the use of intimidation or force, the other is by taking advantage of mental weakness or of affection to influence him.

If a party signs a contract in order to escape from imprisonment or detention of some kind, he has signed under duress and not of his own free will and the contract cannot be enforced. If he signs it in fear of immediate bodily harm, which he has every reason to believe the other party is capable of inflicting, the same holds true. In a case where there is no detention but merely threats, the threats must be either of bodily harm or of imprisonment to the person himself or to some member of his family, or of an injury to his property, and must have been made under such circumstances that a man could reasonably believe that there was immediate danger of their being carried out.

As soon as a party escapes from duress or from fear of the threats that coerced him, he may rescind his contract and recover any property or other consideration, or value therefor, that was taken from him under the contract.

$61. Undue Influence

Undue influence is when one party takes advantage of another through near relationship, such as that of attorney and client, doctor and patient, guardian and ward, etc.; or when the second party is mentally weak and at the mercy of his more keen-witted fellow men. A deficient person can hardly be said to exercise his own free will; contracts can readily be imposed upon him by others, and when this imposition can be proved, contracts made with him have no legal standing.

When a person takes advantage of mental weakness, or of near relationship, or of confidence reposed in him to influence another person to make a contract, it is not the free action of the second party and is no contract. People who are merely friends are not considered to be in such a position that the one can exercise an undue influence over the other. Where the

consideration for a contract is plainly inadequate, it may raise a suspicion of undue influence.

If the person recovers his mental health, or is separated from the party who influenced him, he may refuse to carry out his contract and recover anything he has turned over to the other party under it.

His friends and relatives may also act for him in order to protect his property while he is still under the influence of the other party, or too incapacitated mentally to act for himself.

Note:

I. No contract is of any value unless it is made by the free and unbiased will of both parties.

§ 62. Law as to Alteration

Any alteration in a written contract by one of the parties without the consent of the other, makes the contract of no effect as against the other.

The parties to a contract may alter it if they can agree on the changes to be made. If it is a written contract, one of the parties may make the alterations in the contract itself with the consent of all the other parties, or the parties may make a new written contract. If parties attempt to modify a written contract by an oral agreement there must be a new consideration for it distinct from that of the original contract, so that in effect a new and oral contract has been made.

A New Agreement. If the same parties make a new agreement about the same subject which is entirely inconsistent with the old agreement, the old agreement will be regarded as set aside by the new. If, however, there is any part of it which is not inconsistent with the new, that part still remains enforceable. (See also § 69.)

If one of the parties to a contract makes alterations in it without the consent of the other parties to it, this amounts to fraud, and the contract becomes unenforceable by the guilty

party. If a person, not a party to the contract, and not acting for any of the parties to it, should make alterations in it, they would be treated as though they did not exist. The nature of the original contract could be proved by the testimony of the parties, and the contract would be enforced as it stood before the alterations were made.

Filling in a Contract. If the contract is not complete, however, but blank spaces have been left for any of the terms to be filled in later, any party to it to whom it is entrusted may fill out the blank spaces in any way which would be consistent with the other terms of the contract and enforce it as he has made it. If he were given instructions for filling it out, he himself could not enforce any other contract than one that was in accordance with the instructions, but he might fill it out contrary to the instructions and transfer it to another party, who, knowing nothing of the instructions, would be entitled to enforce it as he received it. This question arises-more often in the case of negotiable instruments and will be spoken of under that heading. (See § 161.)

Notes:

I. The best way to change an existing contract is to make a new written agreement signed by all the parties.

2.

3.

A new contract may be made by letters if they point out clearly what the new agreement is.

It is not safe to leave any written instrument with unfilled blanks.

§ 63. Interpretation of Contracts

A contract should be so clear that its meaning may be easily understood. As a matter of fact, many contracts are far from clear and all sorts of disputes arise over their meaning. A contract should be interpreted so as to carry out the intention of the parties as nearly as may be. The court will

try to interpret a contract in such manner as to make it lawful and enforceable. In this matter law and common sense coincide. A contract will be interpreted according to the law of the state where it was entered into.

In getting at the intention of the parties where the contract is not clear, anything which is unessential and tends to confuse the meaning will be disregarded. If there are two statements which absolutely conflict, the court will consider that the first gives the true meaning and will disregard the latter.

The parties may bring in evidence to show the meaning of any technical terms which were used, or to prove some well-recognized custom or usage of business which will explain the meaning of certain terms, or which may be considered part of the contract.

If a contract refers to any other papers or documents, these will be read in connection with it.

Rules to Ascertain Meaning of Contracts. There are certain general rules which the court will always follow to get at the meaning of a contract. One is that in a printed form which has been filled out, if the written and the printed words are inconsistent, the court will disregard the printed words and follow the written ones. If any words or phrases are inconsistent with the rest of the contract, and a clear intention can be gathered from the rest without them, the court will treat them as surplusage.

If a general term is used, such as an agreement to do the "mason work" on a building, and it is followed by the mention of any specific kinds of mason work, such as "stone and brick work," "plastering," etc., it is a contract to do only the special kinds of mason work mentioned and not all the mason work on the building. In order to make a general contract for all the mason work, this intention should be clearly stated.

If any of the terms of a contract were intentionally made ambiguous by one of the parties for the purpose of taking

advantage of the other party, the court will interpret the doubtful terms in the way that will least favor the party at fault.

In trying to decide what the parties intended where the meaning is doubtful, the court will be influenced by the words and the acts of the parties at the time of making the agreement, or the manner in which they have carried it out since. Their manner of carrying out the conditions shows what they understood by the agreement.

Notes:

I. A contract should always be stated in the simplest and most intelligible language possible, and the parties should go over it carefully to make sure that all of the terms are clear.

2. If it be desired to make it with reference to some particular business custom, it would be well to mention that custom in the contract so that there can be no doubt that both of the parties understood that it was to be part of the contract.

REVIEW QUESTIONS

I. 1. Is the rule in regard to ignorance of the law just? Why is it enforced? What is the law in your state in regard to Sunday contracts?

2. Explain the distinction between mistake of party, subject matter or obligation, and mistake of the quality, value, or legal effect. 3. What is the effect of signing a contract without reading it? If the party had dispensed with reading because of fraudulent statements of the other party, would that affect the situation? What is the effect of a clerical error?

4. Broadly, what is the effect of fraud on a contract? What is fraud?

5. Distinguish between misrepresentation and expression of opinion. When is the expression of opinion liable to be fraudulent?