Editing Contracts/Definitions

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A promise is the declaration by any person of his intention to do, or to forbear from anything at the request, or for the use, of another. A proposal when accepted becomes a promise.

Agreement in the law of contracts is the expression by two or more persons of a common intention to affect their legal relations; it consists in their being of the same mind and intention concerning the matter agreed on.<ref>'''U.S.'''-- ''[[U. S. v. Richards]]'', 149 Fed. 443, 450.<br />'''Ky.'''-- ''[[Tucker v. Sheeran]]'', 155 Ky. 670, 672, 160 SW 176; ''[[Dixie F. Ins. Co. v. Wallace]]'', 153 Ky. 677, 679, 156 SW 140, 142, AnnCas1915C 409 [cit Cyc].<br />'''Mich.'''-- ''[[Hudson v. Columbian Transfer Co.]]'', 137 Mich. 255, 257, 100 NW 402, 109 AmSR 679 (cit Cyc).<br />'''Nebr.'''-- ''[[McGavock v. Morton]]'', 57 Nebr. 385, 77 NW 785.<br />'''N.Y.'''-- ''[[Bruce v. Pearson]]'', 3 Johns. 534.<br />'''Oh.'''''-- [[Columbus, etc., R. Co. v. Gaffney]]'', 65 Oh. St. 104, 117, 61 NE 152.</ref>

The term "agreement" is sometimes used as synonymous with "contract."<ref>''[[Douglass v. W. L. Williams Art Co.]]'', 143 Ga. 846, 85 SE 993; ''[[Michael v. Kennedy]]'', 166 Mo. A. 462, 466, 148 SW 983 ("We are unable to distinguish the difference between a contract and an agreement"). ''But see [[Tucker v. Sheeran]]'', 155 Ky. 670, 160 SW 176 (holding that an agreement does not necessarily affect the legal relations of the parties so as to amount to a contract, It being necessary for that purpose that it produce a legal, binding result on their mutual relations).</ref>

The duty imposed by law on the parties to a contract to perform their undertaking constitutes the obligation of the contract.<ref>''[[Ogden v. Saunders]]'', 12 Wheat. (U. S.) 213, 257, 6 L/ ed. 606; ''[[Mobile L. Ins. Co. v. Randall]]'', 74 Ala. 170, 177; ''[[State v. Carew]]'', 47 S. C. L. 498, 91 AmD 245; ''see [[Charles River Bridge v. Warren Bridge]]'', 11 Pet. (U. S.) 420, 572, 9 L. ed. 773, 938 (where it is said that a contract "is an agreement between two or more persons to do or not to do a particular thing. The obligation of the contract is founded in the terms of the agreement, sanctioned by oral and legal principles").[</ref>

"Compact" and "contract" are used as convertible terms.<ref>''[[Chesapeake, etc., Canal Co. v. Baltimore, etc., R. Co.]]'', 4 Gill &: J. (Md.) 1, 130 ("It is a mutual consent of the minds of the parties concerned, respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne; 'a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other,' and any words manifesting that ''congregatio mentium'', are sufficient to constitute a contract").</ref>

An express contract is one where the intention of the parties and the terms of the agreement are declared or expressed by the parties, in writing or orally, at the time it is entered into.<ref>'''Colo.'''-- [[Casserleigh v. Green]], 28 Colo. 392, 65 P. 32 (aff. 12 Colo. A. 515, 56 P. 189).

'''Tex.'''-- [[Ragley v. Godley]], (Civ. A.) 90 SW 66.</ref> It is an express contract, although some of its terms are dependent on the happening of a future event,<ref>[[Voorheis v. Bovell]], 20 Ill. A. 538.</ref> or although consummated by an agent.<ref>[[Bule v. Shipman]], 46 N. C. 10.</ref>

 

# "A contract is express when the agreement is formal, and stated either verbally or In writing" <ref>[[Gillan v. O'Leary]], 124 App. Dlv. 498, 501, 108 NYS 1024.</ref>

# "Such as are voluntarily made by the parties thereto." <ref>[[Grevell v. Whiteman]], 32 Misc. 279, 280, 65 NYS 974.</ref>

 

===Express contracts classified===

Express contracts are properly divided into two classes, contracts under seal or specialties, and contracts in parol.<ref>[[Whitehill v. Wilson]], 3 Penr. & W. (Pa.) 405, 24 AmD 326; [[Rann v. Hughes]], 7 T.R. 350, 101 Reprint 1014.</ref>

