« 이전계속 »
A mistake of fact, to excuse, must be mutual, and must be concerning a material fact. The fact that one party only is mistaken will not affect the contract. If, however, by reason of the misunderstanding of the parties their minds do not meet at all, then there can be no contract. For instance, if both parties are mistaken as to the subject matter of a sale, or its price, or its existence, there is no agreement. When parties make a written contract, and in so doing a mistake is made by the scrivener, courts will correct it. If a person of mature mind, able to read, signs a written agreement, he will be bound by it. If he is illiterate, it is his duty, if it is possible under the circumstances, to obtain knowledge of its contents. A contract made under mistake of fact can be avoided by either party, unless the mistake on one side is caused by fraud on the other, when only the one mistaken may avoid it. Money paid under a mistake of fact may be recovered.
Signing without reading.-In a late case the Supreme Court declares the law on this subject as follows: "A person who, in a business deal with another, signs a written instrument, is conclusively presumed, as to that other and all persons claiming under him through such instrument, to know the contents thereof, no fraud or deceit being used by such other or by any one for whose conduct he is responsible, reasonably calculated to and which does induce such person to become a party to such instrument without reading it.” “If a person, by the fraud of another, or of some one for whose conduct he is responsible, becomes a party to a written instrument without reading it or personally knowing the contents thereof, he is not precluded thereby from obtaining judicial redress in some form of action, for any injury which may be thereby caused to him through such instrument not being what he supposed it to be.” “Mere ignorance of the contents of a paper by one who becomes a party thereto under a mistake as to its import, will not enable him to avoid his act.” “The doctrine that a person is not inexcusably negligent in signing a paper in a business transaction with another, relying upon positive false statements on the part of that other, or of some one for whose conduct he is responsible, as to its import, applies only where the deceit is practiced at the time, and in the transaction, of such signing."
It should be noted that while a document obtained by
fraud, as above stated, may be avoided as between the parties, still it may be good as to an innocent third party. Thus, in a case decided by the court, a farmer had been defrauded into signing a negotiable note, which he had not read, being a foreigner. The farmer did not attempt to find out the contents of the note by having some one within reach to interpret it. The note was sold to an innocent party, and it was decided that the farmer had been negligent, and that the third party could recover the amount of the note from him.
Intoxication.-When a party enters into a contract while intoxicated to such an extent that he is unable to comprehend the subject of the contract and its consequences, his contract may be avoided by him on that ground. The party who enters into a contract with a drunken person, however, is bound by it.
Ratification. The effect of duress, fraud, mistake and intoxication is to make a contract voidable on the part of the person or persons affected. In the case of mutual mistake of fact it would be voidable at the option of both parties. It is a general principle of law that when one deals with another under disability, only the person under disability can complain. Contracts thus entered into are not void, but voidable at the election of the party under disability. If such a person sees fit to stand by a contract so made when he is in a proper state of mind, he is at liberty to do so. This is known as ratification. Any act done in pursuance to such a contract by the person at liberty to avoid it, or any recognition of it, will be held a ratification. One cannot affirm and disaffirm at the same time.
Signing and delivery.-A contract in writing is usually not complete until it is signed and delivered. Signing consists as much of an intention to adopt the contents of a writing as a contract as it does of the manual act of affixing the signature. A contract, although usually signed at the end, may be signed at any place, if it is the intention by the signature to adopt it as a contract. A signature may be made by mark, but one can only sign by mark when he is unable to write. Under the common law in force in this state, a man has a right to assume any name he wishes. A man may make a written contract his own without signing if he assents to its terms, or he may direct another to sign it for him, or he may make it his own by accepting a delivery of it.
A delivery of a written contract is necessary to give effectual assent. A document may be signed, but until it is properly delivered it is no contract. The delivery may be made to any person acting as agent for the other party to it. A man may deliver a signed agreement to another, to be delivered on certain conditions to a third. This condition may be oral. While on its face it appears to be complete, the contract would be void if delivered contrary to the oral condition.
PARTIES TO A CONTRACT.
