had owed his wife, now deceased, and he felt it should
go to the daughter, although there was no legal
obligation. The defense to this promise was want of
(2) In Baker v. Holt, 56 Wis. 100, defendant in
Connecticut wrote to plaintiff in Wisconsin, offering
to sell him certain land at a stated price payable at
a specified time, but said nothing about the place of
payment or delivery of the deed. Plaintiff replied
that he would take the land upon the terms men-
tioned, and added, " You may make out the deed,
leaving the name of the grantee blank, and forward
CASES ON CONTRACTS 53
the same to L. L. Mosher at Grand Rapids, Wiscon-
sin, or to your agent, if you have one here, to hand to
me on the payment of $200 and the delivery of the
necessary security." This action was brought upon
defendant's refusal to deliver deed as directed.
(3) Graves v. Johnson, 156 Mass. 211, was an
action for the price of intoxicating liquors, sold and
delivered by plaintiff in Massachusetts to a Maine
hotel keeper with a view of their being resold by
defendant in Maine, contrary to the laws of that state.
(4) Boston Ice Co. v. Potter, 123 Mass. 28, was an
action for the price of ice furnished to defendant
from April i, 1874, to April i, 1875. The defendant
was supplied with ice by plaintiff in 1873 and, be-
coming dissatisfied, terminated his contract and
made a new one with the Citizens Ice Company.
Just before April, 1874, this company sold out to
plaintiff. The court found that the defendant had
no notice of the sale.
(5) Jones v. Edwards, i Neb. 170, was an action
brought for damages because of alleged fraud in the
sale of a horse. Jones bought the horse when he had
a sweeny, stiffness in the neck, and other ailments.
He cut the cords of his neck and doctored him up.
Later, Edwards came and wanted to buy a farm team.
Jones said he had what he wanted, and showed him
this one and another horse, saying they were sound,
as far as he knew, but that he never warranted a
horse. He did not say a word as to the former ail-
54 CASES ON CONTRACTS
(6) Trustees v. Pratt, 93 111. 475, was an action
on a note given by one Pratt to the trustees of
a church as a subscription to enable them to
procure a bell. Pratt died before the bell was
(7) In Thwing v. Hall, 40 Minn. 184, plaintiff
made a contract to sell certain timber lands to de-
fendant, thinking they contained seven million feet
of fine lumber, defendant also believing there was
good lumber there. The facts were that, unknown
to either party, the land had been practically stripped
of good lumber. Defendant sent a man who mis-
took the location and reported good lumber.
(8) Bainbridge v. Firmstone, .8 A. & E. (Eng.)
743, was a case in which defendant obtained plain-
tiff's consent to let him weigh two boilers belonging
to plaintiff and promised to place them back in the
shape in which he found them. Defendant took
the boilers apart and weighed them and then refused
to put them together again, claiming there was no
consideration for his promise to put them back.
(9) In Dearborn v. Bowman, 3 Met. (Mass.) 155,
Bowman was nominated for senator. Plaintiff
rendered services and furnished literature to advance
defendant's cause, but without any solicitation on
defendant's part. After the election, defendant
gave plaintiff his note for $60 for such services, and
this action was brought on the note.
(10) Kyle v. Kavanaugh, 103 Mass. 356, was an
action to recover for the purchase price of land. It
CASES ON CONTRACTS 55
transpired that the defendant was negotiating for
one piece of land and the plaintiff was selling another.
(1) In the case of Sloan v. McElven y 56 Ga. 208,
Sloan & Co. sued McElven Bros., on a promissory
note given by them, the consideration for which was
the payment of a note against their father, who was
dead. Before his death the father had become insol-
vent and had gone through bankruptcy.
(2) In Eaton v. Avery, 83 N. Y. 31, defendant
made false representations to a mercantile agency
as to the financial responsibility of his firm which
asked credit of- plaintiff. Plaintiff went to the mer-
cantile agency and obtained the information given
by defendant, and relying on this, he delivered goods
to the firm on credit. This action was brought to
set aside the contract of sale and to recover the goods.
(3) In Flanagan v. Kilcome, 58 N. H. 443, de-
fendant promised to pay plaintiffs a certain sum if
they would drop a lawsuit which they had commenced
against her. This was done, but she did not pay the
agreed sum and suit was brought to recover it.
