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d) The statute provides that “when personal property is divisible and owned by tenants in common, and one tenant in common shall claim and hold possession of more than his share or proportion thereof, his co-tenant, after making demand in writing, may sue for and recover his share or the value thereof; and the court may direct the jury if necessary in any such action to find what specific articles or what share or interest belongs to the respective parties, and the court shall enter up judgment in form for one or both of the parties against the other, according to such verdict.” This section refers only to property which is divisible, such as books, animals, grain, crops, etc., and a written demand is necessary before suit can be commenced.
THE LAW OF CONTRACTS.
Importance of the subject.-Nearly every transaction in the business world involves the making of a contract, and nearly all of commercial and business law treats of contracts in their various forms. The reader is therefore urged to master the principles laid down in this chapter if he would understand the succeeding chapters properly. The object of this chapter is to present only the general principles applicable to all contracts, and particular kinds of contracts, such as the contracts of insurance, bailment, agency, sales, commercial paper, contracts of married women, will be treated in distinct chapters. Some of the more important subjects relating to the formation of a contract, such as infants, illegal contracts etc., will also be treated separately. The reader should bear in mind that most of the subjects treated in this book fall under the head of contracts, and the general principles laid down in this chapter apply to them all; for inst., the giving of a note, or the taking out of an insurance policy, involves the making of a contract, these being only particular kinds of contracts. Every time a person buys a newspaper, or rides in a street car, or a man gets a shave, he makes a contract in the same way that he does when he makes a contract for the purchase of a steam engine, and the principles of law applicable are the same. A person who would understand business transactions, therefore, from a legal standpoint, and how they are properly entered into, should understand the essentials of contract law.
DEFINITION AND CLASSIFICATION.
A contract is an agreement between two or more competent parties, upon a sufficient consideration, to do or not to do a particular thing. As to their manner of execution, con
tracts are classified into contracts 1) by speciality, and 2) by parol. As to their form of expression they are divided into contracts 1) expressed and 2) implied. As to their time of performance they are divided into 1) executed and 2) executory contracts.
A speciality is a written contract under seal. A seal, technically speaking, is an impression made on wax or some other substance. It is a relic of the common law of England, and originally the seal stood for a signature. Several hundred years ago, comparatively few people could write. When such persons had to sign a document, they did so by impressing their seal upon wax placed opposite the signature, or the place where the signature was usually made. The sealing of an instrument was considered a solemn act, more so then now, and sealed instruments were therefore more difficult of impeachment than now. Under the doctrine of the common law, a sealed instrument was conclusively presumed to have been given for a consideration, and therefore needed no consideration. This is still the law of Wisconsin, except that it is provided by statute that as to executory contracts a seal shall only be presumptive evidence of consideration. This statute has not been construed by the Supreme Court, and considering the decisions of courts elsewhere, its meaning is doubtful. Thus, it has been decided by the Supreme Court of New Jersey under a similar statute, that if no consideration was intended to pass under a sealed executory contract, it would still be good under the common law rule; that the statute merely allowed it to be shown in cases of executory contracts under seal where a consideration was intended, that none had passed. A seal may now consists of any mark on paper, such as the letters “L. S.”, or the word “seal”, or a scroll, set opposite the signature. This is provided by statute in Wisconsin. A seal is required in Wisconsin on deeds and mortgages. A corporation must use a seal on documents requiring a seal, if it has one. Official seals, when required, must be impressed on paper, or on wax or other substance attached to the paper.
A parol contract, also sometimes called a simple contract, is any contract not under seal. It may be written or oral.
An express contract is one whose terms are all stated when it is made.
An implied contract may be either implied in law or in fact. A contract implied in fact is an actual contract made by the parties, but some term or incident of which has not been specified by the parties. Thus, if one man hire another to paint a house, and the other does so, there is a contract between the parties, although the compensation for doing the work has not been agreed upon. The law in this case implies an agreement to pay what the work is reasonably worth. A contract implied in law, sometimes called a constructive contract, is really no contract at all, but is a fiction raised by the law to enforce rights so as to do justice between the parties. There is no real contract in such cases, because there has been no agreement.
If A steals B's money, the law is that there is an implied contract that A will repay it, and if B can prove the theft, he can sue A on implied contract to recover it. There is in this case no agreement on the part of A to repay, and if he is made to pay, it is contrary to his intention. Some of the usual cases illustrating the doctrine of implied contracts are the following:
a) There can be no recovery for services rendered gratuitously, or without request. For instance, if a man shoe another's horse without the latter's request, he cannot recover. Or if the services are rendered without expectation of compensation, the party rendering them cannot change his mind afterwards and demand compensation. But if one man render services for another without previous request, and the latter encourages the performance of them, he will be held to have requested them. Thus, if one man start to paint the house of another without request, and while he is painting the other comes around and directs the work, or speaks approvingly of it, a contract to pay what the work is reasonably worth will be implied. But mere knowledge that the work is being done is not sufficient to raise the implication.
b) When one avails himself of another's services after they have been rendered, he is liable therefor. But this is so only in case the party is in a position to accept or refuse.
c) Services rendered by members of a family, or those not related by blood but sustaining a family relation towards each other, are presumed to be rendered without expecting compensation. Our Supreme Court says: "Where near relatives by blood or marriage reside together as one common family, and one of them renders services to another, and such
other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or pay compensation for the services rendered on the one hand, or for the board and lodging or other necessaries or comforts on the other; that they were intended as mutual acts of kindness done or furnished gratuitously. And the relation of aunt and nephew seems to be within the rule." In another case the court decided that “a step-daughter who is a member of the family of her step-father cannot recover for services rendered as his house-keeper without proving an express promise or agreement on his part to pay her therefor. And such promise or agreement must be established by direct and positive evidence, or by circumstantial evidence equivalent thereto." "Where aged parents have been living with a son as members of his family, having all their wants supplied by him, an agreement to pay for services rendered by the father during that time should be clearly shown in order to charge the estate of the son with a claim for such services." "There is no implied contract on the part of a father to pay wages to his child who remains with him and renders him services after becoming of age. To recover in such case the child must show an express contract by his father to pay such wages either by direct and positive evidence of the fact or by circumstantial evidence equivalent thereto. But it is not essential that the rate of wages or the time of payment be agreed upon. If there is an express contract to pay for the services, the child becomes in respect thereto the servant of his father, and may recover quantum meruit." (Quantum meruit is a Latin phrase, and means "as much as he deserves.”)
The presumption that such services are rendered gratuitously may be rebutted, and if it is shown that the relation of master and servant existed and there was an expectation of receiving compensation on one hand and an expectation of paying it on the other, there may be an implied contract even between relatives. But the proof in such case must be strong. Our Supreme Court says: “We think, however, it is going too far to say that in order to authorize a recovery in such case there must be direct proof of an express contract for compensation. The relation of master and servant, or an express contract to compensate a relative for services rendered, may be established as fairly and fully by circumstan