CHAPTER XII

1

CONTRACTS

-DEFINED.... A contract is an agreement be

tween two or more persons of sufficient mental

ability and proper age, based upon a sufficient consideration, to do or not to do some lawful thing. It is an interchange, by agreement, of legal rights. At common law contracts are of three classes: Under seal; of record; and simple contracts. The first two are formal contracts, and the last informal. A contract under seal is one of the earliest, if not the earliest, forms of contract known. It derives its obligation from the sealing and delivery. For a long time no executory contract was binding unless made by deed, but in course of time a promise by word of mouth, without any formality, came to be enforced, if founded upon a legal consideration. A contract under seal needed no consideration to support it as against any person except a creditor. If a consideration actually existed it must have been a legal one, but failure of consideration, where the contract was executed on the faith of some promise or stipulation not fulfilled, may be set up as a defense. If the consideration be unlawful the contract is void.

Contracts of record are those inscribed on paper or parchment and enrolled or recorded in the proper

office. They comprise judgments, recognizances, statutes, etc. Such contracts prove themselves. They may be discharged by an instrument that may be made one of record also.

Simple or parol contracts are those whose validity does not depend upon their form, but upon the presence of a consideration. With the exception of the first two named classes of contracts, every contract requires a sufficient legal consideration to support it. A promissory note, for illustration, is a simple contract, and to support the promise to pay there must be a consideration. Simple contracts may be divided into two classes: 1. Those arising from agreement; and, 2. Those arising independently of agreement, that is where the law implies the existence of an agreement.

Contracts are also classed as executed or executory. An executed contract is one where the obligation of both parties thereto has been fulfilled, viz: As where one party agrees to erect a building for which the other party agrees to pay a stipulated sum, and the building has been erected and the money paid. An executory contract is one where the obligation is to be performed in the future. So long as a contract remains executory it may be discharged by a simple agreement of the parties that it shall no longer bind either of them. An executory contract may also be changed by like mutual agreement, based upon a sufficient consideration. If any new agreement made is inconsistent with the former agreement, so that they can not subsist together, the law implies that the old agreement was discharged by the new one. A contract in writing can not be varied except by an agreement in writing.

2-Agreement. A contract has been defined to be an agreement, and the most essential element of an agreement is the consent of the parties. If two or more parties express their consent to a common purpose, with a view to forming a contract, this amounts to an agreement. An agreement usually consists of an offer by one party and an acceptance by the other, and it is perfect as soon as such offer is accepted.

An agreement may be either express or implied -expressed, where it consists of words written or spoken, expressing an actual agreement of the parties; implied, where it is evidenced by conduct of the parties manifesting an intention of an agreement. An implied promise does not differ from an expressed promise, except as to the mode of proof thereof, an expressed promise being capable of proof by direct evidence while an implied promise is proved by circumstantial evidence. When proved in either case the result will be the same.

In general where an act is done or service rendered in pursuance of a request, or with knowledge and consent, the law will imply a promise to pay what it is worth, except in the case of parent and child, or near relatives or members of the same family, where the rule is directly to the contrary, the rendition of services in such cases being presumed to have been rendered because of love and affection, rather than in expectation of reward; and consequently as between such parties, if a financial recovery is to be had, there must be a contract expressly entered into to that effect. The latter rule rests on the simple reason that such services are not performed in the expectation of receiving a re

muneration for the benefit conferred. Many claims are presented after the decease of a party to whom services have been rendered, very often by a child or other near relative, which claims the probate court is required to pass upon. Unless an express contract be proven whereby the services were rendered with expectation of payment, and the recipient understood that he was to pay and agreed to pay therefor, such relatives cannot ordinarily recover, though the services in fact may have been of great value and of benefit to the recipient. In the case of strangers to the blood, and of distant relatives, not members of the family, the proof of rendition of services and their value ordinarily will be sufficient for a recovery for their value.

3. Parties-A person to be capable of making a binding contract must be of full age and of sound mind. Mere weakness of mind, simply, is not a sufficient incapacity, providing the party has sufficient mind to comprehend the nature and effect of his or her act.

While it may be stated as a general rule, that an infant is not deemed competent to make a binding contract, yet, for his or her benefit, and for the safety of the public, he or she is capable of doing many binding acts, among which may be mentioned, under this head, the making of contracts for personal necessaries according to the circumstances and conditions in which placed. If such infant resides with parent or guardian and is properly provided for by such, he or she cannot then, however, bind himself or herself even for necessaries. Necessaries have been held to include victuals, clothing, medical aid, and education, whereby he or she may

profit afterwards; and also necessaries for the infant's wife and children. One who contracts with an infant and furnished such articles is always bound to make due inquiry regarding the infant's necessities, and if being properly supplied by parent, guardian or friends, he cannot recover from the infant.

Other contracts made by an infant are not void, but voidable only at the election of the infant. Such a contract however is binding upon an adult party thereto, so long as it remains executory, and is not rescinded by the infant. No one but the infant, while living, and his legal representatives if dead, can avoid such voidable contracts. Such contracts may be avoided during infancy, or after reaching majority, by proper action of some nature by the infant. If any act of confirmation be necessary after attaining majority to give binding force to a voidable contract, slight acts and circumstances will be proved, ordinarily, from which to infer assent; but the better rule seems to be, in the case of dissent, that the acts of avoidance, after age, should be in a manner equally as solemn as the act of making the contract. If the infant derives any benefit from the contract to the damage of the other party, he cannot rescind the contract without restoring the other party to the position he was in at the time of making the contract, in other words, he cannot have the benefit of the contract on the one side without returning the equivalent on the other.

A married woman under common law was not allowed to possess personal property independent of her husband, and so was incapable of making a