ever in the case supposed as to goods, has been denied by some courts.

A difficulty sometimes arises where A, at the request of B, undertakes to do something for B, for which he is to be paid a certain price; and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties? This question arises most frequently in building contracts, in which there is usually some departure from the original undertaking. The general rules are these: If B assent to the alteration, it is the same thing as if it were a part of the original contract. He may assent expressly, by word or in writing; or constructively, by seeing the work, and approving it as it goes on, or being silent; for silence under such circumstances would generally be equivalent to an approval. But if the change be one which B had a right, either from the nature of the change, or the appearance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be inferred from either an express or tacit approval. Generally, as we have seen, if A does or makes what B did not order or request, B can refuse to accept it, and, if he refuses, will not then be held to pay for it. But if he accepts it, he must pay for it. This consequence results, however, only from a voluntary acceptance. For if A choose, without any request from B, to add something to B's house, or make some alteration in it, which being done cannot be undone or taken away without detriment to the house, B may hold it, and yet not be liable to pay for it; and A has no right to take it away, unless he can do so without inflicting any injury whatever on B. This rule would apply whether the addition or alteration were larger or smaller.

It is sometimes provided in building contracts that B shall pay for no alteration or addition, unless previously ordered by him in writing. But if there be such provision, B would be liable for any alteration or addition he ordered in any way, or voluntarily accepted after it was made, when he could have rejected it.

So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. The law would imply this agreement if the parties did not make it expressly.

CHAPTER VII.

BONDS.

A BARGAIN where both parties make promises, and come under obligations, each to the other, may be made without seal, and would then be called an Agreement. If made under seal, it would generally be in the form of, and bear the name of, an Indenture. If a promise by one only, is made in writing, without a seal, it is a simple promise; but if it be made with a seal, then it would generally be in the form of, and bear the name of, a. BOND.

The essentials of a bond are only that one party should acknowledge himself "held, bound, and obliged" unto another party, to pay to him a sum of money; and neither of the words "held," or "bound," or "obliged," are strictly necessary, although usual and proper: other words of the same meaning will have the same effect. In such a bond, the party bound is called the obligor, and the party to whom he is bound is called the obligee. The sum for which the obligor is bound is called the penal sum, or the penalty. Such a bond is simply an obligation to pay so much money. Examples of this are government, municipal and railroad bonds. But a bond is not often given by individuals merely for this purpose. It is usually intended to be, in fact, an obligation to do something else, on the penalty of paying so much money if it be not done. This something else may be anything whatever which the obligor may contract to do. All this is contained in an addition, which is written on the same paper immediately after the bond itself; that is, after the words. of obligation. And this is called the "Condition" of the bond. It begins with saying, This bond is on the condition following; and then recites the things which the obligor has undertaken to do; and then adds, that if all these things are fully done and performed, then the bond shall be void and of no effect, and otherwise shall remain in full force.

The meaning and effect of all this is, that if the obligor fails, in any respect, to do what the condition recites, then he is bound to pay the money he acknowledges himself, in the bond, bound to pay. But now the law comes in to mitigate the severity of

this contract. And whatever be the sum which the obligor acknowledges himself, in the bond, bound to pay, he is held by the courts to pay to the obligee only that amount which will be a complete indemnification to him for the damage he has sustained by the failure of the obligor to do what the condition recites.

For example: suppose A B makes a bond to C D, acknowledging himself bound to C D in the sum of ten thousand dollars. The condition recites that one E F has been hired by C D as his clerk, and that A B guarantees the good conduct of E F; and if E F does all his duty honestly and faithfully, then the bond is void, and otherwise remains in full force. Then suppose E F to cheat C D out of some money. A B is sued on the bond; C D cannot recover from him, in any event, more than the ten thousand dollars; and he will in fact recover from him only so much of this as will make good to C D all the loss he has sustained by E F's misconduct. As the obligee can recover from the obligor only actual compensation for what he loses, it is usual, in practice, to make the penal sum in the bond large enough to cover all the loss that can happen.

There need be no "consideration," alleged or asserted in the bond, or proved, because, in the language of the law, the seal is (or implies) a consideration.

The following forms are those of bonds frequently given; and it will be easy to frame from some one of them any bond that is wanted for other purposes.

