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==Promise==
==Promise==
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===Contracts Implied in Fact===
===Contracts Implied in Fact===
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>
====In General====
A contract implied in fact, or an implied contract in the proper sense, arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts,<ref>'''Hawaii.'''-- [[Wall v. Focke]], 21 Hawaii 399, 403, AnnCas 1916C 677 [quot Cyc].<br />
'''IIl.'''-- [[Peo. v. Dummer]], 274 Ill. 837,113 NE 934.<br />
'''Ind.'''-- [[Yawger v. Joseph]], 184 Ind. 228, 108 NE 774.<br />
'''Iowa.'''-- [[Ottumwa Mill, etc., Co. v. Manchester]], 139 Iowa 334, 115 NW 911, 81<br />
'''La.'''-- [[Baker v. Stoutmeyer]], 2 MeG.<br />
'''N.H.'''-- [[Bixby v. Moore]], 61 N. H. 402.<br />
'''N.J.'''-- [[Gannon v. Brady Brass Co.]], 82 N. J. L. 411. 81 A 727, AnnCas 1913C 1308.<br />
'''N.Y.'''-- [[Peo. v. Speir]], 77 N. Y. 144.<br />
'''Oh.'''-- [[Columbus, etc., R. Co. v. Gaffney]], 85 Oh. St. 104, 61 NE 162.<br />
'''Pa.'''-- [[Hertzog v. Hertzog]], 29 Pa. 466.<br />
Phillipine.-- [[Peres v. Pomar]], 2 Phillipine 882.<br />
'''S.C.'''-- [[Dowling v. Charleston, etc., R. Co.]], 81. SE 313.<br />
'''Tenn.'''-- [[Thompson v. Woodruff]], 7 Coldw. 407, 410. <br />
'''Tex.'''-- [[Cuneo v. De Cuneo]], 24 Tex. Civ. A. 436, 69 SW 284.<br />
"A contract may be implied where an agreement in fact is presumed from the acts of the parties, and this is the proper meaning of an implied contract." [[Peo. v. Dummer]], 274 Ill. 637, 640, 113 NE 934.<br />
"An implied agreement is one where the conduct of the parties with reference to the subject matter is such as to induce the belief that they intended to do that which their acts indicate they have done." [[Cuneo v. De Cuneo]], 24 Tex. Civ. A. 436, 438, 69 SW 284.</ref> or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the, common understanding of men, show a mutual intent to contract.<ref>'''U.S.'''-- [[Wisconsln Steel Co. v. Maryland Steel Co.]], 203 Fed. 408, 121 CCA 607; [[Knapp v. U.S.]], 4S Ct. Ct. 601.<br />
'''Iowa.'''-- [[Fouke v. Jackson County]], 84 Iowa 616, 51 NW 71.<br />
'''N.H.'''-- [[Sceva v. True]], 53 N.H. 627.<br />
'''N.J.'''-- [[Passino v. Brady Brass Co.]], 88 N.J.L. 419, 421, 84 A 616 [cit Cyc].<br />
'''N.Y.'''-- [[Keokuk Commercial Bank v. Pfeiffer]], 22 Hun 327 [aff 108 N.Y. 242, 16 NE 811].<br />
'''Pa.'''-- [[Hertzog v. Hertzog]], 29 Pa. 465.<br />
'''Tex.'''-- [[Pierce v. Aiken]], (Civ. A.) 146 SW 950, 962 [quot Cyc.).<br />
In implied contracts {{Quote|the parties have capacity to contract; facts, circumstances, few or many, clear or complicated, exist, which lead the minds of the jurors to the conclusion that the minds of the parties met. Minds may meet by words, acts, or both. The words even may negative such meeting, but "acts which speak louder than words" may conclude him who denies a tacit contract.}}[[Sceva v. True]], 63 N. H. 627, 629.<br />
"Implied contracts in fact do not arise from the denials and contentions of parties." [[Knapp v. U.S.]], 46 Ct. Cl. 601, 643. </ref> It follows that the only distinction between this species of contract and express contracts rests in the mode of proof;<ref>'''Hawaii.'''-- [[Wall v. Focke]], 22 Hawaii 221.<br />
'''Ill.'''-- [[Peo. v. Dummer]], 274 Ill. 637, 113 NE 934; [[Highway Comrs. v. Bloomington]], 253 Ill. 184, 97 NE 280, AnnCas1913A 471.<br /> ·
'''Me.'''-- [[Saunders v. Saunders]], 90 Me. 284, 38 A 172.<br />
'''Mich.'''-- [[Woods v. Ayres]], 39 Mich. 346, 33 AmR 396.<br />
'''N.Y.'''-- [[McCarthy v. New York]], 96 N.Y. 1, 48 AmR 601; [[Peo. v. Speir]], 77 N.Y. 144.<br />
'''Oh.'''-- [[Columbus, etc., R. Co. v. Gaffney]], 66 Oh. St. 104, 61 NE 162.<br />
'''Tex.'''-- [[Fordtran v. Stowers]], 62 Tex. Civ. A. 226, 113 SW 631.<br />
{{Quote|Neither an express contract nor one by implication can come into existence unless the parties sustain contract relations, and the difference between the two forms consists in the mode of substantiation and not in the nature of the thing itself. . . . To constitute either one or the other the parties must occupy towards each other a contract status and there must be that connection, mutuality of will and interaction of parties, generally expressed though not very clearly by the term "privity." Without this a contract by implication is quite impossible.}} [[Woods v. Ayres]], 39 Mich. 345, 360, 33 AmR 396.
 
