Contracts/Formal requisites
Seal
A contract under seal is a contract to which the seal of the party or parties executing it is affixed, and which derives its validity from its form alone, and not from the fact of agreement[1] to or from consideration[2] A contract under seal is necessary at common law where the promise is without consideration, and in many jurisdictions conveyances of land and certain other contracts are required by statute to be under seal. Contracts under seal are treated under other titles. Contracts under seal are also known as specialties.[3]
Writing
Necessity for
The only formal contract in common law was the contract under seal, all others being parol contracts, depending for their validity on consideration, whether they are by word of mouth or in writing.[4] The only contracts which, in the absence of a statute, are required to be in writing, outside of those requiring a seal, are bills of exchange and promissory notes; other contracts may be verbal.[5] The parties instead of reducing an agreement to writing may adopt the terms of an existing written contract.[6] It is within the power of the legislature to require contracts to be in writing,[7] and the parties cannot agree that contracts which the law requires to be in writing shall be valid although in parol.[8] Where statutory power is given to certain persons to make contracts, this does not require that the contract shall necessarily be in writing to bind them.[9]
Where Writing Essential Outside of Statutes
An agreement may be good by word of mouth, and yet if it is the intention of the parties that it shall not be binding until put in writing, there can be no enforceable agreement until that is done, for even a written memorandum of a contract to be subsequently drawn up and signed is not an enforceable agreement.[10] And the parties may contract between themselves that no agreement in regard to future transactions between them shall be binding on them unless the agreement is made in writing.[11] It must also be remembered that there is a general rule of evidence, of far-reaching importance, that evidence of an oral agreement is not admissible to contradict or to add to the terms of a written contract.
Form of Language
To make an enforceable agreement in writing no particular form of words is essential.[12] The intention of the parties is alone looked to, and the use of inapt words or bad English will not affect the validity of the agreement,[13] although it may affect its construction.[14] And even a writing in the form of a receipt may contain words showing a contract.[15] Yet every writing, although signed by one or both of the parties, is not to be construed as an agreement,[16] as, for example, a mere schedule of prices for work and materials.[17] A contract to repay money may be implied from an acknowledgment that it is due and owing.[18]
Agreement in Several Writings
An agreement may be collected from several different writings which, when connected, show the parties, subject matter, terms, and consideration,[19] as in the case of contracts entered into by correspondence;[20] but the rule that, where a written contract is in several parts and all are executed at the same time it is but one contract, cannot be applied to separate and distinct papers executed and signed by different parties and imposing different obligations on the parties executing them.[21] And where a person sends to another two written instruments purporting to be counterparts of a proposed contract, but which differ materially, and asks him to accept and return the duplicate, and he signs but one of the instruments and returns it, this is the contract between them.[22] A written agreement of which there are two copies, one signed by each of the parties, is binding on both to the same extent as if there had been only one copy of the agreement and both had signed it,[23] but there is no agreement where the two copies differ in a material point.[24] Where a contract is to be executed in duplicate, it becomes effective as soon as one of the copies is executed by both parties.[25] Duplicate contracts are treated as originals, although the parties may have chosen to call one "original copy" and the other "duplicate copy."[26]
Agreement Partly Written and Partly Oral
An agreement may be partly in writing and partly by word of mouth;[27] such an agreement is to be treated as an oral contract.[28] Further, a contract may be in writing as to one party and oral as to the other, as where a person makes his offer in writing and the other party accepts orally or vice versa;[29] such a contract is to be regarded as a written contract;[30] and the same is true where an instrument which purports to set forth the mutual obligations of a contract is signed by but one party and is accepted and acted on by the other.[31] But this principle is not applicable to the draft of a proposed contract not signed by either of the parties.[32]
Signing
Delivery
Date
Leaving Blanks in Writing
Revenue Stamps
- ↑ See Acceptance § Acceptance by Assent.
- ↑ See Consideration § Contracts under seal
- ↑ See Doyle v. West, 60 Oh. St. 438, 447, 54 NE 469.
- ↑ Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93, 86 SE 33 3 ; Quigly v. Muse, 15 La. Ann. 197; Stabler v. Cowman. 7 Gill & J. (Md.) 284; Ludwig v. Bungart, 26 Misc. 247. 56 NYS 51 [rev on other grounds 48 App. Dlv. 613. 63 NYS 91].
See Consideration. - ↑ Del.-Jones v. Tucker, 26 Del. 422. 84 A 1012.
Ky.-John King Co. v. Louisville. etc . , R. Co., 131 Ky. 46, 1 1 4 SW 308 [reb den 116 SW 1201].
