Perhaps it is not strictly logical to say that a Party is an element in a contract, for a contract is something made by a party. It is essential to the commission of any act that there be a party capable of committing it, but the definition of the act itself hardly includes a definition of the actor. Inasmuch, however, as the Capacity of Parties is a subject to be considered in Contracts, and upon that capacity the existence of a contract depends, it is convenient to treat it under the general subdivision of Formation of Contracts, and to call it an essential element.)

§ 35. (Contracts, Sec. 3.)

Kinds and forms of contracts.

(Note: At this point it is impossible for the student to acquire a comprehension, from mere recital, of the different forms and kinds of contracts. Yet it is thought incidental to the definition of contract to describe the various forms of contractual obligation. Hence, the following:

1. Division based on seal or lack of seal. The common law fundamentally divided contracts into those which were under seal, and those not under seal. Consideration was not a necessary element in the one, but was necessary in the latter. The former were called Formal contracts or Specialties; the latter, informal or simple contracts, and included all contracts not under seal whether in writing, oral or implied. This distinction has been whittled down by time.

2. Contracts bilaterial or unilateral. A bilateral contract is one in which both undertakings are at making of the contract executory, i. e., outstanding to be performed. Thus A promises to sell his house to B, upon definite terms, in return for B's promise to buy the house upon the terms offered. Here we have a promise for a promise. There is a contract. A unilateral contract is one in which one side is executed while the other is executory. A offers B money if B will perform a certain act. B performs the act. A owes the money.

3.

Contracts express and implied. An express contract is one in which the agreement is set out in terms, oral or written. An implied contract (or implied term in a contract) is a contract inferred from the acts of the party, rather than from his language. This division relates to the sort of evidence from which the existence and terms of a contract is shown. Implied contracts are said to be implied in fact and implied in law. The distinction is developed later.)

§ 36. (Contracts, Sec. 4.) Parties defined.

Case 19. Gorham's Adm'r v. Meacham's Adm'r, 63 Vermont Reports, 231, 22 Atl. 512.

Facts: R. S. Meacham, administrator of an estate, became indebted thereto for money belonging to the estate collected by him as administrator. For the purpose of giving security to the estate for this indebtedness, he executed a promissory note payable to himself, adding after his name as promisee "executor of A. W Gorham's estate." This note was secured by a mort. gage on his home made out in the same form. The note and mortgage were never delivered by him to any other person, but were retained by him and found among his effects at his death.

Point Involved: The necessity of adversary parties to every contract. That a man cannot contract with himself.

TYLER, J. "The mortgage must be held invalid for the want of contracting parties. A contract necessarily implies a concurrence of intention in two parties one of whom promises something to the other who on his part accepts such promise. One person cannot by

his promise confer a right against himself until the promisee to whom it is made has accepted the same.

It is essential to the validity of a contract that there be proper parties-a person able to contract and a person able to be contracted with.

(Note: A contract signifies the existence of adversary parties. There must be "sides" to every contract. Generally, there are two sides, with one or more parties on each side. But a contract may in fact (though this is unusual) have more than two sides.).

Question 19: What is meant by the statement there must be "sides" to a contract? Can there be more than two sides? More than one party on a side?

§ 37. (Contracts, Sec. 5.) Capacity of parties generally.

(Note: Obviously, the subject of the capacity of parties to contract requires inquiry into the capacity of classes of parties who for some reason and for some purposes have not full legal power. When we say that the law permits individuals to contract, it follows that any individual may contract unless he is for some reason under a disability.)

§ 38. Who are minors.

B. Minors As Parties

§ 39. Power of minors to contract.

§ 40. Minor's liability for necessaries.

§ 41. What are necessaries.

§ 42. Disaffirmance of minor's voidable contracts.

§ 43. Tortious liability of minors in cases involving contracts.

§ 38. (Contracts, Sec. 6.) Who are minors.

Case 20. Ex parte McFerren, 184 Alabama Reports, 223, 63 So. 159, 47 Lawyers Reports Anno. 543.

Facts: Suit by a minor, nearly of age, to recover rents paid upon premises of which he never took possession.

DE GRAFFENRIED, J., delivered the opinion of the Court. 'The law,' says Parsons, Ch. J. in Baker v.

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1

Lovett, 6 Mass. 78, 4 Am. Dec. 88, 'has drawn no line between an infant six years old and one twenty years old, for all infants are entitled to equal protection.' Certainly an infant of six years of age could not, by any court, be denied the right to recover rents paid out by him on a lease which he, as tenant, did not and under his situation could not, have received any benefit, whatsoever. A minor who has nearly attained his majority may be as able in fact to protect his interests in a contract as a person who has passed that period. But the law must nécessarily fix some precise age at which persons shall be held sui juris [capable of acting in their own right]. We cannot measure the individual capacity in each case as it arises. It must hold the youth who has nearly reached his majority to be no more bound by his contract than a child of tender years,' McCarty v. Carter, 49 Ill. 53, 95 Am. Dec. 572."

(Held: the minor could recover the rents paid by him.)

(Note to Case 20: A minor at common law was a person under 21 years of age. He was said to come of age on the day preceding his 21st birthday. This is also the general rule now, except that in some jurisdictions women become of age at the eighteenth birthday.)

Question 20: At what age does a person become of age? Prior to that age does the law draw any distinctions in respect to age so far as capacity to be bound upon contracts is concerned? If in a particular case a minor nearly of age is as capable of protecting his own interests as most persons who are of age, will the law take this fact into consideration? Why? Was the minor allowed to recover the rents that had been paid by him in Case No. 20?

§39. (Contracts, Sec. 7.) Power of minor to contract.

Case 21. Coursole v. Weyerhauser, 69 Minn. 328. Facts: In 1856 the U. S. government issued to Coursole (a half breed Sioux Indian) "half-breed script" for 320 acres of land. In 1870 when Coursole was 20 years old, he appointed a man by the name of Dorr as his agent

to locate the land for him and sell it, and gave him a power of attorney for that purpose. In 1874, Dorr in Coursole's name sold the land to Brown, who resold, until finally it was bought by Weyerhauser, the defendant in the present case. Coursole in 1895 sues Weyerhauser to contest the title, claiming that as he gave the power of attorney before he became of age, the same was void, and therefore any title depending on it is void. Defense: that his power of attorney was not void, but merely voidable, and not having been avoided for so long a time after becoming of age, Coursole had lost the right to avoid, that is, has by his conduct ratified or confirmed his act, and waived the right to disaffirm.

Point Involved: Are a minor's contracts void or voidable? That is to say, is a minor incapable of contracting at all, or does he have capacity to contract with a right on his part to withdraw if he chooses to do so?

MITCHELL, J.: "The rule is that the act to be ratified must be voidable merely, and not absolutely void; and the question remains-which to our minds is the most important one in the case-whether the act of a minor in appointing an agent or attorney is wholly void, or merely voidable. Formerly the acts and contracts of infants were held either void, or merely voidable, depending on whether they were necessarily prejudicial to the infant. Latterly the courts have refused to take this responsibility, on the ground that, if the infant wishes to determine the question for himself on arriving at his majority, he should be allowed to do so, and that he is sufficiently protected by his right of avoidance. Hence the almost universal modern doctrine is that all the acts and contracts of an infant are merely voidable. Upon this rule there seems to have been ingrafted the exception that the act of an infant in appointing an agent or attorney, and consequently all acts and contracts of the agent or attorney under such appointment, are absolutely void. This exception does not seem to be founded on any sound principle, and all the text writers and courts who have