{{Quote|As ordinarily understood, the only difference between an express contract and an impiled contract is that in the former the parties arrive at their agreement by words, either oral or written, sealed or unsealed, while in the latter their agreement is arrived at by a consideration of their acts and conduct.}} [[Highway Comrs. v. Bloomington]], 263 Ill. 164, 17%. 97 NE 280. AnnCas1913A 471.  </ref> the nature of the understanding is the same, and both express contracts and contracts implied in fact are founded on the mutual agreement of the parties.<ref>'''Ala.'''-- [[Montgomery v. Montgomery Water Works Co.]], 77 Ala. 248; [[Keel v. Larkin]], 72 Ala. 49S.<br />
'''Cal.'''-- [[Smlth v. Moynihan]], 44 Cal. 63.<br />
'''Ill.'''-- [[Saul v. Busenbark]], 83 Ill. A. 256 (rev on other grounds 184 Ill. 343. 66 NE 417).<br />
'''Minn.'''-- [[Lombard v. Rahilly]], 127 Minn. 449, 149 NW 960.<br />
'''N.Y.'''-- [[Peo. v. Speir]], 77 N.Y. 144; [[Chilcott v. Trimble]], 13 Barb. 502.<br />
'''Pa.'''-- [[Hertzog v. Hertzog]], 29 Pa. 465; [[Garst v. Wissler]], 21 Pa. Super. 632.<br />
'''Tex.'''-- [[Prichard v. Foster]], (Civ. A.) 170 SW 1077; [[Fordtran v. Stowers]], 52 Tex. Civ. A. 226, 113 SW 631.<br />
'''Vt.'''-- [[Underhlll v. Rutland R. Co.]], 98 A 1017; [[Morse v. Kenney]], 87 Vt. 445, 89 A 866; [[Mathie v. Hancock]], 78 Vt. 414, 63 A 143.<br />
'''Meeting of minds'''-- If the contract to be proved is an actual one, a meeting of minds is as essential to an implied contract as to an express one. [[Columbus, etc., R. Co. v. Gaffney]], 66 Oh. St. 104, 81 NE 162.</ref> The one class is proved by direct, the other by indirect, evidence;<ref>[[Highway Comrs. v. Bloomington]], 253 Ill. 164, 97 NE 280, AnnCas 1913A 471; [[Indianapolis Coal Tract. Co. v. Dalton]], 43 Ind. A. 330, 87 NE 662; [[Pence v. Beckman]], 11 Ind. A. 263, 39 NE 169, 54 AmSR 505; [[Gillan v. O'Leary]], l24 App. Div. 498, 108 NYS 1024; [[Chilcott v. Trimble]], 13 Barb. (N.Y.) 502.</ref> in other words, the one must be proved by an actual agreement, while in the case of the other it will be implied that the party did make such an agreement as, under the circumstances disclosed, he ought in fairness to have made.<ref>[[Smith v. Moynihan]], 44 Cal. 53; [[Rose v. Wollenberg]], 38 Or. 164, 59 P 190; [[Coffroth v. Somerset County]], 19 Pa. Co. 354.</ref> The implication, of course, must be a reasonable deduction from all the circumstances and relations of the parties,<ref>'''Ky.'''-- [[Belknap v. Hayden]], 1 KyL 119, 10 Ky. Op. 652<br />
'''Md.'''-- [[Burt v. Myer]], 71 Md. 467, 18 A 796.<br />
'''Mass.'''-- [[Newmarket Mfg. Co. v. Coon]], 160 Mass. 566, 23 NE 380.<br />
'''N.Y.'''-- [[Miller v. Schloss]], 218 N.Y. 400, 113 NE 387, 89<br />
'''Vt.'''-- [[Morse v. Kenney]], 87 Vt. 445.<br />
'''B.C.'''-- [[Galbraith v. Hudson's Bay Co.]], 7 B.C. 431.<br />
'''Man.'''-- [[Aikens v. Allan]], 14 Man. 549; [[Munro v. Irvine]], 9 Man. 121.<br />
See [[Godfrey v. White]], 43 Mich. 171, 5 NW 243 (holding that a merchant who for his own purposes sends his customers to another dealer does not thereby acquire any claim on him).<br />
'''Evidence held not to show promise:'''
# To pay for building material. [[Citizens Electric Light, etc., Co. v. Van Lent]], (Iowa) 103 NW 796.
# By a bank to pay the debts of the firm to which it succeeded. [[Tecumseh Nat. Bank v. Saunders]], 50 Nebr. 521, 70 NW 42.
# To pay the excess of proceeds of a sale over the debt. [[Holland v. Laconia Bldg., etc., Assoc.]] 68 N.H. 480, 41 A 178.
# Between creditors to prorate loss. [[Swingle v. Brown]], (Tenn. Ch.) 48 SW 347.
# To pay for materials. [[Limer v. Traders' Co.]], 44 w. Va. 175, 28 SE 730.
# To pay for logs cut. [[Tuhotte v. Jervis Inlet Lumber Co.]], (B.C.) 18 WestLR 338.
# To pay for repairs to an automobile after a fire in a garage. [[Helber v. Schaible]], 183 Mich. 379, 150 NW 145.<br />
'''Evidence held to show implied promise of:'''
#Payment to tenant of damage from fallure to complete building. [[Ottumwa Mill., etc., Co. v. Manchester]], 139 Iowa 134, 116 NW 911.
# Payment by person in quarantine for supplies furnished. [[Plymouth Tp. v. Klug]], 28 N.D. 807, 146 NW 130.
# Payment for automobile repairs. [[Helber v. Schaible]], 183 Mich. 379, 150 NW 145.
# Payment of subcontractor. [[Schade v. Muller]], 75 Or. 216, 146 P l44.
# Payment of attorney's fees. [[Caldwell v. Stalcup]], (Tex. Civ. A.) 166 SW 110.
# Payment of money at death. [[Hatch v. Gillette]], 8 App. Div. 806, 40 NYS 1018.
# Payment for storage. [[Taylor v. Dexter Engine Co.]], 146 Mass. 813, 18 NE 462.</ref> although it need not be evidenced by any precise words,<ref>[[Park-Robertson Hardware Co. v. Copeland]], 11 Ala. A. 447, 66 S 880; [[Stobie v. Earp]], 110 Mo. A. 73, 83 SW 1097.<br />
'''Illustration.--'''a promise by a debtor, with the assent of his creditor, to pay his debt to a third person may be implied from any words or conduct evidencing such intention. [[Park-Robertson Hardware Co. v. Copeland]], 11 Ala. A. 447, 66 S 880.</ref> and may result from random statements and uncertain language.<ref>[[Rosenbaum v. Levitt]], l09 Iowa 292, 80 NW 393.</ref> A contract will not be implied where it would result in the perpetration of a wrong,<ref>[[Klug v. Sheriffs]], 129 Wis. 168, 109 NW 656, 116 AmSR 967, 7 LRANS 362, 9 AnnCas 1013.<br />
'''Illustration.--'''Defendant had delvered to plaintiff two photographs of his deceased wife for the purpose of having a portrait painted therefrom. It was agreed between the parties that the portrait should be painted from a specified one of the photographs. This was done, and the portrait was accepted and paid for by defendant. Thereafter. the artist painted a second portrait from the other photograph and submitted it to plaintif, and it was held that plaintiff, on refusing to return such second portrait, did not become liable to the artist for its value. [[Klug v. Sheriffs]], 129 Wis. 168, 109 NW 656, 116 AmSR 967, 7 LRANS 362, 9 AnnCas 1013.</ref> or it would be inequitable to do so,<ref>[[Irwin v. Jones]], 46 Ind. A. 588, 92 NE 787.</ref> or where the parties cannot legally make an express contract;<ref>[[Simpson v. Bowden]], 33 Me. 549; [[Bailey v. Sibley Quarry Co.]], 166 Mich. 321, 129 NW 17; [[Miller v. Schloss]], 218 N.Y. 400, 113 NE 337; [[Chase v. Second Ave. R. Co.]], 97 N.Y. 314, 49 AmR 631; [[Leslie v. Reliable Adv., etc., Agency]], [1915] 1 K.B. 652<br />
'''Illustration.--'''That a postmaster keeping his post office in a store in which he is employed as manager by a corporation, and turning over to it the proceeds of the store and post office, neglects to claim or to withdraw his commissions for four or five years does not vest title to them in the corporation, for the law will not imply a contract with reference to the emoluments of a public office. [[Bailey v. Sibley Quarry Co.]], 166 Mich. 321, 129 NW 17.</ref> so a promise to do an act contrary to duty or to law is never implied.<ref>[[Cary v. Curtis]], 3 How. (U.S.) 236, 11 L. ed. 576; [[American-Hawaiian Engineering, etc., Co. v. Terr.]], 16 Hawaii 711.</ref>
 
