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(applied to contract of suretyship where "collateral" was given).

As to construction of building contracts, see 5 L. 270; 10 L.
826.

As to construction of contracts in general, see 1 L. 655; 3 L.
859; 12 L. 375.

As to construction of contracts of guaranty, see Kerr's Cyc.
C. C. §§ 2787 et seq. and notes.

As to construction of life insurance policies, see Kerr's Cyc.
C. C. §§ 2527 et seq. and notes.

As to construction of mortgages, see Kerr's Cyc. C. C. §§ 2920
et seq. and notes.

As to entirety of contracts, see 54 A. R. 624.

As to entirety of contracts and when complete performance
necessary, see 59 A. S. 277.

As to entirety of contracts for services or other work, see
38 A. R. 208.

As to forfeitures, see Kerr's Cyc. C. C. § 1643 and note.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

Kerr's C. C— 29 897



§§ 1637-1639



CIVIL CDDE. [Div.III.Pt.II.



As to parol evidence to prove intention, see Kerr's Cyc. C. C.
P. §§ 1855 et seq. and notes.

As to time being of essence of contract, see Kerr's Cyc. C. C.
§ 1657 and note.

§ 1637. INTENTION OF PARTIES, HOW ASCERTAINED.

For the purpose of ascertaining the intention of the parties
to a contract, if otherwise doubtful, the rules given in this
chapter are to be applied.

rii.siory: Enacted March 21, 1872.

141 C. 101, 102. 99 A. S. 33, 74 P. 699 (applied).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to parol evidence vsrith respect to writings, see Kerr's Cyc.
C. C. P. §§ 1855, 1856 and notes.

§1638. INTENTION TO BE ASCERTAINED FROM LAN-
GUAGE. The language of a contract is to govern its inter-
pretation, if the language is clear and explicit, and does not
involve an absurdity.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

44 P. 662 (applied); 123 C. 97, 100, 55 P. 788 (applied); 141 C.
221; 228, 74 P. 754 (applied); 141 C. 728, 734, 99 A. S. 98, 75 P.
310 (cited, dis. op.); 3 C. A. 14, 21, 84 P. 220 (applied to private
contract for grading).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1639. INTERPRETATION OF WRITTEN CONTRACTS.

When a contract is reduced to writing, the intention of the
parties is to be ascertained from the writing alone, if pos-
sible; subject, however, to the other provisions of this title.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

62 C. 623, 631 (cited); 31 P. 367, 369 (applied); 141 C. 221, 228.
74 P. 754 (applied); 141 C. 728, 734, 99 A. S. 98, 75 P. 310 (cited);
146 C. 690, 694, 81 P. 25 (applied); 3 C. A. 14, 21, 84 P. 220
(applied to private contract for grading); 3 C. A. 115, 120, 84
P. 435 (applied).

898



rpj^. jii -j INTERPRETATION. §§ 1640-1642

As to many miscellaneous matters as to contracts, see note

§ 1549, ante. ,

As to parol evidence in construing writings, see Kerr s Cyc.
C. C. P. §§ 1855 et seq. and notes appended thereto.

As to when parol evidence is admissible to aid in construc-
tion of contracts, see 5 A. R. 241.

§ 1640. WRITING, WHEN DISREGARDED. When through
fraud, mistake, or accident, a written contract fails to express
the real intention of the parties, such intention is to be
regarded, and the erroneous parts of the writing disre-
garded.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

62 C 623, 631 (cited); 107 C. 348, 355, 356, 40 P. 534 (applied);
137 C. 71, 75. 69 P. 844 (applied); 149 C. 122, 126, 127, 84 P.
835 (applied to written contract for exchange of lands).

As to disregarding writing, see Kerr's Cyc. C. C. P. § 1856 and

note.

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.

§1641. EFFECT TO BE GIVEN TO EVERY PART OF
CONTRACT. The whole of a contract is to be taken together,
so as to give effect to every part, if reasonably practicable,
each clause helping to interpret the other.

History: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 11 pars, annotation.

62 C. 623, 631, 638 (applied); 81 C. 528, 532 (cited). 533 (ap-
plied) 22 P. 920, 922; 104 C. 298, 300, 37 P. 1049 (applied); 131 C.
481, 484, 63 P. 724 (applied); 149 C. 178, 189, 86 P. 603 (applied
to deed); 150 C. 39, 45, 87 P. 1097 (applied to deed).

