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Chapter 09 - Introduction to Contracts

CHAPTER 09
INTRODUCTION TO CONTRACTS

I. OBJECTIVES:
This chapter, and the contracts chapters that follow, are designed to give the student a feel for
contract law as an evolving social institution rather than as a static body of rules. Accordingly,
emphasis is placed not only on traditional contract doctrines, but also on the U.C.C. and the
Restatement (Second) of Contracts as important sources of modern contract principles. After
reading the chapter and attending class, a student should be able to:
A. Explain what a contract is and why contracts are useful.
B. Distinguish the terms used to describe contracts and apply those terms to actual contracts.
C. Distinguish the applicability of the common law of contracts and Article 2 of the Uniform
Commercial Code and identify which governs a given contract.
D. Identify the circumstances under which promissory estoppel or quasi-contract can afford a
remedy even though no contract exists.

II. ANSWER TO INTRODUCTORY PROBLEM

A. Yes, a good argument can be made that there was a contract between GSU and Paul. GSU
made an offer to him and he accepted. The terms of the contract would presumably cover any
provisions of any materials made available to Paul at the time of contracting. There was
consideration, legality and capacity. This problem bears similarity to Aronson v. The
University of Mississippi, 2001 Miss. App. LEXIS 385 (Miss. Ct. App. 2001), although the
Aronson case has more complex facts. In that case, the court ruled in favor of the student.
B. A unilateral contract, because GSU made a promise (to give the scholarship) that Paul
accepted by doing an act (getting the appropriate score on his SAT).
C. The common law of contracts, because this is a contract for a service.
D. Even if a court ruled that GSU did not have a contract with Paul, he has a strong case for
promissory estoppel.
E. Probably not under the deontological approaches because Paul’s right to receive what he has
bargained for as well as his property rights would be compromised. We do not have enough
information to do a consequentialist analysis because we don’t know the reasons that GSU
wanted to change the rules or the overall consequences of changing them. You might have
your class discuss what information would make GSU’s actions ethical under a utilitarian
approach.

III. SUGGESTIONS FOR LECTURE PREPARATION:

A. The Nature of Contracts
1. Define contracts as legally enforceable promises.
2. Note that the first decision point society faced in this context was whether to recognize
the idea of contracts at all--should any promise be legally enforceable?
a. Point out that once we had decided that some promises should be legally enforceable,
we had to decide whether all promises should be made legally enforceable. We
decided that they should not be (we all break promises regularly without fear of being
sued).

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Chapter 09 - Introduction to Contracts

b. Briefly discuss the basic elements of a traditional contract. Subsequent chapters

discuss these elements in detail so that students will be able to distinguish contracts
from unenforceable promises.
B. The Social Utility of Contract
1. Discuss the factors that make the contract device an essential component of a modern
industrial society.
2. Note the "private lawmaking" aspect of contracts.
C. The Evolution of Contract Law
1. Discuss the historical and social forces that shaped contract law and the resultant nature
of classical contract rules.
a. Give examples of the many different ways in which contracts can be formed.
2. Consider bringing examples of online contracts, such as Facebook’s Terms of Use, to the
classroom and using them as a focal point for discussion about standardized contracts in
the information age. Discuss why contract law is so important to e-commerce.
D. Methods of Contracting and Elements of a Contract
1. Discuss interactions that students are likely to have encountered that are essentially
contractual—e.g., leases, lottery tickets, magazine subscriptions, even syllabi. Talk about
what it is that makes these relationships contractual.
2. Note that some level of agreement is at the heart of every contract.
Trapani Construction Co. v. Elliot Group: [New case for 17th Edition] The parties in this
case had repeatedly worked together over the years, typically coming to terms for
Trapani’s services memorialized in an unsigned “contract” document (even though that
document stated on its face it needed to be signed by Elliot Group). In 2007,
representatives of Trapani and Elliot met regarding the “Arlington Market Site Work”
project, but failed to formalize the draft contract document with an authorized signature
from Elliot group. Nonetheless, Trapani had already started—and continued to
completion—work on the Arlington Market Site. During that work, the parties interacted
and cooperated with each other, including Elliot Group’s making payments as requested
by Trapani, Trapani’s hiring subcontractors with knowledge and approval of Elliot
Group, and Elliot Group’s approving a series of change orders. Elliot Group, nonetheless,
refused to pay the final remaining balance that Trapani claimed on the work, arguing that
the parties had no contract because Elliot Group never accepted Trapani’s offer as
evidenced by the fact that no one from Elliot Group ever signed the draft contract. The
trial court ruled in favor of Trapani, ordering Elliot Group to pay the remaining
$257,764.70 for the work Trapani completed. On appeal, Elliot Group argued that there
was no implied-in-fact contract for three reasons: (1) lack of acceptance; (2) lack of
consideration; and (3) lack of meeting of the minds or mutual assent. The appellate court
looked to the course of dealings of these two parties, as well as their acts and conduct in
this particular case to establish that a contract existed.
Points for Discussion: Ensure that students note how the court finds the contract implied
in fact by establishing the existence of each of the elements of a contract to be present in
the situation. On the one hand, why shouldn’t the written document control the
relationship, particularly if it is explicit and clear (i.e., if in this case the document
explicitly states that the contract requires a signature)? On the other hand, why would
Elliot Group even try to argue that it didn’t have a contract with Trapani in this situation,
when it had paid more than $2 million for work Trapani had already performed? Note for
students that the finding of a contract is not the end of the story. Trapani will still have to
prove damages and make its case for relief.

