Estes, Chilton J.

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Washington University Law Review Volume 11 Issue 4 1926 Contract: A Promise or an Agreement? Chilton J. Estes Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Contracts Commons Recommended Citation Chilton J. Estes, Contract: A Promise or an Agreement?, 11 ST. LOUIS L. REV. 293 (1926). Available at: https://openscholarship.wustl.edu/law_lawreview/vol11/iss4/4 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. ST. LOUIS LAW REVIEWPublished quarterly during the University year by the Undergraduates ofWashington University School of Law.Subscription Price $1.50 per Annum. Fifty Cents per Copy.If a subscriber desires his subscription to the Review discontinued,notice to that effect should be sent, otherwise we will continue it.EXECUTIVE STAFFDIKRAN C. SEROPYAN, Editor-in-ChiefMEYER KRANZBERG, Business ManagerTYRRELL WILLIAMS, Faculty EditorLUCILLE STOCKE, Associate EditorARTHUR E. JOHNSON, SecretaryEDITORIALROBERT B. TERRYJAMES T. BRITTHAROLD C. ACKERTMAURICE L. STEWARTWARREN TURNERASSISTANTSC. SIDNEY NEUHOFFWENDELL J. PHILLIPSF. WARNER FISCHERFORREST M. HEMKERCHARLES L. WAUGHMARY BEARDSLEY, Circulation ManagerJEWEL WALTER, Business AssistantP. TAYLOR BRYANWALTER D. COLESEDWARD C. ELIOTBOARD OF TRUSTEESFRANKLIN FERRISs CHRICHARD L. GOODE TIJOHN F. LEE JAJOHN F. SHEPLEY:ARLES NAGELEEODORE RASSIEURMES A. SEDDONNOTESCONTRACT: A PROMISE OR AN AGREEMENT? *While every contract contains one or more promises, a promisecannot be called the essence of a contract. A promise is merely thefirst step in the formation of a legal contract; it is the offer. Some-*Awarded The St. Louis Law Review Prize for the best note written by amember of the first year class.Washington University Open ScholarshipST. LOUIS LAW REVIEWthing further is necessary before it is binding; it may lapse by passageof time; it may be revoked by the offeror; or may be rejected by thepromisee. An offer alone creates no obligation; it must be accepted.This offer and acceptance constitute the meeting of minds oragreement so essential to a contract. In Stuckert v. Cann (Del. 1921),111 Ati. 596, the court said: "Agreement is essential to a contractand means a meeting of the minds in the same intention." Reynolds,J., in Michael v. Kennedy (Mo. App. 1912), 148 S. W. 983, went sofar as to say that he saw no difference whatever between an agreementand a contract; but the general rule is that a contract is an agreementmade with the intention to form legal obligations. Probably the mostcomprehensive definition of agreement (formulated in Black's LawDictionary) is that it is "a concord of understanding and intention be-tween two parties with respect to their relative rights and duties."Courts are nearly unanimous as to the importance of agreementin a contract. In Jenness v. Mt. Hope Iron Co. (1864), 53 Me. 20,the court held: "There must be a proposition by one party, acceptedwithout modification by the other." There must be assent to the samething in the same sense. Holloway v. Wheeler (Tex. 1924), 261 S.W. 467; Garrison v. McGimpsey (N. C. 1924), 122 S. E. 754; andState v. Board of State Prison, 37 Mont. 278.Until there has been agreement, by acceptance of an offer fromone party by the other, and the parties are in accord as to all materialelements of the transaction, there can be no contract. Though theparties have drawn up some instrument if it is indefinite or incompletethere is no obligation. Shepard v. Carpenter (1893), 54 Minn.153. But if there is a complete meeting of minds, nothing further needbe done; and even if the parties intend to make a written contract anddo not, the agreement is enforceable. Billings v. Wilby (1918), 175N. C. 571. "The act of acceptance closes the contract and ordinarilynothing further is required." Roch v. Fisher (Okla. 1925), 241Pac. 496.In most cases the meeting of minds must be actual and real. InJones v. Janes (La. 1924), 101 So. 116, the court said that the freemutual assent of parties is necessary to make a contract; anythingwhich destroys the reality of the assent or the meeting of minds towhich it leads, destroys also the contract. Mistakes of subject matter('Peerless' case), mistakes of person dealt with (Jones v. C. B. & Q.R. R. Co., 102 Nebr. 853), any material difference between offer andacceptance (Beaumont v. Prieto, 249 U. S. 554), fraud, duress, andsevere pain from injuries (Girard v. St. L. Car Wheel Co. (Mo. 1894),https://openscholarship.wustl.edu/law_lawreview/vol11/iss4/4NOTES27 S. W. 648), have been held to prevent any true aggregatio mentium.In the last named case the court held: "The element of assent is a nec-essary part of every contract; without it a mere writing imposes noobligation."This is the theoretical rule, that