No custom, however, can be proved or permitted to influence the construction of a contract, or vary the rights of the parties, if the custom itself be illegal. For this would be to permit, or even oblige, parties to break the law, because others had broken it.

Nor would the courts sanction a custom which was in itself unreasonable and oppressive. There was a vessel cast ashore on the coast of Virginia, and the master sold the cargo on the spot; and on trial the jury found that he was authorized to do so by the usage there; but the Supreme Court of Massachusetts, where the ship and cargo were insured, said that the usage was unreasonable, and they would not allow it. The Supreme Court of Pennsylvania in one case refused to allow a usage, as unreasonable, by which plasterers charged half the size of the windows at the price per square yard agreed on for the plastering of a house.

Lastly, no custom, however universal, or old, or known (unless it has actually become law), has any force whatever, if the parties see fit to exclude and refuse it by the words of their contract, or provide that the thing which the custom affects shall be done in a way different from the custom. For a custom can never be set up against either the express agreement or the clear intentions of the parties.

HOW CONTRACTS OR AGREEMENTS SHOULD BE MADE.

Every agreement should be written, and signed by both parties, and witnessed, where this can be done; although the law absolutely requires witnesses in very few cases, and in none of mere contract. It is prudent, however, to have them; for it is a rule of law that things which cannot be proved and things which do not exist are the same in the law.

Every thing agreed upon should be written out distinctly, and care should be taken to say all that is meant, and just what is meant, and nothing else; for, as above stated, it is a rule of law that no oral testimony shall control a written agreement, unless fraud can be proved. Against fraud nothing stands.

FORMS ANNEXED TO THIS CHAPTER.

(98.) A general agreement, sufficient for many purposes.
(99.) A general agreement, as used in the Western States.

(100.) A general contract for mechanics' work.

(101.) An agreement for purchase and sale of land, in use in the Mid

dle States.

(102.) An agreement for sale of land, in use in the Western States.

(103.) An agreement for warranty deed, in use in the Western States. (104.) A contract to convey real estate, in use in the Middle States. (105.) An agreement for the purchase of an estate, in use in New England.

(106.) An agreement for the sale of an estate by private contract. (107.) An agreement to be signed by an auctioneer, after a sale by

auction.

(108.) An agreement to be signed by the purchaser, after a sale by

auction.

(109.) An agreement to make an assignment of a lease.

(110.) An agreement for making a quantity of manufactured articles. (111.) An agreement between a trader and a book-keeper.

(112.) An agreement for damages in laying out or altering a road. (113.) An agreement between a person retiring from the active part of a business and another who is to conduct the same for their mutual benefit.

(114.) A brief building contract.

(98.)

A GENERAL AGREEMENT, SUFFICIENT FOR MANY PURPOSES,

MUTUAL AGREEMENT OF TWO.

A. B., of (place of residence, and business or profession), and C. D., of (as before), have agreed together, at (place), on (the day should always be named), and do hereby promise and agree to and with each other, as fol lows: A. B., in consideration of the promises hereinafter made by C. D. (if there are any such promises), and of (here state any other consideration which A. B. has), promises and agrees to and with C. D., that (here set forth, as above directed, the whole of what A. B. undertakes to do).

And C. D., in consideration (set forth consideration and promise as before).

WITNESS our hands, to two copies of this agreement interchangeably.

Signed and interchanged in presence of

E. F.

G. H.

(99.)

A. B.

C. D.

A GENERAL AGREEMENT, AS USED IN THE WESTERN STATES.

ARTICLES OF AGREEMENT, Made this

day of

in the year of our Lord one thousand eight hundred and sixty

party of the

WITNESSETH, That the said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on

to be made and performed, the said party of the first part will

part

And the said party of the second part hereby covenants and agrees to pay

to said party of the first part the sum of following:

dollars, in the manner

dollars cash in hand paid, the receipt whereof is

hereby acknowledged, and the balance

with interest at the rate of

per centum per annum, payable annually. And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by shall have the right to

sustained, and

It is mutually agreed that all the covenants and agreements herein con tained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties.

IN WITNESS WHEREOF, The parties to these presents have hereunto wet their hands and seals, the day and year first above written.

