Contracts. A contract is "an agreement for a suitable consideration to do or not to do a certain thing. The essentials of a contract are: 1. The Parties; 2. Consideration; 3. Subject-matter; 14. Asssent; 5. Time. These are essential and the other elements are those that give to the contract its particular character. 1. The Parties. The parties must be competent. A contract with a minor is not binding upon him for anything except necessaries, though he may hold the other party to a strict accounting. What constitute necessaries would depend upon the age, the rank, and fortune of the minor. 2. Consideration.-No contract is valid withcut a sufficient consideration. Consideration may be divided; as (A) VALUABLE; (B) GOOD; (C) INSUFFICIENT. (A) VALUABLE CONSIDERATION is usually expressed by money or is convertible into money. (B) A GOOD CONSIDERATION is founded on love, affection or gratitude. It will be accepted as consideration for a contract already performed, but is not good for contracts to be performed some time in the future. As a gift already made but not holding for one promised. (C) INSUFFICIENT CONSIDERATION may be classed, as (D) GRATUITOUS; (E) ILLEGAL; (F) IMPOSSIBLE; (G) MORAL. GRATUITOUS.-A contract based on a promise wholly gratuitous is void for want of consideration. Examples: Public subscriptions, charities, etc. ILLEGAL.-A contract with an illegal consideration is void. A contract to commit, conceal, or compound a crime is void. Either Party may avoid the contract where the consideration is illegal. IMPOSSIBLE.-If the consideration is impossible the contract is void. The law compels no one to perform impossibilities. That the consideration was difficult would not be an anywhere, whether the time be limited or not, is invalid. An agreement in partial restraint of trade, if confined within reasonable bounds, or to certain persons and given for a sufficient consideration, would be valid. A doctor might sell his practice and agree not to practice within a certain number of miles of the place. If given for a valuable consideration, the contract would be valid. The court would decide the reasonableness of the limitation. Contracts in general restraint of marriage are void, because against public policy. A contract not to marry a particular person would be valid. A contract not to marry until of a suitable or reasonable age is valid. The condition that a widow shall forfeit certain portions of her deceased husband's estate if she marry again may be valid, if she accepted it under those conditions. Fraud vitiates any contract if the innocent party so wishes, otherwise the other party may be held. A contract that operates as a fraud on third parties is void. Examples: Fraudulent assignments; fraudulent sales; perversion of insolvent laws. "Fraud consists in the employment of any kind of cunning, deception, artifice, or concealment to cheat, circumvent, or deceive another in a business matter." If both parties are equally guilty, neither has usually any redress at law. If one party is more innocent, the reverse is true. The innocent party may many times hold the other if he chooses, or himself refuse to be bound by the contract. The guilty party cannot avoid the contract on account of his own fraud if the contract is already executed. 4. Assent. There can be no contract valid and binding, unless the parties assent to the same thing and in the same sense. There must be a proposition by one party and an acceptance by the other. If the proposition and acceptance are made by mail, the contract is presumed to be completed as soon as the acceptance is mailed, and even a telegram countermanding it before the letter was received need not necessarily be allowed to avoid it. 66 and most other States: Every contract for the leasing of a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is made." Annual crops resulting from cultivation, if the price is less than fifty dollars, do not come within the meaning of the statute; as corn, wheat, oats, potatoes, etc. In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith: 1. Every agreement that, by its terms, is not to be performed within one year from the making thereof. 2. Every special promise to answer for the debt, default, or miscarriage of another. 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. 4. Every contract for the sale of any chattels, goods, or things in action, for the price of fifty dollars or more shall be void unless, "First, A note or memorandum of such contract be made in writing and subscribed by the parties to be charged thereby; or, "Second, Unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or, "Third, Unless the buyer shall, at the time, pay some part of the purchase money." In addition to being written, there must be a consideration in the contracts, as above, either express or implied. "A party to a contract is not bound until he yields a full, free, and intelligent assent of its terms." "An offer made may be retracted any time before its acceptance.' A competent party making contract with a minor cannot hold the minor, except as before noted, but the minor can sue and recover for the nonperformance of the other party. Contracts required to be in writing by the "Statute of Frauds," hold only the party signing if but one signs. The other has it at his option. Damages. "Perform your contract or pay damages.' The law cannot compel the performance of a contract; it only knows a money remedy for nonperformance. In a contract for personal service which cannot well be filled by another, the sickness of the promising party will excuse nonperformance. 5. Time.-Time enters into the contract as an essential element and is either expressed or implied. Something to be done between two certain days is not performed if done on either of those days. If the day for performance falls upon Sunday, the performing party has the privilege of performing on the next secular day. Statute of Frauds.-By the Statute of Frauds," which has been adopted by most A court of equity may compel the performStates, certain contracts must be in writing. ance of certain agreements: as the conveyThe following are those adopted by New York, ance of real estate. Construction. The following rules are observed in the interpretation of contracts: 1. INTENTION. The first care is to give effect to the intention of the parties so far as the intention was mutual and legal. 