then, must be capable of giving an intelligent consent. But a want of capacity may arise either from actual destitution of reason, or from such constraint as prevents its free action; and hence, insane persons, drunkards, infants, married women, and persons under duress, are placed under a total or partial disability. Alien enemies are likewise disabled, on the ground of public policy. I shall speak of these six classes in their order.

Insane persons, (a) whether idiots or lunatics, as we have seen, are incapable of contracting during the disability. On this ground, guardians are appointed to manage their concerns. But

validity. But the assent must be evinced by some speech or act; a mere mental determination to accept is not sufficient. Nor does an act not in itself an accept ance, become such in consequence of such a determination. White v. Corliss, 46 N. Y. 467. If the acceptance by the one party varies from the proposition made by the other, no contract subsists between them. Bruce v. Pearson, 3 Johns. 534; Hazard v. Marine Ins. Co. 1 Sumner, 218; Hutchinson v. Bowker, 5 M. & W. 535; Peltier v. Collins, 3 Wendell, 459; Suydam v. Clark, 2 Sandf. 133. Esmay v. Groton, 18 III. 483. Jenners v. Mt. Hope Co. 53 Maine, 20; Myers v. Smith, 48 Barb. 614; Cornwell v. Kreugel, 41 Ill. 394; Northwestern Iron Co. v. Mead, 21 Wis. 474; Van Valkenburg v. Rogers, 18 Mich. 180. An offer not yet accepted by the party to whom it is made, may be withdrawn by the party making it, as in the case of a bid at auction, which is not binding until the hammer falls. Page v. Cave, 3 T. R. 148. Sometimes the party making an offer promises to give the other a certain period of time within which he may accept it, or, in common parlance, gives him the refusal of it. Such an offer, unless a consideration for its being kept open has been agreed upon, may be withdrawn at any time previous to its acceptance, during the period it was promised to be kept standing. Boston & Maine R. R. v. Bartlett, 3 Cush. 224; Erskridge v. Glover, 5 Stew. & Port. 264; Chevey v. Cook, 7 Wis. 412. An acceptance may be implied. Sanford v. Howard, 29 Ala. 684. See Cooke v. Oxley, 3 T. R. 653. Contracts are now constantly being made by correspondence through the mails. It has become well settled that if A. receives a letter through the mail from B., containing an offer, and with due despatch deposits a letter in the mails, accepting it before receiving any notice of revocation, a bargain is concluded, notwithstanding B. had, before the acceptance, deposited another letter revoking the offer, which had not reached A. at the time of the acceptance. But no contract would subsist, if A. had received the second letter before he had deposited his own letter of acceptance in the mails. Adams v. Lindsell, 1 B. & Ald. 681; Potter v. Saunders, 6 Hare, 1; Gibbins v. The Northeastern, &c., 11 Beavan, 1; Dunlop v. Higgins, 1 House of Lords Cases, 381; Duncan v. Topham, 8 M. G. & S. 225; Eliason v. Henshaw, 4 Wheaton, 328; Tayloe. Merchants' Fire Ins. Co. 9 How. 390; Mactier v. Frith, 6 Wendell, 103; Brisban v. Boyd, 4 Paine, 17; Averill v. Hedge, 12 Conn. 436; Levy v. Cohen, 4 Geo. 1; Chiles v. Nelson, 7 Dana, 281; Halls v. Gaither, 9 Porter, 605; Hamilton v. Lycoming Mutual Ins. Co. 5 Barr, 339; Palo Alto, Daveis, 344, 357; Vassar v. Camp, 14 Barb. 341; Martin v. Black, 12 Ála. 721; Moore v. Pierson, 6 Clarke (Iowa), 279; Hallock v. Insurance Co. 2 Dutcher, 268; Hong v. Brown, 19 N. Y. 111; Abbott v. Shepard, 48 N. H. 14; Stockham v. Stockham, 32 Md. 196; Brown v. N. Y. &c. R. R. Co., 44 N. Y. 79. In British and Am. Telegraph Co. v. Colson, L. R. 6 Ex. 108, the Court of Exchequer expressed an opinion that this rule of the completion of a contract by letter on the mailing of the acceptance was subject to the condition that if the letter of acceptance does not arrive in due course of post, the parties may act on the assumption that the offer has not been accepted. This was doubted by the Lords Justices in Harris' Case, L. R. 7 Ch. 587, In re Imperial Land Co. of Marseilles, who both expressed the opinion that the contract was actually and finally made when the letter was posted. But the question did not actually come up in that case. Id.; Townsend's case, 13 Eq. 148. I have not found this distinction noticed in any American case, though the language and reasoning used would seem to exclude it. The same principles apply to contracts by telegraph. Trevor v. Wood, 36 N. Y. 307. Where an agreement not within the statute of frauds is complete, and there is no understanding that it is not to be binding on the parties until reduced to writing, it will bind them at once, although there was an understanding that it should subsequently be reduced to writing, and executed. Blaney v. Hoke, 14 Ohio State, 292. (a) Ante, § 112.

