A. Nature of contracts; express or implied contracts.

A. contracted with a railroad corporation to build a section of their road, and employed B. for a fixed compensation to superintend the workmen. He afterwards assigned his contract with the company to C. B. went into C.'s employ, performing the same duties as before, but making no express contract as to wages. Held, these facts did not raise an implied contract between B. and C., that B. should work for his former wages, but were only evidence upon the point for the jury. - Connor v. Hackley, 2 Met.

613.

B. Consideration of contracts.

1. A fund having been raised for the benefit of A. and B., a trustee thereof paid to A. the greater part of her share of the principal, taking from her and her husband a full release, and thereupon agreed to pay the residue of the fund, which would have belonged to A., to her children, after her death. The donors of the fund afterwards confirmed the doings of the trustee, but made new limitations of the fund, inconsistent with the above agreement. Held, the agreement was without consideration, and not confirmed by the donors. Vincent v. Gorham, 3 Met. 343.

2. The defendant, holding a mortgage from one A., and wishing to sell the land, took from A. a quitclaim deed, with release of dower. He then made a contract with the plaintiff, that, if he should receive from a sale of the land $200 more than his claim against A., he would pay $ 100 to the plaintiff for the use of A.'s wife and children. The plaintiff brings a suit upon this contract, the wife of A. having previously died. Held, the contract was founded on a valid consideration.Needham v. Sanger, xvii. 500.

3. A., holding the joint and several note of B. and C., which was due, and having received part payment from B., promised him to look to C. for the balance. Held, this promise was void for want of consideration, and A. might still maintain an action for such balance against B. Smith v. Bartholomew, 1 Met. 276.

4. Where A., holding a demand against B., voluntarily releases it, for the purpose of making B. a competent witness, a subsequent promise by B. to pay such demand is not founded upon any such moral obligation, as constitutes a sufficient legal consideration, and is therefore void. Valentine v. Foster, 1 Met. 520.

5. Promise as follows, "I agree with A. to give up his note for the stock, and allow him in account the sum paid thereon, de

pending on his exertion to free me from that concern without further loss." Held, if, at the time, there was a possible liability of the promiser to further loss, from the source referred to, there was a valid consideration for the promise. - Hubbard v. Coolidge, 1 Met. 84.

6. A moral obligation is not a sufficient consideration for an express promise, without some preëxisting legal consideration. Dodge v. Adams, xix. 429.

7. Pending a libel for divorce against the defendant, his minor children were taken from his house without his consent, and without any neglect on his part to provide for them, and boarded by the plaintiff, the father of his wife. The defendant, after they had been thus boarded, promised to pay therefor. Held, the agreement was void for want of consideration.

Ibid.

8. An entire promise, founded in part upon an executed, and in part upon an executory consideration, is valid upon the latter ground. Loomis v. Newhall, xv. 159.

9. The members of an unincorporated religious society proposing to erect a meeting-house, several of them entered into a mutual written agreement, to take and pay for the number of shares set against their names, and pay so much on each share, to such person as the majority of share-holders, present at a meeting to be held for that purpose, should elect as treasurer; such treasurer to give bond with sureties, and pay over the money received by him to the treasurer that should be chosen by the share-holders, when organized under a proposed charter. A. subscribed for shares, and B. was chosen treasurer, and gave the required bond. subscribers were afterwards incorporated, organized, and elected C. treasurer. A. having refused to pay his subscription, B. brings an action therefor against him. Held, A.'s promise was founded on a sufficient consideration, and the action rightly brought by B. Thompson v. Page, 1 Met. 565.

The

10. Action by the treasurer, against a member, of an unincorporated, volunteer, military company, to recover an assessment. The action was founded upon certain constitutional articles, signed by the defendant with other members, whereby they severally agreed to pay the treasurer for the time being, all fines and assessments that should become due to him or the company. No money was proved to have been advanced, or expense incurred, upon the strength of this engagement. Held, the promise was void for want of consideration. Warren v. Stearns, xix. 73.

11. Held, that fines incurred under the articles, (differing from those imposed by the militia laws,) could not, any more than the assessments, be recovered. Ibid.

C. Parties to contracts.

1. Contract between A. and the owners of a blacksmith's shop, that A. should take charge of it, and follow his trade as a blacksmith and agent; have the profits of his labor, in payment for the shop and the stock that should be furnished, B., one of the defendants, being appointed by them agent to buy the necessary stock; and, whenever A. should have paid a certain sum for the shop and the cost of the stock, that they would convey the shop to him. A. agreed, that he would deliver to B. a monthly account of the work done, that the books should be kept in the name of the defendants, and that B. should collect the bills, allowing A. what should be necessary for himself and family. The plaintiff brings an action against the defendants, for work done by him in the shop on the application of A., but there was no evidence of its being done on the credit of the defendants. the action would not lie. Anderson v. Fuller, xviii. 572.

