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THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



\ <v V







Vyy? l^L-~Jf^ H~h - n



THE
LAW OF CONTRACTS



BY

WILLIAM HERBERT PAGE

(pi the Columbus, Ohio, Bar, Professor of Law in the Ohio State University
Author of Page on Wills].



VOLUME 2



CINCINNATI

THE W. H. ANDERSON CO.

LAW BOOK PUBLISHERS
1905



/

COPYRIGHT
1905

THE W. H. ANDERSON CXX

Cincinnati, O.



PART III.

OTHER FORMS OF CONTRACT.



54 686495



FOKMAl, CONTRACTS. CONTKACTS OF RECOKD. 851



CHAPTER XXXII.



FORMAL CONTRACTS-CONTRACTS OF RECORD.

§544. Nature of formal contract.

The formal contract is an obligation which owes its validity
not to consideration, nor in some cases, as in contracts of record,
to the agreement of the parties, but solely to the form, of the
transaction. There is an inclination to explain the contract
of record on the theory that the law implies an agreement and
presumes a consideration.^ Such an explanation is of course
a gross anachronism. The formal contract at Common Law
antedated the executory simple contract, and was enforceable
by reason of its form long before consideration was thought of
as having any place in the law of contract." At Common Law
primary rights were classed Avith reference to the form of actions
by which they were enforced. Accordingly we find that as
the action of debt would lie on a record and the action of
covenant on a sealed contract, both were classed as contracts.*
Assumpsit could not be brought on a contract under seal, to

1 " In an action upon a record or whether expressed by the party or

upon a contract under seal, a lawful implied by law." Hilton v. Guyot,

consideration was presumed to exist 159 U. S. 113, 199. The state-

and could not be denied." Hilton ment that covenant and debt were

V. Guyot, 159 U. S. 113, 199. concurrent remedies where a fixed

2 See Ch. I. sum of money was due and owing

3 " At Common Law an action of under a sealed instrument was true
debt would lie on a debt appearing of the classic period of the Common
by a record, or by any other special- Law, Black. Com. III. 154, but it
ty, such as a contract under seal; was not true at the early Common
and would also lie for a definite Law after covenant was differen-
sum of money due by simple con- tiated from debt. Pollock and
tract. Assumpsit would not lie up- Maitland History of English Law
on a record or other specialty; but (2d ed.), Vol. II., 219.

would lie upon any other contract,



852 PAGE Oisr CONTRACTS.

recover damages for breach thereof/ The tendency of Modem
Law to classify primary rights according to their own inherent
nature, and to define contract as an agreement enforceable at
law, has excluded the greater number of the so-called contracts
of record from the class of true contracts.^ They are here
included for historical reasons. The formal contract consisted
of two great classes: the contract of record and the contract
under seal. Each of these will be discussed separately.

§545. Meaning of specialty.

Whether the term " specialty " includes all formal contracts,
or only those under seal, excluding contracts of record, is a
question upon which there is a conflict of authority. The better
authorities define " specialty " as " a writing sealed and
delivered, containing some agreement."^ This was undoubtedly
its original and primary meaning. But it has been said in
some courts that it is used in a " more comprehensive sense as
embracing debts upon recogliizances, judgments and decrees, and
(in England certainly) debts upon statutes."^ In a later case,
however, it was said that the term si>ecialty " has no technical
meaning that necessarily embraces judgments,"^ and subse-
quently the Supreme Court of Ohio declined to pass upon the
question whether a foreign judgment was a " specialty " or not.*
" A foreign judgment was not considered, like a judgment of
a domestic court of record, as a record or a specialty."^

* Junction R. R. v. Bank, 12 Wall. Seymour v. Street, 5 Neb. 85.
(U. S.) 226. 3 Tyler's Executors v. Winslow,

