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contracts are made in society, the performance whereof is never enforced in courts of law or of equity, on municipal obligation merely; as when a contract is made in one nation and its performance enforced in another. For instance, A of London and B of Boston meet in China, do business there, and A, getting fairly in debt to B in $1000, gives him a note for that sum, to pay on demand; no place of payment is named; they meet in New York; B there sues A; the contract appears a fair one, for value received; what court in law or equity in that State, or any other, would ever think of even attempting to compel performance on the municipal law of China, as constituting its binding force or obligation, or even to inquire after that municipal law? When, too, it is probable that neither China or any other nation ever enacted a law to give binding force to such a contract, or thought to distrust its natural, inherent, intrinsic obligation, far more permanent, universal, and invariable than human legislation or law enacted. In fact the civil or municipal obligation is a human work; the natural one is a divine work. Might not the convention well mean so to establish this constitutionally, as that it should never be impaired by State enacted law, which had done but little for several years, but wrong creditors and favor debtors, men whose habits or management too often make them embarrassed debtors, defending themselves, and defended, under the compassionate plea of the unfortunate, not often a plea for the creditor.

As to the other distinction, might not the convention well think the restraint too limited, if confined to contracts previously made, that is, to those only made before the passage of the insolvent or other impairing law, as it was clear such contracts would soon be very few; for instance, a State passed an insolvent act before or when the convention was sitting, as some States did, to restrain such act to the contracts made before it was passed, these obviously in a few years would be performed, outlawed, or otherwise cease to exist in any number deserving notice, much less such a solemn constitutional provision. Therefore the convention omitted the distinction, previously, made in the ordinance; and provided the whole American people might establish forever the natural obligation of contracts founded in the correct moral law of mankind, not merely the municipal or enacted obligation, that could so easily and almost entirely be modified by State legislatures. Admit the correct legislation of the State generally, still, if there be but one bad legislation in fifty, such a constitutional restraint on that is necessary and proper. $6. All contracts must be good, or valid, at their original creation, and must not depend on subsequent contingencies. The law will not suffer a gratuitous act of kindness or benevo

I. CH. 1.
Art. 2.
Con.

I. CH. 1.

Art. 2.
Con.

1 Nott and

M'Cord, 112115, Patrick v. Wilson.

Perkins v.

lence to be converted into a pecuniary demand, so as to form the ground of an implied assumpsit;' and 'inadequacy of consideration, where there is no fraud, is not a good ground to set aside a contract.'

'On an account for work and labor, a consent by the plt. to deduct percentage from the amount, is not obligatory, unless it formed a part of the original agreement, or some consideration moved to the promise '-was the account of a carpenter for labor and materials, at the usual prices. Defence in the action, was, he agreed to deduct 20 per cent. from the amount of his bill. Decision as above.

7. In equity, if the parties to a contract do not know the extent of their rights, and the nature of the information and evidence in their power, as to them, they are not bound; but if Gay, 3 Serg. they treat on the ground the fact, the subject of their contract, is uncertain, and they take into view the risk each is to run, and contract accordingly, they are bound, though one of the parties may be mistaken, if there be no concealment or unfair dealing by the other. Id.

and R. 331.

Duncan v.

M'Culloch,

8. If there be actual and positive fraud practised by one party, or it has acted mala fide, the contract is void; and when 4 Serg, and R. in fact void, it cannot be confirmed by any subsequent declarations, or acts by which the parties may acknowledge it a fair one. $9. A contract for the sale of land is valid, though the vendee do not inform the vendor of facts and circumstances, he 1 Yates, 307. is bound to know.

483.

10. The new French law, a vast improvement on the old, is superior to ours in several cases; among others, 1. In the precision and certainty, in general, naturally, the result of the late revision; 2. As to contracts generally, it trusts much less to parol evidence than the English and our law does; 3. It requires many more contracts to be registered than our laws do; 4. There are numerous guards against frauds and cheatings in the contracts and dealings of men, not found in our laws; 5. The new French code abrogates the days of grace, of favor, of usage, and of local custom, in paying bills of exchange, also excludes most legal fictions and times reasonable, and substitutes for many usages and local customs, plain rules of written law, each pervading the whole nation, facts in the place of fictions, and for times reasonable, precision, and certainty, in days, weeks, months, years, and dates; for, however excusable various usages, local customs, legal fictions, and times reasonable, may appear in the outset, they are sure, in time, and as the sources of them multiply, to introduce into the law of the land endless confusion, vexation, and uncertainty. For instance, in a country in which there are hundreds, and may be thousands of banks, what more injudicious than to allow as many usages, and each usage to be a rule of conduct at each bank.