Held,

2. Assumpsit. Declaration upon a written contract between the plaintiffs and defendant, by which he agreed to sell and deliver them all the wool he should cut annually for five years from his flock of sheep, and the wool which should be cut during the same time from the flocks of his two sons. The plaintiffs offered in evidence a written contract, purporting to be made between them and the defendant, but signed also by his sons, in which the defendant agreed to sell and deliver the wool, as alleged; and also providing, that the sons should improve their flocks in a certain manner, and retain the increase, and that the fleeces of such increase should be delivered to the plaintiffs, who also agreed to pay the defendant and his sons so much per pound. Held, there was no variance, because the agreement, or, if the sons were parties to that, the promise declared on, was the sole contract of the defendant. Stearns v. Foote, xx. 432.

3. Held, though one of the sons owned his flock in common with a stranger, yet, as the latter had let his moiety to the son, and the whole of the wool was sheared by, and belonged to, the son, the contract embraced, not merely one half, but the whole, of the wool. Ibid.

4. Action by the treasurer, against a member, of an unincorporated, volunteer military company, to recover an assessment. The action was founded upon certain constitutional articles, signed by the defendant, with other members, whereby they severally agreed to pay the treasurer for the time being all fines and assessments that should become due to him or the company. Held, the action did not lie, because the defendant, having an interest in the company funds, was in effect suing himself. Warren v. Stearns, xix. 73.

D. What avoids contracts.

1. If, after the execution and delivery of an unattested bond, the obligee, without the knowledge and assent of the obligor, fraudulently, and to obtain an improper advantage, procures a person to sign it as a witness, who was not present at the execution; this avoids the bond. - Adams v. Frye, 3 Met. 103.

2. A fraudulent intent may be inferred from the act itself. But evidence is admissible to rebut such inference, and, if sufficient for this the alteration will not avoid the bond. purpose,

Ibid.

3. Sale of goods, the vendor agreeing to receive in payment the note of one A., indorsed by the payee and one B. Such note was delivered, but the indorsements were forged. Held, the seller must rescind the agreement and return or offer to return the note, before he could maintain an action for goods sold and delivered. Coolidge v. Brigham, 1 Met. 547.

4. One party to a contract cannot rescind it for the default of the other, unless both can be restored to their original condition. It must be rescinded in toto, and the party rescinding must restore any thing which he has received of the other, however trifling in value. Ibid.

5. A promise is not void, as founded upon the consideration of stifling a criminal prosecution, if made from motives of kindness and compassion, and not of gain. - Ward v. Allen, 2 Met. 53.

6. A cashier's bond is not void, as against the policy of the law, because some of the board of directors who approved the bond executed it as sureties. - Amherst, &c. v. Root, 2 Met.

522.

7. An agreement by one person, that another shall convey property to a third, is not void, because the contractor may be unable to perform it. Stearns v. Foote, xx. 432.

8. An agreement between D. and F. recited, that D. was the owner of land, whose value would be increased, if the Boston and Worcester Railroad Corporation should establish their depot on certain flats; and, in order to procure the corporation to make such location, that a joint stock company must be formed, to buy the flats, and give a part of them to the corporation for the depot; and that F. had agreed to aid in getting up such a company and causing the corporation so to locate its depot, it being understood that he is of opinion that the corporation, with a view to the public good, and the interest of its stockholders, ought to have its depot there; and D. agrees to pay F. a certain sum, upon the location of the depot in that place. A company was then formed

and incorporated, with power to buy and hold the flats, and to give a part of them to the railroad corporation, as an inducement to fix the depot there, which was accordingly done by a mutual agreement between the two corporations. F. was a member of the railroad corporation at the time of making the contract with D., and afterwards became a member of the joint stock company. There was no agreement that the contract should be kept secret, but it was in fact known only to the parties and the subscribing witnesses. Held, the contract was void, as being against public policy, and open, upright and fair dealing, because it operated unfavorably upon the public, in respect to the fittest place for the depot, and also upon the two corporations. — Fuller v. Dame, xviii. 472.

9. If a sale of lottery tickets is made in another State, where such sale is lawful, to a citizen of this State, it is a lawful transaction, though the seller knows that they are bought to be sold in Massachusetts, where the sale is forbidden; and, if the buyer gives a note for the price, and as security therefor assigns to the seller a mortgage of real estate, an action will lie in this State upon such mortgage. McIntyre v. Parks, 3 Met. 207.

10. Agreement between A. and B., that B. would permit A. to buy a lot of land at auction, and that A would buy it, and convey a certain portion to B., at an appraisement to be made by particular persons. Held, not on the face of it an illegal and void contract. Phippen v. Stickney, 3 Met. 384.

11. A contract of this nature is void, where the object is to prevent competition at the sale, and reduce the price below the fair market value. Otherwise, if the purpose is, to enable one to purchase a part, who does not wish to buy the whole, of the property, or any other, which is honest and reasonable. - Ibid.

E. Parol evidence in relation to written contracts, and what contracts must be in writing. (See Frauds, Statute of.)

1. The plaintiffs contracted with the defendants, a canal corporation, to construct a portion of the canal for a certain sum per cubic yard of excavation and embankment, the defendants to pay 75 per cent. on the estimates of the engineer, which were to be made monthly as the work advanced, and the balance on its completion, together with a further sum for losses in the construction of the work prior to the contract. Before completion of the work, a part of the embankment and excavation was washed