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Another class of contracts are called EXECUTED and EXECUTORY. An
EXECUTED CONTRACT is one that is finished, done, completed. If I
should go into a store and ask the price of a book and say to the
salesman, "I will take it," and give him the money, and take the book
with me, this would be an executed contract. An EXECUTORY CONTRACT is
one that is to be completed. Suppose the salesman did not have the
book and I should say to him, "Please get it for me and I will come in
next week and pay you for it," this would be an executory contract;
and it would remain so until I came in and got the book, as I had
promised to do, and paid the price.

These are the three most general classes of contracts made by persons
in daily life. Almost all persons make contracts of each kind during
their lives. Sealed contracts are not as common as unsealed ones, yet
they are frequently made. Every deed for the sale of land or lease for
the use of it is a sealed contract.

II. THE PARTIES TO A CONTRACT

To every contract there must be two or more persons or PARTIES. When
Robinson Crusoe was on his island all alone, eating breadfruit and
entertaining himself by throwing stones at the monkeys, he perhaps had
a good time, but he could not make any contracts. But as soon as
Friday came along they could make contracts, trade, and cheat each
other as much as they pleased. A contract, therefore, is one of the
incidents of society. A person sailing in a balloon alone could not
make a contract, but if two were in the basket they might amuse
themselves by swapping jack-knives or neckties, and these exchanges
would be completed or executed contracts and would possess, as we
shall soon see, every element of a contract.

Again, persons must be able, or COMPETENT, to make contracts. What
kind of ability or competency must a person have? Not every person can
make a contract, even though he may wish to do so. A MINOR, or person
less than twenty-one years of age, though he may be very wise and
weigh perhaps two hundred and fifty pounds, can make very few
contracts which the law regards as binding. In fact, the only
contracts that a minor can make for which he is bound are for
necessaries--clothing, food, and shelter. Nor can he make contracts
even for these things in unlimited quantities. A minor could not go
into a store and buy six overcoats and bind himself to pay for them.
The storekeeper must have common sense in selling to him and keep
within a reasonable limit. In one of the well-known cases a minor
bought a dozen pairs of trousers, half a dozen hats, as many canes,
besides a large supply of other things, and, refusing afterward to pay
the bill, the merchant sued him, and the jury decided that he must
pay. The case, however, was appealed to a higher court, which took a
different view of his liability. The judge who wrote the opinion for
the court said that the merchant must have known that the minor could
not make any personal use of so many trousers, canes, and hats, and
ought not to have sold him so many. In short, the court thought that
the merchant himself was a young minor in intelligence and ought to
have known better than to sell such a bill to a person under age.

Of course it is not always easy to answer this question, WHAT ARE
NECESSARIES? Much depends on the condition of the person who buys. A
merchant would be safe in selling more to a minor living in an
affluent condition of life than to another living in a much humbler
way. Quite recently the question has been considered whether a
dentist's bill is a necessity, and the court decided that it was a
proper thing for a minor to preserve his teeth and to this end use the
arts of the dentist. Again, is a bicycle a necessity? If one is using
it daily in going to and from his work, surely it is a necessity. But
if one is using it merely for pleasure a different rule would apply,
and a minor could not be compelled to pay for it. Cigars, liquors,
theatre tickets are luxuries; so the courts have said on many
occasions.

The courts, in fact, regard a minor as hardly able to contract even
for necessaries, and he is required to pay for them for the reason
that as he needs them for his comfort and health he ought to pay for
them. In other words, his duty or obligation to pay rests rather on
the ground of an implied contract (which has been already explained)
than of an express one. The force of this reasoning we shall
immediately see.

