CONTEMPT. 1. The power to punish for contempt is inherent in the nature and constitution of a court. A justice of the peace, sitting as a court, has such power. In re Cooper, 32 Vt. 253. 2. It is a contempt of court to assail its decisions, in presence of the court, with sneers, sarcasm or irony. Ib. knowing the consequences of his agreement. Foot v. Tewksbury, 2 Vt. 97. Although such intoxication be voluntary, such contract may be avoided. Barrett v. Buxton, 2 Aik. 167. 16 Vt. 335. 24 Vt. 425. 3. Implied by law. There are numerous cases, where from the circumstances the law implies a legal obligation and a promise, though there was no express promise, and no intent 3. Where a court or magistrate, having the between the parties to enter into a contract. power to punish for contempt, has jurisdiction Paddock v. Kittredge, 31 Vt. 378, 384. Ives v. of the subject matter and the parties, the exer-Hulet, 12 Vt. 314, 327. cise of such power is not revisable in any other court. Ib. Vilas v. Burton, 27 Vt. 56. CONTRACTS. (Simple.) I. NATURE, REQUISITES AND VALIDITY. II. 2. Consideration. 4. Delivery. The delivery of a written contract is no part of the contract, and is not proved by it. The delivery is an act done in reference to it and indispensable to give it efficacy, intervening between the execution of the contract and the time when it becomes operative; and the proof of the delivery rests essentially in parol, and is a question of mutual intent and purpose, both parties intending thereby to make the contract operative and binding. King v. Woodbridge, 34 Vt. 565. Holmes v. Crossett, 33 Vt. 116. 5. Where a written agreement not to sue 3. Illegality; Against public policy; Re- was set up in defense of an action; - Held, straint of trade; Duress. that the defense could be met by parol evidence INTERPRETATION. Rules; Instances; that the writing was handed to the defendant Particular terms; Usage; Law of to procure other signatures, and was not to beplace; Conditions precedent; De- come operative unless signed by all the defendpendent and independent stipula-ant's creditors, and that it was not so signed; tions; Penalty, or liquidated dam- that it was not delivered as an existing conages; Whether joint or several. tract. Holmes v. Crossett; and see Harrington III. MODIFICATION.-RESCISSION.-POWER TO V. Wright, 48 Vt. 427. STOP PERFORMANCE. IV. CERTAIN PARTICULAR Contracts. 1. For service. 2. Of indemnity. 3. Agistment. 4. Contracts in the alternative. V. ACTION ON SIMPLE CONTRACT. 1. Parties. 2. Action and defense as dependent on formance. 3. Action, general or special. VI. DAMAGES.-RECOUPMENT. I. NATURE, REQUISITES AND VALIDITY. 6. implies acceptance. A paper passed as a receipt and contract, but accepted as a receipt only, does not take effect as a contract. A legal delivery implies an acceptance. King v. Woodbridge, 34 Vt. 565. 7. Date. A written contract takes effect from its delivery, or time of actual execution. Its validity is not effected by its having no date, or a false date. In declaring upon it, if dated, it need not be described by its date, if sufficiently described otherwise; and where averred to have been executed on a certain day, it is no variance that it bears date of a different day; but if the date be averred, this becomes descriptive and must be proved as laid. Broughton v. Fuller, 9 Vt. 373. Clark v. Kidder, 12 Vt. 689. 1. Capacity of party; Contract implied by law; Woodford v. Dorwin, 3 Vt. 82. Delivery; Assent. 8. Signed at different times. A written contract was signed by part of the defendants 1. Competency. One may bind himself at its date, and by the others some months afterby his contract, though his intellectual capacity wards, but had been adopted and acted under is below that of the average of mankind, pro- by the other party, with the knowledge of all vided he has sufficient understanding to know the defendants, from its date. Held, that the the nature and consequences of his act at the defendants last signing should be considered as time. Day v. Seely, 17 Vt. 542. Mann v. Betterly, 21 Vt. 326. 2. Intoxication, to avoid a contract, must be of that degree which prevents the party from having adopted the contract as of its date, and it is evidence that the contract was, in point of fact, made by all the defendants at that time. Stearns v. Haven, 16 Vt. 87. 9. Adoption without signing. The ac-longer for less than $2 per week. The defendcepting and adopting of a written contract, by ant went to remove his ward, but the ward a party to it who has not signed it, binds him was unwilling to go, and the defendant left equally as if he had signed it. Patchin v. him, the plaintiff repeating his notice. The deSwift, 21 Vt. 292. Troy Academy v. Nelson, fendant made no express promise to pay more 24 Vt. 189, 194. Smith v. Kellogg, 46 Vt. 560. than $1.50; but,-Held, that the defendant Phelps v. Stewart, 12 Vt. 256. Brandon Mfg. should be treated as having acquiecsed in the Co. v. Morse, 48 Vt. 322. plaintiff's claim for the additional price and that he was liable therefor, but was not liable for extra charges beyond that sum. Hutchinson v. Hutchinson, 19 Vt. 437. 