5 See §§ 13, 14. 15 O. S. 364, 368.

1 Bouvier Law. Diet. " Specialty "; * Fries v. Mack, 33 O. S. 52.
Black. Com. II., 465; Lane v. Mor- 5 Hilton v. Guyot, 159 U. S. 113,
ris, 10 Ga. 162, 167; Davis v. Smith, 200. See also to the same effect
5 Ga. 274, 285; 48 Am. Dec. 274, Walker v. Witter, 1 Dougl. 1
284; Kimball v. Whitney, 15 Ind. Phillips v. Hunter, 2 H. Bl. 402
280; Helm V. Eastland, 2 Bibb (Ky.) Smith v. Nicolls, 7 Scott 147; 5
193; Frazer v. Tunis, 1 Binn. (Pa.) Bing. N. C. 208; D'Arcy v. Ketchum,
254; Probate Court v. Child, 51 Vt. 11 How. (U. S.) 165; Mills v. Dur-
82. yee, 7 Cranch (U. S.) 481; Eissell

2 Stockwell V. Coleman. 10 O. v. Briggs, 9 Mass. 462; 6 Am- Dec.
S. 33, 40. To the same effect see 88,



FORMAL, CONTRACTS. CONTRACTS OF RECORD. 853

§546. Judgments classed as contracts of record.

A judgment is the determination and sentence of the law,
awarded and pronounced by the court.^ The code definition
of a judgment is " the final determination of the rights of the
parties in an action."^ At Common Law a judgment was
classed as a contract,^ since the action of debt could be main-
tained thereon.* This view was entertained in many of the
tjarly American cases.^ In many of these cases the proposition
that a judgiTient is a contract is wholly uncalled for, the real
'^oint at issue being decided without reference thereto. Thus
';»^here the point actually decided was that a foreign judgment
knust show that the court rendering such judgment had jurisdic-
tion of the cause of action and of the defendant the court added
the obiter : " A judgment for money is a contract of record to
pay the amount thereof to the plaintiff. Such a contract, how-
ever, is not entered into by the defendant in proper person, but
by the court for him . . .'"^ and a judgment rendered by
confession in favor of a bank, without the consent of such bank
was held voidable at the bank's election, but on the unnecessary
gj-ound of being " a new and different contract."^ So a judg-
ment against a feme covert was held void, because it was " in
the nature of a contract."^ A release of " all notes, accounts
abd demands of every kind and nature " was held to include

-«Bouvier's Law. Diet. "Judg- 3 Black. Com. III., 158.

Bwnt"; Black. Com. III., 396; Jud- * Williams v. Jones, 13 M. & W.

son V. Gage, 98 Fed. 540; Gould v. 628.

Hayes, 71 Conn. 86; 40 Atl. 930; 5 Stuart v. Lander, 16 Cal. 372;

Blystone v. Blystone, 51 Pa. St. 76 Am. Dec. 538; Reed v. Eldredge,

3T^. 27 Cal. 348; Henry v. Henry, 11

2^ev. Stat. Ohio, § 5310; King- Ind, 236; 71 Am. Dec. 354; Geb-

mahv. Mfg. Co., 170U. S. 675; 7nre hard v. Garnier, 12 Bush. (Ky.)

Smith, 122 CaL462; 7L. R. A. 240; 321; 23 Am. Rep. 721; Sawyer v.

65 I-ac. 249; Voisin v. Insurance Vilas, 19 Vt. 43.

Co., 123 N. Y. 120; 25 N. E. 325; e Gebhard v. Garnier, 12 Bush.

Cameron v. Workman, 30 O. S. 58; (Ky.) 321; 23 Am. Rep. 721.

Moore v. Ogden, 35 O. S. 430; Cin- 7 Farmers' Bank v. Mather, 301

cinnati <. Steadman, 53 O. S. 312; la. 283.

45 N. E. 5. This definition of s Morse v. Tappan, 3 Gray;

course applies to final judgments at (Mass.) 411.
Common Law.



S5i



PAGE ON CONTEACTS.



a judgment, on the ground that " a judgment is a demand —
a contract of record."^ A judgment is often said to be a " con-
tract of record"^" or " a debt of record."^^ Thus it has been
said of consent judgments : " They are contracts in the most
solemn form sanctioned by the court, and cannot be collaterally
attacked.'"-

§547. Judgment not founded on agreement.