WITNESSETH, That the party of the first part, for the consideration hereinafter mentioned, covenants and agrees with the party of the second part to perform in a faithful and workmanlike manner the following specified work, viz.:

day of

mechanic or other liens, on or And the party of the second

And, in addition to the above, to become responsible for all materials delivered and receipted for; the work to be commenced and to be completed and delivered, free from all before the part covenants and agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part the sum of

dollars, as follows:

And it is further mutually agreed by and between both parties, that in case of disagreement in reference to the performance of said work, all questions of disagreement shall be referred to and the award

of said referees, or a majority of them, shall be binding and final on all parties.

IN WITNESS WHEREOF, We hereunto set our hands and seals, on the day and year first above written.

Executed in presence of

(101.)

(Signatures.) (Seals.)

AN AGREEMENT FOR PURCHASE AND SALE OF LAND, IN USE IN THE MIDDLE STATES.

AGREEMENT, Made and concluded the

A.D. 18 by and between first part, and

of the State of

of the State of

day of
of the second part:

of the

WHEREAS, The party of the second part hath agreed to purchase from the party of the first part, either on his own account or for whom it may concern, certain

and State of

land in

township

county, And it is agreed that the party of the second part shall have the right to divide and subdivide said land in such manner, and appropriate to his own use so much thereof, as he may see fit, giving and paying to the party of the first part the sum of

day of

A.D. 18

dollars, on and reserving to

or before the his own use any amount for which the whole or any be sold over the said

dollars.

AND THESE ARTICLES FURTHER WITNESS, That the party of the first part, for and in consideration of the premises and the sum of lawful money, to him paid by the party of the second part, at and before the execution hereof, doth covenant, promise, grant, and agree with the party of the second part, his heirs and assigns, upon sale of said lands being made by the party of the first part, to sufficiently grant, convey, and assure said lands, with the appurtenances, to the said party of the second part, or such person or persons as he may direct; and in default of the said party of the second part paying the amount hereinbefore specified at the time mentioned, then these articles are to be deemed and considered cancelled to all intents and purposes, the same as though they never had been made.

IN WITNESS WHEREOF, The parties hereto have hereunto set their hands and seals, the day and year first aforesaid.

Sealed and delivered in presence of

(Signatures.)

(Seals)

(102.)

AN AGREEMENT FOR SALE OF LAND, IN USE IN THE WESTERN STATES.

ARTICLES OF agreement, Made this

the year one thousand eight hundred and sixtyof the first part, and

of the second part,

day of

in

between

WITNESSETH, That the party of the first part, at the request of the party of the second part, and in consideration of the money to be paid, and the covenants as herein expressed to be performed, by the party of the second part (the prompt performance of which payments and covenants being a condition precedent, and time being of the essence of said condition), hereby agree to sell to the said party of the second part, all certain lot and parcel of land, situate in and State of

county of

known and designated as follows, viz.:

with the privileges and appurtenances thereto belonging.

And the said party of the second part, in consideration of the premises, hereby agrees to pay the party of the first part, his or their executors, administrators, or assigns,

dollars,

as follows, viz.:

in

per cent per annum,

days, the sum of

with interest at the rate of from to be paid semi-annually in each year, on the whole sum from time to time remaining unpaid. And also that he will weli and faithfully, in due season, pay, or cause to be paid, all ordinary taxes assessed for revenue purposes upon said premises, or any part thereof, subsequent to the year 18 And also all other assessments which now are, or may be hereafter, charged or assessed upon or against said premises, or any part thereof. But in case the said party of the second part fail to pay any or all such taxes or assessments upon said premises or appurtenances, or any part thereof, whenever and as soon as the same shall become due and payable; and the party of the first part shall pay from time to time, or at any time, any or all such taxes or assessments, or cause the same to be paid, — the amount of any and all such payments so made by the party of the first part, with interest thereon from the date of payment, shall immediately thereupon become an additional consideration, and payment thereof shall be made by the party of the second part hereto, for the premises herein agreed to be conveyed.

And the said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful performance by said party of the second part of undertaking in his behalf, and of the payment of principal and interest of the sum above mentioned, in the manner specified, he the said party of the first part shall and will, without delay, well and faithfully execute, acknowledge, and deliver in person, or by attorney duly authorized, to the party of the second part,

heirs or assigns, a deed of conveyance of all the right, title, and interest of the party of the first part, of, in, and to the above-described