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Contracts Treatise
Table of Contents
Contracts Outline
Introduction and Definitions
Contract formation
Intention to Bind
Formal requisites
Mailbox rule
Mirror image rule
Invitation to deal
Firm offer
Collateral contract
Uniform Commercial Code
Uniform Commercial Code
Course of dealing
Course of performance
UCC-1 financing statement
Uniform Commercial Code adoption
Defenses against formation
Lack of capacity
Undue influence
Illusory promise
Statute of frauds
Non est factum
Contract interpretation
Governing law
Construction and Operation
Parol evidence rule
Contract of adhesion
Integration clause
Contra proferentem
Excuses for non-performance
Frustration of purpose
Unclean hands
Accord and satisfaction
Rights of third parties
Privity of contract
Third-party beneficiary
Performance or Breach
Necessity of performance
Sufficiency of performance
Anticipatory repudiation
Exclusion clause
Efficient breach
Fundamental breach
Termination and rescission
Abrogation and rescission
Subsequent contract
Specific performance
Liquidated damages
Punitive damages
Quasi-contractual obligations
Quantum meruit
Actions in General
Parties to Action
Questions of Law and Fact
Trial and Judgment

Promise[edit | edit source]

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[edit | edit source]

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[edit | edit source]

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[edit | edit source]

"Compact" and "contract" are used as convertible terms.[9]

Express Contracts[edit | edit source]

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[edit | edit source]

  1. "A contract is express when the agreement is formal, and stated either verbally or In writing" [13]
  2. "An agreement whose terms are openly uttered or expressed by the contracting parties." [14]
  3. "Such as are voluntarily made by the parties thereto." [15]
  4. "One where a bargain has been made by the two parties covering the subject in question." [16]
  5. "A contract is express when it consists of words written or spoken, expressing an actual agreement of the parties." [17]
  6. "An express agreement is where the parties thereto expressly agree." [18]

Express contracts classified[edit | edit source]

Express contracts are properly divided into two classes, contracts under seal or specialties, and contracts in parol.[19]

Implied Contracts[edit | edit source]

Classes and Distinctions[edit | edit source]

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"[edit | edit source]

  1. "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]
  2. 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]
  3. Implied contracts "are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform."[29]
  4. "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"[edit | edit source]

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[edit | edit source]

A contract implied in fact is a true contract, the agreement of the parties being inferred from the circumstances, while a contract implied in law is but a duty imposed by law and treated as a contract for the purposes of a remedy only.[32] In the case of contracts implied in fact, there must be an assent of the parties, as in express contracts,[33] while in the case of contracts implied in law or more properly quasi or constructive contracts the obligation arises, not from consent, but from the law or natural equity.[34] In the case of contracts implied in fact, the contract defines the duty, while in the case of constructive contracts, the duty defines the contract.[35]

Contracts Implied in Fact[edit | edit source]

In General[edit | edit source]

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,[36] 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.[37] It follows that the only distinction between this species of contract and express contracts rests in the mode of proof;[38] 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.[39] The one class is proved by direct, the other by indirect, evidence;[40] 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.[41] The implication, of course, must be a reasonable deduction from all the circumstances and relations of the parties,[42] although it need not be evidenced by any precise words,[43] and may result from random statements and uncertain language.[44] A contract will not be implied where it would result in the perpetration of a wrong,[45] or it would be inequitable to do so,[46] or where the parties cannot legally make an express contract;[47] so a promise to do an act contrary to duty or to law is never implied.[48]

Adoption of existing contract[edit | edit source]

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.[49]

Questions of what facts will establish an implied contract[edit | edit source]

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,[50] acceptance,[51] and intent to affect legal relations[52] generally.