(4) Gibson v. Pelkie^j Mich. 380, was an action
for value of services on an agreement concerning a
judgment which plaintiff was to collect, retaining one
half for his remuneration. It transpired that no
such judgment existed.
56 CASES ON CONTRACTS
(5) In Summers v. Faughan, 35 Ind. 323, plaintiff
sold defendant an engine and machinery and took a
note for same. This action was to recover on the
note. Defendant claimed that after the sale the
plaintiff had warranted the machinery, whereas in
fact it was defective. Is the plaintiff liable on his
(6) In McBratney v. Chandler, 22 Kan. 692,
plaintiff sued for services in presenting the claim of
the Miami Indians at Washington. It was proved
that the services were those of a lobbyist, and de-
fendant contended they were illegal.
(7) Wolf or d v. Powers, 85 Ind. 294, was an action
on a note given in consideration of a parent naming
a child after the maker of the note.
(8) In Smith v. Hughes, L. R. 6 Q: B. (Eng.) 597,
plaintiff offered to sell defendant some oats, and
showed a sample. Defendant wrote the next day
that he would take them at the price named. He
afterwards refused to take the oats on the ground
that they were new oats and he thought he was buy-
ing old oats. Nothing had been said at the time of
the sale about their being old oats, but the price was
high for new oats.
(9) Smith v. JEtna Life Insurance Co., 49 N. Y.
211, was an action upon a life insurance policy.
The defense was fraud in obtaining it. In the
physician's examination it was asked whether in-
surer had a cough, occasional or habitual expectora-
tion, or difficulty in breathing. The answer was,
CASES ON CONTRACTS 57
" No cough ; walking fast upstairs or uphill pro-
duced difficulty in breathing." The facts were that
he had raised blood for two and one half years and
that he died three months after the policy was issued.
(10) Bainbrigge v. Browne, 18 Ch. Div. (Eng.)
1 88, was an action to set aside, for undue influence,
a deed given by children who were of age, to their
(1) In Anderson v. May, 50 Minn. 280, plaintiff
contracted in March to raise and deliver to defendant
591 bushels of beans. Plaintiff delivered only 152
bushels because most of his crop was destroyed by
early and unusual frost.
(2) Hall v. Perkins, 3 Wend. (N. Y.) 626, was a
case in which a simple-minded, ignorant young man
was induced by his uncle, a justice court lawyer, to
accept a conveyance of land worth $240 in satis-
faction of a claim of $500. The uncle was one of the
executors of the estate which owed plaintiff.
(3) In Morrill v. Nightingale, 93 Cal. 452, plain-
tiff procured several promissory notes to be executed
by defendant under coercion and intimidation,
caused by threats of arrest, and he also had a war-
rant of arrest issued by a justice of the peace, not
for the purpose of punishing defendant for a crime,
but to compel him to pay the money or execute the
58 CASES ON CONTRACTS
(4) Wood v. Steele, 6 Wall. (U. S.) 80, was an
action on a promissory note dated October n, 1858,
and made by Steele and Newson, payable to their
own order one year from date. It was indorsed by
them to Wood, the plaintiff. " September " had
been stricken out and " October " put in as the date.
The change was made after Steele had signed the
note as surety and without his knowledge or consent.
(5) In Wolf v. Marsh, 54 Cal. 228, Marsh prom-
ised in writing to pay Wolf a certain sum of money.
The note contained the following condition : " This
note is made with the express understanding that if
the coal mines in the Marsh Ranch yield no profit
to me this note is not to be paid and the obligation
herein expressed shall be null and void." There-
after, and before the mines had yielded anything,
defendant sold them.
(6) In Parrish v. Thurston, 87 Ind. 437, plaintiff
sold to defendant a buggy and harness and received
a promissory note signed " E. K. Parrish." There
was a man by that name living near Shelbyville, the
place where the sale was made, who was wealthy and
was known to both parties. The note was really
made by E. K. Parrish of Hamilton County, a man
entirely unknown to plaintiff. Plaintiff supposed
he was getting a note signed by the man from Shelby-
ville, and the defendant knew that plaintiff believed
this. As soon as the plaintiff learned the truth, he
tendered back the note and sought to rescind the
CASES ON CONTRACTS 59
(7) In Blaskower v. Steel, 23 Ore. 106, plaintiff,
between the years 1878 and 1885, sold to H a quan-
tity of cigars. On May 18, 1885, there was a credit
on the account. What was the effect on the various
items of the account beginning in 1878 ?
