| Understanding.
In the law of contracts, an agreement. An implied agreement
resulting from the express terms of another agreement. whether written or oral. An
Informal agreement, or a concurrence as to its terms. A valid contract engagement of a
somewhat informal character. This is a loose and ambiguous term. unless it be accompanied
by some expression to show that it constituted a meeting of the minds of parties upon
something respecting which they intended to be bound. See Agreement; Contract. Undertake. To take on oneself
to engage in: to enter upon; to take in hand; set about: attempt: as, to under-take a task
or a journey and, specifically, to take upon oneself. solemnly or expressly. To lay
oneself under obligation or to enter into stipulation: to perform or to execute: to
covenant; to contract. Hence to guarantee tee; he surety for; promise to accept or take
over Is a charge, to accept responsibility for the care of. To engage
to look after or attend to, as to undertake a patient or guest. To endeavor to perform or
try; to promise, engage, agree, or assume an obligation.
Undertaking. A promise, engagement, or stipulation. An En ement by one
of the parties to a contract to the other as distinguished from the mutual
engagement of the parties to each other. It does not necessarily imply a consideration. In
a somewhat special sense, a promise given in the course of legal proceedings by a party or
his counsel. generally as a condition to obtaining some concession from the court or the
opposite party. A promise or security in any form. See Stipulation.
Undertook. Agreed;
promised; assumed, This is the technical word to be used in alleging the promise which
forms the basis art action of assumption.
Undisclosed Agency.
Exists where agent deals with a third person without notifying that person of the agency.
APPEARANCE. In practice. A coming Into court as party to a suit,
whether as plaintiff or defendant. Stephens v. Ringling, 102 S.C. 333, 86 S. E. 683, 685,
The formal proceeding by which a defendant submits himself to the jurisdiction of
the court. Flint v. Comly, 95 Me. 251, 49 A. 1044. The voluntary submission to
a court's jurisdiction. Pacilio v. Scarpati, 300 N.Y.S. 473, 478, 165 Misc. 586;
Braman v. Braman, 25S N.Y.S. 181, 186, 236 App.Div. 164.
"Appearance" Is the act of appearing, coming. or being In
sight, becoming visible or clear to apprehension of the mind, of being known as subject of
observation or comprehension, or as a thing proved, of being obvious or manifest. Hallack
& Howard Lumber Co. v. Bagly, 100 Colo. 402, 68 P.2d 442, 443.
Appearance anciently meant an actual coming Into court,either person or by attorney.
Appearance may be made by the party In person or by his agent Everett Ry. Light .A Co. v.
U. S.. D.C. Wash., 2.16 F. 806. 808. But in criminal cases the personal appearance or the
accused In court is often necessary.
An appearance may be either general or special; the
former Is a simple and unqualified or unrestricted submission to the jurisdiction of the
court, the latter a submission to the jurisdiction for some specific purpose only, not for
All the purposes of the suit. Louisville At N. R. Co. v. Industrial Board of Illinois. 282
111. 136, 118 N.E. 483, 483. A special Appearance is for the purpose of testing the
?urn.-icncy (it service or the Jurisdiction of the court,. a general Appearance Is made
where the defendant waives defects of service and submits to the jurisdiction State
Huller, 23 N.M. 306. 168 P. 528. 534. 1 A.L.R. 170.
An appearance may also be either Compulsory or voluntary fie former where it is
compelled by process served Co.% the I lie latter where It is entered by Is own will or
consent without the service of process 'In rough process may so outstanding I Barb. Ch.
Pr. 77. It is sold to be optional when entered by a person who Intervenes In the action to
protect his own Interests. though not joined as a party; It occurs In Chancery practice,
especially In England; conditional, when Coupled with conditions as to its becoming
or being taken 03 a general Appearance: gratis, when made by a party in the action, but
before the service of nil y process or legal notice to appear: do asse, asse, when
en made provisionally or to remain good only upon a future contingency: or when designed
to permit a party to a proceeding to refuse to sub his 0 the of the court unless It F. it
his person to the that he has forever waived that right. Farmers Trust Co. V. Alexander
334 Pa. 434. 6 A.2d 262. 265: subsequent, when made toy a defendant after An
appearance has already been entered for Ill Jl, by the plaintiff Corporal, when the person
Is physically present in court
An answer constitutes an
"appearance" Weiser Richter 2-17 Mich. 52, 225 N.W. 542, 343. A party who
answers, consents to a continuance, goes to trial. takes an appeal, or does any other
substantial act In a cause. Although he has not been served with summons. Is deemed to
have entered his -appearance- unless he objects and preserves his protests to the
jurisdiction of his person. Robinson v. Bossinger, 295 Ark. 445. 112 S.W.2d 637 640. Acts
of an attorney In prosecuting an action on behalf of his client constitute an
-appearance.Pacillo v. Scarpati, 300 N.Y.S. 473. 165 Wisc. 586.