I. CH. 1.
Art. 5.

Con.

4. Indebitatus Assumpsit for $27,33 for labor done on the deft's. farm. Plea general issue. Facts, the plt. agreed to work for the deft. one year for $120, but before the year was ended, the plt. voluntarily left the deft's. service without any fault on his part, and against his consent. Held the contract was ARt. 5. entire; that the plt. must perform the whole year's service as Con. a condition precedent to his right to recover anything under the 2 Pick. R. 267, contract, and that he could not renounce the contract and re- Stark v. cover on a quantum meruit. The plt. had a verdict in the Common Pleas. Numerous authorities cited on each side. See like principle in many cases in ch. 118.

Parker.

5. But otherwise, had the plt. been a minor, he might have Moses v. recovered a quantum meruit, deducting any damage he occa- Stevens, sioned to the deft. The minor's contract did not bind him. 2 Pick. R. 332.

§ 6. Parts of a Contract. Assumpsit on the deft's. note to 5 Pick. R. 395, the plt. not negotiable. The plt. gave a bond to convey to the 398, Hunt v. deft. a parcel of land the deft. had agreed to buy, and he gave Livermore. said note on demand for the price, but took from the plt. a receipt, stating if the bargain should be rescinded, the note should be given up upon the deft's. giving up the bond. The three papers were all of the same date: Held they constituted one contract, and that it was valid: 2. The action would not lie on the note, without a previous tender of a deed of the land. The contract contained independent stipulations. Neither party intended to trust to the personal security of the other.'

§7. What may make a contract absolute or conditional in 5 Pick. 425, words. Assumpsit on this note, to wit, Westport, March 9, 427. 1809; Value received, I promise to pay W. White or order 100 dollars, to be paid if I recover of T. Shearman my demands against said Shearman, towards the land where I now live, to be paid when recovered of said Shearman, with interest from this date. Amos Snell, jun.' Held the plt. might prove the deft. had no demand against S.; hence the promise was White v. absolute; or that the deft. had not used due diligence to collect Snell. his demand. Nonsuit taken off.

152, Barnard

$1 Con. A contract ought never to be executed or enforced ART. 7. when the contracting partics have entered into it under the 1 Nott and misapprehension and ignorance of such defects as would have M'Cord, 142prevented its being made, had they been known at the time. Yates, jr. p. 263, a war puts an end to all executory contracts between the citizens of the belligerent nations.

151-180.

$29 Con. As to the meaning of a man's contract. The 2 Mason, lex loci applies where it is enforced; the intent where made. The action was assumpsit, with the common money counts. The deft. pleaded in bar of the action the limitation act of the State of New York, where the contract was made; to which the plt., who lived in Massachusetts, demurred. Plea

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I. CH. 1.

Art. 7.
Con.

1 Hop. Ch. R.
436-450.
530, 551.

Leggett v.

Edwards & al.

1 Jacob & W. 36-38.

adjudged bad; but a plea of this act of limitation of Massachusetts may be good. In this case the principles of the lex fori were discussed and examined at large, and scores of authorities cited.

$ 41 Con. Equity never compels a conveyance of a doubtful title; and the chancellor says, the equitable jurisdiction is 'not to make or to vary contracts, but to carry them into effect, and to do substantial justice between the parties by measures and methods of relief, which the courts of law do not afford.' This was an ordinary contract for the sale of lands, part paid, notes given for the balance. Vendor made and delivered his deed as an escrow, and retained the title till paid. Performance decreed on terms after long delay. He added, 'It is a rule of equity, that when time is not of the essence of a contract, and just compensation may be made for delay, the party omitting to perform at the time appointed, shall not forfeit his rights, but shall have relief upon terms of indemnity to the other party.' Terms, usually, payment with interest and all equitable costs. There are numerous authorities to support these general principles.

