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There are, however, some few exceptions to the rule that both parties must be bound, or neither is liable. Thus an infant may sue, though he cannot be sued, upon his contract (m); for infancy is a personal privilege. So a party may have a defence against a claim upon a contract on the ground of fraud upon him; but this could not constitute an answer to his action upon the contract; for a party cannot avail himself of his own wrong. Upon the same ground, a contract may be voidable as against a tradesman who sells on a Sunday, although the buyer, not knowing that the vendor was acting in the course of his trade, may sue thereon (n). So a contract may not bind one party in consequence of his omitting to sign it according to the Statute of Frauds, and yet he may sue the other party who has complied with the enactment; for in this case, the objection merely goes to the evidence of the agreement; it was the defendant's fault that he did not secure the plaintiff's signature (o). So in the case of a guarantee for goods to be sold to a third person, the creditor need not be bound to supply, to render the guarantee valid (p).

Where the consideration for a promise is the mere engagement of the other party, it is in general necessary that the latter should be bound thereby at the time the former promise is made to him. But there is an exception where a person acting as agent for another, professes, though without authority, to contract for him. In such case, the maxim omnis ratihabitio retrotrahitur et mandato priori æquiparatur applies: the subsequent assent or recognition by the party for whom the agent professed to act, is equivalent to a previous authority (q). And where A. and B. were jointly interested in a quantity of oil, and A. entered into a

held that assumpsit is maintainable by a trading corporation on an executory contract for the supply of goods, for the manufacturing and supply of which the company was incorporated. But this latter case does not affect the principle laid down in the text.

(m) Holt v. Ward, Clarencieux, 2 Stra. 973; see further, post. A married woman is under a total disability, and is not merely protected from responsibility; her contract is void; and, therefore, a person contracting with her would not be bound, unless it could be viewed as a contract with the husband by the agency of the wife.

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(n) Bloxsome v. Williams, 3 B. & C. 232; 5 D. & R. 82, S. C.

(0) See ante, 5; and id., note (r); but he cannot rely on an agreement not signed by himself, as an answer to an action; Alchin v. Hopkins, 4 M. & Scott, 615; 1 Bing. N. C. 102.

(p) Post; per Patteson, J., Morton v. Burn, 7 Ad. & E. 23; 2 Nev. & P. 297, S. C. As to the case of a lease or agreement for a lease not signed by the lessor, see Richardson v. Gifford, 1 Ad. & E. 52; Cardwell v. Lucas, 2 M. & W. 111.

(2) See Saunderson v. Griffith, 5 B. & C. 913, 915; per Bayley and Holroyd, Js., and post.

contract for the sale of it without the authority or knowledge of B., who, upon receiving information of the circumstance, refused to be bound by it, but afterwards assented by parol, and the vendees took samples, and did not object until the credit was about to expire; it was held in an action by the vendees that B.'s subsequent ratification of the contract rendered it binding, and that it was to be considered as a contract in writing within the Statute of Frauds (r). But where, in an action by A. and his wife and B., the declaration stated that the plaintiffs had agreed to let to the defendant certain land, and in consideration of his tenancy to them, he promised, &c.; but the agreement proved, purported to be made by an agent (not for A.) for A.'s wife and B. only; and A. subsequently received rent from the tenant, it was held that the consideration was not proved as laid; inasmuch as A. was not bound by the agreement until he received rent, and therefore was not a joint contractor ab initio. The Court observed that the agent did not profess to act for A., and that there was a period subsequent to the execution of the agreement, during which A. was not bound by it (s).

But where a declaration by husband and wife stated that by agreement between the plaintiffs and the defendant, reciting that one J. L. had been arrested at the suit of the plaintiffs, that the defendant had become bail to the sheriff, that the bail had been forfeited, and that J. L. had given a cognovit for the debt and costs, it was understood and agreed between the plaintiffs and defendant, and the defendant undertook and promised, in consideration that the plaintiffs would not enter, up judgment, or sue out execution against J. L. until a certain day, that he, the defendant, would render J. L. on that day, or in default, pay the debt and costs. Averment, that the plaintiffs had not entered up judgment, or sued out execution against J. L. before the day. Breach, that the defendant did not render J. L. on the day, or pay the debt and costs. It was held, on motion in arrest of judgment, after verdict for the plaintiffs: first, that, as the agreement was stated to be with the plaintiffs, the promise must be taken, after verdict, to have been made to them; secondly, that it sufficiently appeared that the wife had a joint interest, because the recital in the agreement of a cognovit by J. L. to all the plaintiffs was an admission by the defendant of such joint interest;

(r) Soames v. Spencer, 1 D. & R. 32.

(s) Saunderson v. Griffith, 5 B, & C. 909; 8 D. & R. 643, S. C.

thirdly, that, though the agreement by the wife was void, it might be rejected as surplusage, and that the count would then be good, as stating a promise to pay the debt and costs to the plaintiffs, in consideration that they would not enter up judgment, or sue out execution until a given day (t).

The assent of a party to an agreement, in other words, hist promise, is either express or implied. "Express contracts," says Blackstone (u), “are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate; and which, therefore, the law presumes that every man undertakes to perform. As if I employ a person to do any business for me, or perform any work, the law implies that I undertook or contracted to pay him as much as his labour deserves (x). If I take up wares from a tradesman without any agreement of price, the law concludes that I contracted to pay their real value." So upon an undertaking by a defendant to effect an insurance, a part of the duty implied is the giving notice to the employer in case of failure of the promiser to do so (y).

