« 이전계속 »
tial evidence as by that which is direct. Proof of expectation on the one hand to render compensation and on the other to receive it, is competent evidence in connection with the facts and circumstances of the case to give color to them, tending to show that such expectation ripened into a mutual understanding and express contract.”
d) Services rendered under a contract not completed. When services are rendered under a contract, or materials furnished, but the contract cannot be completed by reason of the occurrence of an event beyond the control of a party, the law will imply a promise to pay for the services rendered, or materials furnished. For instance, if a farmhand agrees to work for a year and becomes sick before the expiration of the year so that he cannot fulfill his contract, he may recover for what services he has rendered. Or, if a man agreed to catch and deliver a quantity of fish during a certain time, and before he completed his contract a law were passed making it illegal to catch such fish, he could recover the value of the fish delivered. But if a contract is not fulfilled when there is no excuse for its nonperformance, no recovery can be had for part performance. A common case of this kind is the breach of a contrat of employment on the part of an employe, without cause, before the term of services has expired.
e) If a party for whom a contract is being performed prevents its performance, the other has a right to sue for the value of the work done, or he may sue under the contract for what he is entitled to under it as far as performed, and for the damages sustained by the breach in addition.
f) When no time for the performance of a contract is specified, it must be performed within a reasonable time. What is a reasonable time, depends on the circumstances of each case. Thus, a telegraph company accepting a message for delivery would ordinarily be obliged to deliver it within a few hours, whereas a contractor who agrees to erect a building would be entitled to several months, or even longer, considering the character of the structure.
There is also an implied contract that one who undertakes work has the usual skill to perform it, and will use reasonable diligence. A physician when he treats a patient, for example, impliedly agrees that he possesses the ordinary skill of physicians in his vicinity in the same line of practice,
and that he will use reasonable care in treating the patient.
g) There is an implied contract on the part of anyone who holds the money of another, without authority, to repay it. Thus, if one man pays money to another by mistake in any manner, the law implies a promise to repay it. The same would be true if the money were paid under duress, or were obtained by fraud.
h) If one wrongfully disposes of or destroys the property of another, there is an implied contract to pay its value. When one pays money to a third person at another's request, there is an implied promise on the part of the one requesting the payment, that he will repay the one making the payment.
An executed contract is one which has been performed.
An executory contract is one which has not been performed.
When two men trade watches, their contract is executed. When they agree to trade at a future time, it is executory. A contract may be executed on one side and executory on the other. For example, one may deliver his watch when the agreement for the trade is made, at once, while the other agrees to deliver his in the future. A contract cannot be said to be truly executed, however, until fulfilled on both sides. An executory contract may become executed by being performed.
ESSENTIAL ELEMENTS OF A CONTRACT.
It will be seen, by an examination of the definition of a contract, that every contract has four elements in it, and any agreement which does not have these elements is therefore not a contract. The only exception to this is in the case of contracts under seal, which require no consideration. Sometimes the law requires a further element, such as that the contract be in writing, as provided by the Statute of Frauds, or that the contract be witnessed, but as these requirements do not apply to every contract, they are spoken of in other chapters. The essential elements are as follows: 1) an agreement; 2) competent parties; 3) a consideration; 4) the thing to be done or omitted, usually called the subject matter. These will be discussed in the order stated.
It takes at least two parties to make a contract, and there can be no contract unless the parties thereto agree upon the same thing. In other words, there must be a meeting of the minds of the parties on the same subject matter. Every contract, with the exception of those implied, or constructive contracts created by law, spoken of in the last section, implies a proposition on one side and an acceptance of that proposition on the other. Many cases turn upon the question whether this assent to the proposition was entire and adequate. The assent must comprehend the whole of the proposition, it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter. Thus, an offer to sell a certain thing on certain terms may be met by the answer “I will take that thing on those terms”, or by any answer which means this, however expressed; and if the proposition is in the form of a question, as “'I will sell you my horse for $100, will you buy it?”, the acceptance may be conveyed by the word “Yes”. Unless an acceptance is absolute and unconditional of the offer made, no contract is made. There are cases in which the attempted acceptance departs from the proposition or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to the other party. In these cases there is no assent, and no contract. A party is at liberty to reject wholly or accept wholly, but he can do nothing else; if he answers proposing to accept under other conditions, this amounts to a rejection of the offer.