Implied contracts are frequently spoken of as being divisible into two classes:<ref>[[Miller v. Schloss]], 218 N. Y. 400, 113 NE 337; [[Morse v. Kenney]] 87 Vt. 445, 89 A. 865.</ref> (1) Contracts implied in fact;<ref>See infra. [[#Contracts Implied in Fact|Contracts Implied in Fact]] and [[#Effect of Express Contract|Effect of Express Contract]]</ref> and (2) contracts implied in law.<ref>See infra. [[#Implied in Law or Quasi or Constructive Contracts|Implied in Law or Quasi or Constructive Contracts]]</ref> This division has been subjected to some criticism,<ref>[[Nevada Co. v. Farnsworth]], 89 Fed. 164; [[Columbus. etc. R. Co. v. Gaffney]], 66 Oh. St. 104, 61 NE 152; [[Hertzog v. Hertzog]], 29 Pa. 465.</ref> and perhaps justly so, because of the absence from so called contracts implied in law of the elements of true contracts.<ref>See infra. [[#Implied in Law or Quasi or Constructive Contracts|Implied in Law or Quasi or Constructive Contracts]]</ref> A more accurate designation of the so called contracts implied in law, and one which is frequently, employed, is quasi or constructive contracts.<ref>[[Hertzog v. Hertzog]], 29 Pa. 465, 467 (where the court, after quoting as follows, "Implied [contracts) are such as reason and justice dictate; and which, therefore, the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work, the law implies that I undertook and contracted to pay him as much as his labour deserves. If I take up wares of a tradesman without any agreement of price, the law concludes that I contracted to pay their real value," said: {{Quote|This is the language of Blackstone, 2 Comm. 443, and it is open to some criticism. There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or presumed, from circumstances as really existing, and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. . . . It is quite apparent, therefore, that radically different relations are classified under the same term, and this must often give rise to indistinctness of thought. And this was not at all necessary; for we have another well-authorized technical term exactly adapted to the office of making the true distinction. The latter class are merely constructive contracts, while the former are truly implied ones. In one case the contract is mere fiction, a form imposed in order to adapt the case to a given remedy; in the other it is a fact legitimately inferred. In one, the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty}}). See also [[Willard v. Doran, etc., Co.,]] 48 Hun 402, 403, 1 NYS 345, 588 (where the court said: {{Quote|There has been some inaccuracy in the use of this phrase [Implied contract]. If it is applied only to cases in which parties enter into a real contract, but without express words, then it is accurately used. If A borrows money of B, he really agrees to repay it, although he does not expressly say so. But . . . [in case of money lost on a wager], there is no contract to repay the money, either express or implied; and to call the liability an "implied contract" gives an incorrect idea of the nature of the liability. Such use of this phrase probably arose under the old forms of pleading when the action of assumpsit was found so useful. It was necessary in that action to allege a promise, while the action often lay in cases where no promise had been made. The civil law writers found the difficulty of attempting to classify actions into those ''ex contractu'' and those ''ex delicto''. Therefore they made two other classes, viz., ''quasi ex contractu'' and ''quasi ex delicto''. Thus they said that the action to recover back money paid by mistake was ''quasi ex contractu'', for the party was so far from being bound by a contract, that he was bound rather ''ex distractu'' than ''ex contractu'', because money paid was rather to dissolve than to form a contract. (Inst., III. 27, 6.) Similarly in this case the defendant made no contract to pay the plaintiff the money demanded. The actual contract between the parties, even if valid, would not be that which the plaintiff seeks to enforce. He claims that the defendant has money of his which, in justice and good conscience, the defendant should return. This right of action is not unlike the action to recover money paid by mistake. In each the money is paid voluntarily, in each it is unjust for the defendant to retain that which he has received. In neither has he agreed to return it. We might then class this as an action ''quasi ex contractu'', for there is no agreement to return the money, which would give an action ''ex contractu''. And on the other hand, possession of the money was not obtained by force or fraud, and thus the action is not strictly ''ex delicto''}}).</ref> The term "implied contracts," however, as it is ordinarily employed, is broad enough to include both contracts implied in fact and quasi or constructive contracts.<ref>[[Harty Bros., etc., Co. v. Polakow]], 237 I11. 659, 86 NE 1086 [rev. 141 Ill. A. 570]; [[Umlauf v. Umlauf]], 101 Ill. 651; [[Musgrove v. Jackson]], 59 Miss. 390. See [[Chudnovski v. Eckels]], 232 Ill. 312, 317, 83 NE 846 (where the court said: {{Quote|The term "implied contract" is a familiar one in the law. By reason of the relation of the parties or the existence of an obligation or duty a contract may be implied by law which the party never actually intended to enter into and the obligation of which he did actually intend never to assume. Whether or not it accords with scientific terminology to call an obligation imposed by the existence of a duty an implied contract, yet in the ordinary use of language by courts and writers it has been almost universally so called. "Implied contracts," says Blackstone, "are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform, and upon this presumption makes him answerable to such persons as suffer by his non-performance." (3 Com. 158.) In the sixth subdivision of his classification of implied contracts which arise from natural reason and the just construction of the law, he says: "The last class of contracts, implied by reason and construction of law, arises upon this supposition: that every one who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence and skill; and if by his want of either of those qualities any injury accrues to individuals, they have their remedy in damages by a special action on the case." (Ibid. 163.) And among the instances of implied contracts are mentioned those of the common inn-keeper to secure his guest's goods in his inn, of the common carrier to be answerable for the goods he carries, and of the common carrier that he shoes a horse well without laming him}}).</ref>