(8) Nolan v. Whitney, 88 N. Y. 648, was an action
to recover on a contract for building defendant a
house. The defense was nonperformance. The
court found that defendant had endeavored to live
up to the agreement and, acting in good faith,
had substantially performed his part. There were
some defects in plastering that could easily be reme-
(9) Bird v. Munroe, 66 Me. 337, was a case in
which a verbal contract was made. The contract
belonged to the class required by the Statute of
Frauds to be in writing. It was broken, and the
parties afterward entered into a written agreement
containing the terms of the oral contract. After
the writing was signed, an action was brought for
breach of the contract which occurred before the
written agreement was executed.
(10) Hurley v. Brown, 98 Mass. 545, was an action
to compel defendants to perform their part of the
following contract and to convey the land to plaintiff:
#50 LYNN, April 14, 1866.
Received of John and Michael Hurley the sum of fifty dol-
lars in part payment of a house and lot of land situated on
Amity Street, Lynn, Mass. The full amount is $1700. This
bargain is to be closed within ten days of the date hereof.
60 CASES ON CONTRACTS
This was signed by the parties. The defense
claimed that the writing was not sufficient, as there
were several houses and lots on the street. It was
shown that defendant owned no other house and lot
on the same street.
(1) Kent v. Kent, 62 N. Y. 560, was an action on
an oral contract whereby plaintiff agreed to work
upon K's farm and to receive his pay after K's death.
Plaintiff entered upon such employment, and K
died five years thereafter.
(2) In McCormick v. Drummett, 9 Neb. 384, Z, a
stepfather, gave D, his stepson, the use of his farm
during Z's lifetime in consideration of D's supporting
Z and his wife during their lives. Defense was non-
conformity with the requirements of the Statute of
(3) In Colly er v. Moulton, 9 R. I. 90, Moulton
and Bromley, copartners, entered into a contract
with plaintiff who agreed to build them a wire bend-
ing machine. Moulton and Bromley dissolved part-
nership and Moulton withdrew from the firm, after
which plaintiff agreed to release him from the agree-
ment and look to Bromley. Subsequently this
action was brought against Moulton on the original
(4) In Oddy v. James, 48 N. Y. 685, about the
CASES ON CONTRACTS 6 1
middle of March the parties thereto entered into an
oral agreement by which defendant employed
plaintiff to superintend his cement works for one
year from April i next. Plaintiff worked until
August 3, when defendant discharged him. Plaintiff
sued and defendant set up that the agreement was
void under the Statute of Frauds.
(5) In Woodberry v. Warner, 53 Ark. 488, Wood-
berry, the owner of a steamboat, employed Warner,
a pilot, at a salary of $720 per year, with the further
agreement that as soon as the net earnings of the
boat should amount to $8000 he should become owner
of a one-fourth interest. In about two years, before
the earnings amounted to $8000, Woodberry sold
(6) In Boston v. Farr, 148 Pa. St. 220, plaintiff,
a physician, brought suit to recover for services
rendered defendant's stepson. Defendant said to
plaintiff, " Go and get a surgeon and do all you can
for the boy ; I will see that you get your pay." Did
this case come within the Statute of Frauds ?
(7) In Owen v. Hall, 70 Md. 97, at the maturity
of a joint promissory note a joint renewal note was
given by three makers. After Hall had signed as
maker, the other two makers added the words "with
interest " to the note without Hall's knowledge
(8) Richardson v. Robbins, 124 Mass. 105, was a
case in which B agreed to give a mortgage to plaintiff,
and the defendant agreed orally to pay the plaintiff
62 CASES ON CONTRACTS
such portions of the mortgage and notes as B should
fail to pay.
(9) Windmuller v. Pope, 107 N. Y. 674, was an
action to recover damages for breach of contract.
The parties entered into a contract whereby plaintiff
sold to defendant 1200 tons of old iron to be delivered
at a certain time. Before the time expired defendant
notified plaintiff that he would neither receive nor
pay for any of the iron. Plaintiff thereupon sold
the iron elsewhere and brought this action.
(10) In Brown v. Foster, 113 Mass. 136, plaintiff
expressly agreed to make a suit of clothes for defend-
ant that would be satisfactory to him. The clothes
were made and delivered, but defendant declined to
accept them. Plaintiff proved that they could easily
be altered and made to fit.
