New York Law of Contracts, Volume 2

Briscoe Baldwin Clark

Edward Thompson Company, 1922 - Contracts

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Table of Contents

Index

Volume II	1013

Competent Parties Necessary	1015

i	1016

668 Modern View as Regards Partial Insanity	1017

669 Mental Weakness Generally	1019

670 Physical Debility and Old Age	1020

Mutes Epileptics	1022

Vagaries Eccentric Conduct Moral Depravity and Delusion	1023

Options	1323

Indefinite Contracts of Employment Generally	1324

Effect of Fixing Yearly Salary or the Like	1327

Provisions for Termination of Contract Generally	1330

Conditions Attached to Right to Terminate Generally	1332

Service and Form of Notice to Terminate	1334

Provision for Termination in Case of Dissatisfaction of Party or the Like Generally	1335

Feigned Dissatisfaction Insufficient	1338

What Constitutes Delusion	1025

Weakness of Mind in Connection with Fraud or Undue Influence	1026

676 Presumption as to Mental Capacity	1027

677 Adjudication of Incompetency Generally	1028

Retroactive Effect of Adjudication	1030

Contract Made after Inquisition	1032

Contract Made before Inquisition	1033

Contract through Agent	1034

Conveyance by Person of Unsound Mind	1035

Avoidance of Contract Generally	1038

Ratification of Contract	1039

686 Equitable Considerations for Sustaining Contract Generally	1041

Burden of Proof as to Equities for Sustaining Contract	1043

Right of Third Persons to Attack Contract or Conveyance	1044

Right of Third Persons to Protection	1045

Contracts for Necessaries Generally	1047

Legal Services and Costs in Inquisition of Lunacy	1049

Age of Majority Foreign Contracts	1052

Proof of Infancy	1053

SECTION PAGE 696 Contractual Capacity Generally	1054

Effect of Misrepresentation as to Age	1056

Liability in Tort for Misrepresentation as to Age	1057

Infant Engaged in Trade or Business	1059

Conveyances and Transfers to Infant	1060

Removal of Disability to Contract Generally	1061

Implied Removal of Disability Infant Feme Covert	1062

Life Insurance Contracted for by Infant	1063

Apprenticeship	1064

Contract of Infant as Void or Voidable Generally	1065

Conveyance or Transfer by Infant	1066

Creation of Trust	1068

Ratification of Infants Contract Generally	1069

Retroactive Effect of Ratification	1070

What Constitutes Ratification Generally	1071

Promise to Pay Debt Contracted During Infancy	1073

Admission of Contract or Indebtedness	1074

Payment on Contract	1075

Retention of Benefits of Contract	1076

Acquiescence or Delay in Disaffirmance Generally	1077

Acquiescence or Delay where Contract Is Executed in Whole or in Part by Infant	1078

Ratification by Will	1080

Avoidance of Contract Generally	1081

Time of Avoidance	1082

Contract Executed in Whole or in Part by Infant	1084

Contract for Services Recovery on Quantum Meruit	1086

Incidental Injury to Adult through Avoidance	1087

Return of Benefits Received by Infant Generally	1088

Restitution where Property Remains in Infants Hands	1090

Restitution where Contract Is Executory on Part of Infant	1091

Manner of Avoidance Generally	1093

Necessity for Resort to Equity to Avoid Conveyance	1094

Disaffirmance by Plea of Infancy	1096

Right of Bona Fide Purchaser to Protection against Avoidance	1097

Defense of Infancy as Personal to Infant Generally	1098

Right of Third Persons to Attack Transfer of Property or Assignment of Chose in Action	1100

Right of Privies in Blood or Estate	1101

Liability of Infant for Necessaries Generally	1102

Necessaries Furnished at Request of Parent or Guardian	1104

SECTION PAGE 743 Effect of Willingness of Parent or Guardian to Provide for Infant	1105

