An agreement, upon sufficient consideration, to do or not to do a particular thing. 2 Bl. Comm. 442; 2 Kent, Comm. 449. Justice v. Lang, 42 N. Y. 496, 1 Am. Rep. 576; Edwards v. Kearzey, 96 U. S. 599, 24 L. Ed. 793; Canterberry v. Miller, 76 111. 355.
A covenant or agreement between two or more persons, with a lawful consideration or cause. Jacob.
A deliberate engagement between competent parties, upon a legal consideration, to do, or abstain from doing, some act Wharton.
A contract or agreement is either where a promise is made on one side and assented to on the other; or where two or more persons enter into engagement with each other by a promise on either side. 2 Steph. Comm. 54.
A contract is an agreement by which one person obligates himself to another to give, to do, or permit, or not to do, something expressed or implied by such agreement Civ. Code La. art. 1761; Flsk v. Police Jury, 34 La. Ann. 45.
A contract is an agreement to do or not to do a certain thing. Civ. Code Cal. f 1549.
A contract is an agreement between two or more parties for the doing or not doing of some specifled thing. Code Ga. 1882, ft 2714.
A contract is an agreement between two or more persons to do or not to do a particular thing; and the obligation of a contract is found in the terms in which the contract is expressed, and is the duty thus assumed by the contracting parties respectively to perform the stipulations of such contract. When that duty is recognized and enforced by the municipal law, it is one of perfect, and when not so recognized and enforced, of imperfect, obligation. Barlow v. Greogory, 31 Conn. 265.
The writing whiclj contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation.
Classification. Contracts may be classified on several different methods, according to the element in them which is brought into prominence. The usual classifications are as follows:
Record, specialty, simple. Contracts of record are such as are declared and adjudicated by courts of competent jurisdiction, or entered on their records, including judgments, recognizances, and statutes staple. Hardeman v. Downer. 39 Ga. 425. These are not properly speaking contracts at all, though thev mav be enforced by action like contracts. Specialties, or special contracts, are contracts under seal. Much as deeds and bonds. Ludwig v. Rungart 26 Misc. Rep. 247, 56 N. Y. Supp. 51. All others are included in the description •'simple" contracts; that is, a simple contract is one that is not a contract of record and not under seal; it may be either written or oral, in either case it is called a "parol" contract, the distinguishing feature being the lack of a seal. Webster v. Fleming, 178 111. 140, 52 N. E. 975; Perrine v. Cheeseman, 11 N. J. Law, 177, 19 Am. Dec. 388; Corcoran v. Railroad Co., 20 Misc. Rep. 197, 45 N. Y. Supp. 861: Justice v. Lang, 42 N. Y. 498. 1 Am. Rep. 576. . Express and implied. An express contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it being stated in distinct and explicit language, either orally or in writing.
