Page:Black's Law Dictionary (Second Edition).djvu/269

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


CONTRACT. An agreement, upon sutilclent consideration, to do or not to do a nuticular thing. 2 Bl. Comm. 4-12; 2 Kent, mm. -149. Justicc r. Lang, 42 N. Y. 496. 1 .-im. Rep. 576; Edwards v. Kearzey, 96 U. S. 599. 24 L. Ed. 793: Canterherry V. i\illiei', 70 Ill. 355.

ii covenant or agreement between two or imrn pi-rsous, with a lawful cousidci iiuu (‘l‘Ll.ll]S(-3 Jacob.

.\ dclilicr-ite engagement between comialeut parties, upon a legal consideration. to 61 or abstain from doing. some act. Wharmi.

.1 contract or agreement is either where a pmiiisw is made on one side and assented to an the other: or where too or more persons valor lutn enzagcmemt with each other by a i-iumlw on citlier side. 2 Steph. Cumin. 54.

.-\ contract is an agreement by which one puwai oblizates himself to another to give, to do, or permit, or not to do something ex- [irx-Ised or implied ‘by such agreement. Clv. 1‘: dc La. art. 1761; Fish v. Police Jury. 34 in. Ann. 45.

.-\ contract is an agreement to do or not to do a certain thing. Civ. Code Cal. 5 1549 A contract is an agreement between two or more parties for the doing or not doing of some specified thing. Code Ga. 1882. § 2714. A contract is an agreement between two or mire pcrsnns to do or not to do a particular !ill12: and the obligation of a contract is found in the terms in which the contract is expressed. gill is the duty thus assumed by the contract- I‘ parties resppctircly to perform the stipula- Ihu of such contract. “"hen that du-tv is rectcnis-ii anti enforced by the municipal law. it is on nf perfcrt, and when not so recognized and 9 red, of imperfe:-I. obligation. Barlow V. Gncgoiy. 31 Conn. 265.

The writing which contains the agreement of parties, with the terms and conditions and which serves as a proof of the obligation.


Iiriinp. The usual



2 Bl. Comm. 443: 2 Kent, Comm. 450; Linn V. Ross, 10 Ohio, 414, 30 Am. Dec. 95: Thomp- son v. Woodrulf, 7_ Cold. (Tenn.) 401: Grevall V. Whiteman, 32 Misc. Rep. 279. 65 N. Y. Supp. 974 An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct. the circumstances urrouniling the transaction making it a reasonable, or even a iJ(‘CI'.‘."“-i1l‘y, assumption that a contract existed between them

liv tacit ndei-standing. Miller's Appeal, 100 a. 568. 45 Am. Rep. 39-1: “'ickham v. Weil (Com. P1.) 17 N. Y. upp 513. Hinkle V.

Sa; 67 Ohio St. 256. 65 i'. E. .'Ji)9: Power C . ntgomeiy, 114 Ala. 433 21 South ' i 0. v. Gaifnev. (55 Ohio St. 101, (31. N. E. 152' Jennings r Bank, 79 Cal. 3‘ 21 Pac 852, 5 a R. A. 233. 12 Am. St. Rt . 145; Deane v. Hodge ' l\ nu. 146. 27 N. W. 91 59 Am. Rep. 1: Piixbv v. Moor, 51 . . H -103. lmplic< contracts ars sometimes slibdiv dcd into those “implied in fact" and those implird in law." tlin former being covered by the definition just given, uhile the latter are obligations imposed upon :1 person by the law. not in pursnaucs of his intention and agreement. either expressed or implied, but even against his will and design. because the circum- stances between the parties are such as to rander it just that the one should have a right. and the other a cuiiesponding liability. similar to those which would arise from a contract between them. This kind of obligation therefore rests on the principle that whatsoever it is certain a man ought to do that the law will suppose hiin to have promised to do. And hencc it is said that, while the liahilitv of a partv to an express contract arises directly from the contract, ' is just the reverse in the case of a Contract "implied in law." the contract there being implied or urising from '1']? liahlllty.

