KFLCC Kingdom Law 2nd Ed.

261

CONTRACT

CONTRACT

CONTRACT. An agreement, upon suf ficient consideration, to do or not to do a particular thing. 2 Bl. Comm. 442; 2 Kent, Ooinm. 449. Justice v. Lang, 42 N. Y. 496, 1 Am. Rep. 576; Edwards v. Kearzey, 96 TJ. S. 599, 24 L. Ed. 793; Canterberry v. Miller, 76 111. 355. A covenant or agreement between two or more persons, with a lawful consideration or cause. Jacob. A deliberate engagement between com petent parties, upon a legal consideration, to do, or abstain from doing, some act. Whar ton. A contract or agreement is either where a promise is made on one side and assented to on the other; or where two or more persons enter into engagement with each other by a promise on either side. 2 Steph. Comm. 54. A contract is an agreement by which one person obligates himself to another to give, to do, or permit, or not to do, something ex pressed or implied by such agreement. Civ. Code La. art 1761; Fisk v.- Police Jury, 34 La. Ann. 45. A contract is an agreement to do or not to do a certain thing. Civ. Code Cal. § 1549. A contract is an agreement between two or more parties for the doing or not doing of some specified thing. Code Ga. 1882, § 2714. A contract is an agreement between two or more persons to do or not to do a particular thing; and the obligation of a contract is found in the terms in which the contract is expressed, and is the duty thus assumed by the contract ing parties respectively to perform the stipula tions of such contract. When that duty is rec ognized and enforced by the municipal law, it is one of perfect, and when not so recognized and enforced, of imperfect, obligation. Barlow v. Greogory, 31 Conn. 265. The writing which contains the agree ment of parties, with the terms and condi tions, and which serves as a proof of the obligation. Classification. Contracts may be classified on several different methods, according to the element in them which is brought into promi nence. The usual classifications are as follows: Record, specialty, simple. Contracts of record are such as are declared and adjudicat ed by courts of competent jurisdiction, or enter ed on their records, including judgments, re cognizances, and statutes staple. Hardeman v. Downer, 39 Ga. 425. These are not properly speaking contracts at all, though they may be enforced by action like contracts. Specialties, or special contracts, are contracts under seal, such as deeds and bonds. Ludwig v. Bungart, 26 Misc. Rep. 247, 56 N. Y. Supp. 51. All others are included in the description "simple" contracts; that is, a simple contract is one that is not a contract of record and not under seal; it may be either written or oral, in either case it is called a "parol" contract, the dis tinguishing feature being the lack of a seal. Webster v. Fleming, 178 111. "140, 52 N. E. 975; Perrine v. Cheeseman, 11 N. J. Law, 177, 19 Am. Dec. 388; Corcoran v. Railroad Co., 20 Misc. Rep. 197, 45 N. Y. Supp. 861; Justice T. Lang, 42 N. Y. 493, 1 Am. Rep. 576. Express and implied. An express contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing.

2 Bl. Comm. 443; 2 Kent, Comm. 450; Linn v. Ross, 10 Ohio, 414, 36 Am. Dec. 95; Thomp son v. Woodruff, 7 Cold. (Tenn.) 401; Grevall v. Whiteman, 32 Misc. Rep. 279, 65 N. Y. Supp. 974. An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, as sumption that a contract existed between them by tacit understanding. Miller's Appeal, 100 Pa. 568, 45 Am. Rep. 394; Wickham v. Weil (Com. PI.) 17 N. Y. Supp. 518; Hinkle v. Sage, 67 Ohio St. 256, 65 N. E. 999; Power Co. v. Montgomery, 114 Ala. 433, 21 South. 960; Railway Co. v. Gaffney, 65 Ohio St. 104, 61 N. E. 152; Jennings v. Bank, 79 Cal. 323, 21 Pac. 852, 5 L. R. A. 233, 12 Am. St. Rep. 145; Deane v. Hodge, 35 Minn. 146, 27 N. W. 917, 59 Am. Rep. 321; Bixby v. Moor t 51 N. H. 403. Implied contracts are sometimes subdivided into those "implied in fact" and those "implied in law," the former being cover ed by the definition just given, while the latter are obligations imposed upon a person by the law, not in pursuance of his intention and agreement, either expressed or implied, but even against his will and design, because the circum stances between the parties are such as to ren der it just that the one should have a right, and tie other a corresponding liability, similar to those which would arise from a contract be tween them. This kind of obligation therefore rests on the principle that whatsoever it is cer tain a man ought to do that the law will sup pose him to have promised to do. And hence it is said that, while the liability of a party to an express contract arises directly from the contract, it is just the reverse in the case of a contract "implied in law," the contract there being implied or arising from the liability. Musgrove v. Jackson, 59 Miss. 392; Bliss v. Hoyt, 70 Vt. 534, 41 Atl. 1026; Linn v. Ross, 10 Ohio, 414, 36 Am. Dec. 95; People v. Speir, 77 N. Y. 150; O'Brien v. Young, 95 N. Y. 432, 47 Am. Rep. 64. But obligations of this kind are not properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and concurrent inten tion of the parties. Such obligations are more properly described as "quasi contracts." Wil fard v. Doran, 48 Hun, 402, 1 N. Y. Supp. 588; People v. Speir, 77 N. Y. 150; Woods v. Ayres, 39 Mich. 350, 33 Am. Rep. 396; Bliss v. Hoyt, 70 Vt. 534, 41 Atl. 1026; Keener, Quasi Contr. 5. Executed and executory. Contracts are al so distinguished into executed and executory; executed, where nothing remains to be done by either party, and where the transaction is com pleted at the moment that the arrangement is made, as where an article is sold and delivered, and payment therefor is made on the spot; ' executory, where some future act is to be done, as where an agreement is made to build a house in six months, or to do an act on or before some future day, or to lend money upon a certain interest, payable at a future time. Farrington v. Tennessee, 95 U. S. 683. 24 L. Ed. 558; Fox v. Kitton, 19 111. 532; Watkins v. Nugen, 118 Ga. 372, 45 S. E. 262; Kynoch v. Ives, 14 Fed. Cas. 890; Watson v. Coast, 35 W. Va. 463, 14 S. E. 249; Keokuk v. Electric Co., 90 Iowa. 67, 57 N. W. 689; Hatch v. Standard Oil Co., 100 U. S. 130, 25 L. Ed. 554; Foley v. Felrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39. But executed contracts are not properly contracts at all, except reminiscently. The term denotes rights in property which have been acquired by means of contract; but the parties are no longer bound by a contractual tie. Mettel v. Gales, 12 S. D. 632, 82 N. W. 181. Entire and severable. An entire contract is one the consideration of which is entire on both