#"An implied agreement is where the terms of the contract are not expressed between the contracting parties, but the obligations of natural justice by reason of some legal liability impose the payment of money or the performance of some duty, and raise a promise to that effect."<ref>[[Linn v. Ross]], 10 Oh. 412, 414, 36 AmD 96.</ref>

#An implied contract "is created by law to establish justice between parties. It does not require mutual consent, but may bind a party against his will."<ref>[[Adams v. Hilliard]], 14 NYS 120, 122.</ref>

# Implied contracts "are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform."<ref>2 Blackstone Comm. p 443; [[Day v. Connecticut Gen. L. Ins. Co.]], 45 Conn. 480, 490, 29 AmR 693; [[Hamilton v. Winterrowd]], 48 Ind. 393, 396; [[Ottumwa Mill, etc., Co. v. Manchester]], 139 Iowa 334, 337, 115 NW 911; [[Nolan v. Swift]], 111 Mich. 56, 60, 69 NW 96; [[Deane v. Hodge]], 35 Minn. 146, 150, 27 NW 917, 59 AmR 321; [[McSorley v. Faulkner]], 18 NYS 460, 462; [[Wickham v. Weil]], 17 NYS 518, 619; [[Peo. v. Bennett]], 6 AbbPr (N.Y.) 343, 348; [[Thompson v. Woodruff]], 7 Coldw. (Tenn.) 401, 410; [[Wyoming Nat. Bank v. Brown]], 7 Wyo. 494, 501, 53 P 291, 75 AmSR 935. To same effect [[Hawkes v. Taylor]], 176 Ill. 344, 61 NE 811.</ref>

# "Implied contracts are such as reason and justice dictate, and which the law presumes from the relations and circumstances of the parties."<ref>[[Miller's App.]], 100 Pa. 668, 670, 45 AmR 394.</ref>

 

====Statutory uses of term "implied contracts"====

 

{{Quote|However unscientific such a classification is, simple implied contracts are usually subdivided into contracts implied in fact and contracts implied in law. . . . This classification of implied contracts makes it difficult to interpret a statute where the term is used. In each case it becomes a question whether the general meaning, or the more limited, if more accurate, meaning, was, by the legislature, intended. . . . In the absence of any light thrown thereon by the language or object of the statute, or of other statutes ''in pari materia'', it must be held . . . that the legislature intended that meaning which is commonly assigned to the words, even if such definition be less accurate or scientific.<ref>[[Nevada Co. v. Farnsworth]], 89 Fed. 164, 165. See [[Pache v. Oppenheim]], 92 App. Div. 221, 87 NYS 704 (holding that an action "upon contract" may be maintained on "quasi contract"). Compare [[Oppenheimer v. Regan]], 32 Mont. 110, 79 P. 695 (holding that "actions arising on contract" as employed in a statute fixing the jurisdiction of justices of the peace did not include agreements resting upon a fiction of the law).</ref>}}

An '''implied-in-fact contract''' is a form of an implied [[contract]] formed by non-verbal conduct, rather than by explicit words. The [[United States Supreme Court]] has defined it as "an agreement 'implied in fact'" as "founded upon a meeting of minds, which, although not embodied in an express contract, is [[Inference|inferred]], as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding."<ref>{{ussc|name=Baltimore & Ohio R. Co. v. United States|261|592|1923}}</ref>

 

Although the parties may not have exchanged words of agreement, their conduct may indicate that an agreement existed. 