Specific performance decreed without costs, the abstract delivered not containing a satisfactory title; and p. 263: P. 74. if trustees make an agreement by mistake, to sell for an inadequate consideration, the court will not compel them to perform: P. 422, the motive inducing a party to enter into a contract is not to be considered, unless in the contract itself expressed: P. 569. in compelling a purchaser to take a title, the court formerly acted on its own opinion, but now it will not compel him to take it if the point be doubtful.

§ 52. A contract tainted in part by misrepresentation is void in toto: As where A obtains an agreement by a partial misre1 Jacob & W. presentation, he is not entitled to a specific performance on 112-121, Cler- waiving the tainted part-the effect is not to modify the agreement pro tanto, but destroys it entirely.

mont v. Tas

burgh.

1 Jacob & W. 370, 371.

Ard & al. v.

Equity does not interfere in every breach of contract, though a party may be entitled to large damages; cases of specific performance or irreparable damage excepted. 2. Courts of law and equity can only enforce the rights of parties under acts of parliament by applying their known rules and principles: if inadequate to that purpose, the legislature alone can supply the defect.

$ 53. So a contract is void if the parties to it bind themselves to invade the rights of others. As where the plts. owned nine sixteenths of a ship and were managing owners, by Hope, 2 Barn. deed sold five sixteenths to the deft.: the plts. covenanted the deft. should be master of her, and he covenanted the plts. should continue managers and choose the tradesmen and appoint all

& Cres. 661.

676.

officers, &c. These and such other covenants were made binding the parties (major owners) to act in a way to deprive the other owners of all control in managing the ship. Held, though the part of the covenant sued was in itself legal, yet the deed being thus illegal and void, the covenant sued was void also. The principle of this case, though often violated or disregarded, is a sound one, for when several persons own a portion of property, as a ship, &c. it is the right of all and each one that every one remain in a situation to act fairly and impartially and to exercise his best judgment, and of course not to bind himself voluntarily by his contracts so as to be thereby obliged to act otherwise, and so the court held the contract void, as being contrary to the interest of the other owners, and that no one of the concerned is 'to fetter his judgment,' not only as to part owners, but officers, seamen, and all concerned in the ship; also such contracts are against public policy.

I. CH. I.

Art. 7.

Con.

§ 7. A promise made to three, on a consideration moving ART. 8. from them and a fourth person, is valid. 2. If a mere ideal Con. danger, as to pay to one who has no legal claim, is the consid- 3 Pick. R. 83– eration of the promise, it is void.

95, Cabot and others v.

In a deed, when the good consideration can be separated Haskins & al. from the bad, the court will do it; and evidence dehors may be 3 Rand. 12. applied. Cited Collins v. Blantern, and other cases.

A moral duty is the ground of an actual promise. 2 Nott

& Mc Cord, 45, 65, 153.

$ 1. Con. So the suspension or waiver of a legal right at ART. 10. the request of another person, is a good consideration for his Con. promise.

man in error.

2 N. H. Rep. 97-102. So giving up a bargain may be a valuable consideration, &c. 4 Barn. & Assumpsit. The plt. stated he had agreed with J. E. to Cres. 525-529, buy certain houses of him at a price named, and that the deft., Price v. Seain consideration the plt. would sell and give up to the deft. the said bargain, and suffer him to purchase, &c. promised to pay £40. Plt. averred he did give up, &c. and the deft. did purchase, &c., but had not paid the £40, &c. Verdict for the plt. and held it must be presumed, after verdict, that the bargain 2 Bing, 437.between the plt. and J. E. was in writing, and that the giving 1 Ld. Raym. up, &c. was a sufficient consideration of the promise.

2 W. Bl. 820.

662.

3. Defect of consideration how cured, &c. If A convey ART. 12. land to B without consideration, the conveyance is not void as to Con. creditors; if afterwards, B convey to C for a valuable consideration and without notice, the land passes to the bonâ fide purchaser as C is.

4. If part of an entire contract be void under the statute of frauds, the whole is void. When the sheriff has sold the debtor's land, and before he gives the deed, though the naked fee remains in the debtor, he has no interest that can be a con

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