Gambar halaman
PDF
ePub

U. S. 716, 28 L. Ed. 574; Peabody v. Stetson, 34 Atl. 74, 77, 88 Me. 273.

The obligation of a contract, within the meaning of the Constitution, is a valid subsisting obligation, not a contingent or speculative one. Barton Nat. Bank v. Atkins,

47 Atl. 176, 178, 72 Vt. 33.

Remedy as part of.

The obligation of a contract includes the laws relating to remedies for the enforcement thereof. Gunn v. Barry, 82 U. S. (15 Wall.) 610, 623, 21 L. Ed. 212. Contra, see Jones v. McMahan, 30 Tex. 719, 731.

A law is the true source of the obligation of contract, and the extent of the obligation is defined by law in force at the time the contract is made. The contract alone has no legal obligation, because there is no law to enforce it. The contract is made by the parties and sanctioned by the law,

A contract is an agreement between two or more persons to do or not to do a particular thing, and the obligation of a contract is found in the terms in which that contract is expressed, and is the duty thus assumed by the contracting parties, respectively, to perform the stipulations of the contract. which promises to enforce performance Barlow v. Gregory, 31 Conn. 261, 265.

The obligation of a contract, within the

meaning of the constitutional prohibition of laws impairing the obligation of a contract, consists in that which a person has undertaken to perform. If he has agreed to pay a certain sum at a specified period, his contract binds him to pay that sum on that day, and this is its obligation. Smith v. Mead, 3 Conn. 253, 256, 8 Am. Dec. 183.

The obligation of a contract consists in the power and efficacy of the law, which applies and enforces a performance of the contract, or the payment of an equivalent for nonperformance. The obligation does not inhere and subsist in the contract itself, but in the law applicable thereto. Shrigley v. Black, 71 Pac. 301, 306, 66 Kan. 213.

The obligation of a contract is found in the terms in which the contract is expressed, and is the duty assumed by the contracting parties, respectively, to perform the stipulations of such contract. Barlow v. Gregory, 31 Conn. 261, 265.

should the party decline performance himself. Townsend v. Townsend, 7 Tenn. (Peck)

1, 14 Am. Dec. 722.

The term "obligation," whether we consult its etymology or its general acceptation in our own language, will be found to signify a ligament or tie, something which binds, or obliges us to do or not to do some act. It is derived immediately from the Latin substantive "obligatio," which is from the verb "obligare," to tie, to bind, to oblige; and it is in the same sense that the English words derived from these are universally used and received by all who either speak or write the English language. The obligation of a contract, therefore, is and can be nothing else but that which obliges a person to perform his contract, or to repair the injury done by a failure to perform it. To the duty of performing our contracts, or of repairing the injury done by a failure to perform them, we are, in a state of civil society, not only bound in conscience, but we are, moreover, obliged by the remedy which the law gives to enforce that duty; and as the remedy allowed by law upon a contract is the only civil means which obliges to the performance of the contract, or the repairing of the injury done by a failure to perform it, the legal obligation of the contract evidently consists in that alone. It can consist in nothing else; for if the remedy be withheld or taken away the contract is no legal obligation. The clause in the Constitution of the United States which prohibits the states from passing any law impairing the obligation of contracts refers to this legal obligation. Blair v. Williams, 14 Ky. (4 Litt.) 34, 36; Lapsley v. Brashears, Id. 47,

In construing the provisions of the United States Constitution and the Iowa Constitution, prohibiting the state from passing any law impairing the obligation of contracts, it is said that "perhaps as good a definition of 'obligation' as can be given is that contained in Lasly v. Phipps, in the Supreme Court of Missouri, reported in 13 Am. Law Reg. (N. S.) 236, as follows: The obligation of a contract is the duty of perform ance according to its terms; the means of enforcement being the part of the obligation which the states cannot by legislation impair. It has also been said that the obligation of a contract is its binding power; 53. that which compels the performance.' Or, as defined by the Supreme Court of the United States (Sturgis v. Crowninshield, 17 U. S. [2 Wheat.] 122, 197, 4 L. Ed. 529), the law of the contract. Obligation is correlative of right. Obligation rests upon one party; right belongs to the other." Holland v. Dickerson, 41 Iowa, 367, 370.

Contract distinguished.

See "Contract."