 

For example, if a patient goes to a doctor's appointment, his actions indicate he intends to receive treatment in exchange for paying reasonable/fair doctor's fees. Likewise, by seeing the patient, the doctor's actions indicate he intends to treat the patient in exchange for payment of the bill. Therefore, it seems that a contract actually existed between the doctor and the patient, even though nobody spoke any words of agreement. (They both agreed to the same essential terms, and acted in accordance with that agreement. There was mutuality of [[Consideration under American law|consideration]].) In such a case, the court will probably find that (as a [[Contracts/Question of fact|matter of fact]]) the parties had an implied contract. If the patient refuses to pay after being examined, he will have [[Contracts/Breach of contract|breached]] the implied contract. Another example of an implied contract is the payment method known as a letter of credit.

 

Generally, an implied contract has the same legal force as an [[#Express Contracts|express contract]]. However, it may be more difficult to prove the existence and terms of an implied contract should a dispute arise. In some jurisdictions, contracts involving real estate may not be created on an implied-in-fact basis, requiring the transaction to be in writing.

[[Contacts/Unilateral contract|Unilateral contracts]] are often the subject matter of these types of contracts where acceptance is being made by beginning a specified task.

====Potential conduct implying implied contract====

* A prior history of similar agreements.

* When recipient accepts something of value knowing other party expects payment.

Contracts implied in law, or more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex eontractu.<ref>

# A quasi promise is "an implied promise In law, founded either on the doctrine that one shall not be allowed to enrich himself unjustly at the expense of another; or on the doctrine that when an obligation is imposed by law upon one to do an act because of an interest in the public to have it done, and that one fails to do it, he who does do it, expecting compensation, may recover therefor of him on whom the obligation is imposed." [[Mathie v. Hancock]], 78 Vt. 414, 417, 63 A 143.</ref> They rest solely on a legal fiction,<ref>[[Peo. v. Dummer]], 274 Ill. 637, 113 NE 934; [[Graham v. Cummings]], 208 Pa. 516, 57 A 943.</ref> and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy,<ref>'''Colo.'''-- [[Brown v. Stair]], 25 Colo. A. 140, 136 P 1003.<br />

'''Ga.'''-- [[Western Union Tel. Co. v. Taylor]], 84 Ga. 408, 11 SE 396, 8 LRA 189.<br />

"The quasi contract is a constructive contract, as distinguished from either implied or express contracts, and is defined rather as a relation than as a contract--a fiction of law adapted to enforce legal duties by actions of contract where no proper contract exists, express or implied." [[Brown v. Stair]], 25 Colo. A. 140, 150, 136 P 1003.</ref> and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity.<ref>'''Ill.'''-- [[Highway Comrs. v. Bloomington]], 263 Ill. 164, 97 NE 280. AnnCas1913A 471; [[Harty Bros., etc., Co. v. Polakow]], 237 Ill. 569, 88 NE 1085.<br />

{{Quote|A quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. In truth, it is not a contract or promlse at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acta of the parties or others have placed in the possession of one person money, or its equlvalent, under such circumstances that in equity and good conscience he ought not to retain it, and which ''ex aequo et bono'' ["according to the right and good"] belongs to another. Duty, and not a promise or agreement or intention of the person sought to be charged, defines it. It is fictitiously deemed contractual, in order to fit the cause of action to the contractual remedy.}}

[[Miller v. Schloss]], 218 N.Y. 400, 407, 113 NE 337</ref> So, when the party to be bound is under a legal obligation to perform the duty from which his promise is inferred, the law may infer a promise even as against his intention.<ref>[[Morse v. Kenney]], 87 Vt. 445, 89 A 865. See [[Smith v. Hibler]], (N.J. Sup.) 92 A 364 (holding that under a statute providing that one who trespasses on lands after having been forbidden so to do shall forfeit a specified sum, to be recovered in an action of debt, the statutory action so given is in legal contemplation an "action upon contract"). But see [[Bigby v. U.S.]], 103 Fed. 597 [aff. 188 U.S. 400, 23 SCt 468, 47 L. ed. 519] (holding that, where the duty is expressly imposed by statute, the obligation to perform, however, does not rest on a legal fiction that the person commanded to perform impliedly contracted to do the act).<br />