It is evident, however, that a judgment does not necessarily
have anything to do with agreement. It may, it is true, be
based on contract, or it may be entered by agreement; but on
the other hand it may be based on tort and may be rendered
only after all means of resistance have been exhausted. Fur-
thermore, it possesses certain elements which are inconsistent
with the modern idea of a contract.

First, as between the parties thereto the record is conclusive
as to matters litigated,^ and it is equally conclusive as to
those claiming under such parties^ though it is not conclusive



9 Henry v. Henry, 11 Ind. 236; 71
Am. Dec. 354.

10 Barber v. International Co., 74
Conn. 652; 92 Am. St. Eep. 246; 51
Atl. 857. (Even where held not to
be a contract for the purpose of the
statute of limitations.)

iiLynde v. Lynde, 162 N. Y.
405, 417; 76 Am. St. Rep. 332; 48
L. E. A. 679; 56 N. E. 979; Conrad
V. Everich, 50 0. S. 476, 481; 40
Am. St. Rep. 679; 35 N. E. 58;
Trowbridge v. Spinning, 23 Wash.
48, 64; 83 Am. St. Rep. 806; 62 Pac.
125.

12 Union Bank v. Boai'd of Com-
missioners of Oxford, 90 Fed. 7, 12.

iKeech v. Beatty, 127 Cal. 177;
59 Pac. 837; Naftzger v. Gregg, 99
Cal. 83; 37 Am. St. Rep. 23; 33
Pac. 757; Lancaster v. Snow, 184
111. 534; 56 N, E. 813; Bruce v.
Osgood, 154 Ind. 375; 56 N. E. 25;
Moy V. Moy, 111 la. 161; 82 N. W.



481 ; Willard v. Ostrander, 51 Kan.
481; 37 Am. St. Rep. 294; 32 Pac.
1092; Gregory v. Pike, 94 Me. 27;
46 Atl. 793; Faber v. Hovey, 117
Mass. 107; 19 Am. Rep. 398; Day
V. De Jonge, 66 Mich. 550; 33 N. W.
527 ; De Camp v. Miller, 44 N. J. L.
617; Mershon v. Williams, 63 N. J.
L. 398; 44 Atl. 211; Allen v. Text
Book Co., 201 Pa. St. 579 ; 88 Am. St.
Rep. 834; 51 Atl. 323; same case,
sub nom., Allen v. Engineers' Co., 196
Pa. St. 512; 46 Atl. 899; Thornton
V. Baker, 15 R. I. 553; 2 Am. St.
Rep. 925; 10 Atl. 617; King v.
Ross, 21 R. I. 413; 45 Atl. 146.

2 0'Connell v. Ry. Co., 184 111.
308; 56 N. E. 355; Scott v. Hall, 60
X. J. Eq. 451; 46 Atl. 611; revers-
ing 58 N. J, Eq. 42; 43 Atl. 50;
Wadsworth v. Murray, 161 N. Y.
274; 76 Am. St. Rep, 265; 55 N. E.
910.



rOKMAL CONTRACTS.



CONTRACTS OF RECORD.



855



as to strangers;^ as to a party suing in a different capacity,*
or as to nominal parties without real interest.^ It is not con-
clusive as to issues not passed upon,® or as to rights not litigated.^
It is, of course, not conclusive if the court rendering the judg-
ment has no jurisdiction to render such judgment,^ or, it has
been held, if the petition shows affirmatively that no cause of
action against defendant exists.^

Second, the validity of a judgment cannot be attacked col-
laterally if the court rendering it had jurisdiction of the subject
matter and the person of the defendant against whom it is
rendered," but if the judgment is void it is liable to collateral



3 Garland County v. Hot Springs
County, 68 Ark. 83; 56 S. W. 636;
Cloverdale v. Smith, 128 Cal. 230;
60 Pac. 851; Going v. Society, 117
Mich. 230; 75 N. W. 462; Seymour
V. Wallace, 121 Mich. 402; 80 N.
W. 242; Selleck v. Janesville, 104
Wis. 570; 76 Am. St. Rep. 892; 47
L. R. A. 691; 80 N. W. 944; Hart
V. ]\Ioulton, 104 Wis. 349; 76 Am.
St. Rep. 881; 80 N. W. 599; Hood
V. Dorer, 107 Wis. 149; 82 N. W.
546.