As to many miscellaneous matters as to contracts, see note

§ 1549, ante. _

As to repugnancies and inconsistencies, see Kerr's Cyc. C. C.

§§ 1652, 1653 and notes.

§1642. SEVERAL CONTRACTS, WHEN TAKEN TO-
GETHER. Several contracts relating to the same matters,
between the same parties, and made as parts of substan-
tially one transaction, are to be taken together.

History: Enacted March 21, 1872.

899



§ 1643 CIVIL CODE. [Div.III.Pt.II.

See Kerr's Cyc. C. C. for 23 pars, annotation.

62 C. 623, 633 (applied); 84 C. 185, 189, 23 P. 1114, 1115 (ap-
plied); 25 P. 753, 756 (applied — note and mortgage to read
together as one contract when); 58 P. 1048 (cited), 126 C. 549,
550 (citation of section omitted); 131 C. 481, 484, 63 P. 724
(applied); 133 C. 681, 683, 65 P. 1110 (applied); 137 C. 95, 100,
69 P. 836, 1013 (applied); 142 C. 142, 144, 75 P. 785 (applied);
147 C. 115, 118, 81 P. 416, 109 A. S. 114 (checks and written agree-
ments as one transaction); 149 C. 178, 189, 86 P. 603 (different
instrum^rts must be construed together when); 3 C. A. 294,
297, 298, 85 P. 134 (notes and auxiliary agreements to be viewed
as one contract); 3 C. A. 591, 594, 86 P. 810 (applied to several
writings); 3 C. A. 696, 700, 86 P. 981 (applied to contract of
suretyship where "collateral" was given).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to separate instruments construed together, see note 3 L.
579.

§1643. IlfTEEPEETATIOJf IN FAVOR OF CONTRACT.

A contract must receive such an interpretation as will make
it lawful, operative, definite, reasonable, and capable of being
carried into effect. If it can be done without violating the
intention of the parties.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 17 pars, annotation.

80 C. 611, 618, 22 P. 327, 329 (applied); 83 C. 56, 62, 23 P. 222,
224 (applied); 119 C. 249, 257, 47 P. 124, 51 P. 340 (applied); 123
C. 97, 100, 55 P. 788 (applied); 132 C. 63, 65, 64 P. 131, 469 (cited);
132 C. 523, 566, 84 A. S. 70, 60 P. 442, 64 P. 1000 (applied); 141
C. 101, 102, 99 A. S. 33, 74 P. 699 (applied); 144 C. 19, 37, 77 P.
712 (applied); 149 C. 122, 127, 84 P. 835 (applied to contract for
exchange of land); 2 C. A. 220, 224, 83 P. 282 (applied to archi-
tect's contract of employment); 3 C. A. 294, 298, 85 P. 134
(applied with other sections to contract respecting notes); 3
C. A. 591, 594, 86 P. 810 (applied to contract involving several
writings); 4 C. A. 184, 190, 87 P. 405 (applied to contract to pay
one-half of endowment to plaintiff at age of seventy) ; 4 C. A.
361, 367, 88 P. 287 (applied to written contract of service in
carrying newspapers).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to provision in building contract construed as penalty;
"forfeiture" imports penalty; relief from forfeiture; when for-
feiture considered liquidated damages; enforceable if unwise,
but not if unconscionable, see 10 L. 826.

900



Tit. III.] ORDINARY WORDS— TECHNICAL. §§ 1644-1646

§ 1644. WORDS TO BE UNDERSTOOD IN USUAL SENSE.
The words of a contract ai-e to be understood in their ordi-
nary and popular sense, rather than according to their strict
legal meaning; unless used by the parties in a technical
sense, or unless a special meaning is given to them by usage,
in which case the latter must be followed.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 15 pars, annotation.