What Constitutes Necessaries Generally	1107

Education as a Necessary	1108

Complaint in Action for Necessaries	1109

Married Women 748 Common Law Disability and Rule in Equity	1110

Powers Generally	1112

Particular Contracts	1114

Contracts of Guaranty Suretyship and the Like Generally	1115

Accommodation Paper	1116

Status of Ultra Vires Contracts	1117

TABLE OF CONTENTS	1119

General Rule	1120

Exceptions to Rule Generally	1121

Person Signing but Not Named in Contract	1123

In General	1124

Executory Contract Personal in Its Nature Generally	1125

Executory Contract Not of a Personal Nature Generally	1128

Effect of Making or Failing to Make Promise Run to Assigns	1131

Executory Contract of Sale	1132

Contract of Employment	1133

Contract for Benefit of Third Person 764 In General	1135

Promise under Seal	1137

Qualification of Broad Early Rule	1138

Illustrative Applications of Qualification	1139

Intention to Benefit Third Person Generally	1141

Application of Rule as to Intent	1143

Designation of Person to Be Benefited	1145

Promise for Benefit of Relative Parent and Child	1147

Husband and Wife i	1148

More Distant Kinship	1150

SECTION PAGE 774 Promise to Master for Benefit of Servant	1151

Promise for Benefit of Creditor Generally	1152

Promise to Receiver Heirs or Distributees	1155

Promise by Contractor to Pay Employees and Materialmen	1156

Assumption of Payment of Mortgage	1157

Assumption Clause Contained in Mortgage or the Like	1159

What Constitutes Assumption or Agreement to Pay Extent of Liability	1160

Right of Assignee of Creditor to Enforce Collateral Promise	1161

Contract with State for Benefit of Third Person	1162

Contract with Municipal and Quasimunicipal Corporations Gen erally	1163

Contract Restricting Charges by Public Service Corporation	1166

Right of Promisee to Release Promisor	1167

Defenses Available against Person to Be Benefited	1170

CHAPTER XIII	1173

Modification of Sealed Contract by Parol Agreement Generally	1175

Enlargement of Time of Performance of Sealed Contract	1176

Oral Modification as Affected by Statute of Frauds	1177

Effect of Provision in Contract against Oral Modification	1179

Consideration for Modification	1180

CHAPTER XIV	1183

Question of Law or Fact General Rule	1184

Limitation of General Rule	1186

Canons of Construction Generally Value of Precedents	1188

Intention of Parties Generally	1189

Object in View	1190

Surrounding Circumstances Generally	1192

Effect of Parol Evidence Rule	1194

Construction in Light of Existing Laws and Decisions	1195

Practical Construction	1197

Construction to Uphold Contract	1200

Grammar Punctuation etc Generally	1201

Application of Rule	1202

Construction as a Whole Generally	1204

Marginal Matters and Modification Stamped on Contract	1207

Recitals	1208

Unfilled Portions of Forms	1209

SECTION PAGE 813 Inconsistencies Generally	1212

Written Controlling Printed Clauses General Rule	1214

Limitation of General Rule as to Written and Printed Matter	1215

Contract Executed in Duplicate	1216

Construction against Promisor or Author of Instrument Generally	1218

Construction in Accordance with Known Understanding of a Party	1221

Contract with State	1222

Implication of Terms Generally	1223

Particular Application of Rule Generally	1225

Implication of Covenants	1230

Implied Conditions Abrogating Contract	1232

Reasonable Construction Hard and Unreasonable Contracts	1234

Contracts Not Favored by Courts	1236

Words and Phrases Given Their Ordinary Meaning	1239

Substitution of Words and Suppiying Omissions	1240

Context Restricting Meaning of General Words	1241

Repetition of Words and Expressions	1242

Technical Words and Legal Terms	1243

Rule of Ejusdem Generis	1244

Expressio Unius Est Exclusio Alterius	1246

Express Agreement to Perform Duty Implied by Law	1247

Provision Construed as Covenant or as Condition Limitation or Representation	1248

