Essential elements of ment is a contract.-Stuart vs. Lander, 16 Cal., p. 372; 1550. It is essential to the existence of a contract contract, that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. CHAPTER II. PARTIES. Who may contract Minors, etc. Identifica tion of parties necessary. SECTION 1556. Who may contract. 1557. Minors, etc. 1558. Identification of parties necessary. 1559. When contract for benefit of third person may be en forced. 1556. All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. 1557. Minors and persons of unsound mind, have only such capacity as is defined by Part I of Division I of this Code. NOTE.-Agreement between father and children.— Racouillat vs. Sansevain, 32 Cal., p. 376. Between stepmother and stepchildren.-Murdock vs. Murdock, 7 Cal., p. 511. 1558. It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them. NOTE.-Webster vs. Ela, 5 N. H., p. 540. 155 contract for 1559. A contract, made expressly for the benefit When of a third person, may be enforced by him at any time before the parties thereto rescind it. NOTE.-See Burr vs. Beers, 24 N. Y., p. 178; Lawrence vs. Fox, 20 id., p. 268; Scott vs. Pilkington, 15 Abb., p. 280; Steman vs. Harrison, 42 Penn. St., p. 49. The rule stated in these cases was limited to promises in which the purpose was expressed, in Hoffman vs. Schwaebe, 33 Barb., p. 194. In McLaren vs. Hutchinson, 18 Cal., p. 80, it was held that where A owes B and B owes C, and A and B, without consulting C, agree that A shall pay to C the amount which A owes to B, an action could not be maintained by C against A, for want of privity; but this decision was questioned in Lewis vs. Covillaud, 21 Cal., p. 178; see, also, McLaren vs. Hutchinson, 22 Cal., p. 187; see, also, Barringer vs. Warden, 12 Cal., p. 311. bit of benefit third person may be enforced. 1567. Apparent consent, when not free. 1568. When deemed to have been obtained by fraud, etc. 1569. Duress, what. 1570. Menace, what. 1571. Fraud, actual or constructive. 1572. Actual fraud, what. 1573. Constructive fraud. 1574. Actual fraud a question of fact. 1575. Undue influence, what. 1576. Mistake, what. 1577. Mistake of fact. 1578. Mistake of law. 1579. Mistake of foreign laws. 1580. Mutuality of consent. 1581. Communication of consent. 1582. Mode of communicating acceptance of proposal. 1583. When communication deemed complete. 1584. Acceptance by performance of conditions. Essentials of consent. Consent, when voidable. Apparent consent, when not free. SECTION 1586. Revocation of proposal. 1587. Revocation, how made. 1588. Ratification of contract, void for want of consent. 1589. Assumption of obligation by acceptance of benefits. 1565. The consent of the parties to a contract must be : 1. Free; 2. Mutual; and, 3. Communicated by each to the other. NOTE.-Subd. 2.-Getman vs. Getman, 1 Barb. Ch., p. 499; Burnet vs. Bisco, 4 Johns., p. 235. See Young vs. Starkey, 1 Cal., p. 426, and Masten vs. Griffing, 33 Cal., p. 111. Subd. 3.-Communication of consent is indispensable.-Bentley vs. Columbian Ins. Co., 17 N. Y., p. 421; Heubach vs. Mollman, 2 Duer, pp. 256, 257; Fiedler vs. Tucker, 13 How. Pr., p. 9; Mozley vs. Tinkler, 1 Cr. M. & R., p. 692; Keller vs. Ybarru, 3 Cal., p. 147; Masten vs. Griffing, 33 Cal., p. 111. But it need not be verbally expressed.-See Mathewson vs. Fitch, 22 Cal., p. 86. An understanding between the parties is sufficient.-Houghton vs. Adams, 18 Barb., p. 545; Gluckauf vs. Urton, 19 Cal., p. 61. For consent generally, see Parsons on Contracts, Title Assent, pp. 475480, and notes. 1566. A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the Chapter on Rescission. NOTE.-Murray vs. Mann, 2 Exch., p. 538; Gage vs. Parker, 25 Barb., p. 141; Deputy vs. Stapleford, 19 Cal., p. 302. 1567. An apparent consent is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. NOTE.