Samuel Williston.

A selection of cases on the law of contracts; (Volume 2) online

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THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



SELECTION OF CASES



ON THE



LAW OF CONTRACTS



EDITED AND ANNOTATED

BT

SAMUEL WILLISTON

WELD PROFESSOR OF LAW IN HARVARD UNIVERSIT\



IN TWO VOLUMES

Vol. II.



BOSTON
LITTLE, BROWN, AND COMPANT

1904



V.2



T



Entered according to Act of Congress, in the year 1879,

Br C. C. Lanodell,
In the office of the Librarian of Congress, at Washington,

Copyright, 1S94, 1904,
By Samuel Wh.liston.



CONTENTS.



CHAPTER V. — Continued.

Pagf
PERFORMANCE OF CONTRACTS 1

Section II.

Implied Conditions and Effect of the Plaintiff's Failure

TO Perform his Promise 1

Section III.
Impossibility 286



CHAPTER Yl
ILLEGAL CONTRACTS 349

Section I.
Contracts in Restraint of Trade 349

Section II.
Wagers and Gaming Contracts 390

Section III.

Contracts Obstructing the Administration of Justice . . 418

(a) Champerty and Maintenauce 418

{b) Agreements to Stifle Prosecution 438

(c) Agreements to Submit to a Specified Tribunal . . . 455

Section IV.
Contracts tending to Corruption 477



671091



iv CONTENTS.

Section V.

Page

Miscellaneous Cases of Illegal Contracts 497

Section VL
Effect of Illegality 548

CHAPTER VII.
DISCHARGE OF COI^TRACTS 572

Section I.
Parol Agreement to Discharge 572

Section II.
Novation •.... 587

Section III.
Release 591

Section 17.
Accord and Satisfaction 597

Section V.
Arbitration and Award 636

Section VI.
Surrender and Cancellation 651

Section VII.
Alteration 656

Section VIII.
Mkkger 659



INDKX 671



CASES ON CONTRACTS.



CHAPTER Y. — continued.
SECTION II.

IMPLIED CONDITIONS AND EFFECT OF THE PLAINTIFF'S
FAILURE TO PERFORM HIS PROMISE.i

ANONYMOUS.

In the King's Bench, Trinity Term, 1500.

{Reported in Year Book, 16 Henry 7, /olio 10 6, placitum 7.]

^ NoTA PER Fineux, C. J. If one covenant with me to serve
lue for a year, and I covenant with him to give him 201. , if I do not
say for said cause, he shall have an action for the 20/. although he
never serves me ; otherwise, if I say he shall have 201. for said cause.
So if I covenant with a man that I will marry his daughter, and he
covenants with me to make an estate to me and his daughter, and to the
heirs of om" two bodies begotten ; though I afterwards marry another
woman, or his daughter marry another man ; yet I shall have an action
of covenant against him, to compel him to make this estate ; but if the
covenant be that he will make the estate to us two for said cause, then
he shall not make the estate until we are married. And such was
the opinion of the Court. And Rede, J., said it was so without
doubt.



BROCAS' CASE.

In the Queen's Bench, Michaelhas Term, 1588.

[Reported in 3 Leonard, 219.]

Brocas, lord of a manor, covenanted with his copyholder to assure
to bim and his heirs the freehold and inheritance of his copyhoM.
And the said copyholder, in consideration of the same performed,
covenanted to pay such a sum. It was the opinion of the whole Court,
tliat the said copyholder is not tied to pay the said sum before th«

1 The treatment of this subject iu the Civil Law is considered in 13 Harv. L. Kev. 80.

VOL. II. — 1



2 PORDAGE V. COLE. [CHAP. V.

assurance made and the covenant performed. But if the words had
been, in consideration of the said covetiant to be performed^ then he is
bounden to pay the money presently, and to have his remedy over by
covenant



NICHOLS V. RAYNBRED.

Hilary Term, 1615,

{Reported in Hohart, 88.]

Nichols brought an assumpsit against Raynbred, declaring that, in
consideration that Nichols promised to deliver the defendant to his
own use a cow, the defendant promised to deliver hira lift}' shillings.
Adjudged for the plaintiff in both courts, that the plaintiff need not to
aver the delivery of the cow, because it is promise for promise.^ Note,
here the promises must be at one instant, for else they will be both
nuda pacta.



■^-



PORDAGE V. COLE.
In the Kjng's Bench, Michaelmas Term, 1669.

[Reported in 1 Williams' Saunders, 319.]