(i i) In Smithwick v. Shepherd, 4 Jones (N. C.), 196,
Shepherd, who owed plaintiff for board, died. De-
fendant, his administrator, in a conversation' with
plaintiff stated that " he would see it paid/' or, " it
should be paid." Can plaintiff recover ?
36. PROPERTY IN GENERAL.
37. PERSONALTY AND REALTY DISTINGUISHED.
36. Property in General. - - There are two con-
ceptions of the term property. One is the popular
idea that material things are property; the other is
the legal idea that the ownership of the material
thing is the property interest in it. For our purposes
we may define property to be the control which may
be legally exercised over a thing having value, by a
party called the owner. Property may be acquired
in four ways : by taking possession of things free in
nature; by purchase ; by inheritance; and by finding,
in cases where no owner of the lost property is found.
One who shoots wild game becomes the owner of
such game by the first method of acquiring property.
He takes possession of that which was existing free
in nature. One who purchases the right to the use
of a thing secures a property interest by the second
method of acquisition. One who is given a thing is
said also to secure his property interest in the same
manner. When property rights are handed down
from one person to another by will, or according to
the laws of inheritance, the property is acquired by
the third method.
There are two distinct kinds of property, personal
and real. In connection with both realty and per-
sonalty there are two kinds of property interests,
absolute and special. The owner of property has an
absolute right in it. One who rents, borrows, or in
any other way comes into possession of property for
some particular use, has only a special property
interest. His rights may be exercised to the exclu-
sion of every one else except the owner, who must on
his part respect the special property rights of the
37. Personalty and Realty Distinguished. Real
property has been defined as land and its appurte-
nances. It is very difficult to define personalty, and
no better idea of this class of property can be ob-
tained than by considering as personal property all
things not included under the head of realty. Per-
sonal property has been defined as that which may be
moved from place to place. This definition is faulty
inasmuch as houses, fences, wind-mills, barns, and
even sod, earth, and stone may be moved. All these
things while appurtenant to the land are considered
realty, but when separated from the land may be
considered personal property. Land and all things
attached to it in a permanent way and intended for
use in connection with the land may safely be classi-
fied as realty, while those things which may and do
generally attend the person of the owner, and are
not intended for use in connection with land, may be
classified under the head of personalty.
38. Fixtures. There is a class of things known
as fixtures the exact nature of which varies according
to conditions. Fixtures include all those things
which are attached to realty to be used in connection
with it, but the permanency of which is left to be
determined by the conditions under which the prop-
erty is used. For example, A rents a room of B to
use as a store, The tenant A puts in counters, show-
cases, shelves, etc., to be used in carrying on his
particular business. While these things are attached
to the realty and used in connection with it, they
are more intimately associated with the particular
business gf the tenant and are called fixtures.
Whether they belong to the tenant as personal prop-
erty and can be removed by him, or whether tney
belong to the owner as permanent additions to the
realty, will depend upon the intention of the parties
in each case. From the definition, it is evident that
fixtures can be called neither real nor personal until
the conditions under which they are used are fully
As a general proposition it may be stated that
whether or not things used in connection with realty,
and known as fixtures, are a part of the realty, or
are personalty, depends upon the intention of the
parties in any given case. When the intention is
made clear by a written contract, there can be no
question as to the classification of the fixtures ; but
when, as is more often the case, the fixtures are added
to the realty without any definite contract between
the owner of the realty and the one making the .im-
provements, it becomes a difficult matter to deter-
mine what should become of the improvements so
made at the expiration of the relation existing be-
tween the two parties.
Formerly, the intention was determined very
largely by the manner in which the fixtures were
attached to the realty. It was arbitrarily held that
when shelves, counters, or any other kind of mercan-
tile fixtures were attached to the realty by the use of
nails, they were thereby made a part of the realty.
When such fixtures were attached by means of screws,
it was regularly held that they were considered per-
sonalty and would remain the property of the one
attaching them as against the claim of the owner of
the realty. At present there are three factors that
are taken into consideration in settling this question :
First, method of attachment ; second, relation be-
tween the parties ; third, the use to which the fix-
tures are put.
The method of attachment at the present time is
not conclusive as to the intention, but merely evi-
dence tending to show what was in the mind of the
one attaching the fixtures when the work was done.