Other definitions[edit | edit source]

  1. A contract is implied when it is evidenced by conduct manifesting an intention of an agreement."[53]
  2. "A contract . . . is implied when the agreement is matter of inference and deduction."[54]
  3. "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."[55]
  4. "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."[56]
  5. "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."[57]
  6. "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."[58]
  7. 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."[59]
  8. "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."[60]

Statutory definitions[edit | edit source]

"One, the existence and terms of which are manifested by conduct." [61]

Criticisms of the term[edit | edit source]

  1. "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."[62]
  2. "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.'"[63]

Effect of Express Contract[edit | edit source]

There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.[64] 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,[65] and it can make no difference whether the contract is made by the parties themselves or by others for them.[66] 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.[67] It does not apply where the implied agreement is based on the subsequent conduct of the parties not covered by the express contract.[68] Further, where the express contract is rescinded, resort may be had to an implied contraet.[69] 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.[70] Further, a contract may be implied when the express agreement is unenforceable for certain reasons.[71]

Implied in Law or Quasi or Constructive Contracts[edit | edit source]

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.[72] They rest solely on a legal fiction,[73] 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,[74] and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity.[75] 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.[76] 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;[77] 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;[78] cases of account stated, from which the law implies a promise which will support an action of assumpsit;[79] 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;[80] cases in which an obligation to pay money is imposed by a statute;[81] cases where a person by wrongfully appropriating property to his own use becomes liable to pay the owners the reasonable value thereof;[82] cases in which a person fails to deliver specific property and becomes liable for the money value thereof;[83] cases where one party wrongfully compels another to render him valuable services, and a promise to pay their value is implied;[84] cases where one man has obtained money from another by oppression, extortion, or deceit, or by the commission of a trespass;[85] 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.[86] 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.[87]

Executed and Executory Contracts[edit | edit source]

An executed contract is one where nothing remains to be done by either party.[88] An executory contract is one in which a party binds himself to do or not to do a particular thing in the future.[89] An executory contract conveys a chose in action; an executed contract, a chose in possession.[90] A contract may be partly executed and partly executory,[91] and may be executory as to one party and executed as to the other.[92] 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,[93] 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.[94]

Formal Execution[edit | edit source]

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.[95]

Simple or Parol Contracts[edit | edit source]

Contracts are divisible into two classes, simple contracts, and contracts by specialty.[96] Simple contracts are contracts which are not under seal.[97] They may be either written or oral,[98] and the term is synonymous with the term "parol contracts,"[99] which is also used to distinguish contracts made verbally or not under seal.[100] Properly speaking there is no distinct class of contracts merely in writing.[101]

Written and Oral Contracts[edit | edit source]

A writ­ten contract is one which, in all its terms, is in writing.[102] A contract which is not entirely in writing is regarded as an oral or verbal contract.[103] Further, in order that a contract may be deemed to be in writing, it must be in legible characters.[104] The word "contract" is broad enough to include contracts both in writing and by parol.[105]

Special Contracts[edit | edit source]

A special contract[106] 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.[107] A special contract may rest in parol,[108] and the term does not require a eontract by specialty.[109]

Conditional Contracts[edit | edit source]

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.[110]

Gratuitous Contracts[edit | edit source]

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.[111]

Bilateral and Unilateral Contracts[edit | edit source]

A bilateral contract is one in which there are reciprocal promises, so that there is something on both sides to be done or forborne,[112] while a unilateral contract is one in which there is a promise on one side only, the consideration on the other side being executed.[113] "Unilateral," however, is frequently employed by the courts to express absence of mutuality.[114]

Commutative Contracts[edit | edit source]

"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.[115] 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.

References[edit | edit source]

  1. 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.
  2. Carter v. Prairie Oil, etc., Co., (Okl.) 160 P 319, 322.
  3. 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).
  4. 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").[
  5. Moore v. Holland, 16 S. C. 15.
  6. 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).
  7. Constitutional Law
  8. Constitutional Law
  9. 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").
  10. 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.
  11. Voorheis v. Bovell, 20 Ill. A. 538.
  12. Bule v. Shipman, 46 N. C. 10.
  13. Gillan v. O'Leary, 124 App. Dlv. 498, 501, 108 NYS 1024.
  14. 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.
  15. Grevell v. Whiteman, 32 Misc. 279, 280, 65 NYS 974.
  16. Cotfroth v. Somerset County, 19 Pa. Co. 354, 358.
  17. Gillan v. O'Leary, 124 App. Div. 498, 502, 108 NYS 1024; Prichard v. Foster, (Tex. Civ. A.) 170 SW 1077, 1078.
  18. Cuneo v. De Cuneo, 24 Tex. Civ. A. 436, 438, 59 SW 284.
  19. Whitehill v. Wilson, 3 Penr. & W. (Pa.) 405, 24 AmD 326; Rann v. Hughes, 7 T.R. 350, 101 Reprint 1014.
  20. Miller v. Schloss, 218 N. Y. 400, 113 NE 337; Morse v. Kenney 87 Vt. 445, 89 A. 865.
  21. See infra. Contracts Implied in Fact and Effect of Express Contract
  22. See infra. Implied in Law or Quasi or Constructive Contracts
  23. 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.
  24. See infra. Implied in Law or Quasi or Constructive Contracts
  25. 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:

