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v. Ross


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284 V.




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contracting parties; and is entered into either verbally, that is, by word of mouth only, or in writing. When reduced into writing, it is either subscribed with the hands and seals of both the contracting parties, or merely with one or both of their signatures. Such contracts or agreements as are reduced into writing under hand and seal, are technically called deeds or specialties; and those which are merely verbal, or in writing not under seal, are denominated simple contracts, or contracts by parol: for it is said, (a) that “ by the law of England all contracts are distinguished into agreements by specialty and agreements by parol.” A promise is in the nature of a verbal covenant, and is either express or implied. The present work will treat only of agreements not under seal; for in trade and commerce, as well as in the ordinary transactions of business between individuals, contracts and agreements are most commonly entered into either by word of mouth, or in writing with their signatures merely. Contracts and agreements of this description, however, are oftentimes expressed in such vague and uncertain terms as to render it extremely difficult to determine the real meaning and intention of the parties; and it not unfrequently happens that questions arise either upon the legality of the subject matter of the contract or promise; the competency of the parties to contract; or the extent of their respective liabilities. When these dif(a) Per Ld. Ch. B. Skynner, 7 Term Rep. 350. n. a.


ficulties occur, they too frequently give birth to disputes and differences between the parties, and commonly terminate in an action at law, which is technically called an action of assumpsit, and is prosecuted either for the recovery of a fixed and ascertained sum of money, or for uncertain and unliquidated damages for the non-performance of the contract or promise; and these damages can only be reduced to a certainty by the verdict of a jury.

The species of contract proposed for consideration is defined in our law books, to be a bargain or agreement voluntarily made, upon a good consideration, between two or more persons capable of contracting, to do or forbear to do some lawful act; as if a man sells or exchanges cattle or goods for money or any other commodity, or agrees, in consideration of a sum' of money, to make a lease of lands, or forbear to prosecute a legal claim, &c. And these are valid contracts, because there is, what lawyers term quid pro quo, or one thing for another. But, if a man without any other consideration than mere good will, or natural affection, make a voluntary promise to give to another a sum of money, as for instance, 201., and that he will be his debtor for that sum; this is no contract, but a mere naked promise or nudum pactum : for, however a man may or may not be bound to perform such a promise in honour or conscience, which the municipal laws of this country do not take upon them to decide, certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for: and therefore our law has adopted the maxim of the civil law that, ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the agreement or promise from being classed under this rule; and therefore, in the instance put, if any thing, however trifling, were done, or to be done or given for the 201., it would be a valid contract, and binding upon the parties. (6) And it is is observed, (c) that every contract and agreement ought to be so certain and complete that each party may have an action or other remedy upon it; and for this purpose six things appear necessary to concur; 1. A person able to contract; 2. A person capable to be contracted with; 3. A thing to be contracted for; 4. A good and sufficient consideration or quid pro quo; 5. Clear and explicit words to express the contract or agreement; 6. The assent of both the contracting parties. (d) So, every contract should be obligatory on both the contracting parties, or both should be at liberty to recede therefrom. (e) But to an agreement or contract there is no prescribed form of words, but any words which show the assent of the parties are sufficient. (f)

A contract or agreement conveys an interest either in possession, or

(6) Termes de Ley, tit. Contract. Pl. Com. 302. 2 Bl. Com. 445.

(c) Pl. Com. 5.