The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than the means of enforcement. Peabody v. Stetson, 34 Atl. 74, 77, 88 Me. 273; Cochran v. Ward, 29 N. E. 795, 797, 5 Ind. App. 89, 51 Am. St. Rep. 229; Edwards v. Kearzey, 96 U. S. 595, 600, 24 L. Ed. 793. This is the breadth of its vital existence. Without it the contract as such, in the view of the law, ceases to be, and falls into the class

of those imperfect obligations, as they are termed, which depend for their fulfillment upon the will and conscience of those upon whom they rest. Edwards v. Kearzey, 96 U. S. 595, 600, 24 L. Ed. 793. Jones v. National Cotton Oil Co., 72 S. W. 248, 249, 31 Tex. Civ. App. 420 (citing Edwards v. Kearzey, 96 U. S. 595, 596, 24 L. Ed. 793); Long v. Walker, 105 N. C. 90, 98, 10 S. E. 858, 859, 860.

Mr.

ged to perform it. Rader v. Union Tp. Committee, 44 N. J. Law (15 Vroom) 259, 260; Louisiana v. City of New Orleans, 102 U. S. 203, 26 L. Ed. 132; Antoni v. Greenhow, 2 Sup. Ct. 91, 100, 116, 107 U. S. 769, 27 L Ed. 468; Phinney v. Phinney, 17 Atl. 405, 407, 81 Me. 450, 4 L. R. A. 348, 10 Am. St Rep. 266.

By the "obligation of contracts" is meant the legal, and not the moral, obligation; the law which obliges the parties to the performance of a contract, embracing in this idea as well the law which is applicable to the contract itself as that which pertains to the remedy for its enforcement. Rutland v. Copes (S. C.) 15 Rich. Law, 84, 105.

Mr. Justice Trimble, in Ogden v. Saunders, 25 U. S. (12 Wheat.) 213, 350-352, 6 L. Ed. 606, says: "The obligation of the contract consists in the power and efficacy of the law, which applies to and enforces performance of the contract, or the payment of an equivalent for nonperformance." Webster, in the argument of the same case, OBLIGATION OF RECORD. defines it to be "the duty of performing a legal agreement." Whatever may be the correct definition (and upon this point scarcely any two judges agree), the position that the remedial laws of the state in existence at the time form part of it is untenable. ord." Lawton v. State, 5 Tex. 270, 271. The provision of the Federal Constitution, denying to any state the right to pass any law impairing the obligation of contracts, does not interfere with the right of a state to pass laws acting upon the remedy. Cutts v. Hardee, 38 Ga. 350, 369.

There is a distinction between the obligation of a contract and the remedy for its enforcement. Whatever pertains merely to the remedy may be changed or modified at the discretion of the Legislature, without impairing the obligation of the contract, providing the remedy be not wholly taken away, nor so hampered or reduced in effect as to render the contract practically incapable of enforcement. Smith v. Jennings, 45 S. E. 821, 825, 67 S. C. 324.

The distinction between the obligation of contract and the remedy given by the Legislature to enforce that obligation exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. Wood v. Malin, 10 N. J. Law (5 Halst.) 208, 209.

The obligation of a contract is found in the terms of the agreement sanctioned by moral and legal principles, and consists in acts of the parties, and is ascertained by the binding words of the contract; while the mode of enforcing the obligation emanates from the lawmaking power, which may be exercised at the discretion of the Legislature, within the prescribed limits of the Constitution. Charles River Bridge v. Warren Bridge, 36 U. S. (11 Pet.) 420, 573, 9 L. Ed. 773, 938.

The obligation of the contract is the means provided by law by which it can be enforced-by which the parties can be obli

A bond taken by an officer of the court by authority of law, and required to be returned into court, is, when so returned and placed upon the files, an "obligation of rec

OBLIGATION OR OTHER SECURITY.

The words "obligations or other security" of the United States, as used in Rev. St. U. S. 5414 [U. S. Comp. St. 1901, p. 3662], punishing the forging or counterfeiting of any obligation or security of the United States, are defined by section 5413 so as to mean all bonds, certificates of indebtedness, national currency, coupon, United States notes, treasury notes, fractional notes, certificates of deposit, bills, checks, drafts for of the United States, and other representamoney drawn by or upon authorized officers tions of value, of whatever denomination, which have been or may be issued under any act of Congress. Neall v. United States (U. S.) 118 Fed. 699, 706, 56 C. C. A. 31.

OBLIGATORY BILL.
See "Bill Obligatory."

OBLIGATORY WRITING.
See "Writing Obligatory."

OBLIGE.

