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OF THE CONTRACT OF SALE..
In entering upon so extensive and so complicated a field of inquiry as that concerning contracts, we must necessarily confine our attention to a general outline of the subject; and endeavour to collect and arrange, in simple and perspicuous order, those great fundamental principles which govern the doctrine of contracts, and pervade them under all their modifications and variety."
I. Of the different kinds of contracts.
An executory contract, is an agreement upon sufficient consideration, to do or not to a particular thing." The agreement is either under seal, or not under seal If under seal, it is denominated a specialty, and if not under seal, an agreement by parol; and the latter includes equally verbal and written contracts not under seal. The agreement conveys an interest either in possession, or in action. If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time, and for
a 2 Blacks. Com. 442. The definition of a contract in the English law, is distinguished for its neatness and precision. The definition in the Napoleon Code, No 1101, is more diffuse; “a contract,” says that code, "is an agreement, by which one or more persons bind themselves to one or more others, to give, to do, or not to do, some thing." This definition is essentially the same with that in Pothier, Traité des Ob'ig. No. 3. Ballard v. Walker, 3 6 Rann ▼. Hughes, 7 Term Rep. 350. nate. Johns. Cas. 60.
a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely. There are also express and implied contracts. The former exist when the parties contract th express words, or by writing; and the latter are those contracts which the law raises or presumes by reason of some value or service rendered, and because common justice requires it.
A contract valid by the law of the place where it is made, is valid every where jure gentium, and on that broad foundation all contracts were introduced. If it were -otherwise, the citizens of one nation could not contract, or carry on commerce in the territories of another. The necessities of commerce require, that acts valid where made, should be recognised in other countries, provided they be not contrary to the independence of nations, and do not proceed from the public power.b
II. Of the consideration.
It is essential to the validity of a contract, that it be made by parties competent to contract, and be founded on à sufficient consideration. There must be something given in exchange, something that is mutual, or something which is the inducement to the contract; and it must be a thing which is lawful, and competent in value to sustain the assumption. A contract without a consideration is a nudum pactum, and not binding; and this maximof the common law was taken from the civil law, in which the doctrine of consideration is treated with an air of scholastic subtlety. Whether the agreement
a Inst. 1. 2. 2. ex hoc jure gentium, omnes pene contractus introducti
b This principle of public law, says Toullier. Droit Civil, tome 10. 117. is well explained ard enforced by M. Bayard, in the Nouvelle Collection de Jurisprudence, tome 9. p. 759. and which he undertook in conjunction with M. Camus.
c Dig. 19. 5. 5. Sir William Blackstone, in his Commentaries, vol. ii. 444. has borrowed and explained the distinctions in the Pandects
be verbal, or in writing, it is still a nude pact, and will not support an action if a consideration be wanting. This was finally settled in England in the House of Lords in Rann v. Hughes," and the rule has been adopted, and probably prevails extensively in this country. The rule, that a consideration is necessary to the validity of a contract, applies to all contracts and agreements not under seal, with the exception of bills of exchange, and negotiable notes, after they have been negotiated and passed into. the hands of an innocent endorsee. The immediate parties to a bill or note, equally with parties to other contracts, are affected by the want of consideration, and it is only as to third persons, who come to the possession of the paper in the usual course of trade, and for a fair and valuable consideration, without notice of the original defect, that the want of a consideration cannot be alleged. The rule, with this attending qualification, is well settled in English and American law, and pervades the numerous cases with which the books abound.
A valuable consideration is one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time, and in that case the one promise is a good consideration for the other. If the consideration be wholly past and executed before the promise be made, it is not sufficient unless the consideration arose at the instance or request of the
upon the four species of contracts, of do ut des, do ut facias, facio ut des, and facio ut facias.
a 7 Term Rep. 350 note. 7 Bro. P. C. 550. S. C.
Burnet v. Bisco, 4 Johns. Rep. 235. Thatcher v. Dinsmorc, 5 Mass. Rep. 301, 302. Homer v. Hollenbeck, 2 Day's Rep. 22.
c Bay v. Coddington, 5 Johns Ch. Rep. 54.
d Jones v. Ashburnham, 4 East, 455. Lent v. Padelford, 10 Mass. Rep. 936.
party promising; and that request must have been expressly made, or necessarily implied, from the moral obligation under which the party was placed; and the consideration must have been beneficial to the one party, or onerous to the other." Though a promise to do a thing be merely gratuitous, and not binding, yet, if the person promising enters upon the execution of the business, and does it negligently, or amiss, so as to produce injury to the other party, an action will lie for this misfeasance. The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy, or good morals. Ex turpi contractu actio non oritur; and no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. The reports in every period of the English jurisprudence, abound with cases of contracts held illegal on account of the illegality of the consideration, and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration contra bonos mores, or one against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. The courts of justice will allow the objection, that the consideration of the contract was immoral or illegal, to be made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy. A particeps criminis has been held to be entitled in equity, on his own application, to relief against his own contract, when the contract was illegal, or against the policy of the law, and relief became ne
a Livingston v. Rogers, 1 Caines' Rep. 584. Comstock v. Smith, 7 Johns Rep. 87. Hicks v. Burhans, 10 Johns. Rep. 243.
b Coggs v. Bernard, 2 Lord Raym. 909.
e Filz Abr. tit. Obligation, pl. 13.
d Holman v. Johnsou, Cowp. 343. Mackey v. Brownfield, 13 Serg. & Rawle, 241,242. Griswold v. Waddington, 16 Johns. Kep. 486.
cessary to prevent injury to others. It was no objection, that the plaintiff himself was a party to the illegal transactions." I shall not enter into more particular details on this head, but proceed at once to an examination of the leading doctrines of contracts for the sale of personal property.
III. Of the subject matter of the contract.
A sale is a transfer of chattels from one person to another for a valuable consideration, and three things are requisite to its validity, viz. the thing sold, which is the object of the contract, the price, and the consent of the contracting parties.b
The thing sold must have an actual or potential exis tence to render the contract valid. If A. sells his horse to B., and it turns out that the horse was dead at the time, though the fact was unknown to the parties, the contract is necessarily void. So, if A., at New-York, sells to B. his house and lot in Albany, and the house should happen to have been destroyed by fire at the time, and the parties equally ignorant of the fact, the foundation of the contract fails, provided the house and not the ground on which it stood, was the essential inducement to the purchase. The civil law comes to the same conclusion on this point. But if the house was only destroyed in part, then if it was destroyed to the value of only half or less, the opinion stated in the civil law is, that the sale would remain good,
a Eastbrook v. Scott, 3 Vesey, 456. St. John v. St. John, 11 Vese 526. Jackman v. Mitchell, 13 Vesey, 581. The cases on the subject of considerations are well collected and stated in Comyn's Dig. tit. Action upon the Case upon Assumpsit, B. and F. 5, 6, 7, 8.; and the re cent edition of Mr. Day is enriched with a view of the American cases. They may also be seen digested in Comyn on Contracts, vol. i. part. 1. ch. 2. and by Sir Wm. D. Evans in his Appendix, No. 2. to his Pothier on Obligations.
b Pothier's Trailé du Contrat de Vente, n. 3. c Dig. 18. 1. 57.