sanity is always presumed until insanity has once been established; after which, the continuance of insanity is presumed until the contrary has been proved. (a) And the decision of an inquest, under our statute, is not conclusive when a contract is in question. The fact still remains open to contest. (b) The old doctrine, that a man cannot be permitted to stultify himself, that is, to set up the defence of insanity, is now exploded. As to idiots, the test is incapacity of understanding and acting in the ordinary affairs of life. Mere mental imbecility, not reaching this point, will not invalidate a contract fairly made. (c)

Drunkards, though formerly held liable, both in law and equity, to perform their contracts, unless the intoxication were procured by the other party, are now regarded with more favor. Courts have lately inclined to consider a contract, made by a person so drunk as not to have the use of his reason, as void, though the intoxication was voluntary, and there was no actual fraud on the other side. (d)

Infants, (e) as we have seen, are only partially disqualified from contracting. They are held bound by contracts made for necessaries, suited to their age and condition; and their other contracts are voidable only, and not absolutely void. They may be ratified by assent after becoming of age. But infancy is a personal privilege of the infant, and the other party cannot take advantage of it. (f) If beneficial to the infant, the contract will be enforced against the adult; and this is perhaps the only case in which the obligation is not mutual. Prudence, therefore, dictates that dealings where infants are concerned, should be conducted with their guardians. As to real property, this is indispensable; for infants cannot convey at all; and guardians, as we have seen, can only convey with leave of court. (g)

(a) White v. Wilson, 13 Ves. 88; Jackson v. Vandusen, Johns. 144; Hix v. Whittemore, 4 Met. 545. But the contracts of an insane person are only voidable, and may be ratified after the insanity has ceased. Allis v. Billings, 6 Met. 415; Arnold v. Richmond Iron Works, 1 Gray (Mass.), 434. Chew v. Bank of Baltimore, 14 Md. 299. His deed, made while insane, may be avoided by his guardian or himself, without first restoring the consideration to the grantee. Gibson v. Soper, 6 id. 279.

(b) Sergeson v. Sealey, 2 Atk. 412; Faulder v. Silk, 3 Camp. 126. ard v. Leonard, 14 Pick. 280.

But see Leon

(c) 2 Kent, Com. 452. Dennett v. Dennett, 44 N. H. 531; Bond v. Bond, 7 Allen, 1.

(d) Barrett v. Buxton, 2 Aiken (Vt.), 167; Gore v. Gibson, 13 M. & W. 623; 1 Parsons on Contracts, 310, 311; 2 Kent, Com. 451, 452; French v. French, 8 Ohio, 214. Menkins v. Lightner, 18 Ill. 282. Where the intoxication is only partial, and not induced by the other party, it does not avoid the contract. Caulkins v. Fry, 35 Conn. 170; Henry v. Ritenour, 31 Ind. 136. But where the contract might be rescinded, it will be affirmed by the subsequent receipt of benefits under it. Willoughby v. Moulton, 47 N. H. 205.

(e) Ante, § 111.

(ƒ) Thus an infant is not liable to an action for breach of promise of marriage, but may bring an action against an adult. Hunt v. Peake, 5 Cowen, 475; Willard v. Stone, 7 id. 22.

(g) But an infant is liable for his torts, and even it has been held for a fraudulent representation that he was of age, whereby he obtained goods. Fitts v. Hall, 9 N. H. 411; Wallace v. Morss, 5 Hill, 391. For a full classification of the cases on the rights

Married women, (a) as a general rule, are utterly disqualified for making any contract whatsoever. Their contracts as we have seen, are held to be absolutely void, to all intents and purposes. Even when living separately from their husbands, they cannot bind themselves for necessaries; and for this reason their husbands are made liable. The only exception is, where the statute allows married women to join with their husbands in conveyances of land. (b)

Persons under duress, whether from actual violence, or the threat thereof, are not bound by contracts made during such duress. (c) There have been many nice distinctions as to what constitutes duress; but they result in this general principle, that if the contract be made from a reasonable apprehension of violence or constraint, it will not be binding, because the mind does not act freely. (d)

Aliens, while their country is at war with ours, are prohibited, as we have seen, from contracting with our citizens, on grounds of public policy, unless by special license from government. The theory is, that when two nations are at war, all the individuals are at war with each other. The fact we know to be different; but the rule still continues. (e)

and liabilities of infants, see 1 Am. Leading Cases, 230-67. Also, 1 Parsons on Contracts, 242-82; 2 Kent, Com. 233-45.

(a) Ante, pp. 257, 266, note.