    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:

    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

  26. 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

  27. Linn v. Ross, 10 Oh. 412, 414, 36 AmD 96.
  28. Adams v. Hilliard, 14 NYS 120, 122.
  29. 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.
  30. Miller's App., 100 Pa. 668, 670, 45 AmR 394.
  31. 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).
  32. U.S.-- Nevada Co. v. Farnsworth, 89 Fed. 164; Harley v. U.S., 39 Ct. Cl. 106 [aff 198 U.S. 229, 25 SCt 634, 49 L. ed. 1029].
    Conn.-- Weinhouse v. Cronin, 68 Conn. 260. 36 A 46.
    Ill.-- Hickey v. Chicago City R. Co., 148 Ill. A. 197; Chicago v. Pittsburg, etc., R. Co., 146 Ill. A. 403 [aff 242 Ill. 30, 89 NE 648].
    Mo.-- Weinsberg v. St. Louis Cordage Co., 135 Mo. A. 553, 116 SW 461.
    N.Y.-- McCoun v. New York Cent., etc., R. Co., 50 N.Y. 176; McSorley v. Faulkner, 18 NYS 460.
    Oh.-- Columbus, etc., R. Co. v. Gaffney, 66 Oh. St. 104, 61 NE 152.
    Tex.-- Leonard v. State, 56 Tex. Cr. 307, 316, 120 SW 183 (quot Cyc).
    Wis.-- Wojahn v. Oshkosh Nat. Union Bank, 144 Wis. 646, 129 NW 1068.

    The evidence of an actual contract is generally to be found either in some writing made by the parties, or in verbal communications which passed between them, or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The law says that it shall be taken that there was a promise, when, in point of fact, there was none. Of course this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the obligations quasi ex contractu of the civil law, which seem to lie in the region between contracts on the one hand, and torts on the other, to call for the application of a remedy not strictly furnished either by actions ex contractu or actions ex delicto.

    Sceva v. True, 53 N.H. 627, 632.
  33. See Infra. Necessity of Mutual Assent.
  34. See Infra. Implied in Law or Quasi or Constructive Contracts.
  35. Graham v. Cummings, 208 Pa. 516, 57 A 943; Hertzog v. Hertzog, 29 Pa. 465.
  36. Hawaii.-- Wall v. Focke, 21 Hawaii 399, 403, AnnCas 1916C 677 [quot Cyc].
    IIl.-- Peo. v. Dummer, 274 Ill. 837,113 NE 934.
    Ind.-- Yawger v. Joseph, 184 Ind. 228, 108 NE 774.
    Iowa.-- Ottumwa Mill, etc., Co. v. Manchester, 139 Iowa 334, 115 NW 911, 81
    La.-- Baker v. Stoutmeyer, 2 MeG.
    N.H.-- Bixby v. Moore, 61 N. H. 402.
    N.J.-- Gannon v. Brady Brass Co., 82 N. J. L. 411. 81 A 727, AnnCas 1913C 1308.
    N.Y.-- Peo. v. Speir, 77 N. Y. 144.
    Oh.-- Columbus, etc., R. Co. v. Gaffney, 85 Oh. St. 104, 61 NE 162.
    Pa.-- Hertzog v. Hertzog, 29 Pa. 466.
    Phillipine.-- Peres v. Pomar, 2 Phillipine 882.
    S.C.-- Dowling v. Charleston, etc., R. Co., 81. SE 313.
    Tenn.-- Thompson v. Woodruff, 7 Coldw. 407, 410.
    Tex.-- Cuneo v. De Cuneo, 24 Tex. Civ. A. 436, 69 SW 284.
    "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.
    "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.
  37. U.S.-- Wisconsln Steel Co. v. Maryland Steel Co., 203 Fed. 408, 121 CCA 607; Knapp v. U.S., 4S Ct. Ct. 601.
    Iowa.-- Fouke v. Jackson County, 84 Iowa 616, 51 NW 71.
    N.H.-- Sceva v. True, 53 N.H. 627.
    N.J.-- Passino v. Brady Brass Co., 88 N.J.L. 419, 421, 84 A 616 [cit Cyc].
    N.Y.-- Keokuk Commercial Bank v. Pfeiffer, 22 Hun 327 [aff 108 N.Y. 242, 16 NE 811].
    Pa.-- Hertzog v. Hertzog, 29 Pa. 465.
    Tex.-- Pierce v. Aiken, (Civ. A.) 146 SW 950, 962 [quot Cyc.).
    In implied contracts

