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 employé

could get nothing. The courts have been inclined of late years to

uphold an employé 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.

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