The remedy by which such promises were eventually enforced is a curious instance of the shifts and turns by which practical convenience evades technical rules. The breach of an executory contract, until quite recent times, gave rise to a form of the action of trespass on the case. Chancery i. 241. This was a development of the action of trespass: tres- Spence, pass lay for injuries resulting from immediate violence: trespass on the case lay for the consequences of a wrongful act, and proved a remedy of a very extensive and flexible character. action of assumpsit. [2 Harv. L. J. B. Ames.] Rev. 1, 58. Reeves, ed. ed. 5. This action came to be applied to contract in the fol- Origin of lowing way. It lay originally for a malfeasance, or the doing an act which was wrongful ab initio: it next was applied to a misfeasance, or improper conduct in doing what it was not otherwise wrongful to do, and in this form it applied to promises part-performed and then abandoned or negligently executed to the detriment of the .395, 396. promisee finally, and not without some resistance on the part of the courts, it came to be applied to a non-feasance, or neglect to do what one was bound to do. In this form it adapted itself to executory contracts. The first reported Pollock, 141, attempt so to apply it was in the reign of Henry IV, when a carpenter was sued for a non-feasance because he had undertaken, quare assumpsisset, to build a house and had made default. The judges in that case held that the action, if any, must be in covenant, and it did not appear that the promise was under seal. But in course of time Reasons the desire of the common law courts to extend their jurisdiction, and their fear lest the chancery by means of the doctrine of consideration, which it had always applied to the transfer of interests in land, might enlarge its jurisdiction over contract, produced a change of view. Early in the sixteenth century it was settled that the form of trespass on the case known henceforth as the action of assumpsit would lie for the non-feasance, or non-performance of an executory contract; and the form of writ by which this action was commenced, perpetuated this peculiar [*47] for its extension. aspect of a breach of a promise until recent enactments for the simplification of procedure. It is not improbable that the very difficulty of obtaining a remedy for breach of an executory contract led in the end to the breadth and simplicity of the law as it now stands. If the special actions ex contractu had been developed so as to give legal force to informal promises, they might have been applied only to promises of a particular sort: a class of contracts similar to the consensual contracts of Roman law, privileged to be informal, would then have been protected by the courts, as exceptions to the rule that form or executed consideration was needed to support a promise. But the conception that the breach of a promise was something akin to a wrong -the fact that it could be remedied only by a form of action which was originally applicable to wrongs - had a somewhat peculiar result. The cause of action was the non-performance of an undertaking; not the breach of a particular kind of contract; it was therefore of universal application. Thus all prom ises would become binding, and English law avoided the technicalities which must needs arise from a classification of contracts. Where all promises may be actionable it follows that there must be some universal test of actionability, and this test was supplied by the doctrine of consideration. It is a hard matter to say how consideration came to considera- form the basis upon which the validity of informal promtest of ac- ises might rest. Probably the 'quid pro quo' which furnished the ground of the action of debt, and the detribility is uncertain. ment to the promisee on which was based the delictual action of assumpsit, were both merged in the more general conception of consideration as it was developed in the chancery. Origin of tion as a tiona For the chancellor was wont to inquire into the intentions of the parties beyond the form, or even in the absence of *the form in which, by the rules of common law, that intention should be displayed, and he would [*48] find evidence of the meaning of men in the practical results to them of their acts or promises. It was thus that the covenant to stand seised and the bargain and sale of lands were enforced in the chancery before the Statute of Uses; and the doctrine once applied to simple contract was found to be of great practical convenience. When a promise came before the courts they asked no more than this, 'was the party making the promise to gain anything from the promisee, or was the promisee to sustain any detriment in return for the promise?' if so, there was a 'quid pro quo' for the promise, and an action might be maintained for the breach of it." doctrine. So silent was the development of the doctrine as to Gradual the universal need of consideration for contracts not growth of under seal, and so marked was the absence of any express authority for the rule in its broad and simple application, that Lord Mansfield in 1765 raised the question whether, in the case of commercial contracts made in writing, there was any necessity for consideration to support the promise. In the case of Pillans v. Van Mierop he held that 8 Burr. 1663. consideration was only required as evidence of intention, and that where such evidence was effectually supplied in any other way, the want of consideration would not effect the validity of a parol promise. This doctrine was emphatically disclaimed in the opinion of the judges delivered not long afterwards in the House of Lords, in Rann v. Hughes. The logical completeness of our law 7 T.R. 850. of contract as it stands at present is apt to make us think that its rules are inevitable and must have existed from all time. To such an impression the views set forth by Lord Mansfield in 1765 are a useful corrective.1 a In the foregoing historical sketch I have refrained from citing authorities. To do so would encumber with detail a part of my book in which brevity is essential to the general plan. I may now refer the student to the chapter on Contract in the History of English Law, by Pollock and Maitland, vol. ii. pp. 183-230, a storehouse of learning upon the subject. 1 See Cook v. Bradley, 7 Conn. 57, H. & W. 133. Contracts are *CLASSIFICATION OF CONTRACTS. [*49] There is but one formal contract in English law, the deed or contract under seal; all others are simple conor simple. tracts depending for their validity upon the presence of formal, Classifica tion of contracts. consideration. The legislature has, however, imposed upon some of these simple contracts the necessity of some kind of form, and these stand in an intermediate position between the deed to which its form alone gives legal force, and the simple contract which rests upon consideration and is free from the imposition of any statutory form. In addition to these a certain class of obligation has been imported into the law of contract under the title of contracts of record, and though these obligations are wanting in the principal features of contract, it is necessary, in deference to established authority, to treat of them here. The contracts known to English law may then be divided thus: A. Formal. i.e. dependent for B. Simple. 1. Contracts of record. 2. Contract under seal. 3. Contracts required by law to be in some form other than under seal. 4. Contracts for which no form is required. It will be best to deal first with the essentially formal contracts, then with those forms which are superimposed upon simple contracts, and then with consideration, the requisite common to all simple contracts. The obligations which are styled contracts of record (1) Conare judgment, recognizance, statutes merchant and staple, and recognizances in the nature of statute staple. tracts of record. ment. And first as to judgment. The proceedings of courts (1) Judgof record are entered upon parchment rolls, and upon these an entry is made of the judgment in an action, when that judgment is final. A judgment awarding a sum of money to one of two litigants, either by way of damages or for costs, lays an obligation upon the other to pay the sum awarded. Such an obligation may be How it the final result of a lawsuit when the court pronounces originates. judgment; or the parties may agree to enter judgment in favour of one of them. This may be done before litigation has commenced or while it is pending; and it is done by a contract of a formal character. A warrant of attorney may give authority from one party to the other to enter judgment upon terms settled; a cognovit Leake, actionem is an acknowledgment by one party of the right ed. 3, 133. of the other in respect of a pending dispute and confers a similar authority.1 Contracts, The characteristics of an obligation of this nature may Its characbe shortly stated as follows: 1. Its terms admit of no dispute, but are conclusively proved by production of the record.2 2. So soon as it is created the previously existing rights with which it deals merge, or are extinguished in it: for 1 A judgment is not a contract, Morley v. Lake Shore Ry., 146 U. S. 162; O'Brien v. Young, 95 N. Y. 428, H. & W. 76; though it may be construed as falling within the term "implied contract" as used in a statute, Gutta Percha &c. Co. v. Mayor, 108 N. Y. 276; or simply "contract" where the statute makes but two classes of actions, namely, tort and contract, Moore v. Nowell, 94 N. C. 265. 2 Littleton v. Richardson, 34 N. H. 179; Williams v. McGrade, 13 Minn. 46. teristics. |