Debt upon a specialty for 774^. 155. The plaintiff declares that the
defendant b}^ his certain writing of agreement made at, &c., by the
plaintiff by the name, &c., and the defendant by the name, &c., and
brings the deed into court, &c., it was agreed between the plaintiff and
defendant in manner and form following, viz.. That the defendant
should give to the plaintiff the sum of 775/. for all his lands, with a
house called Ashmole-house thereunto belonging, with the brewing ves-
sels remaining in the said house, and with the malt-mill and wheelbar-
row ; and that in pursuance of the said agreement, the defendant had
given to the plaintiff 5«. as an earnest, and it was b}' the said writing
further agreed between the plaintiff and defendant, that the defend-
ant should pay to the plaintiff the residue of the said sum of 775/., a week
after the feast of St. John the Baptist then next following (all other
movables, with the corn upon the ground, except). And although

1 Gower v. Cappor, Croko Kl. 543; Bettisworth v. Campion, Yelv. 134; Spanish
Amba«.Hador v. GifTord, 1 Rolle, 336 ; Thorpe's Case, March, 75; Ware v. Chappel,
Styl.-, 186; Gibbons v. Trcwde, Ilardres, 102; Beany v. Turner, 1 Lev. 293; Cole w.
Shallett, 3 Lev. 41 ; Blackwell v. Nash, 1 Strange, 535; Martindale v. Fisher, 1 Wilg.
88, ace.



SECT. TL] PORDAGE V. COLE. 3

the defendant has paid five shillings, parcel, &c., yet the said defend-
ant, although often requested, has not paid the residue, to the damage,
&c.. The defendant praj's 03'er of the specialty, which is entered in
kcBc verba, to wit. : " 11 Ma}', 1668. It is agreed between Doctor John
Pordage and Bassett Cole, esquire, that the said Bassett Cole shall give
unto the said doctor 775/. for all his lands, with Ashmole-house there-
unto belonging, with the brewing vessels as they are now remaining in
the said house, and with the malt-mill and wheelbarrow. In witness
whereof we do put our hands and seals : mutually given as earnest in
performance of this os. ; the money to be paid before Midsummer, 1668 ;
all other laovables, with the corn upon the ground, excepted." And
upon 03'er thereof the defendant demurs. And Witktns, of counsel
with the defendant, took several exceptions to the declaration. 1.
That the demand by the declaration is of 774/. 15s. ; whereas the whole
sum is 775/. ; and the 5s. paid for earnest shall not be taken as part of the
sum of 775/. Sed non allocatur ; for, per Curiam, it shall be intended
as part of the sum. 2. That the exception of the residue of the mov-
ables is not well recited, for the word (except) in the declaration is not
good for want of sense. Sed non allocatur, for it is sensible enough in
the declaration ; and if it were not, the declaration is good ; for an in-
sensible clause does not make the rest of the deed vicious which is sen-
sible in itself. 3. The great exception was, that the plaintiff in his
declaration has not averred that he had conve3^ed the lands, or at least
tendered a conveyance of them ; for the defendant has no remedy to
obtain the lands, and therefore the plaintiff ought to have convej'^ed-
them, or tendered a conveyance of them, before he brought his action
for the mone}'. And it was argued by Withins, that if by one single
deed two things are to be performed, namely, one by the plaintiff and
the other by the defendant, if there be no mutual remedy, the plaintiff
ought to aver performance of his part ; Trin. 12 Jac. I. between Holder
V. Tayloe,* Ughtred's case,* and Sir Richard Pool's case thc-re cited,
and" Gray's case,* and that the word (pro) made a condition in things
executory.* And here in this case it is a condition precedent which
ought to be performed before the action brought ; wherefore he prayed
judgment for the defendant.

But it was adjudged by the Court that the action was well brought
without an averment of the convej-ance of the land ; because it shaU
be intended that both parties have sealed the specialty. And if the
plaintiff has not conveyed the land to the defendant, he has also an
action of covenant against the plaintiff upon the agreement contained
in the deed, which amounts to a covenant on the part of the plaintiff
to convey the land ; and so each party has mutual remedy against the
other. But it might be otherwise if the specialty had been the words
of the defendant onl}', and not the words of both parties by way of
agreement as it is here. And by the conclusion of the deed it is said

1 1 RoU. Abr. 518 (C), pi. 2, 3. ^ 7 Rep. 10.

• 6 Rep. 78, 79 ; 8. c. Cro. Eliz. 406. * Co. Lit. 204 a.



