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the unsound, and enforced without injustice to the defendant.”


66. A and B bet on a horse race in which neither has an interest. At the English common law the wager is enforcible. In this country, however, statutes in many states make wagering contracts illegal; and independently of statute such contracts generally are held illegal as being against public policy.

67. A, an unlicensed school teacher, contracts to teach a certain school for a term at $50 per month. A statute requires that persons who teach school shall hold certificates. A cannot recover for his services. A like rule obtains in the case of unlicensed physicians, lawyers, innkeepers, plumbers, real-estate brokers, etc.

68. A, a carpenter, erects a bowling alley in a building appurtenant to a saloon, where a statute prohibits it. A cannot recover for his services.

69. A is employed to assist in running a certain excursion steamboat on Sunday. A statute prohibits "worldly employment” on Sunday. A cannot recover for his services.

70. A employs B to assist in drawing in wheat on Sunday. The wheat is in imminent danger of being destroyed unless taken care of on that day. A statute prohibits work on Sunday except works of necessity or charity. B can recover for his services.

71. A sells B on Sunday some tobacco on credit. A statute prohibits sales of goods on Sunday, except drugs, medicines, provisions, or other articles of immediate necessity. A cannot recover for the tobacco.1

72. A and B are partners. A executes an assignment on Sunday and B executes and delivers it on the next day. The assignment is valid.2

73. A takes out a policy of insurance on his own life, pay1 State v. Ohmer, 34 Mo. App. 115. 2 Farwell v. Webster, 71 Wis. 485, 37 N. W. R. 437.

A's agree

able to himself, his executors, administrators, or assigns. A commits suicide while sane. Upon this subject the policy is silent. Upon grounds of public policy and the presumed intention of the parties there can be no recovery on the policy."

74. A, a real-estate dealer, agrees to act as agent of both the vendor and the vendee of a certain farm, from each of whom he is to receive a commission in case a sale is made. ment is against public policy and void. (See Sec. 349.)

75. A agrees that he will never marry any one but B; and furthermore, that if he break his promise he will pay B $1000. A's promise is void.

76. A promises his son, B, $1000 if he will remain single until he is of age. A's promise is valid.

77. A sells his grocery to B and covenants that he will not engage in the grocery business in the same town for five years. A's covenant is reasonable and valid.

78. A sells his retail drug business to B and covenants that he will not engage in the drug business in the United States for

A's covenant is against public policy and void. 79. A leases his saloon to B and covenants that he will not sell any beer on the premises except that made by the X Brewing Co. A's covenant is valid. 3

80. A statute prohibits the sale of impure foods. A sells B a quantity of impure goods. The contract is illegal and void.

81. A, an unlicensed physician, prescribes for B. A cannot recover for his services.

82. A contracts with B to sell him a certain quantity of goods on terms to be fixed by C, and if either refuses to abide by C's decision he is to pay the other party $20. The contract is valid. The latter clause is a provision for liquidated damages and not a wager.

83. A promises B $100 if he will bring about a marriage between him and C. A's promise is not binding. This is a marriage brokerage contract and against public policy.

1 Ritter v. Ins. Co., 169 U. S. 139. 2 Rice v. Wood, 113 Mass. 113, 18 Am. Rep. 459. 3 Ferris v. Brewing Co., 155 Ind. 539, 58 N. E. R. 701.

three years.

84. A promises B $10 if he will vote for him for a public office. A's promise is against public policy and void.

85. A hires B to act as bartender in his saloon in a city where the sale of intoxicating liquors is prohibited. B cannot recover for services rendered in such sales.

105. Reality of consent.-One of the essential elements of a valid contract is reality of consent. An apparent agreement of the minds is not sufficient. Unreality of consent may arise owing to mistake, misrepresentation, fraud, undue influence or duress.

106. Mistake.Mistake is divided into two classes— mistake of fact and mistake of law. The former is subdivided into mistake of intention and mistake of expression. Mistake of intention arises where the parties to a contract do not mean the same thing, or where one or both of the parties form untrue conclusions as to its subject matter. This kind of mistake avoids the contract because the minds of the parties do not meet. The mistake may relate to the subject-matter of the contract, or to the identity of one of the parties. Where a mutual mistake is made in regard to the subject-matter either party may avoid the contract. Where one of the parties is at a disadvantage in his knowledge of the subject-matter the law imposes upon the other party the duty of disclosing all material facts that he may know. Where goods are bought by description, or in reliance upon the judgment of the seller, the law will protect the buyer. A mistake in the identity of one of the parties may avoid the contract even when the mistake is innocently made. Likewise a mistake concerning the quantity or price of the subject-matter may render the contract voidable.

A mistake of expression does not invalidate a contract. When the minds of the parties meet and a mistake is made in the written expression of the terms of the contract, the mistake may be rectified.

A mistake of law does not avoid a contract. Thus, a mistake as to the legal effect of an instrument is no ground for rescinding the contract. It is to be observed, however, that a mistake concerning the legal effect of the technical language in an instrument may justify relief in equity. Ignorance or mistake of foreign laws, including those of a sister state, is regarded as ignorance or mistake of fact and may avoid a contract.

The remedies in case of mistake of fact are both legal and equitable. In a court of law the contract may be repudiated and money paid under it be recovered. In equity a bill may be filed to have the contract declared void; or, where a bill has been filed praying specific performance of the contract it may be resisted by pleading the mistake. In the case of a mistake of expression, a bill may be filed praying that the instrument be reformed.

107. Misrepresentation and fraud.Ordinarily an innocent misrepresentation does not affect the validity of a contract. There are, however, some exceptions to this rule. Thus, contracts of insurance, and contracts between persons occupying a confidential relation, are not within the rule. In these cases a material misrepresentation renders the contract voidable. And where the misrepresentation amounts to a condition or term of the contract the injured party may avoid the contract. But where it amounts to a mere warranty his remedy is confined to damages for the breach. Where the misrepresentation constitutes a condition, and the injured party waives the breach by continuing to receive benefits under the contract, the condition becomes a war

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ranty ex post facto and his remedy thereafter is limited to damages.

Fraud consists in a false representation of a material fact, made with knowledge of falsity, or in reckless disregard of its truth or falsity, with the intention that it be acted upon by another, who has the right to rely upon the statement, and who does act upon it to his injury. Mere nondisclosure of a fact does not, as a rule, affect the validity of a contract. But where a duty exists to disclose a material fact, and a failure to do so amounts to an implied representation that it does. not exist, the nondisclosure amounts to fraud.

The requisites of fraud are as follows: The representation must be false. It must relate to a present or past fact. It must be known to be false by the party who makes it, or made in reckless disregard of its truth or falsity. It must be calculated to deceive and actually deceive the other party. It must be relied upon by the other party to his injury.

The effect of fraud is not to render the contract void, but voidable at the option of the injured party. He may rescind the contract and recover what he has parted with, or sue for damages for the deceit. He


also resist an action at law against him on the contract, resist a suit in equity for specific performance, or file a bill in equity to have the contract set aside. If he seeks to rescind the contract, he must return, as a condition precedent, the consideration he received, unless it has been destroyed or taken from him without his fault, or is of no value. If, after discovery of the fraud, he receives benefit under the contract, his right to rescind is gone. Moreover, an unreasonable delay, after such discovery, will prevent his obtaining relief. But the mere fact that the consideration received has depreciated


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