tract broken, and may maintain (a) a suit to recover damages for the loss occasioned by the breach; 65 or (b) a suit to obtain specific performance of the contract by the other party. In other words, the law enforces the provision of the contract, either by compelling specific performance of its promises, or by awarding damages for its breach, to be paid by the party in fault to the party injured thereby."

66

§ 138. Quasi-Contract. Ordinarily, a person can only maintain an action on contract against another by proving a contract in fact, that is, an express agreement or an agreement implied as a matter of fact. There are circumstances, however, under which the law will create a fictitious promise for the purpose of allowing the remedy by action of assumpsit, to maintain which, as the Latin word implies, a promise must be alleged. The obligation is not a contract in the true sense, but is called quasi-contract. It may be founded upon the judgment of a court; upon a statutory, official, or customary duty; or upon the principle that no one ought to unjustly enrich himself at the expense of another. These obligations are not contract obligations, for there is no agreement, but they are clothed with the semblance of contract for the purpose of the remedy, as explained above.67

Whenever one person requests or allows another to assume such a position that the latter may be compelled by law to discharge the former's legal liabilities, the law imports a request and promise by the former to the latter a request to make the payment and a promise to repay and the obligation thus created may be enforced by assumpsit. It is a quasi-contractual obligation.68

So, wherever one person has money to which, in equity and good conscience, another is entitled, the law creates a promise by the former to pay it to the latter, and the obligation may be enforced by the action of assumpsit.

69

And under certain circumstances, where one person has conferred upon another benefits in the way of property, services,

66

jurisdictions. Smith Elem. L. 231;
Specific Performance,"
infra, § 247.

Cyc. -;

a

By "specific performance" contract is meant the compelling of a party to do what he has promised to do in his agreement. The awarding of damages for the breach of a contract is the usual method of enforcing it, specific performance being resorted to only in those cases where the mere recovery of damages is not deemed an adequate remedy. The granting of specific performance is one of the leading subjects of equity

67. Clark Contr. (2d ed.) 530; 9 Cyc. 243. And see 4 Cyc. 325 et seq. 68. Clark Contr. (2d ed.) 533; 27 Cyc. 832 et seq.

An illustration of such an obligation is where one of several sureties or joint debtors pays the whole debt. He is allowed to recover from each of the others in an action of assumpsit his proportionate share.

69. Clark Contr. (2d ed.) 536; 27 Cyc. 847 et seq.

etc., and cannot show a promise in fact by the latter to pay for them, the law will create an obligation, because of the receipt of the benefits, to pay what they are reasonably worth, and will allow an action of assumpsit, on the quantum meruit or quantum valebat, as it is called.70

B. PARTICULAR CONTRACTS

The subjects with respect to which contracts may be made are almost infinite in their variety. All of them, however, are, speaking generally, subject to the general principles of the law of contracts mentioned in the preceding sections of this chapter. Sometimes, however, the general principles of the law are modified to meet the requirements of a peculiar subject-matter, or particular contracts, because of their nature or subject-matter, are not only governed by the general law of contracts, but are also subject to certain special rules not applicable to contracts in general. Of these the most important are the contract of sale, the contract of bailment, the negotiable contract, the contracts of suretyship and guaranty, and the contract of insurance." Others might be mentioned, but for our present purpose it will be sufficient to refer shortly to these, leaving a more thorough study of the subjects for a later part of our course.

§ 139. Sales. A contract of sale is an agreement to transfer the title to a chattel in consideration of a price in money; and a sale is the transfer of the property in a chattel for a price in money. To a valid contract of sale, there are four requisites, namely, (1) parties competent to contract, (2) mutual assent, (3) a chattel to be sold, and (4) a price.72 The requirement of competent parties and of mutual assent applies to contracts of sale to the same extent as to contracts in general. The peculiarity of this contract is that it has for its object the transfer of the title of a chattel from one person to another, and that this transfer must be in consideration of money. It is therefore distinguished from a contract of exchange, which is based upon a consideration other than money." V73

As we have seen the seventeenth section of the statute of frauds provides that "no contract for the sale of any goods, wares and merchandises for the price of ten pounds sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same; or give something in earnest to bind the bargain or in part payment; or that some note 73. Smith Elem. L. 236; "Sales," Cyc. ; Tiffany Sales 1 et

70. Clark Contr. (2d ed.) 547; 4 Cyc. 325; 26 Cyc. 1000; "Work and Labor," Cyc.

71. Smith Elem. L. 236.

72. Smith Elem. L. 235; "Sales,"

Сус. —; Tiffany Sales 1, 2.

seq.

or memorandum of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto authorized." This section of the statute of frauds applies only to contracts of sale where the thing to be sold is of the price of ten pounds or more. In this country substantially the same provision has been enacted in the various states, except that the amount mentioned as the minimum ranges from thirty to three hundred dollars, it being usually placed, however, at fifty dollars. There may be an oral as well as a written compliance with this section. A writing is required only when there has been neither a partial delivery and acceptance of the thing sold on the one hand, nor a payment in earnest or part payment of the price, on the other.74

Contracts of sale may be either executed or executory. An executed contract of sale, or an actual sale, is where the title to the chattel has passed. An executory contract of sale is one by which it is agreed that the title shall pass at some future time. Whether the title has passed or not depends upon the intention of the parties. The delivery or non-delivery of the property from seller to buyer is not a conclusive test. It sometimes becomes important to determine the exact time when the title passes. Suppose, for example, the property has been delivered to the buyer, and is destroyed by fire or accident while it is in his possession. If the title has passed, the loss is his; if not, it is that of the seller. Again, the title may pass although the goods are still in the custody of the seller. If they are destroyed after the passage of the title, the loss falls upon the purchaser, although they have never been delivered to him.75

