Contracts made during a state of drunkenness are voidable, upon the ground, that it is a state of temporary idiocy or lunacy. By the common law Minors cannot contract, except for necessaries, such as food, clothing, medicine and education; and in judging of what are necessaries, the comparative age and position of the party will be considered. If one lend money to a minor, it would seem that the borrower would not be bound, though he lay it out on necessaries, as the necessity is judged of from the nature of the contract, not from what the minor may do in consequence of it. A Wife, during intermarriage, is incapable, without her husband's consent, of acting on an agreement; except with respect to such real and personal property as is secured to her by deeds of trust. No sum exceeding

one dollar can be recovered of a Seaman in the merchant service, for a debt contracted during the time he shall actually belong to any ship or vessel, until the voyage be ended.

In Massachusetts, no action can be brought in any of the following cases:

First, to charge an executor or administrator, upon any special promise to answer damages out of his own

estate or

Secondly, to charge any person, upon any special promise to answer for the debt, default, or misdoings of another or

Thirdly, to charge any person, upon an agreement made upon consideration of marriage or

:

Fourthly, upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them: or

Fifthly, upon any agreement that is not to be performed within one year from the making thereof; unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person by him lawfully authorized. The consideration of any such promise need not be in writing. (R. S. c. 74.) person is liable by reason of any representation,

No

WRITTEN AGREEMENTS.

27

recommendation, or assurance, made concerning the character, conduct, credit, ability, trade or dealings of . any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby. (ib.)

No contract for the sale of any goods,* wares or merchandize, for the price of fifty dollars or more, shall be good or valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain be made by the party to be charged thereby. (ib.)

An assignee in insolvency is not to be personally liable on any special promise, contract or agreement, unless the same shall be in writing, and signed by him.

A new promise, by a debtor, to pay a debt, which has been running more than six years, and which cannot therefore be collected without a renewal of the promise, must be in writing, signed by the debtor, otherwise it will be of no force. (ib. c. 120.)

It is not necessary, however, that the memorandum should be signed by both parties. It is sufficient if the name of the party charged appear thereupon; and he will be bound, not only when it is signed by him, but whenever his name is written or printed within the body thereof, by his own order, or with his consent.

The advantages of reducing all contracts and agreements into writing must be evident to every thinking mind, and that from a principle which all acknowledge, and to a certain extent, act up to- that of reducing everything, as far as practicable, to certainty. If a contract is reduced to writing, a denial of it becomes impossible, from even the most unprincipled; and forgetfulness of it, by one side, immaterial; since the proof of its having been entered into is in the possession or power of the other side; and any disagreement as to its nature, terms or conditions, will be less liable to arise than if left to unassisted memory.

Written contracts are presumed to contain all the

* Provisions in relation to the delivery of mortgaged goods, &c., see title "Mortgages," &c.

terms and conditions which the parties to them have agreed on; and inasmuch as they manifestly contain a more deliberate and definite record of the intention and mutual understanding of the parties, than that loose talk which usually precedes a contract, the law has rightly insisted, that the parties shall not contradict such an instrument by parol evidence. If the terms of a written contract are ambiguous, they may be explained verbally; but no evidence to contradict what is written, by showing that the parties at the time intended something different, can be offered, unless there has been fraud.

It is not necessary that the terms and conditions of a contract, when in writing, should all be specified in the same document; they may be contained in several papers, such as letters, from which the whole terms may be collected; it must, however, be clear that there is a distinct agreement between the parties - that there has been a proposal on one side, and an acceptance of such proposal on the other.

-

All Contracts and Agreements not under seal are void unless founded on some consideration. A valid and sufficient consideration or recompense for making, or motive or inducement to make the promise upon which a party is charged, is of the very essence of a contract not under seal, and must exist, although the contract be reduced into writing; otherwise the promise is void, and no action can be maintained thereon.

All promises, therefore, which are wholly gratuitous, are void for want of consideration. To make a promise binding, the party making the promise must have obtained some advantage, or the party to whom it is made must have suffered some loss or sustained some injury and inconvenience, in consequence of the one party making and the other accepting the promise.

It is not, however, necessary, in order to constitute a sufficient consideration, that a benefit should accrue to the person making the promise; it is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction. Thus, where a benefit is done to a third person, at the request of the promiser, it is sufficient to support the promise.

WRITTEN AGREEMENTS.

29

Mere inadequacy of consideration will not render a promise of no force; for if a contract is deliberately made, without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient. (5 Pick. 384.)

Promise to pay the debt of another, when binding. It has already been seen, that a promise to pay the debt of a third person must be in writing, or it is of no force.

It is not necessary, however, that the promise should be in writing, if the party sought to be charged has been treated as the principal debtor, and not merely as surety for the debt of a third person.

Thus, the sale may be to one man, although the goods are to be delivered to another, and a person may promise to pay for goods supplied to or for work done at his request, or by his directions for a third party, as the real debtor, and not in the character of a surety; and if he has been treated by the person who furnished the goods or did the work, as the party liable, and credit has been given to him, his promise or undertaking to pay is not a collateral promise to answer for the debt of another.

In order to determine whether the party giving the undertaking or making the promise of payment is primarily or collaterally liable, the attending circumstances and the situation of the parties must be regarded, as well as the exact expressions used. If the seller has made the party to whom the goods have been furnished his debtor, if he describes him as such in his books, or in letters, he can only treat the other as a surety, and his promise to be binding must be in writing. 'I always," said an eminent judge, "require the tradesman to produce his books to see to whom credit has been given." (2 C. & M. 430.)

""

A promise to pay the debt of a third person must not only be in writing, but it must be for a valuable consideration. The following examples will explain what is requisite to make such a promise valid :—

As my brother owes you $28 for boots and shoes, I will pay you that sum for him on the 1st of next month.

To Mr. Jones.

L. T.

3*

THOS. NOAKES.
1st Jan., 1849.

This written undertaking is not binding, because it is for the debt of another person, which is already incurred, and there is no new consideration to support it. Had it been thus worded:

In consideration of your undertaking not to arrest my brother, (who is about to leave the state,) for the debt of $28 which he owes you for boots and shoes, I hereby undertake to pay the amount on the 1st of next month. THOS. NOAKES.

To Mr. Jones.

1st Jan., 1849.

So a

it would have been valid; because the consideration for it was the forbearing to arrest the brother. promise thus worded:

To Messrs. A. & B.- Gentlemen,-I hereby undertake to pay for any goods which you may deliver to Mr. S."

would be valid; as it is evident that A. & B. delivered the goods to S. on the above undertaking; and it is the undertaking which is the consideration for the delivery of the goods.

Anything, however trifling, done by one party for the benefit of the other, will be a legal consideration.

UNWRITTEN CONTRACTS.

As the law requiring written agreements intended only to prevent frauds and perjuries, all agreements which are, in their own nature, free from the danger of introducing frauds and perjuries are good, though not in writing.

Proof of a verbal agreement will be admitted both in law and equity to control a written agreement, when the detection of fraud renders such proof necessary, but not otherwise.

A sealed contract may be waived by a new verbal agreement. As if one contract, under seal, to build a house, and after part fulfilment, being dissatisfied with the price, refuse to go on, and the other party as an inducement, verbally agrees to pay him for his work and materials, and that he shall not suffer, the latter agreement is valid, and puts an end to the former.

All contracts are by speciality or parol; if written and not sealed, they are to be considered as parol agreements.