Contracts/Definitions: Difference between revisions
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==Promise== | ==Promise== | ||
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 | 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== | ==Agreement== | ||
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 | 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> | ||
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> | |||
Another definition of '''Agreement''' is "a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing."<ref>''[[Carter v. Prairie Oil, etc., Co.]]'', (Okl.) 160 P 319, 322.</ref> | Another definition of '''Agreement''' is "a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing."<ref>''[[Carter v. Prairie Oil, etc., Co.]]'', (Okl.) 160 P 319, 322.</ref> | ||
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''See also'' [[Contracts/Offer and acceptance]]. | ''See also'' [[Contracts/Offer and acceptance]]. | ||
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 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> | ||
==Obligation== | ==Obligation== | ||
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==Express Contracts== | ==Express Contracts== | ||
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). | |||
is one where the intention of the parties and | <br /> | ||
the terms of the agreement are declared or expressed | Del.-- [[Jones v. Tucker]], 26 Del. 422, 423, 84 A 1012. | ||
by the parties, in writing or orally | <br /> | ||
time it is entered into. | Ill.-- [[Peo. v. Dummer]], 274 Ill. 637, 640, 113 NE 934; [[Turner v. Owen]], 122 Ill. A. 501, 504. | ||
although some of its terms are dependent on the | <br /> | ||
happening of a future event, | Ind.-- [[Yawger v. Joseph]], 184 Ind. 228, 108 NE 774, 775 (cit Cyc). | ||
by an | <br /> | ||
Express contracts | Oh.-- [[Turney v. Wooley]], 23 Oh. Cir. Ct. N.S. 111, 114. | ||
are properly divided into two | <br /> | ||
Pa.-- [[Hertzog v. Hertzog]], 29 Pa. 465, 467. | |||
<br /> | |||
Tenn.-- [[Thompson v. Woodruff]], 7 Coldw. 401, 409. | |||
<br /> | |||
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> | |||
===Other Definitions=== | |||
# "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> | |||
# "An agreement whose terms are openly uttered or expressed by the contracting parties." <ref>[[Linn v. Ross]], 10 Oh. 412, 414, 36 AmD 96. To same effect [[Wickham v. Weil]], 17 NYS 618; [[Thompson v. Woodruff]], 7 Coldw. (Tenn.) 401.</ref> | |||
# "Such as are voluntarily made by the parties thereto." <ref>[[Grevell v. Whiteman]], 32 Misc. 279, 280, 65 NYS 974.</ref> | |||
# "One where a bargain has been made by the two parties covering the subject in question." <ref>[[Cotfroth v. Somerset County]], 19 Pa. Co. 354, 358.</ref> | |||
# "A contract is express when it consists of words written or spoken, expressing an actual agreement of the parties." <ref>[[Gillan v. O'Leary]], 124 App. Div. 498, 502, 108 NYS 1024; [[Prichard v. Foster]], (Tex. Civ. A.) 170 SW 1077, 1078.</ref> | |||
# "An express agreement is where the parties thereto expressly agree." <ref>[[Cuneo v. De Cuneo]], 24 Tex. Civ. A. 436, 438, 59 SW 284.</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== | ==Implied Contracts== | ||
===Classes and Distinctions=== | ===Classes and Distinctions=== | ||
Implied contracts are frequently spoken | 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> | ||
of as being divisible into two classes : | |||
implied in fact ; | ====Ambiguous definitions of term "implied contract"==== | ||
in law. | |||
#"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> | |||
the elements of true contracts. | # 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> | ||
designation of the so called contracts implied in | # "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> | ||
law, and one which is frequently, employed, is | |||
quasi or constructive | ====Statutory uses of term "implied contracts"==== | ||
contracts," however, as it is ordinarily employed, | |||
is broad enough to include both | |||
implied in fact and quasi or constructive | |||
{{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>}} | |||
====Distinctions==== | ====Distinctions==== | ||
Revision as of 02:55, July 15, 2020
Promise
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
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.[1]
Another definition of Agreement is "a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing."[2]
See also Contracts/Offer and acceptance.
The term "agreement" is sometimes used as synonymous with "contract."[3]
Obligation
The duty imposed by law on the parties to a contract to perform their undertaking constitutes the obligation of the contract.[4]
A well-recognized distinction is drawn between a contract itself and its obligation. The contract is the agreement of the parties; the obligation is the remedy which the law affords for its enforcement. [5]
The existence of such an obligation is essential to the existence of a contract.[6] The questions of what acts impair the obligations of contracts,[7] and of what are contracts within the scope of the constitutional protection,[8] are elsewhere treated.
