Page:Black's Law Dictionary (Second Edition).djvu/270

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CONTRACT

sides. The entire fulfillment of the promise by either is a condition precedent to the fulfillment of any part of the promise by the other. Wheneit-.r, therefore, there is a contract to pay the gross sum for a certain and definite consideration, the contract ls entire. A severable contract is one the consideration of which is, by its terms. susceptible of apportionment on either side. so as to correspond to the unascertained consideration on the other side, as a contract to pay a person the worth of his services so l0|'1_5.' as he uill do certain work‘ or to give u certain price For every bushel o so much cnrn as corresponds to [l sample. Potter v. Pntter. 43 Or. 149. T2 I‘-ic. TIL‘; Telephone Co. v. Root (Pa.) 4 Atl. S39; l'lI}|inm‘ll.'i v. Horseman. 43 Or K1. 72 Pac. (:48: .\'urrin:ztnn r. V\'ri-,;ht IC. (‘J 5 Fed. 771. ilowlev V Schilfer ((‘-oni. Fl.) 13 N. Y. Supp. 5.72-. 0s_i:nod v. Bonnier, 75 Iowa. 55 . 39 N. W SS7. 1 L. R. A. (i'i-'). “here a contract consists of many parts, which may be rriusidcred as parts of one whirls:-, the c(iiitr'ict is cntire Whi=n the parts may be CODSlI]Fl'P(i as so many distinct contracts. entered into at nne time, and expressed in the same instrument, but not there- by made one contract, the contract is 11 sep- arable contract. But, if the Consideration of the contract is single and entire, the contract must he held to be entire, alIhi>u,r.rli the si‘ici.l of the contract may consist of scvcr-il (ii unit and wholly independent items. 2 Pure. (‘nm. 517.

Parts]. All contracts which are not contr 'h; of record and not specialties are ])‘II"ni contrar- It is erroneoiis to contrast “p.-irol" with “in ten.” Tlimigh a contract may be uholly in urifiug. it is still a pnrnl con ‘act if it is not uiirlcr scnl. Ynrhorough v. W st. 10 Ga. 473; Jones v. Ilollidny. 11 Tex. 415. 62 Am. Dec. 48’! : Luduig v. Bungart, 26 Misc. Rep. 247. 56 N. Y. §upp. 51

Joint and several. A joint contract is one made by two or more promisnrs, who are joint- ly bound to fulfill its obligations, or made to two or more promisees, viho are jointly eu- lilled to require performance of the same A contract may he “sevcrsl" as to any one of several promisurs or promisecs, if he has a legal right (either from the terms of the agreement or the nature of the undertaking) to en- force his indivldual interest separately from the other parties. Rainey v. Srnizer. 28 I\Io. 310: Bartlett v Robbins. 5 l\'Ietc. (Maas.) 1Sl'.

Principal and accessory. A principal contract is one which stands by itself. justilics its own existence, and is not subordinate or auxili- ury to any other. Accessory contracts are those made for assuring the performance of a prior contract. either by the same parties or by others.

such as suretys . mortgage, and pledges. Cir. Code La. art. 17 . Unilateral and bilateral. A unilateral

contrsct is one in which one party makes an express engagement or undertakes a perform- ance, without receiving in return any express engagement or promise of performance from the other. Bilateral (or reciprocal) contracts are those by which the parties expressly cuter i_i-ito mutual cngagemcnts. such us sale or hire L'iv. Cude La. art. 17' ; Path. Ohl. 1. 1. 1. 2: Montpelier Seminary v. Smith, 09 Vt. 332. 38 ALI. 66: Laclcde Const. Co. v Tudor Iron- uurks. 169 Mo. 1337. 69 S. W. 3S8.

Consensual and real. Consensual contracts are such as are founded upon and completed by the mere s.grecini-nt of the contracting parties, witbnut any eXfI‘l'l.lni formality or sym- holic act to fix the obliization. Real contracts are those in which lt is necessary that there should be somctliing more tban mere Lonscnt. such as a loan of money, deposit or pledge-. which. from their nature. renuirc H rivliii y of the thin-1 (1-cs.) Inst. 3. 14. 2; Id. 3. 15;

" . . .2,c.1.'i.l\o.1. common law a contract respecting real Druperty

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CONTRACT

(such as a. lease of land for years) is called ii “rea_l" contract. 3 Coke. 2211.

