Gambar halaman
PDF
ePub

not issue against one for a contempt of court, the defendant may controvert the fact by affidavits, or exp'a'n, or palliate, or contend, on any legal ground, that the court ought not to award the attachment. If the Court are of opinion, hit the fact, on which the rule is taken, is not sufficiently answered, or excused, and that in point of law, a contempt has been incurred, the attachment issues. When the defend int is brought in, he may submit his contempt, without interrogatories, to the court; or he may demand of the prosecutor to file interrogatories, but he is not bound to pray interrogatories.

2.

YATES V. LANSING, April T. 1811, 9 Johnson's N. Y. Rep.

p. 394.

Per Cur. The court of chancery may, in its discretion, commit for a contempt, on the affidavit of witnesses only, without first putting the party to answer on interrogatories.

But not in chancery.

Contracts.

1. NATURE AND FORM OF, p. 338.

II. PARTIES TO, p. 343.

III. CONSIDERATION OF!

(A) WHAT IS A GOOD CONSIDERATION, P. 348.

(B) ILLEGALITY OF.

(a) By the common law, p. 357.

(b) By statute, p. 365.

IV. OF THE SUBJECT MATTER OF CONTRACTS.

(A) OF REAL PROPERTY, p. 369.

(B) OF PERSONAL PROPERTY, p. 375.

(C) FOR SERVICES, &c., p. 376.

V. CONSTRUCTION OF, p. 379.

VI. ALTERATION OF, p. 397.

VII. ADOPTION AND TRANSFER OF, p. 400.

VIII. RESCINDING OF, p. 412.

IX. PERFORMANCE OF, p. 407.

X. WHAT EXCUSES FOR THE NON PERFORMANCE

[blocks in formation]

(B) OF THE DECLARATION, P, 415.
(C) OF THE EVIDENCE, p. 417.
(D) OF THE DAMAGES, p. 421..

I. NATURE AND FORM OF.*

1.

Definition

of.

SUMNER V. WILLIAMS, ET AL. Oct. T. 1811, 8 Mass. Rep. 178.
S. P. PACKARD V. RICHARDSON, ET AL. 17 Mass. Rep.
131; M'CULLOCH V. EAGLE INs. Co. 1 Pickg. 281.
Per Cur. Sedgwick, J. A contract is an agreement between.
two or more persons, to do an act, whereby the parties are
bound mutually to each other, or one is bound to the other; and
both parties must assent to perfect the contract-the contract
implies understanding and consent.

A contract is either ex ecutory or executed.

2.

FETCHER V. PECK, Feb. T. 1810. 6 Cranch. U. S. Rep. 136. (Coxe's Dig. p. 192, UNITED STATES V. GOODS PER SUSQUEHANNAH,)

Per Cur. A contract is a compact between two or more par

* A contract is defined to be an agreement entered into by two or more persons, whereby one becomes bound to another to perform or abstain from doing a particu. lar thing; 6 Petersdorff's Abr. 184. Where there is an express contract, the law does not imply one; Cutter v. Powell, 6 T. Rep. 320. Accordin to an offer in a letter to contract, is the consummation of the contract, and the offer is not revocable; Adams v. Lendsell, 1 B. & A. 631. Contracts are cxpress and implied; ibid. Promises in law only exist where there is no express stipulation between the parties; Tonisant v. Martinant, 2 T. R, 100; Lamb v. Bunce, 4 M. & S. 75. Where an express contract has been put an end to, and the party proceeds in the progress of the work with the acquiescence of the other party, he may recover on the implied contract; Burn v. Miller, 4 Taun. 745; Jewry v. Bush, '5 Taun. 302. And to take up goods without agreeing upon the price, the law implies that the party shall pay the value; Mawinan v. Gillett, 2 Taun. 325. But no express contract can be raised on mere causual speaking or declaration in discourse. As ifthere be a discourse between the father of A. and B. in relation to a marriage between A. and the daughter of B.; and 3. in that discourse declares and publishes to the father of A. that he would give him who would marry his daughter with his consent £100; and A. after this declaration marries the daughter of B. with his consent; yet it was holden that this de claration and publication of B. shall raise no promise upon which an action of assumsit may be brought; for these general words do not include any promise and the

ties, and is either executory, or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing. A contract executed is one in which the object of contract is performed, and this differs in nothing from a grant.

3.

BALLARD V. WALKER. Jan. T. 1802, 3 Johns. N. Y. Cas. 60. Per Cur. Kent, J. Kent, J. All contracts by the laws of England, And either special or are distinguished into agreements by specialty, and agreements parol. by parol; and if an agreement be merely written, and no specialty, it is an agreement by parol, and a consideration must be proved.

A written contract cannot be enlarged by parol; Hamilton v Wagner, 2 Marsh. Rep. 332.

4.

UNITED STATES V. GOODS per Susquehannah, Circuit Court U.
S. April T. 1813, MS. Rep. and Coxe's U. S. Dig. 192.
S. P. ELIASON, ET AL. V. HENSHAW, 4 Wheat.
Rep. 225; SUMNER, ET AL. V. WILLIAMS, 8 Mass.

sec. 51.