CONSENT.A
concurrence of wills. Voluntarily yielding the will to the proposition of another;
acquiescence or compliance therewith. Twin v. Pure Oil Co., C.Minn.. 26 F.Supp. Agreement;
the act or result of coming into harmony or accord. Glantz v. Gabel, 66 0 t. 134, 24 P.
858 860.
Consent is an act of reason. accompanied with deliberation, the mind weighing as In a balance the good or evil on each
side. I Story. Eq.Jur. 222; Lervick v. White Top Cabs. La. App. 10 So.2d 67, 73. It means
voluntary agreement by a person In the possession and exercise of sufficient mentality to
make an intelligent choice to do something proposed by another. People v. Kanglesser.44
Cal.App. 345 186 P. 398. 389. It supposes a physical power to act. a moral power of
acting, mind a serious. determined, and free use of these powers. Fonblanque. Eq. b. 1. c.
2. a. 1: New Jersey Mfrs' Casualty Ins. Co. 148 A. 790, 791. 106 N.J.L. 238. Consent Is
Implied In every agreement It is an act unclouded by fraud, duress, or sometimes, even a
mistake Heine v. Wright.76 338 244 P. 955
There Is a difference between consenting and submit Every consent Involves a
submission: but a mere submission does not necessarily Involve consent. 9 Car. & P.
722 "Consent" Is an active acquiescence as distinguished from
"assent." meaning a silent acquiescence. People v. Lowe. 205 N.Y.S. 77, 73, 209
APP.Div, 496.
"Consent" means an active circumstance of concurrence: -assent" Is a
passive act of concurrence before another does the act charged, Perryman v. State. 63 Gn
App. 919. 12 S.E.2d 383. 390 But the two terms may be used Interchangeably. Bartlett v.
Sundin, 109 N.Y.S. 391, 393. 182 App.Dlv. 117.
"Consent" is sometimes synonymous merely with "waiver." Dahiquist
v. Denver & R. 0. R. Co.. 52 Utah. 438, 174 P. 933. 8-1-1. See. also. See Gmiller v.
Day. C.C.A.Ill.. 249 F. 177. ],'A: Toledo Fence & Post Co. v. Lyons. C.C.A-0hlo. 290
F. 637 640.
As used In the law of rape "consent'* means consent of the will, and submission
under the Influence of fear or ter, for cannot amount to real consent. Hallmark v. State.
722 212 P. 322 328. There must be an exercise of Intelligence based on knowledge or Its
significance and moral quality and there must be a choice between resistance and
assent. State v. Schwab. 109 Ohipp St. 532. 143 N. E. 29. 31 And If woman resists In the
point where resistance would be unless or until her resistance to over force or violence.
submission thereafter Is not "consent fit". People v. Mclivain 130 P 2d 131 135
55 Cal. App.2d 322
Implied Consent. That manifested by signs. actions, or facts, or by
action or silence, which raise false it presumption that the consent has been given. Avery
v. State. 12 Ga.App. 562. 77 S.E. 892. See State v. Horton. 247 Mo. 657, 153 S.W. 1051,
1053; White v. WhIte, 84 N.J.Eq. 512. 95 A. 197. 199.
ACCEPT. To
receive with approval or satisfaction to receive with intent to retain. See Morris v.
State, 102 Ark. 513, 145 S.W. 2 1-1. Also, In the capacity of drawee of a bill, to
recognize the draft, and engage to pay It when due. It Is not equivalent to
"acquiesce." Applett v. Empire Inv 4"), 99 Or, 533, 197 11. 461, Admit and agrees
Ito, accede Ito or consent lit; receive with approval; adopt ; agree to to. Rocha v.
Hulen, 6 Cal.App.2d 2-15. 44 P.2d .178, 482, 483. Street committee's and city engineer's
reports. City of Morehead v. Blair, 243 Ky. 84, 47 S.W.2d 741, 742. Means something more
than to receive, meaning to adopt, to agree to carry out provisions. Assignee of lease,
Pickier v. Mershon. 212 Iowa. 447. 236 N.W. 382, 385: Central State Bank v. Herrick, 214
Iowa 379, 240 N.W. 242, 246. Renewal health and accident policy premiums, Prescott v.
Mutual Ben. Health and Accident Ass'n, Fla., 193 So. 311, 314, 119 A.L.R. 525.
ACCEPTANCE. The
taking and receiving of anything in good part, and as it were a tacit agreement to a
preceding act, which might have been defeated or avoided if such acceptance had not
been made. Brooke, Abr. The act of a person to whom a thing Is offered or tendered by
another, whereby he receives the thing with the intention of retaining it, such intention
being evidenced by a sufficient act. eEtna Inv. Corporation v. Chandler Landscape &
Floral Co., 227 Mo.App 17, 50 S.W.2d 195, 197.
The exercise of power
conferred by an offer by performance of some act. In re Larney's Estate, 266 N.Y.S. 564,
143 Misc. 871
Bills of
Exchange
An engagement to pay the bill in money when due. 4 East 72; Hunt v.