4 Pollock V. Cox, 108 Ga. 430; 34
S. E. 213.

5 Walker v. Philadelphia, 195 Pa.
St. 168; 78 Am. St. Rep. 801; 45
Atl. 657.

<3 Beronio v. Lumber Co., 129 Cal.
232; 61 Pac. 958.

7 Smith V. Rountree, 185 111. 219;
56 N. E. 1130; affirming 85 HI.
App. 161 ; Bacon v. Schepflin, 185
ni. 122; 56 N. E. 1123; affirming
85 HI. App. 553; Weeks v. Ed-
wards, 176 Mass. 458; 57 N. E. 701;
Rossman v. Tilleny, 80 Minn. 160;
83 N. W. 42; American, etc., Co.
V. Macdonnell, 93 Tex. 398 ; 55 S. W.
737; Dillard v. Dillard, 97 Va.434;
34 S. E. 60.

8 Scott V. McXeal, 154 U. S. 34;
Hall V. Melvin, 62 Ark. 439 ; 54 Am,



St. Rep. 301; 35 S. W. 1109; Mc-
Carty v. Kinsey, 154 Ind. 447; 57
N. E. 108; Morgan v. Dodge, 44
N. H. 255; 82 Am. Dec. 213;
Springer v. Sha vender, 118 N. C.
33; 54 Am. St. Rep. 708; 23 S. E.
976; denying rehearing in 116 N. C.
12; 47 Am. St. Rep. 791; 33 L. R.
A, 772; 21 S. E. 397; Melia v. Sim-
mons, 45 Wis. 334; 30 Am. Rep.
746.

9 " Where a bill shows no cause of
action against the defendants with
reference to the subject-matter of
the suit, tenders no issue with them
but on the contrary shows that there
never could be any issue with them,
the complaint not even being sus-
ceptible of amendment to show an
issue, a decree based on such a bill
is a nullity, no matter how at-
tacked." Hall V. Melvin, 62 Ark.
439, 443; 54 Am. St. Rep. 301, 302;
35 S. W. 1109. (Citing Munday v.
Vail, 34 X. J. L. 418; Spoors v.
Coen, 44 O. S. 497; 9 N. E. 132;
Seamster v. Blackstock, 83 Va. 232 ;
5 Am. St. Rep. 262; 2 S. E. 36.)

10 Van Wagenen v. Carpenter, 27
Colo. 444; 61 Pac. 698; Figge v.
Rowlen, 185 111. 234; 57 N. E. 195;
Lancaster v. Snow, 184 111. 534; 56
N. E. 813; Watkins v. Lewis, 153



856 PAGE ON CONTRACTS.

attack.^^ Jurisdictional facts such as the entering by an at-
torney of the appearance of a defendant who is not served^" may
be attacked in a direct proceeding for that purpose.

Further, a judgment operates as a merger of the cause of ac-
tion on which it is rendered, so that after its rendition no liabil-
ities exist except by reason of the judgment.^^ By statute
a judgment operates under certain circumstances as a lien on
realty; and a judgment may be enforced by execution. A
subsequent suit thereon is not necessary in the jurisdiction in.
which it was rendered.

§548. Judgments held not to be contracts.

