General Abridgment

OF

AMERICAN LAW.

CHAPTER I.

CONTRACTS AND CONSIDERATIONS.

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ART. 1. In this chapter the nature and principles of contracts will be briefly considered; and contracts in detail will be considered, and the actions founded on the various species of them, in a large proportion of the following chapters.

Sect. 1. What is a contract. The best and most comprehensive definition found is the French, derived from the civil law, which is defined thus, "a convention by which one or more persons obligate themselves to one or more other persons to give or do, or not to do, something." Blackstone defines a contract, which usually conveys an interest merely in action, thus: "an agreement, upon sufficient consideration, to do or not to do a particular thing." This contract is merely executory, on which there is a right of action to enforce an execution of it. But a contract may be executed, and then it is a grant; as if A agree, or contract, for a proper consideration, to sell a piece of land to B, and make the conveyance; here the agreement, bargain, or contract is executed, and thereby the land is vested in B and the consideration in A, and no cause of action exists. If A shall attempt to use the land as his, B can repel him by shewing their contract executed. Mr. Powell thinks a contract is best defined thus, a contract is a transaction in which each party comes under an obligation to the other, and each, reciprocally, acquires a right to what is promised by the other." After all, we can properly understand what a contract is, but by seeing its obligation on one party and its security to the other, in the thousands of cases in which it is used

in all the conditions of mankind. What is a contract, the obligation of which our state legislatures cannot impair, is one of the most important questions in our system; and this contract well understood is among the best securities in it; not only as to property, but as to rights and privileges also, as we shall see in many cases. A judgment is not a contract.

2. The several kinds of contracts. They are, commonly, considered, 1. Matters of Record, as a recognisance. 2. Specialties, as deeds under seal, as to which no consideration need be stated or proved. 3. Unsealed written contracts. 4. Parol or verbal contracts. Some, of these three classes of contracts, make only two. 1. Specialties. 2. Parol, and they say if written and not sealed they are parol agreements. 3 John. Cas. 60; but, in fact, the statute of frauds and many judicial decisions (as we shall see) make as strong distinctions between written and parol contracts, as the common law makes between sealed and unsealed contracts; and the civil law made a clear distinction between mere verbal pacts, or agreements, and written stipulations. 5. Many acts passed, grants made, and corporations created by our legislatures, are contracts, not to be annulled or altered by them, without the consent of the other party, holding a private right, interest, privilege, franchise, or exemption under them. 6. Contracts as above are executory and executed. 7. Contracts are express, as in express words or in writing; or implied, as when raised by law. 8. Treaties, likewise, are contracts of the highest order; obligatory on one party, whenever they stipulate and promise rights, privileges, exemptions, power, interest, or property to the other. 9. Our Colony charters were viewed as political contracts; hence in our separation, we found it necessary to "dissolve the political bands" which connected them with their parent state. So the articles of confederation were viewed as political contracts among the states, called a Confederacy, to which there were, at irst, thirteen parties. Not so the Constitution of the United States, but the people of them ordained and established it, in whom was the original sovereignty, and who included in one body all classes, and they have carried it into execution by electing a part of themselves, from time to time, in states and districts, to administer it according to the rules of conduct ordained and prescribed in it, not as a contract among thirteen, twenty, or twenty-four parties. So where the people of a state have formed and adopted a state constitution, they have as one people ordained and established it; their electing men in towns to frame it, or their meeting in their towns to ratify it, has not made it a contract to which each town is a party; hence from the ordaining power being one body, results the right to alter and amend as a portion of them,

short of the whole, sees fit; 10, so we shall observe, in subsequent chapters, there are several kinds of contracts in regard to time, number of parties, and amount of consideration: some must be for life, and life only; some temporary and some perpetual. These are some of the great divisions of contracts into those of several kinds; as to the objects and ends to be obtained by contracts, and as to the subject matter of them, contracts are of so many sorts, as to be the grounds of more than half of the actions that exist.

$3. The probable origin of contracts. They must have commenced with human society. The obligation of contracts must have been felt in Adam's family. Men by nature being inclined to associate, they, no doubt, associated as soon as two or more of them existed, and, probably, there never was a time when men did not want to exchange labour and commodities in some sort of society; and as soon as they felt this want or inclination, agreements and contracts became necessary. The property of the commodity, the right of the service of one, in war, might be acquired by another by force; but in peace, neither could pass but by contracts. Before written contracts were invented and formal ones introduced, exchanges must have been made, and rights to property and labour yielded and acquired by mere agreements, proved by no other evidence than the delivery of the thing, or by the yielding of the service, or by calling some bystander to witness the bargain :-as every individual had occasion for agreements, he became concerned in rendering them valid, and so useful. There was a common interest in supporting them. It was with money as with writing, neither could ever be the invention of a rude and barbarous people; still before men had either, they must have had much occasion for agreements, not only in borrowing and lending commodities, and in exchanging them, as also labour, but even in a traffic of labour for the fruits of the earth, for animals, and other things, understood to be the objects of ownership. The right of meum and tuum was, intuitively, perceived, as soon as men perceived at all, as it ever has been by children in the cradle. If ten men from ten different nations meet, accidentally, on a desert island, and one of them, by his labour, acquire a fish from the sea, they all, intuitively, perceive it is his. This has ever been the case, and it has ever been the intuitive perception of mankind, that when one, by his exertions, has obtained property or a right, it has remained his, until he has lost it either by a non user or misuser, or yielded it by his consent, and with this consent, contracts have been coeval.

