Chapter XCIX.)

These have been referred to already as contracts under seal because most of them are evidenced by a seal.

$51. Express and Implied Contracts

An express contract is a contract the terms of which have been spoken or written and agreed to by both parties. It is called an express contract in contradistinction to implied contracts which arise by inference and not from express words.

An implied contract is a contract that arises where no promise has been expressed. If a man orders goods from a dealer it is implied that he means to pay for them, not any price that the dealer might charge, but at their reasonable value. It is not necessary that he should promise to pay for the goods. If he orders them the promise to pay is implied or understood.

If one person accepts the benefit of another's services, the law holds that a contract to pay for them at what they are reasonably worth is implied, and the person who performs the service may claim compensation in court.

The same reasoning holds if a person occupies land, buildings, or rooms. The law implies a promise to pay a reasonable rent. If two people have a running account with each other, the law considers that they have promised each other that the one from whom a balance is found to be due shall pay that balance to the other. The promise to pay is based on the fact that the party has willingly taken the benefit of what was done. If something was done for him without his making any request, and without his afterwards making any use of it, he could not be charged for it.

If, without orders, a man left bread at your door every morning, and you used it, the law would imply a promise on your part to pay for the bread. If he put a new roof on your house in your absence without orders, he could not collect for

it, because you would have to use the new roof whether you desired such repair or not. In case the person who performed the service intended to do it without claiming payment for it, it would be a gift and there would be no implied contract to pay for it.

Note:

I.

It is always most satisfactory to have a distinct understanding as to prices for services rendered. Even lawyers, dentists, and plumbers are sometimes believed to overvalue their services.

$ 52. Quasi Contracts

It will require close observation to distinguish implied contracts from quasi contracts. A quasi contract is a contract implied in law from the circumstances and without regard to the intention of the party who is bound. For example, a man staying at a hotel suddenly dies. The proprietor of the hotel calls in an undertaker who takes charge of the funeral preparations. The undertaker sends his bill to the executors of the man's estate. In this instance there was no consent on the part of the man or his representatives, yet by law it was implied that his estate should be bound for the obligation, and that there was a quasi contract to that effect.

The following is another case of quasi contract: In California a law was passed providing for a certain number of pilots to meet ships coming into the bay of San Francisco and take the ships in. Each ship was to pay its pilot a certain sum. Therefore, if a pilot took the trouble to go out to meet a ship and the officers did not wish his services, he would have to be paid a sum, if not the full and usual fee, enough to pay for his time and trouble in meeting the ship.

$53. Executory and Executed Contracts

An executory contract is a contract that has been made but has not as yet been carried into effect.

An executed contract is one that has been carried into effect by both parties. A contract that has been carried out by one party and not the other would be executory from one point of view and executed from the other point of view.

$54. Conditions Precedent and Subsequent

A condition precedent is something to be performed before the other party can be required to do his part. It is sometimes called an executory condition. In the usual contract of employment it is necessary to do the stipulated work before there is any claim for payment. The performance of the work is the condition precedent. (See also §§ 109, 110.)

A condition subsequent is a condition attached to a contract the fulfilment of which will discharge the obligation. The simplest instance of this is the purchase of goods with the privilege of returning them within a certain number of days after the goods are sold. If the goods are returned the contract of sale is annulled, and the purchaser is not liable for the price, or if he has paid he will be entitled to have the amount refunded.

A chattel mortgage is another instance of a condition subsequent. If the condition is performed and the payment secured or made, the chattel mortgage becomes void and the person who makes the payment has clear title to the goods.

§ 55. Void and Voidable Contracts

A void or unenforceable contract is one which has no legal effect and on that account cannot be enforced. It is not necessarily an illegal contract, though an illegal contract would be a void contract.

A voidable contract is not absolutely void. but it can be

avoided by one of the parties concerned. A contract with a minor can be enforced by the minor but if he does not wish to carry it out he can avoid it. (See § 38, "Minors.")

§ 56. Drafting a Contract

Where an important contract is to be drawn up, a lawyer should be employed. Where the contract involves nothing more than a simple sale, a contract of hiring or other ordinary business transaction, any intelligent man who knows how to use the English language should be able to draw up a plain, understandable statement of what the parties undertake to do. A chapter in the latter part of this book has been given to this subject. (See Chapter XCVIII, "Drafting a Contract.")

REVIEW QUESTIONS

1. Classify contracts as to grade or ease of legal proof. What is the difference between simple and formal contracts?

2.

How must an oral contract be proved?

3. What data should a written contract contain?

4. What is the Statute of Frauds? What was the object of it? By whom must the required memorandum be signed? Which are the contracts that must be in writing?

5. Where must written contracts be signed in your state? 6. In marriage, is the contract a written one?

7. When is one liable for a debt, default, or miscarriage of another? Does a loan have to be evidenced by writing?

8. Is an oral contract to sell real estate enforceable? Give reason for answer.

9. What amount of personal property would require a written contract for its sale in your state?

10. Would a contract to write a book have to be in writing? II. What instruments require a seal? What form of seal is required? What is a contract by specialty? What is a covenant? 12. Define contracts of record. What is a recognizance? What is the object of acknowledgment?

13. What is the difference between express and implied contracts? 14. What is a quasi contract?

15. What is the difference between an executory and an executed May a contract be executed on one side and

contract?

executory on the other? 16. What is a condition precedent? What is a condition subsequent? 17. What is the difference between a void and a voidable contract? If you contracted to rent a house that burned before the tenant moved in, would it be illegal? Would it be a void contract?