in part and illegal in part will be enforced as to the legal part if it can be separated from the illegal; if not, the whole contract is void. Voidable contracts are those which are procured by fraud or duress, or those entered into by persons under disability, such as infants and insane persons. Such contracts may be ratified, but contracts which are absolutely void are incapable of ratification.

§ 187. Contracts are executory or executed.—A contract to do a thing, followed by immediate performance, is executed; a contract to do something in the future where instant performance is not expected is executory. If one fails to perform an executory contract, performance may be enforced or damages given to the injured party for non-performance.

§ 188. Written contracts.-A written contract is an instrument fixing the rights and obligations of the contracting parties, concerning the subject-matter of the contract, and signed by them or one of them. It is sufficient if it be signed by one and accepted by the other. The party accepting a written agreement is bound by all its stipulations for and against him. As where a deed is delivered by the grantor and accepted by the grantee, the grantor does not sign the deed, but if it contains covenants which are to be performed by him, as for the payment of an incumbrance or the like, he is bound to perform the covenant as much as if he had signed the deed. written contract may consist of letters or telegrams. It may be written upon several papers at the same time, and if these several papers relate to the subjectmatter of the agreement they will be taken as a part of it.

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§ 189. Parol contracts.-A parol contract is where the agreement of the parties rests in spoken words only, or partly in writing and partly in spoken words. Parol contracts are valid and enforceable, except where by express law they are required to be in writing. By the rules of common law all contracts not under seal were called simple or parol contracts. But the rules which gave a higher dignity to contracts under seal have been virtually abrogated in this country by usage and by statutes. In most of the states the use of seals is now regulated by statute, the effect of which has been to modify or entirely change the common law usage in regard to seals. In some instances the distinction between sealed and unsealed instruments is done away with in terms, while in others the same result is accomplished by abolishing the use of seals except by public officials and corporations.

§ 190. Express contracts.-An express contract is one in which the meaning is stated in plain words, which are mutually understood by the parties in the same way.

§ 191. Meeting of minds.—In all express contracts, the agreement of the minds of the parties as to the subject-matter of the contract and as to the obligations assumed by each party must appear. If there is a misunderstanding as to the thing contracted for, or as to the time or place of performance, as to the price to be paid, or any other essential matter, there is no agreement, and consequently no binding contract. As if A, having in mind one of several horses in his field, says to B, who has in mind another horse in the same field, "I will sell you the horse. for one hundred dollars," and B says, "I will take it

at that price," here is no contract, for the minds of the parties have not met and agreed upon the same thing. So, if A says, I will sell an article, naming it, for one hundred and sixty-five dollars, and B, supposing that the sum named was only sixty-five dollars, agrees to pay it, it is plain that there is no agreement. These are simple forms of illustration, and they could be multiplied indefinitely.

§ 192. Time of contract.-Questions arise as to the particular time when the agreement is to be considered as closed, and the rights and obligations of the parties fixed. The general rule is that whenever the minds of the parties meet in agreement as to all the particulars of the transaction, the contract is made and binding. Where the contract consists of correspondence, it is considered as closed and binding whenever there is an offer on the one hand and an acceptance on the other. The acceptance must be without qualification, for if it is qualified or conditional, it is not final, and the matter still rests in negotiation. Where a letter containing an offer is transmitted by mail, and an answer accepting the offer in its precise terms is mailed also, the contract is closed and the rights of the parties fixed, at the instant the letter of acceptance, properly addressed, is deposited in the post-office. There has been much controversy on this point, some writers maintaining that the contract is not complete until the letter of acceptance has been received by the person who made the offer, but the weight of authority supports the view already expressed.

§ 193. Implied contracts.-An implied contract is one in which the conduct of the parties is such that

the jury may infer that the parties did intend to make a contract. The customer who takes up a merchant's goods, the master who takes a servant into his employ, in the one case there is an implied contract on the part of the customer to pay to the merchant the reasonable value of the goods, and in the other case there is an implied contract on the part of the employer to pay the employe the reasonable value of his labor. If parties have an accounting, and have agreed upon the balance due, there is an implied contract that the debtor will pay the balance. So there is an implied contract by the borrower to repay borrowed money.

There is a class of cases in which the law implies a contract obligation, regardless of the intention of the parties; as where one procures the goods or money of another, through fraud or mistake, the law implies an obligation to return or pay. These are sometimes called quasi-contracts.

§ 194. Contracts of record.-Where a judgment is entered in a court of record, it is called a contract of record, on the theory that every man agrees to obey the laws of the land, and where he is adjudged to owe a sum of money by the law there is an implied promise on his part to pay it. Where a man appears in court, and either on his own behalf or as surety for another, enters into a recognizance conditioned for the payment of a sum of money, in case of the failure of himself or his principal to appear in court at a time named, it is a contract of record. Infants may enter into recognizances which will be binding on them and their estates.

CHAPTER XVI.

PARTIES TO CONTRACTS.

§ 195. Who may make valid contracts.-Generally all persons and corporations not disqualified by law. And even infants and lunatics, who are under a general disability to assume obligations that may be enforced against them, may become bound to pay for the necessaries of life which may be supplied for their support. Sovereign states may enter contracts, but such contracts can not be enforced against them by suit without their consent. Soon after the adoption of the constitution of the United States it was decided that a private citizen could sue a state without its consent, but the constitution was amended so as to prohibit the bringing of such suits. Where one state of the Union has a claim against another state, she may sue upon it in the Supreme Court of the United States, which has exclusive jurisdiction of such controversies. Foreign states may make contracts and enforce them by suit in our courts. So aliens residing or trading here have the same right to make contracts and sue upon them as citizens, unless the right is restricted by treaty stipulations between their government and ours; in some states, however, they may not acquire title to land. An alien enemy, that is, a citizen of a nation with which we are at war, can make no contract