2. MEANING OF TERMS. The terms of a contract are to be interpreted according to their usual meaning, if that seems to satisfy the intention of the parties. Technical words are interpreted according to their use in the profession, or the trade to which they belong. Interpretation. Certain contracts are expounded according to the usage or custom of trade when needed to explain the meaning of peculiar terms. The law of place would also enter as a factor; if the custom of the place where the contract was made differed from other places, that would give a different meaning to its terms. The interpretation is made upon the whole contract and not upon its parts. The object of the parties is to be gathered from the whole instrument, and one clause will be interpreted by another. Wherever one portion cannot be reconciled with the obvious intention of the parties, it will be expunged. "Effect will be given to the whole intention." Forms of Contracts. lease. ..... Know all men by these presents: That I, A. B., of . . . . ., in consideration of . . . . . and other good and valuable considerations to me in hand paid by A. C., of......, have remised, released and forever discharged, and by these presents do, for me, my heirs, executors and administrators, remise, release, and forever discharge said A. C., his heirs, executors, and administrators, of and from all and all manner of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands whatsoever, in law or equity, which against the said A. B. I ever had, now have, or which I, my heirs, my executors and administrators hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever (or by reason of . .), from the beginning of the world to the day of the date of these presents. In witness whereof, I have hereunto set my hand and seal, this. ... day of.... A. D. 189. . (Signed) ..... A. B. A. B., in consideration of two hundred bushels of wheat, sold to him this day by the said B. E., free of all charges or expenses, whatsoever, at. on or before .. shall and will pay or cause to be paid to the said B. E., or his assigns, upon such delivery, the sum of . . . . . . dollars. And the said B. E., in consideration of the agreement aforesaid of the said A. B., doth promise and agree, on or before the said . . at his own expense, to send in and deliver to the said A. B., or his assigns, the said two hundred bushels of wheat so sold to him as aforesaid, and the said B. E. shall and will warrant the same to be good, clean, and merchantable grain. In witness whereof, the said parties have hereunto set their hands the day and year first above written. Signed and delivered in the presence of D. E. Memorandum of Sale. It is agreed by and between A. B. and B. E., of, etc., that said A. B. B. C. A seal on an instrument is usually conclusive proof that it was given for a consideration, but the laws of New York permit evidence to | business in the name of the firm, otherwise he be submitted on rebuttal of this presump-alone is liable. He has no power to bind the tion. partnership outside the transaction of the Partnerships.- "A partnership is a con- regular business of the firm. The fraud of a tract between two or more competent persons partner will not bind the partnership if the for joining together their money, goods, labor third party is aware of the fraud or that the and skill, or any or all of them, under an partner is exceeding his authority. Each understanding that there shall be a communion partner is liable to third parties for partnerof profit between them, and for the purpose of ship debts to the extent of his whole private carrying on a legal trade, business, or adven-property. ture. STORY. Subject-matter: By this is meant the busiPartners: Any person of sound mind and ness in which they have engaged. The esable to conduct ordinary business may enter sence of the contract is, that the partners are into a partnership. An infant may be a part-jointly concerned in the profits and losses, or ner, but in general he could incur no liability and might disaffirm the contract at any time. Married women can be partners only in such States as have removed their disabilities. Partners are grouped as follows::Ostensible, those whose names are known and appear as partners; nominal, those who appear to the world as partners, but who have really no interest in the business. Nominal partners are responsible to all creditors who gave the firm credit because of their apparent connection with it. Dormant partners are those who do not appear to the world as partners, but are actually interested in the business. They are liable to creditors of the business. Special partners are those who supply a certain amount of cap 1, and on complying with certain requirements are not liable for debts of the firm above the amount they invest. at least the profits of some legitimate business. If the contract does not specify the manner of division, they will be supposed to be divided equally. The Articles of Co-partnership.-If the business is extensive, or the relations to continue for a great length of time, formal articles should be adopted. Any form that clearly sets forth the nature of the business, the investments of each partner, the division of the profits and losses, the powers and duties of each partner, the commencement and termination of the partnership, will answer the purpose. partnership commences at once if no other time is specified. The laws of New York prohibit the use of fictitious names in the firm name. & Co." cannot there be used unless it represent an actual partner. If no time is expressed for termination, the partnership is presumed to be at will" only, and may be dissolved at any time. Dissolution. This may take place by acts of the parties, by judicial decree, by operation of law. Relations of Partners: Mutual respect, confidence in the honesty, skill, judgment, and good business instinct of each other must be the basis of each partnership. On this account, if the partnership suffers through the A partnership may be dissolved at any time neglect of any partner, he is liable to the others. He is liable in damages to the other partners for any breach of partnership con tract. No partner has any right to engage in any private business that will in any way