lies *against him for the breach of such implied promise and under[* 156] taking; and he will be made to recompense the owner in damages, for what he has detained in violation of his promise. This is a very extensive and beneficial remedy, applicable in many cases where the defendant has received money which ex æquo et bono he ought to refund. It lies for money paid by mistake or on a consideration which has failed, or through imposition, extortion or oppression, or where any undue advantage has been taken of the plaintiff's situation. So where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on this assumpsit; and upon a stated account between two merchants, or other persons, the law implies that he against whom the balance appears has engaged to pay it to the other; though there be not any actual promise. A contract then may be set forth in words spoken or written, or may be raised and inferred from what has been said, or from surrounding circumstances and the conduct of the parties. Of either sort of contract, express or implied, a court of law will take cognisance, and will award pecuniary compensation for its breach. A court, however, must often be guided by considerations in regard to the one of them, different from those which guide or influence it in regard to the other. An express contract, when conceived in terms definite and unambiguous, indicates the reciprocal rights and duties of the parties to it. And here the function of the court is auxiliary to carrying into effect, so far as its machinery may allow, their will. It sometimes happens, however, that the wording of an express contract is obscure and doubtful, and then the duty of interpreting it devolves upon the court, and certain rules of construction have to be called in aid for determining its significance. (504) The leading canons of interpretation may be thus expounded. The construction must be ascertained on a view and careful examination* of the entire instrument, one part of which should be made, if [* 157] possible, to explain another, so that every word used in it may take effect. The duty of the court being to ascertain not what the contracting parties may be supposed to have intended, but the meaning of the words which they have used; and these words should be construed according to their ordinary and grammatical sense, unless some obvious absurdity, or some repugnance, or inconsistency with the intention appearing on the whole (504) The general rules of interpretation and construction are the same, both in law and in equity; and are equally applicable to specialties and simple contracts. 1 Story on Cont., § 773; Kane v. Hood, 13 Pick. (Mass.) 281. Courts, in the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances; and may avail themselves of the same light which the parties enjoyed when the contract was executed. They are, accordingly, entitled to place themselves in the same situation as the parties who made the contract, in order that they may view the circumstances as those parties then viewed them, and so judge of the meaning of the words and of the correct application of language to the things described. Nash v. Towne, 5 Wall. (U. S.) 689. See Goosey v. Goosey, 48 Miss. 210. Where a contract is oral the question what the contract is, must, if controverted, be tried by the jury as a question of fact (Globe Works v. Wright, 106 Mass. 216; Guptill v. Damon, 42 Me. 271. See Taliaferro v. Cundiff, 33 Tex. 415); but where the terms of a contract are undisputed, its construction and effect, where the contract is oral as well as where it is written, are to be determined by the court. Nash v. Drisco, 51 Me. 417; Randall v. Thornton, 42 id. 226; Railroad v. Felt, 52 N. H. 379; Globe Works v. Wright, 106 Mass. 216. instrument, would follow from such construction-the words used will then, if possible, be modified to avoid the consequences hinted at, but no further (a). Evidence of usage and custom is, moreover, admissible, to explain a mercantile contract, provided such evidence does not go to contravene or vary it. Executed; A contract may either be executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together: or it may be executory, as if they agree to Executory. change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed conveys a chose in possession; a contract executory conveys only a chose in action. 2ndly. The con 2ndly. Having thus shown the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is founded; or the reason which moves the contracting party to enter into the contract. A consideration. tract is an agreement, "upon consideration." The benefit which accrues to the promisor, or the inconvenience or detriment suffered by the promisee, is called the consideration for the promise: and it must be a thing lawful in itself, or else the contract is voidable. A good consideration merely, which, as we have before seen (b), is that of blood or natural affection between near relations, will not support an assumpsit. But a contract may rest upon any valuable consideration, as money, or work done, for the person contracted with has then given an equivalent in recompense, for the undertaking by the other party. * [* 158] Valuable considerations are divided by the civilians (c) into four species: 1. Do, ut des: as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which either there is an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio, ut facias: as, when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together; or to do any other positive acts on both sides. Or, it may be to forbear on one side in consideration of something done on the