Certain and hazardous. Oeruiin CDDCTT‘ are those in which the thing to be done is aup= posed to depend on the will of the party. ni- when. in the usual course of events. it |1llJSI.i.l|'L)r pen in the manner stipiilnLc<. 1-la1.ardoiis contracts are those in which the pi-riorniance of that which is one of its ohjects depends on an uncertain event. Civ. Code La. 1769.

Commutative and independent. ID‘. mutulivc contracts are those in which what U doni-. given, or promised by one party is ' siilcied as no equlialcnt to or in consilng of what is done, given, or promised by in Q or. Civ. Cnile La. 1761'. Ridings v. .10 1'28 U. S. 212, 9 Sup. Ct. 72. 32 L. lid. 4 lndcpcuilent contracts are those in which ehc nintuul acts nr puiniiscs have no riiitim II each other. t-itlier as equivalents or as coufilllb tiona. Civ. Code La. 1762.

Gratuitous and onerous. Gratuimvu t‘ tracts are [hose of which the object is the III- fit of the person with vihom it is mad-3, wit out any profit or advantage received or 9 lsed as a cor -rideration for it It is rim. In ever, the lcss gratuimiis if it prtrud dflé ti-om griimiiile for a benefit hetore riaivail I- from the hope of rcceiiing one her:-Jkt. 1|- tliiiuizli suili iienefit he of a pELlll.lIlll‘_y icilufl. Oncruu.-.1 C[VI.|il‘l1("" are those in which > ltfi is givnu or prnniiscd as a 00113111-:[ll[iiv‘|1 me (5 cngagemeiit or gift, or some sgriiw ta‘ or cuuilitmn ls imposed on “Mt a :,'il"‘l1 G prmniscd, althnuch unequal to it in value Code Lu 1TIi(’. 1767: Penitentiary Co. I: Nclnis. 65 Ga. 505. 38 Am. Rep. 793

Mutual interest, mixed. etc. Cuntl‘E;‘.I of "mutual interest“ are snLh as are 1‘ into for the reciprocal interest and utility each of the parties: as sales, exchange. 1: ncrship, and the k . “;\Iixed" crinlr:-is ii. (hose by u hich one of the parties coiifi-is a h - clit on the other. receiving souit-thin: of ‘ ferior value in return. such as a doniiilzn it ject to a chnrrze. Contract. "of henchcenci-" are those hr uliicli only one of the contracting pa;-, ties is liciiefited ; as loans. deposit and nianilafi Path. Ohl. 1. 1. 1, 2.

A conditional coutiact ‘is an exccutnry tract the p ' condition. It is not simply an executnry 1 tract. since the latter may be an absolute azrb merit to do or not to do something. liui II in M contract whose very existence and pcrforinaifl depend upon a contingency. Railroad Co. v. Jones. 2 Cnld. ('l‘t~nn.) 584; lfiench v. Osnier. 67 \t..-12 2 At]. 2M

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lties of persons who have not in reality ente into a contract at all, but between whom ci cunistances make it just that one Shnldfl a right. nnd the other be sub similar to the rights and liabi express contract. Wit-hlinm v. Wcil (Com. 17 I\‘ Y. Supp. 551‘? Graham r. Cumming). Pa. 516, T Atl. Robinson v. Tuna: ((‘. .) 59 Fed. 559: Ilcrtzog v. llertng. Pa 4!‘...

Personal contract. A contract relnlinr hi personal property, or one which so far inthe element of personal kuowletiae or siiiil personal confidence that It can he pnrfurrllfl ly by the person with whom made, and lli fare is not binding on his executor. See Jii v. Browne. 50 Cal. 44.

Special contract. A contract under a a specialty; as riistinguishpil frnim one mg oral or in writing not sealed. But in coin is often used to denote an e press or explicit contract, one which clearly defines and settles ‘

the reciiirocal rights and

ohligotiona of the parties, as distinguished f