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authorities, however, entirely fail to establish any satisfac-
tory principle upon which to distinguish between the differ-
ent species of moral obligations. Thus, in Bunn vs. Win-
throp (1 Johns. Ch., 329), past seduction was held a good
consideration to support a grant. In Beaumont vs. Reeve
(8 Q. B., 483) the same consideration was held insufficient
to support a promise. In Goulding vs. Davidson (28 Barb.,
438), it is said that there must have been, at some time, an
actual legal obligation. Yet in Rice vs. Welling (5 Wend..
595) and Early vs. Mahon (19 Johns., 147), the original
contract was usurious, and therefore void from the begin-
ning. The same may be said of promises to pay debts con-
tracted in infancy, which are held valid. Goulding vs. Da-
vidson was reversed (26 N. Y., 604). The rule stated in
the text seems to the Commissioners to be just, and to be,
on the whole, as easily reconcilable with the authorities in
this State as any other that can be devised.

N. Y. C. C., Sec. 781.

tion lawful.

SEC. 1607. The consideration of a contract must be Consideralawful within the meaning of Sec. 1667.

N. Y. C. C., Sec. 782.

illegality.

SEC. 1608. If any part of a single consideration for Effect of its one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.

This principle is deducible from all the cases taken together, though not to be found thus stated in any one case. Thus, there is no doubt that, if the consideration is single, or in other words indivisible, its partial illegality is fatal to the contract (Mills vs. Mills, 36 Barb., 474; Rose vs. Truax, 21 id., 361; Pepper vs. Haight, 20 id., 429; Barton vs. Port Jackson Plank Road Co., 17 id., 397; Burt vs. Place, 8 Cow., 431; see Brown vs. Brown, 34 Barb., 533; Porter vs. Havens, 37 id., 343). The limitations of the rules are conformable to the principle of Secs. 778 and 779. N. Y. C. C., Sec. 783.

SEC 1609. A consideration may be executed or executory, in whole or in part. In so far as it is executory, it is subject to the provisions of Chap. IV of this Title.

N. Y. C. C., Sec. 784.

Consideracuted or

tion exe

executory.

considera.

tion.

SEC. 1610. When a consideration is executory, it is Executory not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard.

There is perhaps no precedent for a general provision of this kind [specified standard] under the head of contracts. But finding it necessary to repeat the same section, almost word for word, under the various heads of Sale, Hire, Employment, Deposit, Carriage and Insurance, and perceiving no reason why it could work injustice if applied to other contracts, although in practice it probably is not needed for them, the Commissioners have ventured to transfer it to this part of the Code; to which, they think, it properly belongs. N. Y. C. C., Sec. 785.

How ascertained.

Effect of impossibility

SEC. 1611. When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth.

N. Y. C. C., Sec. 786.

SEC. 1612. Where a contract provides an exclusive of ascertain method by which its consideration is to be ascertained, which method is on its face impossible of execution, the entire contract is void.

ing consid. eration.

Same.

N. Y. C. C., Sec. 787.

SEC. 1613. Where a contract provides an exclusive method by which its consideration is to be ascertained. which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only. is void.

Pothier (Sale, n. 34) holds that the contract in such case is voidable, and this view has been adopted by some writers in this country (Story on Sales, Sec. 220; 1 Pars. Cont., 5th ed., 525), but it seems more probable that the common law would regard the contract as made for a reasonable consideration, to be ascertained in any usual way. Thus, where a covenant to renew a lease provides for an arbitration to determine the rent, and no award is ever made, the Court will enforce the renewal at a reasonable rent (Reformed Dutch Church vs. Parkhurst, 4 Bosw., 491; Dunnell vs. Keteltas, 16 Abb. Pr., 205.)

N. Y. C. C., Sec. 788.

TITLE II.

MANNER OF CREATING CONTRACTS.

SECTION 1619. Contracts express or implied.

1620. Express contract, what.

1621. Implied contract, what.

1622. What contracts may be oral.

1623. Contract not in writing through fraud, may be enforced

against fraudulent party.

1624. What contracts must be written.

1625. Effect of writing.

1626. Contract in writing, takes effect when.

1627. Provisions of chapter on transfers of real property.

1628. Corporate seal, how affixed.

1629. Provisions abolishing seals made applicable.

SEC. 1619.

A contract is either express or implied.

N. Y. C. C., Sec. 789.

Contracts express or implied.

SEC. 1620. An express contract is one, the terms of Express conwhich are stated in words.

N. Y. C. C., Sec. 790.

tract, what.

tract, what.

SEC. 1621. An implied contract is one, the existence Implied conand terms of which are manifested by conduct.

The ordinary definition of an implied contract includes obligations imposed by law upon parties, as between each other. These obligations are, however, considered in an other part of the Code.

N. Y. C. C., Sec. 791.

SEC. 1622. All contracts may be oral, except such as are specially required by statute to be in writing.

N. Y. C. C., Sec. 792.

SEC. 1623. Where a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party.

This principle of equity ought to be recognized in all cases, whether legal or equitable.