    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.

    "Implied contracts in fact do not arise from the denials and contentions of parties." Knapp v. U.S., 46 Ct. Cl. 601, 643.

  38. Hawaii.-- Wall v. Focke, 22 Hawaii 221.
    Ill.-- Peo. v. Dummer, 274 Ill. 637, 113 NE 934; Highway Comrs. v. Bloomington, 253 Ill. 184, 97 NE 280, AnnCas1913A 471.
    · Me.-- Saunders v. Saunders, 90 Me. 284, 38 A 172.
    Mich.-- Woods v. Ayres, 39 Mich. 346, 33 AmR 396.
    N.Y.-- McCarthy v. New York, 96 N.Y. 1, 48 AmR 601; Peo. v. Speir, 77 N.Y. 144.
    Oh.-- Columbus, etc., R. Co. v. Gaffney, 66 Oh. St. 104, 61 NE 162.
    Tex.-- Fordtran v. Stowers, 62 Tex. Civ. A. 226, 113 SW 631.

    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.

    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.
  39. Ala.-- Montgomery v. Montgomery Water Works Co., 77 Ala. 248; Keel v. Larkin, 72 Ala. 49S.
    Cal.-- Smlth v. Moynihan, 44 Cal. 63.
    Ill.-- Saul v. Busenbark, 83 Ill. A. 256 (rev on other grounds 184 Ill. 343. 66 NE 417).
    Minn.-- Lombard v. Rahilly, 127 Minn. 449, 149 NW 960.
    N.Y.-- Peo. v. Speir, 77 N.Y. 144; Chilcott v. Trimble, 13 Barb. 502.
    Pa.-- Hertzog v. Hertzog, 29 Pa. 465; Garst v. Wissler, 21 Pa. Super. 632.
    Tex.-- Prichard v. Foster, (Civ. A.) 170 SW 1077; Fordtran v. Stowers, 52 Tex. Civ. A. 226, 113 SW 631.
    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.
    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.
  40. 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.
  41. Smith v. Moynihan, 44 Cal. 53; Rose v. Wollenberg, 38 Or. 164, 59 P 190; Coffroth v. Somerset County, 19 Pa. Co. 354.
  42. Ky.-- Belknap v. Hayden, 1 KyL 119, 10 Ky. Op. 652
    Md.-- Burt v. Myer, 71 Md. 467, 18 A 796.
    Mass.-- Newmarket Mfg. Co. v. Coon, 160 Mass. 566, 23 NE 380.
    N.Y.-- Miller v. Schloss, 218 N.Y. 400, 113 NE 387, 89
    Vt.-- Morse v. Kenney, 87 Vt. 445.
    B.C.-- Galbraith v. Hudson's Bay Co., 7 B.C. 431.
    Man.-- Aikens v. Allan, 14 Man. 549; Munro v. Irvine, 9 Man. 121.
    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).
    Evidence held not to show promise:
    1. To pay for building material. Citizens Electric Light, etc., Co. v. Van Lent, (Iowa) 103 NW 796.
    2. 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.
    3. 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.
    4. Between creditors to prorate loss. Swingle v. Brown, (Tenn. Ch.) 48 SW 347.
    5. To pay for materials. Limer v. Traders' Co., 44 w. Va. 175, 28 SE 730.
    6. To pay for logs cut. Tuhotte v. Jervis Inlet Lumber Co., (B.C.) 18 WestLR 338.
    7. To pay for repairs to an automobile after a fire in a garage. Helber v. Schaible, 183 Mich. 379, 150 NW 145.
    Evidence held to show implied promise of:
    1. Payment to tenant of damage from fallure to complete building. Ottumwa Mill., etc., Co. v. Manchester, 139 Iowa 134, 116 NW 911.
    2. Payment by person in quarantine for supplies furnished. Plymouth Tp. v. Klug, 28 N.D. 807, 146 NW 130.
    3. Payment for automobile repairs. Helber v. Schaible, 183 Mich. 379, 150 NW 145.
    4. Payment of subcontractor. Schade v. Muller, 75 Or. 216, 146 P l44.
    5. Payment of attorney's fees. Caldwell v. Stalcup, (Tex. Civ. A.) 166 SW 110.
    6. Payment of money at death. Hatch v. Gillette, 8 App. Div. 806, 40 NYS 1018.
    7. Payment for storage. Taylor v. Dexter Engine Co., 146 Mass. 813, 18 NE 462.
  43. Park-Robertson Hardware Co. v. Copeland, 11 Ala. A. 447, 66 S 880; Stobie v. Earp, 110 Mo. A. 73, 83 SW 1097.
    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.
  44. Rosenbaum v. Levitt, l09 Iowa 292, 80 NW 393.
  45. Klug v. Sheriffs, 129 Wis. 168, 109 NW 656, 116 AmSR 967, 7 LRANS 362, 9 AnnCas 1013.
    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.
  46. Irwin v. Jones, 46 Ind. A. 588, 92 NE 787.
  47. 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
    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.
  48. Cary v. Curtis, 3 How. (U.S.) 236, 11 L. ed. 576; American-Hawaiian Engineering, etc., Co. v. Terr., 16 Hawaii 711.
  49. 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.
  50. See Offer.
  51. See Acceptance.
  52. See Intention to Bind.