CH. 1.

Art. 1.

Сн. 1.

Art. 2.

ART. 2. Nature and forms of contracts and agreements. § 1. A contract is nothing more than an agreement reduced to writing, though we often speak of parol or verbal contracts. Strictly speaking, while terms settled by the parties rest in words only, they constitute an agreement; when that is reduced to writing, it becomes a contract; and that, when sealed, becomes a deed; and though the substance, reason, and intent of every one is thus the same, namely, to secure a right; and the main question, on each, is and must be the same; that is, what did the parties mean, what right did they mean to secure; yet as the rights of property and of persons, and the wants of mankind are almost innumerable, and these are to be secured or supplied, mainly by their contracts, these, to answer their various purposes, must, necessarily, be almost infinitely various in forms and terms, as the wants to be supplied, or the property or service to be transferred, rendered or received may require; and the different forms allowed by law even to effect the same purpose, very much increase the variety.

$2. A proper consideration is the basis of each contract or agreement, and if such a consideration is not expressed, understood, or implied, there is no contract the law will enforce. Fraud renders every one null and void, tainted by it. And no fraud is so covered or protected in equity, and even at law, as not to be inquired into. Security is the end of every contract and agreement, but the particular object to be secured by any particular one, is a creature of the moment. But if executed, it secures a right or interest only to be defended. No action will be necessary to recover it. If executory, or to be executed, the act to be done, usually falls into some known class ; as to convey lands or goods to one or to many, for years, for life, or in fee, by delivery, by deed, or by will, &c. to serve as an apprentice, a sailor, or a servant, &c. to pay wages, freight, insurance and the like: so the law and practice, usually introduces and settles certain well known forms of contracts, adapted to each description of acts to be done by force of them. Hence each species of formal contracts is settled with reference to the thing to be done, and the kind of acts, the one to be done, belongs to; and so is the law and practice, generally, in regard to acts stipulated not to be done. Therefore, it is that each species of formal contracts has its own peculiar properties, separately to be considered in the subsequent pages; and each generally will be considered as the ground of action, and as the security of rights; and the nature of the actions and proceedings in them will accord with the kind of contract of each description. But there are certain general rules as to considerations, construction, &c. common to all of them. As all contracts must be valid or invalid when made, they can never

depend on after contingencies, except the taking effect of one may be suspended until an event shall happen, but this event, or fact, must be such as would have made the contract complete, if existing when made. And this event must happen in legal time.

$8. The amount or adequacy of the consideration. Although as between the parties to a contract the law does not weigh the quantity of the consideration, but deems a peppercorn sufficient in a contract of any amount, yet the law is otherwise as to third persons, (and equity is clearly so,) who are affected by the contract, as creditors of the contractor, and fair purchasers of the same property. As to them there must be a consideration reasonably adequate, as a fair price honestly paid; and even between the parties, at law, the smallness of the considertion may be evidence of fraud, or of imposition, or of undue advantage taken. Indeed, the mere inadequacy of price, alone considered, and as no evidence of mistake, misconception, or undue advantage, does not weigh, but if this inadequacy be considerable, as half the value only, &c. it is held even as between the parties as sufficient evidence of misconception or undue advantage. See James or Jones v. Morgan, and Heathcote's case, ch. 139 a 7, 2, 3; 2 Pow. on Con. 154 to 161, ch. 32 a 13, 2, and sundry cases there cited.

$4. What is a private contract, and so a private right or property, which cannot be taken away by legislative power. There have been no rights in our country so often invaded, for near two centuries, by numerous legislatures, as the rights secured by private executory contracts; that is, debts owed; and privileges secured by private charters in the nature of contracts under the pretence of the public good, and to favour embarrassed debtors, these rights and privileges have been often attacked and violated, notwithstanding all the charter and constitutional provisions introduced in better times, to protect such rights and privileges: the direct tendency of such measures has been to deprive individuals and private corporations of their property and privileges, and to produce express provisions against their repetition; therefore, in July 1787, Congress unanimously introduced into the ordinance for the government of the Western country, the following clause: to wit, "and in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or to have force in the said territory, that shall in any manner whatever, interfere with, or affect private contracts or engagements, bona fide, and without fraud, previously formed." Soon after, a clause more concise, and of broader meaning, but of the same spirit, was made a part of the Federal Constitution, and adopted by the American people without opposition; as

CH. 1.

Art. 2.