N. Y. C. C., Sec. 793.

SEC. 1624. The following contracts, or some memorandum thereof, expressing the parties, their consent and the object of the contract, must be in writing, subscribed by the party to be charged thereby, or by his agent for the purpose:

1. An agreement that, by its terms, cannot be fully performed within one year.

2. An agreement to answer for the debt, default or miscarriage of another.

3. An agreement made upon consideration of marriage, other than mutual promises to marry.

4. An executory contract of marriage.

NOTE.-Subds. 1 and 3 are in the language of the New
York Civil Code, Sec. 794. They modify Subds. 1 and 3 of
Sec. 12,"Fraudulent Conveyances." The reasons are as-
signed in the note of the New York revisers, as follows:

[blocks in formation]

Effect of writing.

Contract in writing, takes effect when.

Provisions

of chapter on transfers of

real prop. erty.

"The consideration is no longer necessary to be stated (Laws of 1863, ch. 464). Such at least was the undoubted intention of the Legislature, though under the decision in Wain vs. Warlters (5 East, 10), it is difficult to say whether its intention is plainly expressed. The language here proposed is unmistakable in its meaning.

"The names of all the parties must be stated in the memorandum (Williams vs. Lake, 2 El. & El., 349).

"The whole object of the contract, and all its terms, must be expressed (Wright vs. Weeks, 25 N. Y., 153).

"The language of the statute is is not to be,' etc. It is construed as applying only to contracts which cannot possibly be executed within a year, under any contingency (Dresser vs. Dresser, 35 Barb., 573; Artcher vs. Zeh, 5 Hill, 200; Plimpton vs. Curtiss, 15 Wend., 336; McLees vs. Hale, 10 id., 426; Moore vs. Fox, 10 Johns., 244. Compare Day vs. N. Y. Central R. K., 31 Barb., 548; Pitkin vs. Long Island R. R., 2 Barb., Ch. R., 221; see Talmadge vs. Rensselaer and Saratoga R. R., 13 Barb., 593).

"Day vs. N. Y. Central R. R., 31 Barb., 548, 556; Amburger vs. Marvin, 4 E. D. Smith, 393; Lockwood vs. Barnes, 3 Hill, 128; Broadwell vs. Getman, 2 Den., 87; Bracegirdle vs. Heald, 1 Barn. & Ald., 722.

"The words from the making thereof,' are omitted in order to harmonize the rules in relation to contracts affecting both real and personal property, which are now gov erned by different provisions on this point (Young vs. Dake, 6 N. Y., 463; overruling Croswell vs. Crane, 7 Barb., 191). The Commissioners think, morcover, that the strictness of this provision has worked injustice. Few yearly contracts go into effect instantly."

Subd. 2 is the second subdivision of Sec. 12, "Fraudu lent Conveyances." See, also, Guaranty.

Subd. 3 is a new provision. This has been inserted upon recommendation of eminent lawyers, to prevent scandalous exposures of past confidential relations in actions for breach of promise, denying the action, except when there is a written contract. Of course an agreement to marry de presenti, followed by cohabitation, makes valid marriage an executed contract, under Sec.

SEC. 1625. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.

N. Y. C. C., Sec. 795.

SEC. 1626. A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent.

N. Y. C. C., Sec. 796.

SEC. 1627. The provisions of the chapter on Transfers in General, concerning the delivery of grants, absolute and conditional, apply to all written contracts.

N. Y. C. C., Sec. 797.

seal, how

SEC. 1628. A corporate or official seal may be affixed Corporate to an instrument by a mere impression upon the paper or other material on which such instrument is written.

affixed.

N. Y. C. C., Sec. 798.

SEC. 1629.

abolishing

Secs. 1096 and 1097, concerning private Provisions seals and prima facie consideration, are applicable to all seals made written contracts.

applicable.

[New section.]

TITLE III.

INTERPRETATION OF CONTRACTS.

SECTION 1635. Uniformity of interpretation.

1636. Contracts, how to be interpreted.

1637. Intention of parties, how ascertained.
1638. Intention to be ascertained from language.
1639. Interpretation of written contracts.

1640. Writing, when disregarded.

1641. Effect to be given to every part of contract.
1642. Several contracts, when taken together.

1643. Interpretation in favor of contract.

1644. Words to be understood in usual sense.

1645. Technical words.

1646. Law of place.

1647. Contracts explained by circumstances.

1648. Contract restricted to its evident object.

1649. Interpretation in sense in which promiser believed promisee

to rely.

1650. Particular clause subordinate to general intent.

1651. Contract, partly written and partly printed.

1652. Repugnancies, how reconciled.

1653. Inconsistent words rejected.

1654. Words to be taken most strongly against whom.

1655. Reasonable stipulations, when implied.

1656. Necessary incidents implied.

1657. Time of performance of contract.

1658. Time, when of essence.

1659. When joint and several.

1660. Same.

1661. Executed and executory contracts, what.

of interpre

SEC. 1635. All contracts, whether public or private, Uniformity are to be interpreted by the same rules, except as other wise provided by this Code.

Some distinctions are made at common law, which have no substantial foundation in reason. Thus, an instrument

tation.

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