(b) Ante, pp. 408, 416; 1 Parsons on Contracts, 283-307. Unlike the infant, the married woman's promise to pay for money expended during coverture after the disability is removed, is not binding. Watkins v. Halstead, 2 Sandf. 311; Goulding v. Davidson, 28 Barb. 438. Story, Prom. Notes, § 185; Meyer v. Haworth, 8 Ad. & El. 467. But contra, Lee v. Muggeridge, 5 Taunt. 147. Perhaps she would be bound by the ratification where the original promise was made on faith of her separate estate. Vance v. Wells, 8 Ala. 399; Kennerly v. Martin, 8 Mo. 698. The wife, as agent of the husband, may have an implied authority to order goods necessary for family use, and otherwise manage household affairs. Renaux v. Teakle, 20 Eng. Law & Eq. 345; Shelton v. Pendleton, 18 Conn. 417. Infants may be agents. Story on Agency, § 7. Slaves may be agents. Chastain v. Bowman, 1 Hill (So. Car.), 270; Gore v. Buzzard, 4 Leigh, 231. But slaves cannot enter into contracts for themselves under the legislation of the Slave States, and a marriage between them produces no civil effect. Girod v. Lewis, 6 Mart. 559; State v. Samuel, 2 Dev. & Batt. 177. Seamen receive the peculiar protection of courts of admiralty, so that stipulations in the shipping articles in derogation of their general rights and privileges are void. Brown ». Lull, 2 Sumner, 444.

(c) Doolittle v. McCullough, 7 Ohio State, 299; Mays v. Cincinnati, 1 id. 278; Knox Co. Bank v. Doty, 9 id. 509. Baker v. Cincinnati, 11 Ohio State, 534.

Atlee v.

(d) Duress, such as will avoid a contract, may arise in the case of an arrest for improper purposes without just cause, or an arrest for just cause but without lawful authority, or an arrest for a just cause and under lawful authority for an improper purpose. Richardson v. Duncan, 3 N. H. 508; Watkins v. Baird, 6 Mass. 506; Severance v. Kimball, 8 N. H. 386. In England, duress of goods does not avoid a contract, although money paid under such duress may be recovered back. Backhouse, 3 Meeson & Welsby, 642; Skeate v. Beale, 1 Ad. & El. 983; Oates v. Hudson, 5 Eng, Law & Eq. 469. But in this country duress of goods as well as of person avoids a contract. Collins v. Westbury, 2 Bay, 211; Foshay v. Ferguson, 5 Hill, 154. Where a son forged the father's name, and the bankers, though without threatening a prosecution, insisted on the father's assuming the indebtedness, which he agreed to do, and gave them an agreement to make a mortgage, it was held that a father under such circumstances was not a free agent, and the agreement was set aside. Williams. Bayley, L. R. 1 H. L. 200.

(e) But an alien enemy resident in this country, and not ordered away by the proper authority, may sue and be sued as in times of peace. Clark v. Morey, 10

§ 177. Subject-matter. The general rule is, that parties may contract about whatsoever they choose; but there are several exceptions founded on reasons of public policy. The law will not uphold a contract, when the subject-matter is prejudicial to the general welfare. On this ground four classes of contracts are held to be invalid; namely, contracts which are immoral, impolitic, fraudulent, and illegal. I shall consider these in their order.

Immoral Contracts. Where the undertaking on either side is to do or permit something decidedly immoral, as prostitution, making indecent books or pictures, and the like, the law will not aid either party in enforcing performance. The immorality, however, must be of a marked character; for the law does not observe a fastidious delicacy. On nice points parties are left to their own moral sense. This is merely an application of the principle of non-interference, and does not militate against the doctrine before advanced, that questions of abstract morality are beyond the scope of human laws. The law simply refuses its aid in the enforcement of immoral contracts. But the question of morality is not always open to discussion. In general, only those contracts are held void for immorality which the precedents have settled to be immoral. (a)

Contracts against Public Policy. Where the subject-matter of a contract is in opposition to public policy, this is a sufficient reason for refusing to enforce it. On this ground, a contract in restraint of trade or marriage, or tending to stifle or prevent a criminal prosecution, or to induce an officer to swerve from his duty, will not be enforced. These examples sufficiently illustrate the idea. But you are not to suppose that the question, what is public policy, is always open for discussion whenever a contract is sought to be enforced. This would be to convert the court into an arena for party politics. It is only in those cases which the consent of ages has settled to be against public policy, that the defence is now admitted. What is public policy, has thus become a question of precedent, not depending upon the varying opinions of different judges. (b)

Johns. 69; Russell v. Skipwith, 6 Binney, 241. During war, a person cannot appoint an agent in an enemy's country, though if appointed before he may still act. So if a creditor direct a debtor if he cannot remit to purchase cotton and hold it, this is illegal, for it is the creation of an agency, and the creditor gets no title. United States v. Grossmeyer, 9 Wall. 72.

