Further, under the stat. 9 & 10 Vict. c. 93, intituled "An Act for *compensating the families of persons killed by accidents," an injury [*151 ] to the relation of parent and child has been made actionable, which, by our common law, was not remediable; for thereby it is enacted, "that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony " (7). (500) And further, that "every such action shall be for the benefit of the wife, husband, parent (m), and child (n) of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct" (0). An action under the above statute must be commenced within twelve calendar months after the death occurred (p), and damages may be

() S. 1. The statute 9 & 10 Vict. ch. 95, is amended as regards some not very important particulars by the 27 & 28 Vict. c. 95.

(m) By sect. 5, the word " parent" shall include father and mother, and grandfather and grandmother, and stepfather and stepmother.

(n) By sect. 5, the word "child" shall

include son and daughter, and grandson and granddaughter and stepson and stepdaughter.

An illegitimate child is not within the above section: Dickinson v. North Eastern R. C., 2 H. & C. 735. (0) S. 2. (p) S. 3.

during her confinement and pays the expenses thereby incurred, the mother can maintain an action against the seducer for the injury. Furman v. Van Sise, 56 N. Y. (11 Sick.) 435. But see dissenting opinion of ALLEN, J., id. 440, where the English and American cases are carefully examined.

A father may maintain an action for the seduction of his daughter over twenty-one years of age, provided she is in his service at the time of her seduction. Millar v. Thompson, 1 Wend. 447; Keller v. Donnelly, 5 Md. 211; Kendrick v. McCrary, 11 Ga. 603; Lipe v. Eisenlerd, 32 N. Y. (5 Tiff.) 229. But she must be actually in his service. Nicholson v. Stryker, 10 Johns. 115. A guardian, master, or other person, standing in loco parentis to the person seduced may sustain the action. See Ball v. Bruce, 21 Ill. 161; Bracy v. Kibbe, 31 Barb. 273.

Pregnancy is the ordinary injurious result which furnishes the ground of action; but it will also lie for communicating to a daughter a venereal disease which disabled her from labor (White v. Nellis, 31 N. Y. [4 Tiff.] 405); and it lies, although neither pregnancy nor sexual disease has resulted therefrom, provided the proximate effect was any incapacity to labor. Abrahams v. Kidney, 104 Mass. 222; Vanhorn v. Freeman, 1 Halst. (N. J.) 322; see Knight v. Wilcox, 14 N. Y. (4 Kern.) 413.

Exemplary damages may always be allowed in actions on the case for seduction, whether the suit be brought by the parent of the person seduced, or by a person suing as master who is not also her parent. Ingersoll v. Jones, 5 Barb. 661; Lee v. Hodges, 13 Gratt. (Va.) 726.

(500) Similar statutes have been enacted in many of the States of the United States. See ante, 108, note 483.

recovered in it commensurate with the pecuniary loss caused by the defend

ant (q).

[*152]

*III. Injuries to the relation of guardian and ward are usually redressed in equity (r), though in strictness an action (formerly not uncommon) would still be maintainable at suit of a guardian for taking away his ward (s); it will lie also for her seduction if he be in loco parentis (t).

III. Guardian and ward.

IV. Master and servant.

IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man's hired servant before his time is expired; the other is beating him, causing him personal hurt, or confining him so that he is not able to perform his work. As to the first, the retaining another person's servant during the time he has agreed to serve his present master; this, as it is an ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time: the inveigling or hiring his servant, which induces a breach of his contract, whether done maliciously or with notice after existence of the relation, is therefore an injury to the master; and for that injury the law has given him a remedy by action (u); and the master may also have an action against the servant for the non-performance of his agreement. The other injury is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last; viz., the property which the master has by his contract acquired in the labour of the servant. In this case, besides the remedy by action for battery, bodily hurt, or imprisonment, which the servant himself, as an individual, may have against the aggressor, the master also, to compel a recompence for his immediate* loss, may maintain an action, in which he must allege and [* 153] prove the special damage he has sustained by the beating of his servant, per quod servitium amisit (x); and in which the jury will make him a proportionable pecuniary satisfaction. If, however, bodily hurt were caused to the servant by the defendant, whilst performing his contract with the servant, ex gr., as a carrier of passengers for hire, and there be no privity between the defendant and the master, an action at suit of the latter will not lie (y).

We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantage accruing therefrom: while the loss of the inferior by such injuries is, except where the death of a parent has been caused by negligence (z), unregarded. One reason for which

may be, that the inferior has no kind of property in the company, care, or assistance of the superior, as the superior is held to have in that of the inferior; and therefore the inferior can, in contemplation of law, suffer no loss consequential on a wrongful act done to his superior. The wife cannot recover damages for the beating of her husband. The child has no property in his father or guardian. And the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and if he receives his part of the stipulated contract he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.

* CHAPTER IX.

[*154]

JURISDICTION OF SUPERIOR COURTS AT LAW.

BREACHES OF CONTRACT.

IN the preceding chapter we considered wrongs which affect the rights of persons, viewed either as individuals, or as related to each other; and are now to enter upon the discussion of such wrongs and breaches of contracts as directly or indirectly affect the rights of property, together with the remedies which the law has given to repair or redress them.