2 Bl. Comm. 443 ; 2 Kent Comm. 450; Linn v. Ross, 10 Ohio, 414, 36 Am. Dec 95; Thompson v. Woodruff, 7 Cold. (Tenn.) 401; Greval) v.^Whiteman, 32 Misc. Rep. 279, 65 N. Y. Supp. 974. An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct, the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding. Miller's Appeal, 100 Pa. 568. 45 Am. Rep. 394; Wickham v. Weil (Com. PI.) 17 N. Y. Supp. 518; Hinkle v. Sage, 67 Ohio St. 256, 65 N. E. 999; Power Co. v. Montgomery, 114 Ala. 433. 21 South. 960; Railway Co. v. Gaffney, 65 Ohio St. 101, 61 N. E. 152: Jennings v. Bank, 79 Cal. 323, 21 Pac. 852, 5 L R. A. 233, 12 Am. St. Rep. 145; Deane v. Hodge, 35 Minn. 146, 27 N. W. 917, 59 Am. Rep. 321; Bixby v. Moor, 51 N. H. 403. Implied contracts are sometimes subdivided Into those "implied in fact" and those "implied in law," the former being covered by the definition just given, while the latter are obligations imposed upon a person by the law, not in pursuance of his intention and agreement, either expressed or implied, but even against his will and design, because the circumstances between the parties are such as to reader it just that the one should have a right, and the other a corresponding liability, similar to those which would arise from a contract between them. This kind of obligation therefore rests on the principle that whatsoever it is certain a man ought to do that the law will suppose him to have promised to do. And hence it is said that, while the liability of a party to an express contract arises directly from the contract It is just the reverse in the case of a contract "implied in law," the contract there being implied or arising from the liability. Musgrove V. Jackson, 59 Miss. 392; Bliss v. Hoyt. 70 Vt. 534. 41 Atl. 1026: Linn v. Ross, 10 Ohio, 414. 36 Am. Dec. 95; Peonle v. Speir, 77 N. Y. 150; O'Brien v. Young. 95 N. Y. 432, 47 Am. Rep. 64. But obligations of this kind are not properly contracts at all, and should not be so denominated. There can be no true contract without a mutual and concurrent intention of the parties. Such obligations are more pronerlv described as "quasi contracts." Wil-lard v. Doran. 48 Hun, 402, 1 N. Y. Supp. 588; People v. Soeir. 77 N. Y. 150: Woods v. Ayres, 39 Mich. 350, 33 Am. Rep. 396; Bliss v. Hoyt 70 Vt 534, 41 Atl. 1026; Keener, Quasi Contr. 5.»
Executed and executory. Contracts are also distinguished into executed and executory; executed, where nothing remains to be done by either party, and where the transaction is completed at the moment that the arrangement is made, as where an article is sold and delivered, and payment therefor is made on the spot; executory, where some future act is to be done, as where an agreement is made to build a house in six months, or to do an act on or before some future day, or to lend money upon a certain interest, payable at a future time. Farrington v. Tennessee. 95 U. S. 683. 24 L. Ed. 558; Fox v. Kitton, 39 111. 532: Watkins v. Nugen, 118 Ga. 372, 45 S. E. 262; Kynoch v. Ives, 14 Fed. Cas. 890: Watson v. Coast, 35 W. Va. 463, 14 S. E. 249; Keokuk v. Electric Co., 90 Iowa, 67, 57 N. W. 689; Hatch v. Standard Oil Co., 100 U. S. 130, 25 L. Ed. 554; Foley v. Felrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39. But executed contracts are not properly contracts at all, except reminiscently. The term denotes rights in property which have been acquired by means of contract; but the parties are no longer bound by a contractual tie. Mettel v. Gales, 12 S. D. 632, 82 N. W. 181.
Entire and severable. An entire contract is one the consideration of which is entire on both
sides. The entire fulfillment of the promise by either is a condition precedent to the fulfillment of any part of the promise by the other. Whenever, therefore, there is a contract to pay the gross sum for a certain and definite consideration, the contract is entire. A severable contract is one the consideration of which is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consideration on the other side, as a contract to pay a person the worth of his services so long as he will do certain work: or to give a certain price for every bushel of so much corn as corresponds to a sample. Potter v. Potter, 43 Or. 149. 72 Pac. 702; Telephone Co. v. Root (Pa.) 4 Atl. 829; Horseman v. Horseman, 43 Or. 88, 72 Pac. 098; Norrington v. Wright (C. C.) 5 Fed. 771;
Dowley v. Schiffer (Com. PI.) 13 N. Y. Supp. 552; Osgood v. Bauder, 75 Iowa, 550, 39 N. W. 887, 1 L R. A. 655. Where a contract con-
sists of many parts, which may be considered as parts of one whole, the contract is entire. When the parts may be considered as so many distinct contracts, entered into at one time, and expressed in the same instrument, but not thereby made one contract, the contract is a separable contract. But, if the consideration of the contract is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items, 2 Pars. Cont. 517.
