Necessary incidents implied.

Time of perform. ance of contract.

Syers v. Jonas, 2 id., 116; Hutton v. Warren, 1 M. &. W., 475: Humfrey v. Dale, 7 E. & B., 266; Dale v. Humfrey, El. B. & El., 1004; Brown v. Byrne, 3 E. & B., 703.

Mutual Ins. Co. v. Hone, 2 N. Y., 241; Vail v. Rice, 5

id., 155; Hutton v. Warren, 1 M. & W., 475; see Suse v. Pompe, 8 C. B. [N. S.], 538. A stipulation which is clearly in accordance with the intention of the parties must be enforced, though ever so unreasonable (Stadhard v. Lee, 3 Best & Sm., 364). A stipulation which cannot be misunderstood, e. g., for the payment of a certain sum of money, cannot be modified by proof of a usage to accept a smaller sum in satisfaction (St. Nicholas Ins. Co. v. Mercantile Ins. Co., 5 Bosw., 246).

S821. All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom;' unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded." 1 Code Napoleon, 1160; Lampman v. Milks, 21 N. Y., 505; Huttemeier v. Albro, 18 id., 48; Kelsey v. Durkee,

33 Barb., 410.

* Co. Litt., 210 a.; Hare v. Horton, 5 B. & Ad., 715; Rex v. Sedgley, 2 id., 65; Line v. Stephenson, 4 Bing. N C., 678; 5 id., 183; Cook v. Jennings, 7 T. R., 381.

$ 822. If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly, as for example, if it consists in the payment of money only, it must be performed immediately upon the thing to be done being exactly ascertained.*

'Atwood v. Emery, 1 C. B. (N. S.), 110; Hoggins v. Gordon, 3 Q. B., 466; Sansom v. Rhodes, 6 Bing. N. C., 261; 8 Scott, 244; Stavart v. Eastwood, 11 M. & W., 197; see Thomas v. Dickinson, 12 N. Y., 369; Terwilliger v. Knapp, 2 E. D. Smith, 86. No more than a reasonable time is allowed (see Cross v. Beard, 26 N. Y., 85).

"Van Boskerck v. Mott, Supreme Ct., 1864; see Des Arts v. Leggett, 16 N. Y., 588.

'Lake Ontario R. R. v. Mason, 16 N. Y., 451; Purdy v. Philips, 11 N. Y., 406; Wright v. Whiting, 40 Barb., 235; Thompson v. Ketcham, 8 Johns., 189; Gibbs v Southam, 5 B. & Ad., 911.

Penn. Coal Co. v. Del. & Hudson Canal Co., 29 Barb.,
589; affirmed in Court of Appeals.

when of

S823. Time is never considered as of the essence of Time, a contract, unless by its terms expressly so provided. essence.

This provision is new. As to the present law upon the
subject, see Story Eq. Jur., § 776. It is involved in so
much difficulty, that the commissioners deem it wise
to adopt this more stringent rule.

$824. Where all the parties who unite in a promise When contract joint receive some benefit from the consideration, whether and several. past or present, their promise is presumed to be joint and several.

Yorks v. Peck, 14 Barb., 644; Hunt v. Rousmanier, 8
Wheat., 174.

S825. A promise, made in the singular number, ia, but executed by several persons, is presumed to be joint and several.

Van Alstyne v. Van Slyck, 10 Barb., 383; Hemmenway
v. Stone, 7 Mass., 58.

and execu

S826. An executed contract is one, the object of Executed which is fully performed. All others are executory. tory con

Fletcher v. Peck, 6 Cranch, 136.

tracts,

what.

TITLE IV.

UNLAWFUL CONTRACTS.

SECTION 827. What is unlawful.

828. Certain contracts unlawful.

829. Penalties void.

830. Contract fixing damages, void.

831. Exception.

832. Restraints upon legal proceedings.

833. Contract in restraint of trade, void.

834. Exception in favor of sale of good will.

835. Exception in favor of partnership arrangements.
836. Contract in restraint of marriage, void...

S827. That is not lawful which is:

1. Contrary to an express provision of law;1

What is unlawful.

Certain contracts unlawful.

Penalties void.

Contract fixing

damages, void.

Exception.

2. Contrary to the policy of express law, though not expressly prohibited ;2 or,

3. Otherwise contrary to good morals.3

The law makes no distinction in this respect between
malum prohibitum and malum in se (Pennington v.
Townsend, 7 Wend., 276; Leavitt v. Palmer, 3 N. Y.,
19; De Groot v. Van Duzer, 20 Wend., 390; Pratt v.
Adams, 7 Paige, 653; Seneca Co. Bk. v. Lamb, 26
Barb., 595).

Bell v. Leggett, 7 N. Y., 176, 181; Gray v. Hook, 4 N.
Y., 449.