-Menace has usually been classed with duress, and will be found to be treated under that head in the digests. It is, however, clearly a separate branch deemed to have been obtained 1568. Consent is deemed to have been obtained When through one of the causes mentioned in the last section only when it would not have been given had such cause not existed. 1569. NOTE.-Bronson vs. Wiman, 8 N. Y., pp. 188, 189; Flight vs. Booth, 1 Bing. N. C., p. 376; Code La., ? 1819; Faure vs. Martin, 7 N. Y., p. 219. It is not essential that the fraud, etc., should be the sole inducement to consent.-Shaw vs. Stine, 8 Bosw., p. 157; Addington vs. Allen, 11 Wend., p. 381; Clarke vs. Dickson, 6 C. B. (N. S.), p. 453. Duress consists in: by fraud, etc. what. 1. Unlawful confinement of the person of the party, Duress, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such person; or, 3. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harrassing or oppressive. NOTE.-Subd. 1.-" Confinement of the person of the party."-Foshay vs. Ferguson, Hill, p. 154; Bac. Abr., Duress, A. If the confinement is lawful there is no duress.-Bates vs. Butler, 46 Me., p. 387. "Descendant."-Code La., 1847; Code Napoleon, ? 1113; Bac. Abr., Duress, B; see McClintock vs. Cummings, 3 McLean, p. 158; Eadie vs. Slimmons, 26 N. Y., p. 9. "Adopted child." New provision, but in accordance with the Title on Adoption. Subd. 2.-The rule laid down in this subdivision has been denied.-Skeats vs. Beale, 11 Ad & El., p. 983; Atlee vs. Backhouse, 3 M. & W., p. 650. But it was originally so held in Privy Council (Assize, 5 Year Book, fol. 72, pl. 14), and it has been so decided in this country (Collins vs. Westbury, 2 Bay, p. 211; Sasportas vs. Jennings, 1 Bay, p. 470; see, also, Nelson vs. Suddarth, 1 Hen. & Munf., p. 350), with the approval of Bronson, J.-Foshay vs. Ferguson, 5 Hill, p. 158. Menace, what. 1570. It is universally held that money paid under such duress may be recovered back (Harmony vs. Bingham, 12 N. Y., p. 99; Oates vs. Hudson, 6 Exch., p. 346; Atlee vs. Backhouse, 3 M. & W., p. 642); and it is very difficult to see why, under precisely similar circumstances, a note given instead of money should be enforced. Subd. 3.-Strong vs. Grannis, 26 Barb., p. 122; Watkins vs. Baird, 6 Mass., p. 511; Richardson vs. Duncan, 3 N. H., p. 508; Severance vs. Kimball, 8 N. H., p. 386; Richardson vs. Duncan, 3 id., p. 508. Menace consists in a threat: 1. Of such duress as is specified in Subdivisions 1 and 3 of the last section; 2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or, 3. Of injury to the character of any such person. NOTE.-Subd. 1.-Eadie vs. Slimmon, 26 N. Y., p. 9; Whitefield vs. Longfellow, 13 Maine, p. 146; compare Biffin vs. Bignell, 7 H. & N., p. 877. Subd. 2.-Co. Inst., p. 483; See Foshay vs. Ferguson, 5 Hill, p. 158; see contra, Bac. Abr., Duress, A. See note below. Subd. 3.-This species of threat is not usually included in the definition of duress, and was doubtless not so treated under the old common law, when a libeler could be made to rot in jail until he paid damages, while neither the judgment creditor nor any one else was bound to find him food or drink (Dive vs. Maningham, 1 Plowd., p. 68); and when some debtors did actually starve to death. With such a savage remedy for the recovery of pecuniary damages, they might be considered an adequate satisfaction for injuries to property or character, and it was on this ground that such injuries were not regarded as duress.-Bac. Abr., Duress, A. The remedy now existing is less effective, even if money were considered equivalent to character. By statute, it is now a criminal offense to send threatening letters for the purpose of extorting money, and that which is thus treated as a crime ought not to be allowed to sustain a contract. These views are further sustained by Story Cont., Sec. 398; 2 Stark Ev., p. 482; Chitt. Cont., p. 208. And see Eadie vs. Slimmon, 26 N. Y., p. 9, in which some weight is given to the |