other; as, that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides; as, that in consideration that A will not trade to Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is facio, ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. And when a servant hires himself to his master for certain wages or an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform the service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias: which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages, upon his (a) See the remarks of Lord Wensleydale, Slingsby v. Grainger, 7 H. L. Ca. 284; Abbott v. Middleton, Id. 114; Grey v. Pearson, 6 H. L. Ca. 106, which, though made with refer ence to testamentary instruments, are appli- [* 159] * performing such work: which, we see, is nothing else but the last species inverted; for servus facit, ut herus det, and herus dat, ut servus faciat. The nature of a consideration will be abundantly exemplified in the ensuing pages, and we shall here merely add that a consideration of some sort or other is so necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay something on one side, without any compensation on the other, will not at law support an action: and a man cannot be compelled to perform it. As if one man promises to give another 1007., here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And, however a man may or may not be bound to perform his promise, in honour or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not compel the execution of that which he had no visible inducement to engage for: for our law has adopted the maxim of the civil law that ex nudo pacto non oritur actio. (505) 3rdly. The thing to be done or not to be done. 3rdly. We are next to consider the thing agreed to be done or not to be done. A contract is an agreement, upon consideration, "to do or not to do a particular thing." We must here consequently enquire concerning specific kinds of contracts, and shall divide them into three classes. I. Contracts which are required to be in writing by the statute law. II. Contracts which, by mercantile custom, are in writing. III. Other contracts. I. Within the first of the above three classes (regard being had to the scope of our present Volume (d)), may be included the contract of sale, guaranties, I. Contracts re- agreements not to be performed within a year, and some other contracts which are of less frequent occurrence and less importance (e). quired to be in writing by statute. [* 160] *1. Sale is a transfer of property from one man to another, in consideration of some price or recompense in value: for there is no sale (d) Contracts relating to real property have (e) Generally, as regards the stamps on been discussed in Vol. ii. written contracts, see Tilsley's Stamp Acts. (505) If a contract is deliberately made without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient. Train v. Gold, 5 Pick. (Mass.) 384. But it must appear not to be utterly valueless. And a contract, founded upon a consideration mistakenly supposed to be of value, but which turns out afterward to be utterly worthless, cannot be enforced. 1 Story on Cont., § 544; Maull v. Vaughan, 45 Ala. 134; Cabot v. Haskins, 3 Pick. (Mass.) 83. A waiver of a legal right, at the request of another, is a sufficient consideration. Sykes v. Lafferry, 27 Ark. 407. So a promise by a wrong-doer to pay damages for the injury done is held a sufficient consideration for a contract. Beadle v. Whitlock, 64 Barb. 287. The promise of one party is sufficient consideration for that of the other. Babcock v. Wilson, 17 Me. 372; Whitehead v. Potter, 4 Ired. (N. C.) 257; Quarles v. George, 23 Pick. (Mass.) 401. And where several promise to contribute to a common object, which they wish to accomplish, the promise of each has been held a good consideration for the promise of the others. Hanson v. Stetson, 5 Pick. (Mass.) 506; Society in Troy v. Perry, 5 N. H. 164; State Treas. v. Cross, 9 Vt. 298; Stewart v. Hamilton College, 2 Denio, 403; Ladies' Collegiate Institute v. French, 16 Gray (Mass.), 196. Mutual promises of marriage are binding; and the promise of an infant to marry is a sufficient consideration for a corresponding promise by an adult. Wightman v. Coates, 15 Mass. 1; Willard v. Stone, 7 Cow. 22. 1. Contract of sale. without a recompense; there must be quid proquo (ƒ). (506) A commutation of goods for goods, is properly an exchange; but a transferring of goods for money, is called a sale: which is a method of exchange introduced for the convenience of mankind, money having been established as a universal medium, which may be exchanged for all sorts of other property; whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted therefore very early the use of money; for we find Abraham giving "four hundred shekels of silver, current money with the merchant," for the field of Machpelah (g): though the practice of exchange is still found to subsist among savage tribes. We shall not further advert to it, as such a transaction rarely comes under judicial notice (h). A sale differs from a gift, inasmuch as there is a consideration for the former, and none for the latter. And hence the gift of a chattel, if valid, must either be authenticated by deed, or be accompanied with delivery of possession (i); as if A gives to B 1007., or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any consideration or recompense: unless it be prejudicial to creditors; or the donor were under some legal incapacity, as infancy or coverture; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprise. * If A and B mutually treat for the sale and purchase of goods which are in