Mich.-Mall, etc., Co. v. Wood, 140 Mich. 505, 1 03 NW 864.
N. Y.-Sackett v. Sackett, 14 NYS 251.
Oh.-Merrlck y. Di tzler, 91 Oh. St. 256. 110 NE 493. - ↑ American Colortype Co. v. Continental Colortype Co., 188 U. S. 104. 23 SCt 265. 47 L. ed. 404; Butler v. Tifton, etc., R. Co., 121 Ga. 817, 49 SE 763; International Power Co. v. Hardy, 118 Ga. 512, 46 SE 311; Florida, etc., R. Co. v. Varnedoe, 81 Ga. 175. 7 SE 129; Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93. 86 SE 333; Walton-Wilson-Rodes Co. v. McKitrick, 141 Ky. 415, 132 SW 1046.
Incorporation of terms by reference see Construction and Operation § Papers Annexed or Referred to. - ↑ Wyatt v. Wanamaker, 126 App. Div. G56, 111 NYS 90 [aff 58.Misc. 429, 110 NYS 900]; Wyatt v. McCreery, 126 App. Dlv. 650, 111 NY.S 86.
[a] Philippines.-When the essential requisites for the existence of a contract are present, the contract is binding on the parties whatever may be the amount involved, and, although required to be in writing by Civ. Code art. 1280, plaintiff can maintain an action on the verbal agreement without first bringing an action under art. 1279 to compel the execution of a written instrument. See Thunga Chui v. Que Bentec, 2 Philippine 561.
[b] Porto Rico.-- Under the provisions of the former civil code contracts involving more than a certain amount were required to be in exwriting. Civico v. Rodriguez, 4 Porto Rico 296.
- This provision did not affect the validity of contracts between the parties. Bigelow v. Porto Rico Planters' Co., 7 Porto Rico Fed. 463.
- ↑ Northwestern Nat. Ins. Co. v. Avant, 132 Ky. 106, 116 SW 274.
- ↑ Austin v. Foster, 9 Pick. (Mass.) 341; Central Lunatic Asylum v. Flanagan, 80 Va. 110.
- ↑ See Intention to Bind § Preliminary Negotiations.
- ↑ Abbott v. Gatch, 13 Md. 314, 317, 71 AmD 635 (where A was building a wall for B under a contract which provided that "no extra charges to be made unless a written agreement be made and attached to this contract." and it was held that, although B had directed and A had done extra work on the wall at B's request, there could be no recovery in the absence of a writing on the subject). But see Northwestern National Ins. Co. v. Abant, 132 Ky. 106. 109. 116 SW 274 ("The policy of the law is that certain contracts must be in writing to be valid, while all others may be in parol. The parties cannot agree so as to bind themselves either that contracts which the law requires to be in writing shall be valid though in parol, and in spite of the law, nor that contracts which the law allows to be in parol shall not be valid unless in writing. Parties cannot by contract alter the law").
Modification by parol see Modification § Oral Modification of Written Contract § Contractual Restrictions. - ↑ D. C. -Harten v. Loffier, 29 App. 490.
La.-Houssiere Latreille Oil Co. v. Jennings-Heywood Oil Syndicate, 115 La. 107, 38 S 932
Mo.-Western Mfg. Co . v. Woodson. 1 30 Mo. 119, 31 SW 1037.
N. Y.-Banker v. Coons, 40 App. Div. 572, 68 NYS 47.
Wis.-Kaley v. Van Ostrand. 134 Wis. 443. 114 NW 817; Templeton v. Butler, 117 Wis. 455. 94 NW 306.
Templeton v. Butler, 117 Wis. 466, 467, 94 NW 306.No form of words is conclusive. Documents may be and have been classed as contracts which contained no express word of promise or agreement, and others wherein such express words existed have nevertheless been classed as testamentary. Nevertheless, the presence or absence of such words is very significant--nay, probably controlling--unless something in the context or circumstances shows a mental attitude differing from the expressions used. . . . Neither does the instrument contain any words of promise or agreemen; nor, indeed, anything to indicate that any conception of contract between two parties was present in the mind of either the maker or the draftsman. To express such a conception, "I promise" or "I agree" are ordinarily used, and are words within the common vocabulary of the educated and uneducated, the lawyer and laymen alike.
[a] A mere memorandum of an actual agreement, signed by defendant, is admissible in evidence, although the parties may have intended to execute a more formal instrument as a substitute for it. Bohn v. Newton, 8 1 Va. 4 80.