Security State Bank, 91 Or. 362, 179 P. 248, 251.
The act by which the person on whom a bill of
exchange Is drawn (called the "drawee") assents to the request of the drawer to
pay it, or. In other words. engages or makes himself liable. to pay It when due.
Bell-Wayland Co. v Bank of Sugden. 95 Oki. 67, 218 P, 705. It may be by parol or In
writing, and either general or special. absolute or conditional: and It may be Impliedly
as well as expressly given. 3 Kent. Comm. 93, 85; Story. Bills. 11 238, 251 Telegram
directing drawer to draw draft. 140 ffer v. Eastland Nat. Bank, Tex.Clv.App.. 169 S.W.2d
M. 278. Certification at request of the payee or holder. Welch v. Bank of Manhattan Co..
35 N.Y.S.2d SN. 895, 264 App.Div, 906 But the usual and regular mode of acceptance Is by
the drawee's writing across the face of the bill the word "accepted." and
subscribing his name; after which he is termed the acceptor.
UNDERSTAND. To
know; to apprehend the meaning; to appreciate; as, to understand the nature and effect of
an act. Western Indemnity Co. v. MacKcchnic, Tex.Civ.App., 21-1 S.W. 456,460;
International-Great Northern R. Co. v. Pence, Tex. CIv.App., 113 S.W.2d 206, 210. To have
a full till and clear knowledge of; to comprehend. Fox v.
Schaefrer, 131 Conn. 439, 41 A.2d 46, 49.
Thus, to Invalidate a deed on the ground that the grantor did not understand the
nature of the act. the grantor must be Incapable of comprehending that the effect of the act would divest him of the title to the land set forth In the deed. Miller v. Folsom, 49 Okl. 74, 149 P. 1 185. 1188. As used in connection with the execution of wills and other Instruments, the term Includes the realization of the practical effects and consequences of the proposed act. Tillman V. Ogren.
99 Misc. 539. 166 N.Y.& 39,
40.
UNDERSTANDING. In
the law of contracts. An agreement. Southern Ry. Co. v. Powell, 124 Va. 65, 97 S.E. 357,
358. An implied agreement resulting from the express terms of another agreement, whether
written or oral. United States v. United Shoe Machinery Co., D.C.Mo.. 234 F. 127, 148. An
informal agreement, or a concurrence as to Its terms. Barkow v. Sanger, 47 Wis. 507, 3
N.W. 16.
A valid contract engagement of a somewhat Informal character. Winslow v. Lumber Co., 32
Minn. 23S, 20 N.W. 145. This In a loose and ambiguous term, unless It be accompanied by
some expression to show that it constituted a meeting of the minds of parties upon
something respecting which they intended to be bound. Camp v. War. ing, 25 Conn. 529.
'The term may also import simply a wish or hope, as in a will
bequeathing property to another
with the -understandIngthat at the legatee's death, all property derived under the will should be riven to Vie
testatrtx's sister. Vincent v. Rix. 127 Misc. 639, 217 N.Y.S. 393, 399.
UNDERSTOOD The phrase "it Is
understood,"when employed as a word of contract In a written
agreement. has the same force as the words "it Is agreed.- Phoenix Iron & Steel
Co. v. Wilkoff
Co., C.C.A.Ohlo, 25:1 F. 165, 167; Mertz v. Fleming, 185 Wis. 58, 200
N.W. 655, 656.
UNDERTAKE To take on oneself; to engage In: (0 enter upon; to take III hand; set about; fittempt; as, to undertake a task; a
Journey; and, specifically, to take upon oneself solemnly or expressly; to lay oneself
under obligation or to enter into stipulation-, to perform or to execute; to covenant;
contract; hence to guarantee be surety for; promise; to accept or take over as a charge;
to accept responsibility for the care of; to engage to look after or attend to; as to
undertake a patient or guest Lowe v. Poole, 235 Ala. 441, 179 So. 536, !,10. To endeavor
to perform, try, to promise, engage or agree, assume an obligation. Torelie v. Templeman,
94 Mont. 149, 21 P.2d 60.
UNDERTAKING. A promise, engagement, or stipulation.
Ali engagement by one of the parties to a contract to the other, as distinguished
from t1he mutual engagement of the parties to each other. 5 East 17; 4 B. & Aid. 595,
followed In Alexander v. State, 28 Tex.App. 186, 3.2 S.W. 595. It does not necessarily
Imply a consideration. Thompson v. Blanchard, 3 N.Y. 335.
In a somewhat special
sense, a promise given In the course of legal proceedings by a party or his counsel,
generally as a condition to obtaining some concession from the court or the opposite
party. Sweet.
A promise or security
In any form. Code, Iowa, 1 43, pax. 20.
An official undertaking such as one by a county
clerk or other officer under statutes, unlike an official bond. Is not required I ed to be signed by the principal
Fleisdiner v. Florcy, 111 Or.
35. =4 P. 833, 832.
|