====Adoption of existing contract====
Where a person who is a stranger to a contract deliberately enters into relations with one of the parties which are consistent only with an adoption of such contract, and so acts as to lead such party to believe that he has made the contract his own, he will not be permitted afterward to repudiate it.<ref>[[Wiggins Ferry Co. v. Ohio, etc., R. Co.]], 142 U.S. 398, 12 SCt l33, 35 L. ed. 1055; [[Swift v. Detroit Rock Salt Co.]], 233 Fed. 231, 147 CCA 237; [[Taenzer v. Chicago, etc., R. Co.]], 170 Fed. 240, 95 CCA 436.</ref>


Although the parties may not have exchanged words of agreement, their conduct may indicate that an agreement existed.
====Questions of what facts will establish an implied contract====
Being identical with the questions of what facts are sufficient to show an offer and acceptance, are treated in connection with the discussion of offer,<ref>See [[Contracts/Offer|Offer]].</ref> acceptance,<ref>See [[Contracts/Acceptance|Acceptance]].</ref> and intent to affect legal relations<ref>See [[Contracts/Intention to Bind|Intention to Bind]].</ref> generally.


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.
====Other definitions====
# A contract is implied when it is evidenced by conduct manifesting an intention of an agreement."<ref>[[Gillan v. O'Leary]], 124 App. Div. 498, 502, 108 NYS 1024.</ref>
# "A contract . . . is implied when the agreement is matter of inference and deduction."<ref>[[Gillan v. O'Leary]], 124 App. Dlv. 498, 501, 108 NYS 1024.</ref>
# "An implied contract is co-ordinate and commensurate with duty, and whenever it is certain that one ought to do a particular thing . . . the law presumes the former to have promised that thing."<ref>[[Moore v. Renick]], 95 Mo. A. 202, 207, 68 SW 936.</ref>
# "An implied agreement is one where the conduct of the parties with reference to the subject matter is such as to induce the belief that they intended to do that which their acts indicate they have done."<ref>[[Cuneo v. De Cuneo]], 24 Tex. Civ. A. 436, 438, 59 SW 284.</ref>
# {{Quote|An implied promise always exists where equity and justice require a party to do or refrain from doing the thing in question; where the covenant on one side involves some corresponding obligations on the other; where by the relations of the parties and the subject matter of the contract a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of . . . [the contract]; and where it may be rightfully assumed that it would have been made if attention had been drawn to it.<ref>[[Marvin v. Rogers]], 63 Tex. Civ. A. 423, 428, 115 SW 863.</ref>}}
# "An Implied contract, in fact, arises where there is not an express contract, but there is circumstantial evidence showing that the parties did intend to make a contract."<ref>[[Turner v. Owen]], 122 Ill. A. 501, 504.</ref>
# An implied contract is one the existence and terms of which "is inferred from the conduct, situation, or mutual relations of the parties, and enforced by the law on the ground or justice."<ref>[[Jennings v. State Bank]], 79 Cal. 323, 326, 21 P 852, 12 AmSR 146, 6 LRA 233.</ref>
# "The term implied contract is generally used to denote a promise which the law, from the existence of certain facts, presumes that a party has made."<ref>[[Davis v. Seymour]], 59 Conn. 531, 533, 21 A 1004, 13 LRA 210 (quot 1 Swift Dig. p 182).</ref>


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.
====Statutory definitions====
"One, the existence and terms of which are manifested by conduct." <ref>Cal. Civ.
Code (1903) § 1621; N.D. Rev. Codes (1899) § 3884; Okl. Rev. St. (1903) § 777; S.D. Civ. Code (1903) § 1235.</ref>


[[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.
====Criticisms of the term====
# {{Quote|Contracts which are proved by the declarations and conduct of the parties and other circumstances, all of which are explainable only upon the theory of a mutual agreement, are often called, although not with en· tire accuracy, Implied contracts, and this definition will explain the ambiguity of some authorities and the apparent contrariety of others, all of the authorities, however, seem to agree that in suits for compensation for services, where a family relation is conceded or shown to exist, an actual contract must be clearly proved. Such contract may be in writing or it may rest entirely in parol, but it must nevertheless be a contract, and in our opinion it is a misnomer to denominate it an implied contract. It does not arise from nor is it aided by implication, but must be strictly proved.<ref>[[Hinkle v. Sage]], 67 Oh. St. 268, 263, 66 NE 999.</ref>}}
#{{Quote|It is sometimes said that "the law implies an agreement" as to the matters omitted to be explicitly stated in the verbal bargain. Strictly speaking, this is inaccurate. The agreement, though not fully expressed in words, is, nevertheless, a genuine agreement of the parties; it is "implied" only in this, that it is to be inferred from the acts or conduct of the parties instead of from their spoken words; "the engagement is signified by conduct instead of words." But acts intended to lead to a certain inference may "express a promise as well as words would have done."<ref>
[[Bixby v. Moore]], 61 N.H. 402, 403.</ref>}}