[c] Porto Rico.-
[b] Philippines.-"Contracts shall be binding," prescribes Civ. Code art 1278, "whatever may be the form In which they may have been executed, provided the essential conditions required for their validity exist." These conditions are enumerated In art 1261 of the same code, and they are also requisite In a verbal contract that has been proved. Gallemit v. Tablllram, 20 Ph111pplne 241, 247.
Colon v. Rolg, 7 Porto Rico 37, 52.Contracts shall be binding, whatever may be the form in which they may have been executed, provided the essential conditions required for their validity exist, and should the law require the execution of an instrument or other special formality in order to make the obligations of a contract binding, the contracting parties may compel each other to comply with said formalities from the moment in which consent and the other requirements, necessary for their validity, have taken place, according to the provisions of articles 1278 and 1279 of the old, or sections 1246 and 1246 of the Revised Civil Code.
- ↑ Bean v. Clark, 30 Fed. 225; Wenzell v. Brecklnrldge, 3 Dana (Ky.) 4 8 2 ; Marsall v. Craig, 1 Bibb (Ky.) 374; Louisiana State Bank v. New Orleans Nav. Co., 3 La. Ann. 2 94; Dunbar v. Owens. 10 Rob. (La.) 139; Gasquet v. Oakey, 15 La. 637; Knox v. Dixon, 4 La. 466, 23 AmD 488 Chesapeake, etc., Canal Co. v. Baltimore etc., R. Co., 4 Gill & J. (Md.) 1.
- ↑ Construction of Contracts see Construction and Operation.
- ↑ 57. Ala.-Dexter v. Ohlander, 8 9 Ala. 262, 7 S 115.
Conn.-starkey v. Peters, 1 8 Conn. 181.
Ill.- Whi te v. Merrell, 3% Ill. 511.
Ind.- Keller v. Orr, 10 6 Ind. 406, 7 NE 19 6 : Foulks v. Falls. 9 1 Ind. 315; Bird v. Thayer, 8 Blackf. 146. But see Pauley v. Wlsart, 69 Ind. 2 4 1 ( hold i n g that a writing, dated ot a certai n date. and reciting that the party signing It received a certain sum of money In orders. taken at eighty cents on the dollar, In full. Is not a contract In the ordinary sense of the term. but simply a receipt).
Mass.--Jacobs v. German · WorkIngmen's Assoc., 1U Mass. a, 66 NE 6 0 5 .
N. Y.-Wood v. Whiting. 21 Barb. 19 0 Smith v. HaliiR"&n, 9 NYSt 426.
Oh.-Wilson v. Bailey. 1 Handy 1 7 7. 12 Oh. Dec. (Reprint) 88.
[a] Illustrations.-- A writing signed by defendant reciting that he has received a relinquishment of a lease from plaln tltr "for consideration of one hundred and fifty dollars, to be paid him In ten days.' Dexter v. Orlander. 89 Ala. 262 . 2 6 7 , 7 S 1 16.
- "Received . . . ot James Wilson A: Co., twenty-six hundred and seventy-five and five one-hundredths dollars as an advance on one hundred barrels linseed-oil In their store: for which advance we agree to pay . them Interest at the rate six per cent. per annum: a commission of two and a half per cent. on sales: storage 5 cents per barrel per month. and lnsuranre." Wilson v. Bailey, 1 Handy (Ohio) 177. 178, 1 2 Oh. Dec. (Reprint ) 8 8 .
- A writing stating that a person bought of another two cars of potatoes. at fifty-tour cents for sixty-two pounds, to be loaded on track at a certain place, paid cash twenty dollars. and signed by the seller. Smith v. Hall i gan, 9 NYSt 426.
- "Received of H. Gaul1 the following orders or demands ror collection, and to be paid over to said Gaul or his order. on the 1st day of November next, or as soon thereafter as collected . . . A. S. Whiting." Wood v. Whiting. 21 Barb. (N. Y.) 1 9 0 , 1 91 .
- Where one executed an Instrument reciting: "Received of Mrs. Dana Falls. one note against Z. P. Estes for eleven hundred dollars . . . this tor collection," signed by the person executing It, the writing, while It had the elements of a receipt, expressed a contract for the collection of the note. Foulks v. Falls, 9 1 Ind. 3 16.
- ↑ Iowa.-state v. Meier. 140 Iowa 540, 1 1 8 NW 792.
Minn.-Bhepard v. Carpenter, 64 Minn. 153, 65 NW 9 06. N. Y.-MIIIer v. Collyer, 36 Barb. 250.
