit  or  modern  equiva- 
lents.14    In  the  former  case  the  defendant  may  plead  affirmatively 

9Hochmark  v.  Richler,  16  Col.  263;  Governor  v.  Lagow,  43  111.  134; 
Geddes  r.  Blaekmore,  132  Ind.  551;  Hall's  Admr.  i\  McHenry,  19  la.  521; 
Graham  v.  Rush,  73  la.  451;  Edwards  v.  Mattingly,  107  Ky.  332;  Brey  v. 
Hagan,  110  Ky.  566;  Evans  v.  Partin,  22  Ky.  L.  Rep.  20,  21;  Ward  v.  Hackett, 
30  Minn.  150;  Babcock  v.  Murray,  58  Minn.  385;  Standard  Cable  Co.  v. 
Stone,  35  N.  Y.  App.  Div.  62.  But  see  contra,  Lunt  v.  Silver,  5  Mo.  App. 
186,  and  cp.  Ellesmere  Co.  v.  Cooper,  [1896]  1  Q.  B.  75. 

10  Hall  v.  Weaver,  34  Fed.  Rep.  110. 

U  Whitmore  v.  Niekerson,  125  Mass.  496 ;  Douglass  v.  Scott,  8  Leigh,  43. 
But  if  the  blanks  are  filled  in  and  the  note  negotiated,  the  accommodated  party 
cannot  on  subsequently  recovering  the  note  change  its  terms.  Ofenstein  v. 
Bryan,  20  App.  D.  C.  1. 

12  Boyd  v.  Brotherson,  10  Wend.  93. 

13  Jones  v.  Shelby ville  Ins.  Co.,  1  Met.  (Ky.)  58;  Hall  v.  Smith,  14  Bush, 
604,  612;  King  Co.  v.  Ferry,  5  Wash.  536.  It  is  submitted  that  this  result 
is  wrong.  Even  though  the  alteration  is  not  apparent,  there  can  be  no  ground 
of  estoppel  unless  the  original  signer  was  guilty  of  negligence.  These,  de- 
cisions seem  opposed  to  State  v.  Churchill,  48  Ark.  426;  State  v.  Griswold, 
32  Ind.  313.     See  also  State  v.  Craig,  58  la.  238. 

w  Cook   r.   Coxwell,   2    C.  M.   &   R.   291;    Mahaiwe   Bank   v.   Douglass,   31 
Conn.   170;   J.  I.  Case  Co.  t\  Peterson,  51  Kan.  713;  Daniel  v.  Daniel,  Dud. 
(Ga.)    239;   Conner  f.  Sharpe,  27  Ind.  41;  Lincoln  v.  Lincoln,  12  Gray,  45 
Cape  Ann.   Bank  v.   Burns,   129  Mass.   596;   Whitmer  v.   Frye,   10  Mo.   348 
Nat.  Bank  v.  Nickell,  34  Mo.  App.  295;   Schwarz  r.  Oppold,  74  N.  Y.  307 
Farmers'  Trust  Co.  v.  Sief ke,  144  N.  Y.  354 ;  Zeigler  v.  Sprenkle,  7  Watts  &  S. 
175. 


ALTEKATION :  RULE  OF  EVIDENCE.  873 

that  the  obligation  has  been  altered,15  but  in  this  country  he  would 
also  generally  succeed  by  denying  the  making  of  the  obligation,  for 
the  burden  would  then  be  on  the  plaintiff  to  prove  this  and  on  the 
defendant's  objection  to  the  original  writing  because  fraudulently 
altered  and  to  secondary  evidence  because  the  non-production  of  the 
original  was  not  satisfactorily  accounted  for,  the  plaintiff  would 
be  unable  to  sustain  this  burden.16  The  affirmative  plea  is,  therefore, 
strictly  necessary  only  in  cases  in  which  the  rule  of  substantive  law 
applicable  is  more  stringent  than  the  rule  of  evidence,  as  in  juris- 
dictions where  an  innocent  material  alteration  is  held  fatal. 

Evidence.  There  are  many  decisions  in  regard  to  the  admissibil- 
ity of  altered  writings  in  evidence,  and  presumptions  have  been  laid 
down  as  rules  of  law  in  a  way  to  confuse  the  subject.  Many  courts 
hold  that  when  a  writing  offered  in  evidence  shows  on  its  face  an 
alteration,  there  is  a  presumption  that  the  alteration  was  improperly 
made  after  the  execution  of  the  writing,  and  that,  therefore,  a 
burden  is  cast  upon  the  party  offering  the  writing  to  explain  the 
alteration  before  the  writing  can  be  received  in  evidence.17  Other 
courts  hold  that  in  the  absence  of  suspicious  circumstances  there  is 
exactly  the  opposite  presumption,  namely,  that  the  alteration  was 
made  innocently  and  legally.18     Nor  is  it  always  clear  whether  in 

15  Field  v.  Woods,  7  A.  &  E.  114;  Davidson  v.  Cooper,  11  M.  &  W.  778; 
Croockewit  v.  Fletcher,  1  H.  &  N.  893. 

36  First  Nat.  Bank  r.  Mack,  35  Oreg.  122,  127;  Kansas  Mut.  Ins.  Co.  v. 
Coalson,  22  Tex.  Civ.  App.  64. 

IT  Brady  i\  Berwind-White  Co.,  106  Fed.  Rep.  824;  Warren  v.  Layton, 
3  Harring.  (Del.)  404;  Mulkey  v.  Long,  5  Idaho,  213;  Mortag  v.  Linn,  23 
111.  551;  Landt  v.  McCullough,  206  111.  214;  Dewey  v.  Merritt,  106  111.  App. 
156;  Rambousek  ;;.  Supreme  Council,  119  la.  263;  McMicken  v.  Beauchamp, 
2  La.  290;  Ellison  v.  Mobile,  etc.,  R.  Co.,  36  Miss.  572  (cp.  Jackson  v.  Day, 
80  Miss.  800)  ;  Patterson  v.  Fagan,  38  Mo.  70  (but  see  Trimble  v.  Elkin,  88 
Mo.  App.  229,  234)  ;  Burton  v.  American  Ins.  Co.,  96  Mo.  App.  204;  Cour- 
camp  v.  Weber,  39  Neb.  533;  Hills  v.  Barnes,  11  N.  I.  395;  Burnham  r. 
Ayer,  35  N.  H.  351;  Ames  v.  Manhattan  Ins.  Co.,  31  N.  Y.  App.  Div.  180, 
185;  affd.,  167  N.  Y.  584;  Simpkins  e.  Windsor,  21  Oreg.  382;  First  Bank 
v.  Mack,  35  Oreg.  122 ;  Clark  v.  Eckstein,  22  Pa.  507 ;  Jordan  v.  Stewart,  23 
Pa.  244;  Burgwin  v.  Bishop,  91  Pa.  336;  Park  v.  Glover,  23  Tex.  469;  Col- 
lins v.  Ball,  82  Tex.  259,  268;  Bullock  v.  Sprowls,  54  S.  W.  Rep.  657  (Tex. 
Civ.  App.);  Elgin  r.  Hall,  82  Va.  680;  Bradley  v.  Dells  Lumber  Co.,  105 
Wis.  245. 

18  Doe  v.  Catomore,  16  Q.  B.  745;  Little  v.  Herndon,  10  Wall.  26;  Ward 
v.  Cheney,  117  Ala.  241;  Corcoran  v.  Doll,  32  Cal.  82;  Kendrick  v.  Latham, 
25  Fla.  819;  Printup  v.  Mitchell,  17  Ga.  558;  Bedgood  v.  McLain,  89  Ga. 
793;  Westmoreland  v.  Westmoreland,  92  Ga.  233;  Dangel  r.  Levy,  1  Idaho, 
722;  Stoner  V.  Ellis,  6  Ind.  152;  Sirrine  v.  Briggs,  31  Mich.  443;  Brand  r. 
Johnrowe,  60  Mich.  210;  Wilson  v.  Hayes,  40  Minn.  531;  Matthews  r.  Coalter, 
9  Mo.  696;  Stillwell  v.  Patton,  108  Mo.  352;  Adams  v.  Yates,  143  Mo.  475, 
481;  Holladay-Klotz  Co.  v.  T.  J.  Moss  Co.,  89  Mo.  App.  556;  Paul  v.  Leeper, 


874  DISCHAEGE    OF    CONTRACTS. 

speaking  of  presumptions  of  one  sort  or  another  the  courts  mean 
that  in  the  absence  of  any  evidence  showing  innocence  or  fraud  these 
presumptions  apply,  or  further  that  there  is  a  burden  upon  the  party 
who  has  not  the  advantage  of  a  presumption  of  making  out  his 
contention  by  a  preponderance  of  evidence,  irrespective  of  the 
pleadings. 

Tendency  of  best  modern  decisions.  The  tendency  of  the  best  modern 
decisions  is  to  disregard  these  rules  of  presumption  and  to  treat  each 
case  upon  its  own  facts  so  far  as  the  duty  of  adducing  further  evi- 
dence is  concerned,  and  to  throw  the  burden  of  ultimate  proof  upon 
whichever  party  has  the  burden  of  establishing  the  issue  raised  by 
the  pleadings.19 

Merger. 

By  judgment  or  bond.  Where  an  obligation  arising  under  a  contract 
is  reduced  to  judgment20  or  where  an  obligation  arising  under  a 
simple  contract  is  put  in  the  form  of  a  specialty21  the  original  obliga- 

98  Mo.  App.  515;  Dorsey  v.  Conrad,  49  Neb.  243;  Hodge  v.  Scott,  95  N.  W. 
Rep.  837  ( Neb. )  ;  North  River  Co.  v.  Shrewsbury  Church,  22  N.  J.  L.  424 ; 
Cass  County  v.  American  Bank,  9  N.  Dak.  253;  Franklin  r.  Baker,  48 
Ohio  St.  296;  Richardson  r.  Fellner,  9  Okl.  513;  Foley  Co.  v.  Solomon,  9 
S.  Dak.  511;  Farnsworth  r.  Sharp,  4  Sneed,  55  (cp.  Organ  v.  Allison,  9  Baxt. 
459)  ;  Beaman  v.  Russell,  20  Vt.  205;  Wolferman  v.  Bell,  6  Wash.  84;  Yakima 
Bank  v.  Knipe,  6  Wash.  348;  Kleeb  v.  Bard,  12  Wash.  140';  Maldaner  v. 
Smith,  102  Wis.  30.  See  also  Barclift  v.  Tweee,  77  Ala.  528;  Hart  v.  Sharp- 
ton,  124  Ala.  638;  Gwin  r.  Anderson,  91  Ga.  827;  Galloway  v.  Bartholomew, 
74  Pac.  Rep.  467    (Oreg.). 

In  Blewett  r.  Bash,  22  Wash.  536,  this  presumption  was  held  not  applicable 
to  the  erasure  of  a  signature  as  that  must  necessarily  have  been  done  after 
execution.     See  also  Burton  v.  American  Ins.  Co.,  88  Mo.  App.  392. 

19  Rosenberg  v.  Jett,  72  Fed.  Rep.  90 ;  Harper  v.  Reaves,  132  Ala.  625 ; 
Klein  v.  German  Bank,  69  Ark.  140;  Hayden  r.  Goodnow,  39  Conn.  164; 
Baxter  v.  Camp,  71  Conn.  245;  Catlin  Coal  Co.  v.  Lloyd,  180  111.  30S;  Stay- 
ner  v.  Joyce,  120  Ind.  99;  Hagan  v.  Insurance  Co.,  81  la.  321;  Magee  r. 
Allison,  94  la.  527;  University  v.  Hayes,  114  la.  090;  Ely  v.  Ely,  6  Gray,  439; 
Comstock  r.  Smith,  26  Mich*.  306;  Stough  r.  Ogden,  49  Neb.  291;  Cole  v. 
Hills,  44  N.  H.  227;  Hunt  r.  Gray,  35  N.  J.  L.  227;  Hoey  v.  Jarman,  39 
N.  J.  L.  523;  Riley  r.  Riley,  9  N.  Dak.  580;  Robinson  r.  Myers,  67  Pa.  9; 
Nesbit  v.  Turner,  155  Pa.  429 ;  Cosgrove  v.  Fanebust,  10  S.  Dak.  213 ; 
Conner  r.  Fleshman,  4  Va.  693. 

20  See  cases  in  following  notes. 

21  "  If  a  man  contract  to  pay  money  for  a  thing  which  he  hath  bought,  if 
he  take  a  bond  for  the  money,  the  contract  is  discharged,  and  he  shall  not 
have  an  action  of  debt  upon  the  contract."     Fitz.  Nat.  Brev.  120,  n. 

"  If  a  man  be  indebted  to  me  bv  contract,  and  afterward  makes  me  a 
hond  for  the  same  debt,  the  contract  is  hereby  determined,  for  in  debt  on 
the  contract  it  is  a  good  plea  that  he  has  a  bond  for  the  sime  debt.  But  if  a 
stranger  makes  an  obligation  to  me  for  the  same  debt,  the  contract  still  re- 


MERGER.  875 

tion  is  by  operation  of  law  extinguished  and  merged  in  the  new 
obligation. 

Judgment  on  other  causes  than  bonds.  That  a  judgment  and  satis- 
faction of  the  judgment  merged  and  extinguished  any  personal  cause 
of  action  other  than  a  formal  obligation  was  undoubtedly  recognized 
from  very  early  times. 

That  a  judgment  without  satisfaction  had  the  same  effect  upon  a 
simple  contract  debt  leaving  the  creditor  to  his  remedy  on  the  judg- 
ment exclusively  seemed  clear  in  the  minds  of  the  judges  at  least  by 
1469,22  though  whether  the  principle  extended  to  personal  actions 
generally  seems  to  have  been  somewhat  doubted.23 

Judgment  on  a  bond.  The  case  of  a  bond  gave  more  trouble.  As  the 
bond  itself  was  regarded  as  constituting  the  obligation,  so  long  as 
that  bond  existed  the  obligation  necessarily  existed.  Accordingly 
when  judgment  was  given  in  an  action  on  a  bond  the  bond  was 
"  damned."  24  But  if  the  defendant  did  not  procure  the  bond  to  be 
damned  he  was  liable  to  be  sued  again  thereon.25  In  Higgens's 
case,26  however,  Coke  held  not  only  that  "  there  is  not  any  question 
but  judgment  and  execution  upon  a  bond  is  a  good  bar  in  a  new 
action  thereon,"  but  that  even  though  no  execution  had  issued,  so  long 
as  the  judgment  remained  in  force  there  could  be  no  new  action  on 

mains,  because  it  is  by  another  person,  and  both  are  now  debtors."  Bro.  Ab. 
tit.  Contract,  pi.  29. 

So  Hooper's  Case,  2  Lev.  110;  Oldfield's  Case,  Noy,  140;  Davis  v.  Curtis, 
Ch.  Cas.  226;  Twopenny  v.  Young,  3  B.  &  C.  210;  U.  S.  v.  Lyman,  1  Mason, 
482;  Howell  v.  Webb,  2  Ark.  360;  Chambers  v.  McDowell,  4  Ga.  185,  189; 
Rhoads  v.  Jones,  92  Ind.  328;  Kennion  v.  Kelsey,  10  la.  443;  Davidson  v. 
Kelly,  1  Md.  492,  500;  Atty.-General  v.  Whitney,  137  Mass.  450;  Van  Brunt 
v.  Mismer,  8  Minn.  232;  Baker  v.  Baker,  28  N.  J.  L.  13;  Renard  v.  Sampson, 
12  N.  Y.  561;  McNaughten  v.  Partridge,  11  Ohio  St.  223,  232;  Share  v.  Ander- 
son, 7  S.  &  R.  43;  Chalmers  v.  Turnipseed,  21  S.  C.  126;  Witz  v.  Eite,  91 
Va.  446,  453. 

Similarly  a  negotiable  instrument  which  is  a  mercantile  specialty  merges 
the  debt  on  account  of  which  it  was  given.     Ames  Cas.  B.  &  N.  II,  874. 

22  9  Edw.  IV,  50,  pi.  10.  "  For  by  the  recovery  the  nature  of  the  duty  was 
changed." 

23  Ibid.,  abridged  in  Bro.  Ab.  Judgment,  pi.  47.  In  an  action  of  account  the 
defendant  pleaded  a  previous  judgment  of  account  for  the  same  matter  from 
which  an  appeal  was  then  pending,  and  it  was  doubted,  if  execution  was  not 
taken  out  whether  the  plaintiff  could  have  a  new  action.  "Littleton  and 
Choke,  justices,  it  is  a  good  plea  that  he  has  previously  recovered.  Contrary, 
Danby  and  Moyle,  justices,  tor  if  execution  was  not  taken  out  he  can  have 
a  new  action  and  if  the  plaintiff  sued  out  execution  on  both,  the  defendant 
shall  have  audita  querela." 

24  /.  e..  canceled.     See  e.  g.,  9  Edw.  IV,  50,  51,  pi.  10. 

25  See  the  early  case  stated  in  Higgens's  Case,  6  Co.  446,  456. 

26  6  Co.  446,  46a. 


876  DISCHARGE    OF    CONTRACTS. 

the  bond.  The  general  application  of  this  principle  to  all  kinds  of 
contracts  has  not  since  been  doubted.27 

Distinction  between  merger  and  res  judicata.  Merger  of  contract  rights 
in  judgment  is  based  not  simply  on  the  principles  applicable  to  merger 
generally,  namely  that  a  larger  and  more  important  obligation  or 
estate,  which  fully  expresses  or  includes  a  lower  form  of  obligation 
or  estate,  as  it  renders  the  latter  unnecessary,  extinguishes  it,  but  on 
the  broader  principle,  necessary  to  prevent  vexation  of  litigants  and 
courts  with  repeated  trials  of  the  same  dispute,  the  matters  which 
have  once  passed  into  judgment  are,  as  between  parties  to  the  litiga- 
tion or  their  successors,  conclusively  settled  by  the  decision  of  the 
court.  The  doctrines  of  res  judicata  include  more  than  can  be  properly 
brought  under  the  heading  of  merger,  since  they  debar  parties  from 
calling  in  question  in  any  litigation  any  matter  actually  decided  in 
the  earlier  litigation,28  but  all  the  essential  consequences  of  the  merger 
of  the  plaintiff's  right  in  a  judgment  are  also  necessary  consequences 
of  the  principles  of  res  judicata. 

Requisites  for  merger.  In  order  to  effect  a  merger  of  a  lower  obliga- 
tion into  a  higher,  the  obligations  must  be  between  the  same  parties29 

27  Connecticut  Ina.  Co.  v.  Jones,  8  Fed.  Rep.  303;  Ries  v.  Rowland,  11 
Fed.  Rep.  657;  Schuler  v.  Israel,  27  Fed.  Rep.  851,  120  IT.  S.  506;  Runnamaker 
V.  Cordray,  54  111.  303;  Peoria  Savings  Co.  v.  Elder,  165  111.  55;  Wilson  i. 
Buell,  117  Ind.  315;  North  v.  Mudge,  13  la.  496;  Harford  v.  Street,  46  la. 
594;    Scott  r.   Sanders'  Heirs,   6  J.  J.  Marsh,  506;    Campbell  v.  Mayhugh,  15 

B.  Mon.  142;  West  Feliciana  R.  Co.  r.  Thornton,  12  La.  Ann.  736;  Sweet  v. 
Brackley,  53  Me.  346;  Alie  v.  Nadeau,  93  Me.  2S2;  Bank  of  United  States 
v.  Merchants'  Bank,  7  Gill,  415;  Schaferman  v.  O'Brien,  28  Md.  565;  Standifer 
r.  Bush,  -16  Miss.  383;  Cooksey  v.  Kansas  City,  etc.,  R.  Co.,  74  Mo.  477;  Tour- 
ville  r.  Wabash  R.  Co.,  148  Mo.  614;  Grant  v.  Burgwyn,  88  N.  C.  95;  Ellis 
v.  Staples,  9  Humph.  238;  Saunders  v.  Griggs'  Admr.,  81  Va.  506.  Cp. 
Boynton  v.  Ball,  121  U.  S.  622;  Bacon  v.  Reich,  121  Mich.  480.  See  as  to  a 
decree  in  equit}',  Laur  r.  People,  17  111.  App.  448 ;  Meyer  v.  Meyer,  40  111. 
App.  94;  Foster  t\  The  Richard  Busteed,  100  Mass.  409;  Mutual  Ins.  Co.  v. 
Newton,  50  N.  J.  L.  571. 

28  Thus  a  judgment  in  an  action  on  part  of  a  continuing  contract  not 
only  merges  that  right  of  action  but  may  have  the  effect  of  conclusively  fixing 
a  construction  of  the  contract  for  all  future  disputes. 

29  White  v.  Cuyler,  6  T.  R.  176;  Holmes  v.  Bell,  3  Man.  &  G.  213;  Bell  v. 
Banks,  3  Man.  &  G.  258;  Ansell  r.  Baker,  15  Q.  B.  20;  Boaler  r.  Mayor,  19 

C.  B.  N.  S.  76;  Mowatt  v.  Londesborough,  4  E.  &  B.  1;  Aspden  v.  Nixon,  4 
How.  467;  Chase  v.  Swain,  9  Cal.  130;  Cook  v.  Morris,  66  Conn.  137; 
Harvey  r.  State,  94  Ind.  159;  Gilbert  v.  Thompson,  9  Cush.  348;  Gage  v. 
Ames,  26  Minn.  64;  Richardson  v.  Richards,  36  Minn.  Ill;  McGill  r.  Wallace, 

22  Mo.  App.  675;   Gardner  v.  Raisbeck,  28  N.  J.  Eq.  71;  Rodman  v.  Devlin, 

23  Hun,  590;  Rhoads  v.  Armstrong  County,  41  Pa.  92.  Thus  an  action  in 
rem  against  a  vessel  does  not  merge  a  subsequent  action  on  the  same  contract 
against  the  owners  of  the  vessel.  Toby  v.  Brown,  11  Ark.  308.  See  also 
Tabor  v.  The  Cerro  Gordo,  54  Fed.  Rep.  391. 


ARBITRATION   AND  AWARD.  877 

and  upon  the  same  debt.30  Moreover  a  foreign  judgment,  while  it 
will  bind  the  parties  by  its  determination,  will  not  have  the  technical 
effect  of  merging  the  original  cause  of  action.31  A  domestic  action 
may  be  brought  and  the  foreign  judgment  will  then  be  conclusive  evi- 
dence as  to  the  rights  of  the  parties,  if  the  foreign  court  had  full 
jurisdiction  of  the  parties  and  the  subject-matter  of  the  dispute.32  A 
judgment  of  a  court  of  one  of  the  United  States  is  not,  however, 
treated  as  a  foreign  judgment  for  the  purposes  of  this  rule.  Such 
a  judgment  merges  the  cause  of  action.33 

Arbitration  and  Award. 

General  principle.  If  a  claim  arising  from  contract  is  by  agreement 
of  the  parties  submitted  to  arbitration  and  an  award  is  made  by  the 
arbitrators,  although  the  award  has  not  been  performed,  this  is  con- 
clusive upon  the  parties.  If  the  award  merely  fixes  the  amount  due 
upon  the  original  cause  of  action,  the  plaintiff  may  still  sue  upon  that 
cause  of  action34  (though  he  may  also  sue  upon  the  award  or  agree- 
ment of  arbitration),  but  the. defendant  may  set  up  the  award  as  a  bar 
to  any  recovery  in  excess  of  the  amount  awarded.35     If,  however,  the 

30  Xorfolk  Ry.  v.  McNamara,  3  Ex.  628 ;  Snyder's  Admr.  v.  McComb's  Exr., 
39  Fed.  Rep.  292;  Chapman  v.  Brainard,  2  Root,  375;  Illinois  Central  R.  Co. 
r.  Schwartz,  13  111.  App.  490;  Willson  v.  Binford,  81  Ind.  588;  Tracy  r. 
Kerr,  47  Kan.  656;  Brou  v.  Beenel,  22  La.  Ann.  610;  Lehan  v.  Good,  8  Cush. 
302;  Harding  v.  Hale,  2  Gray,  399;  Parr  r.  Greenbush,  112  N.  Y.  246;  Vinal 
v.  Continental  Co.,  53  Hun,  247;  Raven  r.  Smith,  87  Hun,  90;  Knott  v. 
Stephens,  5  Oreg.  235;  Kaster  v.  Welsh,  157  Pa.  590. 

31  Hall  v.  Odber,  11  East,  118;  Smith  v.  Nieolls,  5  Bing.  N.  C.  208;  Bank 
of  Australasia  v.   Nias,    16   Q.   B.    717;    Bank  of  Australasia  r.   Harding,   9 

C.  B.  661;  Lyman  v.  Brown,  2  Curt.  559;  New  York,  etc.,  R.  Co.  v.  McHenry, 
17  Fed.  Rep.  414;  Wood  v.  Gamble,  11  Cush.  8;  Hays  v.  Cage,  2  Tex.  501; 
Frazier  v.  Moore's  Admr.,  11  Tex.  755;  Eastern  Township  Bank  v.  Beebe,  53 
Vt.  177.  Contra,  Jones  v.  Jamison,  15  La.  Ann.  35  (statutory).  If  the 
foreign  judgment  has  been  paid,  however,  the  cause  of  action  is  fully  satisfied. 
Barber  v.  Lamb,  8  C.  B.  N.  S.  95. 

32Ricardo  r.  Garcias,  12  CI.  &  F.  368;  Nouvion  v.  Freeman,  15  A.  C.  1; 
Eastern  Township  Bank  v.  Beebe,  53  Vt.  177. 

33  Union  Pacific  Ry.  Co.  v.  Baker,  5  Kan.  App.  253 ;  North  Bank  r.  Brown, 
50  Me.  214;  Bank  of  United  States  v.  Merchants'  Bank,  7  Gill,  415;  Harring- 
ton v.  Harrington,  154  Mass.  517;  Graef  K.  Bernard,  162  Mass.  300;  Stearns 
V.  Wiborg,  123  Mich.  584,  588;  Child  v.  Eureka  Powder  Works,  45  N.  H. 
547;  Barnes  v.  Gibbs,  31  N.  J.  L.  317;  Traflet  v.  Empire  Life  Ins.  Co.,  64 
N.  J.  L.  387 ;  Gray  v.  Richmond  Bicycle  Co.,  167  N.  Y.  348 ;  Baxley  v.  Linah, 
16  Pa.  241;  Paine  v.  Schenectady  Ins.  Co.,  11  R.  I.  411;  McGilvray  r.  Avery, 
30  Vt.  538 ;  Green  v.  Starr,  52  Vt.  426.  See  also  Hatch  v.  Spofford,  22  Conn. 
485,  500. 

34  Allen  r.  Milner,  2  C.  &  J.  47;  Whitehead  v.  Tattersall,  1  A.  &  E.  491; 
.Keeler  v.  Harding,  23  Ark.  697;  Howell  v.  Monical,  25  111.  122. 

35  Freeman  v.  Bernard,  1  Ld.  Raym.  247;  Bates  v.  Townley,  2  Ex.  152.  157; 
Commings  v.  Heard,  L.  R.  4  Q.  B.  669.     See  also  Sanborn  v.  Maxwell,  18  App. 

D.  C.  245. 


878  DISCHARGE    OF    CONTRACTS. 

award  substitutes  a  new  debt  or  duty  for  the  original  cause  of  action, 
the  plaintiff's  remedy  is  exclusively  upon  the  award  or  agreement 
for  arbitration.36 

Exceptions  at  common  law.  The  common  law  made  an  exception  to 
this  rule  if  the  original  cause  of  action  was  for  a  debt  upon  a  bond,37 
or  a  record.38  The  dignity  of  the  bond  or  record  was  regarded  as 
such  that  it  could  not  be  merged  by  an  award.  But  if  the  bond 
obliged  the  parties  to  any  performance  other  than  the  payment  of 
money,  arbitration  and  award  was  conclusive  as  to  the  amount  of 
damages  recoverable  for  breach  of  the  bond.39  This  nicety  which 
also  obtained  in  the  doctrines  of  accord  and  satisfaction40  is  probably 
obsolete  everywhere,  and  doubtless  arbitration  and  award  upon  a 
sealed  contract  is  subject  to  the  same  rules  as  upon  rights  growing 
out  of  simple  contracts.41 

Authority  to  arbitrate  revocable  before  award.  Until  the  award  is 
made,  the  original  claim  still  exists,  and  the  agreement  to  arbitrate, 
like  an  unexecuted  accord,  is  no  bar  to  an  action  upon  the  claim.42 
Moreover,  a  revocation  by  either  party  to  the  arbitration  of  the 
authority  given  by  him  to  the  arbitrators  will  invalidate  any  award 
made  thereafter.43  The  only  redress  for  breach  of  an  agreement  to 
refer  is  an  action  for  damages.44     A  court  of  law  will  not  enforce  the 

36  Allen  v.  Harris,  Ld.  Raym.  122;  Gascoyne  r.  Edwards,  1  Y.  &  J.  19; 
Parkes  v.  Smith,  15  Q.  B.  297 ;  Gardner  v.  Newman,  135  Ala.  522 ;  Curley  r. 
Dean,  4  Conn.  259;  Merritt  v.  Merritt,  11  111.  565;  Walters  v.  Hutehins.  29 
Ind.  136;  Groat  v.  Pracht,  31  Kan.  656;  Duren  v.  Getchell,  55  Me.  241; 
Knowles  r.  Shapleigh,  8  Cush.  333;  Bentley  v.  Davis,  21  Xeb.  685;  Varney 
v.  Brewster,  14  N.  H.  49  :  Pickering  r.  Pickering,  19  N.  H.  389 ;  Armstrong 
r.  Hasten,  11  Johns.  189;  West  v.  Stanlev,  1  Hill,  69.  See  further  Mac- 
donald  v.  Bond,  195  111.  122;  Weichardt  v.  Hook,  83  Pa.  434;  Vaughn  v. 
Herndon,  91  Tenn.  64.  Cp.  Matter  of  Lurman,  90  Hun,  303;  affd.,  149  N.  Y. 
588;  Crossman  v.  Lurman,  33  N.  Y.  App.  Div.  422,  57  N.  Y.  App.  Div.  393. 

37  Morris  v.  Creach,  1  Lev.  292 ;   Blake's  Case,  6  Co.  435. 
88Viner's    Ab.,    Arbitrament     (S). 

39  Blake's  Case,  6  Co.  436;  Whitehead  r.  Tattersall,  1  A.  &  E.  491. 

40  See  supra,  p.  835. 

41  See  supra,  p.  836,  as  to  accord  and  satisfaction. 

42  Wright  v.  Evans,  53  Ala.  103;  Gaither  v.  Dougherty,  18  Ky.  L.  Pep.  709; 
Welch  v.  Miller.  70  Vt.  108. 

43  Vynior's  Case,  8  Coke,  80a ;  Rouse  i .  Meier,  L.  R.  6  C.  P.  212 ;  Fraser  r. 
Ehrensperger,  12  Q.  B.  D.  310;  Fooks  v.  Lawson,  40  Atl.  Rep.  661  (Del.); 
Gregory  r.  Pike,  94  Me.  27;  Boston,  &c,  R.  Corp.  r.  Nashua,  &e.,  R.  Corp., 
139  Mass.  463;  Jones  v.  Harris,  59  Miss.  214;  Butler  v.  Greene,  49  Neb. 
280;  Allen  r.  Watson,  16  Johns.  205;  Sartwell  v.  Sowles,  72  Vt.  270.  But 
see  contra,  McGeehen  v.  Duffield,  5  Pa.  497:  McCune  P.  Lytle,  197  Pa.  404. 
Death  of  one  of  the  parties  effects  a  revocation  of  the  arbitrators'  authority. 
Cooper  r.  Johnson,  2  B.  &  Aid.  394 ;  Gregory  i>.  Boston  Safe  Deposit  Co.,  36 
Fed.  Rep.  408;  Gregory  v.  Pike,  94  Me.  27;  Marseilles  r.  Kenton,  17  Pa.  245; 
Sutton  v.  Tvrrell,   10  Vt.  94. 

44  Noble  v.  Harris,  3  Keb.  745 ;  Warburton  v.  Storr,  4  B.  &  C.  103 ;  Reg.  v. 


ARBITRATION   AND   AWARD.  879 

stipulation  by  disregarding  any  attempted  revocation,  nor  will  a 
court  of  equity  enforce  specifically  the  agreement.45 

When  writing  necessary.  "A  submission  to  arbitration  may  be  either 
oral,  in  writing  or  under  seal,  depending  on  the  subject-matter  of 
the  arbitration.  If  a  writing  is  necessary  to  pass  title  to  the  thing 
in  controversy,  an  award,  disposing  of  such  title,  to  be  valid  must 
be  in  writing."46 

Arbitrator  must  follow  authority.  In  order  that  an  award  shall  be 
binding,  the  arbitrators  must  follow  exactly  the  authority  given  them 
by  the  agreement  of  the  parties.47  If  arbitrators  exceed  their  au- 
thority the  award  is  void  to  that  extent,  and  if  the  part  which  is 
void  cannot  be  separated  from  the  rest  without  injustice,  the  whole 
award  is  void.48  On  the  other  hand  "  unless  an  arbitrator  renders 
his  award  on  all  matters  within  the  submission,  and  of  which  he  had 
notice,  the  award  is  wholly  void."  ^  It  is  also  essential  to  the 
validity  of  an  award  that  it  be  final,  that  is,  a  termination  of  the 

Hardey,  14  Q.  B.  529;  Brown  v.  Leavitt,  26  Me.  251;  Call  r.  Hagar,  69  Me. 
521;  Quimby  v.  Melvin,  28  N.  H.  250;  Dexter  v.  Young,  40  N.  H.  190;  Miller 
v.  Junction  Canal  Co.,  53  Barb.  590,  41  N.  Y.  98;  Craftsbury  v.  Hill,  28  Vt. 
763;   Rison  v.  Moon,  91  Va.  384. 

45  Street  v.  Bigby,  6  Ves.  815;  Vickers  r.  Vickers,  L.  B.  4  Eq.  529;  Tobey 
v.  Bristol  County,  3  Story,  800;  Hill"  v.  More,  40  Me.  515;  Bowe  v.  Williams, 
97  Mass.  163;  St.  Louis  v.  St.  Louis  Gas-light  Co.,  70  Mo.  69;  March  v. 
Eastern  R.  Co.,  40  N.  H.  548;  Hurst  v.  Litchfield,  39  N.  Y.  377;  Bison  v. 
Moon,  91  Va.  384. 

4s  Brown  P.  Mize,  119  Ala.  10,  17.  Oral  submission  to  arbitration  is  gen- 
erally good.  Gardner  v.  Newman,  135  Ala.  522 ;  Shaw  v.  State,  68  Ark.  580 ; 
Phelps  v.  Dolan,  75  111.  90;  Dilks  p.  Hammond,  86  Ind.  563;  Peabody  r.  Rice, 
113  Mass.  131;  Cady  v.  Walker,  62  Mich.  157.  Otherwise  in  Louisiana  by 
statute.  MeCleandon  r.  Kemp,  18  La.  Ann.  162.  Where  title  to  land  is  in- 
volved a  deed  or  writing  is  necessary.  Copeland  v.  Wading  Biver  Co.,  105 
Mass.  397;   French  v.  New,  28  N.  Y.  147;   Fort  v.  Allen,  110  N.  C.  183. 

47McCormick  v.  Gray,  13  How.  26;  De  Groot  v.  United  States,  5  Wall. 
419;  Beynolds  v.  Beynolds,  15  Ala.  398;  Comer  v.  Thompson,  54  Ala.  265; 
Brown  v.  Mize,  119  Ala.  10;  Lee  v.  Onstott,  1  Ark.  206;  Waller  v.  Shannon, 
44  Conn.  480;  Fountain  v.  Harrington,  31  Har.  (Del.)  22;  Denman  v.  Bavless, 
22  111.  300 ;  Buntain  v.  Curtis,  27  111.  374 ;  Sthreshly  r.  Broadwell,  1  J.  J. 
Marsh.  340;  Boynton  v.  Frye,  33  Me.  216;  Sawtells  v.  Howard.  104  Mich.  54; 
Gibson  v.  Powell,  13  Miss.  712;  Adams  v.  Adams,  8  N.  H.  82;  Hiscock  v. 
Harris,  74  N.  Y.  108;  McCraeken  v.  Clarke,  31  Pa.  498;  Toomey  v.  Nichols, 
6  Heisk.  159.     Cp.  O'Neill  r.  Clark,  57  Neb.  760. 

48  Falkingham  v.  Victorian  By.  Commissioners,  [1900]  A.  C.  452;  Beynolds 
c.  Reynolds,  15  Ala.  398;  Brown  p.  Mize,  119  Ala.  10;  Boynton  v.  Frye,  33 
Me.  216;  Orcutt  v.  Butler,  42  Me.  83;  Skillings  v.  Coolid'ge,  14  Mass.  43; 
Gibson  r.  Powell,  13  Miss.  712;  Yeaton  r.  Brown,  52  N.  H.  14;  Cox  v.  Jagger, 
2  Cow.  635;  Scott  v.  Barnes,  7  Pa.  134. 

49Carnochan  v.  Christie,  11  Wheat.  446;  Porter  v.  Scott,  7  Cal.  312; 
Buntain  c.  Curtis,  27  111.  374,  379;  Stearns  r.  Cope,  109  111.  340;  Steere  r. 
Brownell,  113  111.  415;  McGregor,  &c,  B.  Co.  v.  Sioux  City,  &c,  B.  Co.,  49 
la.  604;  McNear  v.  Bailey,  18  Me,  251;  Bollins  v.  Townsend,  118  Mass.  224; 
Harker  v.  Hough,  2  Hals't.  428;  Jones  v.  Welwood,  71  N.  Y.  208;  Young  v. 


880  DISCHAKGE    OF    CONTRACTS. 

question  under  arbitration.50      Further,  the  award  must  be  certain, 
so  that  no  reasonable  question  can  be  made  as  to  its  meaning.51 

Statutory  arbitration.  In  England  and  most  of  the  United  States  a 
form  of  arbitration  under  the  direction  of  the  courts  is  provided  for 
by  statute.  The  reference  is  made  by  order  of  court  and  the  award 
is  returned  into  court  and  becomes  the  basis  of  a  judgment.  Such 
statutes  do  not  supersede  arbitration  at  common  law,  but  give  an 
alternative  and  generally  more  desirable  mode  of  procedure. 

Kinney,  48  Vt.  22;   Bean  v.  Bean,  25  VV.  Va.  604;   Blakeston  v.  Wilson,  14 
Manitoba,  271. 

50  Baillie  v.  Edinburgh  Oil  Gas-light  Co.,  3  CI.  &  F.  639 ;  The  Nineveh,  1 
Low.  400 ;  Comer  v.  Thompson,  54  Ala.  265 ;  Manuel  v.  Campbell,  3  Ark.  324 ; 
Colcord  v.  Fletcher,  50  Me.  398;  Carter  r.  Calvert,  4  Md.  Ch.  199;  Paine  r. 
Paine,  15  Gray,  299;  Smith  v.  Holcomb,  99  Mass.  552;  Hoit  r.  Berger- 
Crittenden  Co.,  81  Minn.  356;  Rhodes  v.  Hardy,  53  Miss.  587;  Spofford  v. 
Spofford,  10  N.  H.  254;  Parker  v.  Dorsey,  68  N.  H.  181;  McKeen  v.  Olyphant, 
18  N.  J.  L.  442;  Waite  v.  Barrv.  12  Wend.  377  i  In  re  Williams,  4  Denio, 
194;  Herbst  v.  Hagenaers,  137  N.  Y.  290,  affg.  62  Hun,  568;  Spalding  r. 
Irish,  4  S.  &  E.  322;  Connor  v.  Simpson,  104  Pa.  440;  Conger  v.  James,  2 
Swan,  213;   Hooker  v.  Williamson.  60  Tex.  524. 

51  Alexander  v.  McNear,  28  Fed.  Rep.  403;  Evans  v.  Sheldon,  69  Ga.  100; 
Stanford  v.  Treadwell,  69  Ga.  725;  Ingraham  v.  Whitmore,  75  111.  24;  Alfred 
v.  Kankakee,  &c,  E.  Co.,  92  111.  609;  Hollingsworth  v.  Pickering,  24  Ind. 
435;  Woodward  v.  Atwater,  3  la.  61;  Crawford  V,  Berry,  11  Gill  &  J.  310; 
Calvert  v.  Carter,  6  Md.  135;  Fletcher  r.  Webster,  5  Allen,  566;  Mather  r. 
Dav,  106  Mich.  371;  Hoit  v.  Berger-Crittenden  Co.,  81  Minn.  356;  Parker  v. 
Dorsey,  68  N.  H.  181;  Hoffman  v.  Hoffman,  2  Dutch.  175;  Jackson  r.  De 
Long,  9  Johns.  43;  Hicks  v.  Magoun,  167  N.  Y.  540;  Carson  i\  Carter,  64 
N.  C.  332;  Barnet  v.  Gilson,  3  S.  &  E.  340;  Gratz  r.  Gratz,  4  Eawle,  411; 
Stanley  v.  Southwood,  45  Pa.  189;  Harris  v.  Social  Mfg.  Co.,  9  E.  I.  99. 


TERMINOLOGY   AND   FUNDAMENTAL    CONCEPTIONS.  881 


*APPENDIX.  [679 


PAGE.  PAGE. 

Xote  A.  Terminology  and  funda-  Note    G.    Occupations,     dealings, 

mental  conceptions  of  contract,  881  &c.,  regulated  or  restrained  by 

Note   B.  Authorities  on  contract  statute,                                              909 

by  correspondence,                          882  Note  H.  Bracton  on  fundamental 
Xote  C.  History  of  the  equitable  error,                                                  913 
doctrine  of  separate  estate,         886  Note  I.  Mistake  in  wills,                 914 
Note  D.  Authorities  on  limits  of  Note   K.   On  the   supposed   equi- 
eorporate  powers,                            896  table  doctrine  of  "  making  rep- 
Note   E.   Classification     of     con-                   resentations  good,"   915 

tracts  in  Roman  and  Medieval  Note  L.   French     law     on     "  in- 

Law,                                                   902  officious "  gifts  and  captation,     922 
Note  F.  Early  authorities  on  as- 
signments of  choses  in  action,  906 

Note  A. 

Terminology  and  Fundamental  Conceptions  of  Contract. 

In  the  first  two  editions  I  made  use  of  Savigny's  definition  of 
Vertrag  (which  can  only  be  translated  by  Agreement,  but  in  a  wider 
sense  than  is  known  to  any  English  writer).    It  now  seems  to  me  out 
of  place  in  a  special  treatise  on  Contract.     In  the  third  volume  of 
his  System  Savigny  deals  in  the  most  general  way  with  the  events 
capable  of  producing  changes  in  rights  and  duties  in  the  field  of 
private  law.     Such  events  he  calls  juristische  Thatsachen ;  an  expres- 
sion to  which  our  own  accustomed  "  acts  in  the  law  "  seems  well  fitted 
to   correspond.      (Acts  in  the  law  must  be   carefully  distinguished 
from  acts  of  the  law,  which  are  really  neither  acts  nor  events,  but 
legal  consequences  of  events.     But  the  terms  are  not  common  enough 
for  any  serious  risk  of  confusion  to  arise.)    To  speak,  as  some  writers 
do,   of   "  juridical  facts/'  is  to  use  language  which  is  so  far  from 
being  English  that  it  becomes  intelligible  only  by  a  mental  re-transla- 
tion into  German.     Greater  nicety  might  be  obtained,  if  desired,  by 
coining  the  term  "  event  in  the  law  "  for  juristische  Thatsache  in  its 
widest  sense,  and  reserving  "  act  in  the  law "  for  the  species  which 
Savigny  proceeds  to  mark  off  from  the  genus,  namely,  freie  Handliing, 
or  better,  perhaps,  for  the  further  specified  kind  of  voluntary  acts 
which  manifest  an  intention  to  bring  about  particular  legal  conse- 
quences.   Such  an  act  is  called  by  Savigny  Willenserldaruug.    Specify- 
ing yet  more,  we  distinguish  the  acts  in  which  the  will  of  only  one 
party  is  expressed  from  those  in  which  the  wills  of  two  or  more  concur. 
This  last  species  gives  the  conception  of  Vertrag.     Savigny  defines 
i+  as  the  concurrence  of  two  or  more  persons  in  the  expression  of  a 
common  intention,  whereby  mutual  rights  and  duties  of  those  persons 
are  determined.     "  Vertrag  ist  die  Vereinigung  Mehrerer  zu  einer 
iibereinstimmenden  Willenserklarung,  wodurch  ihre  Bechtsverhaltnisse 
56 


882  APPENDIX. 

bestimmt  werden."  (Syst.  3.  309.)  This  covers  a  much  wider  field 
680]  than  that  of  ^contract  in  any  proper  sense.  Every  transaction 
answering  this  description  includes  an  agreement,  but  many  trans- 
actions answer  to  it  which  include  far  more ;  conveyances  of  property, 
for  example,  including  dispositions  inter  vivos  by  way  of  trust  and 
even  gifts,  and  marriage.  A  still  further  specification  is  needful  to 
arrive  at  the  notion  of  Contract.  A  contract,  in  Savigny's  way  of  ap- 
proaching it,  is  an  agreement  which  produces  or  is  meant  to  produce  an 
obligation  (obligatorischer  Vertrag).  It  is  thus  defined  in  his  Obliga- 
tionenrecht  §  52  (vol.  ii.  p.  8)  :  "Vereinigung  Mehrerer  zu  einer 
iibereinstimmenden  YVillenserklarung,  wodurch  unter  ihnen  eine  Ob- 
ligation entstchen  soil."  Now  the  use  of  the  more  general  notion 
of  Vertrag,  as  Savigny  himself  explains,  is  not  to  clear  up  anything 
in  the  learning  of  contracts.  It  is  to  bring  out  the  truth  that  other 
transactions  which  are  not  contracts,  or  which  are  more  than  con- 
tracts, have  in  common  with  them  the  character  of  consent  being  an 
essential  ingredient.  Moreover  we  should  have  to  consider,  before 
adopting  this  terminology,  the  wider  question  whether  the  retention 
of  Obligations  as  a  leading  division  in  a  modern  system  of  law, 
and  especially  English  law,  be  necessary  or  desirable.  On  the  other 
hand,  this  definition  leaves  aside  the  somewhat  important  question 
whether  and  in  what  cases  a  binding  obligation  can  be  produced  by 
a  merely  unilateral  declaration. 