Musgrove v. Jackson, 59 Mi . 392; Bliss [iinri v. Ros

77 N. Y. 150; O'Brien v. rig. 47 Aux. Rep. 64 But obligation are not properly contracts at all, and should not be so cuominnted. There can he no true contract without a mutual and concurrent intention of the partirs. Such obligations are more

roperlv deVsr'rihNl as “quasi contracts." “lil- Pard v. Doran. -1-8 Hun. 402. 1 N. Y. Supp. 583: People v. Speir. 77 N. Y. 150: Woods v. Ayres, 39 llicli. 350, 38 Am. Rel). 396: Bliss v. Hoyt.

.- r a . I Contracts may be clagficd é(gut¥t.5 .334, 4] Atl. ]O..6, Keener, Quasi

nu sciergl different mcthods, according to the ' ' ‘ vbumt in them which is hronght into promi- Executed and executor-y. Contracts are al- ‘ ' firm are as * " so -’ii.i' ‘ l t and executorv:

Record. specialty, simple. Contracts of r-wird are such as are declared and adjudicateil h_r courts of competent jurisdiction, or enter- wrl on their records. including judgments, re- (‘U:lJLfil:l(.'€S, and statutes staple. Hanleimin v. Bunfr. 39 Ga. 4"'i These are not properly spiking contracts at all. though tliev may be i-in-ed by action like contracts. Specialties. or spy-ial contracts, are contracts under seal, ad. I deeds and bonds. Ludwig v. Buugart, 3 JISI‘ Eicp. 247, 56 N. Y. Supp. 51. All --(mi are included in the description "simple" calnicis: that is, a simple contract is one link 5 not I], contract of record and not under sci: _it may he eithcr written or oral, in eitlir-r IQ _ _s called a "parol" contract, the dis- rgazlishing feature being the lack of a soul. \ ntun,-r v. Fleming, 178 Ill. 140, 52 N. E. 97-J: }'r-rriue v. Chccseman, 11 N J. ltflW. 177. 19 fiiacficc. 398: (‘orcorau v. Railroad Co.. 20

. Rep. 197, 45 N. Y. Supp. 861: Justice v. mug, 42 N. Y. 493. 1 Am. Rep. 576. Expresn and implied. An express contract E -in actual agreonicnt of the parties, the terms I! vi-:h arc opc_ni_v uttered or decinred at the hint of making it. being stated in distinct and eiulitft language, either orally or in writing.

< a o emcciltcd, where nothing remains to be done by either partv, and where the transaction is complctcd at the moment that the arrangement is made, as where an article is sold and delirernd. and payment therefor is made on the spot: ea.-cciitnry, whore some future act is to be done, as where an agreement is made to build a house in six months, or to do an act on or before some future day, or to lend monev upon a cert-iiu interest. payable at a future ' FHl‘l1nE'0E v Tennessee. 95 U. S. GS'%. 24 L. Ed. 558: Fox V. Kiitun, 19 Ill. 582: W‘:itkins v. Nugen. 113 Ga. 372, =15 S. E. ZG2: Kynoch v. Ires. 14 Fed. Cas. 800: Watsrin v Coast. 5 W. Va 463, 14 S. E. 24 Keokuk v. Electric Co.. 90

N. W.

. S. 130. 2.. L. Ed. 55-1: Foley v. Felratli. 93 Ala. 170, 13 South. 435. 39 Am. St. Rep. 30. But executed contracts are not properly contracts at all. except reminiscently. The term dcnotes rights in property which have been acquired by means of contract: but the partics are no longer bound by a contractual tisei Mettel v. Gales, 12 S. D. 6'32. 82 l\'. W. 1

Entire and aeV_era.l1le. An entire contract is one the consideration of which is entire on both