Pa.-Ames v. Pierson. 4 PL Diet. 492.
Tex.-State v. Racine Sattley Co., (Civ. A.) 134 SW 400.
[a] Illustration.-An instrument signed by prosecutrix acknowledging that defendant did not seduce her as alleged in a suit against him, and reciting a dismissal of the suit in consideration of a payment by defendant, is a receipt and not a contract. State v. Meter, 140 Iowa 540, 118, NW 792. - ↑ Eyser v. Weissgerber, 2 Iowa 463.
- ↑ Sharp v. Bates, 102 Md. 144. 62 A 747; Hunt v. Patten, 33 App. Div. 613, 53 NYS 1042; Lurty v. Lurty, 107 Va. 486, 69 SE 405. See Noyes v. Young, 32 Mont. 228, 79 P 1063 (holding that an instrument arising from and based on transactions had between the parties at its date, acknowledging an indebtedness, and promising to pay it, is a contract).
[a] Illustration.-Where, before collecting a note payable to himself and given for the price of property owned jointly by himself and his wife, one rendered an account in writing to his wife over his signature, showing her share of the sale to be a fixed sum due her out of the note, and reciting the balance to belong to himself, there was an acknowledgment that, when the note was collected, he would owe her the sum indicated, from which a promise to pay is implied. Lurty v. Lurty, 107 Va. 466, 59 SE 405. - ↑ Ill.-Esmay v. Gorton, 11 m. 4 83 ; Baseleon v. Baker, 112 Ill. A. 6 11.
Mo.-International Text-Book Co. v. Youn t, 1 2 9 Mo. A. 247. 10 8 SlV Ut.
Nebr.-Dempster v. Opocensk7. 81 Nebr. 6 1 2 , 116 NW 6 24; Bradley v. Bower, 6 Nebr. (Unotr.) 64:11. 119 NW 490.
S. C.-Buckeye Cotton 011 Co. v. Matheson. 104 S. C. 430. 89 SE 478.
Alta.-Brocklebank v. Barter. 8 Alta. L. 262.
Sask.-Wllloughby v. Saskatchewan Valley Land Co., 3 Bask. L. 110. - ↑ See Offer § Offer by Post, Telegraph, or Telephone and Acceptance § Acceptance by Post, Telegraph, or Telephone.
- ↑ Capitol Food Co. v. Smith, 155 Ill. A. 123.
- ↑ Baird v. Harper, (Del.) 51 A 141 [rev 19 Del. 110, 50 A 326].
- ↑ Morris v. McKee, 96 Ga. 611, 24 SE 142; Owens v. National Hatchet Co., (Iowa) 121 NW 1076; Oehler v. Conrad Schopp Fruit Co., 162 Mo. A. 446, 142 SW 811. See Real Est. Sav. Inst. v. Fisher, 9 Mo. A. 593.
- ↑ Thayer v. Harbican, 70 Wash. 278, 126 P 625.
- ↑ Morehouse v. Terrill. 111 Ill. A. 460.
- ↑ Crane v. Partland, 9 Mich. 493, 497.
- ↑ Hueni v. Freehill, 125 Ill. A. 145; Gordon v. Gordon, 96 Ind. 134; Lynn v. Richardson, 151 Iowa 284, 130 NW 1097; St. Louis, etc., R. Co. v. Maddox, 18 Kan. 546.
- ↑ See Definitions § Written and Oral Contracts
- ↑ Grove v. Hodges, 66 Pa. 604; Garrick Theater Co. v. Gimbel, 158 Wis. 649, 149 NW 385.
- ↑ Stepina v. Conklin Lumber Co., 114 Ill. A. 173; Huling v. Century Pub., etc., Co., 108 Ill. A 549; Ellis v. Abell, 10 Ont. A. 226.
- ↑ McDermott v. Mahoney, 189 Iowa 291, 116 NW 12, 116 NW 788. See also McCauley v. Schatzley, 44 Ind. A. 262, 88 NE 972 (where it is said that a written contract has no binding force until it is either signed by all the parties, or signed by one of the parties and accepted by the others).
- ↑ Fetherstone Fdy., etc., Co. v. Criswell, 36 Ind. A. 881, 76 NE 30. See Brown v. Silver, 2 Nebr. (Unoff.) 164, 96 NW 281 (holdlng that there is no variance between an allegation of a verbal contract and an unsigned memorandum of such contract, alleged to have been made by the party charged at the time the contract was entered into).
