tracts. Implied con tract for quiet enjoyment; 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 a lease for years by the words "demise or grant," without any 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 duty 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 T. Lloyd, [1895] Q. B. 820; Woodf. L & T. 15th ed., ch. xvii., s. 7. See Haywood v. Brunswick Per manent Building Society (1881), 8 Q. B. Implied Contracts. CH. III. s. 1. party will be bound. As if I employ a person to do any business 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 take up wares from a tradesman without any agreement as to price, the law concludes that I contracted to pay their real value (d). to pay for labour; or goods. Examples of implied con tracts. Feeding borrowed horse. Reimburse 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. To enumerate all the cases in which promises have been implied would be unprofitable. Some few instances are subjoined. If a person borrow a horse for a time, the law implies that it was part of the agreement that he should feed it whilst in his possession (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 (g). 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 he had, at the time, no knowledge (h). So, if there be a contract void for want of writing under the Statute of Frauds, from the part performance of which by the plaintiff the defendant derives a benefit, he is often liable, not upon the agreement, but upon a quantum meruit, to the extent of the benefit received (i). Part perform ance of con tract void for want of writing. Notice to quit. When implied from the usage of trade. There is also an implication of law, that where premises are 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. So, if there be an invariable, certain, and general usage or custom of any particular trade or place, the law will imply on the part of 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, Ex parte (1885), 16 Q. B. D. 305, C. A. (e) Starke v. Cheeseman (1701), 1 Ld. Raym. 538. (f) Handford v. Palmer (1820), 2 B. & B. 359. (g) 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 Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 33, to one year's notice. Contracts. 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- Implied 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, a 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 Exchange 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). dealing. 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 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 (1) Per Lord Ellenborough, C. J., kitt v. Mitchell (1815), 4 Camp. 146, 119; 16 R. R. 755. (m) Raitt v. Mitchell (1815), 4 Camp. 146; 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 have been stated and settled on that footing (p). Implied Contracts. From tortious acts. From presumed assent. From actual or constructive notice. There are likewise cases in which the law raises a promise even 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 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). So a purchaser, mortgagee, or tenant, whether for a term of (p) See Bruce v. Hunter (1813), 3 (q) Rumsey v. North-Eastern Railway 1 M. & S. 191. (s) Hill v. Perrott (1810), 3 Taunt. 274. (t) See post, Chap. VIII. (u) Roberts v. Hayward (1828), 3 C. & P. 432. (x) Anglo-Austrian Printing and Publishing Union, In re, Isaac's case, [1892] 2 Ch. 158, C. A. Contract. years, or from year to year, is, in equity, bound to inquire into the CH. 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). existence of There are also cases in which the law will imply a contract to From the 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 (z). 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 recover money due on the decree of a colonial plaintiff (d); or to Court, for payment of a balance due on a partnership account (e). a collateral or interlocutory proceeding, the original suit being still So it has been held, that in cases where words of recital or From words of recital, &c. reference manifest a clear intention that the parties should do 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 (4) 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. Ewin (1887), 37 Ch. D. 74, C. A.; Spicer v. Martin (1888), 14 App. Cas. 12. (2) 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 judgment 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. 1: Trafford v. Blanc (1887), 36 Ch. D. 600; Meek v. Wendt (1888), 21 Q. B. D. 126; but the defendant may raise the defence that the judgment was obtained by the fraud of the plaintiff, (b) Harris v. Saunders (1825), 4 B. & (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 v. 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. |