10. In an action on a contract to pay interest on certain stocks of the plaintiff, &c., the declaration averred, as the consideration of the defendants' promise, a promise by the plaintiff 16. The defendant was under contract to that the defendants should have all the profits support the town's poor for several years, at a on such stocks. The contract was in writing, price agreed, and engaged the plaintiff to board signed by the defendants only, and set forth one of such paupers for $1.25 per week. At their promise to pay such interest, "by having the end of the year, the defendant sent word to all the profits," &c. Held, that the writing did the plaintiff that if he could not keep the pauper not necessarily import that the plaintiff retained another year at $1.00 per week, he [defendant] the right of withholding those profits, and that would come and take her away. The plaintiff the consideration, as alleged, viz: the plaintiff's returned word that he could not keep her for promise, might be inferred from circumstances $1.00 a week, and to come and take her away. and the conduct of the parties under the con- The defendant did not go and take away the tract. Phelps v. Stewart. pauper, but suffered her to remain during the whole year, and at the end of that year substantially the same thing took place between the parties, and the pauper remained another year. Held, that a request was implied that the plaintiff should keep the pauper until the de12. Agreement to put in writing. Where fendant should come for her, and his failure to parties entered into a parol agreement, but it come and take her away might be regarded as was also agreed that their contract should be an assent to the plaintiff's proposal to keep her reduced to writing;-Held, that either party at the proposed price of $1.25 per week, and could refuse to enter upon the performance of that the plaintiff might recover that sum. Worthe contract until so reduced to writing. Cong-cester v. Ballard, 38 Vt. 60-criticising Aldrich don v. Darcy, 46 Vt. 478. Paige v. Fullerton v. Londonderry, 5 Vt. 441. Woolen Co., 27 Vt. 487. 11. Marginal entries. Entries made upon the margin of an instrument before signing are regarded as a part of it. Patch v. Phonix Ins. Co., 44 Vt. 481. Fletcher v. Blodgett, 16 Vt. 26. 17. The plaintiff, who had been keeping her 13. Assent requisite. The plaintiff brought child as a pauper of the defendant town under to the defendant a quantity of salts, to be ap- a contract as to compensation, notified the deplied as payment on a contract not yet due. fendant's overseer of the poor, at the close of After the salts had been weighed and left at that contract, that if the child should grow the defendant's ashery, the contract was brought worse she must have an extra compensation. forward, when the plaintiff finding it read for The overseer allowed the child to remain in her gross weight refused to have the salts applied care. Held, that the overseer's assent to this upon it, but the defendant so applied them and proposition should be presumed. At the end of refused to account for them in any other way. the next year the overseer offered the plaintiff Held, that the defendant could not be made a certain price per week for keeping the child, debtor for the salts against his will, and was which the plaintiff refused. The overseer then not liable in an action for goods sold and deliv- attempted to remove the child to other quarters, ered. Durrill v. Lawrence, 10 Vt. 517. 28 when the plaintiff resisted him. The overseer Vt. 657. then told the plaintiff that if she refused to allow the child to be removed, he should pay only that price for future keeping. The plaintiff kept the child. Held, that this was an assent to the offer of the overseer. Buck v. Worcester, 46 Vt. 2. 14. Where one for whom work is being done ---as the building of a barn-sees the work going no from day to day before his eyes without objection, and finally accepts the thing by silent acquiescence, he must be bound by it. Austin v. Wheeler, 16 Vt. 95. 27 Vt. 232. 18. The defendant consigned to the plain15. The defendant, guardian of a non com- tiffs, commission merchants in Boston, certain pos, agreed with the plaintiff to keep the ward cheese to be sold "to the best advantage." The at $1.50 per week, but without agreement as to plaintiffs sold and delivered the cheese on what time. At the end of some 14 months, the was called "a sale for cash" on the 12th of Sepplaintiff gave the defendant notice to take the tember, and on the 20th of September sent the ward away, and that he would not keep him defendant an account of sales, stating the balance due, and that he could draw for it at sufficient consideration to sustain a contract ;sight. The defendant drew a part of that bal- otherwise, as to a promise to do what the party In point of fact, the purchaser did not is only morally bound to do. Cobb v. Cowdery, pay the plaintiffs for the cheese, but put them 40 Vt. 25. ance. off from time to time, and finally became bank- 25. Value received. The words "for value rupt. In an action of book account ;-Held, | received" in a written contract furnish sufficient that the plaintiff had assumed that debt as cash evidence, prima facie, at least, of a considerain hand, and could not recover what he had tion. Brooks v. Page, 1 D. Chip. 345. Lappaid on account of it. Jackson v. Bissonette, hum v. Barrett, 1 Vt. 247. 