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Sect. 1.-Generally. HITHERTO we have treated only of express contracts, that is, of Nature of those contracts of which the terms are openly expressed or uttered implied conat the time of the making thereof. But there is a large class of contracts called implied contracts, which rest merely on construction of law, and in which there is, strictly speaking, no agreement of the parties to the terms by which they are bound. Thus, if a man make Implied cona lease for years by the words “demise or grant,” without any tract for quiet

enjoyment; express covenant for quiet enjoyment, “in this case the law doth intend and make such a covenant on the part of the lessor " (a). So, a restrictive covenant as to the use of land, which does not, at law, run with the land, is nevertheless binding, in equity, upon an assignee who takes the land with notice of the covenant (b). And so for restricted there are many cases in which, where there is no express agreement user of land; by writing or word of mouth, the law looks to the circumstances or acts of the parties; and from these circumstances or acts raises the daty and implies the promise by which, in the individual case, the

(a) Shep. Touch. 161. Williams v.
Burrell (1845), 1 C. B. 402, 429 ; Baynes
1. Lloyd, (1895] 1 Q. B. 820; Woodf.
L & T. 15th ed., ch. xvii., s. 7.
(6) See Haywoood v. Brunswick Per.

manent Building Society (1881), 8 Q. B.
D. 403, C. A. ; Hall v. Ewin (1887),
37 Ch. D. 74, C. A. ; Spicer v. Martin
(1888), 14 App. Cas. 12.

CH. III. s. 1. party will be bound. As if I employ

As if I employ a person to do any business Implied Contracts.

for me, or perform any work, the law implies that I undertook or

contracted to pay him as much as his labour deserves (c); or, if I to pay for labour;

take up wares from a tradesman without any agreement as to price, or goods. the law concludes that I contracted to pay their real value (d).

It was said by Lord Holt (e), “ that the notion of promises in law is a metaphysical notion, for the law makes no promise but where there is a promise of the party"; and perhaps, after all, the chief distinction between an express and an implied contract is in the mode of substantiating it. But wherever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be express or implied.

Examples of To enumerate all the cases in which promises have been implied implied contracts.

would be unprofitable. Some few instances are subjoined. Feeding

If a person borrow a horse for a time, the law implies that it was borrowed horse.

part of the agreement that he should feed it whilst in his possesReimburse- sion (f). So if, in the absence of a husband, I incur expense in ment of fune- burying his wife in a manner suitable to the husband's condition, ral expenses.

though without his knowledge, the law will imply a promise by him to reimburse me (9). So an executor, who has assets sufficient for that purpose, impliedly promises to pay for a funeral suitable to the degree of the testator, furnished by the directions

of a third person during the absence of the executor, and of which Part perform- he had, at the time, no knowledge (h). So, if there be a contract ance of contract void for void for want of writing under the Statute of Frauds, from the part want of writ- performance of which by the plaintiff the defendant derives a ing

benefit, he is often liable, not upon the agreement, but upon a

quantum meruit, to the extent of the benefit received (i). Notice to There is also an implication of law, that where premises are quit.

taken under a yearly tenancy, either landlord or tenant may determine the tenancy by half a year's (k) notice to quit, expiring at the

end of any current year of the tenancy. When implied So, if there be an invariable, certain, and general usage or custom from the

of any particular trade or place, the law will imply on the part of usage of trade.

one who contracts, or employs another to contract for him upon a matter to which such usage or custom has reference, a promise for the benefit of the other party, in conformity with such usage or

(c) Jewry v. Busk (1814), 5 Taunt. 302.

(d) See per Lord Esher, M. R., in Ford, Exc parte (1885), 16 Q. B. D. 305, C. A.

(C) Starke v. Cheeseman (1701), 1 Ld. Raym. 538.

(f) Handford v. Palmer (1820), 2 B. & B. 359.

(9) Jenkins v. Tucker (1788), 1 H. BI 90.

(h) Rogers v. Price (1829), 3 Y. & J. 28. (i) Mavor v. Pine (1825), 3 Bing. 285.