esse, (507) then, generally speaking, their contract will be complete when its terms have been adjusted and made sufficiently definite, and have [*161] been assented to on both sides. If the vendor says, the price of certain goods is four pounds, and the vendee says, he will give four pounds, the bargain is struck; and neither of the parties is at liberty to be off, the obligation imposed upon the vendor being to deliver the goods upon payment of the price, and that imposed on the purchaser being to pay the price agreed upon, and receive the goods (j); and in the case put, the property in the goods, if (f) Noy's Max. c. 42. (g) Gen. c. 23, v. 16. (h) See Parker v. Rawlings, 4 Bing. 280. (i) Irons v. Smallpiece, 2 B. & Ald. 551; Shower v. Pilck, 4 Exch. 478. (j) Blackburn, Contract of Sale, 199. (506) As it regards the fixing of a price, a reference to a certain sum given by another person, or to the arbitration of a third person, is sufficient. 2 Story on Cont., § 994; Hutton v. Pearce, 26 Ark. 382; Brown v. Bellows, 4 Pick. (Mass.) 179, 189; Fuller v. Bean, 34 N. H. 301; McCandlish v. Newman, 22 Penn. St. 460. Mere inadequacy of price is not a sufficient ground for setting aside a sale, unless the inadequacy be so gross and palpable as, of itself, to afford evidence of actual fraud. Osgood v. Franklin, 2 Johns. Ch. 1; S. C. affirmed, 14 Johns. 527. In such case a court of equity will grant relief. Id. See, as to distinction between a sale and exchange, Mitchell v. Gile, 12 N. H. 390; Vail v. Strong, 10 Vt. 457. For cases illustrating the difference between a sale and a bailment, see Fuller v. Buswell, 34 Vt. 107; Hunt v. Wyman, 100 Mass. 198. The same rules of law apply to a sale and to an exchange. Com. v. Clark, 14 Gray (Mass.), 371, 372. As to a gift, see Hanson v. Millett, 55 Me. 184; Grover v. Grover, 24 Pick. (Mass.) 261; Attorney-General v. Merrimack Manuf'g Co., 14 Gray (Mass.), 603. (507) See Allen v. Hammond, 11 Pet. (U. S.) 63; Rice v. Dwight Manuf. Co., 2 Cush. (Mass.) 80, 86; Thompson v. Gould, 20 Pick. (Mass.) 139; Gardner v. Lane, 9 Allen (Mass.), 499; Huthmacher v. Harris, 38 Penn. St. 491; Curtis v. Curtis, 40 Me. 24. Any mistake as to the identity of the thing to be sold will vitiate the sale. See Kyle v. Kavanagh, 103 Mass. 356. defined and appropriated (k), passes by the bargain and sale to the vendee. According to the law of England, "by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties" (1). (508) Where, indeed, parties have, by their words or conduct, sufficiently indicated their intention as to the mode of carrying out the stipulations of their contract, a court of law, if called on, will endeavour to give operation and effect to such intention. If there be a sale of goods which are to be sent by a carrier to the purchaser, and the goods perish or sustain damage whilst in transitu, the ordinary rule of our law would, in the absence of special circumstances, apply. Delivery to the carrier is delivery to the consignee, who will therefore have to bear the loss. But if the parties intend that the vendor shall not merely deliver the goods to the carrier, but undertake that they shall actually be delivered at their destination, and express such intention, effect will be given to this arrangement; and, in such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser, in conse[*162] quence of the breach of his (the vendor's) * contract to deliver at the place of destination. Or, again, the parties may intend that the vendor shall deliver the goods, which are the subject-matter of their contract, to the carrier, and that, when he has done so, he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination; and yet the contracting parties may intend that the whole or part of the price shall not be payable unless the goods arrive. The parties may bargain and agree that the property in the goods shall vest in the purchaser as soon as the goods are shipped, and yet that the price in whole or in part shall be payable only on the contingency of the goods arriving; and to such an arrangement, if the intention of the parties be expressed, the court will give effect; if the intention be not expressed in terms, the court will endeavour to ascertain it from the various stipulations in the contract (m). If, again, there be a usage or custom of trade shown to exist affecting the subject-matter of the contract, such usage or custom, if not inconsistent with, will be imported into the contract, and so will become a term or item of agreement between the contracting parties, who will be presumed to have meant to incorporate the mercantile usage or local custom with their contract (n). The transfer of property may take place either upon or after delivery (0). (k) See White v. Wilks, 5 Taunt. 177; Rhode v. Thwaites, 6 B. & C. 388; Young v. Matthews, L. R. 2 C. P. 127. (1) Gilmour v. Supple, 11 Moo. P. C. C. 566. (m) See Calcutta and Burmah Steam Nav. Co. v. De Mattos, 32 L. J., Q. B. 322; Dunlop v. Lambert, 6 Cl. & F. 600, 621. (n) Syers v. Jonas, 2 Exch. 111; Humfrey v. Dale, E. B. & E. 1004. (0) As to what may suffice to constitute evidence of delivery, see per Erle, C. J., Martin v. Reid, 11 C. B., N. S. 735. (508) An unconditional sale of specific chattels passes the title at once, and the buyer takes the risk of loss, and has the right to immediate possession. Merchants' National Bank v. Bangs, 102 Mass. 291; Morse v. Sherman, 106 id. 433. See Chase v. Willard, 57 Me. 157; Bailey v. Smith, 43 N. H. 143; Potter v. Washburn, 13 Vt. 558; Weld v. Came, 98 Mass. 152; Waldron v. Chase, 37 Me. 414; Hooban v. Bidwell, 16 Ohio, 509; Willis v. Willis, 6 Dana (Ky.), 48. |