OF CONTRACTS

Express contracts are those in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of making: as, to pay a stated price for certain specified goods; to deliver an ox, etc. 2 Bla. Com. 448. Gratuitous contracts are those of which the object is the benefit of the person with whom it is made, without any profit or advantage received or promised as a con- sideration for it. It is not, however, the less gratuitous if it proceed either from gratitude for a benefit before received or from the hope of receiving one hereafter, although such benefit be of a pecuniary nature. Louisiana Code, art. 1766. Gratui- tous promises are not binding at common law unless executed with certain formali- ties, viz., by execution under seal. Illegal contracts are agreements to do acts prohibited by law, as to commit a crime; to injure another, as to publish a libel; H. & Ν. 73. Hazardous contracts are those in which the performance of that which is one of its objects depends on an uncertain event. Louisiana Code, art. 1769. Implied contracts may be either implied in law or in fact. A contract implied in law arises where some pecuniary inequality exists in one party relatively to the other which justice requires should be compen- sated, and upon which the law operates by creating a debt to the amount of the re- quired compensation; Leake, Contr. 38. See 2 Burr. 1005; 11 L. J. C. P. 99; 8 C. В. 541. The case of the defendant obtaining the plaintiff's money or goods by fraud, or duress, shows an implied contract to pay the money or the value of the goods. A contract implied in fact arises where there was not an express contract, but there is circumstantial evidence showing that the parties did intend to make a contract; for instance, if one orders goods of a tradesman or employs a man to work for him, without stipulating the price or wages, the law raíses an implied contract (in fact) to pay the value of the goods or services. In the former class, the implied contract is a pure fiction, having no real existence; in the latter, it is inferred as an actual fact. See Leake, Contr. 12. Independent contracts are those in which the mutual acts or promises have no relation to each other either as equivalents or as considerations. Louisiana Code, art. 1762. Mixed contracts are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge. Contracts of mutual interest are such as are entered into for the reciprocal interest and utility of each of the parties: as sales, exchange, partnership, and the like. Onerous contracts are those in which something is given or promised as a con- sideration for the engagement or gift, or some service, interest, or condition is im- posed on what is given or promised, al- though unequal to it in value. Oral contracts are simple contracts. Principal contracts are those entered into by both parties on their own accounts, or in the several qualities or characters they assume. Real contracts are those in which it is necessary that there should be something more than mere consent, such as a loan of money, deposit, or pledge, which, from their nature, require a delivery of the thing (res). Reciprocal contracts are those by which the parties expressly enter into mutual en- gagements, such as sale, hire, and the Ilke. Contracts of record are those which are evidenced by matter of record, such as judgments, recognizances, and statutes staple. These have been said to be the highest class of contracts. Statutes, merchant and staple, and other securities of the like nature, are confined to Eng- land. They are contracts entered into by the inter- vention of some public authority, and are wit- nessed by the highest kind of evidence, viz., matter of record; Poll. Contr. 141; 4 Bļa. Com. 465. Severable (or separable) contracts are those the considerations of which are by their terms susceptible of apportionment or division on either side, so as to corre spond to the several parts or portions of the consideration on the other side. A contract to pay a person the worth of his ser vices as long as he will do certain work, or so much per week as long as he shall work, or to give a cer- tain price per bushel for every bushel of so much corn as corresponds to a sample, would be a sever- able contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be im- plied by law, such a contract will generally be held to be severable. So when the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire. But the mere fact of sale by weight or measure-i. e. so much per pound or bushel does not make a contract sever- able. Simple contracts are those not of spe- cialty or record