  53. Gillan v. O'Leary, 124 App. Div. 498, 502, 108 NYS 1024.
  54. Gillan v. O'Leary, 124 App. Dlv. 498, 501, 108 NYS 1024.
  55. Moore v. Renick, 95 Mo. A. 202, 207, 68 SW 936.
  56. Cuneo v. De Cuneo, 24 Tex. Civ. A. 436, 438, 59 SW 284.
  57. Marvin v. Rogers, 63 Tex. Civ. A. 423, 428, 115 SW 863.
  58. Turner v. Owen, 122 Ill. A. 501, 504.
  59. Jennings v. State Bank, 79 Cal. 323, 326, 21 P 852, 12 AmSR 146, 6 LRA 233.
  60. Davis v. Seymour, 59 Conn. 531, 533, 21 A 1004, 13 LRA 210 (quot 1 Swift Dig. p 182).
  61. Cal. Civ. Code (1903) § 1621; N.D. Rev. Codes (1899) § 3884; Okl. Rev. St. (1903) § 777; S.D. Civ. Code (1903) § 1235.
  62. Hinkle v. Sage, 67 Oh. St. 268, 263, 66 NE 999.
  63. Bixby v. Moore, 61 N.H. 402, 403.
  64. 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.
    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.
    Ark.-- Jackson v. Jones, 22 Ark. 158; Manuel v. Campbell, 3 Ark. 324.
    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.
    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.
    Ind.-- Long v. Straus, 107 Ind. 94, 6 NE 123, 7 NE 763, 57 AmR 87; Cranmer v. Graham, 1 Blackf. 406.
    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.
    Kan.-- Ray v. Missouri, etc., R. Co., 90 Kan. 244, 133 P 847; Smyser v. Fair, 73 Kan. 733, 86 P 408.
    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.
    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.
    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.
    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.
    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.
    Minn.-- Marcotte v. Beaupre, 15 Minn. 162; Bond v. Corbett, 2 Minn. 248.
    Miss.-- Musgrove v. Jackson, 59 Miss. 390; New Orleans, etc., R. Co. v. Pressly, 45 Miss. 66; Morrison v. Ives, 12 Miss. 652.
    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.
    Nebr.-- Powder River Live Stock Co. v. Lamb, 38 Nebr. 339, 56 NW 1019.
    N.H.-- Streeter v. Sumner, 19 N.H. 516; Britton v. Turner, 6 N.H. 481, 26 AmD 713.
    N.J.-- Voorhees v. Combs, 83 N.J. L. 494.
    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.
    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.
    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.
    Or.-- Fiske v. Kellogg, 3 Or. 603.
    Pa.-- Musser v. Ferguson Tp., 6& Pa. 476.
    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.
    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.
    Vt.-- Hemenway v. Smith, 28 Vt. 701; Camp v. Barker, 21 Vt 469.
    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.
    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.
    Can.-- Allcroft v. Adams, 38 Can. S.C. 366; Connolly v. St. John, 35 Can. S.C. 186.
    Man.-- Knox v. Munro, 13 Man. 16.
  65. Walker v. Brown, 28 Ill. 378, 81 AmD 287; Morganton Mfg., etc., Co. v. Andrews, 186 N.C. 286, 81 SE 418. AnnCas1916A 763.
  66. Walker v. Brown, 28 Ill. 378, 81 AmD 287
  67. 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].
  68. Efron v. Stees, 113 Minn. 242, 129 NW 374; Murphy v. Quigley, 21 Oh. Cir. Ct. 313, 11 Oh. Cir. Dec. 638.
  69. U.S.-- Columbia Bank v. Patterson, 7 Cranch 299, 3 L. ed. 351.
    Colo.-- Cody v. Raynaud, 1 Colo. 272.
    Ill.-- Walker v. Brown, 28 Ill. 378, 81 AmD 287.
    Miss.-- Morrison v. Ives, 12 Miss. 652.
    Eng.-- Towers v. Barrett, 1 T.R. 133, 99 Reprint 1014.
  70. Columbia Bank v. Patterson, 7 Cranch 299, 3 L. ed. 351.
    Conn.-- Londregon v. Crowley, 12 Conn. 558.
    Ill.-- Walker v. Brown, 28 Ill. 378, 81 AmD 287; Holmes v. Stummel, 24 Ill. 370.
    Me.-- Charles v. Dana, 14 Me. 383,
    Eng.-- James v. Cotton, 7 Bing. 266, 20 ECL 125, 131 Reprint 103.
  71. 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)
  72. U.S.-- Nevada Co. v. Farnsworth, 89 Fed. 164. 165.
    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].
    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.
    Pa.-- Hertzog v. Hertzog, 29 Pa. 465, 467 [quot 2 Blackstone Comm. p H3].
    S.C.-- Abbott v. Sumter Lumber Co., 93 S.C. 131, 138, 146, 76 SE 146 ac[cIt Cyc].
    S.D.-- Meade County v. Welch, 34 S.D. 348, 349, 356, 148 NW 601 [cit Cyc].
    Tex.-- Leonard v. State, 56 Tex. Cr. 307 315, 120 SW 183.