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It was said by Lord Holt (z), “ that the notion of promises in law is a metaphysical notion, for the law makes no promise but where there is a promise of the party." There is indeed no distinction between an express and implied contract, except as to the mode of substantiating it. An express contract is proved by an actual agreement; an implied contract by circumstances, or the general course of dealing between the parties; but wherever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be proved by direct or circumstantial evidence. This was laid down and acted upon in the late case of Marzetti v. Williams (a), in which it was held that bankers having sufficient funds of a customer, impliedly undertake to pay a check drawn by the customer, within a reasonable time after the receipt of such funds, provided the same be

(t) Nurse v. Wills, 4 B. & Ad. 739; 1 N. & M. 765, S. C.

(u) 2 Com. 443; see 3 Bla. C. 159

to 166.

(r) See Jewry v. Busk, 5 Taunt. 302; and the tradesman impliedly undertakes to use due care and skill; see Shiells v. Blackburne, 1 H. Bla.

158, 162; Seare v. Prentice, 8 East, 348; 3 Bla. C. 165.

(y) Callender v. Oelrichs, 5 Bing. N. C. 58.

(z) Starke v. Cheeseman, Ld. Raym. 538; see 1 Pothier on Oblig. 69, and note (b), Evans' ed.

(a) 1 B. & Ad. 415.

presented within banking hours (a), and therefore if they neglect to do so, they are liable to an action upon the case as for a tort, founded on the implied contract, although no actual damage has been sustained by the plaintiff. It is clear, that for the purposes of pleading, there is no distinction between an express and an implied promise.

To enumerate all the decided cases in which promises have been implied from the acts of a party, would be a tedious and unprofitable task. Some few instances may perhaps be usefully mentioned.

Where an order is given previously to the delivery of goods to a bailee, carrier, or other person, to deal with them when delivered in a particular manner, to which he assents, and afterwards the goods are accordingly delivered to him, a duty arises on his part, upon the receipt of the goods, to deal with them according to the order previously given and assented to; and the law implies a promise by him to perform such duty (b). If, in the absence of a husband, I incur an expense in burying his deceased wife in a manner suitable to the husband's condition in life, though without his knowledge, the law will imply a promise by him to reimburse me (c). An executor who has assets sufficient for the purpose, impliedly promises to pay for a funeral suitable to the degree of the testator, furnished by the directions of a third person, during the absence of the executor, and of which he had at the time no knowledge (d). So a party who receives goods which are subject to freight, impliedly promises to pay it (e); and if there be a contract void for want of writing, under the Statute of Frauds, from the part performance of which by the plaintiff the defendant derives and retains a benefit, he may often be liable, not upon the agreement, but upon a quantum meruit, to the extent of the benefit received (f). So where a tenant gave a bill of sale to a creditor, under which his goods, including certain eatage, were about to be sold, and the landlord, before the sale took place, put in a distress; whereupon it was agreed that the sale by the creditor should proceed, and that the landlord should be paid his arrears out of the proceeds of the

(a) Whitaker v. Bank of England, 1 C. M. & R. 751; Boyd v. Emmerson, 2 Ad. & E. 184.

(b) Streeter v. Horlock, 7 Moore, 283; 1 Bing. 34, S. C.

(c) Jenkins v. Tucker, 1 H. Bl. 90. (d) Rogers v. Price, executor, 3 Y.

& J. 28.

(e) Abbott on Shipping, 5th ed. 286; Renteria v. Ruding, M. & Malk. 511, 513; Dougal v. Kemble, 3 Bing. 383; 11 Moor, 250, S. C.

(f) Mavor v. Pyne, 2 C. & P. 91; 3 Bing. 285; 11 Moo. 2, S. C.

goods and eatage. The plaintiff having purchased the eatage at the sale, put in his cattle to depasture it, and the amount of the sale not being sufficient to cover the arrears of rent, the landlord distrained again, and took those cattle as a distress; it was held, (Parke, B. diss.) that a contract was to be implied on the part of the landlord not to distrain the cattle of the purchaser of the eatage (g)." In some cases a special contract not executed may give rise to a claim in the nature of a quantum meruit; ex. gr., where a special contract has been made for goods, and goods sent, not according to the contract, are retained by the party; there a claim for the value on a quantum valebant may be supported; but then from the circumstances a new contract may be implied (h)." And we shall hereafter have occasion to notice more fully the implication of law, that a person who takes and holds possession of premises under an agreement for a term upon specified conditions, or a tenant who holds over after the end of his lease, becomes tenant from year to year; subject in the first case to the stipulations which were to have been embodied in the lease; and in the second to the terms of the expired demise, so far as they can respectively apply.

So from the invariable, certain, and general usage or custom of any particular trade or place, of which a party, contracting upon a matter to which such usage or custom has reference, can be shown or presumed to have had notice, a promise in conformity with such usage or custom may often be implied; there being no express stipulation inconsistent with or excluding such usage. To be binding, such a usage must be uniform and universal; and not merely the course of dealing at particular houses. It must be so universal that every one in the trade must be taken to know it, otherwise it is no usage at all (i). And if the custom or course of dealing be confined to any particular house in a particular trade, it must be shown that the party to be charged had express knowledge of such custom; and if he be not shown to have been cognizant of the usage, he cannot be liable by virtue of it (k).

(g) Horsford v. Webster, 1 C. M. & R. 696; 5 Tyr. 409, S. C.

(h) Per Parke, J., Read v. Rann, 10 B. & C. 441; and see Oxendale v. Wetherell, 9 B. & Cr. 386; Phillips v. Jones, 1 Ad. & E. 337.

(i) Wood v. Wood, 1 C. & P. 59, per Burrough, J.

(k) Moore v. Houghton, 1 Stark. R.

487; Scott v. Irving, 1 B. & Ad. 605; Stewart v. Aberdein, 4 M. & W. 211. Where the existence of a custom at a distant time is shown, and there is no evidence given that at a certain time it did not exist, it may be inferred that it went back as far as the reign of Richard the First. 7 C. & P. 126.

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