CHAPTER XV	1251

In General	1252

Compensation by Way of Share of Profits	1254

Quantum Meruit or Valebat	1255

Work Done on Cost Plus Plan	1257

Medium of Payment	1258

Conclusiveness of Classification or Estimate	1260

Particular Matters Affecting Estimate	1262

SECTION PAGE 846 In General	1264

When Debtor Required to Seek Creditor Out of State	1266

Contracts for Support	1267

Time of Performance 849 In General	1268

When Time of Performance Not Specified	1270

Particular Contracts Considered	1272

At Once Forthwith When Convenient or the Like	1274

What Constitutes Reasonable Time or the Like	1275

Extension of Time of Performance	1278

Waiver of Time of Performance	1279

Time as Essence of Contract Generally	1281

Time as Viewed by Courts of Equity	1282

Payment of Money Generally	1285

Contract to Pay When Able or the Like	1289

Extension of Time for Payment of Money	1291

Entire and Divisible Contracts 861 In General	1292

Application of Rule as to Divisibility of Contract	1295

Indivisibility of Contract	1299

Severance of Entire Contract in Its Performance	1302

Dependent and Independent Promises 865 In General	1304

Special Contracts Considered	1307

Apportionment of Consideration as Test of Dependency	1308

Time of Performance as Test of Dependency Generally	1310

Application of Rule	1312

Concurrent Promises as Dependent	1314

Burden of Proof of Performance as Test of Dependency	1316

CHAPTER XVI	1317

Contingencies for Duration or Termination	1319

Usage or Custom as Fixing Duration	1320

Construction of Particular Contracts as to Duration Generally	1321

Contracts for Sale and Removal of Timber and the Like	1322

CHAPTER XVII	1359

Duty to Perform Personally	1366

Removal of Obstacles to Performance at Expense of Party	1372

Tender of Performance Generally	1378

SECTION PAGE 911 In General	1382

Covenants and Warranties Surviving Acceptance	1386

What Constitutes Acceptance or Waiver	1388

Substantial Performance 914 In General	1391

Contracts to Which Doctrine Applicable	1392

What Constitutes Substantial Performance Generally	1396

Good Faith	1398

Question of Law or Fact	1400

Allowance for Defects and Omissions	1402

Extent of Omissions or Amount Necessary to Complete Perform ance as Test	1404

Particular Instances of Omissions and Defects	1406

Excess in Quantity or Dimensions	1409

Recovery on Special Contract Denial of Substantial Performance	1410

Approval or Determination of Performance by Party 924 In General	1411

Good Faith as Affecting Decision	1412

Reasonable Grounds for Dissatisfaction	1414

Application Generally of Rule Requiring Reasonable Grounds for Dissatisfaction	1416