Suppose a minor should say to a merchant who was unwilling to sell to
minors,--having had, perhaps, sad experience in the way of not
collecting bills of them,--"I am not a minor and so you can safely
trust me. I wish to go into business and wish you would sell me some
goods." Suppose that, relying on his statement, the merchant should
sell him hats or other merchandise for which he would afterward
decline to pay, on the ground that he was a minor. Suppose he proved
that he really was one--could the merchant compel him to pay the bill?
He could not compel him to fulfil his contract, because, as we have
already said, the law does not permit a minor to make a contract
except for necessaries. The court, then, would say to the merchant:
"It is true that you sold the goods to this minor; he has indeed lied
to you; still the court cannot regard a contract as existing between
you and him." On the other hand, a court will not permit a person to
defraud another, and the merchant could make the minor pay for the
_deceit_ or _wrong_ that he had practised on him; and the measure of
this wrong would be the value of the goods he had bought. Thus the
court would render justice to the merchant without admitting that the
minor could make a legal contract for the goods that he had actually
bought and taken away.

III. THE PARTIES TO A CONTRACT (_Continued_)

In the former article we told our readers that there were some persons
who could not make contracts, and among these were INFANTS or MINORS.
In most of the States a person, male or female, is a minor until he or
she is twenty-one years old. In some of the States, among them
Illinois, a female ceases to be a minor at eighteen years of age.

By the Roman law a minor did not reach his majority until the end of
his twenty-fourth year, and this rule has been adopted in France,
Spain, Holland, and some parts of Germany. The French law, though, has
been changed, with one noteworthy exception. A woman cannot make a
contract relating to her marriage without the consent of her parents
until she is twenty-five. Among the Greeks and early Romans women
never passed beyond the period of minority, but were always subject to
the guardianship of their parents until they were married.

MARRIED WOMEN are another class of persons who cannot make every kind
of a contract like a man. Once a married woman had but very little
power to make contracts. However great might have been her wealth
before marriage, as soon as she entered into this blissful state the
law kindly relieved her of all except her real estate, giving it to
her husband. On the other hand, he was obliged to pay her bills,
which was one of his great pleasures, especially if she was a constant
traveller to the silk and diamond stores. She could still keep her
real estate in her own name, but that was about all. Her husband took
everything else; he could claim her pocket-book, if he pleased, and
was obliged to support her in sickness or health, in sweetness or in
any other "ness."

The law has been greatly changed in all civilised countries in this
regard, and to-day in most States she can make almost any kind of a
contract. In some States, however, it is even now said that she cannot
agree to pay the debt of another, but this is, perhaps, the only limit
on her power to contract. She can engage in business, buy and sell,
transfer notes, make contracts relating to the sale and leasing of her
real estate, insure it, build houses, and do a thousand other things
quite as freely as if there were no husband around. The most of these
changes widening her authority to make contracts have come within the
last fifty years. Of course, unmarried women can make contracts like
men, and many of them know it.

Another class who cannot make contracts are DRUNKEN PERSONS. Once the
law regarded a drunken man as fully responsible for his acts, and if
he made a contract he was obliged to execute or fulfil it. He could
not shield himself by saying he did not know what he was doing at the
time. The court sternly frowned on him and said: "No matter what was
your condition at the time of making it, you must carry it out." This
was the penalty for his misdeed. It may be the courts thought that by
requiring him to fulfil his contracts he would be more careful and
restrain his appetite. Whatever the courts may have thought, they have
changed their opinions regarding his liability for his contracts made
under such conditions. Now they hold that he need not carry them out
if he desires to escape from them. There is, however, one exception
to this rule. If he has given a note in the ordinary form, and this
has been taken by a third person in good faith who did not know of the
maker's condition at the time of making it, he must pay. But, we
repeat, the third person must act in good faith in taking it, for if
he knew that the maker was drunk at that time he cannot require him to
pay any more than the person to whom it was first given.

One other class may be briefly mentioned--the INSANE. They are
regarded in the law quite the same as minors. For their own protection
the law does not hold them liable on any contracts except those for
necessaries. These are binding for the same reasons as the contracts
of minors, in order that they may be able to get such things as they
need for their health and comfort. For if the law were otherwise,
then, of course, merchants would be afraid to sell to them. But as
merchants can now safely sell to them whatever they truly need in the
way of clothing, food, etc., to make themselves comfortable, so, on
the other hand, the insane, like minors, must pay for these things,
and it is right that they should.

