Where executed con for a debt incurred by his child, it must be proved that he has contracted to be bound just in the same manner as such a contract would be proved against any other person (a). The consideration may be executed under such circumsideration stances that there can be no presumption of an agreement will not cre- to pay for it, in which case it will not create a contract. ate a con tract. The plaintiff having contracted with the defendant to command a ship for a certain voyage, abandoned the command during the voyage, but rendered services in assisting to navigate the ship, and claimed to be paid for the services thus rendered; it was held that he failed in proving any contract to pay for them, because they were done without the request or knowledge of the defendant, and because the defendant had not voluntarily accepted them. Pollock, C.B., said, "A recognition or acceptation of services may be sufficient to show an implied contract to pay for them, if at the time the defendant had power to accept or refuse the services. But in this case it was not so. The defendant did not know of the services until the return of the vessel, and it was then something past which would not imply, perhaps would not support a promise to pay for it. The benefit of the service could not be rejected without refusing the property itself. The ship came home, say partly by the assistance of the plaintiff: what could the defendant do but receive his ship back again? There was nothing in that to imply a contract to pay the defendant anything" (b). The defendant having ordered goods of one person, the plaintiff, a different person, sent the goods, and the defendant having consumed the goods before he had notice that they belonged to the plaintiff, it was held that he was not liable to the plaintiff for the price, on the ground that not having had any option of returning the goods to the plaintiff, no agreement with him could be inferred from the acceptance of them (c). In the case of buildings erected upon land under alleged (a) Mortimore v. Wright, 6 M. & W. 482; Hodges v. Hodges, Peake, Ad. C. 79; Seaborne v. Maddy, 9 C. & P. 497; and see Law v. Wilkin, 6 A. & E. 718. (b) Taylor v. Laird, 1 H. & N. 266; 25 L. J. Ex. 329. (c) Boulton v. Jones, 2 H. & N. 564; 27 L. J. Ex. 117. contracts to pay for them, the inference as to the acceptance of the consideration drawn from keeping possession of the buildings, is different from the case of goods and chattels delivered and retained. The possession of the land by the owner necessarily involves possession of the buildings, without allowing him any option of rejecting them. Mere possession of land, therefore, does not raise any inference of the acceptance of buildings placed on it by another, in a sense implying a consent to pay for them (a). Still less can an agreement be presumed from a consideration performed against the express consent of the other party, although he may derive some benefit from it (b). Accordingly, where a chattel is detained under a claim of lien against the owner, and charges are incurred in keeping and taking care of it during the detention, no claim can be made against the owner in respect of such charges (c). arising up tained by fraud. Where the consideration has been obtained by the defen- Contracts dant from the plaintiff by wrongful or fraudulent means, on conside the defendant cannot, in general, set up his intention to ration obcommit a wrong or a fraud in order to contradict the infer- wrong or ence of a contract on his part to pay for the consideration. The defendant by fraud procured the plaintiff to sell goods to a third person, who was insolvent, for the purpose of getting them into his own possession; it was held that the plaintiff might recover the value of the goods as upon a sale to the defendant, who had obtained possession of them, and that the defendant could not be permitted to account for the possession by setting up the sale to the third party, which he had himself procured by fraud (d). The defendant enticed away an apprentice from the plaintiff's service and appropriated the services of the apprentice to his own use; it was held that the plaintiff might waive the wrong and claim from the defendant the value of the services which the defendant (a) Munro v. Butt, 8 E. & B. 738; Ellis v. Hamlen, 3 Taunt. 52; Milner v. Field, 5 Ex. 829; Farnsworth v. Garrard, 1 Camp. 38. (b) See Stokes v. Lewis, 1 T. R. 20. (c) British Empire Shipping Co. v. Somes, E. B. & E. 353; 30 L. J. Q.B. 229. (d) Hill v. Perrott, 3 Taunt. 274; see the observation on this case by Parke, B., Selway v. Fogg, 5 M. & W. 83, 84; and see Biddle v. Levy, 1 Starkie, 20; per Lord Abinger, C. B., Russell v. Bell, 10 M. & W. 340, 352. Where consideration a fraudu lent con tract. had obtained from the plaintiff's apprentice, as having been performed at the request of the defendant (a). The plaintiff having taken an excursion ticket for a journey on the defendants' railway, which was subject to the express condition that no luggage was allowed, took certain luggage with him and had it carried on the journey; it was held, upon the principle above stated, that he was liable to pay the usual charge for the carriage of the luggage, as upon a contract arising from his obtaining the benefit of the carriage, and that the defendants had a lien upon the luggage for the amount (b). But where the consideration has been obtained by the obtained by defendant from the plaintiff by means of a fraudulent contract which the plaintiff is entitled to rescind on the ground of fraud (c), the plaintiff cannot assert any other contract than that in fact made. He must either sue upon that, or, disaffirming it, he must sue for the fraud as a substantive wrong, or for the recovery of his property obtained by means of it (d). The plaintiff sold goods to the defendant to be paid for by a bill of a third party "without recourse on the buyer in case of its not being paid;" the bill was worthless, as the defendant knew at the time. of the sale; it was held that, though the plaintiff might avoid the sale and sue for the recovery of his goods, or might bring an action for the fraud, he could not recover in an action for goods sold to the defendant (e). The plaintiff having been induced by fraud to sell goods to the defendant upon credit, upon discovering the fraud sued the defendant for the price before the credit had expired; it was held that he had misconceived his remedy; the defendant was not liable according to the contract, and if the plaintiff disaffirmed the contract the goods remained his property (f). The plaintiff contracted to do certain work for the defendant at a certain price upon a fraudulent mis (a) Lightly v. Clouston, 1 Taunt. 