The  distinction  between  the  ideas  denoted  by  dominium  and  obli- 
gatio  is  certainly  as  fundamental  in  England  as  anywhere  else;  and 
the  habit  of  using  "  obligation  "  as  a  synonym  of  "  duty,"  though 
respectable  authority  may  be  found  for  it,  is  in  my  opinion  to  be 
deprecated.  But  to  apply  the  Eoman  terminology  to  the  Common 
Law  would  be  as  violent  a  proceeding,  in  any  case,  as  to  ignore  it 
in  Eoman  law. 

For  these  reasons  Savigny's  definition,  admirable  as  it,  is  for  its 
own  purposes  and  its  own  context,  and  instructive  as  his  work  is  almost 
everywhere  as  an  example  of  scientific  method,  is  now  reserved  for 
this  note.  The  reasons  for  which  I  am  no  longer  content  to  adopt  the 
Indian  Contract  Act  to  the  same  extent  as  in  the  two  first  editions 
have  been  sufficiently  explained  in  the  text. 


Note  B.  (p.  *37). 

Authorities  on  Contract  by  Correspondence. 

Adams  v.  Lindsell.  The  first  case  of  any  importance  is  Adams  v. 
Lindsell,  1  B.  &  Aid.  681  (1818),  Pinch  Sel.  Ca.  102.  Defendants 
681]  wrote  to  plaintiffs,  *"'We  now  offer  you  800  tods  of  wether 
fleeces,  &c."  (specifying  price  and  mode  of  delivery  and  payment). 
'•  receiving  your  answer  in  course  of  post."  Here,  therefore,  the  mode 
and  time  for  acceptance  were  prescribed.  This  letter  was  misdirected, 
and  so  arrived  late.     On  receiving  it,  the  plaintiffs  wrote  and  sent  by 


CONTRACT    BY    CORRESPONDENCE.  883 

post  a  letter  accepting  the  proposal,  but  the  defendants,  not  receiving 
an  answer  when  they  should  have  received  it  if  their  proposal  had  not 
been  delayed,  had  in  the  meantime  (between  the  despatch  and  the 
arrival  of  the  reply)  sold  the  wool  to  another  buyer.  The  jury 
wore  directed  at  the  trial  that  as  the  delay  was  occasioned  by  the 
neglect  of  the  defendants,  they  must  take  it  that  the  answer  did  come 
back  by  course  of  post.  On  the  argument  of  a  rule  for  a  new  trial, 
it  was  contended  that  there  was  no  contract  till  the  answer  was  re- 
ceived.   To  this  the  Court  replied : — 

"  If  that  were  so,  no  contract  could  ever  becompleted  by  the  post. 
For  if  the  defendants  were  not  bound  by  their  offer  when  accepted 
by  the  plaintiffs  till  the  answer  was  received,  then  the  plaintiffs  ought 
not  to  be  bound  till  after  they  had  received  the  notification  that  the 
defendants  had  received  their  answer  and  assented  to  it;  and  so  it 
might  go  on  ad  infinitum.  The  defendants  must  be  considered  in  law 
as  making,  during  every  instant  of  the  time  their  -letter  was  travelling, 
the  same  identical  offer  to  the  plaintiffs,  and  then  the  contract 
is  completed  by  the  acceptance  of  it  by  the  latter.  Then  as  to  the 
delay  in  notifying  the  acceptance,  that  arises  entirely  from  the  mis- 
take of  the  defendants,  and  it  therefore  must  be  taken  as  against 
them  that  the  plaintiff's  answer  was  received  in  course  of  post." 

As  far  as  the  case  goes,  it  seems  to  amount  to  this :  As  acceptance 
by  letter  is  complete  as  against  the  proposer  from  the  date  of  post- 
ing the  acceptance  if  it  arrives  within  the  prescribed  time,  if  any, 
or  otherwise  within  a  reasonable  time;  but  if  the  communication  of 
the  proposal  is  delayed  by  the  fault  of  the  proposer,  and  the  com- 
munication of  the  acceptance  is  consequently  delayed,  such  delay  is 
not  to  be  reckoned  against  the  acceptor. 

Dunmore  v.  Alexander  (Sc).  In  the  Scotch  case  of  Dunmore  v.  Alex- 
ander, 9  Shaw  &  Dunlop,  109,  and  Finch.  Sel.  Ca.  120  (1830)1  the 
defendant  wrote  to  a  friend  desiring  her  to  engage  a  servant  on  terms 
which,  that  friend  had  already  informed  the  writer,  would  be  agree- 
able to  the  servant.  A  letter  revoking  this  was  written  the  next  day ; 
ultimately  they  were  both  posted  and  delivered  to  the  servant  at  the 
6ame  time.  It  was  held  that  no  contract  was  concluded,  but  it  is  not 
clear  whether  the  majority  of  the  Court  meant  to  decide  that  an  ac- 
ceptance sent  through  the  post  is  neutralized  by  a  revocation  arriving 
at  the  same  *time  though  posted  later,  or  that  the  first  letter  [682 
was  only  a  proposal.  Neither  is  it  clear  how  far  and  for  what  pur- 
poses they  regarded  the  intermediate  person  as  an  agent  for  either 
or  both  of  the  parties.  No  distinction  was  taken  between  postal  and 
other  communications.  The  French  Court  of  Cassation  had  held  in 
1813  that  when  an  acceptance  and  the  revocation  of  it  arrive  together 
there  is  no  contract.  Merlin,  Eepertoire,  Vente,  §  1,  Art.  3,  No.  11 
lis,  Langdell  Sel.  Ca.  Cont.  155. 

1  In  the  later  case  of  Thompson  v.  James,  18  Dunlop,  1 :  Langdell's  Sel. 
Cas.  Cont.  125,  it  was  decided,  dissentients  Ld.  Curriehill,  that  a  contract  by 
letter  is  complete  from  the  moment  of  posting  the  acceptance. 


884  APPENDIX. 

Potter  v.  Sanders.  In  Potter  v.  Sanders  (1846)  6  Ha.  1,  the  posting 
of  a  letter  of  acceptance  is  said  to  be  an  act  which  "  unless  interrupted 
in  its  progress  "  concludes  the  contract  as  from  the  date  of  the  posting. 
This  seems  to  imply  that  a  letter  not  received  at  all  would  not  bind  the 
proposer. 

Dunlop  v.  Higgins.  Then  comes  Dunlop  v.  Higgins  (1848)  1  H.  L. 
C.  381,  Finch  Sel.  Ca.  108,  a  Scotch  appeal  decided  by  Lord  Cotten- 
ham.  Here  the  proposal  did  not  prescribe  any  time,  but  the  nature  of 
it  (an  offer  to  sell  iron)  implied  that  the  answer  must  be  speedy. 
The  acceptance  was  posted,  not  by  the  earliest  possible  post,  but  in 
business  hours  on  the  same  day  when  the  proposal  was  received.  The 
post  was  then  delayed  by  the  state  of  the  roads,  so  that  the  acceptance 
was  received  at  2  p.m.  instead  of  8  a.m.,  the  hour  at  which  that  post 
should  have  arrived.  The  decision  was  that  the  contract  was  binding 
on  the  proposer;  and  it  might  well  have  been  put  on  the  ground  that 
the  acceptance  in  fact  reached  him  within  a  reasonable  time.  Lord 
Cottenham,  however,  certainly  seems  to  have  thought  the  contract  was 
absolutely  concluded  by  the  posting  of  the  acceptance  (within  the  pre- 
scribed or  a  reasonable  time),  and  that  it  mattered  not  what  became  of 
the  letter  afterwards.  It  appears  to  have  been  so  understood  in 
Duncan  v.  Topham  (1849)  8  C.  B.  225,  18  L.  J.  C.  P.  310,  where, 
however,  the  decision  was  on  other  grounds. 

Hebb's  case  and  Reidpath's  case.  The  later  cases  arose  out  of  appli- 
cations for  shares  in  companies  being  made  and  answered  by  letter. 
Hebb's  case  (1867)  L.  E.  4  Eq.  9,  decides  only  that  an  allotment  of 
shares  not  duly  despatched  will  not  make  a  man  a  shareholder ;  for 
the  letter  of  allotment  was  sent  to  the  company's  local  agent,  who  did 
not  deliver  it  to  the  applicant  till  after  he  had  withdrawn  his  applica- 
tion. But  the  same  judge  (Lord  Eomilly)  held  in  Reidpath's  case 
(1870)  L.  B.  11  Eq.  86,  40  L.  J.  Ch.  39,  that  the  applicant  was  not 
bound  if  he  never  received  the  letter. 

British  and  American  Telegraph  Co.  v.  Colson.  In  British  and  American 
Telegraph  Company  v.  Colson  (1871)  L.  E.  6  Ex.  108,  40  L.  J.  Ex. 
97,  it  was  found  as  a  fact  that  the  letter  of  allotment  was  never  re- 
ceived. The  Court  (Kelly  C.  B.,  Pigott  B.,  and  Bramwell  B.)  bold 
683]  that  the  defendant  was  not  *bound,  and  endeavoured  to  restrict 
the  effect  of  Dunlop  v.  Higgins. 

Townsend's  case.  In  Townsend's  case  (1871)  L.  E.  13  Eq.  148,  41 
L.  J.  Ch.  198,  the  letter  of  allotment  miscarried,  and  was  delayed  some 
days  by  the  applicant's  own  fault  in  giving  a  defective  address.  By 
a  simple  application  of  Adams  v.  Lindsell  (expressly  so  treated  in  the 
judgment,  L.  B.  13  Eq.,  p.  154)  it  was  held  that  the  applicant  was 
bound,  and  that  a  withdrawal  of  his  application,  posted  (and  it  seems 
delivered,  p.  151)  before  he  actually  received  the  letter  of  allotment, 
was  too  late. 

Harris'  case.  In  Harris'  case,  L.  E.  7  Ch.  587,  the  letter  of  allotment 
was  duly  received,  but  in  the  meantime  the  applicant  had  written  a 


CONTRACT    BY    CORRESPONDENCE.  885 

letter  withdrawing  his  application  on  the  ground  of  the  delay  (ten 
dn}>)  in  answering  it.  These  letters  crossed.  The  Lords  Justices 
(James  and  Mellish)  held  that  the  applicant  was  bound,  on  the  au- 
thority of  Dunlop  v.  Higgins,  with  which  they  thought  it  difficult  to 
reconcile  British  and  Amer.  Telegraph  Go.  v.  Golson  (a).  On  this, 
however,  no  positive  opinion  was  given,  "  because  although  the  con- 
tract is  complete  at  the  time  when  the  letter  accepting  the  offer  is 
posted,  yet  it  may  be  subject  to  a  condition  subsequent  that  if  the 
letter  does  not  arrive  in  due  course  of  post,  then  the  parties  may  act 
on  the  assumption  that  the  offer  has  not  been  accepted"  (per  Mellish 
L.J.  at  p.  597). 

Wall's  case.  In  Wall's  case  (1872)  L.  E.  15  Eq.  18,  42  L.  J.  Ch. 
372,  Malins  V.-C.  held  that  as  a  fact  the  letter  had  been  received, 
inclining,  however,  to  think  Harris'  case  an  authority  for  the  more 
stringent  construction  of  Dunlop  v.  Higgins — viz.,  that  the  contract 
is  absolute  and  unconditional  by  the  mere  posting.  This  construc- 
tion was  held  by  the  Court  of  Appeal  in  Household  Fire  Insurance  Go. 
v.  Grant  (1879)  4  Ex.  D.  216,  48  L.  J.  Ex.  577,  p.  *36,  above,  to  be 
the  correct  one. 

American  and  foreign  authorities.  The  American  case  of  Tayloe  v.  Mer- 
chants' Fire  Insurance  Co.,  9  How.  S.  C.  390  (1850)  is  of  less  im- 
portance to  English  readers  than  it  formerly  was,  the  ground  being 
now  fully  covered  by  our  own  decisions.  The  insurance  company's 
agent  wrote  to  the  plaintiff  offering  to  insure  his  house  on  certain 
terms.  The  plaintiff  wrote  and  posted  a  letter  accepting  those  terms, 
which  was  duly  received.  The  day  after  it  was  posted,  but  before 
it  was  delivered,  the  house  was  burnt.  The  objection  was  made, 
among  others,  that  there  was  no  complete  contract  before  the  receipt 
of  the  letter,  an  assent  of  *the  company  after  the  acceptance  of  [684 
the  proposed  terms  being  essential.  But  the  Court  held  that  such  a 
doctrine  would  be  contrary  to  mercantile  usage  and  understanding, 
and  defeat  the  real  intent  of  the  parties.  This  decides  that  a  con- 
tract is  complete  as  against  the  proposer  by  posting  a  letter  which  is 
duly  delivered.    It  may  still  be  useful  to  cite  part  of  the  judgment : — 

"  The  fallacy  of  the  argument,  in  our  judgment,  consists  in  the 
assumption  that  the  contract  cannot  be  consummated  without  a 
knowledge  on  the  part  of  the  company  that  the  offer  has  been  ac- 
cepted. This  is  the  point  of  the  objection.  But  a  little  reflection  will 
show  that  in  all  cases  of  contracts  entered  into  between  parties  at  a 
distance  by  correspondence  it  is  impossible  that  both  should  have  a 
knowledge  of  it  the  moment  it  becomes  complete.  This  can  only 
exist  where  both  parties  are  present.  .  .  It  is  obviously  impos- 
sible ever  to  perfect  a  contract  by  correspondence,  if  a  knowledge  of 
both  parties  at  the  moment  they  become  bound  is  an  essential  element 
in  making  out  the  obligation.     .     .     It  seems  to  us  more  consistent 

(a)  It  seems  not  to  have  been  disputed  that  the  letter  of  allotment  was  in 
fact  sent  within  a  reasonable  time. 


886  APPENDIX. 

with  the  acts  and  declarations  of  the  parties  to  consider  it  complete 
on  the  transmission  of  the  acceptance  of  the  offer  in  the  way  they 
themselves  contemplated,  instead  of  postponing  its  completion  till 
notice  of  such  acceptance  has  been  received  and  assented  to  by  the 
company. 

"  For  why  make  the  offer,  unless  intended  that  an  assent  to  its 
terms  should  bind  them?  And  why  require  any  further  assent  on 
their  part  after  an  unconditional  acceptance  by  the  party  to  whom  it 
is  addressed?"     (Pp.  400,  401.) 

Place  of  contract  where  it  is  made  by  correspondence.  There  seems  to  be 
a  fair  consensus  of  authority,  such  as  there  is,  for  holding  that  the 
place  to  which  \  contract  made  by  correspondence  should  be  referred 
is  that  whence  the  acceptance  is  despatched.  Savigny,  Syst.  8.  253, 
257;  Newcomb  v.  De  Roos  (1859)  2  E.  &  B.  270,  29  L.  J.  Q.  B.  4.2 
Conversely,  where  an  offer  to  buy  goods  is  made  by  a  letter  posted  in 
the  City  of  London,  and  accepted  by  sending  the  goods  to  the  writer's 
place  of  business  in  the  City,  the  whole  cause  of-  action  arises  in  the 
City.  Taylor  v.  Jones  (1875)  1  C.  P.  D.  87,  45  L.  J.  C.  P.  110.  So 
in  criminal  law  a  false  pretence  contained  in  a  letter  sent  by  post  is 
made  at  the  place  where  the  letter  is  posted.  Reg.  v.  Holmes  (1883) 
12  Q.  B.  D.  23,  53  L.  J.  M.  C.  37. 


685]  *Note  C.   (p.  *88). 

History  of  the  Equitable  Doctrine  of  Separate  Estate. 

Separate  estate:  Power  of  alienation.  When  the  practice  of  settling 
property  to  the  separate  use  of  married  women  first  became  common, 
it  seems  probable  that  neither  the  persons  interested  nor  the  convey- 
ancers had  any  purpose  in  their  minds  beyond  excluding  the  husband's 
marital  right  so  as  to  secure  an  independent  income  to  the  wife.  The 
various  forms  of  circumlocution  employed  in  all  but  very  modern  set- 

2  Shattuck  v.  Insurance  Co.,  4  Cliff.  598 ;  Levy  r.  Cohen,  4  Ga.  1 ;  Gipps 
Brewing  Co.  v.  De  France,  91  la.  108;  Latrobe  v.  Winans,  89  Md.  636;  Com- 
monwealth Ins.  Co.  v.  Knabe,  171  Mass.  265;  Insurance  Co.  v.  Tuttle,  40 
N.  J.  L.  476;  State  v.  Groves,  121  N.  C.  632;  Perry  v.  Mt.  Hope  Iron  Co.,  15 
R.  I.  380;  Tillinghast  r.  Lumber  Co.,  39  S.  C.  484;  cp.  Farmers'  Co.  v. 
Bazore,  67  Ark.  252;  Bell  v.  Packard,  69  Me.  105;  Milliken  v.  Pratt,  125 
Mass.  374;  -Meyer  v.  Estes,  164  Mass.  457;  Baum  r.  Birchall,  150  Pa.  104. 
[f  a  person  residing  in  one  State  orders  goods  of  one  residing  in  another 
State,  who  there  delivers  the  goods  ordered  to  a  carrier  for  the  purchaser, 
the  contract  is  made  there,  and  its  validity  depends  upon  the  law  of  the  State 
of  the  seller's  residence.  Frank  r.  Hoey,  128  Mass.  263;  Milliken  i>.  Pratt, 
125  Mass.  374;-  Kline  P.  Baker,  99  Mass.  253;  Finch  r.  Mansfield,  97  Mass.  89; 
Webber  r.  Donnellv.  33  Mich.  469;  Boothbv  r.  Plaisted,  51  N.  H.  436;  Fuller 
r.  Leet,  59  N.  H.  "l63;  Tegler  v.  Shipmaii,  33  la.  194;  State  v.  Hughes,  22 
W.  Va.  743;  Tuttle  v.  Holland,  43  Vt.  542;  Garbracht  r.  Commonwealth,  96 
Pa.  449.  Even  though  the  goods  are  shipped  C.  O.  D.  the  better  view  is  that 
the  title  passes  on  shipment.     See  4  Col.  L.  Eev.  541. 


SEPARATE  ESTATE.  887 

tlements  to  express  what  is  now  sufficiently  expressed  by  the  words 
"  for  her  separate  use,"  will  at  once  suggest  themselves  as  confirming 
this.  In  course  of  time,  however,  it  was  found  that  by  recognizing 
this  separate  use  the  Court  of  Chancery  had  in  effect  created  a  new 
kind  of  equitable  ownership,  to  which  it  was  impossible  to  hold  that 
the  ordinary  incidents  of  ownership  did  not  attach.  Powers  of  dis- 
position were  accordingly  admitted  including  alienation  by  way  of 
mortgage  or  specific  charge  as  well  as  absolutely;  and  we  find  it  laid 
down  in  general  terms  in  the  latter  part  of  the  eighteenth  century  that 
a  feme  covert  acting  with  respect  to  her  separate  property  is  competent 
to  act  as  a  feme  sole  (c).  Nevertheless  the  equitable  ownership  of  real 
estate  by  means  of  the  separate  use,  carrying  as  incidents  the  same 
full  right  of  disposition  by  deed  or  will  that  a  feme  sole  would  have, 
was  fully  recognized  only  by  much  later  decisions  (d).  From  a  mort- 
gage or  specific  charge  on  separate  property  to  a  formal  contract  under 
seal,  such  as  if  made  by  a  person  sui  iuris  would  even  then  have  bound 
real  estate  in  the  hands  of  his  heir,  we  may  suppose  that  the  transition 
did  not  seem  violent ;  and  instruments  expressing  such  a  contract  to  be 
entered  into  by  a  married  woman  came  to  be  regarded  as  in  some  way 
binding  on  any  separate  property  she  might  have.  In  what  way  they 
were  binding  was  not  settled  for  a  good  while,  for  reasons  best  stated 
in  the  words  of  V.-C.  Kindersley's  judgment  in  Vaughan  v.  Vander- 
stegen  (e). 

Power  to  bind  the  separate  estate  by  formal  instruments:  historical  view 
given  by  V.-C.  Kindersley.  "  The  Courts  at  first  ventured  so  far  as  to 
hold  that  if  "  a  married  woman  "  made  a  contract  for  payment  of 
money  by  a  written  instrument  with  a  certain  degree  of  formality 
and  solemnity,  as  by  *a  bond  under  her  hand  and  seal,  in  that  [686 
case  the  property  settled  to  her  separate  use  should  be  made  liable 
to  the  payment  of  it;  and  this  principle  (if  principle  it  could  be 
called)  was  subsequently  extended  to  instruments  of  a  less  formal 
character,  as  a  bill  of  exchange  or  promissory  note,  and  ultimately 
to  any  written  instrument.  But  still  the  Courts  refused  to  extend  it 
to  a  verbal  agreement  or  other  assumpsit,  and  even  as  to  those  more 
formal  engagements  which  they  did  hold  to  be  payable  out  of  the 
separate  estate,  they  struggled  against  the  notion  of  their  being  re- 
garded as  debts,  and  for  that  purpose  they  invented  reasons  to  justify 
the  application  of  the  separate  estate  to  their  payment  without  recog- 
nizing them  as  debts  or  letting  in  verbal  contracts.  One  suggestion 
was  that  the  act  of  disposing  of  or  charging  separate  estate  by  a  mar- 
ried woman  was  in  reality  the  execution  of  a  power  of  appointment  (f), 

(c)  Hulmev.  Tenant  (1778)   1  Wh.  (d)    Taylor  v.  Meads    (1865)    4  D. 

&    T.    L.    C.      In    Peacock    v.    Monk  J.  &  S.  597,  34  L.  J.  Ch.  203;  Pride  v. 

(1750-1)    2   Ves.    Sr.    190,   there   re-  Bubo  (1871)  L.  K.  7  Ch.  64,  41  L.  J. 

ferred  to  by  Lord  Thurlow,  no  such  Ch.  105. 

general    rule    is    expressed.      As    to  (e)    (1853)   2  Drew.  165,  180. 

the   recognition  of  separate  property  (f)    E.g.   Duke   of  Bolton   v.    Wil- 

by    Courts     of     Common     Law,     see  Hams  ( 1793 )  2  Ves.  Jr.  at  p.  149. 
Duncan  v.   Cashin    (1875)    L.  R.    10 
C.  P.  554,  44  L.  J.  C.  P.  396. 


888  APPENDIX. 

and  that  a  formal  and  solemn  instrument  in  writing  would  operate  as 
an  execution  of  a  power,  which  a  mere  assumpsit  would  not  do.  .  .  . 
Another  reason  suggested  was  that  as  a  married  woman  has  the  right 
and  capacity  specifically  to  charge  her  separate  estate,  the  execution  by 
her  of  a  formal  written  instrument  must  be  held  to  indicate  an  in- 
tention to  create  such  special  charge,  because  otherwise  it  could  not 
have  any  operation.'' 

Earlier  doctrines  now  untenable.  Both  these  suggestions  are  on  the 
later  authorities  untenable,  as  indeed  V.-C.  Kindersley  then  (1853) 
judged  them  to  be  (g)  ;  the  theory  of  specific  charge  was  revived  in 
the  later  case  of  Shall  ock  v.  Shattock  (h),  but  this  must  be  con- 
sidered as  overruled  (i).  It  had  really  been  discarded  by  Lord  Eldon 
as  long  ago  as  1803  in  a  case  which  seems  to  have  been  overlooked  (A'). 
One  or  two  other  suggestions — such  as  that  a  married  woman  should 
have  only  such  power  of  dealing  with  her  separate  estate  as  might 
be  expressly  given  her  by  the  instrument  creating  the  separate  use — 
were  thrown  out  about  the  beginning  of  the  nineteenth  century  (I), 
during  a  period  of  reaction  in  which  the  doctrine  was  thought  to  have 
gone  too  far,  but  they  did  not  find  acceptance;  and  the  dangers 
which  gave  rise  to  these  suggestions  were  and  still  are  provided 
687  ]  against  *in  another  way  by  the  curious  device  of  the  restraint  on 
anticipation  (m).3 

Judgment  of  Turner  L.J.  in  Johnson  v.  Gallagher.  The  modern  locus 
classicus  on  the  subject  is  the  judgment  of  Turner  L.J.  in  Johnson  v. 
Gallagher  (n),  which  had  the  full  approval  of  the  Judicial  Commit- 
tee (o)  and  of  the  Court  of  Appeal  in  Chancery  (p).  The  general 
result  was  to  this  effect : 

"  General  engagements "  may  bind  separate  estate  without  special  form : 
rules  as  to  this:  "  Not  only  the  bonds,  bills,  and  promissory  notes  of 
married  women,  but  also  their  general  engagements,  may  affect  their 

(g)    Cp.  Murray  v.  Barlee    (1834)  (m)    See    Lord    Cottenham's    judg- 

3  M.  &  K.  209,  where  the  arguments  ment  in  Tullett  v.  Armstrong   ( 1838 ) 

show    the    history    of    the    doctrine;  4  My.  &  Cr.  393,  405,  48  R.  R.  127. 

Owens  v.  Dickenson    (1840)    1  Cr.   &  Restraint   on   anticipation   can    exist 

Ph.    48.    53,    where    the    notions    of  only  as  incidental  to  a  trust  for  sep- 

power     and     charge     are     both     dis-  arate  use.     Such   a  trust  cannot   be 

missed  as  inapplicable  by  Lord   Cot-  supplied  in  order  to  give  effect  to  a 

tenham.  restraint:      Stogdon  v.  Lee   [1891]    1 

(h)    (1860)    L.  R.  2  Eq.   182,   193,  Q.  B.  661,  670,  60  L.  J.  Q.   B.   669. 

35  L.  J.  Ch.  509.  C.  A. 

(t)   Robinson  v.   Pickering    (1881)  (n)    (1861)    3  D.  F.  &  J.  494,  509 

16  Ch.  Div.  660,  50  L.  J.  Ch.  527.  sqq.,   30  L.  J.  Ch.  298. 

(k)   Nantes  v.  Corrock,  9  Ves.  182,  (o)     London    Chartered    Bank    of 

7  R.  R.  156.  Australia  v.  Lempriere   (1873)    L.  R. 

(Z)    See  Jones  v.  Harris    (1804)    9  4  P.  C.  572,  42  L.  J.  P.  C.  49. 
Ves.    486,    497,    7    R.    R.    282,    288;  (p)    Pirard  v.   Bine    (1869)    L.  R. 

Parkes   v.    White    (1804-5)     11    Ves.  5  Ch.  274. 
209,  220  sqq. .   and  collection  of  cases 
5  Ves.   17,  note. 

3  See  Brown  r.  McGill,  87  Md.  161. 


SEPARATE  ESTATE.  889 

separate  estates  "  (3  D.  F.  &  J.  514) ;  and  property  settled  to  a  mar- 
ried woman's  separate  use  for  her  life,  with  power  to  dispose  of  it  by 
deed  or  will,  is  for  this  purpose  her  separate  estate  (g). 

These  "  general  engagements  "  are  subject  to  the  forms  imposed 
by  the  Statute  of  Frauds  or  otherwise  on  the  contracts  made  in  pari 
materia  by  persons  competent  to  contract  generally,  but  not  to  any 
other  form :  there  is  no  general  rule  that  they  must  be  in  writing.4 

A  "  general  engagement "  is  not  binding  on  the  separate  estate  un- 
less it  appear  "  that  the  engagement  was  made  with  reference  to  and 
upon  the  faith  or  credit  of  that  estate  "  (3  D.  P.  &  J.  515). 

Whether  it  was  so  made  is  a  question  of  fact  to  be  determined  on 
all  the  circumstances  of  the  case :  it  is  enough  "  to  show  that  the 
married  woman  intended  to  contract  so  as  to  make  herself — that  is 
to  say,  her  separate  property — the  debtor"  (L.  E.  4  P.  C.  597.) 

Such  intention  is  presumed  in  the  case  of  debts  contracted  by  a 
married  woman  living  apart  from  her  husband  (3  D.  F.  &  J.  521  ).5 
(This  tallies  with  the  rule  of  common  law,  which  in  this  case  ex- 
cludes even  as  to  necessaries  the  ordinary  presumption  of  authority 
to  pledge  the  husband's  credit :  see  notes  to  Manby  v.  Scott  in  2  Sm. 
L.  C.) 

The  like  intention  is  inferred  where  the  transaction  would  be  other- 
wise unmeaning,  as  where  a  married  woman  gives  a  guaranty 
*for  her  husband's  debt  (r)°  or  joins  him  in  making  a  promis-  [688 
scry  note  (s).7 

The  "  engagement "  of  a  married  woman  differs  from  a  contract, 
inasmuch  as  it  gives  rise  to  no  personal  remedy  against  the  married 
woman,   but   only   to   a   remedy   against   her   separate   property  (t)\ 

{q)  Hayd  v.  Field,  (1876)   3  Ch.  D.  referring  to  the  separate  estate,  was 

587,  593,  45  L.  J.  Ch.  699,  s.  v.  Roper  effectual  to  bind   it. 
v.  Doncaster,  note    (w)    next  page.  (s)    Davies   v.    Jenkins    (1877)     6 

(r)  Morrell  v.  Cowan  (1877)  6  Ch.  Ch.  D.  728. 
D.  166  (reversed  7  Ch.  Div.  151,  47  (t)  Hence,  before  the  Act  of  1882, 
L.  J.  Ch.  73,  but  only  on  the  con-  the  married  woman,  not  being  a  real 
struction  of  the  document),  where  debtor,  was  not  subject  to  the  bank- 
no  attempt  was  made  to  dispute  that  ruptcy  law  in  respect  of  h^r  separate 
the   guaranty,    though   not   expressly  estate:  Ex  parte  Jones  (1879)   12  Ch. 

Div.  484,  48  L.  J.  Bk.  109. 

•*  Indiana  Yearly  Meeting  v.  Haines,  47  Ohio  St.  423. 

6  Coleman  v.  Wooley's  Exr.,  10  B.  Mon.  320 ;  Johnson  v .  Cummins,  16  N".  J. 
Eq.  97;   Harshberger's  Admr.  v.  Alger,  31  Gratt.  52,  63. 

6  Williamson  v.  Cline,  40  W.  Va.  194. 

7  Williams  v.  Urmston,  35  Ohio  St.  296;  Cowles  v.  Morgan,  34  Ala.  535; 
Nunn  r.  Givhan,  45  Ala.  375;  McKenna  r.  Eowlett,  68  Ala.  186;  Lincoln  r. 
Rowe.  51  Mo.  571;  Burnett  e.  Hawpe's  Exr..  25  Gratt.  481,  488;  or  gives  her 
note  in  payment  of  her  husband's  debt;  Wicks  v.  Mitchell,  9  Kan.  80;  Skid- 
more  v.  Jett,  35  W.  Va.  544;  or  gives  him  her  blank  indorsement,  even 
though  he  misapply  it;  Frank  v.  Lilienfeld,  33  Gratt.  377.  "Such  presump- 
tion cannot  be  overcome  by  testimony  by  the  wife,  that  such  was  not  her 
intention.  Unless  there  are  circumstances  surrounding  the  transaction  which 
show  that  such  was  not  her  intention,  it  is  not  material  what  her  secret  pur- 
pose was,  and  the  presumption  aforesaid  will  prevail."  Hershizer  v.  Flor- 
ence, 39  Ohio  St.  516;  Harris  v.  Wilson,  40  Ohio  St.  301.  But  see  note  9 
below. 


890  APPENDIX. 

But  it  creates  no  specific  charge,  and  therefore  the  remedy  may  be 
lost  by  her  alienation  of  such  property  before  suit  (3  D.  F.  &  J.  515, 
519,  520-2)  (w).8  On  the  same  principle  the  exercise  by  a  married 
woman  of  a  general  testamentary  power  of  appointment  does  not 
make  the  appointed  fund  liable  to  her  engagements,  for  it  is  never 
her  separate  property  (x)- 

In  cases  where  specific  performance  would  be  granted  as  between 
parties  sui  iuris,  a  married  woman  may  enforce  specific  performance 
of  a  contract  made  with  her  where  the  consideration  on  her  part  was 
an  engagement  binding  on  her  separate  estate  according  to  the  above 
rules;  and  the  other  party  may  in  like  manner  enforce  specific  per- 
formance against  her  separate  estate  (y)  .9 

(it)     Ace.    Rolinson    v.    Pickering  [1894]    1  Ch.  549,  63  L.  J.  Ch.  334; 

(1881)   16  Ch.  Div.  660,  50  L.  J.  Ch.  Be  Hughes  [1898]  1  Ch.  529,  67  L.  J. 

527,  which  decided  that  a  creditor  of  Ch.  279,  C.  A.;  Re  Hodgson  [1899]   1 

a  married  woman  on  the  faith  of  her  Ch.  666,  68  E.  J.  Ch.  313. 
separate  estate  is  not  thereby  entitled  (y)   The  cases  cited  in  Sug.  V.  & 

to  a  charge  on  her  separate  property,  P.   206,   so  far   as   inconsistent  with 

or   to  an   injunction   to   restrain   her  the  modern  authorities   (see  Picard  V. 

from  dealing  with  it.  Hvne    (1869)    L.  E.  5  Ch.  274,  where 

(a-)   Roper  v.  Doncaster  (1888)   39  the  form   of  decree  against   the  sep- 

Ch.  D.  482,  58  L.  J.  Ch.  31;  qu.  how  arate  estate  is  given,   Pride  V.   Bubb 

far   consistent   with    Mayd   v.   Field,  (1871)   L.  B.  7  Ch.  64,  41  L.  J.  Ch. 

note  (q) ,  last  page.     As  to  the  effect  105),    must    be    considered    as    over- 

of  s.  4  of  the  Married  Women's  Prop-  ruled, 
erty    Act,     1882,    see    now    Re    Ann 

8  The  creditor  has  no  lien  before  suit  brought  and  creditors  are  not  entitled 
to  priority  in  the  order  in  which  they  became  such.  Western  Bank  r.  Na- 
tional Bank,  91  Md.  613;  Klenke  v.  Koeltze,  75  Mo.  239;  Davis  r.  Smith,  75 
Mo.  219;  Maxon  r.  Scott,  55  N.  Y.  247;  Hill  v.  Mvers,  46  Ohio  St.  183;  Ekerly 
v.  McGee,  85  Tenn.  661;  Hughes  v.  Hamilton,  19  W.  Va.  366;  Bruff  r.  Thomp- 
son, 31  W.  Va.  16;  Todd  r.  Lee,  16  Wis.  480.  The  engagement  of  a  married 
woman,  entered  into  when  she  had  no  separate  estate,  will  not  bind  her  subse- 
quently acquired  separate  property.  Palliser  v.  Gurney,  19  Q.  B.  D.  519;  Anke- 
nev  v.  Harmon,  187  U.  S.  118;  Parker  v.  Marks,  82  Ala.  548;  Koeher  v.  Cornell, 
59  Neb.  315;  Fallis  r.  Keys,  35  Ohio  St.  265;  Sticken  v.  Schmidt,  64  Ohio  St. 
354;  Crockett  r.  Doriot,  85  Va.  240.  Contra,  Williamson  v.  Cline,  40  W.  Va. 
194.  Cp.  Harvey  ?'.  Curry,  47  W.  Va.  800.  Under  statutes  permitting  married 
women  to  acquire  property  by  purchase,  it  has  been  held  that  a  married 
woman  "  may  purchase  property,  either  real  or  personal,  upon  credit,  and  is 
personally  liable  for  the  purchase  price  as  if  she  were  a  feme  solr  ■  and  this 
although  she  had  no  separate  estate  at  the  time  of  the  purchase  and  without 
regard  to  the  question  as  to  the  purpose  for  which  the  purchase  was  made." 
Tiemeyer  v.  Turnquist,  85  N.  Y.  516;  Ackley  v.  Westervelt,  86  N.  Y.  448; 
Jones  'v.  Fleming,  104  N.  Y.  418,  432;  Cramer  v.  Hanaford,  53  Wis.  85.  But 
see  Leinbach  v.  Templin,  105  Pa.  522,  24  A.  L.  Eeg.  127,  and  the  note  thereto. 

9  Brunei-  v.  Wheaton,  46  Mo.  363;  Hinkley  r.  Smith,  51  N.  Y.  21.  A  mar- 
ried woman  who  makes  an  engagement  binding  on  her  separate  estate  for 
the  purchase  of  land  is  liable  in  damages  for  breach  of  the  engagement. 
Boeckler  v.  McGowan,  9  Mo.  App.  373.  In  Morgan  v.  Perhamus,  36  Ohio  St. 
517,  it  was  held  that  a  married  woman  who  being  engaged  in  business  with 
her  separate  property  on  her  own  account,  had  sold  her  stock  of  goods  to- 
gether with  the  good- will  of  her  business  and  engaged  not  to  carry  on  the 
same  business  within  certain  limits,  should  be  enjoined  from  carrying  on 
such  business  in  violation  of  her  engagement. 

"  It  is  not  the  woman,  as  a  woman,  who  becomes  the  debtor,  but  her  en- 
gagement has   made  that  particular  part   of  her   property  which   is   settled 


SEPARATE  ESTATE.  891 

A  married  woman's  engagement  relating  to  her  separate  property 
will  have  the  same  effect  as  the  true  contract  of  an  owner  sui  iuris 
in  creating  an  obligation  which  will  be  binding  on  the  property  in  the 
hands  of  an  assignee  with  notice  (z). 

Effect  of  cessation  of  coverture.  If  a  married  woman  becomes  sui  iuris 
by  the  death  of  the  husband,  judicial  separation  or  otherwise,  what 

(s)  Per  Jessel  M.R.  Warne  v.  Routledge  (1874)  L.  R.  18  Eq.  500,  43 
L.  J.  Ch.  604. 

to  her  separate  use  a  debtor,  and  liable  to  satisfy  the  engagement."  Ex  pwrte 
Jones,  12  Ch.  D.  484,  490;  Kocher  v.  Cornell,  59  Neb.  315;  Dougherty  v. 
Sprinkle,  88  N.  C.  300.  The  confusion  in  regard  to  the  power  of  a  married 
woman  to  charge  her  separate  estate  and  as  to  what  engagements  of  hers 
will  affect  it  has  been  even  greater  in  this  country  than  in  England.  The 
subject  is  exhaustively  reviewed  in  Radford  v.  Carwile,  13  W.  Va.  572,  653,  the 
opinion  in  which  case  may  be  fairly  called  a  treatise  on  the  law  of  separate 
estate.  The  uncertainty  attending  the  subject  is  illustrated  by  the  earliest 
two  cases  of  any  note  relating  to  it.  Ewing  v.  Smith,  3  Desaus.  417,  and 
Meth.  Ep.  Church  v.  Jacques,  3  Johns.  Ch.  77.  The  former,  reversing  the 
judgment  of  Ch.  Desaussure,  laid  down  the  rule  that  a  married  woman  can 
charge  her  separate  estate  only  in  so  far  as  the  instrument  creating  it 
expressly  confers  that  power.  In  the  latter  this  rule  was  laid  down  by  Ch. 
Kent  only  to  be  reversed  by  the  Court  of  Errors,  in  17  Johns.  548.  The 
prevailing  doctrine  now  is  that  the  jus  disponendi  is  an  incident  to  the 
possession  of  a  separate  estate,  and  that,  in  any  manner  not  forbidden  by 
the  instrument  creating  it,  a  married  woman  may  dispose  of  or  incumber  her 
propertv.  Cheever  t\  Wilson,  9  Wall.  108 ;  Imlay  v.  Huntington,  20  Conn. 
146;  Phillips  v.  Graves,  20  Ohio  St.  371;  Burnett  v.  Hawpe's  Exr.,  25  Graft. 
481;  Bain  v.  Buff,  76  Va.  371;  Hughes  v.  Hamilton,  19  W.  Va.  366;  Radford 
v.  Carwile,  13  W.  Va.  572,  653.  Where  the  engagement  of  a  married  woman 
is  made  expressly  upon  the  credit  of  her  separate  estate,  or  the  indebtedness 
is  expressly  made  a  charge  upon  it,  it  is  agreed  that  equity  will  decree 
that  it  shall  be  paid  from  such  estate,  or  its  income,  to  the  extent  to  which 
the  power  of  disposal  by  the  married  woman  may  go.  Stephen  v.  Beall, 
22  Wall.  329;  Bank  r.  Traver,  7  Sawyer,  210;  Hall  v.  Eccleston,  37  Md. 
510;  Heburn  v.  Warner,  112  Mass.  271,  276;  Insurance  Co.  r.  Babcock,  42 
N.  Y.  613;  Knowles  v.  Toone,  96  N.  Y.  534;  Wooden  r.  Perkins,  5  Graft.  345; 
Elliott  V.  Gower,  12  R.  I.  79.  Where  by  the  agreement  the  consideration 
is  to  inure  to  the  benefit  of  the  married  woman,  or  of  her  separate  estate,  the 
intention  to  bind  the  separate  estate  need  not  be  expressed  but  may  be  im- 
plied. Williams  v.  King,  13  Blatchf.  282;  Wells  v.  Thorman,  37  Conn.  318; 
MeVey  v.  Cantrell,  70  N".  Y.  295;  Patrick  v.  Littell,  36  Ohio  St.  79;  Dale  v. 
Robinson,  51  Vt.  20;  Sargeant  v.  French,  54  Vt.  384.  See  also  Geiger  r. 
Blackley,  86  Va.  328.     Cp.  Stowell  r.  Grider,  48  Ark.  220. 

It  is  generally  agreed  that  when  a  married  woman  executes  a  note,  bond,  or 
other  written  obligation,  her  intention  to  bind  her  separate  estate  may  be  in- 
ferred therefrom.  Ozley  v.  Ikelheimer,  26  Ala.  332;  Sprague  v.  Tyson,  44  Ala. 
338-  Dobbin  v.  Hubbard,  17  Ark.  189,  196;  Dallas  !'.  Heard,  32  Ga.  604;  Jar- 
man  v  Wilkerson,  7  B.  Mon.  293;  Lillard  v.  Turner,  16  B.  Mon.  374;  Bank  v. 
Taylor,  62  Mo.  338;  Bank  r.  Collins,  75  Mo.  280;  Batchelder  v.  Sargent,  47 
N  H  262,  265;  Phillips  r.  Graves,  20  Ohio  St.  371;  Mitchell  v.  Raymond, 
164  Pa.  566;  Garland  v.  Pamphlin,  32  Graft.  305;  Bain  r.  Buff,  76  Va.  371. 

This  implication  is  not  affected  by  the  fact  that  the  wife,  with  her  husband, 
executes  a  mortgage  to  secure  the  payment  of  such  note.    Avery  v.  Vansickle, 

The  separate  estate  may  be  bound  though  the  plaintiff  did  not  know  there 
was  any.    Lee  r.  Cohick,  49  Mo.  App.  188 

A  married  woman  who  conveys  her  realty  by  deed  with  covenant  of  war- 


892  APPENDIX. 

becomes  of  the  debts  of  her  separate  estate?  It  appears  that  they 
689]  do  not  become  legal  debts;  *for  this  would  be  to  create  a  new 
right  and  liability  quite  different  from  those  originally  created  by 
the  parties;  but  that  the  creditor's  right  is  to  follow  in  the  hands 
of  the  owner  or  her  representatives  the  separate  estate  held  by  her 
at  the  time  of  contracting  the  engagement,  and  still  held  by  her 

ranty  makes  her  separate  estate  liable  for  breach  of  the  covenant.  Barlow  v. 
Delaney,  36  Fed.  Rep.  577;  Gunter  i.  Williams,  40  Ala.  561;  Kolls  v.  De 
Leycr,  41  Barb.  208;  Gerlach  v.  Eedinger,  40  Ohio  St.  388. 

In  some  States,  however,  it  is  held  that  unless  the  consideration  of  the 
contract  is  to  inure  to  the  benefit  of  the  married  woman,  or  of  her  separate 
estate,  the  intention  to  bind  her  separate  estate  must  be  expressed,  and  that 
her  giving  a  note  for  the  debt  is  no  expression  of  such  intention.  Feehheimer 
r.  Pierce,  70  Mich.  440;  Citizens'  Bank  v.  Smout,  62  Neb.  223.  Where,  for 
instance,  she  signs  a  note  as  surety  for  another,  even  though  that  other  be  her 
husband,  it  is  held  that  this  is  not  enough  to  make  her  separate  estate  liable, 
unless  she  expressly  declare  such  intention  in  the  note  itself,  (or  in  a  co- 
temporaneous  writing  which  may  be  read  and  construed  with  the  note  as 
one  paper  (Knowles  r.  Toone,  96  N.  Y.  534),  and  that  the  existence  of  such 
intention  cannot  be  established  by  oral  evidence.  Ferrand  t.  Beshoar,  9  Col. 
291;  Flanders  c.  Abby,  6  Biss.  16;  Williams  r.  Hugunin,  69  111.  214;  Hodson 
c.  Davis,  43  Ind.  258;  Willard  r.  Eastham,  15  Gray,  328;  Nourse  v.  Hen- 
shaw,  123  Mass.  96;  Smith  r.  Bond,  56  Neb.  529;  Peake  v.  La  Baw,  21  N.  J. 
Eq.  269;  Yale  v.  Dederer,  18  X.  Y.  265,  22  N.  Y.  450,  68  N.  Y.  329;  Bank 
v.  Pruyn,  90  N.  Y.  250;  Manhattan  Co.  v.  Thompson,  58  N.  Y.  80;  Pippen 
v.  Wesson,  74  N.  C.  437. 

In  every  State  in  the  Union  statutes  have  been  passed  intended  to  in- 
crease the  power  of  married  women  to  contract.  These,  and  the  interpreta- 
tions put  upon  them,  differ  so  in  the  various  States  as  to  make  a  brief  general 
statement  of  what  engagements  of  a  married  woman  are  or  are  not  binding 
simply  impossible.  Nearly  every  State  has  a  statute  which  makes  the  property 
of  a  woman  which  belongs  to  her  at  the  time  of  her  marriage,  or  which  come3 
to  her  by  gift,  devise,  descent,  or  purchase  with  her  separate  means "  after 
marriage,  her  separate  estate.  In  consequence  of  these  statutes,  a  large  part 
of  the  wealth  of  every  State  must  always  be  in  the  hands  of  married  women, 
and  this  fact  will  doubtless  operate  towards  the  establishment,  either  by 
legislation  or  the  course  of  judicial  decision,  of  the  only  simple  and  logical 
rule,  that  the  separate  estate  of  a  married  woman  shall  be  held  liable  for  all 
engagements  entered  into  by  her,  when  it  appears  expressly  or  by  fair  infer- 
ence that  she  intended  to  contract  on  her  own  responsibility. 

