Inconsistent words rejected. Words to be taken most strongly against whom. 1653. Words in a contract which are wholly inconsistent with its nature, or with the main intention. of the parties, are to be rejected. NOTE. "Words inconsistent with its nature."-Mills vs. Wright, 1 Freem., p. 247; Simpson vs. Vaughan, 2 Atk., p. 32; Vernon vs. Alsop, T. Raym., p. 68; Story Cont., Secs. 635, 636, 660; Stockton vs. Turner, 7 J. J. Marsh, p. 192; see Buck vs. Burk, 18 N. Y., p. 337. "Or with the intention of the parties."-Dallman vs. King, 4 Bing. N. C., p. 105; see Rex vs. Erminster, 6 Ad. & El., p. 598. 1654. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private party, in which it is presumed that all uncertainty was caused by the private party. 66 NOTE. "Not removed by the preceding rules." This rule is to be resorted to only when all others fail.— Hargreave vs. Smee, 6 Bing., p. 244; Chit. Cont. (4th ed.), p. 95; see Browning vs. Wright, 2 Bos. & Pul., p. 22; Barton vs. Fitzgerald, 15 East., p. 546. Against the party causing the uncertainty."-Code La., ?? 1952, 1953; see Harper vs. N. Y. City Ins. Co., 22 N. Y., p. 441; Marvin vs. Stone, 2 Cow., p. 781. For the proper limits to the use of the word "ambiguity," see Ashworth vs. Mounsey, 9 Exch., p. 186. "Promisor presumed to be such party."-See Rindge vs. Judson, 24 N. Y., p. 64; Braunstein vs. Accidental Death Ins. Co., 1 Best & Smith, pp. 782, 799; Richards vs. Warring, 39 Barb, p. 42. "Contracts between public officers and private persons."-Stourbridge Canal Co. vs. Wheeley, 2 B. & Ad., p. 792; Priestley vs. Foulds, 2 Man. & Gr., p. 194; Jackson vs. Reeves, 3 Caines, pp. 293, 303; Blakemore vs. Glamorgan Canal Co., 1 Myl. & K., pp. 154, 162; Hull Dock Co. vs. La Marche, 8 B. & C., pp. 42, 52; Leeds & Liv. Canal Co. vs. Hustler, 1 id., p. 424; Parker vs. Gt. Western Railw. Co., 7 M. & G., pp. 253, 288; Barrett vs. Stockton, etc., Railw. Co., 2 id., p. 134; Gildart vs. Gladstone, 11 stipula tions, when implied. 1655. Stipulations which are necessary to make a Reasonable contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. NOTE. "Stipulations implied to make a contract reasonable."-Jones vs. Gibbons, 8 Exch., p. 922; Buck vs. Burk, 18 N. Y., p. 337; see Thomas vs. Fleury, 26 N. Y., p. 26. "Or conformable to usage."-Field vs. Lelean, 6 H. & N., p. 617; Pollock vs. Stables, 12 Q. B., p. 765; Bayliffe vs. Butterworth, 1 Exch., p. 425; Syers vs. Jonas, 2 id., p. 116; Hutton vs. Warren, 1 M. & W., p. 475; Humfrey vs. Dale, 7 E. & B., p. 266; Dale vs. Humfrey, El. B. & El., p. 1004; Brown vs. Byrne, 3 E. & B., p. 703. "Where no contrary intention is manifested."-Mutual Ins. Co. vs. Hone, 2 N. Y., p. 241; Vail vs. Rice, 5 id., p. 155; Hutton vs. Warren, 1 M. & W., p. 475; see Suse vs. Pompe, 8 C. B. (N. S.), p. 538. A stipulation which is clearly in accordance with the intention of the parties must be enforced, though ever so unreasonable.-Stadhard vs. Lee, 3 Best & Sm., p. 364. A stipulation which cannot be misunderstood-e. g., for the payment of a certain sum of money-cannot be modified by proof of a usage to accept a smaller sum in satisfaction.-St. Nicholas Ins. Co. vs. Mercantile Ins. Co., 5 Bosw., p. 246. See note to Secs. 1643, ante, and 1625. incidents 1656. All things that. in law or usage are consid- Necessary ered as incidental to a contract, or as necessary to carry implied. it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. NOTE. "Things necessary implied therefrom."Code Napoleon, 1160; Lampman vs. Milks, 21 N. Y., p. 505; Huttemeier vs. Albro, 18 id., p. 48; Kelsey vs. Durkee, 33 Barb., p. 410. "Some being mentioned, others of the same class excluded."-Co. Litt., p. 210a; Hare vs. Horton, 5 B. & Ad., p. 715; Rex vs. Sedgley, 2 id., p. 65; Line vs. Stephenson, 4 Bing. N. C., p. 678; 5 id., p. 183; Cook vs. Jennings, 7 T. R., p. 381. Time of performance of contract. Time, when of essence. When joint 1657. If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly-as, for example, if it consists in the payment of money only-it must be performed immediately upon the thing to be done being exactly ascer tained. 1658. NOTE. "No time being specified, a reasonable time allowed."-Atwood vs. Emery, 1 C. B. (N. S.), p. 110; Hoggins vs. Gordon, 3 Q. B., p. 466; Sansom vs. Rhodes, 6 Bing. N. C., p. 261; 8 Scott, p. 244; Stavart vs. Eastwood, 11 M. & W., p. 197; see Thomas vs. Dickinson, 12 N. Y., p. 369; Terwilliger vs. Knapp, 2 E. D. Smith, p. 86. No more than a reasonable time is allowed.