Accordingly, there is a decided tendency at Modern Law to
exclude judgments from the class of contracts,^ " The theory
that a foreign judgment imposes or creates a duty or obligation
is a remnant of an ancient fiction, assumed by Blackstone, say-
ing that ^ upon showing the judgment once obtained, still iu
full force, and yet unsatisfied, the law immediately implies that
by the original contract of society the defendant hath contracted
a debt, and is bound to pay it.' 3 Bl. Com. 159. That fiction,
which embraced judgment upon default or for torts cannot

Ind. 648; 55 N. E. 83; J. B. Wat- Neb. 248; 77 N. W. 680; Elmen-

kins, etc., Co. v. JMuUen, 62 Kan. 1; dorf v. Elmendorf, 58 N. J. Eq. 113;

61 Pac. 385; reversing 8 Kan. App. 44 Atl. 164; O'Malley v. Fricke, 104

705; 54 Pac. 921; Benjamin v. Ear- Wis. 280; 80 N. W. 436.

ly, 123 Mich. 93; 81 N. W. 973; 12 Mullins v. Eieger, 169 Mo. 521 ;

Bengtsson v. Johnson, 75 Minn. 321; 92 Am. St. Rep. 651; 70 S. W. 4.

78 N. W. 3; State ex rel. Lacy v. i3 See § 1353.

Brandhorst, 156 Mo. 457; 56 S. W. i Louisiana v. Xew Orleans, 109

1094 ; McKeen V. Converse, 68 N. H. U. S. 285; Freeland v. Williams,

173; 39 Atl. 435; Dauberman v. 131 U. S. 405; Morley v. By., 14ft

Hain, 196 Pa. St. 435; 46 Atl. 442. U, S. 162; Smith v. Harrison, 33

11 McAllister v. Johnson, 108 la, Ala. 706; Larrabee v. Baldwin, 35

42; 78 X. W. 790; Kager v. Vickery, Cal. 155; Rae v. Hubert, 17 111. 572;

61 Kan. 342; 78 Am. St. Rep. 318; O'Brien v. Young, 95 N. Y. 428; 47

49 L, R. A. 153; 59 Pac. 628; Dux- Am. Rep. 64; Wyoming National

bury V. Dahle, 78 Minn. 427; 81 Bank v. Brown, 9 Wyom. 153; 61

N. W. 198 ; Sackett v. Montgomery, Pac. 465 ; denying rehearing, 7

57 Neb. 424; 73 Am. St. Rep. 522; Wyom. 494; 75 Am. St. Rep. 935;

77 N. W. 1083; Lefferts v. Bell, 57 53 Pac, 291.



FORMAL, CONTRACTS. CONTRACTS OF RECORD. 857

convert a transaction -wanting the assent of the parties into one
"which necessarily implies it."" So a judgment was held not
to be a contract with reference to the liability of a trustee of a
corporation who has become liable for the " debts " of the cor-
poration by failing to file a report of the corporation as required
by law.^

§549. Judgments as affected by impairment of obligation of con-
tract.

The cases in which it now is material whether a judgment is
a contract or not are generally cases involving the impairment
of the obligation of contracts, the period of limitations, the rule
as to necessary parties to actions, and other questions arising
where the legislature has made different provisions for actions
on contract from those for actions generally.

While there are some decisions to the contrary^ the weight of
authority, supported by decisions of the Supreme Court of the
United States, is that a judgment is not a contract within the
meaning of the clause in the United States' Constitution
preventing a state from impairing the obligation of contracts.
Hence the legislature may interfere with the collection of a judg-
ment based on tort by forbidding the sale of property for an act
done during the Civil War,^ or by reducing the tax rate in
the municipality so that the judgment cannot be collected,^ or

2 Hilton V. Guyot, 159 U. S. 113 legal tender act was not a eon-
(201). tract for the payment of a debt in.

3 Chase v. Curtis, 113 U. S. 452. gold or silver; hence the court in a
Thus under a statute making stock- suit on such judgment after the pas-
holders liable only on contracts en- sage of such act could not render
tered into by the corporation while judgment for the payment of the
they were stockholders, a judgment debt in gold or silver.

rendered on a cause of action was i Skinner v. Holt, 9 S. D. 427 ; 62

held not to be a contract so as to Am. St. Eep. 878; 69 N. W. 595

bind a stockholder who bought stock (change in exemption laws),

after the cause of action accrued, 2 Freeland v. Williams, 131 U. S.

but before judgment. Larrabee v. 405.