(a) Chitty on Contracts, 577-9.

(b) See 2 Parsons on Contracts, 253-9, where the numerous recent cases in which contracts have been held to be in restraint of trade are collected. Alger v. Thacher, 19 Pick. 51, is a leading American authority. Lange v. Werk, 2 Ohio State, 519; Thomas v. Miles, 3 id. 274. Grasselli v. Lowden, 11 Ohio State, 349. An agreement to procure a person a contract to furnish supplies to the government is void as against public policy. Tool Co. v. Norris, 2 Wallace, 45; Frost v. Inhabitants of Belmont, 6 Allen, 152; Harris r. Roof, 10 Barb. 489; Sedgwick v. Stanton, 4 Kernan, 289; Powers v. Skinner, 34 Vt. 274. But the employment of an agent regularly to put in a bid and make a contract, is not. Winpenny v. French, 18 Ohio State, 469. A contract to advocate a claim before a legislature in session, or its committees, is legal, but not a contract to advocate a claim with individual members of such legislature. Sedgwick v. Stanton, supra; Bryan v. Reynolds, 5 Wis. 200. An agreement

Fraudulent Contracts. (a) It is a general rule, both in law and equity, that fraud vitiates every contract into which it enters. Fraud signifies any kind of artifice, surprise, trick, dissembling, misrepresentation, concealment, or deceit, by which the parties or third persons are cheated or deceived. The varieties of fraud

are so great that it is difficult to lay down any specific rules concerning it, without occupying too much space. I shall briefly consider the subject in two points of view: first, with reference to the parties; and secondly, with reference to third persons, particularly as provided against in the statute of frauds.

Fraud between the Parties. The law requires that when parties are about to enter into a contract, neither shall misrepresent or conceal any material fact upon which it is predicated. It is as clearly fraudulent to suppress truth, as to assert falsehood, because deception is equally the result. But here a distinction is to be noted. Intentional misrepresentation is always fraudulent. But there may be intentional concealment which is not fraudulent. The point is to determine what kind of knowledge a contracting party may lawfully keep to himself. And the best rule I can lay down is this: If you have any peculiar or extraordinary information, which the other party, exercising ordinary knowledge and diligence, cannot be presumed to have, you are bound to disclose it; and the concealment of it will be a fraud. Thus, while the law requires a full and fair disclosure of all the facts necessary to enable each party to make up his mind, the rule has a reasonable construction. The law will not relieve against the common inequalities of knowledge, judgment, skill, and experience. It does not discountenance speculation and enterprise, by requiring bargains to be perfectly equal. It allows one party to obtain the advantage,

for a consideration to withdraw opposition to a divorce is void as against public policy. Stontenburg v. Lybrand, 13 Ohio State, 228. So is an agreement by a public officer to share fees. Martin v. Wade, 37 Cal. 168. So are all agreements entered into to aid a rebellion. Hanauer v. Doane, 12 Wall. 324. As to contracts in restraint of trade, see Crawford Wick, 18 Ohio State, 190.

(a) See Roberts on Frauds; Roberts on Fraudulent Conveyance; Hovenden on Frauds; Broom's Legal Maxims, 571-3, 605-38; 1 Story, Eq. Juris. ch. vi.; 2 Kent, Com. 482-92; 2 Parsons on Contracts, 264-84; Tracy v. Sackett, 1 Ohio State, 54. Where a grantor was so drunk as not to have the exercise of his judgment, his deed will be held null, though the grantee had no agency in making him drunk. French v. French, 8 Ohio, 214. Where one has dealt with parties to a conveyance treating it as valid, he cannot afterwards impeach it as fraud. Rennick v. Bank, 8 Ohio, 529. The merely making a good bargain, by purchase at a small price, or otherwise, will not be ground for setting aside a contract, unless there has been actual imposition. Steele . Worthington, 2 Ohio, 182; Knobb v. Lindsay, 5 id. 468; Hough v. Hunt, 2 id. 495; Douglas v. Houston, 6 id. 156; Hunter v. Goudy, 1 id. 449. Where a widow stands by and allows the auctioneer to sell the land as free from dower, and so increase the bid, she cannot afterwards claim dower. Smiley v. Wright, 2 Ohio, 506. It is not fraud in an attorney who holds a recorded mortgage, to prepare a subsequent one for his client without mentioning his own. Paine v. French, 4 Ohio, 320. A fraudulent grantee may convey a good title to an honest purchaser for a fair price, though the latter knew of the fraud. Piatt v. St. Clair, 7 Ohio, pt. 2, 165. It is fraud in a mortgagee to stand by and see an ignorant purchaser making valuable improvements, without disclosing his lien. Carter v. Longworth, 4 Ohio, 384. As to false statements of quantity in the sale of real estate, see Ketchum v. Stout, 20 Ohio, 453; ante, p. 434.