A  married  woman  may  be  a  shareholder  in  a  company,  and  in  the  event  of 
a  winding-up  a  contributory  in  respect  of  her  separate  estate,  if  there  is  noth- 
ing special  to  prevent  it  in  the  constitution  of  the  company.  Matthewman's 
Case,  3  Eq.  781.  And  see  Bundy  v.  Cocke,  128  U.  S.  185;  Kevser  v.  Hitz,  133 
U.  S.  138;  Hobart  v.  Johnson,"  19  Blatchf.  359;  Anderson  r.  Line,  14  Fed. 
Rep.  405;  Witters  v.  Sowles,  32  Fed.  Rep.  767,  35  Fed.  Rep.  640,  38  Fed. 
Rep.  700 ;  Re  First  Bank,  40  Fed.  Rep.  120 ;  Robinson  r.  Turrentine,  59  Fed. 
Rep.  554;  Kerr  r.  Urie,  86  Md.  72;  In  the  Matter  of  the  Reciprocity  Bank, 
22  N.  Y.  9. 

There  appears  to  be  nothing  to  prevent  a  married  woman  from  entering 
into  an  ordinary  partnership  as  far  as  concerns  her  separate  estate.  Penn  v. 
Whitehead,  17  Gratt.  503.  Cp.  under  statutes  on  the  one  hand,  Abbott  v. 
Jackson,  43  ArSf.  212;  Clay  v.  Van  Winkle,  75  Ind.  239;  Plumer  v.  Lord,  5 
Allen,  462 ;  Vail  r.  Winterstein,  94  Mich.  230 ;  Newman  r.  Morris,  52  Miss. 
402;  Bitter  v.  Rathman,  61  N.  Y.  512;  on  the  other,  Bradstreet  v.  Baer,  41 
Md.  19,  23;  Miller  v.  Marx,  65  Tex.  131;  Carey  v.  Burrus,  20  W.  Va.  571. 
See  also  De  Graum  r.  Jones,  23  Fla.  83.  Whether  she  may  become  a  partner 
with  her  husband  under  modern  statutes  has  been  much  litigated.  That  she 
may.     Re  Kinkead,  3  Biss.  405;   Bernard,  etc.,  Mfg.  Co.  p.  Packard,  64  Fed. 


SEPARATE  ESTATE.  893 

when  she  became  sui  iuris,  but  not  any  other  property.10  Property 
subject  to  a  restraint  on  anticipation  cannot  in  any  case  be  bound  (a). 

Liability  of  separate  estate  for  debts  before  marriage.  A  kindred  and 
still  open  question  is  this :  Can  the  separate  estate  of  a  woman  mar- 
ried before  January  1,  1883,  be  held  liable  for  her  debts  contracted 
before  marriage  ?  ,  Apart  from  recent  legislation  it  seems  no  less  diffi- 
cult to  hold  that  the  coverture  and  the  existence  of  separate  property 
enable  the  creditor  to  substitute  for  a  legal  right  a  wholly  different 
equitable  right,  than  to  hold  that  the  cessation  of  the  coverture  turns 
that  sort  of  equitable  right  into  a  legal  debt.11  It  has  been  held  that 
after  the  husband's  bankruptcy  the  wife's  separate  estate  is  liable 
in  equity  to  pay  her  debts  contracted  before  the  marriage  (6)  ;12 
but  Malms  V.-C.  seems  to  have  decided  this  case  partly  on  the  ground 
that  the  bankruptcy  was  evidence  that  the  settlement  of  the  property 
to  the  wife's  separate  use  was  fraudulent  as  against  her  creditors. 
Before  the  Debtors  Act,  1869,  when  a  married  woman  and  her  hus- 
band were  sued  at  law  on  a  debt  contracted  by  her  before  the  mar- 

(a)   Pike  v.  Fitzgibbon    (1881)    17  gives  no  power  to  touch  such   prop- 

Ch.  Div.  454,  50  L.  J.  Ch.  394.     Ear-  erty,  see  p.  *89,  above, 
lier    cases    are    indecisive.      For    the  (6)   Chubb  v.  Stretch  (1870)   L.  R. 

view   taken    in    the    Court   below    in  9  Eq.   555,  39  L.  J.  Ch.  329,  follow  - 

Johnson  v.  Gallagher,  where  the  bill  ing  Biseoe  v.  Kennedy   (1762)   briefly 

was  filed  after  the  death  of  the  hiis-  reported  in  marginal  note  to  Hulme 

band,  see  3  D.  F.  &  J.  495,  and  the  de-  v.    Tenant    (1778)     1    Bro.    C.    C.    17. 

cree   appealed   from   at  p.   497.     The  The  decision  of  the  C.  A.  in  Pike  v. 

Act  of  1882   (modified  only  as  to  pay-  Fitzgibbon       (1881)       throws      great 

ment   of   costs   by  the   Act   of    1893)  doubt  on  this. 

Rep.  309  ( C.  C.  A. )  ;  Schlapback  v.  Long,  90  Ala.  525 ;  Burney  v.  Savannah 
Grocery  Co.,  98  Ga.  711;  Hoaglin  i:  Henderson,  119  la.  720;  Louisville,  etc.,  R. 
Co.  v.  Alexander,  16  Ky.  L.  Rep.  306;  Toof  v.  Brewer,  3  So.  Rep.  571  (Miss.)  ; 
Noel  i'.  Kinney,  106  N.  Y.  74;  Suau  v.  Caffe,  122  N.  Y.  308;  Lane  r.  Bishop, 
65  Vt.  575.  That  she  cannot.  Gilkerson-Sloss  Co.  r.  Salinger,  56  Ark.  294; 
Haas  v.  Shaw,  91  Ind.  384;  Haggett  t.  Hurley,  91  Me.  542;  Mayer  v.  Soyster, 
30  Md.  402;  Lord  t\  Parker,  3  Allen,  127;  Bowker  v.  Bradford,  140  Mass. 
521;  Edwards  v.  McEnhill,  51  Mich.  165;  Artman  v.  Ferguson,  73  Mich. 
146;  Payne  v.  Thompson,  44  Ohio  St.  192;  Gwynn  v.  Gwynn,  27  S.  C.  525; 
Theuss  r.  Dugger,  93  Tenn.  41;  Seattle  Board  v.  Hayden,  4  Wash.  263; 
Fuller,  etc.,  Co.  r.  McHenry,  83  Wis.  573. 

10  Dobbin  v.  Hubbard,  17  Ark.  189,  197;  Klenke  v.  Koeltze,  75  Mo.  239; 
Davis  r.  Smith,  75  Mo.  219;  cp.  Leaycraft  r.  Iiedden,  3  Green's  Ch.  512,  552. 
And  see  Quinn's  Est.,  144  Pa.  444. 

11  "After  her  death,  or  that  of  her  husband,  her  creditors  on  demands  ex- 
isting against  her  before  marriage  have  an  equal  right  to  satisfaction  of  then- 
demands  out  of  what  was  her  separate  property  with  creditors  who  have  no 
claim  against  her  personally,  but  only  demands  which  they  may  enforce  against 
her  separate  property,  while  the  latter  class  of  creditors  have  no  right  what- 
ever to  satisfaction  of  their  demands  out  of  her  general  property.  Marriage 
suspends  the  rights  of  her  creditors,  then  existing,  to  sue  her  alone  and  pro- 
ceed against,  her  separate  or  general  property,  but  the  dissolution  of  the 
marriage  by  the  death  of  either  husband  or  wife  revives  the  righ  to: her 
general  creditors  against  her  and  her  property."  Klenke  r.  Koeltze,  75  Mo. 
239;   Davis  v.  Smith,  75  Mo.  219.  ^ 

12  Dickson  v.  Miller,  11  S.  &  M.  594;   contra,  Vanderheyden  v.  Mallory,  1 

N.  Y.  452. 


894  APPENDIX. 

riage  and  either  the  husband  and  wife  or  the  wife  alone  had  been 
taken  in  execution,  the  wife  was  entitled  to  be  discharged  only  if  she 
had  not  separate  property  out  of  which  the  debt  could  be  paid  (c)  ; 
and  an  order  for  payment  can  now  be  made  under  s.  5  of  the  Debtors 
Act  on  a  married  woman,  and  the  existence  of  sufficient  separate 
estate  would  justify  commitment  in  default  (d).  But  the  practice 
of  the  Courts  in  the  exercise  of  this  kind  of  judicial  discretion  does 
not  throw  much  light  on  the  question  of  a  direct  remedy. 

690]  *  How  far  is  a  married  woman's  "engagement"  bound  by  the  ordi- 
nary forms  of  contract?  On  principle  it  should  seem  that  a  married 
woman's  engagement  with  respect  to  her  separate  estate,  while  not 
bound  by  any  peculiar  forms,  is  on  the  other  hand  bound  in  every  case 
by  the  ordinary  forms  of  contract;  in  other  words,  that  no  instru- 
ment or  transaction  can  take  effect  as  an  engagement  binding  separate 
estate  which  could  not  take  effect  as  a  contract  if  the  party  were 
sui  iuris.  That  is  to  say,  the  creditor  must  first  produce  evidence 
appropriate  to  the  nature  of  the  transaction  which  would  establish 
a  legal  debt  against  a  party  sui  iuris,  and  then  he  must  show,  by  proof 
or  presumption  as  explained  above,  an  intention  to  make  the  separate 
estate  the  debtor. 

McHenry  v.  Davies:  qua?re.  There  is,  however,  a  decision  the  other 
way.  In  McHenry  v.  Davies  (e),  a  married  woman,  or  rather  her 
separate  estate,  was  sued  in  equity  on  a  bill  of  exchange  indorsed  by 
her  in  Paris.  It  was  contended  for  the  defence,  among  other  things, 
that  the  bill  was  a  French  bill  and  informal  according  to  French  law. 
Lord  Eomilly  held  that  this  was  immaterial,  for  all  the  Court  had  to 
be  satisfied  of  was  the  general  intention  to  make  the  separate  estate 
liable,  of  which  there  was  no  doubt.  This  reasoning  is  quite  in- 
telligible on  the  assumption  that  engagements  bind  separate  estate 
only  as  specific  charges;  the  fact  that  the  instrument  creating  the 
charge  simulated  more  or  less  successfully  a  bill  of  exchange  would 
then  be  a  mere  accident  (f).  The  judgment  bears  obvious  marks  of 
this  theory;  we  have  seen  indeed  that  it  was  expressly  adopted  by 
the  same  judge  in  an  earlier  case  (g),  and  we  have  also  seen  that  it 
is  no  longer  tenable.  In  Johnson  v.  Gallagher  it  is  assumed  that  a 
married  woman's  engagements   concerning  her   separate  interest  in 

(c)  Ivens  v.  Butler  (1857)  7  E.  &  cannot  be  treated  as  an  equitable 
B.  159,  26  L.  J.  Q.  B.  145;  Jay  v.  assignment:  Shand  v.  Du  Buisson 
Amphlett  (1862)  1  H.  &  C.  637,  32  (1874)  L.  B.  18  Eq.  283,  43  L.  J.  Ch. 
L.  J.  Ex.  176.  508.      Nor    a   cheque:    Hopkinson   v. 

(d)  Dillon  v.  Cunningham  (1872)  Foster  (1874)  L.  B.  19  Eq.  74.  [The 
L.  B.  8  Ex.  23,  42  L.  J.  Ex.  11.  Here  law  is  otherwise  in  some  jurisdic- 
the  married  woman  had  been  sued  tions  in  this  country.  See  Daniel  on 
alone,  and  there  was  no  plea  of  Neg.  Inst.  §  1643  et  seq.;  42  Cent.  L. 
coverture:  but  probably  the  same  J.  243;  11  Harv.  L.  Bev.  548;  Fourth 
course  would  be  taken  in  the  case  of  Street  Bank  v.  Yardley,  165  U.  S. 
a  judgment  against  husband  and  wife  634.] 

for  the  wifp's  debt  dum  sola.  (g)    Shattock  v.    Shattock    (1866) 

.(e)    (1870)   L.  B.  10  Eq.  88.  L.  B.   2   Eq.   182,   35  L.   J.   Ch.   509, 

(f)  Note,  however,  that  in  the  case  supra  p.  *669. 
of  parties  sui  iuris  a  bill  of  exchange 


SEPARATE  ESTATE.  895 

real  estate  must  satisfy  the  conditions  of  the  Statute  of  Frauds  (h). 
An  engagement  which  if  she  were  sui  iuris  would  owe  its  validity  as  a 
contract  to  the  law  merchant  must  surely  in  like  manner  satisfy  the 
forms  and  conditions  of  the  law  merchant.  It  is  submitted,  therefore, 
that  McIIenry  v.  Barnes  (i)  is  not  law  on  this  point. 

Statute  of  Limitation.  It  is  now  held  that  the  Statute  of  Limitation, 
or  rather  its  analogy,  applies  to  claims  against  the  separate  estate  (fc). 

Can  the  separate  estate  be  made  liable  on  quasi-contract?  It  is  said  that 
a  married  woman's  separate  estate  cannot  be  made  liable  as  on  an 
obligation  implied  in  law,  as,  for  instance,  to  the  repayment  of  money 
paid  by  mistake  or  on  a  consideration  which  *has  wholly  [691 
failed  (/).  But  the  decisions  to  this  effect  belong  (with  one  exception) 
to  what  we  have  called  the  period  of  reaction,  and  are  distinctly 
grounded  on  the  exploded  notion  that  a  "  general  engagement,"  even 
if  express,  is  not  binding  on  the  separate  estate. 

The  exception  is  the  modern  case  of  Wright  v.  Chard  (m),  where 
V.-C.  Kindersley  held  that  a  married  woman's  separate  estate  was 
not  liable  to  refund  rents  which  had  been  received  by  her  as  her 
separate  property,  but  to  which  she  was  not  in  fact  entitled.  But 
the  language  of  the  judgment  reduces  it  to  this,  that  in  the  still 
transitional  state  of  the  doctrine,  and  in  the  absence  of  any  precedent 
for  making  the  separate  estate  liable  in  any  case  without  writing 
(this  was  in  1859,  Johnson  v.  Gallagher  not  till  1861),  the  V.-C. 
thought  it  too  much  for  a  court  of  first  instance  to  take  the  new  step 
of  making  it  liable  "  in  the  absence  of  all  contract " :  and  he  ad- 
mitted that  "  the  modern  tendency  has  been  to  establish  the  principle 
that  if  you  put  a  married  woman  in  the  position  of  a  feme  sole  in 
respect  of  her  separate  estate,  that  position  must  be  carried  to  the 
full  extent,  short  of  making  her  personally  liable."  The  test  of  lia- 
bility would  seem  on  principle  to  be  whether  the  transaction  out  of 
which  the  demand  arises  had  reference  to  or  was  for  the  benefit  of 
the  separate  estate. 

Tendency  of  modern  authority  and  legislation.  The  spirit  of  the  mod- 
ern authorities  is,  on  the  whole,  in  the  direction  of  holding  that  a 
married  woman's  "engagement"  differs  from  an  ordinary  contract 
only  in  the  remedy  being  limited  to  her  separate  property.  Her  cred- 
itor is  in  a  position  like  that  of  a  creditor  of  trustees  for  a  society,  or 
the  like,  who  has  agreed  to  look  only  to  a  specified  fund  for  payment. 
And  on  this  view  the  Married  Women's  Property  Act  of  1882  is 
framed,  though  it  might  be  wished  that  the  principle  had  been  carried 
out  more  thoroughly. 

(h)    (1861)  3  D.  F.  &  J.  at  p.  514.  (1804)   9  Ves.  486,  493,  7  R.  R.  282, 

(i)    (1870)   L   R    10  Eq.  88.  and    Aguilar    v.    Agmlar     (1820)     5 

(k)    Re  Lady  Hastings    (1887)    35  Madd    414 

Ch   Div   94.  <m)    (1859)   4  Drew.  673,  685:   on 

(l)   3D   F   &  J    512,  514,  referring  appeal,  1  D.  F.  &  J.  567,  29  L.  J.  Ch. 

to     Duke '  of     Bolton     v.     Williams  82,  but  not  on  this  point. 
(1793)    2  Ves.   138;   Jones  v.  Harris 


896  APPENDIX. 

Note  D.  (p.  *129  above). 

Limitation  of  Corporate  Powers   by  Doctrines  of  Partnership  and 

Agency. 

Application  of  partnership  law:  Simpson  v.  Denison.  A  case  in  which 
this  reason  appears  most  clearly  is  Simpson  v.  Denison  (1852)  10  Ha. 
51.  The  suit  was  instituted  by  dissentient  shareholders  to  restrain 
the  carrying  out  of  an  agreement  between  their  company  (the  Great 
Northern)  and  another  railway  company,  by  which  the  Great  North- 
692]  ern  was  to  take  over  the  whole  of  that  Company's  traffic,  and 
also  to  restrain  the  application  of  the  funds  of  the  Great  Northern 
Company  for  obtaining  an  Act  of  Parliament  to  ratify  such  agree- 
ment. The  V.-'C.  Turner  treated  it  as  a  pure  question  of  partner- 
ship :  "  How  would  this  case  have  stood,"  he  says  in  the  first  para- 
graph of  the  judgment,  "  if  it  had  been  the  case  of  an  ordinary  lim- 
ited partnership  ?  "  The  Eailways  Clauses  Consolidation  Act  became 
in  this  view  a  statutory  form  of  partnership  articles,  to  which  every 
shareholder  must  be  taken  to  have  assented:  and  the  general  ground 
of  the  decision  was  that  "no  majority  can  authorize  an  application  of 
partnership  funds  to  a  purpose  not  warranted  by  the  partnership  con- 
tract." For  the  purposes  of  the  case  before  the  Court  this  analogy 
was  perfectly  legitimate;  and  the  dissent  expressed  by  Parke  B.  (in 
South  Yorkshire,  &c.  Co.  v.  G.  N.  R.  Co.  (1853)  9  Ex.  88,  22  L.  J. 
Ex.  315)  must  be  considered  only  as  a  warning  against  an  unqualified 
extension  of  it  to  questions  between  the  corporate  body  and  strangers. 

Statement  of  the  principle  in  Pickering  v.  Stephenson.  In  Pickering  v. 
Stephenson  (1872)  L.  E.  14  Eq.  322,  340,  41  L.  J.  Ch.  493,  the 
same  rule  is  thus  set  forth  by  Wickens  V.-C— "  The  principle  of 
jurisprudence  which  I  am  asked  here  to  apply  is  that  the  governing 
body  of  a  corporation  that  is  in  fact  a  trading  partnership  cannot  in 
general  use  the  funds  of  the  community  for  any  purpose  other  than 
those  for  which  they  were  contributed.  By  the  governing  body  I  do 
not  of  course  mean  exclusively  either  directors  or  a  general  coun- 
cil («),  but  the  ultimate  authority  within  the  society  itself,  which 
would  ordinarily  be  a  majority  at  a  general  meeting.  According  to 
the  principle  in  question  the  special  powers  given  either  to  the  direct- 
ors or  to  a  majority  by  the  statutes  or  other  constituent  documents 
of  the  association,  however  absolute  in  terms,  are  always  to  be  con- 
strued as  subject  to  a  paramount  and  inherent  restriction  that  they 
are  to  be  exercised  in  subjection  to  the  special  purposes  of  the  original 
bond  of  association."  Nothing  is  said  here  on  the  extent  to  which  a 
corporation  may  be  bound  by  the  unanimous  assent  of  its  members. 

Rights  of  dissenting  shareholders.  Any  dissenting  shareholder  may  call 
for  the  assistance  of  the  Court  to  restrain  unconstitutional  acts  of  the 
governing  body,  but  he  must  do  so  in  his  proper  capacity  and  interest 
as  a  shareholder  and  partner.  If  the  Court  can  see  that  in  fact  he 
represents  some  other  interest,  and  has  no  real  interest  of  his  own 

(n)  Referring  to  the  peculiar  constitution  of  the  company  then  in  question. 


LIMITS  OP   CORPORATE   POWERS.  897 

in  the  action,  it  will  not  listen  to  him;  as  when  the  proceedings  are 
taken  by  the  direction  of  a  rival  company  in  whose  hands  the  nominal 
plaintiff  is  a  mere  puppet,  and  which  indemnifies  him  against  costs: 
Forrest  v.  Manchester,  &c.  Ry.  Co.  (1861)  4  D.  F.  &  J.  126 :  so  where 
the  suit  *was  in  fact  instituted  by  the  plaintiff's  solicitor  on  [693 
grounds  of  personal  hostility,  Robsou  v.  Dodds  (1869)  L.  K.  8  Eq. 
301,  38  L.  J.  Ch.  647.  But  if  he  has  any  real  interest  and  is  pro- 
ceeding at  his  own  risk,  he  is  not  disqualified  from  suing  by  the  fact 
that  he  has  collateral  motives,  or  is  acting  on  the  suggestion  of 
strangers  or  enemies  to  the  company,  or  even  has  acquired  his  interest 
for  the  purpose  of  instituting  the  suit:  Colman  v.  E.  C.  Ry.  Co. 
(1846)  10  Beav.  1,  16  L.  J.  Ch.  73;  Seaton  v.  Grant  (1867)  L.  K.  2 
Ch.  459,  36  L.  J.  Ch.  638;  Bloxam  v.  Metrop.  Ry.  Co.  (1868)  L.  E. 
3  Ch.  337.  For  full  collection  of  cases,  see  Lindley  on  Companies, 
597. 

Parties  to  action.  As  a  rule  the  plaintiff  in  actions  of  this  kind 
sues  on  behalf  of  himself  and  all  other  shareholders  whose  interests 
are  identical  with  his  own;  but  there  seems  to  be  no  reason  why  he 
should  not  sue  alone  in  those  cases  where  the  act  complained  of  can- 
not be  ratified  at  all,  or  can  be  ratified  only  by  the  unanimous  assent 
of  the  shareholders:  Hoole  v.  G.  W.  Ry.  Co.  (1867)  L.  E.  3  Ch.  262. 
There  is  another  class  of  cases  in  which  abuse  of  corporate  powers  or 
authorities  is  complained  of,  but  the  particular  act  is  within  the 
competence  of,  and  may  be  affirmed  or  disaffirmed  by,  "  the  ultimate 
authority  within  the  society  itself  "  (in  the  words  of  Wickens  V.-C. 
just  now  cited),  and  therefore  the  corporation  itself  is  prima  facie  the 
proper  plaintiff.  See  Lindley  on  Companies,  574  sqq. ;  Gray  v.  Lewis 
(1869)  L.  E.  8  Ch.  1035,  1051 ;  Macdougall  v.  Gardiner  (1875)  L.  E. 
10  Ch.  606,  1  Ch.  D.  13,  21;  Russell  v.  Wakefield  Waterworks  Co. 
(1875)  L.  E.  20  Eq.  474,  44  L.  J.  Ch.  496.  "  The  majority  are  the 
only  persons  who  can  complain  that  a  thing. which  they  are  entitled 
to  do  has  been  done  irregularly"  (o).  The  exception  is  when  a  ma- 
jority have  got  the  government  of  the  corporation  into  their  own 
hands,  and  are  using  the  corporate  name  and  powers  to  make  a  profit 
for  themselves  at  the  expense  of  the  minority;  then  an  action  is 
rightly  brought  by  a  shareholder  on  behalf  of  himself  and  others, 
making  the  company  a  defendant:  Menier  v.  Hooper's  Telegraph 
Works  (1874)  L.  E.  9  Ch.  350,  43  L.  J.  Ch.  330;  Mason  v.  Harris 
(1879)  11  Ch.  Div.  97,  48  L.  J.  Ch.  589.  We  mention  these  cases 
only  to  distinguish  them  from  those  with  which  we  are  now  concerned. 

Limited  agency  of  directors,  &c.  With  regard  to  the  doctrine  of  lim- 
ited agency,  and  its  peculiar  importance  in  the  case  of  companies  con- 
stituted by' public  documents,  all  persons  dealing  with  them  being 

to)    Mellish  L.J.     1   Ch.  D.  at  p.  v.  Gover  (1877)  6  Ch.  D.  82,  46  L.  J. 

9^      As  to  a  shareholder's  right  to  Ch.  407;    Sitter  Light  Co.  v.  Sitter 

use  the  company's  name  as  plaintiff,  (1879)    12  Ch.  D.   717,  48  L.  J.  Ch. 

see   Pender  v.   Lushington    (1877)    6  383;  Haroen  v.  Phillips  (1882-3)   23 

Ch   D    70,  46  L.  J.  Ch.  317;  Duckett  Ch.  D.  14,  29,  38. 
57 


898  APPENDIX. 

694]  considered  to  know  the  ^contents  of  those  documents  and  the 
limits  set  to  the  agent's  authority  by  them,  it  may  be  useful  to  give 
Lord  Hatherlev's  concise  statement  of  the  law  (when  V.-C.)  in  Foun- 
tains v.  Carmarthen  By.  Co.  (1868)  L.  E.  5  Eq.  316,  322,  37  L.  J. 
Ch.  429. 

"  In  the  case  of  a  registered  joint  stock  company,  all  the  world  of 
course  have  notice  of  the  general  Act  of  Parliament  and  of  the  special 
deed  which  has  been  registered  pursuant  to  the  provisions  of  the  Act, 
and  if  there  be  anything  to  be  done  which  can  only  be  done  by  the  di- 
rectors under  certain  limited  powers,  the  person  who  deals  with  the 
directors  must  see  that  those  limited  powers  are  not  being  exceeded. 
If,  on  the  other  hand,  as  in  the  case  of  Royal  British  Bank  v.  Tur- 
quand  (p),  the  directors  have  power  and  authority  to  bind  the  com- 
pany, but  certain  preliminaries  are  required  to  be  gone  through  on  the 
part  of  the  company  before  that  power  can  be  duly  exercised,  then 
the  person  contracting  with  the  directors  is  not  bound  to  see  that  all 
these  preliminaries  have  been  observed.  He  is  entitled  to  presume 
that  the  directors  are  acting  lawfully  in  what  they  do.  This  is  the 
result  of  Lord  Campbell's  judgment  in  Royal  British  Bank  v.  Tur- 
quand."    For  fuller  exposition  see  Lindley  on  Companies,  166  sqq. 

Royal  British  Bank  v.  Turquand,  &c.  The  contrast  of  the  two  classes 
of  cases  is  well  shown  in  Royal  British  Bank  v.  Turquand  (p),  and 
Balfour  v.  Ernest  (1859)  5  C.  B.  X.  S.  601,  28  L.  J.  C.  P.  170.  In 
the  former  case  there  was  power  for  the  directors  to  borrow  money  if 
authorized  by  resolution :  and  it  was  held  that  a  creditor  taking  a  bond 
from  the  directors  under  the  company's  seal  was  not  bound  to  inquire 
whether  there  had  been  a  resolution.  Jervis  C.J.  said  in  the  Ex- 
chequer Chamber  (the  rest  of  the  Court  concurring)  : — 

"  We  may  now  take  for  granted  that  the  dealings  with  these  com- 
panies are  not  like  dealings  with  other  partnerships,  and  that  the 
parties  dealing  with  them  are  bound  to  read  the  statute  and  the  deed 
of  settlement.  But  they  are  not  bound  to  do  more.  And  the  party 
here  on  reading  the  deed  of  settlement  would  find  not  a  prohibition 
from  borrowing,  but  a  permission  to  do  so  on  certain  conditions." 

The  same  principle  has  been  followed  in  many  later  cases  (Ex 
parte  Eagle  Insurance  Co.  (1858)  4  Iv.  &  J.  549,  27  L.  J.  Ch.  829; 
Campbell's  case,  &c.  (1873)  L.  K.  9  Ch.  1,  24,  43  L.  J.  Ch.  1;  T otter- 
dell  v.  Fareham  Brick  Co.  (1866)  L.  E.  1  C.  P.  674,  35  L.  J.  C.  P. 
278 ;  Re  County  Life  Assce.  Co.  (1870)  L.  E.  5  Ch.  288,  39  L.  J.  Ch. 
471,  a  very  strong  case,  for  the  persons  who  issued  the  policy  were  as- 
suming to  carry  on  business  as  directors  of  company  without 
695]  *any  authority  at  all;  Romford  Canal  Co.  (1883)  24  Ch.  D. 
85,  52  L.  J.  Ch.  729),  and  it  was  decisively  affirmed  by  the  House  of 
Lords  in  Maliony  v.  East  Holyford  Mining  Co.  (1875)'  L.  E.  7  H.  L. 
869.  In  that  case  a  bank  had  honoured  cheques  drawn  by  persons 
ficting  as  directors  of  the  company,  but  who  had  never  been  prop- 
erly appointed;  and  these  payments  were  held  to  be  good  as  against 

(p)  5  E.  &  B.  248,  6  ibid.  237,  24  L.  J.  Q.  B.  327,  25  ibid.  327. 


LIMITS   OF   CORPORATE  POWERS.  899 

the  liquidator,  the  dealings  having  been  on  the  face  of  them  regular, 
and  with  de  facto  officers  of  the  company.  Shareholders  who  allow 
persons  to  assume  office  and  conduct  the  company's  business  are,  as 
against  innocent  third  persons,  no  less  bound  by  the  acts  of  these 
de  facto  officers  than  if  they  had  been  duly  appointed.  It  is  for  the 
shareholders  to  see  that  unauthorized  persons  do  not  usurp  office,  and 
that  the  business  is  properly  done  (q)..  Similarly  where  the  proper 
quorum  of  directors  fixed  by  internal  regulations  of  the  company 
was  not  present:  County  of  Gloucester  Bank  v.  Rudry  Merthyr,  &c. 
Co.  [1895]  1  Ch.  629,  64  L.  J.  Ch.  451.  Creditors  are  entitled  to 
rely  on  the  aiithority  of  a  managing  director  purporting  to  exercise 
powers  which  under  the  articles  he  might  have :  Biggerstaff  v.  Row- 
att's  Wharf  [1896]  2  Ch.  93,  102,  65  L.  J.  Ch.  536. 

In  Balfour  v.  Ernest  the  action  was  on  a  bill  given  by  directors 
of  an  insurance  company  fo:'  a  claim  under  a  policy  of  another  com- 
pany, the  two  companies  having  arranged  an  amalgamation ;  this  at- 
tempted amalgamation,  however,  had  been  judicially  determined  to 
be  void:  Ernest  v.  Nicholls,  6  H.  L.  C.  401,  revg.  S.  C.  nom.  Port 
of  London  Co.'s  case  (1854)  5  D.  M.  &  G.  465.  The  directors  had 
power  by  the  deed  of  settlement  to  borrow  money  for  the  objects  and 
business  of  the  company  and  to  pay  claims  on  policies  granted  by  the 
company,  and  they  had  a  power  to  make  and  accept  bills,  &c.  which 
was  not  restricted  in  terms  as  to  the  objects  for  which  it  might  be 
exercised.  It  was  held  that,  taking  this  with  the  other  provisions  of 
the  deed,  they  could  bind  the  company  by  bills  of  exchange  only  for 
its  ordinary  purposes,  and  not  in  pursuance  of  a  void  scheme  of 
amalgamation,  that  the  plaintiffs  must  be  taken  to  have  known  of 
their  want  of  authority,  which  might  have  been  ascertained  from 
the  deed,  and  that  they  therefore  could  not  recover.  "  This  bill  is 
drawn  by  procuration,"  said  Willes  J.,  "  and  unless  there  was  au- 
thority to  draw  it  the  company  are  not  liable  (r)  .  .  .  this  is 
the  bare  case  of  one  taking  a  bill  from  Company  A.  in  respect  of 
a  debt  due  from  Company  B.,  there  being  nothing  *in  the  [696 
deed  (which  must  be  taken  to  have  been  known  to  the  plaintiffs)  to 
confer  upon  the  directors  authority  to  make  it." 

The  connection  with  ordinary  partnership  law  is  brought  out  in 
the  introductory  part  of  Lord  Wensleydale's  remarks  in  Ernest  v. 
Nicholls  (1857)  6^.  L.  C.  401,  417:— 

"  The  law  in  ordinary  partnerships,  so  far  as  relates  to  the  powers 
of  one  partner  to  bind  the  others,  is  a  branch  of  the  law  of  principal 
and  agent.  Each  member  of  a  complete  partnership  is  liable  for 
himself,  and  as  agent  for  the  rest  binds  them  upon  all  contracts 
made  in  the  course  of  the  ordinary  scope  of  the  partnership  business. 
.  Any  restriction  upon  the  authority  of  each  partner, 
imposed  by  mutual  agreement  among  themselves,  could  not  affect 

la)   Opinion  of  judges,  L.  R.  7  H.  (r)  In  form  it  was  a  bill  drawn  by 

L.  at  p.  880;  per  Lord  Hatherley,  at       two  directors  on  the  company's  cash- 

'     897_8.  ier,   and   sealed  with   the   company's 

seal. 


900  APPENDIX. 

third  persons,  unless  such  persons  had  notice  of  them;  then  they 
could  take  nothing  by  contract  [sc.  as  against  the  firm]  which  those 
restrictions  forbade.  [The  law  in  this  form,  i.e.,  the  presumption  of 
every  partner  being  the  agent  of  the  firm,  being  obviously  inappli- 
cable to  joint-stock  companies],  the  legislature  then  devised  the 
plan  of  incorporating  these  companies  in  a  manner  unknown  to  the 
common  law,  with  special  powers  of  management  and  liabilities, 
providing  at  the  same  time  that  all  the  world  should  have  notice 
who  were  the  persons  authorized  to  bind  all  the  shareholders  by 
requiring  the  copartnership  deed  to  be  registered  .  .  .  and  made 
accessible  to  all."  The  continuation  of  the  passage,  however,  goes 
too  far;  in  fact,  it  disregards  the  distinction  established  by  Royal 
British  Bank  v.  Turquand,  and  the  Courts  have  distinctly  declined  to 
adopt  it:  Agar  v.  Athenceum  Life  Assce.  Soc.  (1858)  3  C.  B.  N.  S. 
725,  27  L.  J.  C.  P.  95;  Prince  of  Wales  Assce.  Co.  v.  Harding  (1857) 
E.  B.  &  E.  183,  27  L.  J.  Q.  B.  297.  See  Chapleo  v.  Brunswick 
Building  Society  (1881)  6  Q.  B.  Div.  696,  50  L.  J.  Q.  B.  372,  for  an 
example  of  the  society  not  being  bound  by  a  loan  contracted  beyond 
its  borrowing  powers :  the  directors,  having  held  themselves  out  as 
authorized,  were  found  personally  liable. 

Ratification  of  irregular  transactions    by   assent   of   all   the   shareholders. 

Transactions  in  the  conduct  of  a  company's  affairs  which  in  their 
inception  were  invalid  as  against  any  dissenting  shareholder  may 
nevertheless  be  made  binding  on  the  partnership  and  decisive  of  its 
collective  rights,  as  between  the  company  and  its  own  past  or  present 
members,  by  the  subsequent  assent  of  all  the  shareholders,  though 
such  assent  be  informal  and  shown  only  by  acquiescence.  The  lead- 
ing examples  on  this  head  are  given  by  the  well-known  cases  in  the 
House  of  Lords  which  arose  in  the  winding-up  of  the  Agriculturists' 
Cattle  Insurance  Company. 

It  is  to  be  observed  that  these  cases  turned  on  the  internal  constitu- 
tion and  affairs  of  the.  company,  and  there  was  no  occasion  to 
697]  '"consider  to  what  extent  or  in  what  transactions  the  assent  of 
shareholders  was  capable  of  binding  the  company  as  against  strangers. 
They  therefore  stand  apart  from  the  question  of  positive  statutory 
limitations  of  corporate  powers  as  between  the  company  and  out- 
siders. Moreover,  the  irregular  act  which  was  ratified  was  unau- 
thorized as  to  the  manner  and  form  of  it,  but  belonged  to  an  author- 
ized class  (s).  The  general  nature  of  the  facts  was  thus:  At  a 
meeting  of  the  company  an  arrangement  was  agreed  to.  afterwards 
called  the  Chippenham  arrangement,  by  which  shareholders  who 
elected  to  do  so  within  a  certain  time  might  retire  from  the  com- 
pany on  specified  terms  by  a  nominal  forfeiture  of  their  shares. 
The  deed  of  settlement  contained  provisions  for  forfeiture  of  shares, 
but  not  such  as  to  warrant  this  arrangement.    It  was  held — 

In  Evans  v.   Smallcombe    (1868)    L.   R.   3   H.  L.   249,  that  the 

(s)    See  per  Lord  Romilly    (L.  R.       tury   Railway    Carriage    Co.    (1875) 
3  H.  L.  244-5).     See  also  the  judg-       L.  R.  9  Ex.  289,  43  L.  J.  Ex.  177. 
merit  of  Archibald  J.  in  Riche  v.  Ash- 


LIMITS   OF    CORPORATE  POWERS.  901 

Chippenham  arrangement  could  be  supported  (as  having  become 
part  of  the  internal  regulations  of  the  company)  only  by  the  assent 
of  all  the  shareholders,  but  that  in  fact  there  was  knowledge  and 
acquiescence  sufficiently  proving  such  assent.  A  shareholder  who 
had  retired  on  the  terms  of  the  Chippenham  arrangement  was  there- 
fore not  liable  to  be  put  on  the  list  of  contributories.  (Cp.  Brother- 
hood's case  (1862)  4  D.  F.  &  J.  566,  an  earlier  and  similar  decision 
in  the  same  winding-up.) 

In  Spademan  v.  Evans  (1868)  L.  E.  3  H.  L.  171,  34  L.  J.  Ch.  321, 
that  a  later  and  distinct  compromise  made  with  a  smaller  number 
of  dissentient  shareholders  had  not  in  fact  been  communica'ted  to 
all  the  shareholders  as  distinct  from  the  Chippenham  arrangement, 
and  could  not  be  deemed  to  have  been  ratified  by  that  acquiescence 
which  ratified  the  Chippenham  arrangement;  and  that  a  shareholder 
who  had  retired  under  this  later  compromise  was  therefore  rightly 
made  a  contributory. 

In  Houldsworth  v.  Evans  (1868)  L.  E.  3  H.  L.  263,  that  time  was 
of  the  essence  of  the  Chippenham  arrangement,  so  that  when  a 
shareholder  was  allowed  to  retire  on  the  terms  of  the  Chippenham 
arrangement  after  the  date  fixed  for  members  to  make  their  election, 
this,  in  fact,  amounted  to  a  distinct  and  special  compromise,  which 
ought  to  have  been  specially  communicated  to  all  the  shareholders: 
this  case  therefore  followed  8 packman  v.  Evans  (t).  Cp.  Stewart's 
case   (1866)  L.  E.  1  Ch.  511. 

The  question  of  the  shareholders'  knowledge  or  assent  in  each  case 
*involved  delicate  and  difficult  inferences  of  fact,  and  on  [698 
these  the  opinions  of  the  Lords  who  took  part  in  the  decisions  were 
seriously  divided.  It  may  perhaps  also  be  admitted  that  on  some 
inferences  of  mixed  fact  and  law  there  was  a  real  difference;  but  it 
may  safely  be  affirmed  that  on  any  pure  question  of  law  there  was 
none  (u).  These  cases  appear  to  establish  in  substance  the  following 
propositions:  (1.)  For  the  purpose  of  binding  a  company  as  against 
its  own  shareholders,  irregular  transactions  of  an  authorized  class 
may  be  ratified  by  the  assent  of  all  the  individual  shareholders. 
(2.)-  Such  assent  must  be  proved  as  a  fact.  Acquiescence  with  knowl- 
edge or  full  means  of  knowledge  may  amount  to  proof  of  assent,  and 
lapse  of  time,  though  not  conclusive,  is  material.  The  converse  prop- 
osition that  the  assent  of  a  particular  shareholder  will  bind  him  to 
an  irregular  transaction  as  against  the  company  is  likewise  well 
established,  but  does  not  fall  within  our  present  scope.  See  Camp- 
bell's case,  &c.  (1873)  L.  E.  9  Ch.  1,  43  L.  J.  Ch.  1. 

Phosphate  of  Lime  Co.  v.  Green.  The  later  case  of  Phosphate  of  Lime 
Co.  v.  Green  (1871)  L.  E.  7  C.  P.  43,  was  of  much  the  same  kind 
though  in  a  different  form.  The  action  was  by  the  company  against 
past  shareholders  for  a  debt,  and  the  defence  rested  on  an  accord  and 
satisfaction  which  had  been  effected  by  an  irregular  forfeiture  of  the 

(t)    (1868).     See  also  L.  E.  7   C.  (u)    See  per  Willes  J.,  L.  R.  7  C. 

p    51     52,   and   note   the   remark   of       P.  60. 
Willes  J.  p.  53,  34  L.  J.  Ch.  321. 


902  APPENDIX. 

defendant's  shares,  and  which  in  the  result  was  upheld  on  the  ground 
of  the  shareholder's  acquiescence.  It  was  not  necessary  to  consider 
the  distinction  between  irregular  acts  which  can  be  ratified  and  acts 
contrary  to  the  constitution  of  the  company  which  cannot  be  ratified 
in  any  way,  nor  was  it  brought  to  the  attention  of  the  Court  (x). 

Statutory  prohibition:  Companies  Act,  1862.  With  regard  to  cases  in 
which  ratification  is  impossible  by  reason  of  the  corporation  being 
absolutely  disabled  from  undertaking  the  transaction,  the  existence 
of  such  cases  has  been  recognized  almost  from  the  beginning  of 
modern  corporation  law.  "A  company  incorporated  by  Act  of  Parlia- 
ment for  a  special  purpose  cannot  devote  any  part  of  its  funds  to 
objects  unauthorized  by  the  terms  of  its  incorporation,  however  desir- 
able such  an  application  may  appear  to  be"  (y).  The  application 
of  this  principle  to  companies  under  the  Companies  Act,  1862  (the 
most  important  class  of  cases  in  practice),  was  fixed  by  the  House 
of  Lords  in  1875  in  Ashbury,  &c.  Co.  v.  Riche,  p.  *128,  above.  The 
House  decided  that,  by  the  frame  and  intention  of  the  Act  as  a  whole, 
699]  the  memorandum  of  association  *is  the  fundamental  constitu- 
tion of  the  company,  and  the  company  is  incompetent  to  undertake 
anything  outside  its  objects  as  thereby  defined.  As  a  consequence 
of  this,  any  provision  in  the  articles  for  applying  the  company's 
capital  to  a  purpose  not  warranted  by  the  memorandum  is  itself 
invalid:  Guinness  v.  Land  Corporation  of  Ireland  (1882)  22  Ch.  Div. 
349.  For  some  time  past  it  has  been  the  practice  of  company  drafts- 
men to  frame  the  memorandum  in  the  most  comprehensive  terms, 
in  order  to  prevent  questions  of  this  kind  from  arising;  but  the 
decisions  remain  in  full  force,  and  the  practice  and  forms  in  use 
cannot  be  adequately  understood  without  reference  to  them.  As  to 
when  the  Attorney- General  is  entitled  to  interfere,  see  A.-G.  v.  G.  E. 
Ry.  Co.  (1880)  11  Ch.  Div.  449;  49  L.  J.  Ch.  545;  A.-G.  v.  London 
County  Council  [1901]  1  Ch.  781,  70  L.  J.  Ch.  367,  C.  A.  This  last 
case  also  decides  that  a  county  council  under  the  Local  G-overnment 
Act,  1888,  is  a  purely  statutory  body  and  has  not  the  general  powers 
of  a  corporation  at  common  law. 


Xote  E. 

Classification  of  Contracts  in-  Roman  and  Medieval  Law. 

The  verbal  contract.  Formal  Contracts  (legitimae  conventiones) 
gave  a  right  of  action  irrespective  of  their  subject-matter.  In  Jus- 
tinian's time  the  only  kind  of  formal  contract  in  use  was  the  Stipula- 
tion  (z),  or  verbal  contract  by  question  and  answer,  the  question 

(x)    See  further  on  the  subject  of  (s)   The  Htternrum  obligatio   (Gai. 

ratification  by  companies,  Lindley  on  3.  128)   was  obsolete.     What  appears 

Companies,   175-181.  under  that  title  in  the  Institutes   (3. 

(i/)    So  laid    down   as   well-settled  21)   is  a  general  rule  of  evidence  un- 

doctrine  by  Lord  Cranworth  in  E.  C.  connected    with    the    ancient    usage: 

Ry.  Co.  v.  Hairkrs   (1855)    5  H.  L.  C.  see  Moyle's  Justinian,   Exc.  viii. 
331,  24  L.  J.  Ch.  601. 


CONTRACTS    IN    HOMAN    AND    MEDIEVAL   LAW.  903 

being  put  by  the  creditor  and  answered  by  the  debtor  (as  Dari 
spondes?  spondeo:  Promittis?  promitto:  Fades?  faciam).  The 
origin  of  the  Stipulation  is  believed  to  have  been  religious  (a),  though 
the  precise  manner  of  its  adoption  into  the  civil  law  remains  uncer- 
tain. _  In  our  authorities  it  appears  as  a  formal  contract  capable 
of  being  applied  to  any  kind  of  subject-matter  at  the  pleasure  of  the 
parties.  Its  application  was  in  course  of  time  extended  by  the  fol- 
lowing steps.  *1.  The  question  and  answer  were  not  required  [700 
to  be  in  Latin  (&).  2.  An  exact  verbal  correspondence  between 
them  was  not  necessary  (c) .  3.  An  instrument  in  writing  purporting 
to  be  the  record  of  a  Stipulation  was  treated  as  strong  evidence  of 
the  Stipulation  having  actually  taken  place  (d),  and  it  might  be  pre- 
sumed that  the  form  of  question  and  answer  had  been  duly  observed 
even  without  express  words  to  that  effect  (e).  Hence  the  medieval 
development  of  operative  writings. 