The meaning of Civ. Code La. art. 2315, providing that "every act whatever of man, that causes damage to another, obliges him through whose fault it happened, to repair it," is that under our law the wrong done by one human being to another or to his estate creates an obligation, i. e., brings at once into existence the relation of debtor and creditor, between the wrongdoer and the injured party. This provision includes corporations as among those who are subjected to this obligation. United States v. City of New Orleans (U. S.) 17 Fed, 483, 487.

OBLIGEE.

An obligee or creditor is the person in favor of whom some obligation is contracted, whether such obligation be to pay a sum of money, or to do or not to do something. Civ. Code La. 1900, art. 3556, subd. 20.

The parties to a lease are the lessor and lessee, neither of whom can with propriety be called "obligee"; and therefore an act providing for the assignment of notes and other instruments in writing, and allowing a defendant in a suit by the obligee or payee of any instrument in writing to plead a want of consideration, cannot apply to an action on a lease. Dunbar v. Bonesteel, 4 Ill. (3 Scam.) 32, 34.

As used in an act relating to promissory notes, and providing that, in any action on a note or instrument in writing for the payment of property or money by an obligee, the term "obligee" has a technical meaning, and applies only to notes, bonds, and bills, whether they are given for the payment of money or property or the performance of conditions or covenants, and not to mortgages. Hall v. Byrne, 2 Ill. (1 Scam.) 140,

[blocks in formation]

To "obliterate," in legal effect, would be to deface, to efface, to blot out, to destroy. To "obliterate," in the law, may be to alter, but certainly to alter will not necessarily be held as an obliteration; and an indictment charging that defendant did falsely, feloniously, and without lawful authority alter, "obliterate," and deface a receipt, without alleging in what manner or how he changed the receipt or what he did to it, is insufficient to charge an offense. State v. Knippa, 29 Tex. 295, 298.

whereby its invalidity appears on its face the moment it is produced. Under a statute burning, tearing, or obliterating it, a line providing that a will may be revoked by drawn lengthwise through the name of testatrix, and an upright line through each of the words thereof, accompanied by a declaration of intention to destroy the will, is a sufficient obliteration. Glass v. Scott, 60 Pac. 186, 188, 14 Colo. App. 377.

"Obliterating" a will includes drawing a strong black line over and along the whole signature. Baptist Church v. Robbarts, 2 Pa. (2 Barr) 110, 111.

"Obliteration," within the meaning of the statutes of wills of 1833, authorizing the revocation of wills by obliteration, etc., does not require the effacing of the letters of the will so completely that they cannot be read. A line drawn through the writing constitutes an obliteration, though it may leave the will as legible as before. Appeal of Evans, 58 Pa. (8 P. F. Smith) 238, 242.

"Obliteration," within the meaning of the Pennsylvania wills act, does not include Appeal of Dixon, a careful interlineation. 55 Pa. (5 P. F. Smith) 424.

The word "obliterating," in Act April 8, 1833; 13, authorizing the revocation of a will by burning, cancelling, obliterating, or destroying the same, does not include the act of testator in writing the word "obsolete" on the margin of his will, without signing the same. Lewis v. Lewis (Pa.) 2 Watts & S. 455, 457.

OBLOQUY.

"Obloquy" is defined as blame, reprehension; and to expose one to "obloquy" is to expose him to censure and reproach, such terms being synonymous with the word "obloquy." Bettner v. Holt, 70 Cal. 270, 275, 11 Pac. 713. So that language which tends to injure a man in his occupation, or expose him to censure and reproach, is within the meaning of Civ. Code, § 45, defining "libel" as a false and unprivileged publication which exposes any person to obloquy. Tonini v. Cevasco, 46 Pac. 103, 105, 114 Cal. 266.

OBNOXIOUS.

"Obnoxious," as used with reference to a juror, does not refer necessarily to legal incompetency or unfitness, since a juror may be "legal" by the application of legal tests, and yet "obnoxious" to one or the other of the parties. State v. Fourchy, 25 South. 109, 117, 51 La. Ann. 228.

