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   Chapter 50 THE ESSENTIALS OF A CONTRACT

Up To Date Business By Various Characters: 7378

Updated: 2017-12-06 00:03


In our last paper we told our readers that there must be a consideration in every contract. Sometimes this is illegal, and when it is the effect is the same as would be the giving of no consideration.

Suppose a robber having stolen money from a bank should afterward offer to return a certain portion if he is assured that he will not be arrested and compelled to change the style of his clothing and his place of residence for a season. He cannot endure the thought of missing a game of football; and as for striped clothes, though very comfortable, perhaps, he is sure they would not be becoming. Suppose this agreement to return a part should be put in writing, and after fulfilling it he should be sued by the bank for the remainder, and also prosecuted by the State for committing the theft. Very naturally he would present the writing in court to show that he had been discharged from the crime and also from the payment of any more money. But this writing would not clear him either from prosecution for the criminal offence or from liability to return the rest of the money. The bank would say that although he had returned a part, this was not a proper consideration for its agreement not to sue him; it had no right to make such an agreement, and consequently it could sue the robber for the remainder of the money just as though no agreement had ever been made.

Another illustration may be given. Suppose a person having made a bet and lost is unable to pay the money and gives his note for the amount. When the note becomes due the holder or owner sues him for the money. He defends, as he is unwilling to pay, by saying there was no legal consideration for the note. The money he promised to pay was only a wager, which the law regards as illegal. And this would be a good defence.

If the consideration is partly legal and partly illegal and can be divided then there can be a recovery of the legal part. Suppose a man owed another $1000 for borrowed money and also a wager for the same amount, and had given his note for $2000. When it became due if the owner sued him he could recover only the $1000 of borrowed money; this much and no more, for the reason that the consideration could be divided, the legal part from the illegal part. If no separation was possible then the note would be void and the owner could get nothing.

A person cannot recover for a voluntary service that he has rendered to another. A man would be very mean indeed who refused to pay another for any service rendered to him that was truly valuable; yet if he would not do so the man rendering the service could get nothing through the law. Suppose that a person when walking along a road should see some cattle astray in a corn-field having a good time with a farmer's corn. He knows they are in the field for business and in a short time, unless driven out, will get the best of nature and down her efforts in corn-raising. In the kindness of his heart he jumps over the fence and succeeds in driving them away. Suppose there happens to be among the number an unruly animal which is unwilling to leave such a tempting field of plunder and turns on him and gores him, and he is taken to a hospital. The farmer finds out who drove out the animals, and of his injury, but declines to give him any reward whatever. Can the man recover anything? The law says not, because the service is purely voluntary.

The question has often been asked whether a person who has made a contract to work for another and has broken it can recover for the worth of his service during the period he was employed. Some courts have said that a person thus breaking his contract cannot afterward recover anythi

ng, because he does not come into court with clean hands. Other courts have said that though he can recover nothing on the contract he has broken, he can nevertheless recover on a contract which the law implies in such a case for the worth of his service during the period of his employment. On the other hand, the employer can set off against his claim any injury that he may have sustained. Suppose he could show that the service was of no worth to him; that he was injured rather than benefited by what he did; then the employé could get nothing. The courts have been inclined of late years to uphold an employé in recovering whatever his service was worth-not, however, as done by virtue of an express or actual contract with the employer. He cannot sue on that; in other words, he cannot take advantage of his own wrong to recover anything from his employer, but he may recover on the contract which the law implies, as we have explained, as much as his service was worth to his employer, and no more.

Another element in a contract is the meeting of minds of both parties. Both must understand the matter in the same sense. For example, a person offered to sell another "good barley" for a stated price, and the other offered to buy "fine barley" at the price mentioned. There was no contract between these persons, because it was shown that "good barley" and "fine barley" were different things in the trade. This, therefore, is one of the essential elements of a contract-the meeting of the minds of the contracting parties. Whether they have assented or not is a question of fact, to be found out like any other question of fact.

Sometimes offers are made on time, and when they are several interesting questions may arise. Suppose A and B are negotiating for the sale and purchase of a piece of land. A says to B: "I will give you a week to think the matter over." Soon after parting A meets C, to whom he mentions his offer to B. C says: "I will give you a great deal more for the land and pay you now." "Very well," says A; "the land is yours." And he at once writes a letter to B saying that he has withdrawn his offer, as another person has offered him more for the land and that he has sold it to him. Now B might be very much surprised by this letter. Very likely he would think A was a hard man and perhaps a dishonest one. Perhaps he would go to a lawyer and ask him if he could compel A to sell the land to him if he accepted his offer within the time mentioned and paid to him the money. The lawyer would tell him-if he understood his business-that A had a perfect right to withdraw his offer, even though it was made on time. This would probably be brand-new knowledge to B, but he would know what to do on the next occasion.

Is this true in all cases? It certainly is of all offers made in that manner. How, then, can a person who makes an offer to another on time be compelled to regard it? The way is simple enough. The person to whom the offer is made should give something-a consideration-to A, who makes the offer, for the delay. Then he would be bound by it. But the courts would say to B, if nothing were given: "Why should A's offer bind him so long as he is to get no compensation or consideration for it?" And we shall see again and again in these papers this element of consideration is ever present, and must be to make transactions legal. So with respect to an offer on time-if the person to whom it is made is really desirous of having it continue, in order to find out whether he can raise the money to pay, or for some reason, he can make the offer binding by giving to the offerer a consideration for the specified time, whatever that may be.

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