Nudum  pactum  and  causa.  Informal  agreements  (pacta)  did  not 
give  any  right  of  action  without  the  presence  of  something  more  than 
the  mere  fact  of  the  agreement.  This  something  more  was  called 
causa.  Practically  the  term  covers  a  somewhat  wider  ground  than 
our  modern  "  consideration  executed  "  :  but  it  has  no  general  notion 
corresponding  to  it,  at  least  none  co-extensive  with  the  notion  of  con- 
tract; it  is  simply  the  mark,  whatever  that  may  be  in  the  particular 
case,  which  distinguishes  any  particular  class  of  agreements  from 
the  common  herd  of  pacta  and  makes  them  actionable.  Informal 
agreements  not  coming  within  any  of  the  privileged  classes  were^ 
called  nuda  pacta  and  could  not  be  sued  on  (/).  The  term  nudum 
pactum  is  sometimes  used,  however,  with  a  special  and  rather  different 
meaning,  to  express  the  rule  that  a  contract  without  delivery  will  not 
pass  property  (g). 

The  further  application  of  this  metaphor  by  speaking  of  the  causa 
when  it  exists  as  the  clothing  or  vesture  of  the  agreement  is  without 

(a)     Savigny's    derivation    of    the  use  of  written  agreements  had  much 

Stipulation  from  the  nexum  is  aban-  to  do  with  this. 

doned,  so  far  as  I  know,  by  all  re-  (e)  Paul.  Sent.  V.  7,  §  2.  For  de- 
cent writers.  It  seems  quite  possible  tailed  discussion  see  Seuffert,  Zur 
that  the  earliest  type  of  contract  is  Geschichte  der  obligatorischen  Ver- 
to  be  sought  in   covenants  made  be-  trage,  §  3. 

tween  independent  tribes  or  families.  (f)    They  gave  rise  however  to  im- 

Cf.  Gai.  3.  94  on  the  use  of  the  word  perfect     or     "  natural  "     obligations 

spondeo  in  treaties.     If  this  were  so,  which  had  other  legal  effects. 
one  would  expect  the  covenant  to  be  (g)   Traditonibus  et  usucapiouibus 

confirmed  by  an  oath,  of  which  Muir-  dominia    rerum,    non     nudis    pactis, 

head   (on  Gai.  3.  92)   finds  a  trace  on  transferuntur.     Cod.   2.   3.   de  pactis. 

other  grounds  in  the  form  promittis"!  20.     But  the  context  is  not  preserved, 

promitto.  an<i  tue   particular  pactum   in   ques- 

(6)  Gai.  3.  93,  I.  3.  15,  de  v.  o.  §  1.  tion   may  have   been   nudum    in   the 

(c)  C.  8.  38.  de  cont.  et  comm.  general  sense  too.  When  the  con- 
stipul     10.  trary  rule   of   the   Common   Law  be- 

(d)  C.  8.  38.  de  cont.  et  comm.  came  fixed  is  a  question  for  which 
stipul.    14,  I.   3.    19.   de  inut.   stipul.  more  light  ic  still  wanted. 

§  12.    Probably  Greek  and  provincial 


904  APPENDIX. 

classical  authority  but  very  common:  it  is  adopted  to  the  full  extent 
by  our  own  early  writers  (h). 

701  ]  *  What  informal  contracts  enforceable.  The  privileged  informal 
contracts  were  the  following :  1.  Real  contracts,  where  the  causa  con- 
sisted in  the  delivery  of  money  or  goods :  namely,  mutui  datio,  com- 
modatum,  dcpositum,  pignus,  corresponding  to  our  bailments.  This 
class  was  expanded  within  historical  times  to  cover  the  so-called 
innominate  contracts  denoted  by  the  formula  Do  ut  des,  &c.  (i),  so 
that  there  was  an  enforceable  obligation  re  contracta  wherever,  as  we 
should  say,  there  was  a  consideration  executed :  yet  the  procedure  in 
the  different  classes  of  cases  was  by  no  means  uniform  (k). 

2.  Consensual  contracts,  being  contracts  of  constant  occurrence 
in  daily  life  in  which  no  causa  was  required  beyond  the  nature  of 
the  transaction  itself.  Four  such  contracts  were  recognized,  the 
first  three  of  them  at  all  events  (I),  from  the  earliest  times  of  which 
we  know  anything,  namely,  Sale,  Hire,  Partnership,  and  Mandate. 
(Emptio  Venditio,  Locatio  Conductio,  Societas,  Mandatum.)  To 
this  class  great  additions  were  made  in  later  times.  Subsidiary  con- 
tracts (pacta  adiecta)  entered  into  at  the  same  time  and  in  connexion 
with  contracts  of  an  already  enforceable  class  became  likewise  enforce- 
able :  and  divers  kinds  of  informal  contracts  were  specially  made 
actionable  by  the  Edict  and  by  imperial  constitutions,  the  most  mate- 
rial of  these  being  the  constitutum ,  covering  the  English  heads  of 
account  stated  and  guaranty.  Justinian  added  the  pactum  dona- 
tionis,  it  seems  with  a  special  view  to  gifts  to  pious  uses  (m).  Even 
after  all  these  extensions,  however,  matters  stood  thus :  "  The  Stipu- 
lation, as  the  only  formal  agreement  existing  in  Justinian's  time, 
gave  a  right  of  action.  Certain  particular  classes  of  agreements  also 
gave  a  right  of  action  even  if  informally  made.  All  other  informal 
agreements  (nuda  pacta)  gave  none.  This  last  proposition,  that 
nuda  pacta  gave  no  right  of  action,  may  be  regarded  as  the  most 
characteristic  principle  of  the  Eoman  law  of  Contract"  (n).      It  is 

(h)  "  Pactum  nudum  est  non  vesti-  (Comm.    ii.   444)    took   this   formula 

turn   stipulatione   vel    re   vel    litteris  for    a    classification    of    all   valuable 

vol  consensu  vel  contractus  cohaeren-  considerations,   and   his  blunder  was 

tia "  ■  Azo,  Summa  in  Cod.  ap.  Seuf-  copied    without    reflection    by    later 

fert   op.   cit.   41 ;    Maitland,   Bracton  writers, 

and    Azo,    143.      "  Obligatio   quatuor  (fc)  Dig.  1.  c.  §§  1-4. 

species   habet   quibus    contrahitur   et  (I)    See  Muirhead  on  Gai.   3.  216. 

plura      vestimenta,"     Bracton,     99a.  (m)  C.  8.  54,  de  donat,  35,  §  5.    The 

"  Obligacioun  deit  estre  vestue  de  v.  establishment    of    emphyteusis    as    a 

maneres  de  garnisementz,"  Britton  1.  distinct    species    of    contract    is     of 

156.        Austin       (Jurisprudence,      2.  minor    importance    for    our    present 

1016,  3rd  ed. )   spoke  per  incuriam  of  purpose. 

the  right  of  action  itself,  instead  of  (n)  Sav.  Obi.  2.  231.  Muirhead,  on 

that  which  gives  the  right,  as  being  Gai.    3.     134,     says    that    "  amongst 

the  "  clothing."  peregrins  a  nudum  pactum  was  cre- 

(i)   Aut  enim  do  tibi  ut   des,   aut  ative  of  action:"  which  seems  to  be 

do   ut  facias,   aut  facio   ut   des,   aut  a  slip.     Provincial  usage,   so   far   as 

facio  ut  facias :   in  quibus  quaeritur  known,  was   less   advanced  than   Ro- 

quae    obligatio    nascatur.      D.    19.    5.  man;    thus   the   contract  of  sale   was 

de   praescr.   verbis,  5   pr.   Blackstone  (as   in   Germanic   custom)    real   and 


CONTRACTS    IN    ROMAN    AND    MEDIEVAL  LAW.  905 

desirable  to  bear  in  mind  that  in  Roman,  and  therefore  also  [702 
in  early  English  law-texts,  nudum  pactum  does  not  mean  an  agree- 
ment made  without  consideration.  Many  nuda  pacta,  according  to 
the  classical  Eoman  law,  would  be  quite  good  in  English  law,  as 
being  made  on  sufficient  consideration;  while  in  many  cases  obliga- 
tions recognized  by  Roman  law  as  fully  binding  (e.g.,  from  mandate 
or  negotiorum  gestio)  would  be  unenforceable,  as  being  without  con- 
sideration, in  the  Common  Law. 

Modern  civil  law.  When  the  Roman  theory  came  to  be  adopted  or 
revived  in  AVestern  Christendom,  the  natural  obligation  admitted  to 
arise  from  an  informal  agreement  was,  under  the  influence  of  the 
canonists,  gradually  raised  to  full  validity,  and  the  difference  between 
pactum  and  legitima.  conventio  ceased  to  exist  (o).  The  process,  how- 
ever, was  not  completed  until  English  law  had  already  struck  out  its 
own  line. 

The  deed  in  English  medieval  law.  The  identification  of  Stipulation 
with  formal  writing,  complete  on  the  Continent  not  later  than  the 
9th  century  (p),  was  adopted  by  our  medieval  authors.  In  Glanvill 
we  find  that  a  man's  seal  is  conclusive  against  him  (q).  Bracton, 
after  setting  forth  almost  in  the  very  words  of  the  Institutes  how 
"Verbis  contrahitur  obligatio  per  stipulationem,"  &c.  adds:  "  Et 
quod  per  scripturam  fieri  possit  stipulatio  et  obligatio  videtur,  quia 
si  scriptum  fuerit  in  instrumento  aliquem  promisisse,  perinde  habetur 
ac  si  interrogatione  praecedente  responsum  sit"  (r).  There  is  no 
doubt  that  he  means  only  a  writing  under  seal,  though  it  is  not  so 
expressed :  Fleta  does  say  in  so  many  words  that  a  writing  unsealed 
will  not  do  (s).  The  equivalent  for  the  Roman  Stipulation  being 
thus  fixed,  the  classes  of  Real  and  Consensual  contracts  are  recog- 
nized, in  the  terms  of  Roman  law  so  far  as  the  recognition  goes :  the 
Consensual  contracts  are  but  meagrely  handled  for  form's  sake,  as  the 
Roman  rules  could  not  be  reconciled  with  English  practice  (t).  We 
hear  of  *nothing  corresponding  to  the  later  Roman  extensions  [703 
of  the  validity  of  informal  agreements.     Such  agreements  in  general 

not    consensual:    Gilson,    L'gtude   du  (Dd.   7.   6)  :    Differt   pactum   »   con- 

droit    romain     compare    aux    autres  ventione  quia  pactum  solum  consistit 

droits   de   Fantiquitfi    (1899)    p.   217.  in  sermonibus,  ut  in  stipulationibus, 

(o)    Seuffert  op.  cit.  cp.  Harv.  Law  conventio   tarn   in   sermone   quam   in 

Rev      vi.     390,     391.       See     Esmein,  opere,  ut  cum  in  scriptis  redigitur. 

Etudes  sur  les  contrats  dans  le  tres  (s)  Lib.  2,  c.  60,  §  25.    Non  solum 

ancien  droit  francais,  Paris  1883,  for  sufficiet   scriptura    nisi   sigilli    munl- 

the  earlier  medieval  history.  mine  stipulantis   (see  p.  *137,  above) 

(«)    Details      and     authorities     in  roboretur    cum    testimonio    fide    dig- 

Brunner,  Rom.  u.  German,  Urkunde.  norum  praesentium. 

(a)   L   x.  c.  12.  (*)     Bracton's    law    of    sale,    like 

(r)  99  6.  100  a.  Later  students  Glanvill's,  is  the  old  Germanic  law 
of  Roman  law  seem  to  have  been  dis-  in  which  the  contract  is  not  con- 
satisfied;  at  any  rate  the  following  sensual  but  real:  fo.  61  6.,  Gttter- 
curious  marginal  note  occurs  in  an  bock,  p.  113.  Mandate  is  still  un- 
earlv   14th   century  MS.   of   Bracton  known  to  the  Common  Law. 


in 


the  Cambridge  University  Library 


906  APPENDIX. 

give  no  right  of  action:  in  Glanvill  it  is  expressly  said:  "Privatas 
conventiones  non  solet  curia  domini  regis  tueri"  (u) ;  the  context 
makes  it  doubtful  whether  even  agreements  under  seal  were  then 
recognized  by  the  King's  Court  unless  they  had  been  made  before 
the  Court  itself.  In  Braeton  too,  notwithstanding  his  elaborate  copy- 
ing of  Eoman  sources,  we  read :  "  Indicialis  autem  esse  poterit  stipu- 
late, vel  conventionalis :  iudicialis,  quae  iussu  iudicis  fit  vel  praetoris. 
Conventionalis  quae  ex  conventione  utriusque  partis  concipitur,  nee 
iussu  iudicis  vel  praetoris,  et  quarum  totidem  sunt  genera  quot 
paene  (x)  rerum  contrahendarum,  de  quibus  omnibus  omnino  curia 
regis  se  non  intromittit  nisi  aliquando  de  gratia"  (fo.  100a). 


Note  F.  (p.  *217). 

Early  Authorities  on  Assignments  of  Choses  in  Action. 

1.  Cases  where  a  direct  assignment  only  is  in  question.  In  Mich.  3  Hen. 
IV,  8,  pi.  34,  is  a  case  where  a  grantee  of  an  annuity  from  the  king 
sued  on  it  in  his  own  name.  No  question  seems  to  have  been  raised 
of  his  right  to  do  so. 

In  Hil.  37  Hen.  VI.  13,  pi.  3,  it  appears  that  by  the  opinion  of  all 
the  justices  an  assignment  of  debts  (not  being  by  way  of  satisfaction 
for  an  existing  debt)  was  no  consideration  (quid  pro  quo)  for  a  bond, 
forasmuch  as  no  duty  was  thereby  vested  in  the  assignee:  and  the 
Court  of  Chancery  acted  on  that  opinion  by  decreeing  the  bond  to  be 
delivered  up.  The  case  is  otherwise  interesting,  as  it  shows  pretty 
fully  the  relations  then  existing  between  the  Court  of  Chancery  and 
the  Courts  of  Common  Law,  and  the  cardinal  doctrine  that  the  juris- 
diction of  equity  is  wholly  personal  is  stated  with  emphatic  clearness. 

In  Hil.  21  Ed.  IV.  84,  pi.  38,  the  question  was  raised  whether  an 
annuity  for  life  granted  without  naming  assigns  could  be  granted 
704]  *over;  and  the  dictum  occurs  that  the  right  of  action,  whether 
on  a  bond  or  on  a  simple  contract,  cannot  be  granted  over. 

Mich.  39  Hen.  VI.  26,  pi.  36.  If  the  king  grant  a  duty  due  to 
him  from  another,  the  grantee  shall  have  an  action  in  his  own  name : 
"  et  issint  ne  puit  nul  autre  faire." 

So  Mich.  2  Hen.  VII.  8,  pi.  25.  "  Le  Boy  poit  granter  sa  accion 
ou  chose  qui  gist  en  accion;  et  issint  ne  poit  nul  auter  person." 

In  Eolle  Abr.  Action  sur.  Case,  1.  20,  pi.  12,  this  case  is  stated  to 

(u)  Lib.  x.  c.  18,  and  more  fully  ib.  eeedings,     where     several      instances 

c.  8.     "Curia  domini  regis"  is  sig-  will  be  found;   Harv.  Law.   Rev.   vi. 

nificant,  for  the  ecclesiastical  courts,  402. 

and,     it    seems,     local     and     private  (x)     This    is    evidently    the    true 

courts,      did      take      cognizance      of  reading :  the  printed  book  has  poenae, 

breaches    of   informal    agreements   as  seemingly  a  mere  printer's  misread- 

being  against  good  conscience,  ib.  c.  ing   of   pene,  which   is  given  by  the 

12 ;  Blackstone,  Comm.  i.  52,  and  au-  best  MSS.     Braeton  was  copying  the 

thorities     there     cited;     Archdeacon  language  of  I.  3.  18,  §  3. 
Hale's  Series  of  Precedents  and  Pro- 


ASSIGNMENTS    OF   CHOSES    IN   ACTION.  907 

have  been  decided  in  B.  B.,  42  Eliz.,  between  Mowse  and  Edney, 
per  curiam :  A.  is  indebted  to  B.  by  bill  (i.e.,  the  now  obsolete  form 
of  bond  called  a  single  bill),  and  B.  to  C.  B.  assigns  A.'s  bill  to  C. 
Forbearance  on  C.'s  part  for  a  certain  time  is  no  consideration  for  a 
promise  by  A.  to  pay  C.  at  the  end  of  that  time  (s.  v.  contra,  ib.  29, 
pi.  60)  :  for  notwithstanding  the  assignment  of  the  bill,  the  property 
of  the  debt  remains  in  the  assignor. 

In  none  of  these  cases  is  there  a  word  about  maintenance  or  public 
policy.  On  the  contrary,  it  appears  to  be  assumed  throughout  that 
the  impossibility  of  effectually  assigning  a  chose  in  action  is  inherent 
in  the  legal  nature  of  things.  Finally,  in  Termes  de  la  Ley,  tit.  Chose 
in  Action,  the  rule  is  briefly  and  positively  stated  to  this  effect: 
Things  in  action  which  are  certain  the  king  may  grant,  and  the 
grantee  have  an  action  for  them  in  his  own  name:  but  a  common 
person  can  make  no  grant  of  a  thing  in  action,  nor  the  king  himself 
of  such  as  are  uncertain.      No  reason  is  given. 

The  exception  in  favour  of  the  Crown  may  perhaps  be  derived  from 
the  universal  succession  accruing  to  the  Crown  on  forfeitures.  This 
would  naturally  include  rights  of  action,  and  it  is  easy  to  under- 
stand how  the  practice  of  assigning  over  such  rights  might  spring 
up  without  much  examination  of  its  congruity  with  the  legal  prin- 
ciples governing  transactions  between  subjects. 

Before  the  expulsion  of  the  Jews  under  Edward  I.  they  were 
treated  as  a  kind  of  serfs  of  the  Crown  (ipsi  Iudaei  et  omnia  sua  regis 
sunt,  Pseudo-L.  Edw.  Conf.  c.  25;  tayllables  au  Roy  come  les  soens 
serfs  et  a  nul  autre:  Statutes  of  Jewry,  temp,  incert.,  dated  by 
Prynne,  3  Ed.  I.),  and  the  king  accordingly  claimed  and  exercised 
an  arbitrary  power  of  confiscating,  releasing,  assigning,  or  licensing 
them  to  assign,  the  debts  due  to  them.  Cp.  charter  of  Frederick  II. 
Pet.  de  Vineis  Epist.  lib.  6,  no.  12 :  "  omnes  et  singuli  Iudaei  degentes 
ubique  per  terras  nostrae  iurisdictioni  subiectas  Christianae  legis  et 
Imperii  praerogativa  servi  sunt  nostrae  Camerae  speciales."  And 
see  on  this  subject  Y.  B.  33  Ed.. I.  pp.  xli.  355,  and  Prynne's  "Short 
Demurrer  to  the  Jews,"  &c.  (Lond.  1656,  a  violent  polemic  against 
their  re-admission  to  England),  passim. 

*2.  Cases  where  the  right  of  an  assignee  to  sue  in  the  name  of  the  [705 
assignor  was  in  question.  In  Hil.  9  Hen.  VI.  64,  pi.  17,  Thomas  Bothe- 
wel  sues  J.  Pewer  for  maintaining  W.  H.  in  an  action  of  detinue 
against  him,  Eothewel,  for  "un  lox  ove  charters  et  muniments." 
Defence  that  W.  H.  had  granted  to  Pewer  a  rentcharge,  to  which 
the  muniments  in  question  related,  and  had  also  granted  to  Pewer 
the  box  and  the  deeds,  then  being  in  the  possession  of  Eothewel  to 
the  use  of  W.  H.  wherefore  Pewer  maintained  W.  H.,  as  he  well 
might.  To  this  Paston,  one  of  the  judges,  made  a  curious  objection  by 
way  of  dilemma.  It  was  not  averred  that  W.  H.  was  the  owner  of 
the  deeds,  but  only  that  Eothewel  had  them  to  his  use;  and  so  the 
property  of  them  might  have  been  in  a  stranger :  "  et  issint  ceo  fuit 
chose  en  accion  et  issint  tout  void."  The  precise  meaning  of  these 
words  is  not  very  clear,  but  the  general  drift  is  that,  for  anything 


908  APPENDIX. 

that  appeared,  W.  H.  had  no  assignable  interest  whatever;  and  it 
looks  as  if  the  strong  expression  tout  void  was  meant  to  take  a  higher 
ground,  distinguishing  between  a  transaction  impeachable  for  mainte- 
nance and  one  wholly  ineffectual  from  the  beginning.  It  may  have 
been  supposed  that  an  assignment  by  a  person  out  of  possession  could 
have  no  effect.  But  if  W.  H.  was  the  true  owner,  Paston  continued, 
then  the  whole  property  of  the  deeds,  &c,  passed  to  Pewer,  who  ought 
to  have  brought  detinue  in  his  own  name  (y).  Babington  C.J.  and 
Martyn  J.,  the  other  judges  present,  were  of  a  contrary  opinion,  hold- 
ing that  any  real  interest  in  the  matter  made  it  lawful  to  maintain 
the  suit.  The  attempt  to  assign  a  chose  in  action  is  here  compared  by 
the  counsel  for  the  plaintiff  to  the  grant  of  a  reversion  without  at- 
tornment; showing  that  the  personal  character  of  the  relation  was 
considered  the  ground  of  the  rule  in  both  cases. 

In  Mich.  31  Hen.  VI.  30,  pi.  15,  Eobert  Horn  sued  Stephen  Foster 
for  maintaining  the  administrators  of  one  Francis  in  an  action  against 
him,  E.  Horn:  the  circumstances  being  that  Horn  was  indebted  to 
Francis  by  bond,  and  Francis  being  indebted  to  Stephen  in  an  equal 
sum  assigned  the  debt  and  delivered  the  bond  to  him,  authorizing 
him,  if  necessary,  to  sue  on  it  in  his  (Francis')  name,  to  which  Horn 
agreed;  and  now  Francis  had  died  intestate,  and  Stephen  was  suing 
on  the  bond  in  the  name  of  the  administrators  with  their  consent. 
And  this  being  pleaded  for  the  defendant,  was  held  good.  Prisot, 
706]  in  giving  judgment,  compared  the  case  of  the  *cestui  que  use 
of  lands,  whether  originally  or  claiming  by  purchase  through  him 
to  whose  use  the  feoffment  was  originally  made,  taking  part  in  any 
suit  touching  the  lands.  On  this  Fitzherbert  remarks  (Mayntenauns, 
14)  "  Nota  icy  que  per  ceo  il  semble  que  un  duite  puit  estre  assigne 
pour  satisfaction/'  So  it  is  said  in  Hil.  15  Hen.  VII.  2,  pi.  3,  that 
if  one  is  indebted  to  me,  and  deliver  to  me  an  obligation  in  satis- 
faction of  the  debt,  wherein  another  is  bound  to  him,  I  shall  sue  in 
my  debtor's  name,  and  pay  my  counsel  and  all  things  incident  to  the 
suit;  and  so  may  do  he  to  whom  the  obligation  was  made,  for  each  of 
us  may  lawfully  interfere  in  the  matter. 

Brooke,  Abr.  110  b,  observes,  referring  to  the  last-mentioned  case : 
"  Et  sic  vide  que  chose  in  accion  poet  estre  assigne  oustre  pur  loyal 
cause,  come  iust  det,  mez  nemy  pur  maintenance."  This  form  of  ex- 
pression is  worth  noting,  as  showing  that  assignment  of  a  chose  in 
action  meant  to  the  writer  nothing  else  than  empowering  the  assignee 
to  sue  in  the  assignor's  name.  He  was-  at  no  pains  to  explain  that 
he  did  not  mean  to  say  the  assignee  could  sue  in  his  own  name;  for 
he  did  not  think  any  one  could  suppose  he  meant  to  assert  such  a 
plainly  impossible  proposition. 

It  was  long  supposed  (as  is  implied  in  Fitzherbert's  and  Brooke's 
language — and  see  the  case  in  37  Hen.  VI.,  cited  p.  *703,  above)  that 

(y)    Another  argument  put  by  the  and   the   deeds   relating  to  it,  yet   he 

plaintiff's    counsel,    though   not  very  had  none  in  the  box,  and  therefore  in 

material,   is  too  quaint  to  be   passed  respect  of  the  box,  at  all  events,  there 

over :  Whatever  interest  Pewer  might  was    unlawful    maintenance    on    his 

have  had  by  the  grant  of   the   rent  part. 


STATUTORY  RESTRICTIONS   ON    CONTRACT.  909 

the  assignment  of  a  debt  by  way  of  sale,  as  opposed  to  satisfaction  of 
an  existing  liability,  was  maintenance.  Even  under  the  Restoration 
the  Court  of  Chancery  would  not  protect  the  assignment  of  any  chose 
in  action  unless  in  satisfaction  of  some  debt  due  to  the  assignee: 
Freem.  C.  C.  145,  pi.  185,  see  Prof.  Ames  in  Harv.  Law  Rev.  i.  6, 
note;  and  further  on  the  whole  matter,  Harv.  Law  Rev.  iii.  337  sqq. 
This  evidence  seems  sufficient  to  establish  with  reasonable  cer- 
tainty the  statement  in  the  text.  The  historical  difficulty  is  one 
which  extends  to  the  whole  of  our  law  of  contract,  namely,  that  of 
tracing  any  continuity  of  general  principles  in  the  interval  between 
the  Romanized  expositions  of  them  in  Bracton  and  Britton  and  their 
first  appearance  in  a  definitely  English  form. 


*Note  G.  (pp.  *300,  *301).  [707 

Occupations,  dealings,  &c,  regulated  or  restrained  by  statute. 

(The  list  here  given  is  probably  not  complete.  A  certain  number 
of  the  references  have  been  taken  from  the  Index  to  the  Revised 
Statutes  without  further  verification.  The  occasional  asterisks  mean 
that  further  remarks  on  the  Act  or  matter  thus  denoted  will  be  found 
in  the  chapter  on  Agreements  of  Imperfect  Obligation.) 

Anchors.     See  Cham  Cables. 

Apothecaries.     55  Geo.  3,  c.  194;  37  &  38  Vict.  c.  34. 

Art  Unions.     Excepted  from  Lotteries  Acts,  9  &  10  Vict.  c.  48. 

Attorneys.     See  Solicitors. 

Bankers.  3  &  4  Wm.  4,  c.  98 ;  7  &  8  Vict.  c.  32 ;  8  &  9  Vict.  c.  76 ; 
17  &  18  Vict.  c.  83,  ss.  11,  12.     See  Lindley  on  Partnership,  103. 

Brewers.  Inland  Revenue  Act,  1880,  43  &  44  Vict.  c.  20,  Part  2 ; 
48  &  49  Vict.  c.  51. 

Brokers.  6  Ann.  c.  68  (Rev.  Stat);  57  Geo.  3,  c.  lx. ;  rep.  in 
part,  33  &  34  Vict.  c.  60;  47  Vict.  c.  3.  Smith  v.  Undo  (1858)  4 
C.  B.  X.  S.  395 ;  5  ib.  587 ;  27  L.  J.  C.  P.  196,  335. 

Building.     See  Metropolitan  Buildings. 

Cabs  and  Hackney  Carriages  (London).  See  16  &  17  Vict.  c.  33; 
32  &  33  Vict.  c.  115;  59  &  60  Vict.  c.  27. 

Cattle.     (Sale  in  London)  31  Geo.  2,  c.  40. 

Chain  Cables  and  Anchors.  (Sale  forbidden  if  not  tested  and 
stamped)  62  &  63  Vict.  c.  23. 

Chemists.  15  &  16  Vict.  c.  56 ;  31  &  32  Vict.  c.  121 ;  61  &  62  Vict. 
c.  25;  and  see  Poison  (sale  of). 

Chimney  Sweepers  must  take  out  a  certificate,  and  are  liable  to 
penalties  if  they  exercise  their  business  without  one:  38  &  39  Vict. 

c   70. 

Clergy.  Charging  benefices  forbidden,  13  Eliz.  c.  20;  Ex  parte 
Arrowsmith  (1878)  8  Ch.  D.  96,  47  L.  J.  Bk.  46;  and  see  the  Bene- 
fices Act,  1898,  61  &  62  Vict.  c.  48.  Trading  forbidden,  1  &  2  Vict, 
c.  106.    Supra,  p.  *298. 


910  APPENDIX. 

Coals.     (Sale  in  London)  1  &  2  Vict.  c.  cli. 

Coal  Mines  Begulation  Act,  1887,  50  &  51  Vict.  c.  58,  Part  1; 
1894,  57  &  58  Vict,  c.  52. 

Companies.  (Formation  of;  partnerships  of  more  than  ten  per- 
sons for  banking,  or  twenty  for  other  purposes,  must,  if  not  other- 
wise privileged,  be  registered  under  the  Act)  Companies  Act,  1862, 
s.  4.  As  to  what  is  an  association  for  the  acquisition  of  gain 
708]  *within  that  sect.,  see  Smith  v.  Anderson  (1880)  15  Ch.  Div.> 
247,  50  L.  J.  Ch.  39,  overruling  Sykes  v.  Beadon  (1879)  11  Ch.  D. 
170,  48  L.  J.  Ch.  522. 

Conveyancers.     54  &  55  Vict.  c.  39,  s.  44.     Supra,  p.  *296. 

Dangerous  Goods  (importation,  manufacture,  sale,  and  carriage). 
Nitro-glycerine,  &c.     Explosives  Act,  1875,  38  Vict.  c.  17. 
Petroleum,  &c.  34  &  35  Vict.  c.  105;  42  &  43  Vict.  c.  47. 

Generally:  Explosive  Substances  Act,  1883,  46  Vict.  c.  3  (but  this 
has  only  a  remote  bearing  on  any  contract) . 

Dentists.     41  &  42  Vict.  c.  33 ;  49  &  50  Vict.  c.  48,  s.  26. 

Excise.  Many  early  statutes  and  most  of  the  recent  annual  Finance 
Acts  contain  general  regulations  as  to  trades  and  businesses  subject  to 
the  excise  laws.    It  is  not  thought  necessary  to  set  out  these  in  detail. 

Fertilisers  and  Feeding  Stuffs.     56  &  57  Vict.  c.  56. 

Food.  The  sale  of  any  article  "  diseased,  unsound,  unwholesome, 
or  unfit  for  the  food  of  man  "  forbidden ;  53  &  54  Vict.  c.  59,  s.  28 ; 
and  see  62  &  63  Vict.  c.  51. 

Game  (sale  of).  1  &  2  Wm.  4,  c.  32.  Porritt  v.  Baker  (1855)  10 
Ex.  759. 

Gaming  Securities.    5  &  6  Wm.  4,  c.  41;  55  Vict.  c.  9. 

Goldsmiths.     17  &  18  Vict.  c.  96    (and  several  earlier  Acts). 

Gunpowder  (manufacture  and  keeping).  Explosives  Act,  1875, 
38  &  39  Vict.  c.  17. 

Insurance  (Life).  Assured  must  have  interest,13  14  Geo.  3,  c.  48. 
The  statute  is  a  defence  for  the  insurers,  but  if  they  choose  to  pay 
on  an  insurance  without  interest  the  title  to  the  insurance  moneys 
as  between  other  persons  is  not  affected:  Worthington  v.  Curtis 
(1875)  1  Ch.  Div.  419,  45  L.  J.  Ch.  259,  see  p.  *382,  supra. 

Eestriction  on  insurance  of  lives  of  infants:  39  &  40  Vict.  c.  22, 
s.  2. 

(Marine.)  The  like:  insurances  of  goods  on  British  ships,  "inter- 
est or  no  interest,  or  without  further  proof  of  interest  than  the  policy, 
or  by  way  of  gaming  or  wagering,  or  without  benefit  of  salvage  to 
the  assurer,"  are  made  void  by  19  Geo.  2,  c.  37.  See  notes  to  Goram 
v.  Sweeting,  2  Wms.  Saund.  592-7.  The  prohibition  of  this  statute 
extends  to  policies  on  profit  and  commission:  Allkins  v.  Jupe  (1877) 
2  C.  P.  D.  375,  46  L.  J.  C.  P.  824. 

*  Eequirement  of  stamped  policy,  54  &  55  Vict.  c.  39,  s.  92. 

Intoxicating  Liquors.  Licensing  Acts,  1872-1874,  35  &  36  Vict, 
c.  94,  and  37  &  38  Vict.  c.  49   (and  several  earlier  Acts). 

13  In  this  country  since  wagers  have  been  held  illegal  at  common  law 
insurable  interest  is  necessary  for  the  creation  of  a  valid  policy.  See  16  Am. 
&   Eng.  Encyc.  of  Law    (2d  ed.),  845  et  seq. 


STATUTORY   RESTRICTIONS   ON    CONTRACT.  911 

56  Vict.  e.  17  (as  to  the  sale  of  spirituous  liquors  in  the  North  Sea). 

1  Edw.  7.    Sale  of  intoxicating  liquors  to  children. 

^Landlord  and  Tenant.  Property  tax:  5  &  6  Vict.  c.  35,  [709 
s.  103.  Lamb  v.  Brewster  (1879)  4  Q.  B.  Div.  607,  48  L.  J.  Q.  B. 
421.    Ground  game:   43  &  44  Vict.  c.  47,  s.  3. 

Loans,  to  Infants,  Forbidden.  55  Vict.  c.  4.  As  to  presumption 
of  knowledge  of  infancy,  see  63  &  64  Vict.  c.  51,  s.  5. 

Lotteries.  Forbidden  by  10  Wm.  3,  c.  23  (Kev.  Stat.:  al.  17)  and 
a  series  of  penal  statutes,  of  which  the  last  is  8  &  9  Vict.  c.  74. 

Marine  Store  Dealers.  Public  Stores  Act,  1875,  38  &  39  Vict.  c.  25, 
ss.  9-11. 

*  Medical  Practitioners.  21  &  22  Vict.  c.  90,  22  Vict.  c.  21,  23  &  24 
Viet.  cc.  7,  66,  39  &  40  Vict.  cc.  40,  41  (the  latter  Act  expressly  per- 
mitting the  registration  of  women),  49  &  50  Vict.  c.  48. 

Metropolitan  Buildings.    18  &  19  Vict.  c.  122,  25  &  26  Vict.  c.  102. 

Money.  Contracts,  &c,  must  be  made  in  terms  of  some  currency. 
Coinage  Act,  1870,  33  Vict.  c.  10,  s.  16. 

Money-lenders.  The  Money-lenders  Act,  1900  (63  &  64  Vict.  c.  51) . 
See  p.  *631,  above. 

Old  Metal.  (Minimum  quantities  to  be  bought  at  one  time  by 
dealer  in)  Prevention  of  Crimes  Act,  1871,  34  &  35  Vict.  c.  112,  s.  13. 

Pawnbrokers.     35  &  36  Vict.  c.  93.     Supra,  p.  *297. 

Poison  (sale  of).  31  &  32  Vict.  c.  121,  s.  17,  and  see  32  &  33  Vict. 
c.  117,  s.  3.  Berry  v.  Henderson  (1870)  L.  E.  5  Q.  B.  296,  39  L.  J. 
M.  C.  77. 

Postage  Stamps.  47  &  48  Vict.  c.  76,  s.  7,  makes  it  an  offence  to 
deal  in  or  sell  any  fictitious  stamp  (including  imitations  of  colonial 
and  foreign  stamps). 

Printing.  32  &  33  Vict.  c.  24.  Bensley  v.  Bignold  (1822)  5  B.  & 
Aid.  335,  24  E.  E.  401,  supra,  p.  *293. 

Public  Office  (sale  forbidden).  5  &  6  Edw.  6,  c.  16 ;  3  Geo.  1,  e.  15 ; 
49  Geo.  3,  c.  126;  53  Geo.  3,  c.  54;  1  &  2  Geo.  4,  c.  54;  see  Grceme  v. 
Wroughton  (1855)  11  Ex.  146,  24  L.  J.  Ex.  265. 

Railway  Servants.  Eestriction  on  excessive  hours  of  labour :  56  &  57 
Vict.  c.  29. 

Religious  Opinions  (expression  of).  9  Wm.  3,  c.  35  (Eev.  Stat. :  al. 
c.  32).  See  Cowan  v.  Milboum  (1867)  L.  E.  2  Ex.  230,  36  L.  J.  Ex. 
124. 

Seamen.  Sale  of  or  charge  upon  wages  or  salvage  invalid,  Mer- 
chant Shipping  Act,  1894  (57  &  58  Vict.  c.  60),  ss.  163  (1),  212.  As 
to  seamen's  wages  generally,  see  57  &  58  Vict.  c.  60,  ss.  131 — 167. 

Shipping  (passenger  steamers).  Voyage  without  Board  of  Trade 
certificate  unlawful,  Merchant  Shipping  Act,  1894  (57  &  58  Vict. 
c.  60),  ss.  271,  281.  Dudgeon  v.  Pembroke  (1874)  L.  E.  9  Q.  B.  581, 
43  L.  J.  Q.  B.  220. 

Simony.  Purchase  of  next  presentation,  13  Ann.  c.  11  (Eev. 
*Stat:  al.  12  Ann.  Stat.  2,  c.  12).  The  purchase  of  a  life  es-  [710 
tate  in  an  advowson  is  not  within  the  statute,  and  the  purchaser,  if  a 
clerk  may  offer  himself  for  admission  on  the  next  avoidance :  Walsh 
v.  Bishop  of  Lincoln  (1875)  L.  E.  10  C.  P.  518,  44  L.  J.  C.  P.  244. 


912  APPENDIX. 

Slave  Trade.  Illegal,  and  contracts  relating  to  avoided,  5  Geo.  4, 
c.  113,  6  &  7  Vict.  c.  98,  36  &  37  Vict.  c.  88.  As  to  construction  of 
the  statutes  on  contracts  made  abroad,  Santos  v.  Illidge  (1860)  6 
C.  B.  N.  S.  841,  28  L.  J.  C.  P.  317,  in  Ex.  Ch.  8  C.  B.  N.  S.  861, 
29  L.  J.  C.  P.  348. 

Solicitors.  23  &  24  Vict.  c.  127,  51  &  52  Vict.  c.  65.  Unqualified 
persons  are  forbidden  to  practise,  and  a  solicitor  omitting  to  take 
out  annual  certificate  cannot  recover  costs.  Special  agreements  in 
writing  between  solicitor  and  client  as  to  remuneration  are  now  valid, 
33  &  34  Vict.  c.  28,  ss.  4—15,  if  not  in  the  nature  of  champerty,  s.  11 : 
*they  cannot  be  sued  upon,  but  may  be  enforced  or  set  aside  in  a 
discretionary  manner  on  motion  or  petition,  ss.  8,  9.  See  Rees  v. 
Williams  (1875)  L.  R.  10  Ex.  200,  44  L.  J.  Ex.  116.  A  promise  to 
charge  no  costs  at  all  in  the  event  of  losing  the  action  is  good  apart 
from  the  statute,  and  is  not  touched  by  s.  11.  Jennings  v.  Johnson 
(1873)  L.  E.  8  C.  P.  425.  As  to  non-contentious  business,  this  Act 
is  superseded  by  the  Solicitors'  Eemuneration  Act,  1881  (44  &  45 
Vict.  c.  44). 

Spirits,  &c.  (sale  of).  *In  small  quantities,  24  Geo.  2,  c.  40,  s.  12 
(Tippling  Act)  ;  25  &  26  Vict.  c.  38;  51  &  52  Vict.  c.  43,  s.  182.  To 
steerage  passengers  on  ship  during  voyage,  57  &  58  Vict.  c.  60,  s.  326. 

Spirits  (methylated) .  As  to  making,  warehousing,  sale,  &c. :  52 
&  53  Vict.  c.  42,  Part  iv.  (and  several  later  Acts). 

Sunday.  Work  in  ordinary  callings  by  tradesmen,  &c,  and  public 
sales  by  any  person  on  Sunday  forbidden,  29  Car.  2,  c.  7. 

Theatres.  6  &  7  Vict.  c.  68  (licences;  examination  of  plays); 
35  &  36  Vict.  c.  94,  s.  72,  37  &  38  Vict.  c.  69,  s.  7,  43  &  44  Vict. 
c.  20,  s.  43  (5)  (sale  of  liquors)  ;  42  &  43  Vict.  c.  34;  57  &  58  Vict. 
c.  41,  ss.  2,  3;  60  &  61  Vict.  c.  52  (performances  by  children). 

Tobacco.  Growing  tobacco  is  forbidden  by  12  Car.  2,  c.  34,  1  &  2 
Wm.  4,  c.  13  (extending  the  prohibition  to  IT.  K.)  :  and  the  tobacco 
trade  is  further  regulated  by  a  great  number  of  Customs  and  Excise 
Acts. 

*Trade  Union  ^Contracts.     34  &  35  Vict.  c.  31,  s.  4. 

Usury.  The  various  statutes  which  fixed  (with  sundry  exceptions) 
a  maximum  rate  of  lawful  interest  were  all  repealed  by  17  &  18  Vict. 
c.  90.  *As  to  securities  given  after  repeal  of  usury  laws  for  money  lent 
711  ]  on  usurious  terms  before  the  repeal,  Flight  v.  Feed  *(1863) 
1  H.  &  C.  703,  32  L.  J.  Ex.  265.  The  Money-lenders  Act,  1900 
(63  &  64  Vict.  c.  51),  has  a  different  kind  of  operation,  see  p.  *631, 
above. 

Veterinary  Surgeons.     44  &  45  Vict.  c.  62,  63  &  64  Vict.  c.  24. 

Wagers.  8  &  9  Vict.  c.  109,  55  Vict.  c.  9  (this  Act  is  not  retro- 
spective; Knight  v.  Lee  [1893]  1  Q.  B.  41,  62  L.  J.  Q.  B.  28)  ;  and  see 
Tatam  v.  Reeve  [1893]  1  Q.  B.  44,  62  L.  J.  Q.  B.  30,  supra,  p.  *300. 
As  to  the  extent  of  the  exceptions,  Parsons  v.  Alexander  (1855) 
5  E.  &  B.  263,  24  L.  J.  Q.  B.  277;  Goomles  v.  Dibble  (1866)  L.  B. 
1  Ex.  248,  35  L.  J.  Ex.  167;  Biggie,  v.  Eiggs  (1877)  2  Ex.  Div.  422, 
46  L.  J.  Ex.  721;  Trimble  v.  Bill  (appeal  to  J.  C.  from  New  S. 
Wales  on  colonial  statute  in  same  terms),  5  App.  Ca.  342,  49  L.  J. 


BHACTON   ON   FUNDAMENTAL  ERROR.  913 

P.  C.  49.  Forbearance  of  proceedings  to  enforce  payment  of  racing 
debts  by  purely  conventional  sanctions  is  not  an  unlawful  considera- 
tion: qu.  whether  or  not  a  good  consideration;  Bubb  v.  Yelverton 
(1870)  L.  E.  9  Bq.  471,  39  L.  J.  Ch.  428. 

Wages.  Payment  otherwise  than  in  money  forbidden,  1  &  2  Wm.  4, 
c.  37  (Truck  Act,  1831),  to  workmen  as  defined  by  38  &  39  Vict. 
c.  90,  s.  10  (see  50  &  51  Vict.  c.  46).     Cutts  v.  Ward  (1867)  L.  E. 

2  Q.  B.  357,  36  L.  J.  Q.  B.  161;  see  generally,  50  &  51  Vict.  c.  46, 
and  59  &  60  Vict.  c.  44.  The  stoppage  of  wages  for  frame  rents,  &c, 
in  the  hosiery  manufacture  is  forbidden,  and  all  contracts  to  stop 
wages  and  contracts  for  frame  rents  and  charges  are  made  illegal, 
null  and  void,  by  37  &  38  Vict.  c.  48.  See  Willis  v.  Thorp  (1875) 
L.  E.  10  Q.  B.  383,  44  L.  J.  Q.  B.  137;  Smith  v.  Walton  (1877) 

3  C.  P.  D.  109,  47  L.  J.  M.  C.  45. 

Weights  and  Measures.  Standards  defined,  and  use  of  other  weights 
and  measures  forbidden :  41  &  42  Vict.  c.  49 ;  52  &  53  Vict.  c.  42, 
s.  29.  The  use  of  the  metric  system  is  legalized  by  60  &  61  Vict. 
c.  46.  Sales  by  customary  weights  or  measures  which  are  well  known 
multiples  of  standard  weight  or  measure  are  not  unlawful :  Hughes 
v.  Humphreys  (1854)  3  E.  &  B.  954,  23  L.  J.  Q.  B.  356;  Jones  v. 
Giles  (1854)  10  Ex.  119,  23  L.  J.  Ex.  292. 


Note  H.  (p.  *498). 
Bracton  on  Fundamental  Error. 

De  acquirendo  rerum  domino,  fo.  15  o,  16: — "Item  non  valet 
donatio,  nisi  tam  dantis  quam  aecipientis  concurrat  mutuus  con- 
sensus et  voluntas,  scilicet  quod  donator  habeat  animum  donandi  et 
*donatarius  animum  recipiendi.  Nuda  enim  donatio  (z)  et  [712 
nuda  pactio  non  obligant  aliquem  nee  faciant  aliquem  debitorem;  ut 
si  dicam,  Do  tibi  talem  rem,  et  non  habeam  (a)  animum  donandi  nee 
tradendi  nee  a  traditione  incipiam,  non  valet,  ut  si  dicam,  Do  tibi 
istam  rem,  et  illam  nolim  (b)  tradere  vel  (b)  sustinere  quod  illam 
tecum  feras  vel  arborem  datam  succidas,  non  valet  donatio  quia 
donator  plene  non  consentit.  Item  oportet  quod  non  sit  error  in  re 
data,  quia  si  donator  senserit  de  una  re  et  donatarius  de  alia,  non 
valet  donatio  propter  dissensum:  et  idem  erit  si  dissentio  fiat  in 
genere,  numero,  et  quantitate.  .  .  .  [Then  follow  instances.] 
Et  in  fine  notandum  quod  si  in  corpus  quod  traditur  sit  consensum, 
non  nocet,  quamvis  circa  causam  dandi  atque  recipiendi  sit  dis- 
sentio- ut  si  pecuniam  numeratam  tibi  tradam,  vel  quid  tale,  et  tu 
earn  quasi  creditam  (c)  accipias,  constat  ad  te  proprietatem  transire." 