A "cancellation" is, in legal meaning, an equivalent to and synonymous with an "obliteration." This cancellation or obliteration may be effected by words written across the instrument, as "obliterated" or "canceled." The end may be equally well accomplished by any erasure, partial or complete; it may be OBSCENE-OBSCENITY. done by drawing the pen through the words. Any act of this sort is effectual, for the rea

The word "obscene" is defined in the

son that it puts the instrument in condition Century Dictionary as "offensive to modesty

and decency;

impure, unchaste, indecent, lewd; as, 'obscene' actions or language; obscene' pictures. 'Obscene publication,' in law: Any impure or indecent publication tending to corrupt the mind and to subvert the respect for decency and morality." In the Standard Dictionary the definition is: “Offensive to chastity, delicacy, or decency; expressing or presenting to the mind or view something that decency, delicacy, and purity forbid to be exposed." And this is exactly the definition found in Webster. In Black's Law Dictionary "obscene" is defined as "lewd, impure, indecent." The word cannot be said to be a technical term of the law, and is not

An instruction was approved, in a prose cution for the violation of a statute prohibiting the mailing of "obscene, lascivious, lewd, or indecent" publications, that the question what constitutes obscene, lewd, lascivious, or indecent publications is largely a question for the conscience and opinion of the jury, but that, before it can be said of such literature or publication, it must come up to this point, that it must be calculated with the ordinary reader to deprave his morals or lead to impure purposes. Dunlop ▼. United States, 17 Sup. Ct. 375, 376, 165 U. S. 486, 41 L. Ed. 799.

susceptible of exact definition in its juridi- picture, etc., is obscene or indecent, is for The question whether a book, writing, cal uses. Timmons v. United States (U. S.) the jury. People v. Muller (N. Y.) 32 Hun, 85 Fed. 204, 205, 30 C. C. A. 74. 209, 210.

Obscenity is such indecency as is calculated to promote the violation of law and the general corruption of morals. It is applied to language spoken, written, or printed, and to pictorial productions, and includes what is foul and indecent, as well as immodest or calculated to excite impure desires. State v. Pfenninger, 76 Mo. App. 313, 317; United States v. Loftis (U. S.) 12 Fed. 671,

672.

The word "obscene" is defined as "expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be expressed." It is used in such sense in Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], prohibiting a transmission of "obscene" books, pamphlets, etc., in the mails. United States v. Bebout (U. S.) 28 Fed. 522, 524; Same v. Britton (U. S.) 17 Fed. 731, 733. Obscene writing has been defined as one offensive to decency, indelicate, impure, as an indecent one. Same v. Williams (U. S.) 3 Fed. 484, 485.

"Obscene," as used in Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], prohibiting the use of the mails for obscene matter, means matter offensive to the common sense of decency and modesty of the community, and which is of such a character as to deprave and corrupt those whose minds are open to such immoral influences. United States v. Harmon (U. S.) 45 Fed. 414, 417; Same v. Clarke (U. S.) 38 Fed. 732, 733; Same v. Williams (U. S.) 3 Fed. 484, 485; Same v. Britton (U. S.) 17 Fed. 731, 733; Same v. Bennett (U. S.) 24 Fed. Cas. 1093; Same v. Martin (U. S.) 50 Fed. 918, 919; Same v. Moore (U. S.) 104 Fed. 78.

The words "obscene," "lewd," "lascivious," or "of an indecent character," in the federal statute prohibiting the sending of such matter through the mail, does not necessarily mean that the separate words are of such a character, but the character of the letter is to be determined by treating it as a whole. United States v. Hanover (U. S.)

17 Fed. 444.

Accusation of indecent offense.

The words "obscene, lewd, or lascivious," as used in Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], prohibiting the transmission of any obscene, lewd, or lascivious print, writing, etc., through the mails, etc., do not apply to a letter imputing to the person addressed an atrocious crime, though exceedingly coarse and vulgar, where it has no tendency to excite libidinous thoughts or impure desires, or to deprave and corrupt the morals of those whose minds are open to such influences. The words imply something tending to suggest libidinous thoughts or excite impure desires. United States v. Wightman (U. S.) 29 Fed. 636.

The mailing of a private sealed letter directed to and containing indecent charges against the mother of the writer does not constitute the offense of mailing a letter containing obscene, lewd, and lascivious matter within the statute. United States v. Wroblenski (U. S.) 118 Fed. 495, 496.

Insulting language.

The words "obscene, lewd, or lascivious," in Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], prohibiting the sending through the mails of any obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, are not descriptive of language of merely an insulting character, but are limited to the use of words or pictures appealing to the animal passion, stimulating it, corrupting and debauching the mind and heart. United States v. Durant (U. S.) 46 Fed. 753.