====Potential conduct implying implied contract====
====Effect of Express Contract====
* A prior history of similar agreements.
There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.<ref>'''U.S.'''-- [[Hawkins v. U.S.]], 98 U.S. 689. 24 L. ed. 607; [[Perkins v. Hart]], 11 Wheat. 237, 6 L. ed. 463; [[The Corfe Castle]] 221 Fed. 98; [[Amalgamated Gum Co. v. Casein Co.]], 146 Fed. 900; [[Arthur v. Baron de Hirsch Fund]], 121 Fed. 791, 58 CCA 67 [certiorari den 191 U.S. 570, 24 SCt 842, 48 L. ed. 306]; [[Krouse v. Deblois]], 14 F. Cas. No. 7 937, 1 Cranch C.C. 138; [[Hartman v. U.S.]], 40 Ct. Cl. 133.<br />
* When recipient accepts something of value knowing other party expects payment.
'''Ala.'''-- [[Loval v. Wolf]], 179 Ala. 505, 60 S 298; [[Alexander v. Alabama Western R. Co.]], 179 Ala. 480, 481, 60 S 295 (cit Cyc); [[Burkham v. Spiers]], 56 Ala. 547; [[Vincent v. Rogers]], 30 Ala. 471.<br />
'''Ark.'''-- [[Jackson v. Jones]], 22 Ark. 158; [[Manuel v. Campbell]], 3 Ark. 324.<br />
'''Conn.'''-- [[Weinhouse v. Cronin]], 68 Conn. 250, 36 A 45; [[King v. Kilbride]], 53 Coon. 109, 19 A 519; [[Leonard v. Dyer]], 26 Conn. 172, 68 AmD 382; [[Weed v. Weed]], 22 Conn. 364; [[Russell v. South Britain Soc.]], 9 Conn. 508; [[Shepard v. Palmer]], 6 Conn. 95; [[Hampton v. Windham]], 2 Root 199; [[Snow v. Chapman]], 2 Root 99; [[White v. Woodruff]], 1 Root 309; [[Carew v. Bond]], 1 Root 269; [[Avery v. Kinsman]], Kirby 354.<br />
'''Del.'''-- [[Draper v. Randolph]], 4 Del. 454.
'''Ga.'''-- [[Baldwin v. Lessner]], 8 Ga. 71.
'''Ill.'''-- [[Miller v. Duntley]], 264 Ill. 268, 106 NE 198; [[Ford v. McVay]], 55 Ill. 119; [[Walker v. Brown]], 28 Ill. 378, 81 Am. Dec. 287; [[Cast v. Roff]], 28 Ill. 462; [[Brougham v. Paul]], 138 Ill. A. 465; [[Brenzel v. Kirschner]], 128 Ill. A. 136; [[Schiml v. Edgeworth]], 118 Ill. A. 332; [[Ramming v. Caldwell]], 43 Ill. A. 175; [[Ginders v. Ginders]], 21 Ill. A. 522; [[Rollins v. Duffy]], 14 Ill. A. 69.<br />
'''Ind.'''-- [[Long v. Straus]], 107 Ind. 94, 6 NE 123, 7 NE 763, 57 AmR 87; [[Cranmer v. Graham]], 1 Blackf. 406.<br />
'''Iowa.'''-- [[Hall v. Luckman]], 107 NW 932; [[Powell v. Crampton]], 102 Iowa
364, 71 NW 579; [[White v. Jones]], 67 Iowa 241, 25 NW 151.<br />
'''Kan.'''-- [[Ray v. Missouri, etc., R. Co.]], 90 Kan. 244, 133 P 847; [[Smyser v. Fair]], 73 Kan. 733, 86 P 408.<br />
'''Ky.'''-- [[Morford v. Ambrose]], 3 J.J. Marsh, 688; [[Coffman v. Allin]], Litt. Sel. Cas. 200; [[Pringle v. Samuel]], 1 Bibb 172; [[Fonda v. Smith]], 6 KyL 853.<br />
'''La.'''-- [[Harris v. Louisiana Mach., etc., Co.]], 112 La. 196, 36 S 320; [[Mazureau v. Morgan]], 25 La. Ann. 281; [[Willis v. Melville]], 19 La. Ann. 13.<br />
'''Me.'''-- [[Simpson v. Bowden]], 33 Me. 549; [[Charles v. Dana]], 14 Me. 383.
'''Md.'''-- [[Sherley v. Sherley]], 118 Md. 1, 84 A 160; [[Speake v. Sheppard]], 6 Harr. & J. 81; [[Watkins v. Hodges]], 8 Harr. & J. 38; [[Hannan v. Lee]], 1 Harr. & J. 131.<br />
'''Mass.'''-- [[Brown v. Fales]], 139 Mass. 21, 29 NE 211; [[Zerrahn v. Ditson]], 117 Mass. 553; [[Whiting v. Sullivan]], 7 Mass. 107; [[Worthen v. Stevens]], 4 Mass. 448.<br />
'''Mich.'''-- [[In re De Haan]], 169 Mich. 146, 134 NW 983; [[Cashin v. Pliter]], 168 Mich. 388, 134 NW 482, AnnCas 1913C 697; [[Hickey v. Lundy]], 168 Mich. 386, 134 NW 4; [[Hathaway v. Vaughan]], 162 Mich. 269, 127 NW 337; [[Boughton v. Francis]], 111 Mich. 26, 69 NW 94; [[Schurr v. Savigny]], 85 Mich. 144, 48 NW 547; [[Keystone Lumber, etc., Mfg. Co. v. Dole]], 43 Mich. 370, 6 NW 412; [[Hunt v. Sackett]], 31 Mich. 18; [[Wilson v. Wagar]], 26 Mich. 452; [[Butterfield v. Seligman]], 17 Mich. 95; [[Galloway v. Holmes]], 1 Dougl. 330.<br />
'''Minn.'''-- [[Marcotte v. Beaupre]], 15 Minn. 162; [[Bond v. Corbett]], 2 Minn. 248.<br />
'''Miss.'''-- [[Musgrove v. Jackson]], 59 Miss. 390; [[New Orleans, etc., R. Co. v. Pressly]], 45 Miss. 66; [[Morrison v. Ives]], 12 Miss. 652.<br />
'''Mo.'''-- [[Chambers v. King]], 8 Mo. 617; [[Stollings v. Sappington]], 8 Mo. 118; [[Christy v. Price]], 7 Mo. 430; [[Johnson v. Strader]], 3 Mo. 359; [[Hicks v. National Surety Co.]], 169 Mo. A. 479, 155 SW 71; [[Clarke v. Kane]], 37 Mo. A. 258; [[Lindersmith v. South Missouri Land Co.]], 31 Mo. A. 258; [[Houck v. Bridwell]], 28 Mo. A. 644; [[Davidson v. Beirmann]], 27 Mo. A. 666; [[Suits v. Taylor]], 20 Mo. A. 166.<br />
'''Nebr.'''-- [[Powder River Live Stock Co. v. Lamb]], 38 Nebr. 339, 56 NW 1019.<br />
'''N.H.'''-- [[Streeter v. Sumner]], 19 N.H. 516; [[Britton v. Turner]], 6 N.H. 481, 26 AmD 713.<br />
'''N.J.'''-- [[Voorhees v. Combs]], 83 N.J. L. 494.<br />