57 C. 476, 479 (applied); 87 C. 49, 59, 25 P. 249, 252 (applied);
27 P. 286, 287 (meaning may be proved on trial to enable court
to interpret words); 95 C. 134, 138, 29 A. S. 101, 30 P. 202 (cited);
125 C. 345, 352, 58 P. 7 (applied); 132 C. 63, 65, 64 P. 131, 469
(cited); 144 C. 19, 37, 77 P. 712 (applied).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1645. TECHNICAL AVORDS. Technical words are to be
interpreted as usually understood by persons in the profes-
sion or business to which they relate, unless clearly used
in a different sense.

History: Enacted March 21, 1872.

See Kerr's CVc C. C. for 4 pars, annotation.

57 C. 476, 479 (applied); 27 P. 286, 287 (meaning may be proved
on trial to enable court to interpret words); 95 C. 134, 138, 29
A. S. 101, 30 P. 202 (cited); 31 P. 367, 369 (applied to terms
"quarter scale" and "waste" used in logging contract); 99 C.
363, 372, 33 P. 916, 919 (cited); 123 C. 140, 143, 55 P. 681 (applied);
144 C. 19, 37, 77 P. 712 (applied).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1646. LAW OF PLACE. A contract is to be interpreted
according to the law and usage of the place where it is to
be performed; or, if it does not indicate a place of perform-
ance, according to the law and usage of the place where it
is made.

HLstory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

57 C. 476, 479 (applied); 27 P. 286, 287 (meaning may be proved
on trial to enable court to interpret words); 95 C. 134, 138, 29

901



§§ 1647, 1648 CIVIL CODE. [Div.III.PtJI.

A. S. 101, 30 P. 202 (cited); 99 C. 363, 372, 33 P. 916, 919 (cited);
141 C. 728, 735, 99 A. S. 98, 75 P. 310 (applied).

As to contract, by what law g-overned, see 20 A. D. 293, 27
A. D. 557; 30 A. S. 828; 46 A. S. 448; 55 A. S. 774.

As to law, usage, and custom as part of contracts, see 3 L.
860; 4 L. 392; 10 L. 785.

As to lex loci contractus, see 8 A. D. 490.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to usag-e, see Kerr's Cyc. C. C. P. § 1870 subd. 12 and note.

§ 1647. CONTRACTS EXPLAINED BY CIRCUMSTANCES.

A contract may be explained by reference to the circum-
stances under which it was made, and the matter to which
it relates.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 23 pars, annotation.

77 C. 449, 457, 19 P. 820, 823 (applied); 78 C. 258, 262, 20 P. 559,
561 (applied); 83 C. 56, 63, 23 P. 222, 224 (applied); 99 C. 363,
372, 33 P. 916, 919 (cited); 126 C. 467, 469, 58 P. 907 (referred to);
132 C. 63, 65, 64 P. 131, 469 (cited); 134 C. 324, 328, 66 P. 311
(applied); 137 C. 95, 100, 69 P. 836, 1013 (cited); 141 C. 253, 261,
74 P. 856 (applied); 141 C. 728, 731, 99 A. S. 98, 75 P. 310 (cited);
149 C. 269, 273, 86 P. 509, 691 (parol evidence is admissible when
— contract for services); 1 C. A. 752,. 759, 82 P. 1056 (applied to
contract respecting shipment of potatoes); 2 C. A. 253, 257, 83
P. 285 (applied to modifying slip of insurance policy) ; 3 C. A.
335, 337, 85 P. 162 (applied to sale of store and its contents);
3 C. A. 591, 594, 86 P. 810 (consideration of circumstances and
conditions surrounding and accompanying execution of several
writings); 4 C. A. 610, 615, 88 P. 731 (how court may support
condition of stay bond).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1648. CONTRACT RESTRICTED TO ITS EVIDENT
OBJECT. However broad may be the terms of a contract,
it extends only to those things concerning which it appears
that the parties intended to contract.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

62 C. 623, 633 (applied); 141 C. 728, 731, 99 A. S. 98, 75 P. 310
(cited); 149 C. 269, 276, 86 P. 509, 691 (receipt will be limited to

902



Tit. III.] PARTICULAR CLAUSES. §§1649-1651

matter particularly expressed); 2 C. A. 253, 257, 83 P. 285
(applied to modifying slip of insurance policy); 3 C. A. 696, 700,
86 P. 981 (applied to contract of suretyship where "collateral"
was given).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1649. INTERPRETATION IX SENSE IN WHICH PROM-
ISOR BELIEVED PROMISEE TO RELY. If the terms of a
promise are in any respect ambiguous or uncertain, it must
be interpreted in the sense in which the promisor believed,
at the time of making it, that the promisee understood it.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 14 pars, annotation.