[[Keith v. De Bussigney]], 179 Mass. 255, 259, 60 NE 614.</ref> Among the instances of quasi or constructive contracts may be mentioned cases in which one person has received money which another person ought to have received, and which the latter is allowed to recover from the former in an action of assumpsit for money had and received, or money received to the use of plaintiff;<ref>[[Barnett v. Warren]], 82 Ala. 557, 561, 2 S 457; [[Boyett v. Potter]], 80 Ala. 476, 479, 2 S 534; [[Merchants' Bank v. Rawls]], 7 Ga. 191, 195, 50 AmD 394; [[O'Fallon v. Boismenu]], 3 Mo. 405, 407, 26 AmD 678; [[Lawson v. Lawson]], 16 Gratt. (57 Va.) 230, 232, 80 AmD 702.</ref> cases in which one person has been compelled to pay money which another ought to have paid, and which the former is allowed to recover from the latter in an action of assumpsit for money paid to his use;<ref>[[Tuttle v. Armstead]], 53 Conn. 175, 22 A 677; [[Wells v. Porter]], 7 Wend. (N.Y.) 119; [[Eastwood v. McNab]], [1914] 2 K.B. 361; [[Exall v. Partridge]], 8 T.R. 308, 101 Reprint 1405.</ref> cases of account stated, from which the law implies a promise which will support an action of assumpsit;<ref>[[Marshall v. Lewark]], 117 Ind. 377, 378, Vt. 331, 334, 17 A 741; [[Hopkins v. Logan]], 5 M. & W. 241, 249, 151 Reprint 103.</ref> judgments on which an action of assumpsit or debt may be maintained, according to the circumstances, because of a promise to pay implied by law;<ref>[[Grevell v. Whiteman]], 32 Misc. 279, 65 NYS 974; [[Williams v. Jones]], 13 M. & W. 628, 153 Reprint 262.</ref> cases in which an obligation to pay money is imposed by a statute;<ref>'''U.S.'''-- [[Pacific Mail SS. Co. v. Joliffe]], 2 Wall. 450, 17 L. ed. 805.<br />

'''Vt.'''-- [[Woodstock v. Hancock]], 62 Vt. 348, 19 A 991.</ref> cases where a person by wrongfully appropriating property to his own use becomes liable to pay the owners the reasonable value thereof;<ref>[[Reed v. Weule]], 176 Fed. 660, 100 CCA 212; [[Champlain Constr. Co. v. O'Brien]], 117 Fed. 271; [[Weaver v. Norway Tack Co.]], 80 Fed. 700; [[Brush Electric Light, etc., Co. v. Montgomery]], 114 Ala. 433, 21 S 960; [[Rees v. Western Exposition Soc.]], 44 Pa. Super. 381; [[Northwestern Wheel, etc., Co. v. Milwaukee Electric St., etc., Co.]], Wis. 603, 69 NW 371.</ref> cases in which a person fails to deliver specific property and becomes liable for the money value thereof;<ref>[[Cushing v. Chapman]], 115 Fed. 237.</ref> cases where one party wrongfully compels another to render him valuable services, and a promise to pay their value is implied;<ref>[[Mobile Light, etc., Co. v. Copeland]], (Ala. A.) 73 S 131; [[Hamby v. Collier]], 136 Ga. 309, 71 SE 431.</ref> cases where one man has obtained money from another by oppression, extortion, or deceit, or by the commission of a trespass;<ref>See [[Chudnovski v. Eckels]], 232 Ill. 312, 83 NE 846.</ref> cases where necessaries have been furnished to a wife wrongfully abandoned by her husband, although he has given notice that he will not be responsible; and cases in which the husband is permitted to recover the wife's funeral expenses from her estate.<ref>[[Pache v. Oppenheim]], 93 App. Div. 221, 87 NYS 704.</ref> In order that a contract may be implied in law from the wrong of a party, it must have been committed with the intention of benefiting his own estate.<ref>[[Atchison, etc., R. Co. v. Phelps]], 4 Kan. A. 139, 46 P 183 (holding that, when one willfully and maliciously orders cars in which to shop stock, without any intention of making use of them, in order to damage the railroad company, and also delays a train for the same purpoae, there is no implied contract on which may be brought by the company on waiving the tort).</ref>

==Executed and Executory Contracts==

An executed contract is one where nothing remains to be done by either party.<ref> U.S.-Farrl n g ton v . T e n n e s atj 􀄓H􀄔U:􀄕- S. 6 7 9 , 683, 2 4 L. ed. 6 5 8 : 1, . Peck. 6 Cranch 8 7 . 1 3 6 . 12 . Cincinnati, etc. , R. Co. V'l!!cll􁅼 ... 64 Fed. 3 6 , 4 6, 12 CCA ett --y. Coope r, 1 3 Fed. 5 8 6<br />

Ill.-Fox v. Kltton, 19 Ill. 619. 632.<br />

# "A contract becomes exe cuted when all Is done that Its term" require to be performed. Until that situation Is attained. the con trac t Is executory." Leadbetter v. Hawley, 5 9 Or. 4 22, 4 24. 1 17 P 289.