(*)   ratio  MS.  Hobhouse,  Lincoln's       1878,  who  also  gives  by  a  misprint, 
\Z)    ranu  j»«.  and  translateS;  tau  for  tale  lmmedi- 

(«)  habuero  MS.  Hobh.  ately    above.      (Se «  ."^^^^J 

!t.\  n/r«   TTnMi  ■  odd   nolui  et  character  of  this  edition      lhe  lext 

*     Trad?tam"'ed     1569   '  followed  of  Bracton,"  by  Prof.  Paul  Vinogra- 

without    remark    by.    Sir    T.    Twiss,  doff,  L.  Q.  R.  i.  189.)     But  or*tt«« 

58 


914  APPENDIX. 

Note  I.   (p.  *520). 

Mistake  in  Wills.1* 

Properly  speaking,  there  is  no  jurisdiction  in  any  court  to  rectify 
a  will  on  the  ground  of  mistake.  The  Court  of  PTobate  may  reject 
words  of  which  the  testator  is  jDroved  to  have  been  ignorant,  whether 
inserted  by  the  fraud  or  by  the  mistake  of  the  person  who  prepared 
the  will  (d).  But  it  has  no  power  to  insert  words  (e)  or  otherwise 
remedy  a  mistake  "by  modifying  the  language  used  by  the  draughts- 
man and  adopted  by  the  testator  so  as  to  make  it  express  the  supposed 
intention  of  the  testator.  .  .  .  Such  a  mode  of  dealing  with  wills 
713]  would  lead  to  the  most  dangerous  consequences,  *for  it  would 
convert  the  Court  of  Probate  into  a  court  of  construction  of  a  very 
peculiar  kind,  whose  duty  it  would  be  to  shape  the  will  into  conformity 
with  the  supposed  intentions  of  the  testator  "  (/).  Exactly  the  same 
rule  has  been  laid  down  in  equity  (g).15 

The  cases  in  which  it  is  said  that  the  Court  will  interfere  to  correct 
mistakes  in  wills  may  be  classified  thus : 

1.  Cases  purely  of  construction  according  to  the  general  intention 
collected  from  the  will  itself  (h). 

2.  Cases  of  equivocal  description,  of  words  used  in  a  special 
habitual  sense,  or  of  a  wrongly  given  name  which  may  be  corrected 
by  a  sufficient  description  (*'). 

3.  Cases  of  dispositions  made  on  what  is  called  a  false  cause  (A;),18 
i.e.,  on  the  mistaken  assumption  of  a  particular  state  of  facts  exist- 
ing, except  on  which  assumption   the  disposition  would  not  have  been 

is  the  reading  of  a  majority  of  good  (f)   Harter  v.  Harter  (1873)   L.  R. 

MSS.     (Lincoln's    Inn,    Canib.    Univ.,  3    P.    &  JD.    11,   21,   44   L.    J.    P.    1, 

Brit.  Mus.,  Bibl.  Nat.  Paris)    and  is  following    Guardhouse   v.    Blackburn 

evidently     required     by     the     sense.  (1866)   L.  R.  1  P.  &  D.  109,  35  L.  J. 

Braeton   is   quoting  from  the  Digest,  P.  116. 

41.  1.  de  acq.  rer.  dom.  36:  ep.  Giiter-  (g)  Newburgh  v.  Newburgh  (1820) 

bock,   Henr.   de  Braeton,   p.   85,   who  5  Madd.  364. 

assumed,  without  cause,  as  the  MSS.  (h)    See  Hawkins  on  Construction 

now    show,    that    Braeton    misunder-  of  Wills,  Introduction. 

stood  the   passage.      The  corruption,  (i)    Not   only   an   equivocal   name 

however,  is  an  easy  and  early  one.  may  be  explained,  but  a  name  which 

(d)  E.  g.  Morrell  v.  Worrell,  7  P.  applies  to  only  one  person  may  be 
D.  68,  51  L.  J.  P.  49,  following  Ful-  corrected  by  a  description  sufficiently 
ton  v.  Andrew  (1875)  L.  R.  7  H.  L.  showing  that  another  person  is  in- 
448,  44  L.  J.  P.  17.  tended:  Charter  v.  Charter  (1874)  L. 

(e)  In  the  goods  of  Schott  [1901]  R.  7  H.  L.  364. 

P    190,  70  L.  J.  P.  46.  (fc)    Campbell  v.  French    (1797)    3 

Ves.  321,  4  R.  R.  5. 

14  See  38  Am.  L.  Reg.   (N.  S.)  425. 

is  Willis  v.  Jenkins,  30  Ga.  107;  *>cker  v.  Decker,  121  111.  341;  Chambers 
»>.  Watson,  56  la.  676;  Schlottman  v.  Hoffman,  73  Miss.  188;  Lyon  v  Lyon 
96  N.  C.  439;   Sherwood  r.  Sherwood,  45  Wis.  357. 

WMordecai  r.  Boylan.  6  Jones  Eq.  365;  Dunham  r.  Averill,  45  Conn.  61, 
80;  Hayes'  Ex'rs  r.  Hayes,  21  N.  J.  Eq.  265;  Gifford  v.  Dyer,  2  R.  I.  99. 
But  equity  will  not  relieve  in  case  of  an  executed  gift  inter  vivos  made  under 
the  influence  of  such  a  mistake.     Pickslay  v.  Starr,  149  N.  Y.  432. 


MAKING   REPRESENTATIONS   GOOD.  915 

made.  _  These  are  analogous  to  the  cases  of  contract  governed  by 
Couturier  v.  Ilastie  (I)  :  and  just  as  in  those  cases,  the  expressed 
intention  is  treated  as  having  been  dependent  on  a  condition  which 
has  failed. 

But  the  true  view  of  all  these  cases  appears  to  be  not  that  the 
words  are  corrected,  but  that  the  intention  when  clearly  ascertained  is 
carried  out  notwithstanding  the  apparent  difficulty  caused  by  the 
particular  words. 


Note  K.  (p.  *525). 

On  the  supposed  equitable  doctrine  of  "  making  representations  good." 

Original  statement  in  Hammersley  v.  De  Beil.  This  once  frequently  al- 
leged head  of  equity,  in  so  far  as  it  purports  to  establish  any  rule  or 
principle  apart  from  the  ordinary  rules  as  to  the  formation  of  con- 
tracts on  the  one  hand,  and  the  principle  of  estoppel  by  assertion  as 
to  existing  facts  on  the  other,  is  now  known  to  be  imaginary.  In 
the  principal  class  of  cases  the  "  repre*sentation  "  is  of  an  inten-  [714 
tion  to  make  a  provision  by  will  for  persons  about  to  marry,  in 
reliance  on  which  representation  the  marriage  takes  place.  The  lead- 
ing authority  is  Hammersley  v.  De  Beil  (m),  decided  by  the  House 
of  Lords  in  1845  on  appeal  from  the  Court  of  Chancery.  In  the 
Court  below  (n)  Lord  Cottenham  had  laid  down  the  proposition  that 
"  a  representation  made  by  one  party  for  the  purpose  of  influencing 
the  conduct  of  the  other  party,  and  acted  on  by  him,  will  in  general 
be  sufficient  to  entitle  him  to  the  assistance  of  the  Court  for  the  pur- 
pose of  realizing  such  representation."  This  appears  to  be  the  source 
of  all  the  similar  statements  which  have  since  been  made  (o).  Taken 
with  its  context,  however,  it  need  not  mean  more  than  that  an  ex- 
change of  proposals  and  statements  by  which  the  conduct  of  parties 
is  determined  may,  as  containing  all  the  requisites  of  a  good  agree- 
ment, amount  to  a  contract,  though  not  to  a  formal  contract.  To  Mr. 
Justice  Stephen  Lord  Cottenham's  words  appeared  "to  mean  only 
that  contracts  of  this  nature  may  be  made  like  other  contracts  by 
informal  documents,  or  partly  by  documents  and  partly  by  con- 
duct "(p)-  And  in  this  sense  the  rule  seems  to  have  been  understood 
in  the  House  of  Lords  both  in  the  same  and  in  subsequent  cases.  Lord 
Brougham  and  Lord  Campbell  speak  of  the  transaction  in  plain  terms 
as  a  contract.  In  the  Bolls  Court  it  had  also  been  dealt  with  on  that 
footing  (q).     Still  more  pointed  is  the  remark  made  by  Lord  St. 

(I)    (1856)   5  H.  L.  0.  673,  25  L.  J.  ent  class  and  for  a  different  purpose. 

Ex   253      Supra,  pp.  *420,  *488.  See  Evans  v.  Bicknell   ( 1801 )    6  Ves. 

(m)    (1845)   12  CI.  &  F.  45.  174,  5  R.  R.  245. 

In)   12  CI   &  F   at  p.  62.  (p)    Alderson  v.  Maddison    (1880) 

o)     The   turn    of    language    is    in  5  Ex.  D.  293,  299,  50  L.  J.  Q.  B.  466. 
itself    not    novel.      It    seems    to    be  (?)     Norn.    De    Bexl    v.     Thomson 

modelled  on  that  which  had  long  be-  (1841)  3  Beav.  469. 
fore  been  used  in  eases  of  a  differ- 


916  APPENDIX. 

Leonards  in  185-4: — "Was  it  merely  a  representation  in  Hammersley 
v.  De  Beil?  Was  it  not  a  proposal  with  a  condition  which,  being  ac- 
cepted, was  equivalent  to  a  contract?"  (r).  In  the  terms  of  the  In- 
dian Contract  Act,  it  was  the  case  of  a  proposal  accepted  by  the 
performance  of  the  conditions.  The  statement  "  I  will  leave  you 
10,000Z.  by  my  will,  if  you  marry  A.,"  if  made  and  acted  on  as  a 
promise,  becomes  a  binding  contract  (the  marriage  undertaken  on 
the  faith  of  that  promise  being  the  consideration),  and  so  does  a  state- 
ment in  less  plain  language  which  amounts  to  the  same  thing.  On 
the  other  hand  the  statement  "  If  you  marry  A.  I  think,  as  at  present 
advised,  I  shall  leave  you  10,000?."  is  not  a  promise  and  cannot  be- 
come a  contract :  neither  can  it  act  as  an  estoppel,  for  it  cannot  matter 
715]  to  the  other  party's  ^interest  whether  the  statement  of  an  inten- 
tion which  may  be  revoked  at  any  time  is  at  the  moment  true  or  false. 
And  the  same  is  true  of  any  less  explicit  statement  which  is  held  on 
its  fair  construction  to  amount  to  this  and  no  more.  Such  was  the 
result  of  the  case  where  Lord  St.  Leonards  put  the  question  just 
cited  (s).  And  in  that  case  the  true  doctrine  was  again  distinctly 
affirmed  by  Lord  Cranworth  (t). 

"  By  what  words  are  you  to  define  whether  a  party  has  entered 
into  an  engagement  as  distinct  from  a  contract,  but  which  becomes 
a  contract  by  another  person  acting  upon  it?  Where  a  man  engages 
to  do  a  particular  thing,  he  must  do  it ;  that  is  a  contract ;  but  where 
there  are  no  direct  words  of  contract,  the  question  must  be,  what 
has  he  done?  He  has  made  a  contract,  or  he  has  not:  in  the  former 
case  he  must  fulfil  his  contract;  in  the  latter  there  is  nothing  that 
he  is  bound  to  fulfil."  Again :  "  There  is  no  middle  term,  no  tertium 
quid  between  a  representation  so  made  as  to  be  effective  for  such  a 
purpose,  and  being  effective  for  it,  and  a  contract:  they  are  identi- 
cal." " 

Hb  proceeded  to  comment  on  Hammersley  v.  De  Beil,  and  to  ex- 
press a  decided  opinion  that  the  language  there  used  by  Lord  Cotten- 
ham  was  not  meant  to  support,  and  did  not  support,  the  notion  that 
words  or  conduct  not  amounting  to  a  true  contract  may  create  an 
equitable  obligation  which  has  the  same  effect.  "  The  only  distinc- 
tion I  understand  is  this,  that  some  words  which  would  not  amount 
to  a  contract  in  one  transaction  may  possibly  be  held  to  do  so  in 
another."  In  the  case  of  Jorclen  v.  Money  (w),18  which  came  before 
the  House  of  Lords  some  months  later,  it  was  held,  first,  that  the 
statement  there  relied  on  as  binding  could  not  work  an  estoppel,  be- 
cause it  was  a  statement  not  of  fact  but  of  intention;  secondly,  that 
on  the  evidence  it  did  not  amount  to  a  promise,  and  therefore  could 

(r)     Maunsell    v.     Hedges    White  (t)  At  pp.  1055-6. 

(1854)    4  fl.   L.   C.   at  p.    1051;    cp.  («)    (1854)  5  H.  L.  C.  185,  23  L.  J. 

p.  1059.  Gh.  865.     A  pretty  full  summary  is 

(s)     Maunsell    v.     Hedges    White  given  by  Stephen  J.  5  Ex.  D.  at  p. 

(1854)   4  H.  L.  C.  1039.  301. 

IT  Ace.  Knowlton  v.  Keenan,  146  Mass.  86. 

18  Followed  in  Chadwick  r.  Manning,  [1896]  A.  C.  231. 


MAKING   REPRESENTATIONS   GOOD.  917 

not  be  binding  as  a  contract.  Lord  St.  Leonards  dissented  both  on 
the  evidence  and  on  the  law.  His  opinion  seems  on  the  whole  to  come 
to  this :  "  My  inference  from  all  the  facts  is  that  this  statement  was 
a  promise :  but  if  not,  I  say  it  is  available  by  way  of  estoppel,  for  I 
deny  the  existence  of  any  rule  that  equitable  estoppel  can  be  by 
statement  of  fact  only  and  not  of  intention."  On  this  point,  however, 
the  opinion  of  the  majority  (Lord  Cranworth  and  Lord  Brougham) 
is  conclusive  (x). 

*  Cases  in  Court  of  Chancery  —  Opinion  of  Stuart  V.-C.  In  a  much  [716 
earlier  case  of  the  same  class  before  Lord  Bldon  (y)  the  language 
used  is  indecisive :  "  arrangement "  and  "  engagement "  seem  pre- 
ferred to  "  agreement."  In  two  later  ones  decided  by  Sir  John 
Stuart  (z),  an  informal  statement  or  promise  as  to  a  settlement  on 
a  daughter's  marriage,  and  an  informal  promise  to  leave  property 
by  will  to  an  attendant  as  recompense  for  services,  were  held  to  be 
enforceable.  The  Vice-Chancellor  certainly  seems  to  have  adopted  the 
opinion  that  a  "  representation "  short  of  contract  had  somehow  a 
binding  force.  He  appears  further  to  have  held  that,  inasmuch  as 
these  were  not  properly  cases  of  contract,  it  was  immaterial  to  con- 
sider whether  the  Statute  of  Frauds  applied  to  them,  and  to  have 
thought  that  the  opinion'  of  Lord  Cranworth  in  Jorden.  v.  Money 
was  inconsistent  with  the  decision  in  Hammersley  v.  Be  Beil  (a). 
But  these  opinions  are  inconsistent  with  the  true  meaning  and  effect 
of  the  cases  in  the  House  of  Lords  which  have  already  been  cited: 
and  one  of  them  is  now  expressly  overruled  (&).  Later  judicial  ex- 
pressions are  to  be  found  which  in  some  degree  countenance  them; 
but  these  have  been,  without  exception,  unnecessary  for  the  decision 
of  the  cases  in  which  they  occurred.     It  is  remarkable  that  the  au- 

(x)   And  see  Mr.  Justice  Stephen's  fact.      And    thus    the    decision    may 

criticism,  5  Ex.  D.  at  p.  303.  have    been    right    on    the    ground    of 

(y)  Luders  v.  Anstey  (1799)  4  Ves.  estoppel.     But  it  is  far  from  easy  io 

501    4   R.   R.   276.  discover    on    what   ground    it    really 

(z)   Prole  v.  Soady   (1859)   2  Giff.  proceeded.     The  case  went  to  the  Ap- 

1;  Loffus  v.  Maw   (1862)   3  Giff.  592  peal    Court,    but    was    compromised: 

(1862)      In'  Loffus  v.  Maw  there  is  a  see  1  Ch.  145.    The  still  later  case  of 

suggestion  that  the  "representation"  Skid-more  v.  Bradford  (1869)  L.  R.  8 

affects    the    specific    property    as    an  Eq.  134,  decided  by  the  same  judge  in 

equitable  charge.  1869,  may  be  and  has  been  regarded 

(a)   Loffus  v    Maw   (1862)    3  Gift.  as  a  case   of  true  contract:    Fry   on 

at  pp.  603-4.     In  Prole  v.  Soady,  a  Specific  Performance,  §  314,  pp.  141, 

strange  and  entangled  case,  no  point  142    3rd  ed. 

was  made  on  the  Statute  of  Frauds.  (6)  Loffus  v.  Maw  (1882 [is  clearly 

But   theTe  it   appears   to  have   been  disapproved    by    Lord.    Selborne    and 

established  as  a  fact  that  the  wife's  Lord  O'Hagan  in  Maddison  vfZder- 

father    represented    to    the    intended  son  (1883)  8  App.  Ca.  at  pp.  473,  483. 

Sand T  Englishman,  that  a  cer-  Cf  .Cole, ■  v.  PUUngton  (1874)   LB. 

tain  trust  disposition  of  Scotch  land  19  Eq   174,  see  at  p.  178   44  L  J.  Ch 

in  the  proper  Scottish  form  was  ir-  381;  it  is  now  enough  to  say  that  it 

revocable      This  was,  as  regards  the  was  decided  by  Malms  V.-C.  on  the 

person  to  whom  it  was  made,  a  rep-  authority  of  Loffus  v.  Maw s  which,  ,f 

Mentation  of  foreign  law,  and  there-  possible,  it  exceeds  m  audacity, 
fore  equivalent  to  a  representation  of 


918  APPENDIX. 

thoritative  explanation  of  Hammersley  v.  Be  Beil  (c)  given  in  Mauri' 
sell  v.  Hedges  White  (d)  has  in  almost  all  the  recent  eases  been  left 
unnoticed. 

Later  cases  of  same  class.  Coverdale  v.  Eastwood  (1872)  (e)  was  a 
717]  case  of  precisely  the  same  *type  as  Hammersley  v.  De  Beil. 
Bacon  V.-C.  decided  it  on  the  ground  that  the  transaction  amounted 
to  a  contract,  and  so  it  was  expressed  in  the  decree.  But  he  also 
thought  that  there  existed,  and  was  applicable  to  the  case  in  hand, 
"  this  larger  principle,  that  where  a  man  makes  a  representation  to  ■ 
another,  in  consequence  of  which  that  other  person  contracts  engage- 
ments, or  alters  his  position,  or  is  induced  to  do  any  other  act  which 
either  is  permitted  by  or  sanctioned  by  the  person  making  the  rep- 
resentation, the  latter  cannot  withdraw  from  the  representation,  but 
is  bound  by  it  conclusively."  Later,  in  Dashiuood,  v.  Jermyn-  (f) 
(1879),  which  was  another  marriage  case,  he  held  that  the  connection 
between  the  statement  relied  on  as  a  promise  and  the  marriage  alleged 
to  have  taken  place  on  the  faith  of  it  was  not  sufficiently  made  out. 
He  stated  the  general  rule  thus : — "  If  a  man  makes  a  representation 
on  the  faith  of  which  another  man  alters  his  position,  enters  into  a 
deed,  incurs  an  obligation,  the  man  making  it  is  bound  to  perform 
that  representation,  no  matter  what  it  is,  whether  it  is  for  present 
payment  or  for  the  continuance  of  the  payment  of  an  annuity,  or  to 
make  a  provision  by  will.  That  in  the  eye  of  a  Court  of  Equity  is  a 
contract,  an  engagement  which  the  man  making  it  is  bound  to  per- 
form." This  appears  to  qualify  to  some  extent  the  dicta  of  the  same 
judge  in  Coverdale  v.  Eastwood.  Here  we  read  no  longer  of  two 
distinct  kinds  of  obligation,  by  contract  and  by  "  representation," 
but  of  one  kind  of  obligation,  and  that  a  contractual  one,  arising 
from  the  representations  .made  by  one  party  with  the  intent  that  they 
should  be  acted  upon,  and  the  conduct  of  the  other  who  does  act  upon 
them.  If  the  learned  judge  thought  that  the  same  facts  might  amount 
to  a  contract  in  equity  and  not  at  law,  he  was  clearly  mistaken.  In 
Alderson  v.  Maddison  (1880)  (g)  there  was  an  agreement  to  leave 
property  by  will  as  a  reward  for  services.  Here  Stephen  J.  set  forth 
the  view  that  it  must  be  a  contract  or  nothing;  and  he  held  that  a 
contract  was  proved  by  the  facts  of  the  case.  The  decision  was  re- 
versed by  the  Court  of  Appeal  on  the  ground  that,  the  case  being 
within  the  Statute  of  Frauds,  there  was  no  sufficient  part  perform- 
ance: and  the  same  view  was  taken  by  the  House  of  Lords.  Wo  en- 
couragement whatever,  to  say  the  least,  was  given  to  the  doctrine  of 
"representation."  Finally,  in  Re  Fichus  (h),  where  a  faint  attempt 
was  made  to  revive  it,  Cozens-Hardy  J.  summarily  disposed  of  it 
with  a  reference  to  the  decisions  in  the  House  of  Lords.19 

(c)  (1845)   12  CI.  &  F.  45.  (g)   5  Ex.  D.  293,  7  Q.  B.  Div.  174, 

(d)  (1854)  4  H.  L.  C.  1039.  8  App.  Ca.  467,  50  L.  J.  Q.  B.  466. 

(e)  L.  R.  15  Eq.  121,  42  L.  J.  Ch.  (h)   [1900]  1  Ch.  331,  334,  69  L.  J. 
118.  Ch.  161. 

(/)    (1879)    12  Ch.  D.  776. 

19  Another  class  of  cases  which  is  hard  to  distinguish  in  principle  is  com- 
posed  of   cases   where  a   promisor   promises   without   consideration   to   convey 


MAKING    REPRESENTATIONS  GOOD.  919 

*  Cases  of  collateral  "  representations  "  inducing  contracts.  So  far  [718 
the  authorities  as  to  direct  enforcement  of  "  representations."  We 
do  not  count  among  them  Piggott  v.  Stratton(i),  decided  by  the 
Court  of  Appeal  in  1859,  in  which  Lord  Campbell  incidentally  took 
a  minimizing  view  of  the  effect  of  Jorden  v.  Money  (/).  That  case, 
so  far  as  it  did  not  proceed  on  express  covenant,  was  one  of  equitable 
estoppel.  Mills  v.  Fox  (1887)  (k)  was  also  decided  expressly  on  the 
ground  of  estoppel  by  representation  of  fact.  The  representation  was 
not  of  intention  at  all,  but  that  a  certain  state  of  facts  with  its  legal 
consequences  existed  and  would  continue  to  exist.  But  another  class 
of  decisions  now  calls  for  mention.  These  lay  down,  or  seem  to  lay 
down,  a  rule  to  the  effect  that  where  a  contract  has  been  entered  into 
upon  the  representations  of  one  party  that  he  will  -do  something  mate- 
rial to  the  other  party's  interest  under  it,  and  he  does  not  make  good 
that  representation,  he  cannot  enforce  specific  performance  of  the 
contract :  and  in  one  case  the  contract  has  even  been  set  aside  at  the 
suit  of  the  party  misled.  It  is  difficult  in  these  cases  to  see  why  the 
so-called  representation  does  not  amount  to  a  collateral  agreement, 
or  even  to  a  term  in  the  principal  contract  itself.  In  the  first  set  of 
cases,  where  specific  performance  was  refused,  a  vendor  or  lessor  had 
represented  that  he  would  do  something  for  the  purchaser's  or  lessee's 
benefit,  either  in  the  way  of  repair  or  improvement  on  the  property 
itself  (I),  or  by  executing  works  on  adjoining  property  as  part  of  a 
general  plan  (m).  In  these  cases  it  has  been  thought  immaterial, 
since  the  remedy  of  specific  performance  is  "  not  matter  of  absolute 
right,"  to  consider  whether  the  collateral  "  independent  engagement  " 
could  or  could  not  have  been  sued  on  as  a  contract  or  warranty  (n). 
In  the  one  case  which  goes  farther  the  contract  was  a  partial  re- 
insurance effected  by  one  insurance  society  (A.)  with  another  (3.) 
for  one-third  of  the  original  risk,  the  secretary  of  society  A.  stating, 
when  he  proposed  the  re-insurance,  that  one-third  was  to  be  re-insured 
in  like  manner  with  another  office  C,  and  the  remaining  one-third 
retained  by  A.,  the  first  insurers.  This  last  one-third  was  afterwards 
re-insured  by  A.  with  C.  without  communication  with  B.  It  was 
held  that  *society  B.  was  entitled  to  set  aside  the  policy  of  re-  [719 
insurance  given  by  it  on  the  faith  that  society  A.  would  retain  part 
of  the  liability.  And  it  was  said  to  make  no  difference  that  such  an 
intention  was  really  entertained  at  the  time :  for  the  change  of  inten- 

(i)   1  D   F   &  J.  33,  29  L.  J.  Ch.  1.  (k)  37  Ch.  D.  153,  57  L.  J.  Ch.  56. 

(A   At  d    51      But  Lord  Selborne  (I)   Lamare  v.  Dixon  (1873)   L.  R. 

seems  to  adopt  the  opinion  of  Lord  6  H.  L  414,  43  L  J   Ch.  203 

Cranworth  to  its  full  extent  in  CiH-  (m)  Beaumont  v.  Dukes  (1822)  Jac. 

gens'  Bank  of  Louisiana  v.  First  Na-  422;  Myers  v.  Watson  (1851)   1  Sim. 

r,nr,nl  Rank  of  New  Orleans    (1873)  N.  S.  523. 

^T  6  H   L   at  P   360,  43  L.  J.  Ch.  (»)   Lord  Cranworth,  1  Sim.  N.  S. 

269  529;  LoTd  CairnS)  L-  R-  6  H-  L'  428- 

land  and  on  the  faith  of  the  promise  the  promisee  makes  improvements. 
Under  such  circumstances  the  promise  is  generally  enforced.  Pomeroy  Eq. 
Jur.,  §  1294;  Ames  Cas.  Eq.  Jur.  I.  300. 


920  APPENDIX. 

tion  ought  to  have  been  communicated.  "  If  a  person  makes  a  repre- 
sentation by  which  he  induces  another  to  take  a  particular  course,  and 
the  circumstances  are  afterwards  altered  to  the  knowledge  of  the  party 
making  the  representation,  but  not  to  the  knowledge  of  the  party  to 
whom  the  representation  is  made,  and  are  so  altered  that  the  altera- 
tion of  the  circumstances  may  affect  the  course  of  conduct  which  may 
be  pursued  by  the  party  to  whom  the  representation  is  made,  it  is 
the  imperative  duty  of  the  party  who  has  made  the  representation  to 
communicate  to  the  party  to  whom  the  representation  has  been  made 
the  alteration  of  those  circumstances"  (o). 

This  case,  decided  by  the  Lords  Justices  in  1864,  is  that  which 
gives  rise  to  most  difficulty.  Xo  reason  appears  why  the  retaining  of 
the  specified  part  of  the  risk  by  the  re-insuring  office  should  not  have 
been  deemed  a  term  or  condition  of  the  contract  (p).  Indeed  it  seems 
to  have  been  an  integral  part  of  the  proposal,  and  evidence  was  offered 
that  by  the  constant  usage  of  insurance  offices  it  was  so  understood. 
The  judgments,  however,  certainly  do  not  proceed  on  that  footing. 
Possibly  it  might  be  said  that  the  representation  in  this  case,  being 
of  something  to  be  done  not  in  a  more  or  less  distant  future,  but  at 
the  same  time  with  and  as  part  of  the  proposed  transaction,  was  in 
the  nature  of  a  representation  of  fact.  It  might  be  put  thus :  "  We 
are  re-insuring  one-third  with  C. ;  one-third  of  the  risk  we  keep ;  will 
you,  B.,  take  the  other  third  ?  "  And  thus  put,  it  might  be  regarded 
as  an  alternative  case  of  contract  or  estoppel,  in  which  (for  some 
reason  not  evident  from  the  report)  the  Court  preferred  the  less 
simple  course. 

In  the  other  cases  it  is  by  no  means  clear  that  the  existence  of  a 
true  collateral  agreement  or  warranty  is  excluded;  in  at  least  one 
similar  case  (q)  the  question  is  treated  as  one  of  agreement  entirelv. 
In  Lamare  v.  Dixon  (r),  which  came  before  the  House  of  Lords  in 
1873,  the  principal  agreement  was  for  a  lease  of  cellars  to  be  used 
as  wine  vaults.  During  the  negotiations  the  lessor  assured  the 
lessee  either  that  he  had  already  taken,  or  that  he  would  forthwith 
720]  *take,  sufficient  measures  to  keep  the  cellars  dry  and  fit  for  a 
wine  merchant's  use.  It  seems  most  natural  to  regard  this  as  a  war- 
ranty :  still,  so  far  as  it  related  to  anything  already  done,  it  might  be 
regarded  as  a  positive  statement  of  fact.  "  You  will  find  the  cellars 
dry,"  or  any  speech  to  that  effect,  might  mean  either :  "  I  undertake 
to  make  the  cellars  dry,"  or,  "  That  has  been  done  which  is  known 
by  competent  experience  to  be  sufficient  to  ensure  dryness."  The  line 
between  warranty  and  estoppel  is  here  a  fine  one,  and  perhaps  not 
worth  drawing,  but  still  it  is  possible  to  draw  it:  and  when  Lord 
Cairns  said  "  I  quite  agree  that  this  representation  is  not  a  guarantie," 

(o)    Traill  v.   Baring    (1864)    4  D.  (p)   Cp.  Barnard  v.  Paler  [1893]  1 

J.  &  S.  318,  329,  per  Turner,  L.  J.  ap-        Q.  B.  340,  62  L.  J.  Q.  B.  159,  C.  A. 
proved    by    Fry   L.J.,   Scottish   Petro-  (q)    Peacock  v.   Penson    (1848)    11 

leum   Co.    (1883)    23   Ch.  Div.   at  p.       Beav.  355. 

438.  (r)   L.  R.  6  H.  L.  414,  43  L.  J.  Ch. 

203. 


MAKING   REPRESENTATIONS   GOOD.  921 

he  may  have  meant  that  he  preferred  to  regard  it  as  a  statement  of 
fact  operative  by  way  of  estoppel.  There  certainly  does  run  through 
these  cases,  however,  the  idea  that  specific  performance  is  so  far  a 
discretionary  remedy  that  it  may  be  refused  to  a  party  seeking  it  on 
grounds  which  do  not  affect  his  legal  rights  under  the  contract.  But 
i  t  seems  a  tenable  position  that  equity  judges  have  taken  a  needlessly 
narrow  view  of  what  is  a  binding  agreement  on  the  principles  of  the 
common  law  (s).  In  fact  agreements  collateral  to  leases,  and  not 
in  writing,  have  of  late  years  been  enforced  without  doubt  (t).  In 
all  these  cases  the  facts  appear  undistinguishable  in  their  character 
from  those  which  were  treated  in  the  Court  of  Chancery  as  establish- 
ing a  right  to  relief  on  the  ground  of  "  representation." 

Cases  where  false  representation  gives,  as  wrong,  a  substantive  right  of  action. 
There  remains  a  class  of  cases  in  equity  in  which  it  has  been  held 
that  a  statement  made  to  a  person  intended  to  act  upon  it  by  one 
who  knows  it  to  be  false,  or  is  recklessly  ignorant  whether  it  is  true 
or  false,  may  create  in  the  person  who  acts  on  it  to  his  injury  a 
substantive  right  to  compensation.  Here  the  statement  is  a  wrong, 
and  the  remedy  is  precisely  analogous  to,  and  before  the  Judicature 
Acts  was  concurrent  with,  that  which  was  given  at  law  by  the  action 
of  deceit,  or  action  on  the  case  in  the  nature  of  an  action  of  deceit  (u). 

*It  is  worth  remark  that  not  unfrequently  a  difficulty  occurs  [721 
in  drawing  the  line  between  contract  or  warranty  and  fraud,  as  we 
have  already  seen  that  there  does  between  contract  and  estoppel. 
"  Most  of  the  cases  .  .  .  when  looked  at,  if  they  do  not  absolutely 
amount  to  contract,  come  uncommonly  near  it.  .  .  .  If  you  choose 
to  say,  and  say  without  inquiry,  '  I  warrant  that/  that  is  a  contract. 
If  you  say  '  I  know  it/  and  if  you  say  that  in  order  to  save  the  trouble 
of  inquiring,  that  is  a  false  representation — you  are  saying  what  is 
false  to  induce  them  to  act  upon  it"  (a;).  Thus  cases  are  possible,  as 
has  been  mentioned  in  the  text,  in  which  the  legal  effect  of  the  facts 
may  equally  he  considered  as  warranty,  estoppel,  or  duty  ex  delicto. 
And  since  equity  judges,  dealing  with  facts  and  law  together,  were 
not  bound  to  distinguish  with  precision,  and  often  did  not  distin- 
guish, on  which  of  two  or  more  possible  grounds  they  rested  their 
decisions,  it  is  not  surprising  that  a  good  deal  of  ambiguity  has 
gathered  round  the  subjects  discussed  in  this  note. 

(s)  It  would  be  curious  to  know  in  order).  The  ground  taken  as  to  the 
what  proportion  of  cases  under  the  Statute  of  Frauds  is  that  the  col- 
old  practice  a  party  left  by  the  Court  lateral  agreement  is  not  a  "  contract 
of  Chancery  as  the  phrase  was,  to  or  sale  of  lands,"  &c. :  the  effect  of 
make  what  he  could  of  it  at  law,  de-  the  Statute  being  as  it  were  ex- 
rived  substantial  or  any  profit  from  hausted  by  the  principal  contract; 
that  liberty.  witn  which  the  collateral  one  must  of 

It)  Morgan  v.  Griffith  (1871)  L.  R.  course  be  consistent. 

6   Fx     70    40  L    J    Ex.  46;   Erskine  («)    See  for  details  the  section  on 

v  Adeame  (1873')  L.  R.  8  Ch.  756,  42  Deceit  in  Chap.  viii.  of  my  work  on 

L    T   Ch  835-  Angell  v.  Duke  (1875)  the  Law  of  Torts. 

L   R    lo'o   B    174   44  L.  J.  Q.  B.  78;  (a)  Lord  Blackburn  in  Broivnhe  v. 

De    Lassalle   V     Guildford    [1901]    2  Campbell  (1880)    (Sc.)   5  App.  Ca.  at 

K    B    215    70  L.  J.  K.  B.  533,  C.  A.  p.  952:  the  whole  passage  should  be 

(warranty    of   drains    being   in   good  studied. 


922  APPENDIX. 

Note  L.  (p.  *622). 
French  law  on  "inofficious  "  gifts  and  captation. 

French  authorities  before  Revolution.  French  jurisprudence  has  some- 
times been  cited  in  our  Courts  as  affording  useful  analogies  in  cases 
where  it  was  sought  to  set  aside  gifts  on  the  ground  of  undue  in- 
fluence, especially  spiritual  influence.  (OEuvres  d'Aguesseau,  1.  284, 
5.  514,  ed.  1819;  Lyon  v.  Home,  L.  E.  6  Eq.  571.)  Without  denying 
the  instructiveness  of  the  comparison,  it  may  be  pointed  out  that  these 
French  cases  proceeded  on  rather  different  grounds.  Charitable  be- 
quests in  general  were  unfavourably  looked  on  as  being  "  inofficious  " 
towards  the  natural  successors.  This  principle  is  strongly  brought  out 
by  D'Aguesseau  in  the  case  of  the  Religieuses  du  Saint-Sacrement 
(GEuvres,  vol.  1.  p.  295)  :— 

"  Ces  dispositions  universelles,  contraires  aux  droits  du  sang  et 
de  la  nature,  qui  tendent  a  frustrer  les  heritiers  d'une  succession 
legitime,  sont  en  elles-memes  peu  favorables;  non  que  ce  seul  moyen 
soit  peut-etre  suffisant  pour  aneantir  un  tel  legs;  mais  lorsqu'il  est 
soutenu  par  les  circonstances  du  fait  .  .  .  lorsque  la  donation 
722]  est  immense,  qu'elle  est  excessive,  qu'elle  renferme  *toute  la 
succession  .  .  .  dans  toutes  ces  circonstances  la  justice  s'est 
toujours  elevee  contre  ces  actes  odieux;  elle  a  pris  les  heritiers  sous 
sa  protection ;  elle  a  casse  ces  donations  inofficieuses,  excessives  et 
contraires  a  l'utilite  publique." 

Modern  law  of  captation.  In  modern  French  practice  a  will  may  be 
set  aside  for  captation  or  suggestion.  But,  as  with  us,  the  burden  of 
proof  is  on  the  objector  to  show  that  the  testator's  will  was  not  free, 
and  something  amounting  to  fraudulent  practice  must  be  proved. 
"  La  suggestion  ne  saurait  etre  separee,"  says  Troplong,  "  d'un  dol 
subversif  de  la  libre  volonte  du  testateur  ...  On  a  toujours  ete 
tres  difficile  en  France  a  admettre  la  preuve  de  la  suggestion  et  da  la 
captation."  (Droit  civil  explique,  Des  donations  entre-vifs  et  des 
testaments,  art.  492.) 

On  the  other  hand  the  Code  Civil  (art.  907,  909-911)  contains 
express  and  severe  restrictions  on  dispositions  by  wards  in  favour 
of  their  guardians,  and  by  persons  in  their  last  illness  in  favour  of 
their  medical  or  spiritual  advisers.  These  apply  alike  to  wills  and 
to  gifts  inter  vivos. 


INDEX. 


ACCEPTANCE: 

auctioneer's,  15. 

by  post,  though  never  delivered,  effectual,  39. 

certainty,  necessity  of,  43;   48;   52. 

communication  of,  21,  n.  21 ;   35. 
means  of  communication,  36. 

correspondence,  acceptance  of  contract  made  by,  37;   39,  n.  42. 

cross  proposal  is  not,  5,  n.  2. 

date  of  proposal,  acceptance  will  not  relate  back  to,  41. 

deed,  necessity  of  acceptance  for,  6,  n.  3;   55. 

double,  of  same  proposal,  33. 

English  cases,  theories  in,  38. 

express  or  tacit,  9;   52. 

insufficient,  examples  of,  44. 

knowledge  of  offer  necessary,  14,  n.  12. 

of  bill  of  exchange  by  parol,  25,  n.  24. 

of  proposal,  general  but  not  universal  form  of  agreement,  5. 
effect  of,  where  proposal  misunderstood,  599,  601. 
made  by  advertisement,  13. 
performance  of  conditions  of  proposal,  13. 
special  conditions,  acceptance  by  receiving  document  with,  53. 

acceptance  when  implied,  54. 
sufficient,  examples  of,  45. 
unqualified,  must  be,  43. 
varying  from  offer  rejects  offer,  43,  n.  47. 
when  in  time,  29. 
with  immaterial  or  ambiguous  addition,  45. 

ACCIDENT:   destroying  subject-matter  of  contract,  effect  of,  527;   530;   538. 

ACCORD  AND  SATISFACTION: 

accord,  as  a  contract,  829. 

may  be  taken  as  satisfaction,  834. 

unexecuted,  does  not  discharge  contract,  at  law,  831. 
but  equitable  relief  granted,  833. 
consideration  for,  210;  829. 
definition  of,  828. 
discharge  of  contract  by,  210;   828. 

debts  of  record  by,  836. 

sealed  contracts  by,  835. 
infant's,  avoidance  of,  68,  n.  14. 
satisfaction  of  a  disputed  claim  by  sending  check,  838. 

received  from  a  third  person,  593;  840. 

requisites  of,  837. 

[923] 


924  INDEX. 

ACCOUNT:   action  of,  153. 

ACCOUNT  STATED:  with  infant,  not  void  but  voidable,  66. 

ACKNOWLEDGMENT  of  debt  barred  by  Statute  of  Limitation,   184;   201; 
777.     See  LIMITATION. 

ACQUIESCENCE: 

estoppel  by,  791. 

knowledge  essential  to,  569. 

lapse  of  time  as  evidence  of,  721 ;  732. 

rescission  of  contract,  acquiescence  as  bar  to,  721. 

undue  influence,  acquiescence  in  cases  of,  769. 

"ACT  OF  GOD":   meaning  of:  no  general  definition  possible,  535. 

ACTION: 

assignment  to  creditor  of  bankrupt's  right  of,  held  justifiable,  456,  a.  (7c) . 
forms  of,  early  classification  of,   151. 

ADMINISTRATORS.     See  EXECUTORS. 

ADOPTION: 

of  forged  signature,  443;   856,  n.  18. 
of  void  agreement,  621. 

ADVERTISEMENT: 

contract  by,    13;   21. 

revocation  of  offer  by,  23. 

such  contracts  not  exempt  from  Statute  of  Frauds,  25. 

AFFIRMANCE:   of  voidable  contract.     See  ELECTION;   RESCISSION. 

AGENT: 

agreement  by  third  party  to  pay  commission  for  influence  of,  on  principal 

is  void,  389,  n.  34. 
alteration  by  unauthorized,   853. 
appointment  of,  requires  no  special  formality,  105. 
authority,  implied  warranty  of,  119. 

of,  its  constitution  and  end,  105. 

professed  agent  without,  position  of,   116. 

revocation  of,   105. 

to  sell  land  need  not  be  in  writing,  174,  n.  15. 
authorized  agent  known  to  be  such,  contract  with,   107. 

not  known  to  be  such,  contract  with,  113. 
bill  of  exchange,  acceptance  by  agent,  principal  bound  though  acceptance 

not  in  principal's  name,  110. 
contract  of,  is  contract  of  principal,  225;  228. 
contracts  made  by,   106. 
corporation  can  generally  only  act  by,   128. 

liable   for   wrongs   of,    129;    700. 
death   of   principal,   effect   of,    on   subsequent   contracts   of   agent   before 

notice.    106. 
deceit  of,  principal  liable  for,  701. 


INDEX.  925 

AGENT  —  Continued: 

deed,  executed  by  agent,  109. 
election  to  sue  principal  or  agent,  116. 
fraud  of,  liability  of  principal  for,  129;  700. 
personal,  agent  always  liable  for,  703. 
general  theory  of  agency,  58;   105. 
government,    112. 
illegality,  collateral,   in  transaction,   does  not  discharge  agent   from  ac 

counting  to  principal,  498. 
knowledge  of,  is  knowledge  of  principal,   107,  n.    (t). 
liability,  exclusion  or  limitation  of,  when  he  contracts  in  his  own  name, 

111. 
money  wrongfully  paid,  may  be  recovered  from,  731. 
negligence,  agent  may  not  profit  by  his  own,  391. 
negotiable  instruments  executed  by,   110. 
personal  liability  of,   108. 
principal  resident  in  a  foreign  country,  109. 

professed  agent:  when  he  may  disclose  himself  as  real  principal,  123. 
without   authority,   position  of,   where   responsible   principal  named, 

116. 
without    authority,    position    of,    where    responsible    principal    not 
named,  121. 
profits,  agent  entitled  to  none  beyond  compensation,  390. 
ratification,  107;  121.    And  see  RATIFICATION. 
rectification  for  mistake  when  one  party  acts  as  the  agent  for  the  other, 

641. 
representation  of,  when  principal  liable  for,  699. 
revocation  of  authority:    methods  of  withdrawal,   106. 
rights  of  other  contracting  party,   115. 
sale  to  or  purchase  from  himself,  387. 
secret   commissions,   agent   for   sale  or   purchase  must  not   accept,   from 

other  party,  387. 
secret  dealings  by,  on  his  own  account  in  matter  of  agency,  386. 
sub-agent  not  agent  of  principal,  596. 
undisclosed  principal,  rights  of,  113. 
wrong,  agent  always  liable  for  his  own,  703. 

AGREEMENT: 

analysis  of,  as  accepted  proposal,  6. 

certainty  of  terms,  necessity  of,  48. 

collateral,  evidence  of,  313. 

consent,  apparent,  but  not  real  and  no  contract,  582. 

condition  affecting  validity  of,  561.    And  see  MISTAKE. 

how  expressed,  5. 
defined,  2;   3. 

definition   of,   Savigny's,    881. 
election  to  adopt  originally  void  agreement,  621. 


926  INDEX.  . 

AGREEMENT  —  Continued : 

evidence  to  explain  particular  terms  in  agreement,  313. 

whether  a  document  is  or  is  not  record  of,  312. 
illusory  promise,   effect  of,   49;    50,   n.   58;    197,   n.    10. 
imperfect  obligation,  agreements  of,  772. 
impossible,  518.     See  IMPOSSIBLE  AGREEMENTS. 

informal,  ante-nuptial,  how  far  made  binding  by  post-nuptial  settlement, 
792. 
effect  of  part  performance,  790. 

execution  of,  may  be  good  consideration  or  accord  and  satisfaction, 
787. 
joking,  no  contract,  3,  n.  1. 

lunatic,  agreement  of,  not  void  but  voidable,   100. 
parol,   addition  to  or  variation  in  terms   of;    effect   as   regards   specific 

performance,   633. 
public  policy,  against,  421.     And  see  PUBLIC  POLICY. 
third  person,  agreement  with,  as  subject  of  promise,  51. 
unlawful,  371.     See  UNLAWFUL  AGREEMENTS, 
void   and  voidable,   distinction   between,   3;    8. 

AGREEMENTS  OF  IMPERFECT  OBLIGATION: 

conflict  between   lex  fori  and  lex  contractus,  779 ;   784. 
general  results  as  to,  810. 
their  nature  and  effects,  772. 

ALIEN: 

enemies,  disabled  from  suing  here  but  not  from  contracting,  104. 
wife  of,  when  she  can  contract  as  feme  sole,  91. 

ALTERATION: 

agent's  unauthorized,  does  not  discharge  contract,  854. 

assignment  of  altered  contract,  866. 

authorized,  855. 

before  execution  of  contract,  871. 

burden  of  proving,  873. 

contracts  to  which  rule  against,  is  applicable,  851. 

conveyances  and  covenants  distinguished,  845. 

creditors'  .right  when  debtor  destroys  deed  by,  849. 

discharge  of  contracts  by,  845. 

equity  gave  no  relief  for,  847. 

evidence,  admissibility  of  altered  writings  in,  873. 

how  far  rule  against  alteration  is  one  of,  847;  865,  n.  83;  868. 
excusable,  when,  852. 
immaterial  alterations,  effect  of,  859. 

what  are,  863. 
innocent,  854. 

material   and  immaterial,   859. 
mistake,  alteration  by,  853. 
mortgages,  effect  of  alteration  of  note  or  bond,  870. 