IV. THE CONSIDERATION IN CONTRACTS

Having explained who can make contracts, we are now ready to take
another step. Besides having parties, there must be a CONSIDERATION
for every contract. This is rather a long word, but no shorter can be
found to put in its place. What do we mean by this term? We mean that
there must be some actual gain or loss to one or both parties to a
contract, otherwise it is not valid. If, for example, A should say to
B, "I will give you $100 to-morrow," B, perhaps, might go away very
happy, thinking that with this money he could buy a bicycle or some
other fine thing; indeed, it was just the sum for which he was
longing; so on the morrow he goes to A for his money. He promptly
appears, but A says to him: "I have changed my mind, and will not give
you the $100." B asks: "Did you not promise to give me this money?"
"Certainly." "Well, why will you not fulfil your promise?" A replies:
"I was a fool when I made that promise; you are not going to give me
anything for it, so I am unwilling to give the money to you." Suppose
B in his sorrow should go to a lawyer, thinking, perhaps, that he
could compel A by some legal proceeding to pay over the money. What
would the lawyer tell him? Why, he would say: "Did you promise to give
A anything for the $100?" "No, sir." "Then the law will not help you
out. You cannot get the money from him by any legal method. Perhaps
you can get $100 worth of fun in licking him for not giving you the
money, but you cannot get the cash. But, mind, perhaps you had better
not try to get your fun in that way, for this is contrary to law, and
he might get much more than $100 out of you in the way of damages for
licking him."

In every case, therefore, there must be _something for something_. Now
this something may be a thousand things. It may be money or
merchandise or work. In short, there is no end of the things that may
serve as a consideration of a contract. An example may be given to
explain what is meant by this. A man had been speculating in stocks,
and one of the rules of the stock board is that a margin or sum of
money that is to be paid for stock must be paid in every case. It may
be that an additional margin or sum must be paid under some
circumstances. The speculator in this particular case was unwilling to
pay this margin, and he said to the broker: "If you will do as I wish,
and not put up this margin, I will save you from any loss that may
result from such conduct." It was contrary to the rules of that stock
exchange for the broker not to put up the margin, and the consequence
was that he was put off the floor; in other words, the board would not
permit him to act as a member. Of course, as he could not buy and sell
any more stock, he lost money; and he went to his customer, the
speculator, and told him that he was losing money in consequence of
carrying out his order about the margin. The speculator said he was
sorry, but he could not help it. The broker then insisted that the
speculator must make good his daily loss in consequence of doing as he
had promised. This the speculator would not do. The broker then sued
him for the amount of his loss. The speculator defended on the ground
that there was no consideration for the agreement he had made with
the broker about the margin. The court said that the loss which the
broker had suffered in consequence of carrying out his contract with
the speculator was a good consideration for the contract and must be
made good.

_When a contract is sealed the law implies that there is
consideration_, and there need not be an actual one consisting of
money, labour, or any other thing. This seems like an exception to the
rule requiring a consideration in all cases, but the reason is this:
When a sealed contract is made, the law supposes or assumes that each
party made it, clearly knowing its nature--made it carefully, slowly,
and, consequently, that either a consideration had been or would be
given. If, therefore, one of the parties should refuse to fulfil it
the other could sue him in a court of law. The person who sought to
have it carried out would not be obliged to show that he had given any
consideration on his part for the undertaking, because the seal
appended to his name would imply that a consideration had been given.
A deed for a piece of land is a good illustration of a sealed
instrument. The law assumes whenever such a deed is given that the
seller received a consideration for his land. The money paid was a
consideration received by the seller, and the land was the
consideration received by the buyer. Each gives a consideration of
some kind for the consideration received from the other; and this is
true in all cases.

V. THE ESSENTIALS OF A CONTRACT

In our last paper we told our readers that there must be a
_consideration in every contract_. Sometimes this is _illegal_, and
when it is the effect is the same as would be the giving of _no
consideration_.