# "A contract becomes a n executed one when nothing remains to be done by either party, and where the transaction has been completed, or was completed a t the ti me the contract was made." McNett v. Cooper, 13 Fed. 686, 690 ; Kynoch v . The S. C. Ives, 14 F. Cas. No. 7,958, Newb. Adm. 2 0 5 (quot Story Contr. I 18] ; M e t te! v. Gales, 12 S. D. 632, 639, 82 NW 181.

'''[c] A present conveyance''' of land is an "executed contract." Fulenwider v. Rowan, 1 3 6 Ala. 287. 34 S 97850.</ref> An executory contract is one in which a party binds himself to do or not to do a particular thing in the future.<ref>U. S.-FarrJngton v. Tennessee, 9 5 ·u. S. 679, 24 L. ed. 6 6 8 ; Fletcher v . Peck, 6 Cranch 8 7 , 13 6, 3 L. ed. 1 6 2 ; Cincinnati, e tc., R. Co. v. McKeen , 6 4 Fed. 36, 4 6, 12 CCA 1 4 ; Kynoch v. The S . C. I ves. 1 4 F. Cas. No. 7 , 9 5 8 . Newb. Adm. 2 0 5 .<br />

# An agreemen t to se ll Is an execu tory con tract. Fulenwider v. Rowan, 136 Ala. 287, 34 S 9 75.

# A defective deed, be ing only a contra ct to convey, Is therefore an executory contract to convey. Adams v. Reed, 11 Utah 4 8 0, 4 0 P 7 2 0.</ref> An executory contract conveys a chose in action; an executed contract, a chose in possession.<ref>C.a s.K.y Nnoo. ch7 , 9v5.8 ,T Nhee wSb. . CA. dImve. s,2 0U6; McDo nald v. Hewett. 1 6 :Johns. ( N.Y. ) 3 4 9 , 8 A m D 2 4 1 ; Roberts v. Beatty, 2</ref> A contract may be partly executed and partly executory,<ref>Ri ggs v. Tayloe, 2 0 F. Cas. No. 1 1 . 8 3 2 , 2 Cranch C. C. 697 [ rev on other grounds 1 Pet. 6 9 1, 7 L. ed. 2 7 6 ) ; Schroe p p e l v . Corni ng, 10 Barb. 5 7 6 (atf 6 N. Y. 1 0 7 ] ; Par melee v. Oswego, etc .. R. Co .. 7 Barb. 699 fatf 6 N. Y. 7 4 J; Hale v . Sharpe, 4 Coldw. ( Tenn. ) 2 7 o .<br />

'''[a] performance begun.'''--One who has begun to do what he promised, but has not fi nished, has execu ted h i s u n 'd e t􀁙􀁚,.. n art. Adams v. Reed, 11 Utah 480, 40 P 720.</ref> and may be executory as to one party and executed as to the other.<ref>U. S.-Howe v. Howe, etc.. Ball Bearing Co., 164 Fed. 820, 83 CCA 636. .<br />

'''[a] Illustration.'''-- Where two p ar- ties enter Into a w ritten contract by the terms ot which an easement In real estate Is granted by the first exparty tor a term ot years, In con- charslderatl on ot certain things to be per- f o rmed by the second party duri ng said term of years, on the exec<Jtlon stgntftcaof the c on tract, If the same Is tree fro m fraud In Its execution, It be- comes an executed contract, and the considera ti on a paid consideration, so far as the first party Is concerned, and the contract becomes an ex- ecutory contract as to the secon d party, and Is binding on sai d sec- ond party. Galbreath Gas Co. v. Lindsey, (Okl.) 1 6 1 P 826.</ref> While it has been said that an executed contract is not properly a contract at all, but that the contractual obligation having been performed, the parties are no longer bound,<ref> Mette! v. Gales, 12 S. D. 632, 82 NW 181.</ref> this is not strictly accurate, for the reason that, in cases wherein the contract operates as a grant, there is an implied contract on the part of the grantor not to reassert the right which he has granted.<ref>State v. Jersey City, 31 N. J.