INDEX.  927 

ALTERATION  —  Continued : 
obligors,  854. 
pleading,  872. 

presumptions  in  regard  to,  873. 
ratified,  856. 

restoration  to  original  form,  858. 
separable  part  of  document  altered,  850. 
several  obligors,  of  whom  some  assent  to,  857. 
stranger,   alteration  by,  847;    848;    852. 
survival  of  debt  when  contract  destroyed  by,  868. 
voluntary  destruction,  effect  of,  849. 

AMBIGUITY: 

corrected  by  recitals,   624,  n.   82. 

effect  of,  in  construction  of  document,  572;  599. 

ANNUITY: 

agreement  to  give,  charged  on  land,  implies  personal  covenant  for  repay- 
ment, 300. 
sale  of,  when  life  has  expired,  613. 

ANTICIPATORY  BREACH   OF  CONTRACT:    effect  of    355.     And  see   RE- 
PUDIATION. 

APOTHECARIES:   cannot  recover  charges  unless  properly  qualified  at  time 
of  services,  802. 

ARBITRATION: 

agreements  for  reference,  how  far  valid,  445. 

arbitrator,  can  recover  remuneration  on  express  contract,  803. 

must  follow  authority,  879. 
authority  revocable   before  award,   878. 
award,  whether  stranger  can  be  bound  by,  226. 
merger  by  arbitration  and  award,  877. 
prevention  of  performance  of  condition  of,  550,  n.  39. 
right  of  action  may  be  conditional  on  award,  448. 
statutory  arbitration,  880. 

ARTIFICIAL  PERSON: 

nature  of,   124. 

newspapers  and  journals,  artificial  personality  ascribed  to,  125. 

partnerships  and  other  bodies  treated  as,  by  custom  though  not  by  law, 

125. 
term  not  synonymous  with  "fictitious,''  124,  n.   (s). 
And  see  CORPORATION. 

ASSIGNMENT: 

assignee:   rights  of,  under  contract,  278. 

takes  subject  to  equities,  284 ;  cp.  294,  u.  88. 
rule  may  be  excluded  by  agreement,  287. 
attempts  to  oppose  on  ground  of  maintenance,  278. 


928 


INDEX. 


ASSIGNMENT  —  Continued: 

equitable,  bill  of  exchange  is  not  an,  894,  n.   (f). 

cheque  is  not,  267;  894,  n.   (/). 

of  debt,  281. 
of  altered  contracts,   866. 
of  Contract   (which  see),  278;  594;  906. 
of  duties,  295. 
of  pensions,  &c,  void,  440. 

of  promised  property  to  a  third  person  as  a  defence,  323,  n.  8. 
of  rights,  founded  on  personal  confidence,  594. 
of  salaries,  439. 
of  shares,  296. 
successive,  283,  n.  77. 
title  by,  222. 
to  creditor  of  bankrupt's  right  of  action,  456,  n.   ( k ) . 

ASSUMPSIT: 

action  of,  its  introduction,  154. 
implied  detriment  to  plaintiff,  189. 

ATTACHING  CREDITOR.     See  CREDITOR. 
ATTORNEY.    See  AGENT;  BARRISTER;  SOLICITOR. 

AUCTION: 

agreements  to  refrain  from  bidding,   470,  n.  36. 
sale  by:  contract  on,  formation  of,   15;    17. 

deposit,   recovery  of,   669. 
misdescription ;   general  duty  of  vendor  to  give  correct  description,  669 ; 

672. 
puffer,  employment  of,  684. 
title,  effect  of  special  conditions  as  to,  671. 
trustee  cannot  purchase  trust  property  at,  387,  n.  30. 
without  reserve,  18. 

AUCTIONEER: 

liability  of,  to  purchaser,  109,  n.    (n). 
may  sue  for  deposit  in  his  own  name,  109,  n.  70. 
AWARD.     See  ARBITRATION. 

BAILMENT: 

deposit  of  goods  at  railway  station,  53. 
without  reward,  consideration  for,   193. 

BANKRUPTCY: 

anomalous  effects  of,  on  contractual  rights,  229. 

bankrupt's   right  of   action,   assignment  to   creditor  of,   held   justifiable, 

456,  n.    (k). 
creditor's  assent  to  discharge  in,  does  not  discharge  surety,  384,  n. 
creditor  may  petition  though  credit  not  expired,  707,  n.  27. 
discharge  in  another  state,  107,  n.  66. 


INDEX.  929 

BANKRUPTCY  —  Continued : 

infant,  adjudication  of,  in  bankruptcy,  86. 

loan  obtained  by,  under  pretence  of  full  age,  provable  in,  86. 
laws,  attempts  to  evade,  401. 

payment  to   trustee   under   mistake  of   law,    580. 
secret  agreements  with  particular  creditors  void,   377;   380. 
BARRISTER: 

arbitrator,  if  acting  as,  may  recover  fees,  803. 
colonies,  whether  English  rules  apply  in,  805. 
fees  of,  for  advocacy,  not  recoverable  from  client,  803. 

for  non-litigious  business,   qu.,   804. 

judicial   notice   of   counsel's   fees   in   taxing   costs,   806. 

paid  by  client  to   solicitor,  whether   recoverable  by  counsel,   805. 
returning  officer,   may  recover  remuneration   for   acting  as,   804. 

BATTLE:  trial  by,  in  action  of  debt,  150. 

BENEFICIARY: 

American  decisions  classified  by  states,   247;   256. 

building  contract  cases,  253. 

cannot  sue  in  England,  232;   243. 

cestui  que  trust  suing  for  enforcement  of  trust,  241. 

check,  holder  of,  cannot  sue  bank,  267. 

creditor  as,  distinguished  from  sole,  242;    244. 

debt,  contract  to  pay  to,  242;   244;   255. 

defenses  good  against  promisee,  good   against  creditor,   271. 

devise  as  consideration  of  promise   to  pay,  252. 

general  principles  as  to  rights  of,  228;  237. 

incidental,  277. 

mortgage,  assumption  of,  260. 

non- performance  by  promisor  a  good  defence,  272. 

novations  distinguished,  240. 

of  insurance  policy,  243,  n.  26;   244;   246;  251. 

partner,   assumption  of  liabilities  of  outgoing,  266. 

promisee,  rights  of,  268. 

right  to  sue  both  debtor  and,  270. 
promisor,  non-performance  by,  a  good  defence,  272 
property  receipt  of  as  consideration  of  promise  to  pay,  .252. 

rights  of,  distinguished  from  contract  rights,  237. 
release  as  a  defence,  273. 
rescission  as  a  defence,  273. 
revocable  agency  distinguished,   238. 
seal,  effect  of,  276. 
sole,  242. 

Statute  of  Limitations  bars  right  of,  when,  267. 
statutory  rules  as  to,  246. 
telegraph  company  cases,  254. 
water  company  cases,  254. 
50 


930  INDEX. 

BILATERAL  CONTRACTS: 

consideration,   for,   201. 

definition  of,  21,  n.  21;   35,  n.  40. 

dependent  and   independent  promises  in,  323. 

insolvency  of  one   party   to  excuses  the  other,   323,  n.   8;   354. 

name  introduced  in  our  law,  35,  n.  40. 

with  infant,   66,  n.   12. 

BILL  OF  EXCHANGE: 

acceptance  of,   by  agent  in  his  own  name,   110. 

must  be  in  writing  and  signed,  168,  cp.  25,  n.  24. 

by  parol,  25,  n.  24. 
cheque  is  a,  292. 

drawn  in  hostile  country  in  time  of  war,  429. 
equitable  assignment,  bill  is  not  an,  894,  n.    (/)    ep.   267. 
forged  indorsement,  confers  no  title  on  bona  fide  holder,  292;  569. 
indorser  not  a  surety  during  currency  of,  386  n.    (t) . 
infant's,  not  void  but  voidable,  66;   80,  n.  25. 
negligence  does  not  affect  title  of  bond  fide  holder,  569. 
seal  of  eompanj',  whether  equivalent  to  signature,  145;  293. 
unconditional   order   in   writing,  bill   is   an,   168. 
And  see  NEGOTIABLE  INSTRUMENTS. 

BILL  OF  LADING: 

indorsement  of,  transfer  of   contract  by,  298;    302. 
is  not  properly  negotiable,  302. 
misdescription  of  goods  in,  effect  of,  659. 

BILL  OF  SALE,  182. 

BOND: 

repudiation  of,  distinguished  from  case  of  other  contracts,  356. 
condition,  where  illegal,  obligation  is  void,  492. 

where  impossible  at  time,  obligation  is  absolute,  555. 

but  subsequent  impossibility  is  a  discharge,  556. 

alternative  conditions,  where  one  impossible,  558. 

restrained  by  recitals,   624,  n.   82. 
foreign    government,    bonds    of,    treated    as    negotiable    instruments    by 

English  law,  293. 
merges  simple  contract,  874. 
statutes  as  to,  632,  n.    (r). 
And  see  SEAL. 

BOUNDARY:   agreement  to  settle  disputed,  is  not  within  Statute  of  Frauds, 
175,  n.   ]5. 

BRACTON:  his  theory  of  fundamental  error,  Note  H.,  913. 


INDEX.  931 

BREACH  OF  CONTRACT: 

anticipatory,  355.     And  see  REPUDIATION, 
in   instalment  contracts,   327. 

slight,  will  not  discharge  other  party,  326,  n.   9. 
whether  necessary  for  rescission,  339. 

BROKERS: 

in  wagering  transactions,  406,  n.  60;   407,  n.  62. 

statutes   affecting,  909. 

unlicensed,  in  city  of  London,  cannot  recover  commission,  404. 

when  may  act  for  both  parties,  388. 

BUILDING  SOCIETY: 

infant  may  be  member  of,  72. 

but  he  may  not  borrow  money  from  society  on  mortgage,  72. 
cannot   claim   and   hold   land   purchased   with   society's   money   free 
from  charge  for  money  advanced,  74. 

CANCELLATION  of  instruments  by  courts  of  equity,  725. 

CANCELLATION  AND  SURRENDER: 

discharge  of  bills  and  notes  by,  844. 
simple  contracts,  844. 
specialties,  843. 

CARGO:  sale  of,  when  previously  lost,  540. 

CARRIER:   contracts  of,  53. 

"CATCHING  BARGAINS": 

on  what  terms  borrower  relieved,  762. 

rules  of  equity  as  to,  759. 

what  are  marks  of,   760. 

with  heirs  and  reversioners,  757. 

CAUSA: 

"  consideration  "  not  analogous  to,  190. 
in  Roman  law  of  contract,   189. 

CHAMPERTY: 

agreements  made  abroad,  whether  rules  against  champerty  apply  to,  513. 

bargains  to  find  means  for  litigation  and  share  property  recovered,  453. 

definition  of,  449. 

kinship  does  not  justify,  461. 

lunacy,  proceedings  in,  exceptional,  460. 

of  party  and  his  counsel  in  a,  suit  is  no  defence  to  the  suit,  452,  n.  17. 

purchase  of  subject-matter  of  litigation,  not  in  itself  unlawful,  455. 

solicitor  cannot  purchase  subject-matter  of  suit  from  client,  455. 

statute  of  Hen.  VIII.  against,  457. 

what  amounts  to,  451. 


932  INDEX. 

CHARTER.    See  DEED. 

CHARTER-PARTY: 

conditions  in,  655,  n.  (z) . 
express  exceptions  in,  542. 
liability  of  principal  or  agent  on,  123. 

CHEQUE: 

effect  of  crossing  with  words  "  not  negotiable,"  295. 
holder  of,  cannot  sue  bank,  267;   894,  n.    (f). 
is  a  bill  of  exchange,  292. 
sent  as  satisfaction  of  a  disputed  claim,  838. 

CHILDREN: 

custody  of,  agreements  as  to,  461;  512. 

right  of,  to  enforce  provisions  for  their  benefit  in  settlements,  222;  231. 

CHOSE  IN  ACTION: 

early  authorities  on  assignment  of,  Note  F.,  906. 
why  formerly  not  assignable,  278. 
And  see  ASSIGNMENT. 

CIVIL  DEATH: 

meaning  of,  91,  n.  (z) . 

wife  of  person  civilly  dead  can  sue  alone,  90. 

COERCION: 

and  though  circumstances  do  not  amount  to  duress,  731. 
contracts  entered  into  under,  voidable  in  equity,  563. 
money  paid  under,  recoverable,   730. 

COLLUSION:   in  conduct  of  proceedings  against  public  policy,  444;   512. 

COMPANIES  ACT,  1862:   company  under,  cannot  bind  itself  by  contract  for 
purposes  foreign  to  the  memorandum  of  association,  143;   902. 

COMPANIES  ACT,  1900: 

provisions  of,  as  to  prospectuses,  676. 

COMPANY: 

bills  and  notes  may  now  be  under  seal  of,  144. 

Companies  Act,  1900,  676. 

contract,  executed,  liability  of  company  on,  166. 

implied,    168. 

statutory  forms  of,  167. 

summary  of  law  as  to,  168. 

tending  to  defeat  purposes  of  incorporation,  139. 
debentures,  transferable,  negotiable  if  under  seal  of,  145. 

form  of,  288. 

whether  holder  of,  takes  free  from  equities,  287. 
directors,  acts  of,  not  invalidated  by  mere  irregularit\',   136. 


INDEX.  933 

COMPANY  —  Continued : 

duty  of,  to  state  facts  truly  in  prospectus,  549,  sqq. 

powers  of,  limited  by  constitution  of  company,  136. 
and  by  principles  of  partnership,  136. 

registration  of  company,  how  far  notice  of  limitation  to  third 
persons,  136. 

right  of  dissenting  shareholders  to  restrain  acts  of,   134;   896. 
statements  of,  when  company  bound  by,  702;  714. 
Directors'  Liability  Act,  1890,  677. 
estoppel,  doctrine  of,  applicable  to,   147. 
executed   contract,   right   of   company  to   sue   on,   though   not   originally 

bound,  166. 
maintenance,  purchase  of  shares  in  order  to  sue  company  or  directors  at 

one's  own  risk,  is  not,  457. 
majority  of  shareholders,  powers  of,  136;   143. 
negotiable  instruments,  may  now  be  under  company's  seal,  145. 

when  company  bound  by,  145. 
objects  of,  as  defined  in  memorandum  of  association  must  be  strictly  ad- 
hered to,  141. 
partnership  rules,  relation  of,  to  law  of,  134;  145. 

And  see  COKPORATION. 
powers  of,  limited  by  special  purposes  of  incorporation,  133;  138. 
promoter,  duty  of,  to  company,  676. 
promoters'  agreements,  when  company  bound  by,  225. 

prospectus,   Company's  Act,   1900,  and  Directors'  Liability  Act,   1890,  as 
to,  676. 

duty  of  directors  to  state  facts  truly  in,  674;  711. 

statements  of,  addressed  only  to  original  shareholders,  703. 

variance  between  memorandum  and,  602. 
public,  interest  of,  as  investors,  140. 

ratification  of  irregular  transaction  by  assent  of  shareholders,  137;   900. 
seal  of,  contracts  formerly  required  to  be  under,  159. 

improper  use  of,  147. 

trading  contracts,  seal  not  necessary  in,  161. 

transferable  debentures  under,  negotiable,  145. 

whether  equivalent  to  signature  in  case  of  bills  and  notes,  145;  293. 
shareholders  cannot  sanction  acts  outside  scope  of  powers,  143. 

dissenting,  rights  of,  134;  896. 

majority,  powers  of,  136;  143. 

unanimity  of,  when  necessary,   136;    143. 
shares,  contract  to  take,  not  void,  but  only  voidable  on  ground  of  error, 

602. 
distinguishing  numbers  of,  error  in,  not  material,  602. 
repudiation  of,  when  too  late,  602;  713;  719. 
rescission  of  contract  to  take:  misstatements  in  prospectus,  602;  674; 

694. 
sale  of,  avoided  by  petition  for  winding-up  unknown  to  parties,  613. 


934  INDEX. 

COMPANY  —  Continued: 
shares  —  Continued: 

transfer  of,  184;  296. 

invalid,  where  directors'  consent  obtained  by  fraud,  686. 
statutory  powers,  acts  in  excess  of,  133;   138. 
unincorporated,  power  of,  to  sue  by  public  officer,  236. 

transfer  of  shares  in,  296. 

treated  as  corporation  in  America,  136,  n.  13. 
winding-up,  secret  agreement  to  delay  proceedings  in,  445. 

shareholder  cannot  repudiate  his  shares  after,  719. 

And  see  CORPORATION. 

COMPENSATION: 

for  misdescription  on  sale  of  land,  663. 
purchaser  can  recover  after  completion,  666. 
And  see  SPECIFIC  PERFORMANCE. 

COMPOSITION: 

avoided  by  concealed  preference,  378. 

money  paid  to  purchase,  may  be  recovered,  504. 

with  creditors,  consideration  for,  212. 

COMPROMISE: 

consideration  for,  214. 

mistake,  of  counsel,  compromise  arranged  by,  603. 

mistake  or  oversight  as  to  particular  points  of  law  cannot  be  set  aside 

for,  577. 
of  criminal  proceedings,  when  lawful,  440. 
of  election  petition,  void,  443. 

CONDITIONS: 

alternative,  where  one  becomes  impossible,  558. 

certificate  of  architect  as,  289,  n.  83. 

consideration  distinguished,  215,  n.  24. 

general,  restrained  by  recitals,  624,  n.  82. 

illegal,  make  bond  void,  492. 

impossible  conditions  in  bonds,  treatment  of,  555. 

or  unnecessary,  554. 
of  performance  becoming  lawful,  515. 
prevention  of  performance  of  excuses,  549,  n    37. 
remedy,  conditions  precedent  to,  imposed  by  law,  782. 
representations  amounting  to,  their  nature  and  effect,  652. 
restraint  of  marriage,  465. 
satisfaction  of  promisor,  51,  n.  47. 

special,  on  ticket,  how  far  binding  on  person  to  whom  it  is  issued,  53. 
stranger,  conditions  to  be  performed  by,  must  be  performed  at  obligor's 

peril,  523. 
warranties  distinguished  from,  652. 


INDEX.  935 

CONDITIONS  OF  SALE:  effect  of,  on  right  to  compensation,  665. 

CONFESSOR  AND  PENITENT: 

presumption  of  undue  influence  in  transactions  between,  736;  746. 

CONFIRMATION:   of  infant's  marriage  settlement,  65. 
And  see  ACQUIESCENCE. 

CONFLICT  OF  LAWS: 

agreement  to  submit  to  suit  in  specified  court,  446,  n.  11. 

as  to  remedy  for  recovery  of  debt  within  Statute  of  Frauds,  782. 

of  barred  debt,  770. 

lawfulness  of  agreement,  506. 
change  of  law,  effect  of,  514. 
discharge  in  insolvency,  107,  n.  66. 
domicil,  effect  of  law  of,  on  validity  of  marriage,  396. 
foreign  law,  how  far  admissible  to  decide  lawfulness  of  agreement  made 

abroad,  508. 
lex  loci :  by  what  local  law  the  lawfulness  of  an  agreement  is  determined, 
506. 

of  contract  by  correspondence,  886. 

marriage  of  domiciled  British  subjects,  wherever  celebrated,  governed 
by  English  law,  306. 

requirement  of  stamp,  how  treated  in  foreign  court,  433. 
revenue  laws,  how  treated  in  foreign  court,  431. 

CONSENT: 

proof  of,  5. 

requisites  of,  for  legal  agreement,  3. 
to  contract,  questions  affecting  validity  of,  561. 
ways  of  declaring,  5. 
And  see  MISTAKE. 

CONSIDERATION: 

abandonment  of  rights  as,  215. 

adequacy  not  material,  193;  475. 

assumpsit,  idea  of  consideration  in  action  of,   189. 

bailment,   gratuitous,   consideration   for,   193. 

burden  of  proving  in  equity,   217,  n.  26. 

causa,   "  consideration  "  not  analogous  to,   194. 

cohabitation,    illicit,    if   future,    an   unlawful   consideration;    if   past,   no 

consideration,  411. 
composition  with  creditors  as,  212. 
condition,  distinguished,  215,  n.  34. 
contingent,  doubt  as  to,  188;  196. 
debt,  action  of,  consideration  in,   188. 

payment  of  as  consideration,  204,  n.   15;    205;    210. 
deed,  voluntary,  no  specific  performance  of,  in  equity,  218. 

but  evidence  of  consideration  may  be  admitted,  218. 


936  INDEX. 

CONSIDERATION  —  Continued: 
definition,   185. 

detriment  to  promisee  as  basis  of  assumpsit,    189. 

discharge  of  contracts,  how  far  consideration  required  for,  210.     See  DIS- 
CHARGE. 
"  Doctor  and  Student,"  consideration  in,   190. 
duty,  performance  of,  as,  203. 
equity,   doctrine   in,   application   to   contracts   under   seal,   21C. 

will  not  enforce  incomplete  gifts,  218. 
evidence,  external,  of,  218. 
evolution  of  the  word,  188. 
execution  of  informal  agreement-  a3,  787. 
failure   of,   the   true  ground   for   recovering  back   compulsory   payments, 

732. 
forbearance  to   sue  as,   212. 

must  be  definite  and  of  really  disputed  right,  213. 
gaming  and  money  lent  for  betting,  an  illegal,  409. 
general  character  of,   8;    185. 
gift,  imperfect,  equity  will  not  enforce,  218. 
gratuitous  promises,   186. 
history  of  the  doctrine  of,   187. 
illicit  cohabitation  as,  411. 
illusory  promise  is  not,  50,  n.  58;  197,  n.  10. 
immoral,  where  gift  complete  and  irrevocable,  413. 

settlement  on  marriage  with  deceased  wife's  sister  treated  as  made 
on  an,  413. 
inadequate,  as  evidence  of  fraud,   197;   749;    767. 

as  ground  for  refusing  specific  performance,  752. 
infant's  promise  is  sufficient  for  adults',  66,  n.  12. 
moral,  198. 

mutual   promises   as,   201. 
past,  ineffectual,   199. 
patent,  invalid  as,  194. 
promise  must  be  definite,  203. 

to  one  who  does  not  furnish  the,  241. 

to  perform  existing  duty,  how   far   consideration,  203. 

unenforceable  under  Statute  of  Frauds,  as,  788. 
quid  pro  quo,  consideration   analogous   to,    190. 
rescission,   consideration   for,   815. 

restraint  of  trade,  partial,  consideration  necessary  for  agreement  in,  474. 
separation   deed,   consideration   for   agreement   for,   416. 
subscriptions,  how  far  supported  by,   186,  n.  3;   255. 
unlawful,  makes  whole  agreement  void,  483. 

variation    of    contracts,   how    far    consideration   required   for,   212. 
voluntary  agreement,  no   specific  performance   of,  217. 

even  though   under  seal,  217. 
wager,  note  given  for,  treated  as  being  without,  407. 


index.  937 

CONSTRUCTION: 

mistake  as  affecting,  572;  579,  n.  22. 

of  contract  favorable  to  validity  favored,  375. 

not  altered  by  mistake  of  parties,  572. 
of  promise  conditional  upon  satisfaction,   51,  n.  59. 
peculiar  rules  of,  in  equity,  257 ;  625. 

recitals   govern,   when   operative  part   ambiguous,   624,   n.   82. 
restriction  of  general  words,  625. 
rules  of,  general   intent  prevails,   317;    320. 

their  auxiliary  character,   317. 
stipulations  as  to  time,  in  equity,  625. 
subsequent  conduct   of   parties,   as   affecting,   572. 
And  see  INTERPRETATION;  MISTAKE. 

CONTRACT: 

advertisement,   legal   theory  of  contract  by,   13. 

performance  of  conditions   of  offer  made  by,   13,  21. 

Statute  of  Frauds,   effect  of,  on  contract  by,  25. 
agreement  to   commit  breach  of,  void,   376. 
alteration   of,   845. 
ambiguous,  601. 
assignment  of,  217;   594;   906. 

difficulties  of  assignee  of  ordinary  contract,  290. 

equitable:  notice  to  debtor,  281. 

free  from  equities,  288. 

subject  to  equities,  meaning  of,  284. 
bilateral,   13;   21,  n.  21;   35,  n.  40;   201;   323. 
bill  of  lading,  indorsement  of,  transfers  contract,  298;   302. 
cancellation  of,  843. 
capacity  of  parties  to,  57. 
communication  may  be  indirect,  26. 

conclusion  of,  may  be  postponed  until  execution  of  formal  instrument,  47. 
condition,  implied,  of  life  and  health  in  contract  for  personal  service,  543. 
conditional  on  performance  being  or  remaining  possible,  536. 
consideration  for  discharge  or  variation  of,  210;  815. 
correspondence,   contract  by,   39;    882. 
convicts',    104. 
definition  of,  3;   7. 
discharge  of,  811. 
dissolution    of,    by    subsequent    impossibility,    does    not    affect    acquired 

rights,   548. 
early  use  of  word,  189. 
entire  or  divisible,  325. 

forbidden,   contract  may  be,  but  not  void,  405. 
form  of,  in  early  English  law,   149. 
modern   principles,    148. 
no  systematic  rules  in  early  law,  149. 
forms,  special,  contracts   subject  to,   158. 


938  INDEX. 

CONTRACT  —  Continued : 
general  nature  of,   1. 

illegal,  370.     See  UNLAWFUL  AGREEMENTS, 
implied,  10. 

impossible   in  law,   void,   524. 
infant's,  59.      See  INFANT, 
intention,   representation   of,   not  amounting  to   contract,   has   no  effect, 

650. 
interpretation  of,  rules  for,  43;   307. 
judgment  is  not,   157,  n.    1. 
letter,  contract  by,  when  concluded,  37. 
lunatics,  98.     See  LUNATIC. 
malum  prohibitum    and  malum  in  se,   401. 
marriage,   agreements   in   restraint  of,   464. 
married  women's,   886. 
merger  of,   874. 
mistake  in,  560.     See  MISTAKE. 

property   included  by,   602. 
negotiable  instruments,   qualities  of,  291. 

rights  of  bond  fide  holder,  290. 
parties  must  be  ascertained  at  date  of  contract,  221 ;   223. 
partnership,  contract  of,  296;  892,  n.  8.     See  PARTNERSHIP. 
personal,  cannot  be  assigned,  594. 
personal  services,  contract  for,  543. 
persons  affected  by,  221. 
place  of  contract  by  correspondence,  886. 
procedure  upon,  in  mediaeval  English  law,  151. 
proof,  archaic  modes  of,  150. 
quasi-contract,  distinguished  from  tacit  but  real  contract,   11. 

fictitious  contract  in  English  law,  12. 

in  I.  C.  A.,  how  dealt  with,  12. 

term  now  recognized  in  England,    13. 
Tecord,  contracts  of,  157. 

rescission  of,  334;  687;  815.     See  RESCISSION. 
restraint  of  trade,  agreements  in,  467. 
rights  under,  distinguished  from  property  rights,  237. 
Roman  law,  classification  of  contracts  in,  902. 

influence  of,  on  early  English  law  of  contract,  149. 
satisfaction  by  stranger  to,  593 ;  840. 

shares  in  partnerships  and  unincorporated  companies,  transfer  of,  296. 
special  conditions,  acceptance  of,  when  implied,  54. 
stamp  duties  on,  798. 

variation  of  stamped  agreement  by  subsequent  unstamped  document, 
798. 
stranger  cannot  sue  for  damage  for  non-performance,  233,  n.  («). 
tacit,   distinct  from  quasi-contract,   11. 
terminology,  679. 


INDEX.  939 

CONTRACT  —  Continued : 

third  persons  authorities  in  equity,  233. 

authorities  in  the  United  States,  237.     See  BENEFICIARY. 

cannot  sue  in  England  at  law  on  contract  made  for  his  benefit,  233. 
See  BENEFICIARY. 

can  sue  in  many  American  states,  247;  25(i. 

not  bound,  221 ;  224. 

not   entitled   by   contract    itself  to   demand   performance,   222 ;    228. 
See  BENEFICIARY, 
tickets  as,  53. 

transfer  of,  where  duties  as  well  as  rights  transferred,  295. 
unconditional,  not  excused  by  performance  being  in  fact  impossible,  527. 
unilateral,  13;  21,  n.  21;  34,  n.  39;  35,  n.  40;  213,  n.  22. 
unlawful,  370.     See  UNLAWFUL  AGREEMENTS, 
voidable,  when,  3 ;   8. 

will,  agreement  to  make  disposition  by,  466. 
with  third  person,  promise  to  make,  51. 

CONVICTS:  disabilities  of,  as  to  contracting,  104. 

COPYHOLD: 

infant  copyholder  must  pay  fine,  73. 
sale  of,  as  freehold,  voidable,  672. 

COPYRIGHT: 

agreement  to  publish  in  violation  of,  void,  376,  n.  4. 
assignments  of,  183;  596. 

in  seditious  and  immoral  publications,  not  protected,  419. 
license  under  supposed,  as  consideration,  194,  n.  7. 

CORPORATION: 

appointments  to  offices  by,  must  be  under  seal,  165. 
agent,  corporation  can  only  act  by,  128. 

this  rule  does  not  apply  to  deliberative  acts  and  resolutions,  128. 

corporation  liable  eie  delicto  for  acts  of,  130. 

fraud  of,  701. 
agreement  for  sale  of  offices  of,  void,  376,  n.  6. 
artificial  person,  treatment  of  corporation  as,  124. 
capacity,  limitation  of,  128. 

charter,  corporation  created  by,  common  law  powers  of,  133. 
common  law  has  no  theory  of,  126. 
contract,  executed,  liability  of  corporation  on,   166. 

right  of  corporation  on,  166. 

implied,  167. 

statutory  forms  of,  177. 

summary  of  law  as  to,  168. 
corporation  sole:   Crown  said  to  be  a,  127. 

ecclesiastical  benefice,  holder  of,  is  a,  127. 

governor  of  a  state  said  to  be,  127,  n.  2. 

Pope  not  a,  127. 


940  INDEX. 

CORPORATION  —  Continued : 

crime,  corporation  cannot  commit,  130. 

debentures,  transferable,  of,  145 ;  288. 

deed  executed  by  all  members  is  not  deed  of,  125,  n.  99. 

directors  of,  personally  interested  in  transactions  with,  389,  n.  33. 

dissolution  of,  making  performance  of  agreement  impossible,  548,  n.  34. 

estoppel,  doctrine  of,  applicable  to,  147. 

executed  contracts,  right  of  corporation  to  sue  on,  though  not  originally 

bound,  166. 
exemplary  damages  liable  for,  130,  n   3 

false  statements  to  commissioner  relied  on  by  individual,  703,  n.  23. 
form  of  corporate  contracts,  summary  of  law  as  to,  168. 
fraud,  liability  for,  131. 
indictable  for  a  nuisance,  130. 

legal  corporate  existence,  necessary  marks  of,   126. 
malicious  prosecution,   corporation  liable  for,   130,  n.   3. 
members,  existing,  consequences  of  the  distinction   of  corporation  from, 

125,  n.  99;    132. 
members,  unanimity  of,  125,  n.  99 ;   137. 
money  received,  action  for,  lies  against,  167. 
municipal,  contracts  of,   164. 
liability  for  torts,  132,  n.  7. 
negotiable  instruments,  when   corporation  bound  by,    143. 

may  now  be  under  seal,  144. 
nuisance,  corporation  may  be  indicted  for,  130. 

officer,  power  of,  to  bind  corporation  by  apparently  regular  acts,  898. 
official  sanction  matter  of  procedure  and  convenience,   126. 
part  performance,  equitable  doctrine  of,  applicable  to,  147. 
personality  of,  125. 

personal  liabilities,  corporation  cannot  incur  strictly,  130. 
powers,  limited,  of  statutory  corporation,   133. 

limited  by  doctrines  of  partnership  and  agency,  896. 

must  not  be  used  to  defeat  purposes  of  incorporation,  138. 

of,  modern  authorities  on,  139,  n.  16;   Note  D.,  896. 
promoters  of,  fiduciary  relation  of,  389,  n.  33;   736,  n.  (i). 
prospectus,  false  statements  in,  704. 
public,  interests  of,  as  investors,   140. 

ratification  of  irregular  transaction  by  assent  of  all  members,  900. 
representation  of  officers  that  conditions  have  been  performed,  137,  n.  14. 
rescission,  after  bankruptcy  of,  720,  n.  49. 

Eoman  law,  would  not  allow  formation  of,  without  authority,  126. 
seal,  corporate,  contracts  formerly  required  to  be  under,   159. 

improper  use  of,  147. 

requirement  of,  a  mere  positive  rule  of  English  law,  128. 

trading  contracts,  exception  of,  162. 

transferable  debentures  under,  negotiable,  145;   293. 

whether  equivalent  to  signature  in  bills  and  notes,  144;   293. 


INDEX.  941 

CORPORATION  —  Continued: 

shareholders,  dissenting,  rights   of,  to  restrain  acts  of  governing  body 
134;  896. 

statutory,  acts  of,  void  outside  of  statutory  powers,  133;   138. 
subscription  for  stock  released  by  change  of  purpose  of  corporation    135 

n.  11. 
torts,  liability  for,  129. 
ultra  vires  acts  of,  141,  n.  16.. 

unlawfully  doing  business,  may  recover  on  contracts,  490,  n.  50. 
And  see  COMPANY. 

CORRESPONDENCE : 

authorities  on,  Note  B.,  882. 
complete  by  posting  acceptance,  39. 
contract  by,  37. 

COSTS: 

agreement  with  client  as  to,  806. 
fraud,  unfounded  charges  of,  visited  with,  672;   724. 
Solicitors'  Remuneration  Act  as  to,  806. 
And  see  SOLICITOR. 

COUNSEL.     See  BARRISTER. 

COVENANT: 

action  of,  152. 

alteration  of,  845. 

covenantee  must  be  defined,  14,  n.  13. 

general,  restrained  by  special,  624. 

order  and  mutuality  of  performance  of,  320. 

power,  covenant  to  exercise  by  will,  whether  good,  466,  n.  (m). 

real  property,  relating  to,  person  not  party  may  take  benefit  of,  232. 

restrictive,  how  enforced  in  equity,  305. 

not  enforced  against  sub-purchaser  of  chattel,  298. 
voluntary,  216. 
when  covenants  run  with  land,  298. 

CREDIT:  term  of,  as  affecting  right  to  rescind,  707. 

CREDITORS: 

agreements,  in  fraud  of,  377;  504;  793. 

alteration  of  instrument  in  fraud  of,  849. 

attaching,  cannot  hold  against  defrauded  equitable  owner,  716,  n.  43. 

CROPS:    sale  of,  not  within  Statute  of  Frauds,  173,  n.  14. 

CROWN:    said  to  be  a  corporation  sole,  127. 

CUSTODY  OF  CHILDREN:    agreements  as  to,  how  far  valid,  461 ;  512. 

CUSTODY  OF  INFANTS  ACT,  1873:    463. 


942  INDEX. 

CUSTOM: 

London,  custom  of:  as  to  infant  apprentice,  81. 

as  to  married  women  trading  alone,  91. 
modern,  may  add  to  the  law  merchant,  293. 
of  brokers  to  deal  as  principal,  388. 
of  country  or  trade,  terms  added  to  contract  by,  315. 
some  contracts  of  infants  binding  by,  81. 
terms  introduced  by,  315. 

DAMAGES: 

distinguished  from  penalty,  632. 
for  breach  of  contract  to  pay  debt,  245. 
for  countermanded  contract,  349. 
for  services  when  contract  repudiated,  337. 
DEATH: 

civil,  90. 

contract  to  be  performed  at  the  death  of  a  person  is  not  within  the  Stat- 
ute of  Frauds,  176,  n.  17. 
of  principal,  revocation  of  agent's  authority  by,  106. 
revocation  of  proposal  by,  42  cp.  106,  n.  61. 

DEBENTURES: 

company's   seal,   under,    negotiable,   145;    293. 
negotiable  instruments,  now  recognized  as,  293. 
transferable,  form  of,  293. 
whether  holder  takes  free  from  equities,  288. 

DEBT: 

action  of,   151;   188. 

trial  by  battle  in,  150. 
assignment   of,  220. 

contract  to  pay  another's,  242 ;   244 ;   255. 
payment  of,   as   consideration,   210. 
promise  to  pay  as  consideration,  204,  n.   15. 
survives   destruction   of   written   evidence   when,   868. 

DECEIT,  ACTION  OF: 

former  acuity  practice  analogous  to,  921. 
may  lie  against  corporation,  129,  n.  3. 
what   is   ground   for,   682. 

And  see  FRAUD  AND  MISREPRESENTATION. 
DEED: 

acceptance  of,  necessary,  6,  n.  3. 
action  on,  is  on  deed  itself,  not  on  promise,  151. 
agent,  principal   not  liable  on  deed  of,   109. 
cannot  be  written  on  wood,   156. 

executed   by    all    members    of    corporation    does    not   transfer    corporate 
property.  125,  n.  99. 

in  error  as  to  its  contents,  not  binding,   583. 

favor   of  wrong   party,   whether   void,    593. 


INDEX.  943 

DEED  —  Continued: 

Frauds,  Statute  of,  does  not  apply  to,   182. 
medieval,   in   England,   of   Norman   origin,    150. 
promises  made  by,  peculiarity  of,  6;    55. 

undelivered  or  incomplete,  may  be  memorandum  under  Statute  of  Frauds, 
175,  n.  16. 

DEPENDENT  AND  INDEPENDENT  PROMISES:   meaning  of  terms,  326 
DEPOSIT:    recovery  of.     See  MONEY  PAID. 
DETINUE:    action  of,  152. 

DIRECTORS: 

how  far  third  persons  are  bound  to  know  whether  particular  acts   are 

authorized,  897. 
of  public  companies,  extent  of  their  authority  presumed  to  be  known,  136. 
personal  interest  of,  in  dealings  with  corporation,  389,  n.  34. 
power  of,  to  bind  company  by  statements,  702;  714. 
statements  of,  when  company  bound  by,  702;  714. 
And  see  COMPANY;  CORPORATION. 

DIRECTORS'  LIABILITY  ACT,  1890:    imposes  responsibility  for  statements 
in  prospectus.   677. 

DISCHARGE  OF  CONTRACTS: 

after  assignment,   282. 

by  accord  and  satisfaction,  270;  828.  See  ACCORD  AND  SATISFAC- 
TION. 

by  alteration,  845.     See  ALTERATION. 

by  arbitration  and  award,  877.     See  ARBITRATION  AND  AWARD. 

by  bankruptcy,  812.     See  BANKRUPTCY. 

by  breach,  811.     See  REPUDIATION. 

by  cancellation  and  surrender,  843..  See  CANCELLATION  AND  SUR- 
RENDER. 

by  impossibility,  518;  812.     See  IMPOSSIBILITY. 

by  merger,  874.    See  MERGER. 

by  performance.  811.    See  PERFORMANCE. 

by  rescission,  212;  815.     See  RESCISSION. 

by  release,  812.    See  RELEASE. 

by  Statutes  of  Limitation,  773;  812.     See  LIMITATION,  STATUTES  OF. 

distinguished  from  discharge  of  right  of  action,   812. 

methods  of,  811. 

DISCLOSURE: 

no  general  positive  duty  of,  650. 

but  duty  implied  in  special   cases,   651. 

And  see  FRAUD  AND  MISREPRESENTATION. 


944  ixdex. 

DISENTAILING  DEED:    may  be  rectified  by  the  court,  644. 

DIVISIBLE  CONTRACTS: 

alteration  of  part  of,  850. 
where  part  illegal,  482. 

DIVORCE:    agreements  conditioned  on  the  granting  of,  444,  n.  7;  515,  n.  82. 
And  see  SEPARATION  DEED. 

DOCTOR  AND  PATIENT: 

presumption  of  undue  influence  from  relation  of,  735. 
recovery  of  charges,  801. 

DOCTOR  AND  STUDENT:     "consideration"  in,   190. 
DOMICIL:    effect  of  law  of,  on  validity  of  marriage,  397. 

DRUNKENNESS: 

contract  of  drunken   man   voidable,   not  void,    100,   n.   52. 
effect  of,  on  capacity  of  contracting,  same  as  of  insanity,  58;   98;    104, 
n.  56. 

DURESS: 

imprisonment  as  constituting,   729,  n.   8. 

recovery  of  money  paid  under  compulsion,  730. 

threats  of  injury  to   another,   729. 

threats,  when  it  consists  in,  the  threat  must  be  of  something  unlawful, 

730. 
what  is,  at  common  law,  728. 

And  see  UNDUE  INFLUENCE. 

EASEMENTS:    new  kinds  cannot  be  created,  303. 

ECCLESIASTICAL  LAW:    influence  of,  on  legal  view  of  morality,  410. 

ELECTION: 

communication  of,  710. 

not  necessary  in  order  to  acquire  right  of  action  after  breach,  353. 

to  adopt  agreement  void  for  mistake,   621. 

to  avoid  contract  made  in  infancy,  68,  n.   14;   70. 

to  avoid  or  affirm  contract  induced  by  fraud,  707. 

to  charge  principal  or  agent,   116. 

to  rescind  contract  for  repudiation   or  breach,  345. 

to  sue  debtor  or  one  who  assumed  debt,  270. 

under  a  mistake,  579,  n.  20. 

what  facts  show,  707. 

ELECTION  PETITION:    compromise  of,  443. 


INDEX.  945 

"  ENGAGEMENT."    See  SEPARATE  ESTATE. 

EQUITY: 

acquiescence,  estoppel  by,  791. 

loss  of  remedies  by,  721. 
agent's  contract,  undisclosed  principal  must  take  subject  to  equities,  113. 
assignment  of  contract  in,  279. 
assignee  may  sue,   219. 
assignee  takes  subject  to  equities,  284;   cp.  294,  n.  88. 

unless  rule  excluded  by  special  agreement,  287. 
notice  to  debtor  required,  280. 
auction,   sales  by,   former  difference  between   law  and  equity,  684. 
award,  whether  stranger  bound  by,  226. 
benefit  of  third  person,  enforcement  in  equity  of  contracts  for,  233 ;  243. 

See  BENEFICIARY. 
cancellation  of  instruments,  jurisdiction  of  equity  as  to,   725. 
"  catching  bargains,"  rules  as  to,  759. 
children,  custody  of,  rules  of  equity  as  to,  461. 
consideration,  good,  what  is,  in  equity,  216. 
construction,  rules  of,  in  equity,  625. 

copyright,   of   seditious   or   immoral    publications,    equity   will   not    pro- 
tect, 419. 
covenants  running  with  lanu,  doctrine  of  equity  as  to,  304. 
deceit,   suits  analogous  to  actions  of,   in  equity,  682,  n.    (i). 
destroyed  instrument,  relief  for,   846. 
doctrine  of,  as  to  unlawful  agreements  where  parties  not  in  pari  delicto, 

503. 
"equality"  between  contracting  parties,  751. 
estoppel  by  acquiescence  or  representation,  791. 

evidence,  parol,  equity  does  not  admit  on  questions  of  construction,  311. 
expectant  heirs,  special  protection  of,  755. 
fraud,  contracts  voidable  on  ground  of,  440,  725. 
gifts,  imperfect,  treatment  of,  in  equity,  218. 

voluntary,  treatment  of,  in  equity,  738.    And  see  UNDUE  INFLU- 
ENCE, 
infant;  liability  in  equity  on  false  representation  of  full  age,  84. 
liability  in  equity  for  money  loaned  for  necessaries,  80,  n.  24. 
marriage  settlement,  treatment  of,  65. 
infant's  contract,  no  specific  performance  of,  66;  71. 
informal  contract  with  corporation  not  aided,  166. 
lost  instrument,  relief  for,  847. 

lunatic,  equity  adopts  rule  of  law  as  to  acts  of,  100,  n.   (re). 
"making  representations  good,"  supposed  former  doctrine  of,  649;  915. 
mistake,  payment  made  by,  recovery  back,  agreement  with  law,  458. 
purchase  of  party's  own  property  by,  491. 
restricted  construction  of  general  words,  502. 
mortgage,  enforcement  of,  in  equity  against  one  who  assumes,  261. 
60 


946  INDEX. 

EQUITY  —  Continued : 

negotiable  instruments,  equity  agrees  with  common  law  as  to,  292. 

equity  restrains  negotiation  in  eases  of  fraud,  292. 
obligations,  equitable,  treatment  of,  at  common  law,  809. 
part  performance  in  equity,  790. 
penalties,  relief  against,  in,  629. 
purchase  for  value  without  notice,  rule  of  equity  as  to,  567. 

equity  will  not  deprive  purchaser  of  anything  he  has  already  got,  568, 
n.   (a>). 
rectification  of  instruments  in,  636. 
relief  in  case  of  unexecuted  accord,  833. 
representation,  estoppel  by,  795. 

rescission  of  sales  of  land  for  grantee's  breach  of  contract,  335. 
restrictive  agreement  as  to  use  of  chattels  not  enforceable  against  sub- 
purchaser, 298,  n.  94. 
sal.es  of  land,  where  parcels  included  by  mistake,  decisions  in  equity,  600. 
separate  estate,  doctrine  of,  94 ;  886.    And  see  SEPARATE  ESTATE. 
specific  performance  and  compensation  on  sales  of  land,  663. 

refuial  of,  on  ground  of  undervalue,  752. 
surety,  agreement  between  law  and  equity  as  to  creditor's  duty  to,  660. 
third  persons,  right  of,  to  enforce  contract  in  equity,  233;  243. 
time,  when  of  essence  of  contract  in,  626. 
undue  influence,  equitable  doctrine  of,  732. 
voluntary  covenants,  treatment  of,  in,  217. 

settlements  generally,  738. 
how  set  aside,  739. 

ESCROW:    writing  delivered  as,  312. 

