Hawkes v. Taylor

70 Ill. App. 255

• Court: Appellate Court of Illinois
• Decided: May 24, 1897
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

Appellant claims that appellee was by the contract bound to “ do everything which would be necessary to effectuate the purpose of the transaction, i. e., to make the mining interests conveyed to him by Mrs. Hawkes produce for her the $20,000 profit, if possible.

If appellee and appellant so intended, the question arises why, by a few simple Avords, they did not put such agreement in the contract.

Appellant insists that the contract contains that which, is not there in terms, nor by necessary implication.

It seems that in making this contract the attention of the parties must have been drawn to the question of whether appellee was bound to go on and develop these mines, regardless of what the prospect for profitably doing so might be,.and that the failure of the parties to stipulate that he should do so, indicates that appellee did not intend to so agree, nor did appellant understand that he had so promised. If appellee did, directly or impliedly, so promise, that he can not by any transfer relieve himself from the obligation is manifest.

Courts do not, by implication or otherwise, make contracts for parties.

The question in this regard is: What contract did the parties make %

The general ground of a legal implication is, that the parties to the contract would have expressed that which the law implies had they thought of it, or had they not supposed it was unnecessary to speak of it because the law provided for it.

The expression of one or more things of the same class, implies the exclusion of all not expressed; and this even if the law would have implied all, had none been expressed.Parsons on Contracts, Vol. 2, 515; Vol. 1, 555, 6th Ed.

Whatever obligation is sought to be raised by legal implication must be of such a character as the court will assume would have been made by the parties had their attention been called to the subject, and their conduct inspired by principles of justice. Dermott et al. v. The State, 99 N. Y. 101-109; King v. Leighton, 100 N. Y. 386-391; Genet v. Del. & Hudson Canal Co., 136 N. Y. 593.

Courts, in reading into contracts implications not clearly there existing, trench upon dangerous ground.

The judgment of the Superior Court is affirmed.