(d) Vide Pl. Com. 164. Co. Lit. 35.(6)
(e) 3 Term. Rep. 653.
() 2 BI, Com.. 443.

in action; as if A. agrees to change horses with B., and they do it immediately; or if goods are sold and delivered and paid for at one time; here the possession and the right are transferred together; and such contract or agreement being executed and complete, is commonly termed an erecuted contract. But where A. for a valuable consideration contracts with B. to pay him 1001. at a day to come; in this case, though A. thereby transfers a property or interest in such sum to B., yet such property or interest is not in possession, but in action merely, and recoverable by suit at law; and the contract not being performed is therefore usually denominated an executory contract. (g)


Contracts and agreements without seal are either expressed or implied. Express contracts are where the terms of the bargain, agreement, or promise, are openly uttered and expressed by the contracting parties themselves. The subject matter of this class of contracts relates either to the person or property of the contractors, and may

be either to do or forbear to do a particular act ; as, to pay money on the sale or exchange of cattle or goods; to pay rent for the use and occupation of lands or houses ; to pay money on particular mercantile securities or agreements ; to pay the debt of a third person; to pay money won or lost at play ; to perform works; to accept, deliver, or take back goods, &c.; to accept, transfer, or replace stock; to let or take lands or houses ; to warrant the title to lands; to warrant the soundness or quality of cattle or goods; to indemnify; to marry; to forbear to sue; not to trade within a particular distance, &c. And these contracts or promises ought to be certain and explicit ; but certainty to a common intent is sufficient :(h) as, if a man promises another, in consideration that he will assign to him a certain term, to pay him 101., this is a good sumpsit, though the time of the assignment and the payment be not appointed; for the 101. shall be paid in a convenient or reasonable time after the assignment, which also must be made within a reasonable time after the agreement. (c) Or, if A. be indebted to B. for certain things to him sold, and C. comes to B. and, for a good consideration, promises him that if A. should not pay him the money he will pay it for him; an action upon the case lies for B. against C. upon this promise if A. does not pay the money within a convenient or reasonable time; for so shall the promise be taken, viz. that if A. does not pay it in a convenient time, that then C. will pay it for him. (k)


(8) Pl. Com. 140.

(1) Com. Dig. tit. Action of Assumpsit, A. 3. 4.

(i) i Rol. Abr. 14. 1. 50.
(k) i Rol. Abr. 15. 1. 5.

So, where A., in consideration that B. would marry his daughter, promised to give with her a child's part, and that at the time of his death he would give to her as much as to any of his children, except his eldest son; this was holden to be a good promise; for though a child's part is in itself altogether uncertain, yet, it being shown what the rest of the children had, except the eldest, it is then reduced to a sufficient certainty. (2) So, a promise to give a bond for 401., without saying in what penalty, is good; for it shall be intended double the sum. (m)

But, where the plaintiff declared that, whereas there was a communication between him and the defendant concerning the bark of certain wood, and that thereupon it was agreed, that the defendant should give to the plaintiff two shillings per seam for all the bark of such wood as the plaintiff should cut; and that the defendant assumed and promised to have ready upon a certain day articles in writing purporting that agreement, and an obligation for performance thereof, &c., the declaration was holden not to be good, because it was not said in what sum the obligation was to be, and a certain sum could not be intended, because the number of seams were altogether uncertain. (n) No express contract or agreement can be raised from a mere casual speaking or declaration in discourse; as, if there be discourse between the father of A. and B. in relation to a marriage between A. and the daughter of B.; and B. in that discourse declares and publishes to the father of A. that he would give to him who should marry his daughter with his consent 100l., and A. after this declaration marries the daughter of B. with his consent; yet it was holden, that this declaration and publication of B. shall raise no promise upon which an action of assumpsit may be brought ; for these general words do not include any promise, and the agreement must be complete upon which an express assumpsit lies. (0)


Implied contracts or promises are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if a person is employed by another to do any business for him, or perform any work, and nothing is agreed upon as to the price of his labour, the law implies that the employer undertook or contracted to pay the person so employed as much as he reasonably deserves for his labour. So, where a man orders goods of a tradesman without any agreement of price, the law concludes that the buyer contracted to pay to the seller their real value. (p) And from hence it

(1) Poph. 148. 2 Rol. Rep. 104. (0) 1 Rol. Abr. 6. l. 40. Com. Dig. tit. (m) i Lev. 88.

Action of Assumpsit. F.2. (r) i Sid. 270.

(p) 2 Bl. Com. 443.

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