19 Vt. 206. 24 Vt. 611. 2. Consideration. 26. Other sufficient considerations. A promise in writing to pay the amount of an execution to the attorney of the creditor, in consideration of an assignment of the execution to the 19. Moral obligation. Dictum- a moral promissor, was held valid, where the debtor was obligation is a sufficient consideration for an ex- at once discharged from custody on the exccupress promise. Barlow v. Smith, 4 Vt. 144. tion, at the request of the promissor, although Glass v. Beach, 5 Vt. 172. the assignment was not in fact made until pay20. But such obligation must be strict and ment was afterwards demanded. Page v. undoubted. Indeed, it seems that a promise Thrall, 2 Vt. 448. to do that which the law did not render com- 27. The defendant requested the plaintiff to pulsory will not give a right of action, except purchase a note which the defendant had given, where there was an original consideration bene- and after the purchase promised to pay the conficial to the party promising, and which might tents to the plaintiff. In an action on the note; have been enforced through the medium of an implied promise, had it not been for some statute provision, or some positive rule of law, which exempted the party from legal liability in the particular instance. Hawley v. Farrar, 1 Vt. 420. -Held, that the defendant could not set up want of consideration. Bliss v. Rollins, 6 Vt. 529. 28. The plaintiff and another contracted with the defendant and others to build a meeting house, for a certain price, and afterwards abandoned the work, when the defendant alone 21. The defendant, for his own purposes and contracted with the plaintiff alone, that the without leave of the plaintiff, brought a suit plaintiff should resume the work and finish the in the plaintiff's name which proceeded to judg- house at the same price, and promised to pay ment for costs against the plaintiff, and execu- what it cost more. Held, that this new obligation issued. Thereupon the defendant express- tion and duty was a good consideration for the ly promised the plaintiff, in consideration of defendant's promise. Morrison v. Heath, 11 the premises, to save the plaintiff harmless Vt. 610. from all liability on said execution. Held, that 29. The release of a doubtful right is a sufsuch promise was upon sufficient consideration ficient consideration to support a promise. to sustain an action of assumpsit thereon. Blake v. Peck, 11 Vt. 483. Blodget v. Skinner, 15 Vt. 716. 30. The giving up and making over of a 22. Past consideration. It is not true, mail contract, though it has gone no further as a general proposition, that a moral obligation than the acceptance by the Post Office Departis not sufficient to give a legally binding force to ment of a bid, is a sufficient consideration for an express promise, except in cases where there any contract. Carlton v. Jackson, 21 Vt. 481. had once existed a legal obligation. If the con- 31. Mutual and concurrent promises afford sideration, even without request, moves directly a sufficient legal consideration for the support from the plaintiff to the defendant and enures of each other. Missisquoi Bank v. Sabin, 48 directly to the defendant's benefit, the promise Vt. 239. is binding, though made on a past consideration 32. The orator transferred to his son certain -the subsequent promise being equivalent to a property, in consideration that the son had previous request. Boothe v. Fitzpatrick, 36 bound himself to support the orator and his wife during their lives. The son died soon Vt. 681. 23. The plaintiff took up and kept an estray after. Held, that the sale was upon an executed animal, but did not proceed under the statute consideration, and that chancery would not enin such way as to hold the animal or make the join the administrator of the son from prosecut-· owner legally chargeable with the keeping. The ing an action at law to recover the property. owner afterwards took away the animal and Deveraux v. Cooper, 15 Vt. 88. then promised to pay for the past keeping. 33. An agreement to forbear, or not to sue, Held, that the promise was on good considera- may be a sufficient consideration to sustain an tion and legally binding. Ib. agreement to pay, &c., although no certain 24. Legal obligation. A promise by a time of forbearance be stated or agreed upon. party to do what he is bound in law to do, is not a Hakes v. Hotchkiss, 23 Vt. 231. 