'''N.Y.'''-- [[Miller v. Schloss]], 218 N.Y. 400, 113 NE 337; [[Watson v. Gugino]], 204 N.Y. 636, 911 NE 18, 39 LRANS 1090, AnnCas19UD 216; [[Glacius v. Black]], 60 N.Y. 145, 10 AmR 449; [[Work v. Beach]], 63 Hun 7, 6 NYS 27: [[Preston v. Yates]], 24 Hun 634; [[Harris v. Story]], 2 E.D. Smith 363; [[Gauld v. Lipman]], 4 Misc. 78, 23 NYS 778; [[Merrill v. Ithaca, etc., R. Co.]] 16 Wend. 686, 30 AmD 130; [[Outwater v. Dodge]], 7 Cow. 85; [[Wood v. Edwards]], 19 Johns. 206; [[Clark v. Smith]], 14 Johns. 326; [[Jennings v. Camp]], 13 Johns. 94, 7 AmD 367; [[Raymond v. Bearnard]], 12 Johns. 274, 7 AmD 317. And see [[Patterson v. Kelly]], 59 Hun 626, 14 NYS 111.<br />
'''N.C.'''-- [[Morganton Mfg., etc., Co. v. Andrews]], 165 N.C. 285, 290, 81 SE 418, AnnCas1916A 763 (cit Cyc); [[Lindsay v. Hamburg Bremen Ins. Co.]], 115 N. C. 212, 20 SE 870; [[Lawrence v. Hester]], 93 N.C. 79; [[Dula v. Cowles]], 47 N.C. 454; [[Winstead v. Reid]], 44 N.C. 76, 57 AmD 571.<br />
'''Oh.'''-- [[Kachelmacher v. Laird]], 92 Oh. St. 324, 110 NE 933; [[Abbott v. Inskip]], 29 Oh. St. 59; [[Creighton v. Toledo]], 18 Oh. St. 447; [[Hall v. Blake]], Wright 489; [[Halloway v. Davis]], Wright 129.<br />
'''Or.'''-- [[Fiske v. Kellogg]], 3 Or. 603.<br />
'''Pa.'''-- [[Musser v. Ferguson Tp.]], 6& Pa. 476.<br />
'''S.C.'''-- [[Suber v. Pullin]], 1 S.C. 273; [[Wood v. Ashe]], 32 S. C. L. 407; [[Stent v. Hunt]], 21 S.C. L. 225.<br />
'''Tex.'''-- [[Gammage v. Alexander]], 14 Tex. 414; [[Prichard v. Foster]], (Civ. A.) 170 SW 1077, 1079 (cit Cyc); [[Sanborn v. E. R. Roach Drug Co.]], (Civ. A.) 137 SW 182, 183 {cit Cyc); [[Armstrong v. Cleveland]], 32 Tex. Civ. A. 482, 74 SW 789.<br />
'''Vt.'''-- [[Hemenway v. Smith]], 28 Vt. 701; [[Camp v. Barker]], 21 Vt 469.<br />
'''Wis.'''-- [[Appleton Waterworks Co. v. Appleton]], 132 Wis. 663, 113 NW 44; [[Tletz v. Tietz]], 90 Wis. 66, 62 NW 939; [[Maynard v. Tidball]], 2 Wis. 34.<br />
'''Eng.'''-- [[James v. Cotton]], 7 Bing. 266, 20 ECL 126, 131 Reprint 103; [[Hulle v. Heightman]], 2 East 146, 102 Reprint 324; [[Selway v. Fogg]], 5 M. & W. 83, 151 Reprint 38; [[Cutter v. Powell]], 6 T.R. 320, 101 Reprint 673, 6 ERC 627; [[Toussaint v. Martinnant]], 3 T.R. 104, 100 Reprint 65.<br />
'''Can.'''-- [[Allcroft v. Adams]], 38 Can. S.C. 366; [[Connolly v. St. John]], 35 Can. S.C. 186.<br />
'''Man.'''-- [[Knox v. Munro]], 13 Man. 16.</ref> The reason of the rule is that, since parties are bound by their agreement, there is no ground for implying a promise where there is an express contract,<ref>[[Walker v. Brown]], 28 Ill. 378, 81 AmD 287; [[Morganton Mfg., etc., Co. v. Andrews]], 186 N.C. 286, 81 SE 418. AnnCas1916A 763.</ref> and it can make no difference whether the contract is made by the parties themselves or by others for them.<ref>[[Walker v. Brown]], 28 Ill. 378, 81 AmD 287</ref> This rule only applies, however, where the express and the asserted implied contract relate to the same subject matter, and where the provisions of the express contract would supersede those of the other.<ref>[[Wheeling, etc., R. Co. v. Carpenter]], 218 Fed. 273, 134 CCA 69; [[Rogers v. Becker-Brainard Milling Mach. Co.]], 211 Mass. 669, 98 NE 692; [[Wilson v. Dietrich]], (N.J. Ch.) 59 A 251; [[Commercial Bank v. Pfeiffer]], 22 Hun 327 [aff 108 N.Y. 242, 16 NE 311].</ref> It does not apply where the implied agreement is based on the subsequent conduct of the parties not covered by the express contract.<ref>[[Efron v. Stees]], 113 Minn. 242, 129 NW 374; [[Murphy v. Quigley]], 21 Oh. Cir. Ct. 313, 11 Oh. Cir. Dec. 638.</ref> Further, where the express contract is rescinded, resort may be had to an implied contraet.<ref>'''U.S.'''-- [[Columbia Bank v. Patterson]], 7 Cranch 299, 3 L. ed. 351.<br />
'''Colo.'''-- [[Cody v. Raynaud]], 1 Colo. 272.<br />
'''Ill.'''-- [[Walker v. Brown]], 28 Ill. 378, 81 AmD 287.<br />
'''Miss.'''-- [[Morrison v. Ives]], 12 Miss. 652.<br />
'''Eng.'''-- [[Towers v. Barrett]], 1 T.R. 133, 99 Reprint 1014.</ref> So if the contract has been completely executed, plaintiff may recover as on an implied contract, under an indebitatus assumpsit, the price of his services, but the contract must regulate the amount of recovery.<ref>[[Columbia Bank v. Patterson]], 7 Cranch 299, 3 L. ed. 351.<br />
'''Conn.'''-- [[Londregon v. Crowley]], 12 Conn. 558.<br />
'''Ill.'''-- [[Walker v. Brown]], 28 Ill. 378, 81 AmD 287; [[Holmes v. Stummel]], 24 Ill. 370.<br />
'''Me.'''-- [[Charles v. Dana]], 14 Me. 383,<br />
'''Eng.'''-- [[James v. Cotton]], 7 Bing. 266, 20 ECL 125, 131 Reprint 103.</ref> Further, a contract may be implied when the express agreement is unenforceable for certain reasons.<ref>[[Walker v. Brown]], 28 Ill. 378, 81 AmD 287; [[Gay v. Mooney]], 67 N.J.L. 27, 50 A 596 (aff 67 N.J.L. 687, 52 A 1131) (where the agreement was to devise land in payment and it was unenforceable because of the statute of frauds)</ref>