The party making the offer may renew it, but the party receiving the offer cannot accept with modifications and when these are rejected, reply again and accept unconditionally. The acceptance may vary in the slightest detail, yet there is no contract, because the minds of the parties do not meet on the same thing. This is well illustrated by two cases decided by the Supreme Court of Wisconsin. A person having an option to buy land at a certain price, accepted after a building thereon had burned, but demanding that the insurance money be applied on the purchase price. It was held that there was no contract. An offer made by an owner of land residing in another state by letter, to sell land for a
certain sum, payment to be made at specified times, place of paying and delivery of deed not being specified, was accepted by letter, but the acceptor added in his letter: "You may make out the deed, leaving the name of the grantee in blank and forward the same to a place in this state designated, or to your agent if you have one here, to be delivered to me on payment." It was decided that there was no contract, as the adding of the terms as to the delivery of the deed, etc. imposed a new condition, and hence there was no unqualified acceptance.
Mutuality. - All contracts must have the element of mutuality, by which is meant that there must be an obligation resting on both parties. “The general rule is that unless both parties are bound so that an action could be maintained by either against the other for a breach, neither will be bound.” This is well illustrated by the following decisions of the Supreme Court: "When a contract for the sale of land is not binding upon the owner of the land, because made by a person who assumed to act as his agent without any authority, it is not binding upon the other party. No subsequent act of the owner in ratification of the contract could make it obligatory upon the other party without his assent." "A principal is not bound by a contract made in his name by a person claiming to be his agent, unless such person had, at the time of making it, the power to bind him and did bind him; nor can such principal if he was not bound, afterwards affirm the contract so far as to bind the other party without his assent. A made an offer to furnish B crushed stone and curbing at certain prices, in such quantities as might be desired. Baccepted the offer. In an action wherein B attempted to hold A liable for non-delivery of stone, the court decided that there was no mutuality in the contract, since only one party was bound. Under the contract B was not obliged to order any stone whatever. In a recent case a saloonkeeper made a contract with an importer, whereby the latter agreed to sell him certain brands of beer, so long as he should thereafter continue to buy such beer from him. The saloonkeeper fitted up a place of business and the importer failed to furnish beer. In a suit for damages against the importer for failing to furnishing it, the Supreme Court says: “It is an elementary principle in the law of contract that, to be binding, they must be mutual. There is no claim that the defendant was
to furnish all the beer required by the plaintiff's trade, or that he should do so for any specified period, or that plaintiff was to deal in defendant's beers exclusively, or that the defendant should sell excusively to plaintiff. The most important missing element in the contract is that the plaintiff does not promise to do anything. He may or may not continue to buy beer from the defendant, as he pleases. He is not bound to continue in business for a day, and is not bound by any promise to buy a single keg of beer. The contract was as clearly onesided as it possibly could have been made. It had the effect merely to bind the plaintiff to receive the pay for such beer as he might from time to time order from the defendant. Further than this, it had no binding force, for want of mutuality."
The offer.-An offer does not bind until it is accepted, and may be withdrawn any time before acceptance, and if an offer is once refused, it cannot thereafter be accepted. An unaccepted offer cannot constitute a contract. Thus, a subscription paper, by which the signers obligate themselves to take stock in a corporation, does not bind them until it is accepted by the corporation. A man offered a position to another by correspondence. The one to whom the offer was made did not notify the one making it of his acceptance, but determined to accept it and started on his way to the city where the other lived. He reached there a month later. It was decided that as he had not notified the other of the acceptance of his offer, there was no contract. “When a contract provides that it shall not be binding upon either or any of the parties thereto until signed and executed by persons and corporations therein named, any part has an option to withdraw before the contract has been signed and executed by all of such persons and corporations, and may effectively exercise such option by notifying all parties interested of his refusal to be bound by the contract, or to participate further in the scheme contemplated thereby.” The party making an offer has a right to impose any conditions and terms he sees fit. He may limit the time and manner of acceptance, for instance.
An unaccepted offer should not be confounded with what is technically know as an option. An option is an agreement whereby one party, for a consideration, binds himself to comply with the terms of some agreement, at the election