Parol. All contracts which are not contracts of record and not specialties are parol contracts. It is erroneous to contrast "parol** with "written." Though a contract may be wholly in writing, it is still a parol contract If it is not under seal. Yarborough v. West, 10 Ga. 478; Jones v. Holliday, 11 Tex. 415, 62 Am. Dec 487; Ludwigv. Bungart, 26 Misc Rep. 247, 56 N. X. Supp. ML
Joint and several. A Joint contract is one made by two or more promisors, who are jointly bound to fulfill its obligations, or made to two or more promisees, who are jointly entitled to require performance of the same. A contract may be "several" as to any one of several promisors or promisees, if he has a legal right (either from the terms of the agreement or the nature of the undertaking) to enforce his individual interest separately from the other parties. Rainey v. Smizer, 28 Mo. 310; Bartlett v. Bobbins, 5 Mete (Mass.) 186.
Principal and accessory. A principal contract is one which stands by itself, justifies its own existence, and is not subordinate or auxiliary to any other. Accessory contracts are those made for assuring- the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. Civ. Code La. art. 1764.
Unilateral and bilateral. A unilateral contract is one in which one party makes an express engagement or undertakes a performance, without receiving in return any express engagement or promise of performance from the other. Bilateral (or reciprocal) contracts are those by which the parties expressly enter into mutual engagements, such as sale or hire. Civ. Code La. art. 1758; Poth. Obi. 3, 1. 3, 2; Montpelier Seminary v. Smith, 69 Vt. 382, 38 Atl. 66; Laclede Const. Co. v. Tudor Ironworks, 169 Mo. 137, 69 S. W. 388.
Consensual and real. Consensual contracts are such as are founded upon and completed by the mere agreement of the contracting parties, without any external formality or symbolic act to fix the obligation. Real contracts are those in which it is necessary that there should be something more than mere consent, such as a loan of money, deposit or pledge, which, from their nature, require a delivery of the thing, (res.) Inst. 3, 14, 2; Id. 3, 15; Halifax, Civil Law, b. 2, c. 15, No. 1. In the common law a contract respecting real property (such as a lease of land for years) Is called a "rear contract. 3 Coke, 22s.
Certain and hazardous. Certain contracts are those in which the thins to be done is supposed to depend on the will of the party, or when, in the usual course of events, it must happen in the manner stipulated. Hazardous contracts are those in which the performance of that which is one of its objects depends on an uncertain event Civ. Code La. 1769.
Commutative and independent. Commutative contracts are those in which what is done, given, or promised by one party is considered as an equivalent to or in consideration of what is done, given, or promised by the other. Civ. Code La. 1761; Ridings v. Johnson, 128 U. S. 212, 9 Sup. Ct 72, 32 L. Ed. 401. Independent contracts are those In which the mutual acts or promises have no relation to each other, either as equivalents or as considerations. Civ. Code La. 1762.
Gratuitous and onerous. Gratuitous contracts are those of which the object is the benefit of the person with whom it is made, without any profit or advantage received or prom* ised as a consideration for it. It is not bow ever, the less gratuitous if it proceed either from gratitude for a benefit before received or • from the hope of receiving one hereafter, although such benefit be of a pecuniary nature. Onerous contracts are those in which something is given or promised as a consideration for the engagement or gift, or some service, interest, or condition is imposed on what is given or promised, although unequal to it in value. Civ. Code La. 1766. 1767; Penitentiary Co. v. Nelms. 65 Ga. 505, 38 Am. Rep. 793.
Mutual interest, mixed, etc. Contracts of "mutual interest" are such as are entered Into for the reciprocal interest and utility of each of the parties; as sales, exchange, partnership, and the like. "Mixed" contracts are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge. Contracts "of beneficence" are those by which only one of the contracting parties is benefited; as loans, deposit and mandate. Poth. Obi. 1, 1, 1, 2.
A conditional contract is an executory contract the performance of which depends upon a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do or not to do something, but it is a contract whose very existence and performance depend upon a contingency. Railroad Co. v. . Jones, 2 Cold. (Tenn.) 584; French v. Osmer, 67 Vt 427, 32 Atl. 254.