(k) This half-year's notice is, in the case of a farm, altered by the Agricuitural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 33, to one year's notice.

custom ; provided, that is, there be no express stipulation between Ch. III. s. 1. them which is inconsistent with such usage. To be binding, how


Contracts. ever, such usage must be uniform and universal; but when such invariable usage is proved, it is to be considered as the basis of the contract between the parties; and their respective rights and liabilities are held to be precisely the same as if, without any usage, they had entered into a special agreement to the like effect (1). Where, therefore, it was proved that, by the usage of trade in the River Thames, credit is given by a shipwright for repairs of a ship, if there be no agreement as to the time of payment; it was held by Lord Ellenborough, that the parties must be supposed to have dealt on the terms of credit; and, therefore, that the defendant, & shipwright, who had repaired the plaintiff's vessel, had no lien on it for the amount (m). And even in cases where the party attempted to be charged upon Stock Ex

change rules. an implied promise, arising solely from the usage of a particular trade, was not shown to have been cognizant of the usage, he has still been held to be liable by virtue of it. For example, it has been held that where, by the usage of the Stock Exchange, a broker is obliged, without any default on his own part, to pay differences on a contract into which he has entered for his principal, there is an implied promise on the part of the latter to repay the same to him ; and that, whether he was acquainted with the usage by which the broker was governed or not (n). But, where the usage is one which merely applies to the mode When not

implied from of dealing of a particular house, a party cannot be bound thereby, the usage unless he be shown to have had notice of it. And therefore, of trade. although interest, or in some cases, even compound interest, may be recovered, where there has been a course of dealing between the parties, or usage to that effect; yet it has been held, that a debtor is not bound or affected by the custom of his bankers, to charge interest upon interest by making rests in their accounts, unless it can be proved that he was aware of such practice (o). It is also clear that a promise to a particular effect may be When implied

from previous implied in any given case, from the circumstance of the parties course of having invariably, on former and similar occasions, adopted any

dealing. particular terms or course of dealing. Thus, a contract to pay interest, or to allow interest to be added to principal at stated periods, and to pay interest on the whole, may be implied from the

(0) Per Lord Ellenborough, C. J., Raitt v. Mitchell (1815), 4 Camp. 146, 149 ; 16 R. R. 755.

(m) Raitt v. Mitchell (1815), 4 Camp. 246; 16 R. R. 755.

(n) Sutton v. Tatham (1839), 10 A. & E. 27 ; Bayliffe v. Butterworth (1847), 1 Exch. 425.

(0) Moore v. Voughton (1816), 1 Stark. 487.

CH. III. s. 1. fact that, on former occasions, the accounts between the parties Implied

have been stated and settled on that footing (p). Contracts.

There are likewise cases in which the law raises a promise even From tortious Acts.

from the wrongful acts of a party, and in which the Courts will not admit evidence of his intention to commit a tort, in order to negative such implied promise; for no man can set up or take advantage of his own wrong. Thus, where the plaintiff took an excursion ticket for a journey by railway, knowing that the company did not carry luggage for passengers travelling by excursion trains; and he nevertheless took a portmanteau with him without having it booked and paid for: it was held that this raised an implied contract to pay for the carriage of the portmanteau ; and that the company had a right to detain it until the carriage was paid (q). So, if a party seduce away and harbour an apprentice, the master may sue such party for the work and labour of the apprentice (r). So, an action lies to recover the value of goods, as sold to the defendant, if he by fraud induce the plaintiff to sell them to an insolvent person, and afterwards get them into his own possession (s). And upon the same principle the doctrine seems to be founded, that if a husband wrongfully expel his wife from his house, and leave her unprovided with necessaries, he is liable upon an implied promise, to any person who supplies her with them, although he may have given public notice, or even a special warning to the party, not to furnish the wife with necessaries upon his credit (t).

So, a promise will sometimes be implied from the silence or sumed assent. presumed assent of the party. Thus, if a landlord give his tenant

notice to quit or pay an advanced rent, and the tenant holds over, he is taken to have acquiesced in the new proposal, and to be liable for the advanced rent (u), and if a person accepts the office of director of a company, and acts as such, he may impliedly, by signing the memorandum and articles of association, contract to take his qualification shares, although he may not have applied for, or have had them allotted to him, or even have been registered as

a member of the company (x). From actual So a purchaser, mortgagee, or tenant, whether for a term of or constructive notice.