Compact
"Compact" and "contract" are used as convertible terms.[9]
Express Contracts
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.[10] It is an express contract, although some of its terms are dependent on the happening of a future event,[11] or although consummated by an agent.[12]
Other Definitions
- "A contract is express when the agreement is formal, and stated either verbally or In writing" [13]
- "An agreement whose terms are openly uttered or expressed by the contracting parties." [14]
- "Such as are voluntarily made by the parties thereto." [15]
- "One where a bargain has been made by the two parties covering the subject in question." [16]
- "A contract is express when it consists of words written or spoken, expressing an actual agreement of the parties." [17]
- "An express agreement is where the parties thereto expressly agree." [18]
Express contracts classified
Express contracts are properly divided into two classes, contracts under seal or specialties, and contracts in parol.[19]
Implied Contracts
Classes and Distinctions
Implied contracts are frequently spoken of as being divisible into two classes:[20] (1) Contracts implied in fact;[21] and (2) contracts implied in law.[22] This division has been subjected to some criticism,[23] and perhaps justly so, because of the absence from so called contracts implied in law of the elements of true contracts.[24] A more accurate designation of the so called contracts implied in law, and one which is frequently, employed, is quasi or constructive contracts.[25] 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.[26]
Ambiguous definitions of term "implied contract"
- "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."[27]
- 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."[28]
- Implied contracts "are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform."[29]
- "Implied contracts are such as reason and justice dictate, and which the law presumes from the relations and circumstances of the parties."[30]
Statutory uses of term "implied contracts"
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.[31]
Distinctions
A contract implied in faet is a true eontraet, the agreement of the parties being inferred from the circumstances, while a eontract implied in law is but a duty imposed by law and treated as a eontract for the purposes of a remedy only.�a In the ease of contracts implied in fact, tMre must be an assent of the parties, as in express eontraets,34 while .in the case of contracts implied in law or more properly quasi or eonstructive eontraets the obligation arises, not from consent, but from the law or natural equity.85 In the ease of contracts implied in fact, the contract defines the duty, while in the ease of eonstructive eont'racts, the duty defines the eontract.86
Contracts Implied in Fact
ln 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,S7 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.38 It follows, that thtt only distinction between this species of contract and expresa contracts rests in the mode of proof ;31 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.40 The one elass is proved by direct, the other by indirect, evi-, dence ;n 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.'2 The implication, of course, must be a reasonable deduction from all the circumstances and relations of the parties,'3 although it need not be evidenced by anv precise words," and may result from random ata ment. and uncertain langqage. A contract will not be implied where it would result in the tration of a wrong," or it would be inequitable to do so,.., or where the parties eannot legally make ·an expreae contract ;" ao a promise to do an act contrary to duty or to Jaw is never implied.••
Adoption of e:dstiDc contract. Where a person who is a stranger to a contract deliberately enters into relations with one of the parties which are eonsistent only with an adoption of such contract, and so ads as to lead such party to believe that he has made the contract his own, he wiJJ not be permitted afterward to repudiate it.60 Questions of what facta will establish an implied contract, being identical with the questions of what faets are sufficient to show an offer and acceptance, are treated in connection with the discussion of offer,51 acceptance,51 and intent to affect legal re lationsu generally.
Effect of Express Contract
There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.M The reason of the rule i s that, since parties a re bound b y their agreement, there is no ground for implying a promise where there is an express contract,116 and it can make no difference whether the contract is made by the parties ·themselves or by others for them.154 This mle only applies, however, where the express and th'e asserted implied contract relate to the same subject mstter, and where the provisions of \be ewress contract would supersede th ose of the other.6 It does not apply where the implied agreement is based on the subsequent conduct of the parties not covrred by the express contract." Further, where the express contract is rescinded, resort may be bad to an implied eontraet.5e 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 thll amount of his recovery.80 Further, a eontract may be implied when the express agreement is unenforC(·able for certain reasons.61
Implied in Law or Quasi or Constructive Contracts
Contracts implied in law, or more properly quasi or constructive contracts, are a ela!Jf! of obligatjpns 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.62 They rest solely on a legal fl.etion,81 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 /1' and the obligation arises not from consent, , as in the ease of true contracts, but from the law or natural equity.65 So, when the party to be bouna is under a legal obligation to perform the duty from which his promise is in· 1 ferred, th<> law may infer a promise even as against his intention.66 Among the instances of quasi or constructive contracts may be mentioned eases in which one person has received money which another person ought to have received, and which the lat ter is allowed to recover from the former in an acti&n of assumpsit for money llad and re ceived, or money received to the use of plaintil! ;r. eases in which one person has been eompt>lled to pay money which another ought to have paid, and which a is allowed to recover from the latter in an action o( assumpsit for money paid to his use;18 · eases of account stated, from which the law implies a J!romise which will support an action of aasumpsit ; 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 ; 10 eases in· which an obligation to pay money is imposed by a statute ;11 cases where a person by wrongfully appropriating property to his own use becomes liable to yay the owners the rea nable value thereof ;12 · eases in which a person fails to deliver specific property and becomes liablt" for the money value thereof ;18 eases where one party wrongfully compels anoth to render him '\""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 recoer 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.