We shall first enquire respecting breaches of contract unauthenticated by deed; of bonds and covenants we have treated in our preceding volume.

A simple contract may be defined to be "an agreement or undertaking upon consideration, to do or not to do a particular thing." (501) From which (501) Both verbal and written contracts are included in the class of simple contracts, and the only distinction between them, at common law, is in regard to the mode of proof. 1 Story on Cont., § 2; Thacher v. Dinsmore, 5 Mass. 301; Union Turnpike Co. v. Jenkins, 1 Caines, 387; Perrine v. Cheeseman, 6 Halst. (N. J.) 174; People v. Shall, 9 Cow. 778; Ballard v. Walker, 3 Johns. Cas. 65. See Justice v. Long, 42 N. Y. (3 Hand) 493; S. C. again, 52 N. Y. (7 Sick.) 323; Hunt v. Reynolds, 9 R. I. 303. Among American definitions of a simple contract are the following: An agreement in which a party undertakes to do or not to do a particular thing. MARSHALL, C. J., Sturges v. Crowninshield, 4 Wheat. (U. S.) 197. An agreement between two or more parties to do or not to do a particular thing. TANEY, C. J., Charles River Bridge v. Warren Bridge, 11 Pet. (V. S.) 420, 572. A compact between two or more parties. MARSHALL, C. J., Fletcher v. Peck, 6 Cranch (U. S.), 87, 136. An agreement of two or more persons, upon sufficient consideration, to do or not to do a particular thing. 2 Kent's Com. 450. An agreement between two or more parties for the doing or not doing of some specified thing. 1 Pars. on Cont. 5. A deliberate engagement between competent parties, upon a legal consideration, to do or to abstain from doing some act. 1 Story on Cont. 1. A mutual promise, upon lawful consideration or cause, which binds the parties to a performance. Webster.

A precise and explicit exposition of the necessary ingredients of a simple contract is thus given by Comyn: 1st. A person able to contract; 2d. A person able to be contracted with; 3d. A thing to be contracted for; 4th. A good and sufficient consideration; 5th. Clear and explicit words to express the contract; 6th. The assent of both contracting parties. Comyn on Cont. 2. Approved in Justice v. Lang, 42 N. Y. (3 Hand) 498; 1 Story on Cont. 1, note. See 1 Wait's Law & Pr. 81, 82.

VOL. II. —17

Simple contract, how defined.

definition there arise three points to be contemplated in every contract; 1st. The agreement or undertaking; 2ndly. The consideration; and 3rdly. The thing to be done or not to be done.

1st. The agreement;

First, then, a contract is an agreement, a mutual bargain or convention; and to constitute it there must be at least two parties consenting and competent to contract: (502) as where A. contracts with B. on some sufficient consideration, as to which we shall presently enquire, to pay him 1007., and thereby transfers a property in such sum to B. Which property is however not in possession, but in action merely, and recoverable by suit at law.

(502) Idiots and lunatics, on account of personal disability, are incapable of entering into binding contracts (see Emery v. Hoyt, 46 I11. 258; Baldwin v. Dunton, 40 id. 188; Young v. Stevens, 48 N. H. 135; Dennett v. Dennett, 44 id. 531; Somes v. Skinner, 16 Mass. 348; Rice v. Peet, 15 Johns. 503; Lincoln v. Buckmaster, 32 Vt. 652); and so are drunkards. State Bank v. McCoy, 69 Penn. St. 204; S. C., 8 Am. Rep. 246; Caulkins v. Fry, 35 Conn. 170; French v. French, 8 Ohio, 214; Jenners v. Howard, 6 Blackf. (Ind.) 240. But it has been held, that where a contract has been entered into, under circumstances which would ordinarily make it binding, if made by a sane person with one who is insane, and that contract has been adopted, and is sought to be enforced by the representatives of the latter, it is no defense to the sane party merely to show that the other party was non compos mentis at the time the contract was made. Allen v. Berryhill, 27 Iowa, 534; 1 Story on Cont.. § 75. See Behrens v. McKenzie, 23 Iowa, 333. So, intoxication only renders a contract voidable, and the intoxicated party may, upon recovering his understanding, adopt it. Taylor v. Patrick, 1 Bibb (Ky.), 168; Arnold v. Hickman, 6 Munf. (Va.) 15; Drummond v. Hopper, 4 Harr. (Del.) 327; Burroughs v. Richman, 1 Green (N. J.), 233. In some cases the incapacity to contract arises from considerations of public policy. On this ground infants are disabled from contracting, except under certain limitations (see Heath v. West, 6 Fost. [N. H.] 193; Carr v. Clough, id. 280; Knox v. Flack, 10 Harris [Penn.], 337; Badger v. Phinney, 15 Mass. 359); and, at common law, a married woman cannot, during her coverture, make an obligatory contract. See Davis v. Burnham, 27 Vt. 562; Crumbley v. Searcey, 46 Ala. 329.