Constructive contracts are such as arise when the law prescribes the rights and liabilities of persons who have not in reality entered into a contract at all, but between whom circumstances make It just that one should have a right, and the other be subject to a liability, similar to the rights and liabilities in cases of express contract. Wickham v. Weil (Com. PI.) 17 N. Y. Supp. 518; Graham v. Cummings, 20$ Pa. 516, 57 Atl. 943; Robinson v. Turrentlne "C. C.) 59 Fed. 559; Hertsog v. Hertaog, 29 ^a. 465.
Personal contract. A contract relating to personal property, or one which so far involves the element of personal knowledge or skill or personal confidence that it can be performed only by the person with whom made, and therefore is not binding on his executor. See Janin v. Browne, 59 Cal. 44.
Special contract. A contract under seal; a specialty; as distinguished from one merely oral or in writing not sealed. But in common usage this term is often used to denote an express or explicit contract, one which clearly efines and settles the reciprocal rights and obligations of the parties, as distinguished from one which must be made out, and Its terms ascertained, by the inference of the law from the nature and circumstances of the transaction.
Compound words and phrases.—Contract of benevelonce. A contract made for the benefit of one of the contracting; parties only, as a mandate or deposit.—Contract of record. A contract of record is one which has been declared and adjudicated by a court having; jurisdiction, or which is entered of record in obedience to, or in carrying out, the judgments of a court. Code Ga. 1882, § 2716.— Contract of sale. A contract by which one of the contracting parties, called the "seller," enters into an obligation to the other to cause him to have freely, by a title of proprietor, a thing, for the price of a certain sum of money, which the other contracting party, called the "buyer/' on his part obliges himself to pay. Poth. Cont.; Civ. Code La. 1000, art. 2439: White v. Treat (C. C.) 100 Fed. 291; Sawmill Co. v. O'Shee, 111 La. 817, 35 South. 919.— Pre-contract. An obligation growing out of a contract or contractual relation, of such a nature that it debars the party from legally entering into a similar contract at a later time with any other person; particularly applied to marriage.—Quasi contracts. In the civil law. A contractual relation arising out of transactions between the parties which give them mutual rights and obligations, but do not involve a specific and express convention or agreement between them. Keener, Quasi Contr. 1; Bracket* v. Norton, 4 Conn, 524, 10 Am. Dec. 179; People v. Speir, 77 N. Y. 150; Willard v. Doran, 48 Hun, 402. 1 N. Y. Supp. 588; Mc-Sorley v. Faulkner (Com. PI.) 18 N. Y. Supp. 460; Railway Co. v. Gaffney, 65 Ohio St. 104. 61 N. E. 153. Quasi contracts are the lawful and purely voluntary acts of a man, from which there results any obligation whatever to a third person, and sometimes a reciprocal obligation between the parties. Civ. Code La. art. 2293. Persons who have not contracted with each other are often regarded by the Roman law, under a certain state of .facts, as if they had actually concluded a convention between themselves. The legal relation which then takes place between these persons, which has always a similarity to a contract obligation, is therefore termed "obligatio quasi ex contractu." Such a relation arises from the conducting of affairs without authority, (ncgotiorum gestio,) from the payment of what was not due. (solutio indebiti,) from tutorship and curatorsbip, and from taking possession of an inheritance. Mackeld. Rom. Law, § 491.—Subcontract. A contract subordinate to another contract, made or intended to be made between the contracting parties, on. one part, or some of them, and a stranger. 1 H. Bl. 37. 45. Where a person has contracted for the performance of certain work, (e. g., to build a house,) and he in turn engages a third party to perform the whole or a part of that which is included in the original contract, (e. g., to do the carpenter work.) his agreement with such third person is called a "subcontract," and such person is called a "subcontractor." Central Trust Co. v. Railroad Co. (C. C.) 54 Fed. 723; Lester V. Houston, 101 N. C. 605, 8 S. E. 366.
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