An executed contract is one where nothing remains to be· done py either party.19 An executory contract is one in which a party binds himself to do or not to do a particular thing in the future.80 An executory contract conveys a chose in ' action ; an executed contract, a chose in possession.st A con. tract may be partly executed and partly executory, 82 and may be executory as to one py and executed as to the other.83 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,U 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.86
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.80 .
Simple or Parol Contracts
Contracts are divisible into two classes, simple contracts, and contractli y specialty.87 Simple contracts are contracts which are not under seal.88 They may be either written or oral,88 and the term is synonymous with the term "parol contracts, " 110 which is also 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 Oontracts
A. written contract is one which, in all its terms, is in writing." A contract which is not entirely in writing is regarded as an oral or verbal contract." Further, in order that. a contract may be deemed to be in writing, it must be in legible charaeters." The word "contract " is broad enough to include contracts both in writing and bt parol."
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
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
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 contract is one in which there are reciprocal 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 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.1 The contnct 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.•
- ↑ U.S.-- U. S. v. Richards, 149 Fed. 443, 450.
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].
Mich.-- Hudson v. Columbian Transfer Co., 137 Mich. 255, 257, 100 NW 402, 109 AmSR 679 (cit Cyc).
Nebr.-- McGavock v. Morton, 57 Nebr. 385, 77 NW 785.
N. Y.-- Bruce v. Pearson, 3 Johns. 534.
Oh-- Columbus, etc., R. Co. v. Gaffney, 65 Oh. St. 104, 117, 61 NE 152. - ↑ Carter v. Prairie Oil, etc., Co., (Okl.) 160 P 319, 322.
- ↑ 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).
- ↑ 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").[
- ↑ Moore v. Holland, 16 S. C. 15.
- ↑ United Transp., etc., Co. v. New York, etc., Transp. Line, 180 Fed. 902; see Quinn v. Shields, 62 Iowa 129, 139, 17 NW 437, 49 AmR 141 (where it is said that a "contract," in its more extensive sense, includes every description of agreement or publication whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or a contract is an act which contacts a perfect obligation).
- ↑ Constitutional Law
- ↑ Constitutional Law
- ↑ 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").
- ↑ Colo.-- Casserleigh v. Green, 28 Colo. 392, 65 P. 32 (aff. 12 Colo. A. 515, 56 P. 189).
Del.-- Jones v. Tucker, 26 Del. 422, 423, 84 A 1012.
Ill.-- Peo. v. Dummer, 274 Ill. 637, 640, 113 NE 934; Turner v. Owen, 122 Ill. A. 501, 504.
Ind.-- Yawger v. Joseph, 184 Ind. 228, 108 NE 774, 775 (cit Cyc).
Oh.-- Turney v. Wooley, 23 Oh. Cir. Ct. N.S. 111, 114.
Pa.-- Hertzog v. Hertzog, 29 Pa. 465, 467.
Tenn.-- Thompson v. Woodruff, 7 Coldw. 401, 409.
Tex.-- Ragley v. Godley, (Civ. A.) 90 SW 66. - ↑ Voorheis v. Bovell, 20 Ill. A. 538.
- ↑ Bule v. Shipman, 46 N. C. 10.
- ↑ Gillan v. O'Leary, 124 App. Dlv. 498, 501, 108 NYS 1024.
- ↑ Linn v. Ross, 10 Oh. 412, 414, 36 AmD 96. To same effect Wickham v. Weil, 17 NYS 618; Thompson v. Woodruff, 7 Coldw. (Tenn.) 401.
- ↑ Grevell v. Whiteman, 32 Misc. 279, 280, 65 NYS 974.
- ↑ Cotfroth v. Somerset County, 19 Pa. Co. 354, 358.
- ↑ Gillan v. O'Leary, 124 App. Div. 498, 502, 108 NYS 1024; Prichard v. Foster, (Tex. Civ. A.) 170 SW 1077, 1078.
- ↑ Cuneo v. De Cuneo, 24 Tex. Civ. A. 436, 438, 59 SW 284.
- ↑ Whitehill v. Wilson, 3 Penr. & W. (Pa.) 405, 24 AmD 326; Rann v. Hughes, 7 T.R. 350, 101 Reprint 1014.
- ↑ Miller v. Schloss, 218 N. Y. 400, 113 NE 337; Morse v. Kenney 87 Vt. 445, 89 A. 865.
- ↑ See infra. Contracts Implied in Fact and Effect of Express Contract
- ↑ See infra. Implied in Law or Quasi or Constructive Contracts
- ↑ 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.
- ↑ See infra. Implied in Law or Quasi or Constructive Contracts
- ↑ 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:
). See also Willard v. Doran, etc., Co., 48 Hun 402, 403, 1 NYS 345, 588 (where the court said: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
).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
- ↑ 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:
).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
- ↑ Linn v. Ross, 10 Oh. 412, 414, 36 AmD 96.
- ↑ Adams v. Hilliard, 14 NYS 120, 122.
- ↑ 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.
- ↑ Miller's App., 100 Pa. 668, 670, 45 AmR 394.
- ↑ 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).
