Imágenes de páginas
PDF
EPUB

of 'what would be implied by law would not be material; an alteration made by a stranger without the consent of either party has no effect on the contract; retracing indistinct words, or the addition of equivalent words will not discharge the contract, or the filling in of blanks in a written instrument, for the insertion of names, dates and the like.

230. Name some alterations of a written contract that are material.

Changing the amount, changing the date, the addition of words making the contract bear interest or bear interest at a higher rate, changing the place of payment, adding or destroying a seal, making a joint obligation into a joint and several one, are some of the alterations that are material.

231. How may an alteration of a written instrument be legally made?

An alteration in a written contract may be made with the consent of all parties concerned or it may be made through a court of equity.

232. Upon what conditions may an altered instrument be ratified?

An alteration may be ratified by agreement of the parties, but where the alteration was made with intent to defraud, such agreement must be supported by a new consideration. Where the alteration constitutes forgery, the injured party may ratify what has been done, but this ratification would not save the forger from prosecution.

233. How does the loss of a written contract affect the parties concerned?

It does not discharge the obligations in any way, but it may cause considerable difficulty in satisfactorily proving the contract. When a negotiable instrument is lost, it may cause more trouble. See Nos. 235, 236, 237, pages 84 and 85.

Remedies.

234. What is meant by a remedy?

A remedy is the legal means employed to enforce a right or to obtain redress for a wrong done.

235. What are the necessary steps to be taken to obtain redress for a breach of contract?

The plaintiff procures a writ or summons, by which the defendant is brought before the court to defend the suit. Then the plaintiff submits a written statement of his cause of action and the defendant puts in his defense. These are generally called the pleadings. Then the trial comes on and each party presents his case for the consideration of the court and after due consideration of the case the decision of the court, or the judgment, is rendered. The last step is the execution of the judgment. This, then, is the order: the summons, the pleadings, the trial, the judgment, the execution.

236. What is a judgment?

A judgment is the decision or sentence of a court in an action. In many cases a judgment is for money damages, but sometimes it calls for a specific performance.

237. What is meant by an execution?

An execution is a process or writ whereby a judgment is enforced. 238.

me some articles of property of the debtor that are exempt from seizure?

This matter is regulated by statute in different states and these must be consulted for exact information in any particular case. In most cases the homestead is exempted and also wearing apparel, necessary household furniture and implements used in practicing a profession or pursuing a trade.

239. What is meant by attachment?

Attachment is seizure of the defendant's property before the trial of a case as security for any judgment that may be rendered.

240. What is an injunction?

An order of a court commanding the party against whom it is directed to refrain from doing some thing specified in the order.

241. What is the common remedy for a breach of contract?

At common law, the only remedy for a breach of contract is money paid as indemnity for the damages sustained. The amount of damages awarded depends upon the circumstances of each particular case. The one guilty of a breach of contract is held liable for the damages that naturally follow such a failure, but cannot be held for remote or uncertain damages that may be the result of the breach. In some of the more common cases the following damages are generally assessed :

(1) For failure to pay money, the plaintiff can recover the amount of noney with legal interest from the time it became due.

(2) For failure to deliver goods sold, the seller must pay whatever the market value of the same kind of goods at the time and place agreed upon for delivery exceeds the purchase price which had been agreed upon, with interest at the legal rate from that date.

(3) For failure to accept property purchased, if the seller store it for the purchaser he may sue for the entire purchase price; if he resell it at the highest price, he may sue for the amount the contract price exceeds the amount realized; if he keep the property, he may sue for such sum as the contract price exceeds the market price. In all three cases the seller is entitled to interest at the legal rate from the day agreed upon for delivery.

(4) Where an employee is discharged through no fault of his before the end of his term of service, he may recover for whatever loss he sustains. He is supposed to diligently seek other employment, but if he cannot get work, he can recover the full amount of the wages he would have received had he not been discharged. If he get other work at lower wages he can recover the difference between what he earns and what he would have earned had he not been discharged.

(5) For a failure to convey land sold, if it become impossible for the vendor to give good title and the parties have not agreed upon a forfeit, he is held for only nominal damages and must return what the vendee has paid; if he refuse to convey the title, he must pay the excess of the market price over the contract price.

242. What is meant by nominal damages? When a plaintiff proves that a contract in his favor has been broken but cannot prove any actual damage sustained, he is allowed a nominal sum, usually a few cents, for the breach of contract.

243. What is meant by liquidated damages?

When a contract is formed the contracting parties may agree upon the amount of damages to be paid in case of breach. Such sum is called liquidated damages and unless the amount agreed upon is disproportionate to the possible damages that might result, it can be collected.

244. What is meant by exemplary damages and when are such damages assessed?

When there has been a willful or malicious wrong committed, the court sometimes charges a sum in excess of the actual damage sustained. This excess is intended to serve as an example to others, hence the name. The term "smart money” is sometimes applied to this excess.

245. What is a tort?

It is a private wrong or injury and does not arise from an ordinary breach of contract. An action brought from a cause of this kind is called an action in tortus. Actions for slander, libel, trespass, etc., are actions in tort.

246. What is meant by specific performance of a contract?

In certain cases of breach the payment of money damages proves to be inadequate. In such cases, a court of equity will order the one guilty of the breach to carry out the original agreement. This is often applied in cases where the vendor refuses to convey the land he agreed to sell.

247. What is meant by accord and satisfaction?

The parties to a contract may adjust differences between them and decide what shall be done by each in order to discharge the obligation. This agreement is accord and as soon as it is carried into effect it is satisfaction.

248. What is a defense?

A defense may be defined to be an answer made by the defendant in justification of the charges brought against him by the plaintiff.

249. What are some of the defenses that the defendant may plead?

He may plead performance of his share of the contract; he may claim that there has been a balance struck and a settlement made; he may claim that there has been an agreement to settle the disputed claim by arbitration; he may claim that he has made a tender or he may plead that the debt is outlawed; he may bring forward counterclaims and these may wholly or partially meet the demands of the plaintiff.

250. What is meant by the term set-off? A set-off is a counterclaim. In a suit

ne defendant may bring forward an independent claim in his favor against the plaintiff. If he can prove such claim, it is set off against the claim of the plaintiff. Where the set-off is smaller than the original claim, the plaintiff gets judgment for the excess, but where the reverse is the case, the plaintiff must pay the excess. In some cases, instead of bringing forward an independent claim, the defendant may charge the plaintiff with a breach of warranty and ask for a reduction or diminution for the damage he has sustained. This reduction is called recoupment and the amount is generally the difference between the actual value and the contract price.

251. What is meant by arbitration and award?

Contracting parties often submit matters in dispute to persons selected by them to act as arbitrators. After due investigation these persons render their decision, and this is called award. The decision is binding if properly given, but after submitting the case to arbitration it can be revoked at any time before an award has been made.

« AnteriorContinuar »