(p) See Bruce v. Hunter (1813), 3 M. & S. 191. Camp. 467 ; Eaton v. Bell (1821), 5 B. (s) Hill v. Perrott (1810), 3 Taunt. & Ald. 34 ; Gwyn v. Godby (1812), 4 274. Taunt. 346 ; Newal v. Jones (1830), (1) See post, Chap. VIII. Moo. & M. 449 ; Calton v. Bragg (1812), (1) Roberts v. Hayward (1828), 3 C. 15 East, 223.

& P. 432. (9) Rumsey v. North-Eastern Railway (x) Anglo-Austrian Printing and PubCompany (1863), 14 C. B., N. S. 641. lishing Union, In re, Isaac's case, [1892]

(r) Lightly v. Clouston (1808), 1 2 Ch. 158, C. A. Taunt. 112; Foster v. Stewart (1814), 3

From pre


years, or from year to year, is, in equity, bound to inquire into the Ca. III. s. 1. title of his vendor, mortgagor, or lessor; and a Court of Equity Implied will hold him to be affected with notice of, and to be bound by covenants appearing upon such title (y). There are also cases in which the law will imply a contract to From the

existence of pay money, from the fact of there being already a legal obligation legal oblito pay it, although the transaction was in its origin totally uncon- gation under

the judgment nected with contract, and there has been no promise in fact (2). of a Court. Upon this principle, an action in form ex contractu, will lie for money due upon a judgment obtained in a foreign Court (a); or upon an Irish judgment (b); or a Scotch decreet (c). So an action Foreign is maintainable, at law, on a decree of a colonial Court of Equity, judgment. which simply ascertains a balance to be due from the defendant, and orders payment thereof by him to the plaintiff (d); or to recover money due on the decree of a colonial Court, for payment of a balance due on a partnership account (e). But an action is not maintainable on the mere interlocutory order of a Court of Law (); although it may be maintained on a final order, made in a collateral or interlocutory proceeding, the original suit being still undetermined (g).

So it has been held, that in cases where words of recital or From words reference manifest a clear intention that the parties should do of recital, &c. certain acts, the Courts will, from these, infer an agreement by them to do such acts (h).

So where, by charter-party, it was agreed that the ship C., "expected to be at A. about the 15th December," should with all convenient speed sail and proceed to that port, and then receive a

(y) Tulk v. Moxhay (1848), 2 Ph. 774, App. ; Wilson v. Hart (1866), L. R., 1 Ch. Ap. 463; Haywood v. Brunswick Building Society (1881), 8 Q. B. D. 403, C. A. ; Hall v. Erin (1887), 37 Ch. D. 74, C. A. ; Spicer v. Martin (1888), 14 App. Cas. 12.

(3) See Per Parke, B., Williams v. Jones (1845), 13 M. & W. 628, 633.

(a) Walker v. Witter (1778), Dougl. 1, 4; Schibsby v. Westenholz (1870), L. R, 6 Q. B. 155; Meyer v. Ralli (1876), 1 C. P. D. 358 ; Copin v. Adamson (1875), L. R., 1 Ex. D. 17, C. A.

It is no bar to an action on the judg. ment of a foreign court, in personam, that it appears on the face thereof, that the foreign tribunal has put a construction on an English contract, which was erroneous according to English law : Godard v. Gray (1870), L. R., 6 Q. B. 139: Trafford v. Blanc (1887), 36 Ch. D. 600 ; Meek v. Wendt (1888), 21 Q. 2. D. 126 ; bnt the defendant may raise the defence that the judgment was

obtained by the fraud of the plaintiff, even though the fraud alleged is such that it cannot be proved without retrying the questions adjudicated upon by the foreign court : Vadala v. Lawes (1890), 25 Q. B. D. 310.

(6) Harris v. Saunders (1825), 4 B. & C. 411.

(c) Russell v. Smyth (1842), 9 M. & W. 810; Douglas v. Forrest (1828), 4 Bing. 686.

(d) Henderson v. Henderson (1844), 6 Q. B. 288; Sadler 5. Robins (1808), 1 Camp. 253.

(e) Henley v. Soper (1828), 8 B. & C. 16.

(f) Patrick v. Shedden (1853), 2 E. & B. 14 ; 22 L. J., Q. B. 283 ; Emerson v. Lashley (1793), 2 H. Bl. 248 ; Fry v. Malcolm (1812), 4 Taunt. 705.

(g) Hutchinson v. Gillespie (1856), 11 Exch. 798.

(h) See Knight v. Gravesend, &c., Waterworks Company (1857), 2 H. & N. 6.

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