By Article First, Sec- tion 10, Clause 1, of the Constitution of the United States "No state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." There has been much discussion as to the reasons which led the Convention of 1787 to insert this clause in the constitution. They seem to have intended that it should prevent the states from passing stay laws and bankrupt laws (Bradley, J., 99 U. S. 745), and other acts which would interfere with private contracts or engagements previous- ly formed. Stay laws to prevent the collec- tion of debts had been passed in many of the states, especially in the South. In the Dartmouth College case, 4 Wheat., 518, Chief Justice Marshall said that he thought it more than possible that the convention had not intended by the clause to preserve the integrity of the charters of corporations. But in Pennsylvania the legislature had revoked the charter of the College of Phila- delphia and virtually confiscated its prop- erty by taking it away from its trustees and giving it to another set of trustees who were of the political party which controlled the legislature. The same legislature had annulled the charter of the Bank of North America to which it was hostile, and would have succeeded in wrecking it, if the bank had not had another charter from congress, and soon after obtained one from the state of Delaware. These acts of spoliation alarmed all men of property, and James Wilson, a Pennsylvania member of the convention, who had been interested in both the bank and the college, was most active in procuring the adoption of the clause. Fisher's "Pennsylvania: Colony and Commonwealth" 375, 383; Fisher's "Evolution of the Constitution" 262; Shirley's "Dartmouth College Case" 213, 220; Alfred Russell's Address before Graf- ton and Coos Bar Association of New Hamp- shire, 1895 (reprinted Am. Law Rev. vol. 30. p. 321). This article of the constitution forbids only the states to pass laws impairing the obligation of contracts, and there is no ex- press provision prohibiting congress from passing such laws. It would seem, more- over, as some have argued, that there is an implied power in congress to pass such laws, for we find in the constitution a number of general prohibitions in which both congress and the states are prohibited from passing bills of attainder and ex post facto laws; 1 Pet. 22. The omission of the prohibition in one case and the expression of it in the other might seem to imply that the power to pass laws impairing the obli- gation of contracts remained in congress; and congress is expressly given power to pass bankrupt laws which impair the obli- gation of contracts between debtors and creditors; 4 Wheat. 122; and, under the de- cisions of the supreme court, congress may issue notes as legal tender in satisfaction of antecedently contracted debts. But the general exercise of such a power by con- gress has been said to be contrary to the first principles of the social compact and to every principle of sound legislation; Fede- ralist No. 44. Bradley, J., in a dissenting opinion in the Sinking-Fund Cases, 99 U. S. 746, took the same view of the origin of this provision, and said further that it fully explained the fact that no such inhibition was laid upon the national legislature, and he was further of opinion that the absence of such inhibition furnished no ground of argument in favor of the proposition that congress can pass arbitrary and despotic laws with regard to contracts any more than with regard to any other subject- matter of legislation. The provision of the constitution is, however, not applicable to laws enacted by the states before the first Wednesday in March, 1789; 5 Wheat. 420. All contracts, whether executed or ex- ecutory, express or implied, are within the prohibition; 6 Cranch 135; 7 id. 164;8 Wheat. 1; 109 U. S. 285; 15 Wall. 300; 116 U. S. 131; and also judgments founded upon contracts; 103 U. S. 358; 105 id. 228, 733. A state law annulling private convey- ances is also within the prohibition, as are laws repealing grants and corporate fran- chises; 3 Hill, N. Y. 531; 1 Pick. 224; 2 Yerg. 534; 13 Miss. 112; 9 C. R. A. 43, 292; 2 Pet. 657; 4 Wheat. 656; 6 How. 301. A state constitution is not a contract, the obligation of which the state is prohibited by the federal constitution from impair- ing; 121 U. S. 282; nor is a judgment for a tort; 109 U. S. 285; 131 U. S. 405. But the prohibition applies to state constitu- tions as well as to the laws of a state; 10 Wall. 511; 115 U. S. 650; 116 id. 631; and to a decision of a state court altering a former construction of a law, subsequently to which construction the contract was made. The prohibition does not apply to judicial decisions or the acts of state tri- bunals or officers under statutes in force at the time of making the contract; 163 U. S. 273; citing 121 id. 358; 150 id. 18; 159 id. 103. The sound and the true rule is that, if the contract, when ma