Rep. 178; M'CULLOCH V. EAGLE INS. Co. 1 Pickg.
Rep. 281.

ed the con

tract is nos complate.

Per Cur. Contracts are formed by the offer on the one hand, Until an of and acceptance on the other; till acceptance, neither party is fer is accept bound; after acceptance, the contract is obligatory on both. "If one party makes an offer, and gives the other party time to reject or accept it, he is bound by the other's acceptance, if made within the time," per C. J. Parker, M'Culloch v. Eagle Insurance Company, 1 Pickg. 281. And to render a contract binding, both parties must be mutually liable; Thomas v. Trustees of Harrodsburgh, 3 Marshall's Rep. 298.

agreement must be complete upon which an express assumpsit lies; Comyn on Cont. p. 5; 1 Roll. Abr. 6. L. 49. Vide 2 Black. Com. p. 443, where it is observed that all implied contracts or promises are founded upon some legal liability to pay a debt or perform a duty; as when mouey is tent and advanced, paid, laid out and expended, and had and received, and nothing is expressly stipulated by the parties as to the repayment thereof, the law raises an implied promise that it shall be on request.

[blocks in formation]

5.

ARMSTRONG V. M'GHEE, Addis. Penn, Rep. 261.

Per Cur. A contract may be made by any signs which show an agreement of mind, though they be neither words or writing; if there be understanding, it may be made between two men deaf and dumb. Vide Smith v. Jones.

And if it is to be reduc

ed to writ

ing it is not

til it is sign ed.

[ocr errors]

6.

DES BONLETS v. GRAVIER, June T. 1823, 13 Martin's Lou.
Rep. 420.

Petition for the price of a schooner sold to the defendant. Porter, J. The question is, whether the vendee of a movacomplete un ble, where the contract is to be reduced to writing, can retract at any time before the act is signed, and that although he should be in possession of the thing purchased. The authorities are express, that the contract is not complete until the writing is made and signed.

The agree ment be tween par

and conclud

7.

BAKER V. GLASS. Nov. T. 1818, 6 Mum. Va. Rep. 212. S. P.
SMALLWOOD V. MERCER, ET AL. 1 Wash. Rep. 290.
GRAHAM V. CALL. 5 Mum. Rep. 396.

The parties agreed in writing for the purchase and sale of a tract of land in Kentucky, for a certain price per acre. Baker ties must be agreed to take in payment, a house and lot in Berkley county, complete in Virginia, belonging to Glass, at a cash value, to be valued by ed to make two persons not naming them; or money which Baker did not a contract. elect to take. Afterwards the parties agreed upon two persons to make the valuation, but who could not agree. The parties afterwards agreed to make another appointment in which they specified no time.

Per Cur. Roane, J. Upon general principles, and on the authority of the case of Milnes v. Gery, 14 Vessey Junr. 400, the court is of opinion, that there was in this case no such complete and concluded contract, as the court of chancery ought to exe-

cute.

And must be binding apon each.

8.

HU DNUT V. BULLOCK, Spring T. 1821, 3 Marsh, Ky. Rep. 298.
Per Cur. Ousley, J. Mutual oromises must be both binding

as well on the one side as the other, and must be both made at the same time, or else they will be both nuda pacta.

9.

In a con tract of

LEE V. BRADLEY, May T. 1820, 8 Martin's Lou. Rep. 57. Per Cur, Derbigncy, J. A contract of pledge, in all countries in the world, is a contract in rem, where the delivery of pledge, the the thing is not a consequence of the contract, but is of the very essence of it.

article must be deliver

cd.

10.

An offer to sell a

a house,

TUCKER V. WOODS, May T. 1815, 12 Johns. N. Y. Rep. 190. The plaintiff gave in evidence a writing signed by the plaintiff in these words: "I will sell my dwelling house and tan &c. is a works and all the buildings belonging thereto for $5000," &c.

mere propo sition and

not a con

Per Cur. It might well be questioned whether the memo- tract. randum which is set up as the contract between these parties, and upon which this action is founded, is not void for want of consideration. It would seem to be a mere proposition on the part of the defendant, and without mutuality.

11.

THE TOWN OF HANOVER V. THE TOWN OF WEARE. Nov. T. 1819, 2 New Hamp. Rep. 131. S. P. LANGDON V. HATHAWAY, 1 New Hamp. Rep. 367.

Assumpsit for expenses incurred in the support of one Kim-An agree ball, a pauper.

ment by se lect men of a town in

for relief

The defendants had given a written agreement to waive legal an action notice of the expenses the plaintiffs were put to, in the support furnished to of the pauper, which was required by the statute. Verdict for the plaintiff.

a pauper to waive legal notice does not bar

objecting to

Per Cur. This was an executory agreement, and at the trial them from the defendants refused to fulfil it. It is beyond the province notice; it is of the court to enforce a specific execution of it, and breach of this agreement can only be redressed by damages alone.

a mere ex

(cutory con tract that may be waived.

« SebelumnyaLanjutkan »