34. The declaration in assumpsit averred | want of consideration. Flagg v. Walker, Brayt. that a certain suit was pending against this 24. plaintiff in favor of one C, in which this de- 42. H, at the special request of F, purchased fendant was bail for the prosecution, and that for him a quantity of tin in boxes, and delivthis defendant, before the return day, promised ered it to him in the same condition, unopened, this plaintiff that if he would make no expense and without knowledge of any defect. Afteror preparation for the trial, and would not at- wards, on opening the boxes, F discovered that tend the court, he (the defendant) would pro- the tin was materially damaged; on notice cure C to discharge his action and not further whereof, H promised F to make him an equiprosecute it—and assigned a breach. Held, on table allowance upon his note given for the tin. motion in arrest, that the declaration set up a Held, that such promise was void for want of sufficient consideration for the promise. Ham- consideration, there being neither fraud nor mond v. Cook, 25 Vt. 295. warranty. Hawley v. Farrar, 1 Vt. 420. 35. The abandonment of a suit, or the dis- 43. A stipulation between creditor and charge of a trustee, is a sufficient consideration debtor, founded upon no new consideration, to support a promise, although there may not that the former will receive payment, in serhave been good ground for recovery. Cross v. vices, of a debt then due him in money, is bindRichardson, 30 Vt. 641. ing no longer than the parties continue to act under it, and the creditor may at any time put an end to it, and sue for payment. Bates v. Starr, 2 Vt. 536. 36. A mutual agreement to extend the time of performance of a special contract, requires no new extraneous consideration to support it. It is promise for promise, and such new or further 44. Parties to a controversy having submitagreement may be declared upon and a recovery ted the same in writing to arbitrators, the dehad for such damages as the breach of it has occa- fendants, not interested, promised in writing sioned, though in excess of what would have that "in consideration of the within submisarisen under the original contract. Smith, 34 Vt. 535. Hill v. n," they would pay to one of the parties the sum to be awarded him. Held, that there was 37. A mere indebtedness to three jointly, is no sufficient consideration to sustain the promnot a sufficient consideration to support a prom- ise. Barlow v. Smith, 4 Vt. 139. ise, express or implied, to one separately to pay 45. The plaintiff, being surety for A, behim his portion of the debt. Vadakin v. Soper, came uneasy and unwilling to remain longer in 1 Aik. 287. that position, whereupon A, in order "to keep 38. But if the other two creditors, or the the plaintiff easy and contented without the firm, had given a written order on the debtor immediate payment of the debt, and to rento pay to one of them his share of the joint der the plaintiff secure," &c., procured T to debt, and this had been accepted and agreed to sign with him a written agreement to indemniby the debtor, such mutual agreement of the fy the plaintiff. The plaintiff was afterwards parties would have sustained the action in favor obliged to pay the debt. In an action against of such one of the creditors. See Allis v. Jewell, A and T upon the agreement ;-Held, that it 36 Vt. 551. was void for want of consideration. Rix v. Adams, 9 Vt. 233. See 23 Vt. 231. 39. A general settlement, made on the faith of the withdrawal and abandonment of 46. Where a declaration in assumpsit counts a disputed item, is a sufficient consideration upon a promise made upon a past consideration, to render such adjustment binding, and sat- it is necessary both to allege and prove that this isfies the claim. Morgan v. Adams, 37 Vt. was at the request of the defendant, or that the 233. defendant derived benefit from the considera40. Where a contract is payable in specific tion. A promise to indemnify the plaintiff for articles or property, the time or mode of pay- having become surety for a third person, not ment may be varied by a new agreement made at the request of the defendant, and without a before the original contract has become pay-new consideration, is void for want of considable; and if relied upon, the original contract eration. Harding v. Cragie, 8 Vt. 501. Rix v. is not converted into a money demand by non- Adams. payment at the time therein set, though there 47. A, being administrator of B and guar was no consideration for such new agreement. dian of C, presented claims in their favor reBut in case of a debt already due and payable spectively to commissioners on the estate of D, in money, an agreement to extend the time of and had them allowed. A died, and the plainpayment requires a new consideration. Thrall tiff, his administrator, claimed payment of v. Mead, 40 Vt. 540. these debts from the defendant, the executor of 41. Insufficient consideration. A prom- D, and the defendant gave the plaintiff his note ise to a sheriff who had suffered an execution therefor. Held, that the plaintiff acquired no to run out in his hands, in consideration that he interest in these debts as administrator of A, would not take out an alias execution, is void for and that the note was without consideration, Sowles v. Sowles, 10 Vt. 181. S. C., 11 Vt. contract may be supported by the residue of 146. 