be lawful, the contract will be valid, unless such undue influence or force is used, as may be supposed by the court would overcome a man of ordinary firmness. Duress by threats, is where a man is threatened with loss of life, or of limb, or mayhem or unlawful imprisonment. The threat of an injury which may be compensated in damages forms an exception. 6 Mass. 506; Story on Cont. 88-90.

SEC. 20. Fraud-Every description of contract is vitiated by fraud or deceit practiced by one of the parties to it, and may be avoided by the party imposed on. A man cannot avail himself even of a statute to practice fraud; and all acts, as well judicial as others, which of themselves are just and lawful, yet if mixed with fraud and deceit are, in judgment of law, wrongful and unlawful. For instance: If a third party should claim a horse, really his own property, and sue for him and recover him from one who purchased him in good faith as the property of another; if it can be shown, that he permitted his horse to be sold that he might bring suit to recover him, the judgment can be avoided. Whenever a party is induced in any false manner to do an act which otherwise he would not have done, he may relieve himself by showing the fact. 6 Johns. 110; 12 Johns. 469.

SEC. 21. If two persons combine to commit a fraud, as if one, for a merely nominal consideration permits another to take his property, to save it from seizure by his creditors though void as to the creditors, it is made binding between them. Montgomery vs. Hunt, 5 Cal. 368.

SEC. 22. Contracts relating to the sale or exchange of property-to bailments, and those from which a debt arises. as for work and labor, are the most common. Cowen's Treatise, 58.

SEC. 23. A transmutation of property in consideration of some price or other thing, is called sale or exchange. If A offer B a price for his horse which B accepts, and in consideration thereof delivers A his horse, it is a sale. If A gives to B his horse in consideration that B will give to him his mule, it is an exchange. In either case, the seller is called the vendor, and the buyer is called the vendee. 2 Denio, 136.

SEC. 24. As between the vendor and vendee, the title to

the goods is changed when any portion of the purchase money is paid, or any portion of the article purchased is delivered, and from and after that time the vendor may bring an action for the purchase money, or the vendee may recover the goods. Cowen's Treatise, 58, 59.

SEC. 25. When goods are sold on a credit and nothing is agreed upon as to the time of delivering, the vendee is entitled to the immediate possession, and the right of possession and the title of the property vest immediately in him. But if, by the contract of sale, any act remains to be done before the terms of sale are performed, the contract is not complete until that thing is done. Cowen's Treatise, 58, 59.

SEC. 26. The person in possession of personal property is deemed the owner of it, and it is liable to seizure by his creditors. A sale of personal property, therefore, to be valid against the claims of creditors, must be accompanied by an actual and continued change of possession. Whitney vs.

Stark, 8 Cal. 517.

SEC. 27. Where purchasers from a common vendor are equally innocent or equally at fault, the first purchaser is entitled to the goods. Vance vs. Boynton, 8 Cal. 560.

SEC. 28. Contracts for the sale of goods, chattels or things in action, for the price of two hundred dollars and over, are void; in other words, there is no contract which binds either party, unless: 1st. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby (or their authorized agent); or, 2d. Unless the buyer shall accept and receive part of such goods, or the evidences or some of them, of such things in action; or, 3d. Unless the buyer shall at the time pay some part of the purchase money. Public Laws, Hittell, 3157, Sec. 13.

SEC. 29. Contracts to deliver a thing at a future day which thing does not yet exist, as for instance something to be made, are held not to be within the rule laid down in the proceeding, but are as contracts for work and labor. 18 Johns. 58.

But when the thing sold exists, the mere fact that something is to be done to it before it is delivered, forms no exception to the rule. So, where a person sells his wheat and

agrees to deliver it after it is threshed, must be in writing to be binding. 23 Wend. 270.

SEC. 30. A note or memorandum, in writing, must be signed by both parties, or by some one for them who has authority so to do, or they will not be bound. 26 Wend.

341.

It is not sufficient that the names are inserted in the body of the writing, they must be signed at the bottom of it. If the signing be done by the vendor alone it will bind him. The following form is sufficient to bind the vendor :

I have sold to B. one wagon..

(Signed)

JANUARY 31st, 1870.

$250.

A.

SEC. 31. An auctioneer is an agent for both seller and buyer, and when he knocks down the goods, the sale is complete. The entry in his book of sales, describing the nature or kind of goods sold, their price and the terms of sale, and the name of the purchaser, and the name of the person 'on whose account the goods are sold, shall be deemed the note or memorandum of the contract. Gen. Laws, Hittell, Sec. 3158.

But the entry must be made at the time and place of sale. It is not enough that a minute be made at the time of the sums bid, and the name of the bidder, although the other entries be made shortly after at another place. 12 Wend.

548.

SEC. 32. The acceptance of part of the goods by the purchaser or the delivery to him may be either actual or constructive, or inferred from circumstances. As, where they are in a house and the key is delivered to him; or where they are in the possession of a third person, who has receipted for them, and the receipt is delivered to him. 5 Johns. 335.

SEC. 33. An actual delivery is sometimes inferred by the courts. As, where A sells to B a yoke of oxen, which are distant from them in a stable or in a field; and sometime after the purchase, there being no money paid or note of the sale made, B takes the oxen away; it was held, there was a delivery, and B was chargeable with the price. Or, where horses are purchased, and the purchaser says: "Here,

keep them for me, until I can send for them," the taking of the horses to keep by the vendor, implies a previous delivery to the purchaser. 1 East. 192; Cowen's Treatise,

Sec. 96.

SEC. 34. Property sold may have been received by the purchaser, and still the sale is not complete: as, where at an auction sale for cash, the purchaser bids off an article; it is handed to him by the auctioneer and the purchaser receives it, but does not pay for it-in such case the delivery is said to be conditional, and the title to the property is not changed. Cowen's Treatise, 61, 62.

CHAPTER IV.

CONTRACTS PARTICULARIZED, WHAT CONSTI

TUTES, ETC.

SECS.

WHAT CONSTITUTES A CONTRACT 1- 6 | INTERPRETATION AND CONSTRUC

SECS.

SECTION 1. A contract is a voluntary agreement between competent parties, upon a good consideration, to do or not to do some particular thing which may be lawfully done or omitted; and it makes no difference whether the subject matter of the contract be real or personal estate; the contract is still good whether verbal or written, unless some positive law provide otherwise. 10 Cal. 166.

SEC. 2. A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing. The only end and object of the contract is the doing or the not doing of the particular thing mentioned. The practical result is the only end aimed at by the parties, and the obligation of the contract is the vital

binding element that secures this practical consummation. 9 Cal. 83.

SEC. 3. All men are presumed to know the law and the law then existing enters into, and forms a part of, the contract, without any express stipulation to that effect. Parties, in entering into contracts, only expressly stipulate as to matters that cannot appear without such stipulation. It would be idle for them to say, expressly, that they incorporate in their agreement the law then existing. 9 Cal. 84.

As the law enters into the contract and forms a part of it, the obligation of such contract must depend upon the law existing at the time the contract was made. The rights as well as the intentions of the parties are fixed and ascertained by the existing law. 9 Cal. 84; 16 Cal. 32, 33.

The obligation of a contract, consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract in favor of one party to the injury of the other; hence, any law which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the constitution. 16 Cal. 31, 32.

The same constitutional inhibition which protects contracts between individuals from being impaired by the legislature extends to contracts between individuals and the state. The principles laid down in Fletcher vs. Peck (6 Cranch, 87), says Mr. Justice Washington in the opinion in Green vs. Biddle, from which we have already cited, "are that the constitution of the United States embraces all contracts,