Application Generally of Rule as to Contract to Gratify Taste etc	1417

Contract for Personal Services	1421

Title to Property	1424

Performance to Satisfaction or Approval of Third Person 932 In General	1426

Submission of Question of Performance to Third Person Generally	1429

Claims Covered by Provision	1431

Person Required to Approve Performance	1432

Form of Certificate of Approval	1434

Conclusiveness of Approval or Disapproval Generally	1436

Intermediate Certificate of Performance	1440

Effect of Completing Work on Account of Contractor	1444

Waiver of Certificate	1445

Delay in Performance 942 In General	1446

Excuse for Delay Generally	1449

Extension of Time for Performance and Waiver of Delay	1451

Provision for Determining Cause of Delay	1452

Contract for Payment in Property or the Like 946 In General	1453

Particular Incidents Arising Out of Such Contracts	1455

ness Generally	1463

Anticipatory Breach	1470

Application of Rule	1475

CHAPTER XVIII	1479

Promise to Pay from Particular Fund	1488

Defective Plans and Specifications as Excuse	1495

Default in Performance of Mutual Promise Generally	1503

SECTION PAGE 973 In General	1506

Application of Rule Generally	1509

War	1511

Destruction of Building or Article in Course of Erection or Manufacture	1513

Implied Conditions Excusing Performance 977 In General	1514

Application of Rule Generally	1515

Destruction of Specific Property Sold	1517

Death Sickness or the Like	1520

Dissolution of Corporation	1521

Act of Law as Excuse 982 In General	1522

Application of Rule	1524

Foreign Law	1527

CHAPTER XX	1528

General Liability of Joint and Several Promisors	1529

When Promise Considered Joint or Several as to Promisees	1530

When Promise Considered Several as to Promisors	1531

When Promise Considered Joint as to Promisors	1532

Effect of Release or Discharge of One Joint Promisor	1535

Taking Judgment against Part of Copromisors Common Law Rule	1537

Statutory Modification	1539

Payment by One Joint Obligor	1540

Death of Coobligor Common Law Rule as to Liability of Estate	1541

Relief in Equity against Estate of Deceased Obligor	1542

Statutory Modification of Common Law Rule	1545

Common Law Rule as to Joinder of Joint Promisors	1547

Statutory Provision for Judgment against Obligors Not Served	1549

Common Law Rule as to Joinder of Several Promisors	1550

Statutory Modification of Common Law Rule	1551

Statutory Provision for Judgment against Part of Defendants	1552

Default or Confession by One Copromisor	1554

Joinder of Copromisees in Enforcement	1555

Release by One Copromisee	1557

Multipartite Agreement	1558

CHAPTER XXI	1560

Rescission of Sealed Contract by Parol Agreement	1561

CHAPTER XXII	1600

Contract Contrary to Law Not Implied	1607

SECTION PAGE 1034 Duties Imposed by Law as Basis for Implied Contract	1608

Benefits Received Generally as Basis for Implied Contract	1610

Use of Chattels	1611

Judgment Penalty Imposed by Statute	1614

Funeral Expenses	1615

Liability of Municipal or QuasiMunicipal Corporation Gen eral Rule	1618

Qualification of General Rule Statutory Restrictions	1620

Waiver of Tort Generally 1043 General Rule	1621

Effect of Election	1622

Nature of Action as in Contract or Tort	1624

Goods Sold and Delivered 1046 In General	1625

Waiver of Tort	1628

Money Lent 1048 In General	1630

Proof of Loan Presumptions	1631

Pleading	1633

Money Paid for Use or Benefit of Another 1051 In General	1634

Money Paid in Aid of Poor Person	1637

Voluntary Payment of Debt of Another	1638

Payment of Debt of Another for Selfprotection	1639

Reimbursement of Surety	1640

Contribution between Cosureties Generally	1641

Rebutting Implication of Contract for Contribution	1642

Oral Evidence to Rebut Implied Contract for Contribution	1643

Contribution and Exoneration between Tortfeasors	1644

Necessity for Actual Payment of Money	1646

Money Had and Received Generally 1061 In General	1647

Equitable Consideration	1650

Illustrations of Rule Generally	1651

Money Wrongfully Obtained	1654

Payment Induced by Frand of Third Person	1655

Following Money into Hands of Third Person	1656

Money Received by Agent for Principal	1657

Money Received by Agent for Use of Third Person	1659

Proceeds of Goods Sold by Tortfeasor	1660

Proceeds of Insurance on Property of Bailor	1661

Restitution on Reversal of Judgment	1662

Payment on Contract of Sale	1665

SECTION PAGE 1075 Witness Fees Paid Nonattending Witness	1666

Payment to Rival Claimant General Rule	1667

Qualification of General Rule	1668

Rival Claims Arising Out of Assignments	1669

Exceptions to General Rule	1672

Joint Liability Tortfeasors	1674

Pleading	1676

Voluntary Payments 1084 In General	1678

Payment of Public Funds	1679

Involuntary Payments 1086 In General	1680

Taxes and Assessments Paid under Compulsion	1681

Payments under Mistake 1088 Payments under Mistake of Law	1682

Payments under Mistake of Fact General Rule	1684

Application of Rule Generally	1686

Payment of Checks Drafts etc	1687

Mistake in Computations by Third Person	1689

Negligence in Ascertaining Facts Forgetfulness	1690

Necessity for Restoring Status Quo	1691

Demand before Action	1693

Services Rendered Generally 1096 Express Contract	1694

Extra Services	1695

Services Rendered under Void or Unenforceable Contract	1697

Services Rendered for Mutual Benefit	1700

Services Fraudulently Procured	1701

Implied Liability of Consignee for Freight	1702

Services Rendered on Request Generally 1103 General Rule	1703

Application of General Rule	1705

Person Making Request	1707

Services Rendered on Request of Married Woman	1708

Effect of Legacy on Right to Compensation	1710

Rebutting Presumption as to Compensation Generally	1711

Delay in Asserting Claim	1713

Relation between Parties as Affecting Compensation for Services 1111 In General	1715