===Implied in Law or Quasi or Constructive Contracts===
===Implied in Law or Quasi or Constructive Contracts===
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>
Contracts implied in law, or more
'''U.S.'''-- [[Nevada Co. v. Farnsworth]], 89 Fed. 164. 165.<br />
properly quasi or constructive contracts, are a ela!Jf!
'''Ill.'''-- [[Peo. v. Dummer]], 274 Ill. 637, 641, 113 NE 934; [[Chudnovskl v. Eckels]], 232 Ill. 312, 317, 83 NE 846; [[Chicago v. Pittsburg, etc., R. Co.]], 146 Ill. A. 403, 410 [aFf 242 Ill. 30, 89 NE 648].<br />
of obligatjpns which are imposed or created by law
'''N.Y.'''-- [[Gutta Percha, etc., Mfg. Co. v. Houston]], 108 N.Y. 276, 278, 15 NE 402. 2 AmSR 412; [[Peo. v. Speir]], 77 N.Y. 144, 150; [[Munger Vehicle Tire Co. v. Rubber Goods Mfg. Co.]], 39 Misc. 817. 818. 81 NYS 302; [[Wickham v. Well]], 17 NYS 518.<br />
without regard to the assent of the party bound, on
'''Pa.'''-- [[Hertzog v. Hertzog]], 29 Pa. 465, 467 [quot 2 Blackstone Comm. p H3].<br />
the ground that they are dictated by reason and
'''S.C.'''-- [[Abbott v. Sumter Lumber Co.]], 93 S.C. 131, 138, 146, 76 SE 146 ac[cIt Cyc].<br />
JUstice, and which are allowed to be enforced by an
'''S.D.'''-- [[Meade County v. Welch]], 34 S.D. 348, 349, 356, 148 NW 601 [cit Cyc].<br />
action ex eontractu.62 They rest solely on a legal fl.etion,81 and are not contract obligations at all in '
'''Tex.'''-- [[Leonard v. State]], 56 Tex. Cr. 307 315, 120 SW 183.<br />
the true sense, for there is no agreement ; but they
{{Quote|The term "implied contract" has also been applied to a class of obligations which are created by law without regard to the assent of the party upon whom the obligation is imposed, on the ground that they are dictated by reason and justice. They are not concontract obligations in the true sense because there is no agreement of the parties, but they are constructive contracts created hy the law.}} [[Peo. v. Dummer]], 274 Ill. 637, 641, 113 NE 934.<br />
are clothed with the semblance of contract for the
'''Foundation of doctrine.'''
purpose of the remedy /1' and the obligation arises
#"The whole theory of contracts implied in law was originated for the purpose of giving a remedy ex contractu for certain wrongs." [[Nevada Co. v. Farnsworth]], 89 Fed. 164, 165.
not from consent, , as in the ease of true contracts,
#{{Quote|After subtracting express contracts and contracts implied in fact, there is still left another large class of obligations, to enforce which the action of general assumpsit is a well established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles, derived from the civil law. This obligation was under the civil law designated "quasi-contractus." Stated as a civil law principle, it was an obligation similar in character to that of a contract, but which arises not from an agreement of parties but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obllgation springing from voluntary and lawful acts of parties in the absence of any agreement. (Howe's Studies of Civil Law, 171; Morey on Roman Law, 371).}}[[Highway Comrs. v. Bloomington]], 253 Ill. 164, 173, 97 NE 280, AnnCast913A 471.
but from the law or natural equity.65 So, when the
# 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 />
party to be bouna is under a legal obligation to
'''Ga.'''-- [[Western Union Tel. Co. v. Taylor]], 84 Ga. 408, 11 SE 396, 8 LRA 189.<br />
perform the duty from which his promise is in· 1
'''Ill.'''-- [[Peo. v. Dummer]], 274 Ill. 637, 113 NE 934.<br />
ferred, th<> law may infer a promise even as against
'''Mich.'''-- [[Woods v. Ayres]], 39 Mich. 345, 33 AmR 396.<br />
his intention.66 Among the instances of quasi or
'''Minn.'''-- [[Penas v. Chicago, etc., R. Co.]], 112 Minn. 203, 127 NW 926, 140 AmSR 470, 30 LRANS 627 [cit Cyc].<br />
constructive contracts may be mentioned eases in
'''Mo.'''-- [[Weknsberg v. St. Louis Cordage Co.]], 135 Mo. A. 553, 116 SW 461.<br />
which one person has received money which another
'''Mont'''.-- [[Schaeffer v. Miller]], 41 Mont. 417, 109 P 970, 137 AmSR 746 [quot Cyc].<br />
person ought to have received, and which
'''N.H.'''-- [[Sceva v. True]], 53 N.H. 627.<br />
the lat ter is allowed to recover from the former
'''N.Y.'''-- [[MiIler v. Schloss]], 218 N.Y. 400, 113 NE 337.<br />
in an acti&n of assumpsit for money llad and re­
'''Pa.'''-- [[Pierce's App.]], 103 Pa. 27; [[Hertzog v. Hertzog]], 29 Pa. 465.<br />
ceived, or money received to the use of plaintil! ;r. eases in which one person has been eompt>lled
'''S.D.'''-- [[Meade County v. Welch]], 34 S.D. 348, 349, 148 NW 601 [cit Cyc].<br />
to pay money which another ought to have
'''Tex.'''-- [[Leonard v. State]], 56 Tex. Cr. 307, 315, 120 SW 183 [quot Cyc].<br />
paid, and which a􁅻 is allowed to recover from the
'''Vt.'''-- [[Morse v. Kenney]], 87 Vt. 45, 89 A 865; [[Bliss v. Hoyt]], 70 Vt. 534, 41 A 1026.<br />
latter in an action o( assumpsit for money paid to
"Such contracts are contracts merely In the sense that a remedy is by the statutory remedy of assumpsit and are created and governed by the principles of equity." [[Peo. v. Dummer]], 274 Ill. 637, 642, 113 NE 934.<br />
his use;18 · eases of account stated, from which the
"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 />
law implies a J!romise which will support an action
'''Mont.'''-- [[Schaeffer v. Miller]], 41 Mont. 417, 109 P 970, 137 AmSR 746.<br />
of aasumpsit ; judgments on which an action of
'''N.Y.'''-- [[Miller v. Schloss]], 218 N.Y. 400, 113 NE 337.<br />
assumpsit or debt may be maintained, according to
'''Vt.'''-- [[Underhlll v. Rutland R. Co.]], 98 A 1017.<br />
the circumstances, because of a promise to pay implied
'''Can.'''-- [[Gresham Blank Book Co. v. Rex]], 14 Can. Exch. 236.<br />
by law ; 10 eases in· which an obligation to pay
{{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.}}
money is imposed by a statute ;11 cases where a
[[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 />
person by wrongfully appropriating property to his
'''Act which party refuses to permit.'''--{{Quote|The rule is that one cannot be held liable on an implied contract to pay for that which he declines to permit to be done on his account. The exception to the rule is that when the law imposes upon one an obligation to do something which he declines to do, and which must be done to meet some legal requirement, the law . . . treats performance by another as performan for him, and implies a contract on his part to pay for it.}}
own use becomes liable to yay the owners the rea­
[[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 />
􁆀nable value thereof ;12 · eases in which a person
'''Mass'''-- [[Milford v. Com.]], 144 Mass. 64, 10 NE 516.<br />
fails to deliver specific property and becomes liablt"
'''Mich.'''-- [[Woods v. Ayres]], 39 Mich. 345, 33 AmR 396.<br />
for the money value thereof ;18 eases where one
'''S.D.'''-- [[Yankton Bd. of Education v. Yankton County School Dlst.]], 23 S.D. 425, 431, 122 NW 411 [cit Cyc].<br />
party wrongfully compels anoth􀁘 to render him
'''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>
'\""aluable services, and a promise to pay their value
i3 implied ;" cases .where one man has obtained money from another by oppression, extortion, or deceit,
or by the commission of a trespass ;16 eases
where necessaries have been furnished to a wife
wrongfully abandoned by 'her husband, although he
has given notice that he will not be respousibl4;! ;7'
and cases in which the husband is permitted to
reco􀈴er the wife 's funeral expenses from her estate.
11 In order that 1 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.7s