    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.

    Foundation of doctrine.

    1. "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.
    2. 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.
    3. 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.
  73. Peo. v. Dummer, 274 Ill. 637, 113 NE 934; Graham v. Cummings, 208 Pa. 516, 57 A 943.
  74. Colo.-- Brown v. Stair, 25 Colo. A. 140, 136 P 1003.
    Ga.-- Western Union Tel. Co. v. Taylor, 84 Ga. 408, 11 SE 396, 8 LRA 189.
    Ill.-- Peo. v. Dummer, 274 Ill. 637, 113 NE 934.
    Mich.-- Woods v. Ayres, 39 Mich. 345, 33 AmR 396.
    Minn.-- Penas v. Chicago, etc., R. Co., 112 Minn. 203, 127 NW 926, 140 AmSR 470, 30 LRANS 627 [cit Cyc].
    Mo.-- Weknsberg v. St. Louis Cordage Co., 135 Mo. A. 553, 116 SW 461.
    Mont.-- Schaeffer v. Miller, 41 Mont. 417, 109 P 970, 137 AmSR 746 [quot Cyc].
    N.H.-- Sceva v. True, 53 N.H. 627.
    N.Y.-- MiIler v. Schloss, 218 N.Y. 400, 113 NE 337.
    Pa.-- Pierce's App., 103 Pa. 27; Hertzog v. Hertzog, 29 Pa. 465.
    S.D.-- Meade County v. Welch, 34 S.D. 348, 349, 148 NW 601 [cit Cyc].
    Tex.-- Leonard v. State, 56 Tex. Cr. 307, 315, 120 SW 183 [quot Cyc].
    Vt.-- Morse v. Kenney, 87 Vt. 45, 89 A 865; Bliss v. Hoyt, 70 Vt. 534, 41 A 1026.
    "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.
    "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.
  75. 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.
    Mont.-- Schaeffer v. Miller, 41 Mont. 417, 109 P 970, 137 AmSR 746.
    N.Y.-- Miller v. Schloss, 218 N.Y. 400, 113 NE 337.
    Vt.-- Underhlll v. Rutland R. Co., 98 A 1017.
    Can.-- Gresham Blank Book Co. v. Rex, 14 Can. Exch. 236.

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

    Miller v. Schloss, 218 N.Y. 400, 407, 113 NE 337

  76. 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).
    Act which party refuses to permit.--

    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.

    Keith v. De Bussigney, 179 Mass. 255, 259, 60 NE 614.

