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take no account of his temporary absence. While living with his father, in 1842, he got married, and brought his wife to live with him in the house of his parents. Afterwards his father placed him on another farm of the father, and very soon followed him there, and they all lived together until the father's death in 1849. The farm was the father's and it was managed by him and in his name, and the son worked on it under him. No accounts were kept between them, and the presumption is that the son and his family obtained their entire living from the father while they were residing with him. "Does the law, under the circumstances, presume that the parties mutually intended to be bound, as by contract, for the service and compensation of the son and his wife? It is not pretended that it does. But it is insisted that there are other circumstances besides these which, taken together, are evidence of an express contract for compensation in some form, and we are to examine this.

"In this court it is insisted that the contract was that the farm should be worked for the joint benefit of the father and son, and that the profits were to be divided; but there is not a shadow of evidence of this. And moreover it is quite apparent that it was wages only that was claimed before the jury for the services of the son and his wife, and all the evidence and the charge point only in that direction. There was no kind of evidence of the annual products.

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"Have we then any evidence of an express contract of the father to pay his son for his work or that of his wife? We concede that, in a case of this kind, an express contract may be proved by indirect or circumstantial evidence. If the parties kept accounts between them, these might show it. Or it might be sufficient to show that money was periodically paid to the son as wages; or, if there be no creditors to object, that a settlement for wages was had, and a balance agreed upon. But there is nothing of the sort here."

Question 154: Upon what fact did the son base his claim in the above case? Did he have any evidence aside from the fact

that he worked for his father, that the father had agreed to pay for such work? Did the Court allow his claim? Why? What is a contract implied in fact? In law (constructive contract)?

(Note: The sort of obligation described by the Court as arising out of constructive contract, that is to say not out of true contract, is perhaps, better called, quasi-contract, or contract implied in law. A contract implied in fact is a true contract, that is to say, the minds of the parties have really met in contractual intent, as where I order groceries from a store, saying nothing about price or payment. A true contract exists, as much as though I put the promise to pay in language. Whenever, as the Court says, there is a situation between parties, the reasonable explanation of which is that of contractual relationship (as in the case of ordering the groceries) we infer or imply a contract between them, unless the evidence in fact shows there was no contract, but if the more reasonable explanation is some other relationship, as that of filial duty, neighborliness and the like, there is no inference of contract.)

F. Contracts Implied in Law or Quasi-Contracts.

§ 134. (Contracts, Sec. 102.) Definition of quasicontracts.

(Note: The law allows recovery in a contract form of action in some cases where there is in fact no contract. It is said in these cases, the law will imply a contract. But the real reason for calling certain obligations contractual, when in fact they do not arise out of contract, was to permit suit under the forms of suit established for contract cases. This is unfortunate and leads to 'indistinctness of thought.'

'Quasi contracts' or 'contracts implied in law' exist in cases in which the defendant is 'unjustly enriched' at the plaintiff's expense and ought to pay, yet he has not promised to pay, and has committed no tort; although the theory has been extended to certain tort cases in which the plaintiff may 'waive the tort and sue in contract.'

The following are examples of quasi-contracts:

1. Cases in which money is paid or other property parted with under a mistake of fact, as where by an error in calculation, a person pays more than he owes. He may recover the surplus.

2. Money paid under mistake of law, cannot be recovered unless paid under protest, it being necessary for the payor to make the payment to protect himself, as for instance, money paid to a telephone company when the charge is not lawful; or a tax paid under protest, where the charge is improper.

3. Cases in which a benefit is conferred by plaintiff under a contract broken by him. As where he builds a part of a house, thus enriching the defendant, but breaks his contract in failing to finish. There is more to be said on this point later.

4. Cases in which money is paid or property parted with under an unenforceable contract, as where the plaintiff has paid $500 under an oral agreement to buy real estate, and the defendant refuses to go on and relies on the statute of frauds. The plaintiff can recover the $500.

5. Certain classes of tort cases, in which the plaintiff might sue in tort, but has some advantage in suing in contract, as where the defendant has taken his personal property wrongfully, and the plaintiff sues on an implied promise to pay the reasonable value therefor.)

PART II

THE INTERPRETATION OF CONTRACTS

Chapter 13. General Rules of Interpretation. Chapter 14. Interpretation in Respect to Time of Performance.

Chapter 15. Interpretation of Provisions as to Penalties or Liquidated Damages.

CHAPTER 13

GENERAL RULES OF INTERPRETATION

§ 135. The governing principle in construction of contracts. § 136. General rules of construction.

§ 135. (Contracts, Sec. 103.) The governing principle in construction of contracts.

(Having the contract formed, what does it mean? The meaning may be clear so that there is nothing to interpret or construe. But it may require interpretation, the language used being susceptible of different meaning. The Court tries in such cases to find out the intention of the parties and enforce the contract according to such intention. That is the governing principle in the construction of contracts.)

§ 136. (Contracts, Sec. 104.) General rules of con

struction.

(Note: See Commercial Law Series, Vol. 1, Sec. 104.)

CHAPTER 14

CONSTRUCTION IN RESPECT TO TIME OF
PERFORMANCE

$137. In a court of law, time is of the essence.

§ 138. Time of performance in a court of equity.

§ 137. (Contracts, Sec. 105.) In a court of law, time is of the essence.

Case 155. Cleveland Rolling Mill v. Rhodes, 121 U. S. 255.

Facts: The C. R. M. agreed to sell to Rhodes, a merchant at Chicago, the entire product of 14,000 tons of iron ore to be shipped as rapidly as possible during the season of navigation, in 1880, or such part as remained to be shipped on the opening of navigation in 1881. The C. R. M. shipped about 8,421 tons in 1880 and had on hand for shipment in 1881 at the opening of navigation 3,506 tons. It was not ready to fulfill its contract until nearly two months after the season opened in 1881. Rhodes refused to receive the shipments made in 1881. Point Involved: Whether a provision in a contract as to the time for performance is to be construed literally, so that an unreadiness to perform at the very time, will (unless waived by the other side) constitute a breach.

MR. JUSTICE GRAY: "In a case decided upon much consideration at the last term, the general rule was stated as follows: In the contracts of merchants time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival with a view to providing funds to pay for the goods, or of fulfilling contracts with third persons.

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"When a merchant agrees to sell and to ship to the rolling mill of the buyer a certain number of tons of

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