There is no contract without assent of parties thereto. If any essential matter is left open for further consideration the contract is not complete. See, generally, Tucker v. Woods, 12 Johns. 190; Lyman v. Robinson, 14 Allen (Mass.), 254; White v. Corlies, 46 N. Y. (1 Sick.) 467 ; Brown v. New York Central R. R., 44 N. Y. (5 Hand) 79; Hartford & N. H. R. R. v. Jackson, 24 Conn. 514. There must be a proposition by the one party accepted by the other. Id.; Rowell v. Montville, 4 Greenl. (Me.) 270; Eskridge v. Glover, 5 Stew. & Port. (Ala.) 264. See Bornstein v. Lans, 101 Mass. 216. As to offer and acceptance by mail, see Cornwells v. Krengel, 41 Ill. 394; Clark v. Dales, 20 Barb. 42; Trevor v. Wood, 36 N. Y. (9 Tiff.) 307; Abbot v. Shepard, 48 N. H. 14; Falls v. Gaither, 9 Port. (Ala.) 605. Not only must there be mutual assent, but it must be given freely, in order to render the contract valid. Compulsion, or duress per minas, will avoid any promise. Tilley v. Damon, 11 Cush. (Mass.) 247; Soule v. Bonney, 37 Me. 128. And in the United States it has been held, that duress of goods will, under some circumstances, render a contract voidable. Collins v. Westbury, 2 Bay. (S. C.) 211; Sasportas v. Jennings, 1 id. 470; Spaids v. Barrett, 57 Ill. 289; James v. Roberts, 18 Ohio, 548; Foshay v. Ferguson, 5 Hill, 158. But imprisonment, under regular and formal legal process, does not constitute such duress as will invalidate the contract of the prisoner: Soule v. Bonney, 37 Me. 128; Watkins v. Baird, 6 Mass. 511; Taylor v. Cottrell, 16 Ill. 93; Stouffer v. Latshaw, 2 Watts (Penn.), 167. And one who has entered into a contract under duress may either affirm or avoid such contract after the duress has ceased. Lewis v. Bannister, 16 Gray (Mass.), 500.

A contract made under an injurious mistake, or ignorance of a material fact, is also voidable. Watts v. Cummins, 59 Penn. St. 84; Haven v. Foster, 9 Pick. (Mass.) 129. But ignorance of law will not avoid a contract. Hunt v. Rousmaniere, 1 Pet. (U. S.) 15; Bank of U. S. v. Daniel, 12 id. 32. See Lanning v. Carpenter, 48 N. Y. (3 Sick.) 408; Pitcher v. IIennesey,

id. 415.

Parties are perfectly free to contract in any way that the law does not forbid; this right to contract being essential for the trading classes, and indeed

for every* member of the community. A contract may be either [*155]

express or implied.

An express contract is where the terms of the agreement are, at the time of making it, openly uttered and avowed, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods.

Express.

An implied contract is one which reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. (503) Thus, if I employ a person to transact any business Implied. for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has a remedy for this injury by bringing his action on the case upon such implied promise, undertaking, or assumpsit; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is in technical language, called an assumpsit on a quantum meruit. So, if I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value, and there is an implied assumpsit on a quantum valebat, which is very similar to the former. The law concludes, that both parties did intentionally agree, that the real value of the goods should be paid; and an action may be brought accordingly, if the vendee refuses to pay such value.

Another species of implied assumpsit is when one has received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be money received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor. And if he unjustly detains it, an action

(503) All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed we call the contract an express one. When it is not expressed it may be inferred, implied, or presumed, from circumstances, as really existing, and then the contract, thus ascertained, is called an implied one. Hertzog v. Hertzog, 29 Penn. St. 465. And see United States v. Russell, 13 Wall. (U. S.) 623; Ogden v. Saunders, 12 Wheat. (U. S.) 341; Kelby v. Andrew, 43 Miss. 342.

Where services are rendered between members of the same family the law does not so readily imply a contract as in cases where no such relationship exists. See Smith v. Milligan, 43 Penn. St. 107; Butler v. Slane, 50 id. 456; Perry v. Perry, 2 Duv. (Ky). 312. Thus, it raises no implied promise in a parent to pay a child who remains in the family after he is of age. Id. See Ridgway v. English, 2 Zabr. (N. J.) 409 ; Robinson v. Cushman, 2 Denio, 149, 152; Williams v. Hutchinson, 3 N. Y. (3 Comst.) 312. An agreement, by the father, that his son should be paid out of his estate after his death, is, however, valid. Updike v. Ten Broeck, 3 Vroom (N. J.), 105. And the rule extends to adopted children. Lunay v. Vantine, 40 Vt. 501. See, also, Robinson v. Raynor, 28 N. Y. (1 Tiff.) 494; Davison v. Davison, 2 Beasl. (N. J.) 246; Kennard v. Whitson, 1 Houst. (Del.) 36.

The law will not imply a promise where there is an express promise (Nelson v. Von Bonnohorst, 29 Penn. St. 352; Weston v. Davis, 24 Me. 374); nor against the express declaration of the party made at the time of the supposed implied undertaking. Whiting v. Sullivan, 7 Mass. 107. See Patten v. Hood, 40 Me. 457.