Suppose a robber having stolen money from a bank should afterward
offer to return a certain portion if he is assured that he will not be
arrested and compelled to change the style of his clothing and his
place of residence for a season. He cannot endure the thought of
missing a game of football; and as for striped clothes, though very
comfortable, perhaps, he is sure they would not be becoming. Suppose
this agreement to return a part should be put in writing, and after
fulfilling it he should be sued by the bank for the remainder, and
also prosecuted by the State for committing the theft. Very naturally
he would present the writing in court to show that he had been
discharged from the crime and also from the payment of any more money.
But this writing would not clear him either from prosecution for the
criminal offence or from liability to return the rest of the money.
The bank would say that although he had returned a part, this was not
a proper consideration for its agreement not to sue him; it had no
right to make such an agreement, and consequently it could sue the
robber for the remainder of the money just as though no agreement had
ever been made.

Another illustration may be given. Suppose a person having made a bet
and lost is unable to pay the money and gives his note for the amount.
When the note becomes due the holder or owner sues him for the money.
He defends, as he is unwilling to pay, by saying there was no legal
consideration for the note. The money he promised to pay was only a
wager, which the law regards as illegal. And this would be a good
defence.

If the consideration is partly legal and partly illegal and can be
divided then there can be a _recovery of the legal part_. Suppose a
man owed another $1000 for borrowed money and also a wager for the
same amount, and had given his note for $2000. When it became due if
the owner sued him he could recover only the $1000 of borrowed money;
this much and no more, for the reason that the consideration could be
divided, the legal part from the illegal part. If no separation was
possible then the note would be void and the owner could get nothing.

A person cannot recover for a _voluntary service_ that he has rendered
to another. A man would be very mean indeed who refused to pay another
for any service rendered to him that was truly valuable; yet if he
would not do so the man rendering the service could get nothing
through the law. Suppose that a person when walking along a road
should see some cattle astray in a corn-field having a good time with
a farmer's corn. He knows they are in the field for business and in a
short time, unless driven out, will get the best of nature and down
her efforts in corn-raising. In the kindness of his heart he jumps
over the fence and succeeds in driving them away. Suppose there
happens to be among the number an unruly animal which is unwilling to
leave such a tempting field of plunder and turns on him and gores
him, and he is taken to a hospital. The farmer finds out who drove out
the animals, and of his injury, but declines to give him any reward
whatever. Can the man recover anything? The law says not, because the
service is purely voluntary.

The question has often been asked whether a person who has made a
contract to work for another and has broken it can recover for the
worth of his service during the period he was employed. Some courts
have said that a person thus breaking his contract cannot afterward
recover anything, because he does not come into court with clean
hands. Other courts have said that though he can recover nothing on
the contract he has broken, he can nevertheless recover on a contract
which the law implies in such a case for the worth of his service
during the period of his employment. On the other hand, the employer
can set off against his claim any injury that he may have sustained.
Suppose he could show that the service was of no worth to him; that he
was injured rather than benefited by what he did; then the employe
could get nothing. The courts have been inclined of late years to
uphold an employe in recovering whatever his service was worth--not,
however, as done by virtue of an express or actual contract with the
employer. He cannot sue on that; in other words, he cannot take
advantage of his own wrong to recover anything from his employer, but
he may recover on the contract which the law implies, as we have
explained, as much as his service was worth to his employer, and no
more.

Another element in a contract is the meeting of minds of both parties.
_Both must understand the matter in the same sense._ For example, a
person offered to sell another "good barley" for a stated price, and
the other offered to buy "fine barley" at the price mentioned. There
was no contract between these persons, because it was shown that "good
barley" and "fine barley" were different things in the trade. This,
therefore, is one of the essential elements of a contract--the meeting
of the minds of the contracting parties. Whether they have assented or
not is a question of fact, to be found out like any other question of
fact.