-See Cross vs. Beard, 26 N. Y., p. 85. "When capable of being performed instantly.”—Van Boskerck vs. Mott, N. Y. Sup. Ct., 1864; Des Arts vs. Leggett, 16 N. Y., p. 588. "Payment of money." Lake Ontario R. R. vs. Mason, 16 N. Y., p. 451; Purdy vs. Philips, 11 N. Y., p. 406; Wright vs. Whiting, 40 Barb., p. 235; Thompson vs. Ketcham, 8 Johns., p. 189; Gibbs vs. Southam, 5 B. & Ad., p. 911. "Immediately upon the thing to be done being exactly ascertained."-Penn. Coal Co. vs. Del. and Hudson Canal Co., 29 Barb., p. 589; affirmed in Court of Appeals. Time is never considered as of the essence of a contract, unless by its terms expressly so provided. NOTE. This provision is new. The law heretofore upon the subject is involved in so much difficulty that it seems best to adopt this more stringent rule. See Story Eq. Jur. (Redfield's ed.), Sec. 776, and notes; also, Secs. 777, and 777a, and notes and cases cited. 1659. Where all the parties who unite in a promand several ise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. NOTE.-In cases of a joint note given upon a joint loan of money, or a joint liability of any kind, it will be presumed it was intended that the note should be several as well as joint; and effect will be given according to that intention.-Yorks vs. Peck, 14 Barb., p. 644. But where one maker (deceased) was a mere surety, such a presumption will not be indulged. The 1660. A promise, made in the singular number, Same. but executed by several persons, is presumed to be joint and several. NOTE.-Van Alstyne vs. Van. Slyck, 10 Barb., p. 383. A promissory note, "I promise to pay," in due form, signed by two persons, held to be a joint and several note. Hemmenway vs. Stone, 7 Mass., p. 58. 1661. An executed contract is one, the object of Executed which is fully performed. All others are executory. NOTE.-An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right.-Fletcher vs. Peck, 6 Cranch, p. 136. and executory contracts, what. TITLE IV. UNLAWFUL CONTRACTS. SECTION 1667.. What is unlawful. 1668. Certain contracts unlawful. 1669. Penalties void. 1670. Contract fixing damages, void. 1671. Exception. 1672. Restraints upon legal proceedings. 1673. Contract in restraint of trade, void. 1667. 1674. Exception in favor of sale of good will. 1675. Exception in favor of partnership arrangements. That is not lawful which is: 1. Contrary to an express provision of law; What is unlawful. Same. Certain contracts unlawful. 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. NOTE.-Subd. 1.-The law makes no distinction in this respect between malum prohibitum and malum in se.-Pennington vs. Townsend, 7 Wend., p. 276; Leavitt vs. Palmer, 3 N. Y., p. 19; De Groot vs. Van Duzer, 20 Wend., p. 390; Pratt vs. Adams, 7 Paige, p. 653; Seneca Co. Bk. vs. Lamb, p. 26 Barb., p. 595. Subd. 2.-Bell vs. . Leggett, 7 N. Y., pp. 176, 181; Gray vs. Hook, 4 N. Y., p. 449. There is no difference in principle between a contract to keep a witness for the Government out of the way and an agreement to suppress and get from the archives or offices of the Government a deposition, a knowledge of which may be important to the Government, and such contracts would be void as against public policy.-Valentine vs. Stewart, 15 Cal., p. 387. Any agreement as to Government contracts which tends to deprive the Government of the advantage of competition in the bidding is void. Swan vs. Chorpenning, 20 Cal., p. 182. A contract by a public officer, which interferes with the unbiased discharge of his duty, is void.-See Spence vs. Harvey, 22 Cal., p. 336. Subd. 3.-Lady Cox's Case, 3 Peere Wms., p. 339; Walker vs. Perkins, 3 Burr., p. 1568; Gray vs. Matthias, 5 Ves., p. 291; see Trovinger vs. McBurney, 5 Cow., p. 253; Wait vs. Day, 4 Den., p. 446. The law does not avoid acts merely dishonorable or discreditable.-Moore vs. Remington, 34 Barb., p. 427. 1668. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law. NOTE.-See Smith vs. N. Y. Central R. R., 24 N. Y., p. 222; Perkins vs. Same, id., p. 213. Where A was employed to superintend building a structure of which he was one of the contractors; held, that it was not competent to plead that it was against public policy that he should occupy two positions, of which the interests were in conflict, as a defense to an action brought by him for services as superintendent.-Shaw vs. Andrews, 9 Cal., p. 73. An agreement between a judgment creditor and one claiming an interest in the thing about |