ESTOPPEL: 

acquiescence,  estoppel  by,  791. 

agent,  one  party  acting  as,,  to  other  party  in  preparing  instrument  con- 
cerning both,  642. 

corporations  bound  by,  147. 

heir  bound  by,  when  he  has  conveyed  with  warranty,  459,  n.  24. 

infants,  by  misrepresentation  of  age,  82,  n.  27. 

married  women's  interests  may  be  bound  by,  88,  n.  34 ;   795. 

misrepresentation,  estoppel  of  party  who  has  induced  fundamental  error 
by,  619. 

negligence,  estoppel  by,  whether  applicable  to  deeds,  585,  n.  30;  586,  n  [I) 
(m). 

of  holder  of  instrument  dealing  with  it  as  negotiable,  294. 

part  performance,  effect  by  way  of  estoppel,  791. 

representation,  estoppel  by,  795. 

statements  binding  by  way  of,  648. 

Statute  of  Limitations,  estoppel  to  plead  because  of  promises  to  pay, 
779,  n.  12. 


INDEX. 


947 


EVIDENCE: 

altered  documents,  admissibility  in,  847;  865,  n.  83;  868;  873. 
extrinsic,  always  admissible  to  show  illegality  of  agreement,  492. 

subsequent  conduct  of  parties  may  be  evidence  of  original  unlawful 

intention,  493. 
to  explain  particular  terms  in  agreement,  313. 
of  document  being  agreement  or  not,  admissible,  311. 
of  unlawful  intention,  493. 
parol,  not  admitted  to  vary  written  contract,  310. 

of  oral  variation,  admitted  as  defense  to  specific  performance  of  writ- 
ten agreement,  633. 
but  not  to  obtain  performance  of  agreement  as  varied,  633. 
inadmissible  to  rectify  instrument  where  there  is  previous  agree- 
ment in  writing,  637. 

but  admissible,  if  uncontradicted,  where  no  written  agree- 
ment, 637. 

EXCISE:    statutes  regulating  trades,  etc.,  subject  to  laws  of,  708. 

EXECUTORS: 

barred  debts  may  be  paid  by,  776. 

liability  and  right  of,  generally,  on  contracts  of  testator,  223;  224,  n.   (g)  ; 

278,  n.   (h). 
personal  service,  contracts  of,  executors  cannot  be  sued  on,  222 ;  535 ;  543. 

or  on  contract  to  marry,  546,  n.   (y) . 
rescission,  right  of,  for  undue  influence  may  be  exercised  by,  768. 

EXPECTANCY:    sale  of;  not  unlawful,  344.    See  also  755. 
EXPECTANT  HEIRS:    protection  of,  by  courts  of  equity,  755. 


FELONS:    convicted,  disability  of,  104. 

FIDUCIARY  RELATION: 

between  contracting  parties,  effect  of,  741. 
instances  of,  630,  n.  93;   734. 

And  see  UNDUE  INFLUENCE. 

FORBEARANCE  TO  SUE:    as  consideration  for  promise,  212. 

FOREIGN  LAW: 

agreements  lawful  by,  but  not  by  law  of  forum,  treatment  of,  506. 

subsequent  prohibition  by  foreign  law:   performance  deemed  impos- 
sible, 514. 
but  contract   rendered  impossible   of   performance   by,   not   dis- 
charged, 530. 
contracts  payable  in  Confederate  money,  431,  n.  89. 
revenue  laws  of  foreign  countries  said  to  be  disregarded,  431. 

stamps,  foreign  law  as  to,  effect  of,  433. 
undue  influence:   French  law  of  captation,  Note  L.,  922. 
And  see  CONFLICT  OF  LAWS. 


948,  INDEX. 

FORFEITURE:    relief  against,  in  equity,  629. 

FORGERY: 

adoption  of,  443;  856,  n.  18. 

of  indorsement  confers  no  title,  569. 

FORMAL  CONTRACTS: 

cases  where  form  specially  required,  154;   157. 
charter,  English  medieval,  of  Norman  origin,   150. 
contracts  of  record,  157. 
importance  of,  in  ancient  law,   149. 
modern  requirements  of  form,  157. 
Roman  law,  position  of,  in,  150. 

transition  from  formal  to  informal  proof  in  English  law,  149. 
when  oral  agreement  preliminary  to,  is  itself  a  contract,  46. 
And  see  CORPORATIONS;  FRAUDS,  STATUTE  OF. 

FRAUD  AND  MISREPRESENTATION: 

acquiescence,  passive,  in  self-deception  of  other  party  is  not  fraud,  609. 
affirmance  of  contract  induced  by,  705. 
agent,  liability  of  corporation  for  fraud  of,  130;  701. 

agreement  that  architect's  certificate  shall  be  binding  in  spite  of,  289,  n.  3. 
auction,  sales  by,  special  doctrine  as  to,  684. 

company,  contract  to  take  shares  in;  misstatements  in  prospectus,  674; 
694. 

provisions  of  the  Companies  Act,  1900,  676. 
concealment,  fraudulent,  what  is,  669;  681. 
consideration,  inadequate,  as  evidence  of  fraud,  197;  749;  767. 
"  constructive  fraud,"  what  is,  647. 

contract  incidental  to  a  fraud  is  itself  fraudulent,  698. 
costs,  unfounded  charges  of  fraud  visited  with,  672;   724. 
creditors,  fraud  on,  in  compositions,  377;   504;    793. 
disclosure,  duty  of,  in  insurance,  656. 
error,   fundamental,  produced  by  misrepresentation,  effect  of,  619;    639, 

n.  6. 
estoppel,  relation  of  fraud  to,  648. 
false  representation;  when  an  actionable  wrong,  647. 
falsehood,  when  silence  equivalent  to,  681;  683. 
family  settlements,  misrepresentation  in,  673. 
generally,  646. 
gifts,  voluntary,  678. 

goods,  delivery  to  wrong  person  obtained  by  fraud,  717. 
inadequacy  of  consideration  as  evidence  of,  197;   749;   767. 
insurance,  special  rules  as  to  misrepresentation  in  contracts  of,  656. 
knowledge,  means  of,  of  party  misled,  693. 
land,  sales  of;   contract  voidable  for  misdescription,  662. 

contract  voidable  for  misrepresentation  of  title,  695,  n.   12. 

rules  of  equity  as  to  performance  with  compensation,  663. 

vendor's  duty  to  describe  property  correctly,  669. 


INDEX  949 

FRAUD     AND     MISREPRESENTATION  —  Continued : 
marriage,  not  avoided  by  fraud,  677 ;  684. 
marry,  contract  to,  when  avoided  bj',  677. 
mercantile  agency,  false  statements  to,  699,  n.  17. 
misdescription  of  goods  in  bill  of  lading,  659. 

of  land,  662. 
misrepresentation,  non-fraudulent,  when   affecting  validity   of   contract, 
648;  650. 

how  fraud  distinguished  from,  678. 
mistake  distinguished  from  fraud,  562. 
negligent  ignorance,  equivalent  to  fraud,  682. 
non-disclosure,  effect  of,  in  fire  insurance,  657. 

effect  of,  in  life  insurance,  657. 

effect  of,  in  marine  insurance,  656. 

in  family  settlements,  673. 
of  lack  of  title,  671. 

of  mine  on  land  bought,  683,  n.  55. 

misrepresentation  distinguished  from,  650;   695. 
notice  of,  what  constitutes,  722. 

partnership,  contract  of,  misrepresentation  in  negotiation  of,  674. 
pleading  in  cases  of,  725,  n.  58. 
price  paid  by  seller,  misstatement  of,  690,  n.  4. 

statement  of,  causes  no  liability,  691,  n.  6. 
purchase  of  goods  with  intent  not  to  pay  for  them,  679. 
reckless  assertions,  682. 
remedies  of  party  misled  by,  705. 
representation,  fraudulent,  what  is,  680. 

rescission  of  contract  for  fraud  and  for  simple  misrepresentation,  680. 
rights  of  party  misled,  705. 
sales  induced  by,  716. 

settlements  in  fraud  of  marital  right,  392. 
silence,  when  equivalent  to  falsehood,  681;   683. 
suretyship;   misrepresentation  avoids  contract,  659. 
third  person,  consent  of,  obtained  by  fraud,  686. 

fraud  on,  makes  agreement  void,  376;   381. 

misrepresentation  by,   immaterial,  698. 
warranty,  relation  of  fraud  to,  649. 

And  see  RESCISSION;  REPRESENTATION. 

FRAUDS,  STATUTE  OF. 

acknowledgments  of  barred  debts,  778. 

agency  to  sell  land,  174,  n.  15. 

as  to  agreements  not  to  be  performed  within  a  year,  175;  784;  789,  n.  29. 

as  to  assignments,  279. 

boundary  agreement,  when  not  within,  175,  n.  15. 

conflict  of  laws  in  regard  to,  782,  n.  18. 

contracts  by  advertisement  not  exempt  from,  25. 


950  INDEX. 

FRAUDS,    STATUTE    OF  —  Continued : 

deeds,  whether  statute  applicable  to,  182. 

effect  of,  where  writing  does  not  represent  the  real  agreement,  541;  633; 

635. 
executed  contracts,  does  not  apply  to,  789,  n.  29 ;  823. 
executor,  special  promise  by,  169. 
guaranties,  169;  785. 

informal  agreements  within  s.  4,  effect  of,  783;  785. 
land,  interests  in,  contracts  as  to,  172;  783. 
leases,  174. 

Limitations,  debts  barred  by  Statute  of,  778. 
marriage,  agreements  in  consideration  of,  172. 
money  paid  not  recoverable  because  agreement  within,  785. 
note  or  memorandum,  178.     • 

effect  of  note  signed  by  one  party  only,  180. 

memorandum  must  exist  at  time  of  action  brought,   182. 

signature  of,  180. 

undelivered  deed  may  be,  175,  n.  16. 
parol  variation  of  contracts  within,   822. 

part  performance,  equitable  doctrine  of,  relation  of  statute  to,  790. 
partnership  to  deal  in  lands,  174,  n.  15. 
procedure,  whether  statute  merely  affects,  782. 
rectification  of  contracts  within,   633,  n.   98;   635. 
rescission  of  contracts  within,  822. 
sale  of  crops,  not  within,  173,  n.  14. 
sale  of  fixtures,  not  within,  174. 
sale  of  goods,  178;  782. 
sale  of  trees,  within,  173,  n.  14. 

settlement,   ante-nuptial  agreement  for,  confirmed  by  post-nuptial  writ- 
ing, 792. 
third  person  cannot  take  advantage  of,  786,  n.  23. 
trust,  assignment  of,  280. 
validity  of  agreement  where  no  satisfaction  of,  782. 

FRAUDULENT    CONVEYANCE.    See    VOLUNTARY    DEED    OR    SETTLE- 
MENT. 

FRAUDULENT    PREFERENCE:    agreements    with   particular   creditors   by 
way  of,  377 ;  504. 


GAMING: 

securities  for  money  won  at,  407. 

treatment  of  gaming  debts  contracted  abroad  and  not  unlawful  by  local 
law,  511. 

And  see  WAGERS. 


INDEX.  951 

GAVELKIND:    conveyance  by  infant  tenant  in,  81. 

GENERAL  WORDS:    restrained  by  context  or  by  intention  appearing  from 
external  evidence,  623;  815. 

GERMANIC  LAW:     proof  in,  151. 

GIFT: 

acceptance  of,  as  loan,  effect  of,  589. 

French  law,  922. 

from  client  to  solicitor,  how  far  valid,  740;  770. 

imperfect,  not  aided  in  equity,  218. 

treatment  of,  in  equity,  738. 

And  see  UNDUE  INFLUENCE. 

GOODS: 

bill  of  lading,  misdescription  of  goods  in,  effect  of,  659. 
contract  cannot  run  with,  298. 

delivery  of,  order  for,  may  be  assignable  free  from  equities,  but  cannot 
be  negotiable,  293,  n.  (z) . 

to  wrong  person  by  mistake  or  fraud  does  not  pass  property,  718. 

And  see  SALE  OF  GOODS. 

GUARDIAN  AND   WARD:    presumption  of  undue  influence  in  transactions 
between,  736;  744. 

GUARANTY: 

voidable  for  misrepresentation  or  dissimulation  to  surety,  659. 
within  Statute  of  Frauds,  169;  785 
And  see  SURETY. 


HEIR:    effect  of  conveyance  by,  459. 

HORSES:    sale  of,  in  market  overt,  183. 

HUSBAND  AND  WIFE.    See  MARRIED  WOMEN;   SEPARATE  ESTATE; 
SEPARATION  DEED;  CUSTODY  OF  CHILDREN. 

IGNORANCE: 

does  not  in  general  exclude  civil  liability,  564;  616. 

of  fact  making  agreement  unlawful,  495,  n.  54. 

of  law,  may  be  material  as  excluding  specific  unlawful  intention,  494; 

516. 
reckless  or  negligent,  carries  responsibilities  of  knowledge,  682. 
where  it  is  a  condition  of  acquiring  rights,  566. 
And  see  MISTAKE. 

IGNORANTIA  JURIS:    meaning  of,  explained  by  Lord  Westbury,  615. 


952  INDEX. 

ILLEGALITY.     See  UNLAWFUL  AGREEMENTS. 

ILLICIT  COHABITATION:    illegal  as  consideration,  when,  411. 

ILLUSORY  PROMISES: 

as  consideration,  50,  n.  58;   197,  n.  10. 
nature  and  effect  of,  49. 

IMMORAL  AGREEMENTS: 

agreement  immoral  jure  gentium  cannot  be  justified  by  any  local  law,  508. 
void;  what  are  such,  and  what  is  immoral  consideration,  410. 
And  see  UNLAWFUL  AGREEMENTS. 

IMMORAL  PUBLICATIONS:     punishable  by  criminal  law,  and  therefore  no 
ground  of  civil  rights,  419. 

IMPERFECT  OBLIGATION: 

agreement  of,  772. 
under  Statutes  of  Fraud,  782. 
under  Statutes  of  Limitation,   773. 
under  statutes  of  various  kinds,  798. 

IMPLIED  CONTRACT:    distinguished  from  express,  10. 

IMPOSSIBLE  AGREEMENTS: 

accidents  not  contemplated  by  contract,  exception  of,  534;  cp.  528,  n.  10. 

subsequent  to  contract,   effect  of:    analogy  of  contract  to  pay  rent, 
where  premises  destroyed  by  fire,   530. 
agreement  impossible  in  itself  void,  518. 

law  void,  524. 

but  impossibility  by  law  excuses  promisor,  525. 

impossibility  at  date  of,   from  state   of  things  not  contemplated  by 
parties,   539;    559,  n.  51. 

in  fact :   no  excuse  in  absolute  contract,   527. 

for  limited  time,  525,  n.  6. 
alternative  conditions  in  bonds,  where  one  impossible,  558. 

contracts,  where  one  thing  is  or  becomes  impossible,   552. 
bond,  where  condition  impossible,  obligation  is  absolute,  555. 

otherwise  where  condition   subsequently  becomes   impossible,   556. 
buying  one's  own  property,  526. 
cargo  lost  at  date  of  contract,  sale  of,  540. 
commercial  contracts,  express  exceptions  in,   542. 

conditional  contracts  where  the  condition  is  or  becomes  impossible,  554. 
default  of  promisee  discharges  promisor,  549. 

promisor,  impossibility  by,  equivalent  to  breach  of  contract,   549. 
destruction  of  leased  property,  530. 
destruction    of   subject-matter   without    fault   on    either    side,    536;    559, 

n.  51. 
dissolution  of  corporation  as  a  defence.  548,  n.  34. 


indkx.  953 

IMPOSSIBLE    AGREEMENTS  —  Con  tinned : 

foreign  law,  impossibility  by,  no  excuse,  530. 

Indian  Contract  Act  on  impossible  agreements,  558. 

law  as  to,  general  statement  of,  518. 

law,  impossibility  caused  by,  519,  524. 

marriage,   contract  of,   anomalous  treatment   of,   546. 

mining  leases,  covenants  in,  construction  o"f,  541. 

performance   depending   on   existence   of   specific  thing,   536;    523,  n.   4; 

cp.  528,  n.   10. 
life  or  health  of  promisor:  implied  condition  that  life  or  health  shall 

continue,  543. 
performance,  means  of,  promisor  not  having,  is  not  impossibility,  523. 
"  practical  impossibility "  not  equivalent  to  actual   impossibility,  522. 
relative  impossibility,  523. 
repugnant  promises,  522. 
rights  already  acquired  remain,  538;   548. 
warranty  of  contingent  acts  or  events,  523. 

INADEQUACY  OF  CONSIDERATION.     See  CONSIDERATION. 
INDEPENDENT  PROMISES:    where  one  promise  unlawful,  482. 

INDIAN  CONTRACT  ACT: 

acceptance   must  be  unqualified   under,   43 

performance  of  condition  as,    13. 
consideration,  inadequacy  of,  752. 
discharge  of  contracts,  211,  n.    (d). 
impossible  agreements,   558. 
insanity  as  ground  for  revocation  under,  42. 
penalty  and  liquidated  damages,  distinction  between,  abolished  by,  632, 

n.    (s). 
quasi-contracts  dealt  with  separately  in,  12. 
rescission  in,  347. 
restraint  of  trade,  480. 

sales  by  auction,  employment  of  puffer  at,  685. 
time,  when  of  essence  of  contract,  629. 
wagers  void  under,   422,  n.    (5). 

INFANT: 

account  stated,  liability  on,  66. 

age,  representation  as  to,  82,  n.  27;  84. 

apprenticeship,  contract  of,  74;    81. 

by  custom  of  London,  81. 
bankrupt,  infant  cannot  be  made  in  absence  of  false  representation  as 
to  age,   86. 


954  index. 

INFANT  —  Continued : 

building   society,    infant   may  be  member   of,   72. 

but   may  not  borrow  money  from   society  on   mortgage,   72. 

cannot  claim  to  hold  land  purchased  with  society's  money  free  from 
charge  for  money  advanced,  74. 
contract,  avoidance   of,   time   for,   66. 

beneficial,  74. 

generally  cannot  bind  himself  by,  59. 

implied  in  law,   84. 

of  service,  61;   67,  n.   14;   74;   81. 

of,    voidable   at   common   law:    no   authority   for   holding   it   in   any 
case  void,  60;   66,  n.  11. 
custody  or  education   of,   agreements  between  parents  as  to,  461. 
custom,  what   contracts  infant  can  make  by,   81. 
equity,  liable  in,  for  representing  himself  as  of  full  age,   84. 

but  not  to  prejudice  of  subsequent  valid  contract,  86. 
election  to  affirm,  68,  n.  14. 
estoppel  of,  82,  n.  27. 

false  representations,  liability  for,   82,  n.  27;    84. 
leases  by,  good  if  beneficial,  62;  73. 

granted  under  statute,   81. 

to,  voidable,  73. 
liability  on   obligations   incident  to   property,   73. 

to  return  consideration  when  contract  avoided,  68,  n.   14. 
loans  to,  60. 
marriage  of,  64. 

settlements,  65;   70;   79;   81. 
mistake,  common,  avoiding  agreement,  612. 
money  paid  under  avoided  contract,  recovery  of,  67,  n.  14;  68. 
necessaries,  liability  for,  60;  66,  n.  11;  74;  76. 

liability  in  simple  contract  only,  80. 

deed  given  to  secure  repayment  of  money  advanced  for,  80. 

negotiable  instrument  given  for,  80,  n.  25. 

what  are,  74;  78. 
negotiable  instruments,  66. 
partnership,  63 ;  69. 
power  of  attorney,  66,  n.  11. 

promise  as  consideration  for  adults'  promise,  66,  n.  12. 
promise  to  marry,  65. 

property,  obligations  incident  to,  liability  on,  73. 
ratification  since  Infants'  Relief  Act,  70;  807. 
sale  of  goods  to,  59. 

or  purchase  of  land,  62. 
service,  contract  of,  61;  67,  n.  14;   74;  81. 
shareholder,  liability  for  calls  on  shares,  64;  73. 
specific  performance,  infant  cannot  have,  66;  71. 
statute,  what  contracts  infants  can  make  by,  81. 


INDEX.      •  955 

INFANT  —  Continued : 
trading  contracts,  75. 
wrong,  liability  for,  when  connected  with  contract,  82. 

INFANTS'  RELIEF  ACT,  1874: 

effect  of  section  1,  71. 

since  the  Act,  of  affirming  agreement  voidable  at  common  law,  70 ;  807. 
makes  certain  agreements  of  infants  void,  69. 

exception  of  contracts  for  necessaries,  72. 
ratification  not  wholly  inoperative  under,  70. 

INSANITY.     See  LUNATIC. 

INSOLVENCY:     of  one  promisor  in  a   bilateral   contract  excuses  the  other, 
323,  n.  8;  354. 

INSTALMENTS:    default  in  delivery  or  payment  of,  327. 

INSURANCE:    contract  of,  liberally  construed  in  favor  of  true  intention,  641. 

INSURANCE  (FIRE): 

contract  of  insurers  to  reinstate  is  unconditional  after  election  made,  528. 

effect  of,  as  between  landlord  and  tenant,  531. 

implies  condition  that  property  is  correctly  described,  658. 

insured  dead  when  policy  issued,  612,  n.  70. 

war,  effect  of  prevention  of  sending  of  notice  of  law  by,  525,  n.  6. 

when  property  destroyed  pending  a  contract  of  sale,  523,  n.  15. 

INSURANCE  (LIFE): 

duty  of  disclosure  by  assured,  657. 

recovery  by  beneficiary,  243,  n.  26;  244;  246;  251;  273,  n.  54. 
stipulation  that  policy  shall  be  incontestable  after  two  years,  289,  n.  83. 
unlawfulness  of,  does  not  prevent  insurer  from  recovering  money  paid  to 
fraudulent  beneficiary,  499,  n.  58. 

INSURANCE  (MARINE) : 

misrepresentation  or  non-disclosure,  material,  renders  policy  voidable,  656. 
policy,  common  form,  result  of  series  of  decisions  and  of  long  recognized 
customs,  319. 

delivery  of,  by  underwriters,  797. 

insurance  must  be  expressed  in,  183. 

stamped,  required  by  statute,  795,  798. 
seamen's  wages  not  insurable  at  common  law,  463. 
"  slip  "  recognized  for  collateral  purposes,  795. 

rights  of  parties  determined  at  date  of,  796. 
vessel  lost  when  policy  issued,  612,  n.  71. 
voyage  illegal  to  knowledge  of  owner:  insurance  void,  489. 

INTEREST: 

excessive,  as  indicating  a  "  catching  bargain,"  760. 

payment  of,  under  compulsion  implies  no  promise  to  pay  debt,  778. 


956  •       INDEX. 

INTERPRETATION : 

ambiguous  terms  construed  by  conduct  of  parties,  572. 
construction  distinguished  from,  317. 

general  intention  prevails  over  particular  terms,  317;  320. 
mutual  promises :  interpretation  as  regards  order  of  performance,  320. 
necessity  of,  307. 
of  contracts,  rules,  46. 
promise  in  general,  308. 
terms  used  in  special  sense,  313. 
And  see  MISTAKE. 

JUDGMENT: 

is  not  a  contract,  157,  n.  1. 

merger  of  simple  contract  by,  874. 

res  judicata,  876. 

unsatisfied  against  agent  bars  suit  against  undisclosed  principal,  116 

KNOWLEDGE: 

how  far  material  on  question  of  unlawfulness  of  agreement,  485;  494;  514. 
means  of,  as  affecting  right  to  rescind  contract  for  misrepresentation,  693. 
And  see  NOTICE. 

LACHES.    See  ACQUIESCENCE. 

LAND: 

Frauds,  Statute  of,  as  to  sale  of  interest  in,  172 ;  783. 
restitution  of,  for  grantee's  breach  of  contract,  335. 
what  covenants  run  with,  298. 
And  see  SALE  OF  LAND. 

LANDLORD  AND  TENANT: 

covenant,  no  action  on,  where  premises  leased  for  unlawful  purpose,  487. 
covenants  running  with  tenancy  on  reversion,  298. 
fire,  premises  destroyed  by,  531. 
Frauds,  Statute  of,  as  to  lease,  174. 
infant,  lease  of,  at  common  law,  voidable,  62. 

statutory  powers  to  make  and  renew  leases,  81. 
lease  for  lives,  effect  of  contract  for  sale,  617. 

Frauds,  Statute  of,  as  to,  174. 

of  premises  for  unlawful  purpose,  no  action  on  covenants,  487. 
lessor  not  bound  to  inform  of  state  of  premises,  673. 

possession,  lessor  cannot  resume,  on  discovering  unlawful  purpose  of  les- 
see, 487. 

but  may  rescind  contract  where  possession  has  not  been  delivered, 
semble,  487. 
rent   not   recoverable  where  landlord  intended   premises   should  be   used 
unlawfully,  487. 

payable  though  premises  accidentally  destroyed,  530. 


INDEX.  957 

LANDLORD    AND    TENANT  —  Continued : 

repair,  effect  of  covenant  to,  when  building  destroyed,  533. 

rescission  of  contract  for  lease  where  possession  not  actually  delivered,  487. 

statutes  affecting  contracts  between,  911. 

LAW  MERCHANT: 

not  invariable,  293. 

peculiarities  of,  as  to  negotiable  instruments,  290. 

LEASE.    See  LANDLORD  AND  TENANT. 

LEGACY:    sale  of,  for  inadequate  consideration,  757,  n.  57. 

LEGISLATION:     agreement  for  corrupt  influence  on,  void,  434. 

LEX  LOCI.     See  CONFLICT  OF  LAWS. 

LICENSED  PREMISES:    effect  of  omission  to  paint  seller's  name  on,  403. 

LICENSING  ACTS:    attempts  to  evade,  403. 

LIEN:    seller's  lien  revives  after  expiration  of  credit,  324,  n.  8. 

LIMITATION,  STATUTES  OF: 

acknowledgment  of  barred  debts,  184;  201;  777. 

operates  as  new  promise  under  statute  of  James  I.,  777. 

otherwise  if  specialty  debt  under  statute  of  Will.  4,  779. 

revives  right  of  action,  777. 

writing  required,  778. 
applied  according  to  lex  fori  not  lex  contractus,  779. 
creditor  may  set  up,  786,  u.  23. 
debts  not  extinguished,  774. 

equity,  extent  to  which  statute  applies  in,  774,  n.  1. 
executor  may  pay  barred  debt  of  testator,  776. 
French,  for  setting  aside  contract  for  fraud,  724. 
married   woman,   promise   or   acknowledgment  by,   cannot   revive   barred 

debt,  90. 
payment  by  debtor  as  reviving  debt,  778,  n.  11. 

without  particular  directions;  appropriation  to  satisfy  barred  debt, 
775. 
promise  to  pay  debt  of  another  when  barred  by,  267. 
Real  Property  Limitation  Act  bars  right  as  well  as  remedy,  779. 
remedy  rather  than  right  barred  by,  780,  n.  14;  781. 
securities  not  lost  because  debt  barred  by,  775. 
separate  estate  of  married  woman  protected  by,  895. 
set-off,  barred  debt  cannot  be,  776. 

but  statute  must  be  pleaded  in  reply  to  defence  of,  776,  n.  (p),  8. 
specialty  debt,  acknowledgment  of,  under  3  &  4  Will.  4  must  be  founded 
on  original  obligation  alone,  779. 

LIQUIDATED  DAMAGES:    distinguished  from  penalty,  633. 


958  INDEX. 

LONDON: 

custom  of,  as  to  infant  apprentice,  81. 

as  to  married  women  trading  alone,  91. 

LUNATIC: 

champerty,  rules  as  to,  proceedings  in  lunacy  not  within,  460. 
contracts  in  lucid  intervals  good,  98. 

of,  in  general  voidable,  not  void,  100. 

knowledge  of  other  party  to  contract,    100. 

prior  to  lunacy,  100. 

restoration  of  consideration  when  contract  avoided,  101,  n.  52. 
delusions,   partial,   compatible   with   capacity   for    contracting,    103. 
equity,  adopts  rule  of  law  as  to  acts  of,  100,  n.  (»). 
marriage  of,  void,  98. 
necessaries,  liability  for,  99. 
partner:   ground  for  dissolution  only,  103. 
revocation  of  offer  by  insanity,  42. 

MAINTENANCE: 

definition  of,  449. 

equitable  assignment,  attempt  to  oppose  on  ground  of,  278. 

includes  champerty,  449. 

kinship  or  affinity  will  justify,  461. 

statute  of  Hen.  8  against  buying  pretended  titles,  457. 

what  dealings  are  within  the  statute,  458. 
unlawful  intention  essential  to,  460. 
what  amounts  to,  451. 

MAJORITY:    abuse  of  corporate  powers  by,  896. 

MALUM  PROHIBITUM  and  malum  in  se,  399. 

MARITAL  RIGHT:    settlements  in  fraud  of,  392. 

MARKET: 

doctrine  of,  does  not  prevail  in  America,  567,  n.  6. 
market  overt,  sale  of  horses  in,  183. 

MARGIN:    purchases  on,  not  necessarily  wagers,  408,  n.  63. 

MARRIAGE: 

action  on  contract  to  marry  where  defendant  already  married,  495,  n.  55. 
agreements  in  consideration  of,   172;  231. 
contract  to  marry  not  uberrima?  fidei,  677. 

but  creates  a  fiduciary  relation,  735,  n.   16. 

executor  not  liable  on,   546,  n.  (y) . 

repudiation  of,  365. 

whether  within  Statute  of  Frauds,  172;   178,  n.  19. 
fraud,  marriage  not  avoided  by,  677;   684. 
illness  unfitting  for,  avoids  contract  to  marry,  546;  547,  n.  33. 


INDEX.  959 

MARRIAGE  —  Continued : 
infants,  of,  64. 

promise  of  marriage,  infant  may  sue  but  is  not  liable  on,  65. 
informal  agreements   in  consideration  of,  how  far  made  valid  by  post- 
nuptial settlement,  792. 
invalid  by  law  of  party's  domieil,  whether  valid  in  England,  397. 
lunatics,  marriage  of,  void,  98. 

polygamous,  not  recognized  by  English  Divorce  Court,  509. 
prohibited  degrees,  marriage  within,  void,  395. 
restraint  of,  agreements  in,  464. 

conditions  in,  466. 
Royal  Marriage  Act,  397. 
settlement  in  fraud  of  marital  right,  392. 

not  affected  by  wife's  non-disclosure  of  previous  misconduct,  678. 

post-nuptial,  792. 
warranty  of  capacity  implied,   120,  n.  (f). 
whether  a  formal  contract,   158. 

MARRIED  WOMEN: 

agreement  conditioned  on  divorce  void,  444,  n.  7. 
agreement  to  perform  marital  duties  void,  444,  n.  7. 
agreement  to  support  husband  void,  444,  n.  7. 
chose  in  action,  acquisition  of,  89. 
contract  by,  void  at  common  law,  87. 

debt,  barred,  renewed  promise  by  married  woman  cannot  revive,  90. 
debts,  ante-nuptial,  husband's  liability  for,  98. 
dower,  effect  of  refusal  of  wife  of  vendor  to  release,  666,  n.  35. 
equitable  enforcement  of  contracts  in  cases  not  within  Act,  97. 
estoppel,  interests  of  married  women  may  be  bound  by,  88,  n.  34;  795. 
incapacity,  exceptions  to :  contracts  with  husband  as  to  separation,  92. 
Queen  Consort,  90. 
trader,  custom  of  London,  91. 

effect  of  Act  of  1882  thereon,  97,  n.   (r). 
wife  of  alien  not  resident  in  United  Kingdom,  91. 
person  civilly  dead,  90. 
statutory  exceptions,  93. 
Married  Women's  Property  Act,  1882,  94;  393. 
promise  after  discoverture  to  pay  debt  incurred  as,  199,  n.  12. 
restraint  on  anticipation,  96. 
separate  estate,  equitable  doctrine  of,  94;   886. 

property,  contract  made  as  to,  binds  after-acquired  property,  96. 
is  liable  for  ante-nuptial  debts,  96. 
married  woman  may  contract  and  be  made  bankrupt  in  respect 

of,  87;  95. 
what  is,  by  Act  of  1882,  93. 
settlement  of,  in  fraud  of  marital  right,  392. 
undue  influence,  presumption  of,  in  dealings  with  husband,  735. 
And  see  SEPARATE  ESTATE. 


960  INDEX. 

MASTER  AND  SERVANT.    See  SERVICE. 

MAXIMS: 

expressio  unius  est  exelusio  alterius,  624. 

ignorantia  iuris  haud  exousat,  616. 

in  pari  delicto  potior  est  condicio  defendentis,  496. 

locus  regit  actum,  513. 

mala  grammatica  non  vitiat  chartam,  317. 

non  videntur  qui  errant  consentire,  564. 

nulla  voluntas  errantis  est,  569. 

ut  res  magis  valeat  quam  pereat,  122. 

MEDICAL  PRACTITIONERS: 

conditions  precedent  to  recovering  charges,  801. 

Medical  Act,  regulations  of,  as  to  right  of  remuneration,  802. 

presumption  of  influence  in  gifts,  &c,  from  patients,  735. 

MEMORANDUM.     See  FRAUDS,  STATUTE  OF. 
MERCANTILE  AGENCY:    false  statements  to,  699,  n.  17. 

MERGER: 

discharge  of  contract  by,  874. 
distinguished  from  res  judicata,  876. 

MINES: 

construction  of  unqualified  covenants  to  work,  541. 
non-disclosure  of,  by  purchaser  of  land,  683,  n.  5.5. 

MISREPRESENTATION.    See  FRAUD  AND  MISREPRESENTATION. 

MISTAKE: 

alteration  by,   853. 

ambiguous  terms  of   contract,   599;    601. 

agreement  that  architect's  certificate  shall  be  valid  in  spite  of,  289,  n.  83. 

annuity  sale  of,  when  life  has  expired,  613. 

assignment  of  contracts,  mistake  as  affecting,  594. 

bankruptcy,  money  paid  to  trustee  in,  repayment  of,   580. 

buyer,   error  of,  not  induced  by  seller,  inoperative,  609. 

classification  of  cases  of,  562. 

clerical   errors,   622. 

compromise  of   action  arranged  by,   603. 

disputed  rights,   577. 
condition   of  title,   when :    purchase   for  value  without  notice,   566. 
consent  order,  mistake  in,   645. 

true,  mistake  in  expressing,  574;  621. 
mistake  as  excluding,   581. 
construction,   mistake   in,  by  parties,   does  not  alter  contract,   572. 
does  not  of  itself  affect  validity  of  contract,  564. 

or  avoid  liability  of  party  acting  under  mistake,  564. 


INDEX.  901 

MISTAKE  —  Continued : 

election,  to  adopt  void  agreement,  621. 
error  as  to  existence  of  subject-matter,  611. 
material  attribute  thereof,  606. 
nature  of  transaction,  583. 

its  legal  character,  589. 
person  of  other  party,  590. 
subject-matter  of  contract,  597;   611. 
validity  of  obligation,   C07. 
fundamental,  583;   619. 

Bracton's  treatment  of,  Note  H.,  913. 
must  be  common  to  avoid  contract,  608. 
produced   by   misrepresentation,   607;    619. 
existing  rights,  mistake  does  not  as  a  rule  alter,  570. 
expression  of  consent,  error  in,  621. 
fact,  mistake  of,  574. 
fraud,   mistake  distinguished  from,   562. 
general  words,  restriction  of,  623. 
goods,  misdelivery  of,  570. 
judicial  officers,  exceptional  rules  as  to,  566. 
kind,  error  as  to,  603. 
land,  sale  of:   parcels  included  by  mistake,  600. 

distinction  of  cases  of  misdescription  in  sales  of,  611. 
law,  mistake  of,  572;   616;   633,  n.  97. 
life  estate,  sale  of,  when  life  has  expired,  614;   617. 
misdescription  in  sales  of  land,  611;  664,  n.  32. 
misrepresentation,  fundamental  error  produced  by,  607;   619. 
money  paid  by,  recovery  back  of,  579. 
obvious,  correction  of,  by  ordinary  construction,   317. 
payment  to  wrong  person,  570. 
under  mistake  of  fact,  574. 
person,  of  other  party,  error  as  to,  590. 
price,  error  as  to,  605. 

promise  to  pay  barred  debt  in  ignorance  of  the  bar,  778,  n.  11. 
purchase  of  property  really  one's  own,   526;    615. 
quality,   error   as  to,   606. 
quantity,  error  as  to,  604;   610,  n.  68. 
read,  effect  of  failure  to,  583;   585;   589,  n.  37. 

effect  of  inability  to,  584. 
rectification  of  instruments  on  ground  of,  576;  636.     And  see  RECTIFI- 
CATION, 
remedies,  of  party  to  void  agreement,  620. 
repugnancy,  623. 
rights,  renunciation  of,  574;  577. 
sale  by  sample,  mistake  in,  619. 

services  rendered  under  mistake  give  rise  to  no  obligation,  11,  n.  8. 
settlements,  rectification  of  mistakes  in,  517. 
61 


962  INDEX. 

MISTAKE  —  Continued : 

shares,  purchase  of,  through  mistake  as  to  identity,   592,  u.    {f);    598, 
n.   51;   602. 
purchase  of,  after  winding  up,  613;  618. 
error  as  to  nature  and  objects  of  company,  602. 
specific   performance,  mistake  in  expression  of  contract  a  bar   to,   602; 

633. 
wills,  mistake  in,  644;  914. 

MONEY-LENDERS  ACT,  1900:    763;  911. 

MONEY  PAID: 

bankruptcy,  money  paid  to  trustee  in,  under  mistake  of  law,  579. 
compulsion,  money  paid  under,  recoverable,  730. 

deposit,  money  pr.id  as,  on  purchase  of  land,  when  recoverable,  542;  715. 
infant,  money  paid  by,  under  voidable  contract,  67,  n.   14;   68. 

money   paid   to,   for   purchase   of   necessaries   recoverable   in   equity, 
80,  n.  24. 
informal  agreement  within  section  4  of  Statute  of  Frauds,  money  paid 

under,  not  recoverable,  785. 
lease,  premium  paid  for,  when  recoverable  by  lessee,  715. 
mistake,  money  paid  by,  when  recoverable  back,  579. 
public  officer  to  induce  him  to  do  his  duty  may  be  recovered,  731. 
recovery  of,  when  contract  repudiated,  334. 

Statute  of  Frauds,  money  paid  under  agreemant  unenforceable  under,  786. 
Tippling  Act,  money  paid  for  debts  within,  not  recoverable,  807. 
unlawful  agreement,  money  paid  under,  when  it  can  be  recovered  back, 

496. 
wrong  person,  payment  to,  570. 

MONEY  RECEIVED: 

action  for,  as  remedy  to  enforce  trust,  238. 
lies  against  corporation,   167. 

MORTGAGE: 

alteration  of  mortgage  note  or  bond,  870. 

assumption  of,  260. 

distinguished  from  sale,  631. 

purchaser  of  mortgage  not  entitled  to,  292,  n.  84. 

sale  treated  as,  if  such  is  true  intention,  629. 

of  equity  of  redemption  by  mortgagor  to  mortgagee,  630,  n.  93. 
treatment  of,  in  equity,  629. 

NECESSARIES: 

definition  of,  in  Sale  of  Goods  Act,  1893,  74. 
infant,  apparent  means  of  buyer  not  materia],  78. 
liability  for,  60;   66,  n.  11;   74;   76. 
is  on   simple   contract  only,   80. 
money  paid  to,  for  purchase  of,  recoverable  in  equity,  80,  n.  24. 


INDEX.  963 

NECESSARIES  —  Continued : 
infant  —  Continued : 

negotiable  instrument  given  for,  80,  n.  25. 
supply  from  other  sources,  77. 
what  are,  not  confined  to  goods,  78. 

question  of  mixed  fact  and  law,  76. 
lunatic,  liability  for,  99. 

NEGLIGENCE: 

agent  must  not  profit  by  his  own,  391. 

of  corporation  answerable  for  as  well  as  natural  person,  129. 
does  not  vitiate  title  of  bond,  fide  holder  of  negotiable  paper,  569. 
estoppel  by,  extent  of,  585,  n.  30;  586,  n.   (I),  (m). 
misrepresentation,  negligence  does  not  exclude  right  to  rescind  for,  693. 

NEGOTIABLE  INSTRUMENT: 

acceptance  by  parol,  25,  n.  24. 

agent,  acceptance  by:  principal  bound  though  not  in  principal's  name,  110. 

alteration  of,  866. 

assignment  of  altered,  866. 

bond  fide  assignee,  rights  of,  291. 

bonds,  foreign  government,  treated  as  negotiable  by  English  law,  293. 

cheque  sent  as  satisfaction  of  disputed  claim,  838. 

corporation,  when  bound  by,  143. 

debentures  are,  293. 

discharge  of,  by  cancellation   and  surrender,   844. 

by  parol  exoneration,  819. 
estoppel,  negotiability  by,  294. 
how  instruments  cease  to  be  negotiable,  294. 
indorsement,  forged,  holder  cannot  make  title  through,  292;   569. 

in  error  as  to  nature  of  instrument  not  binding,  584. 
infants',  voidable,  66;   80,  n.  25. 
legal  validity  of,  error  as  to,  607,  n.  65. 
letter  of  credit,  24. 

married  women's,   889,  n.   7;    891,  n.   8. 
must  be  in  writing,  168. 

negligence  does  not  vitiate  title  of  holder  of,  569. 
office,  bills  or  notes  may  be  payable  to  holder  of,  236. 
partnership,  when  firm  name  is  that  of  individual  partner,  110,  n.  74. 
peculiar  qualities  of,  56,  n.  62;  291. 
scrip,  foreign  government,  issued  in  England,  is,  294. 
seal  of  corporation,  whether  equivalent  to  signature,  145;  293. 
signature  by  any  mark  or  designation,  110,  n.  74. 

by  officers  and  their  successors,  122. 

by  trustees,  122,  n.  95. 
warranties  implied  on  sale  of,  654,  n.  5. 
what  can  be  admitted  as,  293. 

And  see  BILL  OF  EXCHANGE. 


964  INDEX. 

NON-DISCLOSURE.    See  FRAUD  AND  MISREPRESENTATION. 

NON- PERFORMANCE : 

by  promisor  a  good  defence  against  beneficiary,  272. 
as  defence  in  a  bilateral  contract,  323,  n.  8. 

NOTICE: 

assignee  of  married  woman's  separate  property  with,  bound  by  engage- 
ment affecting  it,  891. 
assignment  of  contract,  notice  to  debtor,  222;   281. 
of  fraud,  what  constitutes,  722. 
purchaser  for  value  without,  305;  567;  568;  715. 

And    see    KNOWLEDGE;    PURCHASE    FOR    VALUE    WITHOUT 
NOTICE. 

NOVATION: 

assent  to,  not  presumed  unless  there  be  distinct  request  by  debtor,  227. 

its  nature  explained,  227. 

promise  for  benefit  of  third  person  treated  as,  270. 

NUDUM  PACTUM: 

change  in  the  meaning  of  the  term  in  English  use,  903. 
in  "  Doctor  and  Student,"  190. 
And  see  CONSIDERATION. 

NUISANCE:    agreement  to  complete,  illegal,  374. 

OFFENCE: 

agreement  to  commit,  void,  374. 
compounding  of,  440. 

OFFER.      See  PROPOSAL. 

OFFICE: 

appointments  to,  by  corporation  must  be  under  seal,  165. 
corporate  agreement  to  sell,  void,  376,  n.  6;   439,  n.  96. 
negotiable  instruments  payable  to  holder  of,  236. 
public,  sale  of,  unlawful,  438. 

Statutes  against  sale  of,  911. 

OPTIONS: 

are  not  wagers,  408,  n.  63. 

when  are  merely  offers,  28,  n.  27. 

PAR  DELICTUM: 

doctrine  of,  496. 

qualifications  of  and  exceptions  to  it,  496;  503. 

PARCELS:    mistake  as  to,  in  sales  of  land,  600. 

PAROL  VARIATION:    of  written  agreement,  rule  against,  310. 


INDEX.  965 

PART  PERFORMANCE: 

applicable  to  corporations,  147. 
equitable  doctrine  of,  790. 

PARTIES: 

to  action,  on  contract  made  by  agent,  107. 
contract,  rules  as  to,  221. 
And  see  BENEFICIARY. 

PARTNERSHIP: 

assumption  of  debts  of,  as  affecting  creditors'  rights,  266. 
carried  on  under  individual  name,   110,  n.  74. 
company  law,  rules  of,  analogous  to  law  of,  134. 

contract  of  shareholders  a  modified  contract  of,  134. 
contract  of,  dealing  in  land  is  not  within  Statute  of  Frauds,  174,  n.  15. 
death  of  members  of,  dissolves  contract  of  employment,  543,  n.  29. 
dissolution,  deed  of,  release  in,  cannot  be  disputed  by  party  after  concern 

completely  wound  up,  715. 
duty  of  disclosure  in,  683,  n.  55. 
illegal,  accounting  in  case  of,  500,  n.  60. 
infant  partner,  position  of,  63;  69. 
insanity  of  partner,   103. 

limitation  of  corporate  powers  by  law  of,  896. 
married  woman  as  member  of,  892,  n.  8. 
misrepresentation  in  negotiation  of,  67d. 
rights  of  dissenting  partners,   134. 
shares  in,  transferable  at  common  law,  296. 

PATENT:    license  under  supposed,  as  consideration,  194. 

PENALTY: 

and  liquidated  damages,  632. 

imports   prohibition,    399. 

imposition  of,  by  statute,  implies  prohibition,  399. 

relief  in  equity  against,  629. 

PENSIONS:    cannot  be  assigned,  440. 

PERFORMANCE: 

of  mutual  promises,  320. 

part,  in  equity,  790. 

prospective  default  in,  effect  of,  323,  n.  8;  354. 

whether  time  of  essence  in,  627. 

PERSONAL  CONTRACTS: 

implied  condition  in,  as  to  life  or  health  of  party  continuing,  543. 
not  assignable,  594. 

PERSONATION:    effect  of,  592;  718. 


966  INDEX. 

PHYSICIANS: 

presumption  of  undue  influence  of,  in  transactions  with  patients,  735. 
rights  of,  as  to  payment  for  services  at  common  law,  801. 
under  Medical  Act,  801. 

PLEADING: 

in  case  of  alteration,  872. 
fraud,  725,  n.  58. 
repudiation,  353. 

POSSESSION:     obtained   by    fraud   does   not   enable   possessor 'to    transfer 
title,  717. 

POST: 

communication  of  acceptance  by  36. 

delivery  by  error  of  post  after  notice  to  withdraw  letter  is  ineffectual,  571. 