4 PEETERS V. OPIE. [CHAP. V.

that both parties had sealed it ; and therefore judgment was given for
the plaintiff, which was afterwards affirmed in the Exchequer Chamber,
Trin. 22 of King Charles the Second.^



PEETERS V. OPIE.
In the King's Bench, Trinity Term, 1671.

[Reported in 2 Williams' Saunders, 350.]

Assumpsit. The plaintiff declares that it was agreed between the
plaintiff and defendant, that the plaintiff should pull down and prostrate
the walls of three houses, and in the places in which the said walls were
erected should build for the said defendant a malt-house, and a linny or
dry-house, and cover them with slate or tile, and that the said defend-
ant should pay to the said plaintiff, for his work in and about the pull-
ing down and prostrating the said walls, and building and erecting the
said malt-house and linny-house, 8^. of lawful moiie}', &c. And then
the plaintiff laj's mutual promises, namely, that in consideration that the
plaintiff had undertaken to perform his part of the said agreement, the

' In a note to this case, Mr. Serjeant Williams states the following rules for dis-
tinguishing between dependent and independent covenants: 1. K a day be appointed
for payment of money or part of it, or for doing any other act, and the day is to
happen, or may happen, before the thing which is the consideration of the money or
other act is to be performed, an action may be brought for the money, or for not
doing such other act before performance ; for it appears that the party relied upon
his remedy, and did not intend to make the performance a condition precedent ; and
so it is where no time is fixed for performance of that which is the consideration of
the money or other act. 2. But when a day is appointed for the payment of money,
&c., and the day is to happen after the thing which is the consideration of the money,
&c., is to be performed, no action can be maintained for the money, &c., before per-
formance. .3. Where a covenant goes only to part of the consideration on both sides,
and a breach of such covenant may be paid for in damages, it is an independent cove-
nant, and an action may be maintained for a breach of the covenant on the part of
the defendant without averring performance in the declaration. 4. But where the
mutual covenants go to the whole consideration on both sides, they are mutual col
ditions, and performance must be averred. 5. Where two acts are to be done at the
eariie tii7ie, as, where A. covenants to convey an estate to B. on such a day, and in
consideration thereof B. covenants to pay A. a sum of money on the same day, neither
can maintain an action without showing performance of, or an ofifer tc perform his
part, though it is not certain which of them is obliged to do the first act; and this
particularly applies to all cases of sale.

In Mnttork v. Kinglake, 10 Ad. &. E. 50, Patteson, J., said : "Pordage v. Cole is
directly in point. We must overrule it if we decide in favor of the defendant," and
.since a time was fixed for payment and none for conveyance, the court allowed the
plaintiff to recover the price without conveying or offering to convey. See al.so Sib-
thorp V. Brunei. .3 Ex. 826; Dicker v. Jackson, 6 C. B. 676; Gibson v. Newman,
2 Miss, .341 . Compare, however, Wilks v. Smith, 10 M. & W. 355 ; Marsden v. Moore,
4 II. & N. 500.



SECT. II.] PEETERS V. OPIE. 6

defendant promised to perform the said agreement on his part to be per-
formed ; and the plaintifT also lays another promise in his declaration,
and then he makes this averment, namely, "And the said plaintiff in
fact says that he always from the time of making the said agreement
hitherto was read}' and offered to perform the said agreement in ah
things on his part to be performed, yet the said defendant" has not
paid the 8/. nor the other sums of money contained in the other promise,
to the plaintiff's damage of 20/. The defendant pleads non assumpsit,
and the issue was found for the plaintiff on both promises, and entire
damages assessed.

And now in this Term Saunders moved in arrest of judgment that the
plaintiff has not well entitled himself to the action on the said promise
for want of averring that he has performed the work which he was to
do, or that he was prevented from doing it by the defendant ; for he
onl}' says that he was ready and offered, but he does not say that he
performed, or that he was hindered or prevented by the plaintiff from
doing it. And therefore he ought not to have the 8/., for he was to
have it for his labor, &c. ; which implies that he first ought to do the
work before he can demand his wages for his labor. For though it be
laid by way of agreement and mutual promise, yet it appears by the
very agreement itself that the plaintiff was to do the work and to have
the 8/. for his icork ; and therefore the mutual promise is only to perform
the agreement, which the defendant has not broken on his part by the
non-paj-ment of the said 8/., if the plaintiff has not performed the work,
which was to be precedent to the paj'ment of the money. And although
the plaintiff has laid it b}' way of mutual agreement, yet in fact it is no
moie than that the defendant desired the plaintiff to do the work, and
he would pay him 8/. for it, which is a common contract between parties ;
and the meaning of it is that the work should be done first before pay-
ment : for the party who is to pay the money does not intend to pay it
unless the work be performed , he does not mean to pay his money, and
then to bring an action for not performing the work against one who
perhaps is not responsible, or, after he has got the money, will run away ;
but if the plaintiff has offered to do the work and the defendant has hin-
dered him, the defendant will be in such case bound to pay the money,
because he ought not to take advantage of his own wrong. And
therefore the judgment was stayed until it should be moved on the
other side.