140. Bailments. A bailment may be defined generally as a delivery of the mere possession of personal property for a particular purpose, accompanied by a contract, express or implied, by which the terms and conditions of the delivery are specified; the person who delivers the property being called the "bailor" and the person to whom it is delivered the "bailee." It is distinguished from a sale by the fact that in case of a bailment there is a delivery of the mere possession, and the title remains in the bailor, while in a sale the title passes to the purchaser.76 A bailment is often defined to be a delivery of personal property without the passage of the title; and this is, for practical purposes, a good definition. In all true bailments, however, there is not only a delivery, but also a contractual arrangement which regulates the rights and duties of the parties. Thus, if A delivers his watch to B, a jeweler, to be repaired, there is a contract, usually expressed, by which B agrees 74. See supra, § 129; Smith Elem. 76. Smith Elem. L. 238; 5 Cyc. L. 236, 237; 20 Cyc. 238 et seq. 161 et seq.; Hale Bailm. & Carriers 75. Smith Elem. L. 237, 238; 1 et seq. "Sales," Cyc. ; Tiffany

Sales 82 et seq.

to repair the watch, and keep it safely, and return it to A when called for; while A, on his part, agrees to pay for the service a certain sum. This is an example of a typical bailment. It is sometimes said that an accompanying contract is not always necessary; and the case is cited of one who has goods placed in his carriage without his knowledge, and drives away with them. Here is a delivery, but certainly no agreement to assume any bailment responsibility; yet the law will treat the one who thus has the custody of goods thrust upon him as under a certain liability for their safe-keeping. This liability is by virtue of a quasi-contract, and it would seem more proper to refer to the delivery in such a case as a quasi-bailment, because the true contractual element which has long been regarded as the essential to a bailment proper does not exist.77

Classification of Bailments.— The leading forms of bailment at the common law were: (1) Depositum, or a deposit or delivery of goods with or to another for safe-keeping without any recompense; (2) commodatum, or a gratuitous loan; (3) mandatum, or bailment for the purpose of some gratuitous service upon the chattel; (4) pignus, pledge, or pawn, or the delivery of a chattel to be held as security for some debt or engagement, accompanied by a power of sale in case of default; (5) locatio; including (a) a loan for hire, and (b) a delivery for the purpose of having some service performed upon the chattel by the bailee, for which he is to be compensated. A more modern classification of bailments is according to the compensation or benefit, by which they are divided into: (1) Bailments for the exclusive benefit of the bailor, as in the case of depositum and mandatum; (2) those for the exclusive benefit of the bailee as in the case of commodatum; and (3) those for the benefit of both parties, as in the case of pignus, pledge, or pawn, and locatio. The common-law classification was merely an enumeration of some of the leading forms of bailment. It was based upon no particular principle of classification. It was adopted from the Roman law. It was later seen that a more practical division of bailments was to be found, based upon the principle of the benefit which the parties derive from the transaction. Such a classification is useful because it measures the liability of the bailee for injuries to the goods.78 Thus:

Liability of Bailee.—It is a general principle of the law of bailments that the liability of the bailee for injuries to the goods which he holds is dependent upon the benefit which the respective parties derive from the bailment; that is: (1) Where the bailment is for

77. Smith Elem. L. 238. And see 5 Cyc. 165 et seq.

78. Smith Elem. L. 239, 240; 5

Cyc. 162-165; Hale Bailm. & Carriers 35-37.

the exclusive benefit of the bailor, the bailee is liable only for the results of gross negligence. (2) Where it is for the benefit of both parties, he is liable for ordinary negligence. (3) Where it is for the bailee's exclusive benefit, he is liable even for slight negligence. It is difficult to define these three different degrees of negligence. What is gross negligence depends very largely upon the surrounding circumstances. The same act might under different circumstances constitute any of the three different degrees. Ordinary negligence is the absence of that degree of care which an ordinarily prudent man would exercise under the circumstances. Slight negligence is less in degree than this, while gross negligence is greater." Exceptional Bailees - Innkeepers and Common Carriers.There are certain extraordinary bailments to which these general rules of liability do not apply. The most important of these are those incident to the vocations of the innkeeper and the common carrier.

79

An innkeeper is a person who undertakes to provide lodging and necessaries for all travelers who may require such entertainment, and who are able and willing to pay therefor. A guest is a traveler who receives accommodations at an inn. Our modern hotels are inns. An innkeeper should be distinguished from a mere boarding-house keeper. The difference between the two is stated in a leading case to be as follows: "In a boarding house the guest is under an express contract, at a certain rate, for a certain period of time. But in an inn there is no express engagement; the guest, being on his way, is entertained from day to day, according to his business, upon an implied contract." The keeper of a boarding house may accept or refuse one who applies for entertainment; but the innkeeper, holding himself out as ready to accommodate the public generally, must receive all who ask for entertainment, provided they conduct themselves properly, and are able and willing to pay for their accommodations. The relation of innkeeper and guest exists between the proprietor of the inn and transients who receive the accommodations of the house. An inn may, and usually does, have boarders who have entered into an express contract for accommodations for a greater or less time; but it is only for the benefit of the transient customers the "guests," properly so called that the extraordinary bailment liabilities of the innkeeper are imposed.so

A common carrier is a person who undertakes to transport from one place to another the goods of all persons who may choose to employ him for that purpose. In order to constitute himself a

79. Smith Elem. L. 240; 5 Cyc. 181 et seq.; Hale Bailm. & Carriers 23, 61, 92, 155, 201, 235.

80. Smith Elem. L. 241; 22 Cyc. 1070 et seq.; Hale Bailm. & Carriers 254 et seq.