112; Foster v. Stewart, 3 M. & S. 191. (b) Rumsey v. North-Eastern Ry. Co., 14 C. B. N. S. 641; 32 L. J. C. P. 244. (c) See post, Chap. I, Sect. VI, "Fraud." (d) Read v. Hutchinson, 3 Camp. 352; Ferguson v. Carrington, 9 B. & C.59; Strutt v. Smith, 1 C. M. & R. 312; Selway v. Fogg, 5 M. & W. 83. (e) Read v. Hutchinson, 3 Camp. 352. (f) Ferguson v. Carrington, 9 B. & C. 59; Strutt v. Smith, 1 C. M. & R. 312. representation of the defendant as to the quantity, and having done the work, sued the defendant for its full value as work and labour done at the request of the defendant; it was held that there was no contract to that effect, but that he might either claim the contract price, or might repudiate the contract and sue the defendant in an action for the deceit (a). formance of an execu Contracts founded upon executed considerations in the Contracts arising up. manner above mentioned frequently arise, where a contract on part perwith an executory consideration has been rescinded after part performance of the consideration. A new contract may tory consiarise upon the part performance of the consideration, in respect of its having been performed upon request, or being retained and accepted. deration. fault in Under a contract with an executory consideration, if the Where depromiser after part performance of the consideration refuses completion or prevents the completion, the promisee may insist upon the prois caused by his rights under the contract, but in general he has the miser. option to treat the contract as rescinded, and prefer a claim upon a new contract arising in respect of the consideration. executed, as accepted by the promiser or as executed at his request, as in the following examples: -The defendant ordered of a publisher a work to be delivered in twenty-four monthly parts, and after receiving eight he refused to receive more; the original contract could not be enforced because it was within the Statute of Frauds and not made in writing; but it was held that the defendant, by accepting and keeping the eight numbers, became liable on a new contract to pay the value of them (b). The defendant engaged the plaintiff to write a treatise for a periodical publication; the plaintiff commenced the treatise, but before he had completed it the defendant abandoned the publication; it was held that the plaintiff might treat the original contract as rescinded, and sue for the value of the work already done without completing the treatise (c). The defendant employed the plaintiff to find a purchaser for an estate upon 83. (a) Selway v. Fogg, 5 M. & W. (b) Mavor v. Pyne, 3 Bing, 285. the terms of receiving a percentage on the purchase money; the plaintiff having found a purchaser, the defendant refused to complete the sale; it was held that the plaintiff might recover the value of the work and labour which he had performed, as having been performed at the request of the defendant (a). The defendants, a public company, employed the plaintiff, a broker, to dispose of their shares on the terms that he should be paid £100 down, and £400 in addition upon the allotment of the whole of the shares of the company; the plaintiff disposed of part of the shares, when the company wound itself up and so prevented him from disposing of the remainder and earning the £400; it was held that the plaintiff was entitled to recover a part of the £400 proportionate to the work done, as having performed it at the request of the company (b). An agreement was made that the plaintiff should supply the defendant with board and lodging to be paid for by certain furniture of the defendant to be taken at a valuation; the defendant having suffered the furniture to be taken in execution, and so prevented the further completion of the contract, he was held liable for the value of the board and lodging which he had already received, as having been provided at his request (c). By a contract made between the plaintiff and the defendant, the plaintiff was to supply the defendant with a certain quantity of furniture on the terms of payment, one half in cash and the other half by bill at six months; after delivery of a portion under the contract, the defendant refused to take any more; it was held that the refusal of the defendant entitled the plaintiff to treat the contract for payment by bill as at an end, and at once to recover the value of the goods received by the defendant in an action for goods sold and delivered (d). An author employed a printer to print a work, who printed a portion of the copy delivered to him for that purpose, but discovering that another portion offered for printing was libellous refused to print it; it (a) Prickett v. Badger, 1 C. B. N. S. 296; 26 L. J. C. P. 33; and see De Bernardy v. Harding, 8 Ex. 822; 22 L. J. Ex. 340. (b) Inchbald v. Western Neilgherry Tea Company, 17 C. B. N. S. 733; 34 L. J. C. P. 15. (c) Keys v. Harwood, 2 C. B. 905; and see Clarke v. Westrope, 18 C. B. 765; 25 L. J. C. P. 287. (d) Bartholemew v. Markwick, 15 C. B. N. S. 711; 33 L. J. C. P. 115. |