==Executed and Executory Contracts==
==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 />
An executed contract is one where nothing remains
Colo.-McCutchen v. Klaea, 26 Colo. A. 3 7 4 , 3 7 7 , H3 P 1 4 3 .<br />
to be· done py either party.19 An executory contract
Ill.-Fox v. Kltton, 19 Ill. 619. 632.<br />
is one in which a party binds himself to do
Iowa.-Keokuk v. Ft. Wayne Electric Co. , 90 Iowa 87, 71, 67 NW 6 8 9 .<br />
or not to do a particular thing in the future.80 An
N . .T.--8tate v. Jersey Ci ty, 31 N. J. L. 676, 681, 86 AmD 240.<br />
executory contract conveys a chose in '
Tenn.-Hale v. Sharpe, 4 Coldw.<br />
action ; an
Utah.-- A dams v. Reed, 11 Utah 480. 5 0 1. 40 P 720 ratr 16 8 u. s. 673, ts set 1 7 9 . 42 L. ea. 684].<br />
executed contract, a chose in possession.st A con.
'''[a] Other definitions.'''-
tract may be partly executed and partly executory,
#"One In whlcll all the parties thereto have performed all the obligations which they have originally assumed." Wat· klns v. Nuf.en, 118 Ga. 372, 374, 45 SE 262.
82 and may be executory as to one p􀆃y and executed
# 'One In which the object of the co ntra ct Is _performed." Fletcher v. Peck, 6 Cranch (U. S. ) 87, •136, 3 L. ed. 162 (per Marshall, C. :J. ); nastln Tel. Co. v. Richmond Tel. Co., 117 Ky. 122, 126, 77 SW 702, 26 KyL 1249; Skelly v. :Jefferson Branch Bank, 9 Oh. St. 607, 6 2 3 ; Sa ndusk.f City Bank v. Wllbor, 7 Oh. St. 48􀂲. 494.
as to the other.83 While it has been said that an
# "One the object 'o f which Is f ully performed." Cal. Clv. Code (1903) 1 1661 ; N. D. Rev. Codes (1899) I 3919 ; Okl. Rev. St. ( 1 9 0 3 ) § 8 1 2 .
executed contract is not properly a contract at all,
# "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.
but that the contractual obligation having been performed,
# "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.
the parties are no longer bound,U this is
'''[b] A grant actually made''' is an "e xecuted contract," and such a contract requi res no consideration to su pport J t. Farr i ngton v. Tennessee, 95 u. S. 6 7 9 , 6 8 3 , 24 L. ed. 6 6 8.<br />
not strictly accurate, for the reason that, in cases
'''[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 />
wherein the contract operates as a grant, there is
Ala.-Fulenwider v. Rowan, 1 3 6 Al a. 2 8 7 , 3 4 S 9 7 5 .<br />
'an implied contract on the part of the grantor not
Colo.-Dickson v. Dick , 6 9 Colo. 5 8 3 , 6 8 7 , 58 8, 1 5 1 P 4 4 1 f e l t Cyc ] .<br />
to reassert the right which he has granted.86
Iowa.-Keokuk v . Ft. Wayne Electric Co . . 9 0 Iowa 67. 71, 6 7 NW 6 8 9 .<br />
N.J.-:Jersey C i ty, etc., R. Co. v. Je rsey City, 31 N. :J. L. 6 7 6 , 6 8 1 , 8 6 A m D 2 4 0.<br />
N. Y.-:Justlce v. LanL 4 2 N. Y. 4 9 3, 49 6 , 1 9\.mR 6 7 6 ; Wi ckham v. Wel l, 1 7 NYS 6 1 8 .<br />
Oh.-Sandusky City Ba.nk v . Wllbor, 7 Oh. St. 481.<br />
S. D.-Mettel v. Gales, 12 S. D. 832. 639, 8Z NW 181.<br />
Utah.-Adams v. Reed, 1 1 Utah 480. 601, 40 P 720 [atf 1 6 8 U. S. 6 73 , 18 SCt 17.9. 42 L. ed. 684].<br />
See Kl11ebrew v. M urray, 151 K y. 346, 15 1 SW 662 (holding contract executory) .<br />
'''[a] Other definitions.'''--
#"A con· tract to do some f u t ure act." Hale v. Sharpe, 4 Coldw. (Tenn.) 275 , 286.
# "One where It Is s t ipulated ... upon a sufficient consideration that something Is to be done or not to be done by one or both of the parties." Bergere v. Chaves, 14 N. M. 352, 364, 93 P 762, 61 LRA NS 50.
# "One In wh ich something remains to be don e by one or more parties." Watkins v. Nugen, 118 Ga. 3 72, 374, 4'5 SE 262.
# "A ll contracts other thai!' those the object of which Is fully performed are executory con· tracts." Cal. Clv. Code (1903) 1 1661 ; N. D. Rev. Codes (1899) f 3919; Okl. Rev. St. ( 1 903 ) I 812.
# "Whilst any act remains to be done, tt1 e contract Is understood to be executory." Fox v. Kitt o n, 19 Ill. 519, 532.
'''[b] Illustrations'''--
# A con tract betw e en a ci ty and an electric light company, by which the company Is to !lu rn l sh lights for a cer tai n number o f years at a fixed price, Is an executory. and not an executed, contract. K eokuk v. Ft. Wayne Electric Co.. 90 Iowa 67, 57 NW 689.
# Where parties In the sale of stock agreed to pay a certain sum of money on one day, a nd on a subsequent day a certain other sum, and at some time to execute a r.ote for a third sum, and such acts were done on such days, the co ntract ca n· not be said to be execu tory merely because the note given was unpaid. Cincinnati, etc .. R. Co. v. McKeen, 64 Fed. 36, 12 CCA 1 4.
# 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 />
Ala.-Southern States Co. v. Long, (A. ) 73 B 1 4 8 .<br />
Cal.-Dean v. Sedan Milling Co., 1 9 Cal. A. 28. 124 P 7 3 6, 739 [ci t Cyc).<br />
Colo.-Omaha Lumber Co. v. Co- operative Inv. Co. , 55 Colo. 271, 1 33 P 1112, 1116 [cit Cy c) .<br />
Okl.--Oalbreath Gas Co. v. Lind- sey, 161 P 826.<br />
Pa.-Moody v. McTaggart, 29 Pa. Super. 465. 468 [quot Cyc ].<br />
S. C. -Tucker v. Cox, 101 S. C. 4 7 3, 47,8, 86 S E 28 fquot Cyc ).<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>


