The third objection of Mr. Stephen to the defini tion of Blackstone does not, seem one to which it is fairly open. There is an idea of mutuality in con and traho,. to draw together, and it would seem that mutuality is implied in agreement as well. An aggregatio mentium Seems impossible without mutu ality. Blackstone in his analysis appears to have regarded agreement as implying mutuality ; for he defines it (2 )31a.. Com. 442) "a mutual bargain or convention." In the above 'definition, however, all ambiguity is avoided by the use of 'the words "be tween two or more parties" following agreement. In its widest sense, "contract" includes records and specialties (but see infra); but this use as a general term for all sorts of obligations, though of too great authority to be now doubted, seems to be an undue extension of the proper meaning of the term, which is much more nearly equivalent to "agreement" which is never applied to specialties. Mutuality is of the very essence of both,—not only mutuality of assent, but of act. As expressed by Lord Coke, Actus contra actum; 2 Co. 15 ; 7 M. & G. 998, argument and note.
This is illustrated in contracts of sale, bailment, hire, as well as partnership and marriage; and no other engagements but those with this kind of mu tuality would seem properly to come under the head of contracts. In a bond there is none of this mutuality,—no act to be done by the obligee to make the instrument binding. In a judgment there is no mutuality either of act or of assent. It is ' judicium redditum in invitum. It may properly be denied to be a contract, though Blackstone insists that one is implied. Per Mansfield, 3 Burr. 1545 ; Wyman v. Mitchell, 1 Cow. (N. Y.) 316; per Story. J., Bullard v. Bell, 1 Max. 288, Fed. Cas. No. 2,121. Chitty uses "obligation" as an alternative word of description when speaking of bonds and judgments. Chit. Con. 2, 4. An act of legislature may be a con tract; so may a legislative grant with exemption from taxes ; Matheny v. Golden, 5 Ohio St. 361. So a charter is a contract between a state and a cor poration within the meaning of the constitution of the United States, art. 1, § 10, clause 1; Dart mouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. Contract is used in the United States constitution in its ordinary sense as signifying the agreement of two or more minds, from considera tions proceeding from one to the other, to do, or not to do, certain acts. Mutual assent to its terms is of its very essence; it does not extend to a judg ment against a• city for damages suffered from a mob (given by statute) ; Louisiana v. New Orleans,
109. U. S. 288, 3 Sup. Ct. 211, 27 L. Ed. 936.
At common law, contracts have been di vided ordinarily into contracts of record, contracts by specialty, and simple or parol contracts. The latter may be either written (not sealed) or verbal ; and. they may also be express or implied. Implied contracts may be either implied in law or implied in fact. "The only difference between an ex press contract and one implied in fact is in! the mode of substantiating it. An express agreement is proved by express words, writ ten or spoken . . . ; an implied agree ment is proved by circumstantial evidence showing that the parties intended to con tract ;" Leake, Contr. 11; 1 B. & Ad. 415 ; 1 Atist. Jur. 356, 377.
Accessory contracts are those made for as suring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. Louisi ana Code, art. 1764 ; Poth. Obl..pt. 1, c. 1, s. 1, art. 2, n. 14.
Bilateral contracts are those in which a promise is given in consideration of a prom ise. Parsons, Contr. 464.
Contracts of beneficence are those by which only one of the contracting parties is benefited: as, deposit, and man date. Louisiana Code, art. '1767.
Certain contracts are those in which the thing to be done is supposed to depend on the will of the party, or when, in the usual course of events, it must happen in the man ner stipulated.
Commutative contracts are those in which what is done, given, or promised by one par ty is considered as an equivalent to or in consideration of what is done, given, or promised by the other. Louisiana Code, art. 1761.
Consensual contracts were contracts of agency, partnership, sale, and hiring in the Roman law, in which a contract arose from the mere consensus of the parties without other formalities. Maine, Anc. Law 243.
Entire contracts are those the considera tion of which is entire on both sides.
Executed contracts are those in which nothing remains to be done by either party, and where the transaction has been com pleted, or was completed at the time the contract or agreement was made : as, where an article is sold and delivered and payment therefor is made on the spot.
Executory contracts are those in which some act remains to be done: as, when an agreement is made to build a house in six months; to do an act before some future day ; to lend money upon a certain interest payable at a future time. Fletcher v. Peck, 6 Cra. (U. S.) 87, 136, 3 L. Ed. 162.