« ForrigeFortsett »
the same are correct transcripts therefrom, and of the whole of said original records [or, originals].
[l. S.] Witness my hand and the seal of, &c, [as in foregoing forms.]
Certificate of a Judge to the Signature and Attestation of an
State of California, ) ♦ County of Santa Clara, j
I, William H. McKee, judge of the third judicial district of the state of California, fh and for the county of Santa Clara, do hereby certify that Austin M. Thompson, by whom the annexed transcript [or record, or copy of, as the case may be], certificate and attestation were made and given, and who in his own proper handwriting has thereunto subscribed his name [where he is an officer having a seal, add, and affixed his official seal], was at the time of so doing, and now is, county recorder, in and for the said county of Santa Clara, state of California, duly commissioned and qualified; to all whose acts as such, full faith and credit are and ought to be given, as well in courts of jurisdiction as elsewhere, and that the said transcript [or record, or copy of, as the case may be], certificate and attestation, are in due form and made by the proper officer.
In witness whereof, I have hereunto set my hand, the tenth day of May, one thousand eight hundred and fifty-nine.
William H. Mckee, District Judge.
Certificate of Clerk of Court to the Signature of the Judge.
County of Santa Clara, ss:
I, John B. Hewson, county clerk of the county of Santa Clara, state of California, and ex officio clerk of the district court of the third judicial district, in and for the county of Santa Clara, do hereby certify that the Hon. William McKee, by whom the foregoing attestation was made, and whose genuine signature is subscribed thereto, was at the time of signing the same, and still is, judge of the district court of the third judicial district, in and for the county of Santa Clara, duly commissioned and sworn, to whose acte as such full faith and credit are due.
In witness whereof, I have hereunto set my hand and the seal of said third district court, this tenth day of May, A. D. 1859.
[l. s.] John B. Ilewson, Clerk.
CONTRACTS AND AGREEMENTS.
L OF CONTRACTS OR AGREEMENTS GENERALLY.
A Contract is an agreement between two or more persons, upon a sufficient consideration, to do or not to do a particular thing. To constitute a valid contract, or agreement, there must be—
1. The mutual assent of two or more persons competent to contract; an intelligent meeting of the minds of the parties.
2. A good and valid consideration, i. e., motive or inducing cause to make the promise upon which the party is to be held or charged.
3. A subject matter of the contract, i. e., a thing to be done, or omitted. And the thing agreed to be done must be one not forbidden by law; or, if the agreement be to omit or forbear from doing a certain thing, it must be a thing not enjoined or made a duty by law.
Contracts are divided into agreements by specialty, made by a written instrument under seal, and agreements without specialty, made either by a written instrument without a seal, or verbally without any writing. In practical effect, the only difference between a written contract without a seal and a mere verbal agreement is, that the former is more easily proved. In certain cases agreements by specialty are of higher consideration in the law than agreements without specialty; and it is therefore advisable for laymen, who are not supposed to know in what cases a seal may be dispensed with, and for what purposes it may be desirable, to add a seal whenever they draw their own contracts or act without legal advice.
In this state, a seal made of a foreign substance, and affixed to the document, is not necessary, and a stamp or impression upon the paper is a g^d seal. A mere scrawl with a pen made upon the paper in th^ form of a seal, with the initials of the party written within the outline of the seal, has been held to be sufficient by the Supsgme Court.
The essence of an agreement is the intelligent assent or union of the minds of the p&rties, and in its construction the actual intent of the parties is'to be regarded. But, if the terms of the contract are clear, it will be binding even though contrary to the intention of the parties. For parol proof cannot be resorted to to modify the language of a written contract where it admits of a sensible construction. Only where there is a doubt or ambiguity in the terms of the written instrument, can parol proof or extrinsic circumstances be invoked to aid in its construction.
If, however, a written instrument fails to express the real contract designed to be made by the parties, in consequence of a mistake in the words or language used, courts having equity jurisdiction will generally reform the contract by making it conformable to the intention of the parties.
Incapacity to contract arises, among other causes, from infancy, from marriage (on the part of the woman), and from insanity.
Infante are incapable of binding themselves by contract, except for necessaries. The contract entered into by an infant may be repudiated at his option, either before his majority or within a reasonable time after it. He may also ratify and confirm it. This, however, must be done by a new promise, made after he has attained his majority. If the promise be a conditional one, the party seeking to enforce it must show the fulfilment of the condition. The contract of an infant may also be confirmed without an express new promise; and where he has neither disavowed nor affirmed it by words, a ratification is sometimes inferred from his acts. The question as to precisely what act or omissions amount to a confirmation, is one which would require too much space, and is in its nature too nice to be capable of proper discussion in a work of this kind.
The exception to the rule permitting an infant to repudiate contracts made by him, is the case where the promise or agreement is for necessaries.
In regard to the age of majority in this state, see the statutory provision below cited, under head of Miscellaneous ProVisions.
In regard to the power of married women to contract, see title, Husband And Wdtk
Fraud vitiates and annuls all contracts which are tainted by it, and the party guilty of the fraud cannot enforce the contract; nor can he, on the other hand, himself avoid it for his own benefit, if it is sought to be enforced by the other party. Even one who executes a fraudulent bill of sale to a third person, with intent to defraud his creditors, cannot set the bill aside, though the creditors may do so.
LL STATUTORY PROV1S1ONS.
1. Every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.
2. Every instrument required to be subscribed by any person, under the last section, may be subscribed by the agent of such party, lawfully authorized.1
3. In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof expressing the consideration be in writing, and subscribed by the party charged therewith: 1. Every agreement that by the terms is not to be performed within one year from the making thereof. 2. Every special promise to answer for the debt, default or miscarriage of another. 3. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry.
4. Every contract for the sale of any goods, chattels or things in action, for the price of two hundred dollars or over, shall be void, unless: 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged
> Wood's Dig. arts 396,897. 1n article 898 1t is declared, that the provisions contained in the chapter of which those above cited form a part, "shall not be construed to abridge the powers of courts to compel the specific performance of agreements in cases of imrt performance of such agreements.
therewith; or, 2. Unless the buyer shall accept or receive part of such goods, or the evidences, or some of them, of such things in action; or, 3. Unless the buyer shall at the time pay some part of the purchase money.
5. Whenever goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter in a sale-book a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.
6. Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith.
7. Every instrument required by any of the foregoing provisions to be subscribed by any party, may be subscribed by the lawful agent of such party.
8. The term "lands," as used in the foregoing statutory provisions, is to be construed as coextensive in meaning with lands, tenements and hereditaments, and the terms " estate and interest in lands," are to be construed to embrace every estate and interest, present and future, vested and contingent, in lands, as above denned.
OF CERTA1N CONTRACTS, 1N WH1CH OFF1CERS ARE PROH1B1TED FROM BE1NG 1NTERESTED.1
1. It shall not be lawful for any officer of state or member of legislature, alderman, or member of the common council of any city in this state, or for the trustees of any city, town or village, or for the supervisor of any county, to become a contractor under any contract or order for supplies authorized by or for the state, or any department thereof, or the legislature, or either branch