Where all the terms of a contract were agreed upon and it was dictated to a ste nographer to be written out and signed by the parties, the contract was held to be 'complete, though it was not reduced to writing before breach; Hollerbach & May Contract Co. v. Wilkins, 130 Ky. 51, 112 S. W. 1126. Though the parties to a contract agreed 'to reduce it to writing, failure to do so does not invali date it, but merely affects the mode of proof ; Jenkins & Reynolds Co. v. Alpena Portland Cement Co., 147 Fed. 641, 77 C. C. A. 625.
Where a contract was reduced to writing and assented to by the parties, but not yet signed, it was held not binding; Fourchy v. Ellis, 140 Fed. 149.
Since the judicature acts in England, a tenant holding under an agreement for a lease of which specific performance would be decreed, stands in precisely the same posi tion as if the lease had been executed ; 21 Ch. D. 9.
Qualities of contracts. Every agreement should be so complete as to give either party his, action upon it; both parties must assent to all its terms ; 3 Term 653 ; 1 B. & Ald. 681; McCulloch v. Ins. Co., 1 Pick. (Mass.) 278. To the rule that the contract must be obligatory on both parties, there are some exceptions : as the case of an infant, who may sue, though he cannot be sued, on his contract; Add. Contr. 380; Stra. 937. See other instances, 6 East 307; 3 Taunt. 169 ; 5 id. 788; 3 B. & C. 232. There must be a good and valid consideration (q. v.), which must he proved though the contract be in writing ; 7 Term 350, note (a) ; 2 Bla. Com. 444; Fonb. Eq. 335, n. (a). There is an ex ception to this rule in the case of bills and notes, which are of themselves prima facie evidence of consideration. And in other con tracts (written), when consideration is ac knowledged, it is prima facie evidence there of, but open to contradiction by parol testi mony. There must be a thing to be done which is not forbidden by law, or one to be admitted which is not enjoined by law. Fraudulent, immoral, or forbidden contracts are void. A contract is also void if against public policy or the statutes, even though the statute be not prohibitory but merely af fixes a penalty ; Poll. Contr. 259 et seq.; Mitchell v. Smith, 4 Dall. (U. S.) 269, 1 L.
Ed. 828; Mabin v. Coulon, 4 Dail. (U. S.) 298, 1 L. Ed. 841; Stanley v. Nelson, 28 Ala. 514; Siter v. Sheets, 7 Ind. 132; Solomon v. Dreschler, 4 Minn. 278 (Gil. 197) ; Coburn v. Odell, 30 N. H. 540 ; Bell v. Quin, 2 Sandf. (N. Y.) 146. Rut see Branch Bank at Mont gomery v. Crocheron, 5 Ala. 250. As to con tracts Which cannot be enforced from non compliance with the statute of frauds, see FRAUDS, STATUTE OF.
Suits by third parties. It was for a long time not fully settled whether a contract be tween A and B that one of them should do something for the benefit of C did or did not give C a right of action on the contract. See 1 B. & P. 98; 3 id. 149; but it is now dis tinctly established in England that C cannot sue ; 1 B. & S. 393 ; Poll. Contr. 200; in America the authorities are conflicting.
On specialties most courts do not permit a suit in a third person's name, yet some do ; Poll. Contr. 204, citing Millard v. Baldwin, 3 Gray (Mass.) 484.. Professor Harriman (Contracts, ch. VII), after citing the authori ties for the common-law rule that the one not a party to it can enforce a contract, enumerates and discusses the exceptions. The only exception recognized in Massachu setts (the right to recover money in the hands of the defendant which is of right the property of the plaintiff), is considered no real exception, as the liability is not con tractual ; the right of a son to sue on a promise made to a father is not now recog nized in England or in Massachusetts as it formerly was, and it has no foundation in principle. The broad exception existing in most of the states permitting a person for whose benefit a promise is made to sue upon it, he considers not founded on any principle, but a clear case of judicial legislation which, like most arbitrary rules, has led to confu sion. He reaches the conclusion that the right of a stranger to sue in certain cases is recognized in New York, Missouri, Indiana, Illinois, Nebraska, New Hampshire, Maine, and Rhode Island, and that in Massachusetts and Michigan, as in England, the common law prevails. In the federal courts he con siders the rule not clearly settled, but that the general rules laid down by the supreme court coincide with the common-law rule.