74 C. 532, 534, 16 P. 325 (referred to); 32 P. 245, 246 (con-
strued); 107 C. 348, 354, 40 P. 534 (applied); 109 C. 221, 228, 41
P. 876 (applied); 132 C. 63, 65, 64 P. 131, 469 (cited); 133 C. 170,
179, 65 P. 391 (applied); 1 C. A. 752, 759, 760, 82 P. 1056 (applied
to contract for shipment of potatoes).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to which construction preferred, see Kerr's Cyc. C. C. P.
§ 1864 and note.

§1650. PARTICULAR CLAUSES SUBORDINATE TO
GENERAL INTENT. Particular clauses of a contract are
subordinate to its general intent.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

54 C. 353, 370 (applied); 116 C. 62, 67, 47 P. 866 (applied); 54
P. 383, 384 (applied); 123 C. 97, 100, 55 P. 778 (cited); 133 C. 655,
658, 66 P. 15 (cited); 3 C. A. 696, 700, 86 P. 981 (applied to con-
tract of suretyship where "collateral" was given).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to repugnancies and inconsistent words, see Kerr's Cvc.
C. C. §§ 1652, 1653 and notes.

§1651. CONTRACT, PARTLY WRITTEN AND PARTLY
PRINTED. Where a contract is partly written and partly
printed, or where part of it is written or printed under the
special directions of the parties, and with a special view

903



§§ 1652, 1653 CIVIL CODE. [Div.III,Pt.II.

to their intention, and the remainder is copied from a form
originally prepared without special reference to the particu-
lar parties and the particular contract in question, the writ-
ten parts control the printed parts, and the parts which are
purely original control those which are copied from a form.
And if the two are absolutely repugnant, the latter must be
so far disregarded.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

87 C. 236,'239, 25 P. 412 (applied); 111 C. 503, 509, 44 P. 189.
34 L. 857 (applied); 2 C. A. 253, 257, 83 P. 285 (applied to modify-
ing slip of insurance policy); 7 C. A. 172, 174, 93 P. 1046 (applied
to words "without interest" written in promissory note).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1652. REPUGNANCIES, HOW RECONCILED. Repug-
nancy in a contract must be reconciled, if possible, by such
an interpretation as will give some effect to the repugnant
clauses, subordinate to the general intent and purpose of
the whole contract.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

123 C. 97, 100, 55 P. 788 (cited).

As to construction of repugnant clauses in contract, which
shall prevail, see 60 A. S. 93.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1653. INCONSISTENT WORDS REJECTED. Words in
a contract which are wholly inconsistent with its nature, or
with the main intention of the parties, are to be rejected.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

123 C. 97, 100, 55 P. 788 (cited); 133 C. 655, 658. 66 P. 15
(cited); 141 C. 728, 731. 99 A. S. 98, 75 P. 310 (cited).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to rejection of inconsistent clauses or words, see 77 C.
548, 554, 20 P. 77; 45 Iowa 166; 7 J. J. Marsh. (Ky.) 192- 18 N. Y.
337.

904



Tit. III.] STRONGLY AGAINST WHOM. §§ 1654, 1655

§1654. WORDS TO BE TAKEN MOST STRONGLY
AGAINST WHOM. In cases of uncertainty not removed by
the preceding rules, the language of a contract should be
interpreted most stx'ongly against the party who caused the
uncertainty to exist. The promisor is presumed to be such
party; except in a contract between a public officer or body,
as such, and a private party, in which it is presumed that all
uncertainty was caused by the private party.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 13 pars, annotation.