===Formal Execution===
===Formal Execution===
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 />
The word "executed " is also
'''Formal execution of contracts''' see [[Contracts/Formal requisites#Signing--Necessity for|Signing--Necessity for]].</ref>
used with reference to contracts in the sense of
"made, " a meaning which is, of course, entirely
distinct from that already given.80 .


==Simple or Parol Contracts==
==Simple or Parol Contracts==
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. ).
Contracts are divisible into two classes, simple contracts, and
<br />'''[a] Other definitions'''--
contractli 􀆄y specialty.87 Simple contracts are contracts
# "Those whose validity does not depend upon t heir form. but upon the presence Bec:kof a considerat ion. With the excep, tlon of c on tracts under s e al and con- tracts of record. every c on tract re- quires a consideration to su pport it." Corcoran v. New York Ce nt .. etc., R. Co .. 20 Misc. 197, 200. 4 6 NYS 861 [str 25 App. Dlv. 4 7 9, 4 9 NYS 701 <atr 164 N. Y. 587 mem. 68 NE 1086 mem)].
which are not under seal.88 They may be
# "An agreemen t between two parties. a draw ing to geth e r of two minds to a common Intent. and must be voluntary as well as mutual." Cash ion v. Weetern Union Tel. Co., 124 N. c. 4 6 9, 468, 32 SE 746, 46 LRA 160.
either written or oral,88 and the term is synonymous
<br />'''[b] In Georgia''' "simple contracts" are defined by the code as all others than those s peci fied as contracts of record and s pecialties. Code I 2718; Western Union Tel. Co. v. Taylor, 84 Ga. 4 08. 418, 1 1 SE 396. 8 LRA 1R9.
with the term "parol contracts, " 110 which is also
<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>
used to distinguish contracts made verbally or not
under senl.81 Properly speaking there is no distinct claila of contracts merely in writing."


==Written and Oral Contracts==
==Written and Oral Oontracts==
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. writ­ten contract is one which, in all its terms, is in
"A written contract creates a specified relation between the parties, and when the duties of that relation are not fully defined In the con trac t, the law defines th em according to the circumstances." M orrison v. Davis, 20 Pa. 171, 1 7 7 67 AmD 695.<br />
writing." A contract which is not entirely in writing
"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 />
is regarded as an oral or verbal contract."
'''[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 />
Further, in order that. a contract may be deemed
D. C.-Evans v. Schoonmaker, 2 App. 62. 71.<br />
to be in writing, it must be in legible charaeters."
111.-Railway Pass .. etc .. Conductors Mut. Ald. etc., Assoc. v. Loomis, 142 Ill. 5 60, 567. 32 N E 4 24 [ cit Bishop Contr. I 1 6 3 ) ; Fuchs, etc .. Mfg. Co. v. K ittred ge, 146 Ill. A. 350, 363 [atr 242 Ill. 8 8 , 89 NE 723]· Rittenh o use. etc .• Co. v. Barry, 98 111. A. 648, 654 [rev on other grou nds 1 9 8 Ill. 602, 64 NE 995) ; Murphy v. C icero Lu mber Co .. 9 7 Ill. A. 5 1 0.<br />
The word "contract " is broad enough to include
Ind.-Loulsvllle. e tc .. p. Co. v. Rey- nolds, 118 Ind. 170, 1 7 •• 20 NE 711; Marl on C ou nty v. Shi p ley , 77 InJt. 563, 666 ; Flshbeh;t v. Paine. 52 Ind. A. 441, 100 NE 768; Locomoti ve Flre- men Brotherhood L. F. & E. v. Cor- der, 6 2 Ind. A. 214. 97 NE 125. 128: Miller v. Sha r pe, 62 Ind. A. 11. 100 NE :1,.08, 109; Stautrer v. Llnentbal. 29 Ini:J. A. 306, 64 NE 64 3.<br />
contracts both in writing and bt parol."
B. C.-Emb,ree v. McKee, lf B. c. 46 46.<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>
 
==Special Contracts==
A special contract<ref>'''Sealed Contracts''' see [[Contracts/Formal requisites#Seal|Contracts under seal]].</ref> is one with peculiar provisions or stipulations not found in the ordinary contract relating to the same subject matter. These provisions are such as, if omitted from the ordinary contract, the law will never supply.<ref>Jackson v. C reek. H Ind. A. 541, 94 NE 418, 418; I ndi anapol is Coal Tract. Co. v. Dal ton, 4 3 Ind. .A. 330, 87 NE 652, 664; Pence v. Bec:kof ma n. 11 I nd. A. 264, 39 NE 169, 170. 54 AmSR 605 ; Fo res ter v. Fo rester. 10 Ind. A. 880, 88 NE 4 26. 427. See also Ward v. Missouri Pac. R. Co .. 158 Mo. 228, 68 SW 28 (holding a contract special only as it alters general terms and conditions).</ref> A special contract may rest in parol,<ref>Midland Roofing Mfg. Co. v. Pickens. 96 S. C. 286, 80 SE 484.</ref> and the term does not require a eontract by specialty.<ref>Midland Roofing Mfg. Co. v. Pickens. 96 S. C. 286, 80 SE 484.
<br />'''Specialty contracts''' see [[Contracts/Formal requisites#Seal|Contracts under seal]].</ref>


==Special Contracta==
A special contract
is one with peculiar provisions or stipulations
not found in the ordinary contract relating to th<­
same subject matter. These provisions are sueh as.
if omitted from the ordinary contract, the law will
never supply.88 A special contract may rest in
parol," and the term does not require a eontraet
by specialty.1 _
.
==Conditional Contracts==
==Conditional Contracts==
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 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, some­
thing, but it is a contract whose very existence and
performance depends on a contingency and condition.2


==Gratuitous Contracts==
==Gratuitous Contracts==
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 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.3


==Bilateral and Unilateral Contracts==
==Bilateral and Unilateral Contracts==
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 />
bilateral contract is one in which there are reciprocal
'''Necessity and existence of mutuality''' see [[Contracts/Consideration#Mutuality|Mutuality]].</ref>
promises, so that there is something on both
sides to be done or forborne,• while a unilateral contract is one in which there is a promise on one
side only A the consideration on the other side being
executed. , " Unilateral, " however, is frequently
employed by the courts to express absence of mutuality.
6


==Commutative Contracts==
==Commutative Contracts==
"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 />
"Commutative contract" is a term used in the civil law to
'''[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 />
designate a contract in which each of the contracting
'''[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.
parties gives and receives an equivalent.1 The
 
contnct of sale is of thls kind : the seller gives
==References==
the thing sold, and receives the price which is the
{{reflist}}
equivalent ; the buyer gives the price, and receives
the thing sold, which is the equivalent.•
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