Sometimes offers are made on time, and when they are several
interesting questions may arise. Suppose A and B are negotiating for
the sale and purchase of a piece of land. A says to B: "I will give
you a week to think the matter over." Soon after parting A meets C, to
whom he mentions his offer to B. C says: "I will give you a great deal
more for the land and pay you now." "Very well," says A; "the land is
yours." And he at once writes a letter to B saying that he has
withdrawn his offer, as another person has offered him more for the
land and that he has sold it to him. Now B might be very much
surprised by this letter. Very likely he would think A was a hard man
and perhaps a dishonest one. Perhaps he would go to a lawyer and ask
him if he could compel A to sell the land to him if he accepted his
offer within the time mentioned and paid to him the money. The lawyer
would tell him--if he understood his business--that A had a perfect
right to withdraw his offer, even though it was made on time. This
would probably be brand-new knowledge to B, but he would know what to
do on the next occasion.

Is this true in all cases? It certainly is of all offers made in that
manner. How, then, can a person who makes an offer to another on time
be compelled to regard it? The way is simple enough. The person to
whom the offer is made should give something--a consideration--to A,
who makes the offer, for the delay. Then he would be bound by it. But
the courts would say to B, if nothing were given: "Why should A's
offer bind him so long as he is to get no compensation or
consideration for it?" And we shall see again and again in these
papers _this element of consideration is ever present, and must be to
make transactions legal_. So with respect to an offer on time--if the
person to whom it is made is really desirous of having it continue, in
order to find out whether he can raise the money to pay, or for some
reason, he can make the offer binding by giving to the offerer a
consideration for the specified time, whatever that may be.

VI. CONTRACTS BY CORRESPONDENCE

_A great many contracts are made by correspondence._ A person writes a
letter to another offering to sell him merchandise at a stated price.
The other replies saying that he will accept the offer. Is a contract
made at the time of writing his letter and putting it into the
post-office, or not until it is received by the person who made the
offer? The law in this country is that a contract is made between two
persons in that way as soon as the answer is written and put into the
post-office beyond the reach of the acceptor.

The post-office usually is the agent of the person who uses it, but
when a person sends an offer to another by mail the post-office is
regarded a little differently. It is the agent of the person who sends
the offer and also his agent in bringing back the reply. Consequently,
when this is put into the hands of the agent the law regards the
offerer as bound by his offer. In like manner, if a creditor should
send a letter to his debtor asking him to send a cheque for his debt
and he should comply, the post-office would be the agent of the
creditor in carrying that cheque, because he requested his debtor to
use this means in sending his cheque to him. But when a request is not
made and a debtor sends a cheque on his own account, the post-office
is his agent for carrying it to his creditor.

A person making an offer by letter can of course withdraw it through
the telephone or telegraph if he likes at any time before the letter
has been received by the other party. Suppose the price of things is
rising and A, finding that his goods are also advancing, should, after
making an offer of some of them by letter, send a telegram stating
what he had written and withdrawing his offer. This would be a proper
thing for him to do. If, on the other hand, A's offer had been
received by B before his withdrawal and accepted, then A would be
bound by it.

Can B, after mailing his letter of acceptance and before it has been
received by A, withdraw his acceptance? No, he cannot--for the reason
above given, that the post-office is the agent of A, in carrying both
his offer and B's reply. If this were not so, if the post-office were
the agent of B in sending his reply, then of course it could be
revoked or withdrawn at any time before it reached A.

Suppose A should send an offer and afterward a withdrawal and the
withdrawal should be received first. Notwithstanding this, however, if
the person to whom the offer was sent should accept the offer, could
he not bind A? One can readily see that all the proof would be in the
possession of B, the acceptor. If he were a man without regard for his
honour and insisted that he received the offer first, A might be
unable to offer any proof to the contrary and fail to win his case
should B sue him. But the principle of law is plain enough; the only
difficulty is in its application. Doubtless cases of this kind
constantly happen in which the acceptor has taken advantage of the
other to assent to an offer actually received after its withdrawal.

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