And afterwards at another day, PoUexfen moved for judgment for the
plaintiff, because, as he said, there was here a promise on each side, and
if tlu! plaintiff has not performed the agreement on his part, the defend-
ant has remedy against him by action ; and here the agreement is not
that the money is to be paid after the work is done, but it is to be paid
generally whether the work be done or not ; but if the work is not done
the defendant has his remedy on the promise as aforesaid ; and therefore
he prayed judgment for the plaintiff.



6 PEETERS V. OPIE. [CHAP. V.

And TwTSDEN, J., was of opinion that the" plaintiff should have
judgment for the reason given by Pollexfen ; and also because the
words ' for his labor ' are no more than what the law would have im-
phed. And he said that if the agreement had been that the plaintiff
should do the work and the defendant should pay the plaintiff 8/. , with-
out saying for his work, there had been no doubt that the plaintiff
might maintain an action for the money although he had not done the
work : yet the law implies that the 8/. was to be paid for his work, and
therefore the addition of the words ' for his work ' will not alter the case
at all, for the}- would be intended if they had been omitted, et expressio
eorum quce tacite insunt nihil operatur ; wherefore he concluded that the
plaintiff ought to have his judgment.

Hale, C. J., contra; and that the declaration was insufficient, and
judgment should be arrested ; for he said that the words ' for his labor '
make a condition precedent, so that the plaintiff ought of necessity to
have the work done, or at least that he was hindered from doing it by
the defendant, before he can demand the mone}'. And he further said
that if the said agreement had been put into writing under the seals of
the parties, it had been clear that the plaintiff could not maintain an
action of covenant for the 8^. without such an averment ; and no more
can he do so here ; and although there were mutual promises in the
case, yet the defendant's promise was on the performance of the agree-
ment, which in itself was only conditional on the defendant's part,
namely, that if the plaintiff performed the work, then the defendant
was to pay him 8/. for his labor, but otherwise not ; and here it appears
that the plaintiff has not performed the work ; wherefore the defendant
is not bound to pay him the 8^ notwithstanding the mutual promise.
But he said, that if by the agreement it had been that the 8/. should be
paid on any certain day, perhaps the law would be otherwise ; because
then it might be construed that the defendant relied on tbe plaintiff's
mutual promise for his security ; but here no certain time being limi d
when the money should be paid, the law makes a construction that i1
shall be paid when the work will be finished and not before, unless the
defendant himself was the cause why it was not finished, which doet
not appear here in this record.

Kainsfori), J., agreed with Hale, Morton, J., being absent on ac
count of ill health ; wherefore the judgment was not absolutely arrested,
but the plaintiff had leave to move it again ; but his counsel perceivint?
the opinion of Hale and Rainsford, did not move it again, and con
sequently judgment was arrested. Vide Co. Lit. 204 a, that the wore
fro makes a condition in things executory, «fec.

/vllerwards, in Trinit}' Term, in the twenty-fourth year of the no^
king, it was moved again ; and Twysden retaining his former opinion,
the Court gave judgment for the plaintiff, because then Hale, C. J.
and the other judges held, that " he was ready and offered to perfor .^
&c., was a sufficient averment after verdict. Quod nota.



SECT. II.] THORPE V. THORPE. 7

THORPE V. THORPE.
In THE King's Bench, Easter Term, 1701.

[Reported in 12 Modern, 466.]

Error from the Court of Common Pleas of a judgment in an action
on the case, wherein the plaintiff declared, that the defendant had
and held of him by way of mortgage two closes of copyhold lands ;
and that there was a discourse between them concerning the plaintiff's
releasing his equity of redemption therein to the defendant, and con-
cerning divers sums of money due from the plaintiff to the defendant
upon the said mortgage ; upon which the plaintiff did agree with the
defendant that he would release to him the said equity of redemption,
in consideration of which the defendant did agree with the plaintiff to
pay him seven pounds above all that was due ; and that, in considera-
tion that the plaintiff promised the defendant to perform all of his side,
the defendant promised the plaintiff to perform of his side ; and avers
that be did perform all on his, the plaintiff's, side, but that the defend-
ant j)aid one pound seven shillings of the said seven pounds, and
no more, &c.