L. 6 7 6 , 86 AmD 240.</ref>

The word "executed" is also used with reference to contracts in the sense of "made," a meaning which is, of course, entirely distinct from that already given.<ref>See Case v. Cglllns. a7 Ind. A. 491, 76 NE 781; Watson v. C oast, 36 W. Va. 463, 14 SE 249.<br />

'''Formal execution of contracts''' see [[Contracts/Formal requisites#Signing--Necessity for|Signing--Necessity for]].</ref>

Contracts are divisible into two classes, simple contracts, and contracts by specialty.<ref>Perrine v. Cheeseman, 1 1 N. J. L. 174, 19 AmD 3 8 8 ; Balla rd v. [a) OOJli:la .. lllt ooDtnot.-A con- contract tor a permanent reduc tion Walker. 3 Johns. Cas. ( N. Y.) 6 0 .</ref> Simple contracts are contracts which are not under seal.<ref>Y.) 88. Ludwig v. Bungart, 26 Misc. 247. 2 51, 56 NYS 51 [rev on other grounds 4 8 App. Dlv. 61 3, 63 NYS 9 1 ) ; Rann v. Hug hes. 7 T. R. 350, 101 Repri n t 1014. To sa me etrect Q ulgly v. 'Muse, 15 La. Ann. 197; Stabler v. Cowman, 7 Gi l l & J. ( Md.) 284; P er- rin e v. C heese m an , 11 N. J . L. 174. 19 A m D 388 ; De Crano v. Moore. 50 App. Dlv. 361, 63 NYS 7 6 4 , 64 NYS 3; Ballard v. Wal ker, 3 Johns. · Cas. (N. Y. ) 60 (per Kent, J. ).

<br />'''Contracts under seal''' see [[Contracts/Formal requisites#Seal|Contracts under seal]].</ref> They may be either written or oral,<ref>Webs te r v. Flemi n g, 178 Ill. 140 , 52 NE 975; Perrine v. Cheese- m an , 11 N. J. L. 174, 19 A mD 388.</ref> and the term is synonymous with the term "parol contracts,"<ref>90. Just i ce v. Lang, 4 2 N. Y. 493, 1 AmR 57 6.</ref> which is also used to distinguish contracts made verbally or not under seal.<ref>91. K lme v. Tobyhanna Creek Ice Co., 240 Pa. 81, 87 A 278.</ref> Properly speaking there is no distinct class of contracts merely in writing.<ref>Perrine v. Cheeseman, 11 N J. L. 174, 19 AmD 388; B alla rd v. Walker, a Johns. Cas. (N. Y.) 60.</ref>

==Written and Oral Contracts==

A writ­ten contract is one which, in all its terms, is in writing.<ref>Railway Pass., etc .. Conductors Mut. Aid, etc., Assoc. v. Lo o m is, U2 Ill. 660, 667, 32 NE 424 · Ames v. Molr, 130 Ill. 6 8 2, 689, 22 NE 635,i Wood v. Will iams, 4 0 Ill. A. 115, 118 [atr 142 Ill. 269, 31 NE; 881. 34 AmSR 7 9 ); M arl o n C ou n t y v. Shipley, 77 Ind. 533, 6 55; Wri ght v. Latham. 7 N. C. 298. 301; Morrison v. Davis, 20 Pa. 171, 177, o7 AmD 696 .<br />

"A contract in writing contains, In express terms. or by natural Inter- ences, the stipulation I nto which the pa rt ies have thought proper to en- ter.'' Wright v. Latham, 7 N. C. 298, 3 0 1 .<br />

'''[a] Contingent contract.'''-- A contract in wrltfng Is none the less so because it expresses, a nd Its oper- atlon depends on, a contingency. When the contingency happens. the minds of the parties meet as to all the terms wh ich t he con tract ex- presses. and to write them over' again would be one ot those useless acts which th e law does not requi re. Jn- surance, e tc .. Co. v. State Nat. Bank, 5 Mo. A. 333 [atr 71 Mo. 58 1 .</ref> A contract which is not entirely in writing is regarded as an oral or verbal contract.<ref>U.S.--snow v . N e son, 113 Fed. 353. 357.<br />

"When the w hole of a contract bas not been reduced to writing, such a contract In Its entirety Is to be regarded as a parol contract. subject to all the Incidents ot purely parol contracts." Evans v. Schoonmaker. 2 App, ( D. C. ) 62. 7 1.</ref> Further, in order that a contract may be deemed to be in writing, it must be in legible characters.<ref>Aradalou v. New York. etc .• R. Co., (Mass. ) 114 NE 297, 299. "When the parties undertake to put their agreement In writing and exparty press Its crucial terms by charslderatl acters or srmbols ao Illegible that the tribuna established to try the facts cannot determine the stgntftcaof tlon of that which ls'on the paper. then no contract In writing has been made." Aradalou v. New York, etc .. R. Co., supra.</ref> The word "contract" is broad enough to include contracts both in writing and by parol.<ref>Frankfort Modes Olal!& Works v. Arbogast, 1 4 8 Ky. 4, 145 SW 11!2; Musgrove v. Jackaon,. 69 Miss. 390: Rann v. Hu ghes, 7 T. R. 850, 101 Reprin t 1 0 1 4 .</ref>