Baldwin, 35 Cal. 155. Reed v. El- 3 Louisiana v. New Orleans, 109

dredge, 27 Cal. 346, is really not in U. S. 285; State v. New Orleans,

point. It holds that a judgment 38 La. Ann. 119; 58 Am. Rep. 168.
rendered before the passage of the



858 PAGE ON CONTKACTS.

by changing the rate of interest which the judgment bears,
accruing after the passage of the act.* But in some cases a
statute changing the rate of interest on judgments is held in-
ajDplicable to judgments previously rendered.^ There is, there-
fore, a decided conflict of authority on this point. As an ad-
ditional complication some courts have tried to distinguish
cases where the contract provides what rate a judgiuent rendered
thereon shall bear® from all other cases, holding that in such
cases a change in the rate of interest of judgments previously
rendered would impair the obligation of contracts, but not in
other cases. A subsequent statute as to fish-ways may affect
a judgment authorizing a dam to be built across a creek, subject
to such conditions as the court should impose concerning the
obstruction of the passage of fish/

§550. Remedies given on judgments.

It has been often said that " judgments are invariably classed
with contracts with reference to remedies upon them."^ " There
are authorities which hold that judgments for some purposes
are not contracts ; but there is no authority that they are never
to be treated as contracts, and all of them recognize the implied
obligation of every judgment debtor to pay the judgment, and
that for the purpose of actions and remedies upon them they
are to be treated as contracts."^ At Common Law it was im-

4Morley v. Railroad Co., 146 U. entitled upon his pre-existing judg-

S. 162; O'Brien v. Young. 95 N. Y. ment." Butler v. Rockwell, 17 Colo,

428; 47 Am. Rep. 64; Wyoming Nat. 290, 295; 29 Pac. 458.

Bk. V, Brown, 9 Wyom. 153; 61 Pac. 6 Bond v. Dolby, 17 Neb. 491; 23

465; denying rehearing, 7 Wyom. N. W. 351.

494; 75 Am. St. Rep. 935; 53 Pac. 7 State v. Gilmore, 141 Mo. 506;

291. 42 S. W. 817.

5 Texas, etc.. Railroad Co. v. An- i Wattles v. Circuit Judge, 117

derson, 149 U. S. 237; Sharpe v. Mich. 662, 665; 72 Am. St. Rep. 590;

Morgan, 44 111. App. 346; Cox v. 76 N. W. 115; Meyer v. Brooks, 29

Marlatt, 36 N. J. Law. 389; 13 Am. Or. 203; 54 Am. St. Rep. 790; 44

Rep. 454; Brauer v. Portland, 35 Pac. 281.

Or. 471; 58 Pac. 861; 59 Pac. 117; 2 Gutta Percha, etc., Mfg. Co. v.

60 Pac. 378. "The legislature Houston, 108 N. 1^ 276, 279; 2 Am.

could not thus alter the rate of St. Rep. 412; 15 N, E. 402.
interest to which a creditor was



FORMAL CONTRACTS. CONTRACTS OF RECORD. 859

portant to determine whether a judgment was a contract or not
chiefly with reference to the form of action to be brought
thereon. At Modern Law the form of action is usually imma-
terial. Still, where the legislature has divided actions into
those in tort and those on contract, a judgment is yet held to
be a contract.^ Under a statute authorizing attachment on
all contracts express or implied, attachment may be brought on
a judgment based on tort,* or on a foreign judgment.^ This is
generally, but not invariably, true. Thus a judgment is classed
as a contract as concerns a statute forbidding arrest on execu-
tion in actions on contract f as to the jurisdiction of a justice
of the peace,^ as to joinder of causes of action,^ or as to the
right of counterclaim.'' Under a statute authorizing suit against
a foreign corporation by another foreign corporation on a " cause
of action which arose within the state." An effort was made
to maintain an action under such statute upon a judgment ren-
dered in another state upon the theory that it was a contract
of record and that failure to pay it was a continuing breach,
so that the cause of action arose wherever the judgment debtor
was doing business and demand might be made. This theory
was held to be unsound.^''



3 Johnson v. Butler, 2 la. 535; « Childs v. Mfg. Co., 68 Wis. 231;

Moore v. Nowell, 94 N. C. 265. 32 N. W. 43.