83 C. 56, 62, 23 P. 222, 224 (construed); 107 C. 348, 355, 40 P.
534 (applied); 110 C. 547, 550, 42 P. 1079 (applied); 111 C. 503, 508,
44 P. 189, 34 L. 857 (applied); 56 P. 802, 803 (referred to); 125
C. 472, 482, 73 A. S. 64, 58 P. 164 (applied); 131 C. 481, 484, 63
P. 724 (applied); 133 C. 170, 179, 65 P. 391 (referred to); 136 C.
178, 181, 68 P. 598 (applied); 141 C. 101, 102, 99 A. S. 33, 74 P.
699 (cited); 141 C. 441, 454, 66 P. 858 (applied), 75 P. 48; 148 C.
223, 227, 82 P. 964, 113 A. S. 223, 7 A. C. 396 (rule of strict con-
struction against insurer who prepares policy); 3 C. A. 294, 298,
85 P. 134 (applied to contract respecting promissory notes) ;

6 C. A. 581, 585, 92 P. 652 (applied to lease — lessor as promisor);

7 C. A. 55, 69, 93 P. 391 (this section must be read with § 1069
when, in construing a grant in favor of the grantee); 7 C. A.
172, 175, 93 P. 1046, 1047 (construed and applied with § 1651 C. C.
to interest clauses in note).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1655. REASONABLE STIPULATIONS, WHEN IMPLIED.

Stipulations which are necessary to make a contract reason-
able, or conformable to usage, are implied, in respect to mat-
ters concerning which the contract manifests no contrary
intention.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

4 P. 371 (applied); 99 C. 363, 372, 33 P. 916, 919 (referred to);
2 C. A. 220, 224, 83 P. 282 (applied to architect's contract of
employment); 4 C. A. 361, 367, 88 P. 287 (applied to written con-
tract of service in carrying newspapers).

As to many iniscellaneous matters as to contracts, see note
§ 1549, ante.

905



§§ 1656-1658 CIVIL CODE. [Div.III.Pt.II.

§1656. IVECESSART INCIDENTS IMPLIED. All things
that in law or usage ai-e considered as incidental to a con-
tract, or as necessarj^ to carry it into effect, are implied
therefrom, unless some of them are expressly mentioned
therein, when all other things of the same class are deemed
to be excluded.

History: Enacted March 21, 1872.

See Keii ^ Cy.- C. C. for 11 pars, annotation.

62 C. 623, 630, 637 (applied to sale under foreclosure of mort-
gage); 99 C. 363, 372, 373, 33 P. 916, 919 (cited as recognizing
general doctrine of usage); 126 C. 467, 469, 58 P. 907, 77 A. S.
192 (referred to); 2 C. A. 220, 224, 83 P. 282 (applied to archi-
tect's contract of employment); 4 C. A. 361, 367, 88 P. 287
(applied to written contract of service in carrying newspapers).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1657. TIME OF PERFOEMANCE OF CONTRACT. If no

time is specified for the performance of an act required to be
performed, a reasonable time is allowed. If the act is in its
nature capable of being done instantly — as, for example, if
it consists in the payment of money only — it must be per-
formed immediately upon the thing to be done being exactly
ascertained.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 44 pars, annotation.

97 C. 518, 521, 32 P. 571, 572 (applied); 119 C. 172, 175, 51 P.
35 (referred to); 124 C. 509, 511, 57 P. 387 (applied); 143 C. 363,
366, 77 P. 71 (applied); 147 C. 313, 327, 81 P. 964 (law implies that
money is to be paid on demand when) ; 1 C. A. 239, 240, 81 P. 1117
(money is payable immediately when); 3 C. A. 489, 491, 86 P.
726 (applied to contract to sell real estate — no time of payment
specified).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to time as essence of contracts, see 12 L. 239.

As to time of performance of implied agreement, see 11 L. 526.

As to when stipulations show time is made the essence of
contracts, see 50 A. D. 597.

§ 1658. TIME, WHEN OF ESSENCE (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 242.

906



rpj^ jjj -j JOINT AND SEVERAL. §§ 1659-1661

§1659. WHEN JOINT A>D SEVERAL. Where all the
parties who unite in a promise receive some benefit from
the consideration, whether past or present, their promise is
presumed to be joint and several.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

129 C 239 241 (referred to), 243 (referred to), 61 P. 1088; 133
C 456 458 65 P. 968 (applied); 70 P. 1071, 1072 (applied); 140
C 535' 537' 74 P. 26 (applied); 150 C. 772, 774, 90 P. 118 (illus-
tration of 'joint and several contract of service); 2 C. A. 684
687, 84 P. 260 (presumption applied to contract by husband and

As to joint and several obligations, see Kerr's Cyc. C. C. §§ 1430
et seq. and notes.