  77. 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.
  78. 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.
  79. Marshall v. Lewark, 117 Ind. 377, 378, Vt. 331, 334, 17 A 741; Hopkins v. Logan, 5 M. & W. 241, 249, 151 Reprint 103.
  80. Grevell v. Whiteman, 32 Misc. 279, 65 NYS 974; Williams v. Jones, 13 M. & W. 628, 153 Reprint 262.
  81. U.S.-- Pacific Mail SS. Co. v. Joliffe, 2 Wall. 450, 17 L. ed. 805.
    Mass-- Milford v. Com., 144 Mass. 64, 10 NE 516.
    Mich.-- Woods v. Ayres, 39 Mich. 345, 33 AmR 396.
    S.D.-- Yankton Bd. of Education v. Yankton County School Dlst., 23 S.D. 425, 431, 122 NW 411 [cit Cyc].
    Vt.-- Woodstock v. Hancock, 62 Vt. 348, 19 A 991.
  82. 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.
  83. Cushing v. Chapman, 115 Fed. 237.
  84. Mobile Light, etc., Co. v. Copeland, (Ala. A.) 73 S 131; Hamby v. Collier, 136 Ga. 309, 71 SE 431.
  85. See Chudnovski v. Eckels, 232 Ill. 312, 83 NE 846.
  86. Pache v. Oppenheim, 93 App. Div. 221, 87 NYS 704.
  87. 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).
  88. 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
    Colo.-McCutchen v. Klaea, 26 Colo. A. 3 7 4 , 3 7 7 , H3 P 1 4 3 .
    Ill.-Fox v. Kltton, 19 Ill. 619. 632.
    Iowa.-Keokuk v. Ft. Wayne Electric Co. , 90 Iowa 87, 71, 67 NW 6 8 9 .
    N . .T.--8tate v. Jersey Ci ty, 31 N. J. L. 676, 681, 86 AmD 240.
    Tenn.-Hale v. Sharpe, 4 Coldw.
    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].
    [a] Other definitions.-
    1. "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.
    2. '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.
    3. "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 .
    4. "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.
    5. "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.
    [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.
    [c] A present conveyance of land is an "executed contract." Fulenwider v. Rowan, 1 3 6 Ala. 287. 34 S 97850.
  89. 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 .
    Ala.-Fulenwider v. Rowan, 1 3 6 Al a. 2 8 7 , 3 4 S 9 7 5 .
    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 ] .
    Iowa.-Keokuk v . Ft. Wayne Electric Co . . 9 0 Iowa 67. 71, 6 7 NW 6 8 9 .
    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.
    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 .
    Oh.-Sandusky City Ba.nk v . Wllbor, 7 Oh. St. 481.
    S. D.-Mettel v. Gales, 12 S. D. 832. 639, 8Z NW 181.
    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].
    See Kl11ebrew v. M urray, 151 K y. 346, 15 1 SW 662 (holding contract executory) .
    [a] Other definitions.--
    1. "A con· tract to do some f u t ure act." Hale v. Sharpe, 4 Coldw. (Tenn.) 275 , 286.
    2. "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.
    3. "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.
    4. "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.
    5. "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--
    1. 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.
    2. 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.
    3. An agreemen t to se ll Is an execu tory con tract. Fulenwider v. Rowan, 136 Ala. 287, 34 S 9 75.
    4. 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.
  90. 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