there can be no contract withoutintent to assent. But in practice courts cannot deal with actual intentin all cases. Assent must be inferred from words or acts and if a partyhas secret intentions, unevidenced by his words he cannot plead hiswant of intent in avoidance of the contract. Embry v. Hargadine-McKittrick (1907), 127 Mo. App. 383. If words were such that areasonable person would consider them an offer, the offeror may avoidon the grounds that he was merely jesting. Deitrich v. Sinnot (Iowa1921), 179 N. W. 424.Overt acts as well as words may constitute an acceptance and anagreement giving rise to an implied contract. Yawger v. Joseph (Ind.1915), 108 N. E. 774. In First Nat'l Bank v. Shaw (Tex. 1924),260S. W., the court said that the difference between an express and animplied contract is a matter of proof: whether the meeting of mindsshall be shown by words or acts. Thus where a party had an offer ofan automobile, his keeping it for a year and advertising it for sale washeld to be an acceptance. Ostman v. Lee (Conn. 1917), 101 At. 23.Even acquiescence, Teith full knowledge, has been held to imply assent.Stresenreuter Bros. v. Bowes (1924), 233 Ill. App. 143.The doctrine of implied contract cannot, however, be carried toofar. In the case of Western Refining Co. v. Underwood (Ind. 1925),149 N. E. 85, the appellee sued in quantum meruit for services to theCompany in aiding her brother who was employed as manager of theappellant's oil station. It was decided that "a true implied contract isan agreement of the parties arrived at from their acts; to recoverthere must be evidence that the defendant requested the services orassented to receiving the benefit. A somewhat similar case is theCredit Alliance Corp. v. Sheridan Theatre Inc. (N. Y. 1925), 149 N.E. 837. The president of the defendant corporation borrowed moneywithout authority and deposited it to the defendant's account. Theaction was for money had and received and the court said: "One can-not be made a debtor without his consent any more than he can be madea creditor without his consent."The first step toward the formation of a contract is a promise;the result of a contract is an obligation; but the essence or criterion ofa contractual relationship is the aggregatio mentium which is psycho-Washington University Open ScholarshipST. LOUIS LAW REVIEWlogical harmony, inferred from the reasonable interpretation of thewords, acts, or acquiescence of the parties.CHILTON J. ESTES, '28.THE TEXAS BOND CASEProbably no other recent decision of the United States SupremeCourt has been the source of such widespread discussion among thepublic generally, as has the Texas Bond Case.1 Of late, numerousnoonhour discussions in financial and legal circles have been devotedto this decision. Much if not all of the adverse criticism seems to bedue to a lick of understanding of the powers of administrative tri-bunals, of the requirements of due process under the FourteenthAmendment, and to a lack of knowledge of the pertinent facts in thecase as set forth in Mr. justice Butler's opinion.The suit was filed in the United States District Court, northerndistrict, of Texas, to enjoin the sale of a bond issue of $300,000.00for the purpose of paving and improving of roads, and to enjoin thelevy of taxes on the property of the complainants. The issue presentedwas the constitutionality of the Texas statute under the FourteenthAmendment. The act was upheld in the district court2 and the com-plainant took an appeal directly to the Supreme Court, under section238 of the judicial Code.The preliminary acts and the levy of taxes on the complainants'land, were had under the Complete Texas Statutes of 1920, articles627 and 628, which provide, "Any county . . . . or any politicalsubaivision or defined district, now or hereafter to be described anddefined, of a county," is authorized to issue bonds, not to exceed one-fourth of the assessed valuation of the real property in the district,for the construction of roads. (Article 627.) "Upon the petition of 50resident property taxpaying voters of any defined district of any coun-ty. it is the duty of the commissioners' court to order an election in thedistrict, as described in the petition to determine whether its bondsshall be issued for such road purposes, and whether a tax shall belevied upon the property of the district for their payment. (Arti-cle 628.)Sections 631, 634, and 637, further provide. "If two-thirds of the1. Browning et al. vs. Hooper et al., U. S. 46 Sup. Ct. 141.2. 3 Fed. (2nd) 160.https://openscholarship.wustl.edu/law_lawreview/vol11/iss4/4

Contract: A Promise or an Agreement?

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Contract: A Promise or an Agreement?

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