 

A conditiona1 contract is an executory contract, the performance of which depends on a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, something, but it is a contract whose very existence and performance depends on a contingency and condition.<ref>Nashville, etc., R. Co. v. Jones, 2 Coldw. (Tenn.) 574, 594 [quot Story Contr. t20]; French v. Osmer, 7 Vt.. 427. 431, 32 A 254.</ref>

A gratuitous contract is defined to be one the object of which is the benefit of the person with whom it is made, without any profit received or promised as a consideration for it, as, for example, a gift.<ref>Georgia Penitentiary Co. v. Nelms, 65 Ga. 499, 505, 38 AmR 793 [quot Bouvier L.D.].</ref>

A bilateral contract is one in which there are reciprocal promises, so that there is something on both sides to be done or forborne,<ref>Wickham v. Well, 17 N Y S 5 1 8 , 5 1 9; Winders v. Kenan, 161 N.C. 6 2 8 , ti2, 77 S E 687 f e l t Cyc].</ref> while a unilateral contract is one in which there is a promise on one side only, the consideration on the other side being executed.<ref>Haynes Auto Co. v. Turner, 1 8 GL A. !2. 2 3 . 8 8 S E 7 1 7; Wickham v. Weil, 1i NYS 518, 51 9; Winders v. Kenan, 161 N.C. 628, 632, 7 7 SE 6 8 7 [cit Cyc.].</ref> "Unilateral," however, is frequently employed by the courts to express absence of mutuality.<ref>See Wefel v. Stillman, 1 5 1 Ala. 􀣅ts. 44 S 203; Georgia Fruit Exch. v. Turnipseed, 9 Ala. A. 1 2 3 . 62 S 5 4 2 : Cothran v. Wi tham, 1 23 Ga. 1 9 0, 6 1 .S E 2 8 5; Joseph Sch1itz Brewing. Co. v. Komp, 1 1 8 Ill. A. 5 6 6; High Wheel Auto Parts Co. v. Journal Co., 50 Ind. A 396, 98  NE 442; Seltzer v. Chicago, etc., R. Co., 156 Iowa 1, 134; Owen v. Satlonal Hatchet Co., 1 4 7 Iowa 3 9 3 . 121 NW 1 076. 1 2 6 N W 313; Buffington v. McNally, 1 9 3 Mass. 1 9 8 , 78 NE 3 0 9.<br />

"Commutative contract" is a term used in the civil law to designate a contract in which each of the contracting parties gives and receives an equivalent.<ref>'''[a] Different classes.'''- "Such contracts are, usually distributed into four classes namely: ''Do ut des'' (I give that you may give); ''Facio ut facias'' (I do that you may do); ''Facio ut des'' (I do that you may give); ''Do ut facias'' (I give that you may do)." Bouvier L. D.<br />

'''[b]''' {{Quote|'''A resolutory condition is implied in all commutative contracts''', to take effect in case either of the parties does not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance. . . . The dissolving condition . . . when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. The creditor seeking to avail himself of it is obliged to restore what he has received. . . . If the  buyer does not pay the price, the seller may sue for the dissolution of the sale. . . . In certain cases the jduge may  grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months. . . . In order to enforce the resolutory con d i t i o n th e re m u s t be a j u d i cial demand a n d a regular adj u d i c a t i o n . . . . T h i s res olu tory co n d i t i o n may be waived. or such c h a n g e s m a y have take n p l a c e t h a t the parties can n o t be p u t back Into the same position I n wh ich they were, o r the del i n qu e n t pa r ty may have had a proper ex cuse fo r want of p rompt ness In performance ; all which th ings are p roper to be submitted to the j u d g m e n t of a cou rt.}} Ridings v. Johnson, 128 U.S. 212, 216, 9 set 72, 32 L. ed. 401.<br />

'''[c] In Louisiana''' commutative contracts are declared to be "those in which what is done, given or promIsed b y on e party, Is con side red as e quival ent to, or a cons ideration for what is done. given or promised by the other." Clv. Code art 1768 : Rid· irgs v . Johpson, 1 2 8 U. S. 2 1 2 . 2 1 5 , 9 S C:t 72. 32 L. ed. 401 : Goodson v. Vivian 011 Co., 1 2 9 La. 9 6 5 , 57 S 281. See Delabl nrre v. New Orleans Sec. on d Municipality, 3 La. Ann. 230.</ref> The contract of sale is of thls kind: the seller gives the thing sold, and receives the price which is the equivalent; the buyer gives the price, and receives the thing sold, which is the equivalent.