(28.)

A Simple Bond, without Condition.

lawful

or

Know all Men by these Presents, That I — (the obligor) am held and firmly bound unto (the obligee) in the sum of money of the United States of America, to be paid to the said his certain attorney, executors, administrators, or assigns; to which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents.

(29.)

Bond for Payment of Money, with a Condition to That Effect, with Power of Attorney to Confess Judgment Annexed.

Know all Men by these Presents, That I,

am held and firmly lawful money of the United

or his certain attorney,

States of America, to be paid to the said executors, administrators, or assigns: to which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the

the year of our Lord one thousand nine hundred and

day of

in

The Condition of this Obligation is such, That if the above bounden his heirs, executors, administrators, or any of them shall and do well and truly pay, or cause to be paid, unto the above-named his certain attorney, executors, administrators, or assigns, the just sum of dollars, on or before the 19_, without any fraud or further delay, then the above obligation to be void, otherwise to be and remain in full force and virtue.

Το

of

Sealed and Delivered in the Presence of

day of

(Signatures.) (Seals.)

Esq., Atttorney of the Court of Common Pleas, at

in the State of

in the County of or to any other Attorney of the said Court, or of any other Court, there or elsewhere. Whereas, I (the obligor) in and by a certain obligation bearing even date herewith, do stand bound unto (the obligee) in the sum lawful money of the United States of America, conditioned for the payment of — 19_. These are to desire and authorize you, or any of you, to appear for me, my heirs, executors, or administrators, in the said court or elsewhere, in an action of debt, there or elsewhere brought, or to be brought, against me, or my heirs, executors, or administrators, at the suit of the said

on or before the

day of

(the obligee) executors, administrators, or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess judgment thereupon against me, or my heirs, executors, or administrators, for the sum of

dollars lawful money of the United States of America, debt, besides costs of suit, in such manner as to you shall seem meet: and for your, or any of your so doing, this shall be your sufficient warrant. And I do hereby for myself, and for my heirs, executors, and administrators, remise, release, and forever quitclaim unto the said (the obligee) or his certain

attorney, executors, administrators, and assigns, all and all manner of error and errors, misprisions, misentries, defects, and imperfections whatever, in the entering of the said judgment, or any process or proceedings thereon or thereto, or any wise touching or concerning the same. In Witness Whereof, I, the said

seal, the

hundred and

have hereunto set my hand and in the year of our Lord one thousand nine

day of

Sealed and Delivered in the Presence of

(Signatures.) (Seals.)

(30.)

Bond with Sureties for Conveyance of a Parcel of Land. Know all Men by these Presents, That we,

as principals, and

as sureties are holden and stand firmly bound unto
dollars, to the payment of which to the said

in the

or his

sum of executors, administrators, or assigns, we hereby jointly and severally bind ourselves, our heirs, executors, and administrators.

The Condition of this obligation is such that whereas the said obligors have agreed to sell and convey unto the said obligee a certain parcel of real estate situated and bounded as follows, namely: The same to be conveyed by a good and sufficient (warranty or other) deed of the said obligors, conveying a good and clear title to the same, free from all incumbrances.

And whereas, for such deed and conveyance it is agreed that the said obligee shall pay the sum of dollars, of which dollars are to be paid in cash upon the delivery of said deed, and the remainder by the note of the said obligee, bearing interest at

per cent. per annum, payable semi-annually, and secured by a power of sale mortgage in the usual form upon the said premises, such note to be the note)

(describe

Now, therefore, if the said obligors shall upon tender by the said obligee of the aforesaid cash, note and mortgage, at any time within from

this date, deliver unto the said obligee a good and sufficient deed as aforesaid, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.

In Witness Whereof, We hereunto set our hands and seals this

Bonds for conveyance of land should be acknowledged for record in the same manner as deeds.

obligee) or his executors, administrators, or assigns, to the payment whereof I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated the

day of

The Condition of this obligation is such that if I the said of the obligor) upon payment of

or before the

day of

A. D.

(name

dollars, and interest thereon, on 19, as agreed and promised by said

(name of the obligee) agreeably to his promissory note, dated 19—, and made payable as follows, to wit: (here set forth the note.