A contract to pay a person the worth of his serv ices as long as he will do certain work, or so much per week as long as he shall work, or to give a cer tain price per bushel for every bushel of so much corn as corresponds to a sample, would be a sever able contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be im plied by law, such a contract will generally be held to be severable. So when the price to be paid is clearly and distinctly apportioned td different parts of what is to be performed, although the latter is in its nature single and entire. But the mere fact of sale by weight or measure—i. e. so much per pound or bushel—does not make a contract sever able.
Simple contracta are those not of specialty or record.
They are the lowest class of express contracts, and answer most nearly to our general definition of contract.
To constitute a sufficient parol agreement to be binding in law, there must be that reciprocal and mutual assent which is necessary to all contracts. They are by parol (which includes both oral and written). The only distinction between oral and written contracts is in their mode of proof. And it is inaccurate to distinguish verbal from written; tor contracts are equally verbal whether the words are written or spoken,—the meaning of verbal being —expressed in words. See 3 Burr. 1670; 7 Term 350, mote; Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; Union Turnpike Co. v. Jenkins, 1 Caines (N. Y.) 385.
Specialties are those which are under seal; as, deeds and bonds.
Specialties are sometimes said to include also con tracts of record ; 1 Pars. 'Contr. 7; in which case there would two classes at common law, viz., specialties and simple contracts. The term special ty is always used substantively.
They are the second kind of express contracts under the ordinary common-law division. They are not merely written, but signed, sealed, and delivered by the party bound. The solemnities connected with these acts, and the formalities of witnessing, gave in early times an Importance and character to this class of contracts which implied so much cau tion and deliberation (consideration) that it was un necessary to prove the consideration even in a court of equity ; Plowd. 305; 7 Term 477; 4 B. & Ad. 652; 3 Bingh. 111; 1 Fonb. Eq. 342, note. Though little of the real solemnity now remains, and a scroll is substituted in most of the states for the seal, the distinction with regard to specialties has still been preserved intact except when abolished by statute.
In Ortman v. Dixon, 13 Cal. 33, it is said that the distinction is now unmeaning and not sustained by reason. See CONSIDERATION; SEAL.
When a contract by specialty is changed by a parol agreement, the whole contract becomes parol ; Vicary v. Moore, 2 Watts (Pa.) 451, 27 Am. Dec. 323; Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 Am. Dec. 475; Delacroix v. Bulkley, 13 Wend. (N. Y.) 71.
Unilateral contracta are those in which the party to whom the engagement is made makes no express agreement on his part.
They are so called even in Alms where the law attaches certain obligations to his acceptance. Lou isiana Code, art. 1758. A loan for use and a loan of money are of this kind. Poth. Obl. pt. 1, c. 1, e. .1, art. 2.
Written contracts are those evidenced by writing.
Pothier's treatise on Obligations, taken in con nection with the Civil Code of Louisiana, gives an idea of the divisions of the civil law. Poth. Obl. pt. 1, c. 1, s. 1, art. 2, makes the five following class es: reciprocal and unilateral; consensual and real; those of mutual interest, of beneficence and mixed; principal and accessory; those which are subjected by the civil law to certain rules and forms, and those which are regulated by mere natural justice. It is true that almost all the rights of personal property do in great measure depend upon contracts of one kind or other, or at least might be reduced under some of them ; which is the method taken by the civil law ; it has referred the greatest part of the duties and rights of which it treats to the head of obligations ex contractu or quasi ex contractu. Inst. 3. 14. 2; 2 Bla. Com. 443.
Quaai-contracta. The usual classification of contracts is objected to by Prof. Keener in his law of Quasi-Contracts. A true con tract exists, he says, because the contract ing party has willed, in circumstances to which the law attaches the sanction of an obligation, that he shall be bound. His con tract may be implied in fact, or express. Which of the two it is, is purely a question of the kind of evidence used to establish the contract. In either case the source of the obligation is the intention of the party. "Contract implied in law" is, however, a term used to cover a class of obligations, where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstanding the ab sence of intention on his part, and, in many cases, in spite of his actual dissent. Such contracts, according to the work cited, may be termed quasi-contracts, and are not true contracts. They are founded generally : 1. Upon a record.