* Johnson v. Butler, 2 la. 535; » Taylor v. Root, 4 Keyes (N. Y.)

Gutta Percha, etc., Mfg. Co. v. Hous- 335. But in Rae v. Hubert, 17 111.

ton, 108 N. Y. 276; 2 Am. St. Rep. 572, a foreign judgment was held

412; 15 N. E. 402; Nazro v. Oil Co., not included in "contract or agree-

36 Hun (X. Y.) 296; Donnelly v. nient, express or implied," in a stat-

Corbett, 7 N. Y. 500; First, etc., ute giving the right of set-off.

Bank v. Van Vooris, 6 S. D. 548; lo Anglo- American Provision Co.

62 N. W. 378. V. Provision Co., 169 N. Y. 506; 88

5 Wattles V. Circuit Judge, 117 Am. St. Rep. 608; 62 N. E. 587.
Mich. 662; 72 Am. St. Rep. 590; 76 The court said: " Doubtless a judg-
N. W. 115; Gutta Percha, etc., Mfg. ment as a debt of record is a con-
Co. V. Houston, 108 N. Y. 276; 2 tract obligation of the highest
Am. St. Rep. 412; 15 N. E. 402; nature. The cause of action has be-
Meyer v. Brooks, 29 Or. 203; 54 come merged, and the law implies
Am. St. Rep. 790; 44 Pac. 281. the obligation and the promise of

6 Sawyer v. Vilas, 19 Vt. 43. the defendant to pay ; but it is not a

7 Stuart v. Lander, 16 Cal. 372; contract in the sense of any engage-
76 Am. Dec. 538. ment of the parties with each other.



860 PAGE ON CONTRACTS.

A statute requiriiig action on contract to be brought in the
name of the real party in interest, has been held not to apply
to judgments/^

§551. Judgment as affected by statute of limitations.

Where the limitation of actions is concerned, no question
arises as to whether a judgment is a contract if the legislature
has made specific provision for judgments.^ Where no such
provision is made, a domestic judgment has been heM not to
be a "written contract or a specialty" but foreign juG'^ments,^
a judgment rendered by a justice of the peace* and finiUngs of
fact by a court,^ such as a finding of the amount due on fore-
closure, there being no prayer for personal judgment,^ have been
held specialties, or at least contracts of record governed by the
statute of limitations which provides for specialties.

§552. Recognizances.

A recognizance, in the correct use of the term, is an obliga-
tion of record entered into either before a court of record or

The element of mutuality is want- 48 N. E. 1001; reversing 61 111-
ing; for judicium redditur in in- App. 78; Kimball v. Whitney, 15
vitum" ..." We may concede Ind. 280 ; Burnes v. Simpson, 9 Kan.
that an action on a foreign judgment 658 ; U. S. Bank v. Dallam, 4 Dana
is an action ex contractu; but that (Ky.) 574; Bullard v. Bell, 1 Ma-
there is, within the meaning of the son (U. S. C. C.) 243; Tyler v.
statute a cause of action which Winslow, 15 O. S. 364.
arose within the state, permits of 3 Stockwell v. Coleman, 10 0. S,
grave doubt and puts a severe strain 33 ; Fries v. Mack, 33 0. S. 52.
on what seems to be plain language." Contra, Todd v. Crumb, 5 McLean
167 N. Y. 509. (U. S. C. C.) 172; Barber v. Inter-

11 Wolffe V. Eberlein, 74 Ala. 99 ; national Co., 74 Conn. 652 ; 92 Am.

49 Am. Eep. 809; Lovins v. Humph- St. Rep. 246; 51 Atl. 857; Jordan

ries, 67 Ala. 437. v. Robinson, 15 Me. 167; Richards

1 Shainwald v. Lewis, 69 Fed. 487; v. Bickley, 13 Serg. & R. (Pa.) 395.
Schuyler, etc.. Bank v. Bradbury, * Pease v. Howard, 14 Johns. (N.

56 Kan. 3.55; 43 Pac. 254; Mead v. Y.) 479.



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