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.

As to subscriptions, whether joint or several, see 22 L. 80.

§1660. SAME. [IN SINGULAR NUMBER.] A promise,
made in the singular number, but executed by several per-
sons, is presumed to be joint and several.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

121 C. 604, 606, 53 P. 1117 (applied); 129 C. 263, 269 (applied),

61 P. 1077. ^ .

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.

§1661. EXECUTED AND EXECUTORY CONTRACTS,
WHAT. An executed contract is one, the object of which is
fully performed. All others are executory.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation. „ .- ^ a

81 C. 528, 532, 22 P. 920, 922 (cited); 126 C. 591, 598, a A. b.
209, 59 P. 36 (cited).

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.



907



5 j^ggY CIVIL CODE. [Div.III.Pt.II.

TITLE IV.

UNLAWFUL. CONTRACTS.

§ 1667. What is unlawful.

§ 1668. Certain contracts unlawful.

§ 1669. Penalties void [repealed].

§ 1670. ConuacL ^^xing damages, void.

§ 1671. Exception.

§ 1672. Restraints upon legal proceedings [repealed].

§ 1673. Contract in restraint of trade, void.

§ 1674. Exception in favor of sale of good-will.

S 1675. Exception in favor of partnership arrangements.

§ 1676. Contract in restraint of marriage, void.

§ 1667. WHAT IS UNLAWFUL. That is not lawful
whicli is:

1. Contrary to an express provision of law;

2. Contrary to the policy of express law, though not ex-
pressly prohibited; or,

3. Otherwise contrary to good morals.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 312 pars, annotation.

68 C. 29, 30, 8 P. 614, 615 (construed and applied with other
sections); 79 C. 633, 680, 22 P. 26, 40, 131 (construed and
applied); 81 C. 370, 373, 22 P. 880, 881 (construed and applied);
81 C. 507, 509 (applied but erroneously cited as § 1167), 515, 521
(cited taut construed in dis. op. of Thornton, J., as inapplicable),
22 P. 883 (correct citation), 885, 887; 83 C. 173, 177, 23 P. 286,
288 (construed and applied with other sections); 84 C. 409, 415,
24 P. 164, 166 (construed and applied); 32 P. 938, 940 (construed
and applied); 91 C. 112, 117, 27 P. 735, 736 (construed and
applied); 96 C. 106, 109, 31 A. S. 192, 30 P. 1022, 1023 (referred
to); 112 C. 197, 204, 44 P. 557 (construed and applied with § 602
of the Pen. C.) ; 117 C. 242, 244, 49 P. 135 (construed and applied
with §§424, 426 of the Pen. C); 119 C. 599, 601, 51 P. 962 (con-
strued and applied with §43); 123 C. 607, 609, 56 P. 467 (con-
strued and applied); 125 C. 119, 122, 123, 73 A. S. 31, 57 P. 777,
45 L. 420 (construed and applied with other sections); 127 C.
33, 35, 59 P. 207 (construed and applied); 131 C. 481, 488, 63 P.
724 (construed and applied); 150 C. 159, 161, 88 P. 708 (subd. 3
applied to notes given as consideration for gambling debt); 46
F. 564, 565, 567 (applied with §§ 1607, 1608, and 1615 — mere want

908



Tit. IV.] UNLAWFUL CONTRACTS. § 1667

of consideration distinguished from illegal consideration — prima
facie case of notice).

As to actions on illegal contracts, see 8 A. D. 691; 67 A. D. 153,
154; 16 A. S. 699.

As to agreement to influence actions of officers, see 66 A. D.
510.

As to burden of proof in case of illegality of consideration,
see Kerr's Cyc. C. C. § 1615 and note.

As to confidential relation, see fiduciary relation; see Kerr's
Cyc. C. C. § 1667, note pars. 85-87.

As to contract in violation of express law, see 3 L. 631; 6 L.
218.

As to contract for services in improperly influencing elections,
see 66 A. D. 510.

As to contract to indemnify for illegal act, see 4 L. 682.
As to contract to secure appointment to office or place of trust,



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