  91. 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 .
    [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.
  92. U. S.-Howe v. Howe, etc.. Ball Bearing Co., 164 Fed. 820, 83 CCA 636. .
    Ala.-Southern States Co. v. Long, (A. ) 73 B 1 4 8 .
    Cal.-Dean v. Sedan Milling Co., 1 9 Cal. A. 28. 124 P 7 3 6, 739 [ci t Cyc).
    Colo.-Omaha Lumber Co. v. Co- operative Inv. Co. , 55 Colo. 271, 1 33 P 1112, 1116 [cit Cy c) .
    Okl.--Oalbreath Gas Co. v. Lind- sey, 161 P 826.
    Pa.-Moody v. McTaggart, 29 Pa. Super. 465. 468 [quot Cyc ].
    S. C. -Tucker v. Cox, 101 S. C. 4 7 3, 47,8, 86 S E 28 fquot Cyc ).
    [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.
  93. Mette! v. Gales, 12 S. D. 632, 82 NW 181.
  94. State v. Jersey City, 31 N. J. L. 6 7 6 , 86 AmD 240.
  95. See Case v. Cglllns. a7 Ind. A. 491, 76 NE 781; Watson v. C oast, 36 W. Va. 463, 14 SE 249.
    Formal execution of contracts see Signing--Necessity for.
  96. 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 .
  97. 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 ; Sta bl e r 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. ).
    [a] Other definitions--
    1. "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)].
    2. "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.

    [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.
    Contracts under seal see Contracts under seal.
  98. 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.
  99. 90. Just i ce v. Lang, 4 2 N. Y. 493, 1 AmR 57 6.
  100. 91. K lme v. Tobyhanna Creek Ice Co., 240 Pa. 81, 87 A 278.
  101. Perrine v. Cheeseman, 11 N J. L. 174, 19 AmD 388; B alla rd v. Walker, a Johns. Cas. (N. Y.) 60.
  102. 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 .
    "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.
    "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 .
    [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 .
  103. U.S.--snow v . N e son, 113 Fed. 353. 357.
    D. C.-Evans v. Schoonmaker, 2 App. 62. 71.
    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.
    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.
    B. C.-Emb,ree v. McKee, lf B. c. 46 46.
    "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.
  104. 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.
  105. 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 .
  106. Sealed Contracts see Contracts under seal.
  107. 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).
  108. Midland Roofing Mfg. Co. v. Pickens. 96 S. C. 286, 80 SE 484.
  109. Midland Roofing Mfg. Co. v. Pickens. 96 S. C. 286, 80 SE 484.
    Specialty contracts see Contracts under seal.
  110. 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.
  111. Georgia Penitentiary Co. v. Nelms, 65 Ga. 499, 505, 38 AmR 793 [quot Bouvier L.D.].
  112. 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].
  113. 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.].
  114. 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.
    Necessity and existence of mutuality see Mutuality.
  115. [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.

    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. John s o n , 1 2 8 u. s. 2 1 2 . 216, 9 set 7 2. 3 2 L. ed. 401.

    [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.