operate to the detriment of the partnership. The powers of all partners in ordinary cases are equal and neither can exclude the other from a share in the management of the business or from the possession of partnership property. A partnership can only exist by voluntary contract, and no third party can be introduced into the firm without unanimous consent. Powers of Partners: The acts of one partner bind all the rest. Each partner has power to transact any and all necessary business for the partnership. The frauds of one partner bind the firm, though the others have no knowledge of his action. The partner should transact all by mutual consent. If the partnership is for any specified time it may be dissolved by one partner refusing to act with the other, or by his assigning his share to a third party. Such assignment does not constitute the third party a partner without the consent of all the others. A partnership for a certain time expires when that period is passed. The partnership could be dissolved by judicial decree at any time for good and sufficient reasons, as unfitness or inability of a partner developed after the commencement of the partnership, or should the business be impracticable or when founded in error. The law would operate to dissolve the partnership if one partner became insane, idiotic, or in any way incapable of performing his duties. All right, title and interest of any partner may be sold under execution against him. The bankruptcy of one partner would dissolve the partnership unless provided for by special agreement. After dissolution no power remains to create new obligations, and a partner could not renew a partnership note, or even indorse one to pay a prior debt of the firm. Unless provided for, to the contrary, each partner has power to collect accounts and to settle up the affairs of the business. A notice of dissolution to all persons dealing with the firm is necessary when the retiring partner wishes to avoid further liability for debts incurred by the partnership. The retiring partner is already liable for all prior debts. To avoid responsibility, notice must be given to each person who has had dealings with the partnership. A notice published in the local paper will do for all subsequent creditors. The Kinds. Unwritten or nuncupative and written. All wills must be written, except those of soldiers and sailors when in actual service, or in some States they may be allowed in extreme cases when a necessity. parties to a will are the testator or person making the will, the donee or person benefited by the will, and the executor or person empowered to see that the provisions of the will are carried out. Testator. The testator must be competent. In New York, males of 18 years of age and females of 16 years of age may dispose of personal property. A married woman cannot make a valid will without the consent of her husband, except in those States where their disabilities have been removed. The testator must possess mind and memory enough to fully understand the nature and consequences of his action. Donee. The donees are the persons benefiting by the will. They are called devisees when the gift is of real estate, and legatees when the gift is one of personal property. Any person in general, capable of acquiring property by his own exertion, may be a donee. Corporations cannot take by will unless empowered to do so by their charters. Executor.-Any person capable of making a will may be an executor. He must see that the deceased is buried in a suitable manner; he must file a bond, offer the will for probate, make the return and inventory, collect the property, pay the debts and distribute the remainder according to the terms of the will. He must render an account of all, and file with the probate office. Subject-matter. Little form is necessary for disposing of personal property. A will might be accepted for disposing of personal property when parts relating to real estate would not be valid. By common law the testator must be possessed of real estate he devises at the time the will is made. By the laws of Vermont, Massachusetts, New York, Pennsylvania and Virginia, he may devise any that he is possessed of at the time of his death, if that was evidently his intention. The laws of Maine, Ohio, Illinois, and Connecticut are similar. Execution. The will must be signed by the testator, or by some person acting for him at his request. When he signs or acknowledges the will he must declare it to be his last will. It is best to have three witnesses, though some of the States require but two. The New England States and some of the Southern States require three; the Middle and Western States in general require two; Louisiana requires four witnesses. The witnesses must write their names and addresses as witnesses. New York prescribes a fine of fifty dollars for their failure to do so. The testator must sign or acknowledge his signature in the presence of these witnesses. A codicil to be valid must be witnessed with the same formalities as the will. A subsequent will revokes the preceding one. All witnesses should be disinterested parties. The following States have particular provisions in their statutes concerning wills: NEW YORK. No person having a husband, wife, child, or parent, shall devise more than one half of his or her estate to any charitable, literary, scientific, or kindred institution. Should a testator marry after making a will disposing of the whole of his estate, and there should be born an issue of such marriage, unless provision shall have been made for such issue, by settlement, or unless the will provides for such issue, or shows an intention not to provide for such issue, the will shall be revoked and no other evidence shall be submitted in rebuttal. A child born after the making of a will, and not provided for by will or settlement, shall succeed to such portion of the estate as would have fallen to it had the parent died intestate. A bequest to a witness renders the will void only so far as the witness and his bequest is concerned. He is a competent witness still. COLORADO. A married man cannot by will deprive his wife of more than one half his estate. A married woman cannot deprive her husband of more than one half her estate without his consent in writing. CONNECTICUT. No bequest can be given to |