To this the defendant pleads in bar, that long after the promise, viz.,
29th July, 1694, the plaintiff did, by indenture made between him and
tlie defendant, release to the defendant " all manner of actions, suits,
debts, duties, sum and sums of money, and all demands whatsoever,
which ever he had, or he, his heirs, executors, or assigns ever should
ha\'e, for or by reason of any thing, matter, or demand whatsoever."

Upon oyer of this deed of release, it recited the said mortgage, and
released " all provisos therein, and all his estate, right, title, and inter-
est in the said close, both in law and equity ; " and then follows the
foregoing clause.

And upon this the plaintiff demurred, and judgment for the plaintiff
in the Court of Common Pleas.

C(>w/)er, for the plaintiff in error, objected to the declaration, that the
consideration set forth in it was not sufficient to support a promise ; for,
though equity of redemption be a thing prettj' well known, and for the
m(jst part valuable, 3'et some may be not of any value, and this may be
of them ; and therefore it was necessarj' to show that it was of some
value ; and for an example of an equitj' of redemption without value,
he put this case : If a mortgage be till so much money be raised by the
mortgagee out of the profits ; here the mortgagor has an equity of
redeeming by pa^nnent of the money and charges, and yet it is of no
value to the other to have it released ; but to the contrary, the redemp-
tion there would be rather a benefit to him.

Secondly, he objected that it did not appear by the count that the



8 THORPE V. THORPE. [CHAP. V.

mortgage was forfeited, and then the plaintiff had no equity of redemp-
tion. Ergo, no consideration for the promise ; ergo, &c. Vide 2 Saund.
136 ; Style, 248.

Then the plea in bar is good, for the release is full in words, and sub-
sequent to the promise. But, say they, the money was to be paid in con-
sideration of the release ; therefore the release, which created the duty,
cannot in eodom instanti extinguish it. To this I answer, that the pay-
ment of the money does not arise from the release, but from the promise ;
and the promise, and not the release, being the consideration of the
debt, action lies upon the mutual promises before the release. Ergo,
the release comes after the cause of action, and consequently destroys
it. March, 75. Where promises are their own mutual considerations,
there needs no performance to support the action. Hob. 88. In con-
sideration that the plaintiff promised to deliver the defendant a cow, the
defendant promised the plaintiff fifty shillings ; in an action for the
mone}' there needs no aveiment of delivery of the cow, or vice versd.
Cro. El. 543. A declaration, that in consideration A. was indebted to
B. by bills, and that he promised to deliver him up the bills, he prom-
ised to give him good secui'ity by bond for the money, and avers the
delivery of the bills ; the defendant traverses the delivery, and on de-
mmror adjudged against him, because not material ; and it was not the
consideration of the assiimpsit, but the promise to deliver was it. Cro.
El. 703, simile.

But Cro. El. 889, the promise is, super sohuionem of such a sum, to
do, &c. ; therefore the thing not demandable before payment. So is
Cro. Car. 19. So that if here the cause of action did arise upon the
promise before any release made, the release subsequent clearly dis-
charges it ; secus not, if there were no more in the case. And if the
release be what gives them cause of action, then they should show a re-
lease made, or a tender of it ; and not generally, as here, that they have
performed all of their side.

But it is objected that, although an action had accrued to the plaintiff
immediately upon the promise, yet this release should not discharge it;
for that the release shall be taken according to the intent of the parties,
wliich was only to discharge the equity of redemption ; and the general
words of it shall be restrained and qualified by the foregoing special
wonis. But I answer, that after releasing the equity of redemption by
express words, there are in the self-same clause general words of " nil
actions and demands ; " which I agree are qualified by the special words
and intent of the parties. And then comes the clause in question, distinctly
and separately from the first, releasing "all actions and deman<ls ; "
and this clause would be entirely useless if thej' be applied to the first,
hccjiu.se the first has a general clause in itself to serve it as a wall or
muniment, and so stands in no need of any more. 2 Roll. Ah. 109.
The general words, that are restrained by the special words, are part of
th«- same clause and sentence, and not, as here, distinct and separate.
H Mod. 277. Suppose A. recited in a deed, that whereas B. owes him teu



SECT, II.] THORPE V. THORPE. 9

pounds, and releases thereby " the said ten pounds, and all actions and
demands," and further proceeds and releases him " all debts, duties,
actions, and demands," would this last clause be rather entirely rejected
than extended to any thing but the ten pounds? and upon this diver-



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