General rule.-It is evident that it takes a least two parties to make a contract, for no one can make a contract with himself, nor can one sue himself. The parties must be of lawful capacity to contract, for without this there can be no assent. A person may contract in person or through another representing him, such as an agent, factor, broker, servant, attorney or trustee. He may act alone or with others, as in the case of partners, or where he contracts jointly or jointly and severally with others. The general rule is that all persons are competent to make contracts. Some exceptions are recognized to this rule by law, either for the protection of individuals or on grounds of public policy generally. The exceptions may be classified as legal and mental disabilities. The usual cases of legal disability are those of infants, married women and aliens; of mental disability, those of persons insane and spendthrifts.
Infants. - As to the effect of infancy on contracts, see the chapter on Infants.
Married Women.-See the chapter on Property Rights and Contracts of Married Women.
Aliens.-An alien is a citizen or subject of a foreign state. The statutes of the United States provide that "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the
United States. “Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.” All citizens of the United States who reside in the state of Wisconsin are citizens thereof, but a person may be a citizen of a state and not one of the United States. In Wisconsin a resident alien who declares his intention of becoming a citizen of the United States, pursuant to the act of Congress, becomes thereby a citizen of the state. Congress has a right to declare who shall be citizens of the United States, but each state may also declare what persons it will recognize as citizens, but such citizens, if not such under the laws of the United States, would possess the character of citizens only in the state recognizing them as such. The usual disabilities of aliens are that they cannot vote, hold political office, nor serve as jurors. The Constitution of Wisconsin provides that "no distinction shall ever be made by law between resident aliens and citizens in reference to the possession, enjoyment or descent of property.” An alien may contract and hold property in Wisconsin the same as a citizen with the following restriction provided by statute: "It shall be unlawful for any alien not a resident of this state, of some state or territory of the United States or of the District of Columbia, of for any corporation not created by or under the laws of the United States or of some state or territory thereof, to hereafter acquire, hold or own more than three hundred and twenty acres of land in this state or any interest therein except such as may be acquired by devise, inheritance or in good faith in the collection of debts by due process of law. No corporation or association more than twenty per centum of the stock of which is or may be owned by any person, corporation or association who are such non-resident aliens shall hereafter acquire, hold or own more than said quantity of land in this state or any interest in a greater quantity of land therein except such as may be acquired in good faith in the collection of debts by judicial proceedings. All lands acquired, held or owned in violation of the provisions hereof shall be forfeited to the state, and it shall be the duty of the attorney-general to enforce every such forfeiture."
Alien enemies. In this country an alien enemy is a citizen or subject of a foreign country at war with the United States. There is no difference in Wisconsin as to the prop
erty rights of an alien friend or alien enemy. It is a general rule that all contracts between alien enemies are void. This is based on the ground of public policy. All contracts in which time is not of the essence of the contract are suspended during hostilities, and are revived by their cessation. It is provided by statute in Wisconsin that the time of the continuance of war shall not be considered in computing the time limited for the commencement of actions. An alien enemy cannot sue in the courts of this country, but he may be sued. In case he is sued he is entitled to make a defense. The alien's right to sue on a contract made, before he became an alien enemy, is suspended until peace has been restored.
Insanity.-Insanity is a broad term, and denotes a derangement of mind. Persons unable to contract by reason of insanity are generally spoken of in the law as non compos mentis. Insanity may assume different forms, as idiocy, lunacy, imbecility, delerium tremens, kleptomania, dipsomania, somnambulism. A person may be insane on one subject and perfectly rational on others. Contracts made in regard to subjects on which he is sane are good. It is only in regard to subjects on which he is insane that he cannot contract. Our Supreme Court says: "Where capacity to do a certain act is in issue, the question is whether the alleged insane person had sufficient mental ability to know what he was doing and the nature of the act done...... The law recognizes the fact that there may be derangement of mind as to particular subjects and yet capacity to act on other subjects ... The proof which is necessary to invalidate a man's act by reason of his insanity must show inability to exercise reasonable judgment in regard to such act." The effect of contracts of those insane may be stated as follows: It is optional with one who makes a contract while insane to affirm or disaffirm it when he becomes sane; the other party is always bound. Before there has been an adjudication of insanity, a contract made by one with an insane person, if the former act in good faith, without cause to suspect insanity, and the latter has received a benefit thereunder so that by a disaffirmance of the contract the former cannot be put into his original position, is good against the insane person. An insane person is also bound by his contract for necessaries of life for himself or family. After an adjudication of insanity and the appointment of a guardian, all con