For example, when the relation of the parties is that
of the landlord and tenant and the tenant attaches
the fixtures to the realty, it is ridiculous to suppose
that it was his intention to make a permanent im-
provement to the realty of his landlord, even though
the fixtures were nailed to the wall. The use that
is to be made of the fixtures further strengthens the
inference from the relation of the parties, that it is
the intention of the tenant to remove those fixtures
at the expiration of his lease.
When the relation between the parties is that of
mortgagor and mortgagee and the fixtures are at-
tached by the mortgagor, it is reasonably to be ex-
pected that he intended to make those fixtures a
permanent part of the realty and the mortgagee may
rightfully claim them as a part of the property on
which he holds his mortgage.
When the relation between the parties is that of
buyer and seller, it is not quite so clear what is the
intention of the seller as to fixtures used in connection
with the realty. As a general rule, it would be safe
to assume that he intended such fixtures to become
permanent parts of the realty. Conditions might
tend to overcome this inference. It should be stated
in this connection, that the purchaser of the realty
should be careful to require that his contract of sale
includes all those fixtures that may be easily removed
by the seller before delivery. This is the only safe
method to follow in buying realty where fixtures
The tenant must remove fixtures before the term
of his lease expires ; otherwise, he may be considered
a trespasser in attempting to remove them from
68 CASES ON FIXTURES
property over which he had ceased to have any
39. CASES ON FIXTURES
(1) InHinckleylron Co. v. Black, 70 Me. 473, plain-
tiffs entered into possession of a tract of land under a
contract with Black, the owner, for its purchase, and
erected large and substantial buildings with engines
and machinery for manufacturing an extract of
bark for tanning purposes. Plaintiffs failed to pay
for the land, so never acquired title. This action
was brought for the value of the improvements.
(2) Hendy v. Dinkerhoff, 57 Cal. 3, was an action
to recover possession of a steam engine and boiler.
One Lampson was in possession of land under a con-
tract to purchase from defendant, the contract pro-
viding that in case of failure to purchase, all tools
should belong to defendant. Plaintiff later leased an
engine and boiler to Lampson, and the agreement was
that if Lampson failed to pay, plaintiff might retake
them. The engine was built into the masonry so
that it could not be .removed without destroying the
masonry and the wall to which it was affixed.
(3) In McRea v. Central Bank, 66 N. Y. 489,
plaintiff as mortgagee claimed the machinery in a
building erected expressly for use as a twine factory.
The machinery was heavy and was fastened to the
floor by bolts, nails, and cleats and was attached to
CASES ON FIXTURES 69
the gearing. Most of the machinery could have been
removed without material injury to the building and
used elsewhere. It was proved that the machinery
was put in the building for permanent use.
(4) Snedeker v. Warring, 12 N. Y. 170, was a case
in which the owner of realty, after giving a mortgage,
placed on his ground in front of his house a statue of
Washington, made by himself, and weighing about
three tons. It was on a base three feet high which
rested upon a foundation built of mortar and stone.
It was not fastened to the base, nor the base to the
foundation. Did the mortgage cover the statue ?
(5) Rogers v. Crow, 40 Mo. 91, was a case where
the builders of a church left a recess in which an or-
gan was to be placed. The organ was required to
complete the design and finish of the building and
was attached to the floor and intended to be perma-
nent. Did the organ belong to the realty ?
(6) In Dostal v. McCaddon, 35 Iowa, 318, defend-
ant after his lease had expired entered upon plain-
tiff's premises to remove a vault and safe he had con-
structed, and this action was brought to restrain
him from removing them.
(7) In Smith v. Whitney, 147 Mass. 479, the
tenant's lease provided that he might erect buildings
for manufacturing purposes and remove them within
the limit of his lease. He erected a brick engine
house complete in itself. The engine and boiler
were on a solid foundation of masonry. Could the
tenant remove building, engine, and boiler ?
CONTRACTS FOR THE SALE OF PERSONAL
40. SALE, BARTER, AND BAILMENT.
41. CONTRACT TO SELL AND CONTRACT
OF BARGAIN AND SALE.
42. How MADE.
40. Sale, Barter, and Bailment. - Three impor-
tant contracts often made in reference to personal
property are contracts of bargain and sale, barter,
and bailment. A contract of bargain and sale is