'Lady Cox's Case, 3 Peere Wms., 339; Walker v. Per-
kins, 3 Burr., 1568; Gray v. Matthias, 5 Ves., 291;
see Trovinger v. McBurney, 5 Cow., 253; Wait v.
Day, 4 Den., 446. The law does not avoid acts
merely dishonorable or discreditable (Moore v. Rem-
ington, 34 Barb., 427).

S828. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law. See Smith v. N. Y. Central R. R., 24 N. Y., 222; Perkins v. Same, id., 213.

S829. Penalties imposed by contract for any nonperformance thereof, are void. But this section does not render void such bonds or obligations, penal in form, as have heretofore been commonly used; it merely rejects and avoids the penal clauses.

'See Lampman v. Cochran, 16 N. Y., 275; Dennis v. Cummins, 3 Johns. Cas., 297; Spear v. Smith, 1 Den. 464; Richards v. Edick, 17 Barb., 260; Mills v. Fox, 4 E. D. Smith, 220; Beale v. Hayes, 5 Sandf., 640.

S830. Every contract, by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided by the next section.

S831. The parties to a contract may agree therein upon an amount which shall be presumed to be the

amount of damage sustained by a breach thereof,
when, from the nature of the case, it would be im-
practicable or extremely difficult to fix the actual
damage.

The use of the phrase "liquidated damages" leads fre-
quently to an evasion of the law in respect to penalties.
The courts, not venturing to declare such contracts
void, constantly discourage them. They are oppres-
sive and unconscientious, except in the cases permitted
above, and ought not to be allowed. The restrictions
imposed by this section are, however, new (see Bag-
ley v. Peddie, 16 N. Y., 469; Lampman v. Cochran,
id., 275).

upon legal ings.

S 832. Every stipulation or condition in a contract, Restraints by which any party thereto is restricted from enforc- proceeding his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void.

The first part of this section is acknowledged law. A
covenant in a contract, not to sue for a breach there-
of, is void. The latter provision is new. The question
involved has been variously decided in different tri-
bunals, with a preponderance of opinion in favor of
the right to limit the time of commencing actions, as a
matter of law, but with frequent disapprobation of the
practice. In support of the right, see Fullam v. N. Y.
Ins. Co., 7 Gray, 6; Brown v. Roger Wms. Ins. Co.,
5 R. I., 394; North Western Ins. Co. v. Phoenix O. & C.
Co., 31 Penn. St., 448; Portage Ins. Co. v. West, 6
Ohio St., 599; Wilson v. Etna Ins. Co., 27 Verm.,
99; also Ames v. N. Y. Ins. Co., 14 N. Y., 266.
Against it, see Eagle Ins. Co. v. Lafayette Ins. Co., 9
Ind., 443; French v. Lafayette Ins. Co., 5 McLean, 461.
The law itself, and the law alone, should regulate the
limitations of actions.

or

in restraint

of trade

S833. Every contract by which any one is re- Contract strained from exercising a lawful profession, trade business of any kind, otherwise than as provided by the next two sections, is to that extent void.

Contracts in restraint of trade have been allowed, by
modern decisions, to a very dangerous extent. In Dun-
lop v. Gregory (10 N. Y., 241), a contract not to run a
certain steamboat above Saugerties, on the Hudson,
was enforced, although there was no sale of a good

void.

Exception in favor of

will.

will, nor any circumstance to justify the contract, except that it was made upon a sale of the vessel by an association of persons who had previously used it to run above Saugerties, and wished to avoid competition. In Whittaker v. Howe (3 Beav., 387), a contract not to practice law anywhere in England, was specifically enforced. Such a contract manifestly tends to enforce idleness, and deprives the state of the services of its citizens.

S834. One who sells the good will of a business sale of good may agree with the buyer to refrain from carrying on a similar business within a specified county, so long as the buyer, or any person deriving title to the good will from him, carries on a like business therein. The district, within which a party may exclude himself from carrying on business, should be accurately defined by law; and no division of the state appears to the commissioners to be more reasonable or convenient, for this purpose, than a county. And no one should be allowed to prevent another from carrying on a business, unless he himself provides the public with the same advantages, in the same county.

Exception

in favor of

arrange

ments.

S835. Partners may, upon or in anticipation of a partnership dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof.

Contract

in restraint

An agreement of this description, operating equally upon all the partners, gives to all an opportunity to start anew in business upon equal terms. In such cases, an agreement excluding them all from the county, would be too broad. It may even be doubted whether "ward" should not be substituted for "city" in the text.

S836. Every contract in restraint of the marriage

of marriage of any person, other than a minor, is void.

void.

Contracts in general restraint of marriage are certainly void (Lowe v. Peers, 4 Burr., 2225; Hartley v. Rice, 10 East, 22; Baker v. White, 2 Vern., 215; Sterling v. Sinnickson, 2 South., 756; see Conrad v. Williams, 6 Hill, 444). Perhaps a contract, simply in restraint of remarriage of the wife of one of the parties, would be held valid, in analogy to the rule concerning wills; but experience has shown that such stipulations tend to immorality. Restraints upon the marriage of minors are promotive of prudence, without being burdensome.