48. The simple promise of the debtor of A to pay that debt to B, is nudum pactum as to B, so long as the debtor remains liable to A. Phalan v. Stiles, 11 Vt. 82. the consideration, if good per se; but if any 49. The promise of one already legally liable to pay a debt, that he will pay it if delay be A contract in contravention of the progiven him, creates no new duty or legal lia-visions of a statute is void, although the statute bility. A promise to pay, or a part payment of only inflicts a penalty—because the penalty ima debt already due, is not a sufficient considera-plies a prohibition. Elkins v. Parkhurst, 17 tion to support an agreement to delay, but such Vt. 105. agreement is nudum pactum. Wheeler v: WashThe law of Congress having prescribed burn, 24 Vt. 293. Mason v. Peters, 4 Vt. 101. the fee of agents and attorneys for services in Russell v. Buck, 11 Vt. 166. Ib. 66. Pomeroy procuring a pension, and punishment for taking v. Slade, 16 Vt. 220. Cole v. Shurtleff, 41 Vt. more;--Held, that no larger sum could be re311. covered, either upon an express contract, or up 56. 50. A, holding two promissory notes against on a quantum meruit. Morgan v. Davis, 47 Vt. B, and both due, promised B that if he would 610. pay one, the time for payment of the other 57. If the suppression of evidence in a crimshould be extended one year. B thereupon inal prosecution constitutes any part of the conborrowed the money and paid the first note. sideration of a contract, the contract is wholly Held, that such promise was without consid- void. Badger v. Williams, 1 D. Chip. 137. eration, and was no bar to an action upon the 58. A promissory note given in whole or in other note, commenced within the year. Pome-part for the compounding of penalties, or the roy v. Slade, supra. 24 Vt. 296. 41 Vt. 31. suppressing of a criminal prosecution, is void, 51. The plaintiff, the defendant, and B, the consideration being illegal. Hinesburgh v. agreed that the defendant should employ B to Sumner, 9 Vt. 23. Woodruff v. Hinman, 11 build a mill, and that the defendant should pay | Vt. 592. Bowen v. Buck, 28 Vt. 308. B's earnings to the plaintiff to apply on B's 59. A receipt in full of all demands, given then indebtedness to the plaintiff. The defendant's contract with B was, that unless the mill should be so constructed as to be of a certain power and do good business, he should have 60. The defendant induced the plaintiff to nothing. B so built the mill that it was good come from New Hampshire into this State, after for nothing, but was a damage to the defendant. having procured a warrant for his arrest and Held, that the defendant was not liable to the surrender to the authorities of New Hampshire plaintiff upon the agreement to pay him B's to answer to the charge of forgery there comwages, although the plaintiff was ignorant of mitted, and, on being threatened with service this special stipulation with B, since the defend- of the warrant, the plaintiff let the defendant ant received no value for his promise, and the plaintiff parted with nothing. Hurlbut v. Chittenden, 26 Vt. 52. 52. Slight consideration. If the thing be understandingly done, mere inadequacy of price will never excuse the performance of a contract. Harrington v. Wells, 12 Vt. 505. upon consideration of stifling a criminal prosecution, is void, and leaves the claim in force. Bailey v. Buck, 11 Vt. 252. have a horse by way of compromise, the defendant agreeing not to prosecute the matter further. Held, that whether the plaintiff was innocent or guilty of the charge, the contract was illegal; but that the parties were in pari delicto, and the law would not aid the plaintiff in recovering back what he had paid. Dixon v. Olmstead, 9 Vt. 310. 28 Vt. 313, 315. 53. P agreed with R, that if R would remain for the purpose of closing certain con- 61. Outlawed property. Courts of justice tracts for the sale of land, he would pay R one will not sustain actions in regard to contracts, dollar an hour for every hour he should delay or property, which have for their object the R after a certain hour. R was thus delayed violation of law. Such property is, so to speak, ten hours beyond the hour named, and charged outlawed, and is common plunder. If, instead P therefor, on book, $10. Held, that this was a of putting his property to honest uses, the owner valid contract, and that the price agreed was recoverable of P in an action of book account. Paige v. Ripley, 12 Vt. 289. converts it into an engine to injure the life, liberty, health, morals, peace or property of others, he thereby forfeits all right to the protection of the bona fide interest he had in such property before it was put to that use. And he can, I apprehend, sustain no action against any one who withholds or destroys the property, with sideration of a contract be merely void, the the bona fide intention of preventing injury to 3. Illegality. 54. Violation of law. If part of the con |