The words "obscene, lewd, or lascivious," in Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], making it criminal to transmit any obscene, lewd, or lascivious book, etc., through the mail, do not clearly characterize letters inclosed in envelopes, directed to a debtor, on which the words "dead beats" are printed in such a manner as to attract attention. The purpose of the act was to

prevent the mails from being used to circulate matter to corrupt the morals of the people. The history of this legislation clearly shows that Congress determined to exclude from the mails impure and immodest writings, and that rough and coarse language is not within the terms of the act. Ex parte Doran (U. S.) 32 Fed. 76, 77.

Medical works.

The term "obscene or indecent publication," within the meaning of Rev. St. U. S. § 3893 [U. S. Comp. St. 1901, p. 2658], includes an illustrated pamphlet purporting to be a work on medical subjects, but of an indecent character, and intended for general circulation, even though the work consists partially of extracts from standard medical works. United States v. Chesman (U. S.) 19 Fed. 497. See, also, United States v. Smith (U. S.) 45 Fed. 476.

In a prosecution for the publication of an obscene libel, the court said: "That it did not matter whether the things published in the book were true, and in conformity with nature and the laws of our being, or not. If they were unfit to be published, and tended to inflame improper and lewd passions, it was an obscene libel. That even scientific and medical publications containing illustrations exhibiting the human form, if wantonly exposed in the open markets with a wanton and wicked desire to create a demand for them, and not to promote the good of society by placing them in proper hands for useful purposes, would, if tending to incite lewd desires, be held to be obscene libels." Commonwealth v. Landis, 8 Phila. 453, 454.

Nudity in art.

The test of the indecency or obscenity of a picture, within the meaning of Pen. Code, 317, prohibiting the selling of any obscene or indecent pictures or publications, etc., is their capability of suggesting impure thoughts. It is evident that mere nudity in painting or sculpture is not obscenity. Some of the great works in painting and sculpture, as all know, represent nude human forms. People v. Muller, 96 N. Y. 408, 411, 48 Am. Rep. 635; People v. Muller (N. Y.) 32 Hun, 209, 211.

Sexual impurity.

Within the meaning of a statute forbidding obscene and vulgar language in the presence of a female, the language of a man in asking a female to go to bed with him is vulgar and obscene. Dillard v. State, 41 Ga. 278.

An article is not unmailable merely because it offends the religious sentiments of the majority of the people by attacking the doctrine of the immaculate conception of Christ in coarse or even obscene language, where it has no tendency to induce sexual Immorality; that being the only class of publications against which it is the purpose of the statute to protect the public. United States v. Moore (U. S.) 104 Fed. 78.

OBSCENE EXHIBITION OF PERSON.

The terms obscene and indecent exhibition of the person as used in Pen. Code, § 343, prohibiting the "obscene and indecent exhibition of the person," mean "an exposure of those parts of the person which are commonly considered as private, and which custom and decency require should be covered and kept concealed from public sight. They do not mean or include obscene or indecent prints, pictures, or written composition placed on the clothes worn on the person." Tucker v. State, 13 S. W. 1004, 28 Tex. App. 541.

OBSERVATION.

See "Ordinary Observation."

OBSERVE.

"Observed," as used in an instruction in a personal injury action by a railroad brakeman injured by the failure of his engineer either to see or obey certain signals, was obscure and confusing, since the term, in that connection, might mean either seen or obeyed. Western Ry. v. Williamson, 21 South. 827, 831, 114 Ala. 131.

"Observe," as used in a liquor dealer's bond, providing that the liquor dealer shall observe all the provisions of a certain act, the failure of the liquor dealer to pay the tax required by the act is a breach of such condition, since "observe" means to conform one's action or practice to; to keep; to heed or obey; to comply with. Marshall County v. Knoll, 69 N. W. 1146, 1148, 102 Iowa, 573.

"Obscene," as used in Rev. St. U. S. 3893 [U. S. Comp. St. 1901, p. 2658], making it a criminal offense to place in the mails any obscene, lewd, or lascivious publication, signifies that form of immorality OBSOLETE. which has relation to sexual impurity, and has the same meaning as is given at common law in prosecutions for obscene libel. Swearingen v. United States, 16 Sup. Ct. 562, 563, 161 U. S. 446, 40 L. Ed. 765; United States v. Males (U. S.) 51 Fed. 41, 42.

The act of a testator in writing the word "obsolete" on the margin of his will, without signing it, or having any person sign it for him, in the manner prescribed by law, does not constitute a revocation of the will, un

« SebelumnyaLanjutkan »