POST    OFFICE:     whether    common    agent   of    parties    in    correspondence    by 
letter,  38;  571. 

POWER  OF  ATTORNEY:    infant's,  66,  n.  11. 
lunatic's,  152. 

PREVENTION:     breach  justifies  refusal  to  perform  by  other  party  though 
not  amounting  to,  352,  n.  79. 

PRICE:  error  as  to,  605. 

PRINCIPAL  AND  AGENT: 

principal,  agent's  authority  determined  by  death  of,  106. 

agent  not  liable  where  exclusive  credit  given  to,  117. 

liability  on  contracts  made  by-  agent,   113. 

may  recover  from  one  who  corrupts  his  agent,  392,  n.  40. 

representations  of  agent,  when  answerable  for,  700. 

right  to  countermand  unexecuted  authority,  502. 

undisclosed,  rights  of,  113. 
professed  agent:  when  he  may  declare  himself  as  real  principal,  123. 
sub-agent  not  agent  of  principal,  596. 

And  see  AGENT. 

PRINCIPAL  AND  SURETY.    See  SURETY. 

PROMISE: 

as  consideration,  186;  201. 

by  advertisement,  nature  and  limits  of,  13;  23. 

•deed,  binding  without  acceptance  in  English  law,  6,  n.  3. 
definition  of,  2;  6. 
effect  and  interpretation  of,  308. 
express,  tacit,  implied,  9. 

founded  on  moral  duty,  not  binding  without  valuable  consideration,  198. 
illusory,  49. 


INDEX.  967 

PROMISE  —  Continued : 

inferred  in  fact  or  implied  by  law,   10. 

must  be  certain,  203. 

mutual,  201. 

past  services  rendered  on  request,  promise  to  pay  for,  199. 

tacit   and   fictitious,   distinction   between,    10. 

to  perform  existing  duty,  203. 

several,  whether  one  can  sue  on,  235. 
See  ACCEPTANCE;  AGREEMENT. 

PROMISES: 

dependent  and  independent,  321. 

in  same  instrument,  where  some  lawful  and  some  not,  482. 

mutual,  order  of  performance,  320. 

PROMOTERS: 

agreements  of,  when  binding  on  company,  225. 

fiduciary  position  of,  as  regards  company,  389,  n.  33;  676;  736,  n.  (i). 

misrepresentation  in  contracts  of,  674. 

statements  of,  may  become  statements  of  company,  702. 

PROSPECTUS.    See  COMPANY;  PROMOTERS. 

PROOF: 

archaic  modes  of,  150. 

transition  from  formal  to  informal  modes  in  English  law,  149. 
writing,  proof  by,  origin  of,  150. 
And  see  EVIDENCE. 

PROPOSAL: 

acceptance  will  not  relate  back  to  date  of,  41. 
addressed  to  all  to  whom  it  comes,  13. 
bidder  at  auction  makes,  15. 
by  advertisement,  13,  23. 
conditions  of,  as  to  time,  etc.,  29;  34,  n.  39. 
cross-proposals  do  not  make  contract,  5,  n.  2. 
death  or  insanity  revokes,  42. 
express  or  tacit,  9. 
generally,  element  of  contract,  1 ;  5. 
implied,  10. 

invitation  to  make  offers,  distinguished,  15;  19. 
joking,  not  basis  for  contract,  3,  n.  1. 
lapse  of,  28,  n.  29;  29. 

rejected  by  counter  proposal,  30,  u..  34 ;  43,  n.  47. 

revocation  of,  by  death  of  proposer  before  acceptance  (under  I.  C.  A.  only 
if  known  to  the  other  party),  42;  106,  n.  61. 

after  part  performance,  34,  n.  39. 

must  be  communicated,  30. 

when  it  may  be  made,  25. 


968  INDEX. 

PROPOSAL  —  Continued: 

sealed,  is  irrevocable,  28,  n.  28. 

time  table  held  to  be,  15. 

unknown,  cannot  be  accepted,  14,  n.  12. 

written,  accepted  by  parol  satisfies  Statute  of  Frauds,  180. 

PROSECUTION:  agreements  to  stifle,  440. 
PUBLIC  OFFICE.    See  OFFICE. 

PUBLIC  POLICY: 

agreements  contrary  to,  421. 

to  be  sued -in  specified  court,  446,  n.  11. 

aiding  hostilities  against  friendly  nations,  430. 

arbitration,  agreements  for  reference  to,  445. 

auctions,  agreement  to  refrain  from  bidding  at,  470,  n.  36 

company:   corporate  powers  must  not  be  used  to  defeat  purposes  of  in- 
corporation, 138. 

compounding  offences,  440. 

corrupt  or  improper  influence,  agreements  for,  434. 

custody  of  children,  agreements  as  to,  461. 

divorce,  agreements  conditioned  on,  444,  n.  7. 

Egerton  v.  Earl  Brownlow,  opinions  in  and  effect  of,  423. 

foreign  revenue  laws  as  to,  431. 

forged  signature,  adoption  of,  443;   856,  n.  18. 

heir  or  devisee,  conveyance  by,  459 ;   755. 

individual  action,  agreements  limiting  freedom  of,  464. 

maintenance  and  champerty,  449. 

marriage,  agreements   in  restraint  of,  464. 

salaries,  assignment  of,  439. 

sale  of  offices,  376,  u.  6;  438. 

State,  agreements  against  interests  of,  where  sued  upon,  cannot  be  sup- 
ported by  any  local  law,  506;  509. 

stifling  prosecution,  440. 

testator,  agreements  to  influence,  462. 

trade,  restraint  of   (which  see),  467. 

trading  with  enemies,  426. 

wagers,  doctrine  extended  in  order  to  discourage,  421. 

winding-up,  secret  agreement  as  to  conduct  of,  445. 

witnesses,  void  agreements  with,  441,  n.  1 ;  445,  n.  9. 
And  see  UNLAWFUL  AGREEMENTS. 

PUBLICATIONS:   immoral,  &c,  cannot  be  ground  of  civil  rights,  419. 

PUBLISHER:  contract  of,  with  author,  not  assignable,  596. 

PURCHASE  FOR  VALUE  WITHOUT  NOTICE: 

attaching  creditor  is  not,  716,  n.  43. 
from  fraudulent  buyer,  716. 


INDEX.  969 

PURCHASE  FOR  VALUE  WITHOUT  NOTICE  —  Continued: 
in  case  of  mistake,  568. 
no  rescission  against,  715. 

purchaser  for  antecedent  debt  is  not,  716,  n.  43. 
transfer  as  security  is  not,  717,  n.  43. 

QUASI-CONTRACT: 

corporations  liable  upon,  167.     And  see  ULTRA  VIRES. 

distinguished  from  tacit  but  real  contract,  11,  n.  8;  12. 

fictitious  contract  in  English  law,  12. 

infant's  liability  for  necessaries  is  based  on,  80,  n.  24. 

infant  may  recover  on,  for  services,  67,  n.  14. 

in  Indian  Contract  Act,  dealt  with  separately,  12. 

term  now  recognized  in  England,  13. 

QUID  PRO  QUO: 

"'  consideration  "  analogous  to,  190. 

in  action  of  debt:  apparent  benefit  to  promisor  not  material,  192. 

medieval  use  of  term,  188. 

RAILROAD:    agreement  to  lay,  through  a  town,  when  void,  377,  n.  6. 

RAILWAY  COMPANY: 

liability  of,  as  to  correctness  of  time-table,  15. 

agreement  to  give  sleeping-car  company  exclusive  right  is  valid,  469,  n.  36. 

agreement  to  give  telegraph  company  exclusive  right  is  void,  469,  n.  36. 

RATIFICATION: 

must  be  within  reasonable  time,  107. 

and  by  one  who  might  have  been  originally  bound,  121. 
of  act  of  unauthorized  person  after  expiration  of  time  limited,  107. 

alteration,  856. 

agent's  acts,  relates  back,  107. 

infant's  contract:  effect  of  Infants'  Relief  Act,  70;  807. 

irregular  acts  by  assent  of  shareholders,  137;  900. 

payment  by  a  third  person,  842. 

And  see  ACQUIESCENCE;  ADOPTION. 

RECORD: 

contracts  of,  157. 

discharge  of,  by  accord  and  satisfaction,  836. 
merger  by,  874. 

RECTIFICATION  OF  INSTRUMENTS: 
actions  for,  procedure  in,  645. 

common  intention  of  parties  different  from  expressed  intention  must  be 
shown,  576;   639. 
or  fraud  of  defendant  and  mistake  of  plaintiff,  639,  n.  6. 
proof  of  one  party's  intention  will  not  do,  640. 
possible  exception  where  one  party  acts  as  other's  agent,  641. 


970  INDEX. 

RECTIFICATION     OF     INSTRUMENTS  —  Continued : 
conveyance,  new,  not  requh-ed,  645. 
disentailing  deeds,  644. 
jurisdiction  of  the  Court  in,  636. 
option  to  rectify  or  set  aside  in  certain  cases,  644. 
oral  evidence,  how  far  admissible,  637. 
proof  beyond  reasonable  doubt  is  necessary,  640,  n.  7. 
settlements,  at  whose  suit  rectification  granted,  643. 

reformation  of,  according  to  previous  articles,  642. 

special  rules  as  to  this,  642. 
voluntary,  when  rectification  sought  by  settlor  alone,  644. 
specific  performance  in  suit  for,  633,  n.  98. 
Statute  of  Frauds  as  affecting,  633,  n.  98;  635. 
wills,  no  jurisdiction  in  equity  to  rectify,  644;  914. 

REFORMATION  OF  INSTRUMENTS.     See  RECTIFICATION  OF  INSTRU- 
MENTS. 

REJECTION  OF  PROPOSAL:  counter  proposal  is,  30,  n.  34. 

RELEASE: 

conditional,  814. 

contract  for  the  benefit  of  third  person,  273. 
covenant  to  forbear  as,  813. 
discharge  of  contract  by,  812. 

in  deed  of  dissolution,  cannot  be  disputed  by  party  after  concern  com- 
pletely wound  up,  715. 
of  future  actions,  358,  n.  98 
restricted  construction  of,  625;   815. 
seal,  essential  to  voluntary,  813. 

REPRESENTATION: 

agent:  representation  of,  when  principal  liable  for,  699. 

representation  of  authority,  119. 
ambiguous  statements,  692. 
as  term  of  contract,  649. 
corporation's  officers',  137,  n.  14. 
fraudulent,  examples  of,  680. 

or  innocent,  647. 
future,  representation  of  the,   operates  as  contract,  if  at  all,   650. 
inducing  contract,  693;   697,  n.   13;   703,  n.  23. 
infant:  representation  of  full  age,  82,  n.  27;  84. 

"  making  representations  good,"  supposed  equitable  doctrine  of,  649 ;  915. 
married  woman:    representation  of  diseoverture  by,   87. 
materiality  of,  is  question  of  law,  697,  n.  14. 
meaning  of  the  word,  221. 


INDEX.  971 

REPRESENTATION  —  Continued : 

must  be  made  by  party  to  contract,  698. 
and  as  part  of  same  transaction,  703. 
opinion,  statements  of  matter  of,  G91. 
public,   relied  on  by  individual,  699,  n.    17;    703. 

rescission  of  contract:    conditions  which  plaintiff  must  satisfy  in  action 
for,  687. 
representation  must  generally  be  of  matter  of  fact,  688. 
not  of  mere  motive  or  intention,  689. 
must  have,  in   fact,  induced  the  contract,  693. 
silence,  when  equivalent  to,  680,  683. 
third  person's,   immaterial,  698. 
warranty  and  condition,  representations  amounting  to,  652. 

And  see  FRAUD  AND  MISREPRESENTATION;  RESCISSION. 

REPUDIATION  OF  CONTRACT: 

breach  without,  justifies  rescission,  339. 

damages  for,  349;  362;  369. 

does  not  terminate  contract,  351. 

meaning  of,  333. 

remedies  for,  333;   347. 

rescission  in  case  of  chattels,  335. 

land,   335. 

money  paid,  334. 

sealed  contracts,  344. 

services,   336. 

requisites  for,  339. 

where  no  performance  rendered,  338. 
right  of  injured  party  to  continue  performance,  348. 
time  when  action  accrues  for  355. 

case  of  bond  distinguished,  356. 

case  of  contract  to  marry  distinguished,  365. 
to  take  shares.    See  SHAREHOLDER. 
without  breach  of  contract  justifies  rescission,  339. 

RESCISSION: 

acts  treating  contract  as  subsisting,  707. 
breach  of  contract  justifies,   339. 
conduct  of  party  misled,  585. 

consideration,  when  necessary  for  discharge  of  contract  by,  815. 
contract  for  the  benefit  of  a  third  person,  273. 
contract  subsequent  as  rescinding  earlier,  204,  n.  15. 
discharge  of  contracts  by,  212;  815. 

election  to  affirm  or  rescind,  how  determined,  346;   707. 
rescind  must  be  communicated,  345;   710. 
what  communication  sufficient,  710. 
fraud,  option  to  affirm    or  rescind  contract  for,  706. 


972  index. 

RESCISSION  —  Continued : 

misrepresentation,   rescission  of  contract  for,  687. 
representation  must  generally  be   of  fact,   688. 
not  of  mere  motive  or  intention,  689. 
must  have,  in  fact,  induced  the  contract,  693. 
and  must  be  made  as  part  of  same  transaction,   703. 
materiality  of,  696. 
of  title,  695,  n.  12. 
mistake  of  one  party  may  be  ground  for  rescinding,  but  not  for  reform- 
ing instrument,  641,  n.  9. 
ownership,  acts  of,  negativing  right  to  rescind,  714. 

position  of  parties,  change  in:    no  rescission  where  former  position  can- 
not be  restored,  342;  712. 
prevention  of  performance  as  a  ground  for,  550. 
purchaser  for  value,  rescission  not  allowed  against,  715. 
recovery  back  of  money  paid  under  agreement,  715. 
remedy  for  repudiation  when,  334.     See  REPUDIATION. 
representatives,  right  of  rescission  exercisable  by  and  against,  712. 
repudiation  justifies  when,  334. 
restoration  to  former  position  essential,  342;   712. 

right  of,  on  discovering  unlawful  purpose  of  other  contracting  party,  487. 
but  a  completely  executed  transfer  of  property  cannot  be  rescinded, 
488. 
sealed  contracts,  rescission  of,  825. 
shares,  contract  to  take:     shareholder  cannot  rescind  after  winding-up, 

719. 
time,  reasonable,  rescission  must  be  within,   721. 
undue  influence,  rescission  of  contract  for,   767. 
warranty,  breach  of,  as  justifying.  607. 
written  contracts,  rescission  of,   821. 

RESTRAINT  OF  MARRIAGE: 

agreements   void,    465. 
conditions  in,  466. 

RESTRAINT  OF  TRADE: 

agreements  as  to  bidding  at  auction,  470,  n.  36. 

of  parties  to  deal  exclusively  with  each  other,  469,  n.  36 
combination  in  restraint  of  trade,  unlawful,  472. 
common  law  favors  absolute  freedom  of  trade,  472. 
competition,  covenant  making  covenantee  sole  judge  of,  void,  477. 
consideration,  adequacy  of,  not  enquired  into,  475. 

corporation  doing  business  in,  may  recover  on  legal  contracts,  490,  n.  50. 
customers,  covenant  not  to  deal  with,  476. 
distances,  how  measured,  480. 
divisibility  of   contract  in,  483,  n.   39. 
exclusive  service,  contract  for,  must  be  mutual,  481. 
general   principles,  467. 


INDEX.  973 

RESTRAINT  OF  TRADE  —  Continued : 
Indian  Contract  Act  on,  480. 
life,  contract  to  serve  for,  good,  if  mutual,  481. 
limited  restraints  admitted,  475. 
medieval  doctrine  on  restraint  of  trade,  471. 
monopoly,  agreements  tending  to,  feeling  against  in  middle  ages,  471. 

held  void  in  United  States,  468,  n.  36;   474. 
presumption  of  badness  of  covenant:    no  rule  as  to,  477. 
price,  specified,  undertaking  not  to  sell  goods  below,  valid,  476. 
public  policy,  restraint  in  general  opposed  to,  468. 
reasonable,  cases  where  restriction  has  been  held,  478. 

restriction  must  be,  468. 

what  is,  must  be  decided  on  merits  of  each  case,  469. 
and  is  a  question  not  of  fact,  but  of  law,  477. 
restriction  partly  good  and  partly  bad,   477. 
space,  limit  of,  old  common  law  rule  as  to,  now  modified,  475. 
time,  limit  of,  not  necessary  to  validity,  476. 

trade  secret,  contract  not  to  disclose,  may  be  unqualified,  469,  n.  36 ;  476. 
unqualified  restraints  void,  473. 
unreasonable,   eases   where   restriction   held  to  be,   480. 

RETAINER:  of  barred  debt  by  executor,  776. 

RETURN  MAIL:  meaning  of,  as  a  condition  in  offer,  29,  n.  31. 

REVENUE  LAWS,  foreign,  treatment  of,  431. 

REVERSION: 

sale  of:    when  rent  or  covenants  run  with,  298. 

person  in  dependent  position,  present,  rule  as  to  sale  by,  764. 
undervalue,  voidable  for,  under  old  law,  757. 

development  of  the  doctrine,  758. 

its  abrogation  by  31  Vict.  c.  4,  759. 

REVOCATION: 

after  part  performance  of  consideration  for  unilateral  contract,  34,  n.  39. 

communication  of,  30. 

death  of  proposer,  revocation  by,  42;    106,  n.  61. 

insanity  as  ground  for,  42. 

of  general  offer,  20;  23. 

proposal,  when  in  time,  25. 
sealed  proposal  is  ineffectual,  28,  n.  28. 

power  of,  in  voluntary  settlements  as  bearing  upon  validity,  739. 
tacit,  32. 

REWARD: 

offer  of,  13,  n.  12;  21. 
revocation  of  offer  for,  23. 


974  INDEX. 

RIGHT  OF  ACTION: 
discharge  of,  812. 
distinguished  from  defence,  361. 

ROMAN  LAW: 

causa  in,  189. 

classification  of  contracts  in,  Note  E,  902. 

corporations,  treatment  of,  in,  126. 

influence  of,  on  early  English  law  of  contract,  149. 

rescission  in,  346. 

stipulation  in,   150. 

ROYAL  MARRIAGE  ACT,  291. 

SALARIES:  assignment  of,  440. 

SALE: 

of  future  specific  product,  contract  discharged  by  failure  of  produce,  539. 
mere  expectancy,  valid  by  English  law,  otherwise  by  civil  law,  459. 

SALE  BY  AUCTION.    See  AUCTION. 

SALE  OF  GOODS: 

by  description,  652. 

delivery  obtained  by  false  pretences  without  any  contract,  123,  n.  98;  717. 
Frauds,  Statute  of,  as  to,  178. 
fraudulent,  effect  of,  707;   708,  n.  29;  716. 
horses,  sale  of,  in  market  overt,   183. 

infant,  sale  of  goods  to,  not  necessaries,  void  by  Infants'  Relief  Act,  69. 
instalments,  default  in  delivery  of,   327. 
lien  revives,  when  credit  expires,  324,  n.  8. 
mistake,  how  sale  affected  by,  591;   607;   609;  612;   619. 
price  not  recoverable  where  goods  sold  for  unlawful  purpose,  485. 
purchase  by  one  not  meaning  to  pay  is  fraud,  679. 
purchase  of  property  already  one's  own,  526;  615. 
rescission  of,  for  breach  of  contract,  335. 
sample,  sale  by,  619. 
mistake  in,  619. 
time,  whether  of  essence,  628,  n.  88;  629,  n.  91. 
warranty  or  condition  upon,  607 ;   652. 

SALE  OF  GOODS  ACT,  i8g3: 

as  to  liability  of  infant  for  necessaries,  76. 

note  or  memorandum,  178. 
revival  of  lien  under,  324,  n.  8. 

SALE  OF  LAND: 

auction,  sale  by,  employment  of  puffer,  684. 
Frauds,  Statute  of,  as  to,  172. 
infant,  sale  by,  voidable,  62. 


INDEX.  975 

SALE  OF  LAND  —  Continued : 

misdescription  of  thing  sold  distinguished  from  fundamental  error,  611. 

on,  effect  of,  662. 
option  of,  or  agreement  for  re-purchase,  631. 
parcels,  mistake  as  to,   600,  611. 
price,  mistake  as  to,  605. 

purchase  of  property  already  one's  own,  526;   615. 
purchaser,  duty  to  give  information  in  special  cases,  670. 
rescission  of,  for  breach  of  contract,  335. 
specific    performance    with    compensation    where    misdescription    proved, 

633. 
title,  effect  of  special  conditions  as  to,  671. 

non-disclosure  of  latent  defect  in,  671. 
time,  whether  of  essence,  628,  n.  88. 
vendor's  duty  to  give  correct  description,  669. 
And  see  SPECIFIC  PERFORMANCE. 

SALE  OF  REVERSION.    See  REVERSION. 

SATISFACTION: 

by  stranger,  whether  a  bar  to  subsequent  action  on  contract,  593;  840. 
promise  conditional  upon,  51,  n.  59. 

And  see  ACCORD  AND  SATISFACTION. 

SEAL: 

acceptance  of  contract  under,  whether  necessary,  6,  n.  3. 

accord  and  satisfaction  of  contract  under,  835. 

authorized  alteration  of  contracts   under,   855. 

building  society,  seal  of,  must  bear  registered  name  of  society,  160. 

companies  required  by  statute  to  use  their  proper  seal,  160. 

contract  for  the  benefit  of  third  person  under,  276. 

corporate,  equivalent  to  signature  in  bills  and  notes,   144;   293. 

transferable  debentures  under,  negotiable,  145. 

necessity  of,  in  contracts  by  corporations,  159. 
director,  private  seal  of,  use  of,  on  behalf  of  company,  160. 
legislation  as  to,  in  the  United  States,  217,  n.  25. 
misapplication  of,  corporate,   147. 

private,   151. 
offer  under,  is  irrevocable,  28,  n.  28. 
release  requires,  813. 
rescission  of  contract  under,  344;   825. 
scroll  as  a,  160,  n.  5. 

tearing  off,  destroyed  deed  when,  845;  851,  n.  91. 
voluntary  contract  under,  216. 

And  see  BOND. 

SEAMEN:  wages  of,  not  insurable  at  common  law,  463. 
SEDITIOUS  PUBLICATIONS.    See  IMMORAL  PUBLICATIONS. 


976  INDEX. 

SEPARATE  ESTATE: 

cessation  of  coverture,  effect  of,  891. 

debts  contracted  before  marriage,  liability  for,  893. 

"  engagement,"  bow  far  bound  by  ordinary  rules  of  contract,  894. 

engagements,  general,  rules  as  to,  888. 

equitable  doctrine  of,  94. 

Limitation,  Statute  of,  analogy  of,  whether  applicable  to  claims  against 

90;   895. 
origin  of  separate  use,  886. 

power  of  binding  separate  estate,  earlier  doctrines  as  to,  886. 
quasi-contracts,  whether  liablo  on,  895. 
specific  performance  against,  890. 

SEPARATION:  judicial;  effect  on  wife's  capacity  of  contracting,  93. 

SEPARATION  DEED: 

agreements  for,  between  husband  and  wife  alone,  92. 

children,   cuatody  of,  provisions   for,  462. 

effect  of,  on  special  points,  416. 

future  separation,  agreement  for,  void,  418. 

reconciliation,  deed  avoided  by,  413. 

proviso  for,  void  when  parties  not  lawfully  married,  413. 
validity  of,  414. 
void,  if  procured  for  fraudulent  purpose,  678. 

SERVICE: 

contract  of,  dissolved  by  death  of  either  party,  535;  543. 

contract  of,  not  assignable,  595. 

infant's  contract  of,  61;  67,  n.  14;  74;  81. 

liability  for,  when  contract  within  Statute  of  Frauds,  789,  n.  29. 

no  obligation  to  pay  for,  if  originally  gratuitous  11,  n.  8;   200. 

recovery  of,  value  of,  when  contract  repudiated,  336. 

SET-OFF: 

distinguished  from  compensatio  of  Roman  law,  777. 
barred  debt  cannot  be,  776. 

SETTLEMENTS: 

deceased   wife's   sister,    settlement    in    contemplation   of   marriage   with, 

void,  413. 
disclosure,  duty  of,  in  negotiations,  673. 
infant,  settlement  by,  65;   70;   79;   81. 
"  in  fraud  of  marital  right,"  392. 

post-nuptial,  how  far  supported  by  informal  ante-nuptial  agreement,  702. 
reformation  of,  according  to  previous  articles,  642. 

And  see  INFANTS  and  VOLUNTARY  DEED   OR  SETTLEMENT. 


INDEX.  977 

SHAREHOLDER: 

infant  may  be,  63. 

and  is  liable  for  calls  if  shares  not  disclaimed,  64;  73. 
married  woman  may  be,  892,  n.  8. 

owning  all  shares  is  not  owner  of  corporate  property,  125,  n.  99. 
prospectus,  only  original  shareholders  entitled  to  rely  on,  703. 
ratification  by  assent  of,  137 ;   900. 
repudiation  of  shares  by,  602;   713;   719. 

cannot  repudiate  after  acts  of  ownership,  708. 

or  after  change  in  constitution  of  company,  713. 
or  after  winding-up,  719. 
diligence  of  shareholder  essential,  723. 
rescission  of  contract  by,  on  ground  of  misrepresentation,  676. 
right  of,  to  restrain  company  from  acts  not  warranted  by  its  constitu- 
tion, 134;  896. 
And  see  COMPANY. 

SHARES: 

agreement  that  shares  shall  be  considered  full  paid  is  fraudulent,  719, 

n.  48. 
numbers,  error  in,  not  material,  602 
purchase  of,  by  mistake  as  to  nature  or  identity  of  shares,  592,  n.  [f)  ; 

598,  n.  51;   602. 
repudiation  of,  602;   713;   719;   723. 
sale  of,  after  winding-up,  not  enforceable,  613;  618. 

subscription  for,  released  by  change  of  purpose  of  corporation,  135,  n.  11. 
transfer  of,   184;  296. 

invalid  when  directors'  consent  obtained  by  fraud,  686. 

And  see  COMPANY;  CORPORATION;  SHAREHOLDER. 

SHIP:  transfer  of,  183. 

SIMONY:  purchase  of  next  presentation,  911. 

SLAVERY: 

American  opinions  as  to  effect  of  abolition  of,  on  prior  contracts,  420. 
incapacity  of  slaves  to  contract,  58,  n.   1. 

contract  for  sale  of  slaves  in  slave  country,  not  void  in  England,  509. 
statutes  against  slave  trade,  912. 

"SLIP": 

in  marine  insurance,  effect  of,  166;  795. 
recognized  for  collateral  purposes,  796. 
statutory  enactments  relating  to,  795. 

SOCIAL  DUTY:  whether  agreement  against,  void,  464. 
62 


978  INDEX. 

SOLICITOR: 

agreements  with  client:    champerty,  .449. 

cannot  purchase  subject-matter  of  suit,  455. 

client,   presumption  of  influence  in  contracts  with,  736. 

costs,  special  agreement  with  client  as  to,  806. 

time  for   suing  for,   801. 
purchase  by,  from  client,  736. 

of  subject-matter  of  suit  by,  455. 
Solicitors'  Remuneration  Act,  1881,  806. 
statutes  affecting,   912. 
uncertificated,  costs  of,  not  recoverable,  800. 

lien,  position  as  to,  800. 

SOLICITORS'  REMUNERATION  ACT,   1881:   as  to  agreements  between  so- 
'  licitor  and  client,  806. 

SPECIFIC  PERFORMANCE: 

ambiguous  terms   of  contract,   specific  performance  refused   in   cases   of, 

601. 
collateral  "representations"  inducing  contract;  non-fulfilment  of,  919. 
compensation  with  specific   performance  on  sale  of  land,  663. 
contract  not  expressing  real  agreement  of  parties,  633. 
description  of  property,  when  vendor  can  substantiate  his  own,  668. 
infant,  specific  performance  not  granted  at  suit  of,  66. 

nor,    since    Infants'   Relief   Act,   of    any   contract    made    during   in- 
fancy, 71. 
married  woman,  separate  estate,   specific  performance  against,  890. 
misdescription:    specific  performance  at  suit  of  either  party  where  vari- 
ance not  substantial,   664. 
specific    performance    at    purchaser's    option   where    substantial    and 
capable   of  estimate,   664. 
where   substantial   and  not   capable   of   estimation,  option   only 
to  rescind  or  to  affirm  unconditionally,  666. 
mistake    as  a  defence  to,  633. 
non-disclosure  as  a  defence  to,  683,  n.  55. 
of  contract  of  heir  or  devisee,  459,  n.  24. 
of  contract  to  make  a  will,  467,  n.   35. 
of  rectified  contract  in  suit  for  rectification,  633,  n.  98. 
parol  addition  to  or  variation  in  terms  of  agreement,  633. 
purchaser  bidding  for  wrong  lot,  600. 

separate  estate  of  married  woman  as  enforcing  and  being  subject  to,  890. 
undervalue,  whether  specific  performance  can  be  refused  for,  alone,  752. 
voluntary  deed  not  subject  of,  218. 

SPIRITS:  statutes  affecting  sale  of,  912. 

SPIRITUAL  INFLUENCE: 

its   relation   to  undue   influence,   746. 
treatment  of,  by  French  law,  Note  L.,  922. 


INDEX.  979 

STAMPS: 

foreign  laws  as  to,  effect  of,  433. 

promissory    note,    bearing    insufficient    stamp,    not    admissible    receipt, 

799,  n.    (»). 
stamp  duties  in  general,  798. 

unstamped  document,  when  admissible  as  evidence,  798. 
variation  of  contract  by  subsequent  unstamped  agreement,   798. 

STATUTE  OF  FRAUDS.    See  FRAUDS,  STATUTE  OF. 
STATUTE  OF  LIMITATION.     See  LIMITATION,  STATUTES  OF. 

STATUTES: 

particular  occupations,   &c,   regulated  by,  Note   G.,   909. 
prohibitory,  construction  of,  397. 
policy  of,  398. 

"  STIFLING  PROSECUTION,"  440. 
STIPULATION:  in  Roman  law,  150. 

STRANGER: 

alteration  by,  847;   S48;   852. 

satisfaction  of  contract  by,  whether  it  bars  action,  593. 

to  contract,  cannot  sue  on  it  in  England,  233. 

can  in  United  States,  237.  « 

undue  influence  exerted  by,  768. 

SUBSCRIPTION: 

charitable,  consideration  for,   186,  n.  3;    255. 

for  stock,  released  by  alteration  of  object  of  corporation,  135,  n.  11. 

SUICIDE:  promise  conditional  upon,  376. 

SURETY: 

addition  of  another,  to  contract,  862. 

discharge  of:    by  subsequent  dealings  between  creditor  and  debtor,   382. 

by  failure  to  notify  of  misconduct  of  person  guaranteed,  385,  n.  27. 

by  misrepresentation   or   concealment  on  part  of  creditor,   659. 
entitled  to  benefit  of  securities,  385. 

information  as  to  real  nature  of  transaction,  660. 

but  creditor  not  bound  to  volunteer  information,  662. 

"SURPRISE":  whether  a  ground  of  relief  against  contracts,  765. 
SURRENDER.     See  CANCELLATION  AND  SURRENDER. 


TALLIES:  use  of,  156. 

TELEGRAPH :  communication  of  acceptance  by,  36 ;  39,  n.  42. 

TESTATOR:  agreement  to  influence,  void,  466. 


^°0  INDEX. 

THIRD  PARTIES: 

cannot  sue  on  contract  in  England,  233. 

can  in  United  States,  237. 
fraud  on,  vitiates  contract,  376. 

not  presumed,  381. 
instrument  not  rectified  against  interests  of,  641. 

And  see  BENEFICIARY. 

"THIRD  PERSON": 

meaning  of,  221. 

undue  influence  exerted  by,  768. 

And  see  BENEFICIARY;  STRANGER. 

TICKETS:   nature  of,  53. 

TIME: 

termination  of  offer  by  lapse  of,  28,  n.  28;  29. 
when  of  essence  of  contract  in  equity,  626. 

may  be  made  so  by  express  agreement,  628. 

TIME-TABLE:  effect  of  statement  in,  15. 

TIPPLING  ACT:  small  debts  for  spirits  made  not  recoverable  by,  807. 

TORT: 

agent  liable  for  his  own,  703. 

agreement  to  commit,  is  void,  376. 

"  founded  on  contract,"  infant  not  liable  for,  82. 

liability  of  corporations  in,  129. 

waiver  of,  707,  n.  27. 

TRADE: 

agreements  in  restraint  of.     See  RESTRAINT  OF  TRADE. 

contracts  of  corporations  in  course  of,  need  not  be  under  seal,  161. 

TRADE  UNIONS: 

agreement  for  strike  not  enforceable,  473. 

but  not  a  criminal  offence  by  the  common  law,  473,  n.   (z) . 

certain  agreements  of,  lawful  but  not  enforceable,  808. 

TRADING  WITH  ENEMIES: 

contracts  dissolved  or  suspended  by  war,  427. 
neutral  trade  with  belligerents  not  lawful,  431. 
without  license  from  crown,  illegal,  426. 

TREES:  whether  sale  of,  within  Statute  of  Frauds,  173,  n.  14. 

TRESPASS:  agreement  to  commit,  void,  376. 

TRUST: 

agreement  to  commit  breach  of,  void,  376. 

assignment  of,  280. 

how  far  in  the  nature  of  contract,  230. 


INDEX.  981 

TRUSTEE: 

cannot  purchase  trust  property  at  auction,  387,  n.  30. 

liability  of  one  signing  as,  122,  n.  95. 

may  purchase  from  cestui  que  trust,  when,  387,  n.  30. 

must  account  to  cestui  que  trust  notwithstanding  collateral  illegality,  498. 

be  impartial  as  between  cestuis  que  trust,  748. 
notice  of  assignemnt  to,  283. 

ULTRA  VIRES:  effect  of  corporate  transactions  which  are,  139,  n.  16;   143, 
n.  17. 

UNDERVALUE: 

does  not  itself  avoid  contract,  but  may  be  evidence  of  fraud,  &c,  749. 
importance  of,  in  attemped  rescission,  749. 
■  whether  specific  performance  can  be  refused  for,  752. 

UNDUE  INFLUENCE: 

acquiescence  in  cases  of,  769. 

age  of  person  conferring  benefit  not  material,  739. 

captation,  doctrine  of,  in  French  law,  Note  L.,  921. 

"  catching  bargains,"  rules  of  equity  as  to,  759. 

confirmation  in  cases  of,  769. 

delay  in  cases  of,  769. 

doctor  and  patient,  presumption  of  influence  in  transactions  between,  735. 

equitable  doctrine  of,  732. 

expectant  heirs,  protection  of,  755. 

family  arrangements,  no  presumption  against,  743. 

father  and  son,  transactions  between,  presumption  of  influence,  735;  740. 

fiduciary  relation,  duty  of  persons  in,  740. 

undue  influence  apart  from,  747. 
gifts,  voluntary,  737;  768. 
heirs  and  reversioners,  protection  of,  755. 

husband  and  wife,  presumption  of  influence  in  transactions  between,  735. 
illicit  relations,  presumption  of  influence  in  transactions  between  parties 

living  in,  735,  n.  16. 
parent  and  child,  relation  analogous  to,  744. 
presumption  of  influence,  evidence  required  to  rebut,  740. 

from  certain  relations,  734. 
proof,  burden  of,  734. 
rescission  of  contract  for,  767. 

reversionary  interests,  sale  of,  by  persons  in  dependent  position,  764. 
reversioners,  protection  of,  755. 
settlements,  voluntary,^  when  set  aside,  738. 
solicitor  and  client,  relations  analogous  to,  745. 

purchase  by,  from  client,  740. 
spiritual  influence,  746. 

stranger  to  contract,  whether  undue  influence  material  if  exerted  by,  768. 
"  surprise  "  as  evidence  of,  765. 


982  INDEX. 

UNDUE  INFLUENCE  —  Continued: 
undervalue,  how  far  material,  749. 
voluntary  settlements,  when  set  aside,   738. 
wills,  presumption  does  not  extend  to,  736,  n.  (i). 
And  see  DURESS;  PUBLIC  POLICY. 

UNILATERAL  CONTRACTS: 

communication  of  proposal  in,  21,  n.   21. 
consideration  of  which  is  forbearance,  213,  n.  22. 
definition  of,  21,  n.  21;  35,  n.  40. 
name  introduced  in  our  law,  35,  n.  40. 
revocation  of,  after,  for,  34,  n.  39. 

UNLAWFUL  AGREEMENTS: 

agent   must    account    to   principal   notwithstanding    collateral    illegality, 

498. 
auction,  agreement  to  refrain  from  bidding  at,  470,  n.  36. 
bond  with  unlawful  condition  is  void,  492. 
classification  of,  373. 
compounding  offence,  440. 
conflict  of  laws  as  to  lawfulness,  what  local  law  governs,  506. 

in  time,  contract  dissolved  by  performance  becoming  unlawful,  514. 
consideration,  unlawful,  avoids  whole  agreement,  483. 
corporation,  prohibited  acts  of,  141,  n.  16. 
creditors,  agreement  in  fraud  of,  377;  504. 
custody  of  children,  agreements  as  to,  461. 

dealings  by  agent  within  scope  of  agency  on  his  own  account,  386. 
dealings  by  trustee  in  regard  to  trust  property,  387. 
evidence,  extrinsic,  illegality  may  always  be  shown  by,  492. 
for  influencing  legislation,  434. 

for  the  construction  of  a  railroad  through  a  town,  377,  n   6;  437,  n.  94. 
for  the  erection  of  a  public  building  in  a  specific  place,  377,  n.  6;   436, 

n.  94. 
for  the  sale  of  corporate  offices,  376,  n.  6 ;  439,  n.  96. 
for  the  sale  of  public  offices,  438. 
ignorance  of'  facts  making  transaction  unlawful,  495,  n.  54. 

of  law,  how  far  material,  where  immediate  object  not  unlawful,  494; 
516.. 
immediate  object,  where  unlawful,  avoids  whole  agreement,  484. 
indemnify,  agreement  to,  from  consequences  of  unlawful  act,  495,  n.  54. 
insurance  void  where  voyage  illegal  to  knowledge  of  owner,  489. 
intended  unlawful  use  of  subject-matter  of  contract,  485. 

innocent  party  may  rescind  on  discovering  such  intention,  487. 
intention,  unlawful,  must  be  shown  to  have  existed  at  date  of  agreement 

where  immediate  object  not  unlawful,  473. 
judgment  on,  validity  of,  492,  n.   51. 

knowledge  of  other  party's  intent  to  make  unlawful  use  of  property,  485. 
law  at  date  of  agreement  determines  validity,  when,  514. 


INDEX.  983 

UNLAWFUL  AGREEMENTS  —  Continued : 

lease  for  unlawful  purpose,  486,  n.  42;  487,  n.  45". 
license,  transactions  without  required,  802. 
maintenance  and  champerty,  449. 
marriage,  agreement  in  restraint  of,  464. 

within  prohibited  degrees,  contract  for,  395. 
morals,   agreements  contrary,  to,  410. 
nuisance,  agreement  to  complete,  374. 
offence,  agreement  to  commit,  374. 
partnership,  accounting  in  case  of  illegal,  500,  u.  60. 
payments  under,  when  recoverable,  496. 

can  always  be  recovered  when  agreement  not  executed,  501. 
unless  agreement   criminal  or   immoral,   501. 

to  agent,  can  be  recovered  by  principal,  498. 
pledge,  to  secure  illegal  demand  not  recoverable  without  payment,  498, 

n.   57. 
presumption  of  unlawful  intention  where  agreement  illegal,  496. 
promises,  where  independent,  lawful  ones  enforceable,  482. 
public  policy,  agreement  contrary  to,  421. 
publication,   immoral,  agreement  relating  to,  void,  419. 
restraint  of  marriage,  agreements  in,  464. 

of  trade,  agreements  in,  467. 
seamen's  wages,  policy  of  insurance  of,  void,  463. 
security  given  for   payments  under  unlawful  agreement,  void,   491. 
separation,  future,  agreement  for,  void,  418. 

immediate,  agreement  for,  good,  414. 
settlements  in  fraud  of  marital  right,  392. 
slaves,   contracts  as   to,   in  United  States,   420. 

contract  for  sale  of,  made  and  to  be  performed  in  slave  state,  recog- 
nized in  English  Courts,  509. 
statute,  agreements  illegal  by,   397. 
statutes,  forbidding  or  regulating  particular  contracts  collected,  Note  G., 

909.     See  also  402. 
statutes  prescribing  conditions  for  conduct  of  a  trade,  401. 
stifling  prosecutions,  440. 
surety,   contracts  between  principal  debtor  and  creditor  to  prejudice  of, 

382. 
testator,  agreement  to  influence,  466. 
trade,  agreements  in  restraint  of,  467. 
trading  with  enemies,  426. 
ulterior  object,  effect  of  illegality  of,  376. 
wagers,  405;   421;   501. 

witnesses,  void  agreements  with,  441,  n.   1;   445,  n.  9. 
wrong,  civil,  to  third  person,  agreement  to  commit,  376. 

And  see  PUBLIC  POLICY. 

USURY  LAWS: 

effect  of  repeal  on  subsisting  loans,  515,  n.  81;   808. 

repeal  of,  has  not  altered  doctrine  of  "  catching  bargains,"  757 ;   758. 


984  INDEX. 

VALUE.    See  PURCHASE  FOR  VALUE  WITHOUT  NOTICE. 

VARIATION: 

oral,  of  written   contract,  available  for  defendant  but  not  for   plaintiff, 

633. 
parol,  310;   822. 

VENDOR  AND  PURCHASER.    See  SALE  OF  LAND;  SPECIFIC  PERFORM- 
ANCE. 

VIS  MAJOR:  meaning  of,  535. 

VOID  AND  VOIDABLE: 

agreement  may  be  void  without  being  forbidden,  or  vice  versd,  405. 
assignment   of  voidable   contract,  280. 
confusion  and  distinction  between  these  terms,  3;   8;   61. 
contract  depending  on   personal   skill  made  void,   not   voidable,   by  sub- 
sequent disability,   543. 
contract  voidable  if  consent  not  free,  727. 

deed  void  in  part  by  statute,  not  necessarily  void  altogether,  483. 
infants'  contracts  voidable,  not  void,  60. 
lunatic:    contracts  of,  when  void   or  voidable,  98;    103. 
rights  and  remedies  of  parties  to  void  agreement,  020. 

VOLUNTARY  COVENANT:  specific  performance  of,  not  granted,  218. 

VOLUNTARY  DEED  OR  SETTLEMENT: 

at  whose  suit  set  aside:    old  rule  in  equity,  739. 
deed  not  rectified  against  grantor,   643. 
French  law,  922. 

impeachment  of:    burden  of  proof,   738. 
post-nuptial  settlements,   792. 
readily  set  aside,  739. 

revocation,  power  of,  not  necessary  to  validity,  739. 
undue  influence,  presumption   of,  738. 
And  see  UNDUE  INFLUENCE. 

WAGERS: 

authorities  as  to,  912. 

contests  of  speed  for  purses  are  not,  405,  n.  59. 

deposit,  recovery  of,  from  stakeholder,  501. 

former  treatment  of  them  at  common  law,  421. 

loans  to  pay  lost,  are  valid,  409,  n.  64. 

options  are  not,  408,  n.  63 

promissory  note  given   for,   treated   as   without   consideration,   407. 

purchases  on  margin  are  not  necessarily,  408,  n.  63. 

purchases  or  sales  with   intent  not  to  deliver  are,   408,  n.   63. 

valid  where  made  not  enforceable  where  illegal,  508,  n.  69;  512;  cp   511. 

void  as  against  public  policy  in   America,  405,  n.   60. 

void  by  statute,  but  not  illegal  in  England,  405;   421. 


INDEX.  985 

WAGES:  statutory  enactments  as  to  payment  of,  913. 

WARRANTY: 

effect  of,  as  distinguished  from  condition,  656. 
express,  on  sales  of  goods,  C52. 
implied,  of  agent's  authority,   119. 

in  contract  to  marry,  120,  n.   (f). 

in  sales  of  goods,  655. 

in  sales  of  negotiable  paper,  654,  n.  5. 
representations  amounting  to,  652. 
rescission  for  breach  of,  in  sales  of  goods,  607. 
sub-purchaser  cannot  enforce,   298,  n.  93. 

WEIGHTS  AND  MEASURES:   statutes  regulating,  913. 

WILL: 

contract  to  make  disposition  by,  lawful,  466. 

covenant  not  to  revoke,  not  broken  by  subsequent  marriage,  466. 
mistake:    cannot    be    rectified,    but    general    intention    may    take    effect 
against  particular  words,  644,  Note  I.;   914. 
execution  of  wrong  document  wholly  inoperative,  587.  n.    (o). 
testator,   agreement  to  influence,   void,   466. 
undue  influence,  presumption  of,  never  applied  to,  736,  n.    (i) . 

WINDING-UP: 

of  insurance  companies,  application  of  prohibitory  stamp  laws  to   poli- 
cies, 797. 
right  to  proceed  with  creditor's  petition  for,  not  saleable,  456. 
secret  agreement  for  conduct  of,  void,  445. 
shares  cannot  be  repudiated  after,  719. 

WITNESS: 

agreement  to  pay,  for  evading  service,  void,  441,  n.  1. 

conditional  on  success  void,  445,  n.  9. 
agreement  to  procure,  to  swear  to  facts  void,  445,  n.  9:   453. 

WRITING: 

agreements  in,  not  varied  by  parol  evidence,  310. 

oral  variation  admitted  as  defence  to  specific  performance,  633. 

oral   variation   not  admitted   to   obtain   performance  of  contract   as 
varied,  633. 

but  may  be  construed  by  evidence  of  special  meaning  of  terms,  314. 
or  supplemented  by  customary  terms,  315. 
contracts  in,  not  a  special  class  in  English  law,   198,  n.    (t) . 

variation  of,  by  parol,   310;    822. 

when  oral  agreement  preliminary  to,  is  itself  a  contract,  46. 

And  see  FRAUDS,  STATUTE  OF. 

YEAR:    agreements  not  to  be  performed  within,  175;  784;   789,  n.  29. 
[Whole  Number  of  Pages  1139.] 


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