Family Relation Services Rendered to Parent or Person in Loco Parentis	1717

Husband and Wife Man and Mistress	1720

SECTION PAGE 1114 More Distant Relationship between Members of Family	1722

Rebutting Presumption that Services Were Gratuitous	1724

Services Rendered without Request 1116 General Rule	1725

Services in Extinguishment of or Saving Property from Fire	1727

Qualification of General Rule as to Unrequested Services	1728

Illustrations of Qualification of General Rule	1729

Physician Called in by Third Person	1731

Ignorance of Identity of Person Rendering Services	1732

Support Furnished Member of Family 1122 General Rule	1733

Application of General Rule	1734

Liability of Husband to Reimburse Wife for Support of Family	1737

Services or Benefits Rendered Third Person 1125 In General	1739

Liability of Person Calling in Physician	1740

Liability of One under Contract Obligation for Anothers Support for Necessaries Furnished by Third Person	1741

Liability of Parent for Necessaries Furnished Child	1743

Liability of Husband for Necessaries Furnished Wife General Rule	1745

Qualification of General Rule	1746

Effect of Invalidity of Marriage or Divorce or Proceedings Therefor	1748

Proof of Husbands Default Demand for Support	1750

What Constitutes Necessaries Generally	1752

Money Loaned	1753

1135 Legal Services	1754

Complaint	1756

IGNORANCE OF TERMS OF WRITTEN CONTRACT	2007

UNDUE INFLUENCE	2015

CHAPTER VIII	813

CHAPTER IX	842

ILLEGALITY	874

Copyright

Common terms and phrases

Popular passages

Page 1310 - If 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...

Appears in 162 books from 1809-2005

Page 1266 - Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery...

Appears in 172 books from 1852-2007

Page 1125 - A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent.

Appears in 137 books from 1877-1999

Page 1685 - In every such case the law gives the party so paying a remedy by action, to recover back the money, as money had and received by the defendant to and for the use of the plaintiff.

Appears in 59 books from 1820-1992

Page 1388 - In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy...

Appears in 89 books from 1867-1988

Page 1573 - ... (c) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for breach of warranty. (d) Rescind the contract to sell or the sale, and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.

Appears in 197 books from 1879-2007

Page 1514 - ... because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.

Appears in 227 books from 1816-2008

Page 1648 - Whenever one person has in his possession money which he cannot conscientiously retain from another, the latter may recover it in this form of action, subject to the restriction that the mode of trial and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and that the transaction is capable of adjustment by that procedure without prejudice to the interest of third persons.

Appears in 30 books from 1888-1957

Page 1571 - That depends upon the question whether the default is so substantial and important as in truth and in fairness to defeat the essential purpose of the parties. Whatever the rule may once have been, this is the test that is now prescribed by statute. The failure to make punctual payment may be material or trivial according to the circumstances. We must know the cause of the default, the length of the delay, the needs of the vendor, and the expectations of the vendee.

Appears in 34 books from 1885-1995

Page 1572 - ... If the default is the result of accident or misfortune, if there is a reasonable assurance that it will be promptly repaired, and if immediate payment is not necessary to enable the vendor to proceed with performance, there may be one conclusion. If the breach is willful, if there is no just ground to look for prompt reparation, if the delay has been substantial, or if the needs of the vendor are urgent so that continued performance is imperilled, in these and in other circumstances, there may...

Appears in 31 books from 1885-1995

Bibliographic information

Title	New York Law of Contracts, Volume 2 New York Law of Contracts, Briscoe Baldwin Clark
Author	Briscoe Baldwin Clark
Publisher	Edward Thompson Company, 1922
Original from	Harvard University
Digitized	2 Oct 2007

Export Citation	BiBTeX EndNote RefMan

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