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Chapter 09 - Introduction to Contracts

E. Basic Contract Concepts and Types

1. Discuss the elements of contracts and the common transactions that are, in fact, contracts.
a. Note that in bilateral contracts, both parties are bound and a contract is created when
they exchange promises to do something in the future (assuming that the other
elements of a binding contract are present).
b. Note that in unilateral contracts, one of the parties has promised to pay for a specified
future performance by the other party (a promise for an act), rather than a promise to
perform in the future (a promise for a promise). Point out that unilateral contracts
cause some problems in the areas of offer and acceptance and mutuality of
obligation, but that despite some evidence of disfavor, courts sometimes use
unilateral contract terminology to produce just results. You might bring in a “frequent
buyer” card to show an example of an offer for a unilateral contract and a lease to
show an example of a bilateral contract.
3. Define a valid contract and distinguish it from an unenforceable contract.
4. Distinguish between voidable and void contracts. A void contract is never enforceable
under any circumstances. A voidable contract is enforceable unless and until a party with
the power to cancel the contract exercises that power.
5. Distinguish between express and implied contracts.
a. Note that a contract may be partially express and partially implied. For example,
Frank hires Sally to paint his house. They expressly agree on the price, completion
date, and color and quality of the paint. Even though they make no express
statements about the quality of the job Sally is to do, the courts will imply a promise
on Sally's part to do a workmanlike job of painting. For a contemporary business
problem involving implied contract issues, you may wish to refer students to the
Employment Law chapter's discussion of those employment cases in which the issue
is whether employer statements in employee handbooks, etc., become part of the
employment contract. A further discussion of implied contracts can be found in
Symons v. Heaton, a text case that appears later in the chapter.
5. Distinguish between executed and executory contracts. You may wish to distinguish this
usage of the word "executed" from its more common business usage to denote the signing
of a document.
E. The Uniform Commercial Code
1. Discuss the nature and origins of the UCC.
a. Discuss the ways in which Code rules exhibit some of the basic tendencies attributed
to "modern" contract rules. Discuss the "good faith" and "unconscionability" rules in
particular as examples of this phenomenon. Discuss the content of the good faith
requirement.
b. Note that although the UCC is a statutory source of law, it is in an evolutionary
process because it is subject to revision. Discuss the fact that there is an ongoing
project to draft revisions of Article 2 and note that an offshoot of Article 2, UCITA
(the Uniform Computer Information Transactions Act) has been drafted, offered for
enactment in about ten states, and was enacted by two states around the turn of the
Twenty-Fist Century. In response to the push for UCITA by NCCUSL, five states
enacted so-called “bomb-shelter” laws that protected their citizens against UCITA-
like provisions.
c. Note the Code distinction between merchants and non-merchants. Give some
familiar examples of each.

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Chapter 09 - Introduction to Contracts

d. Discuss the application of the Code—Code rules technically apply only to contracts
for the sale of "goods." Discuss the meaning of goods and show how goods differ
from real estate, services, and intangibles. Point out that Code application does not
depend on the amount of money involved in the contract or whether the parties are
merchants. Note, however, that even where a contract for the sale of goods is clearly
at issue, the Code has not changed all contract rules. Thus, the body of law that
applies to such cases includes specific Code principles together with all general
contract principles that have not been changed by the Code. Discuss Problem Cases
##4, 7, and 9.
1) Note that many contemporary contract cases are "mixed" cases because they
involve elements of both goods and services (e.g., a construction contract). The
test most frequently used by the courts to determine whether or not the Code
applies is which element (goods or services) "predominates" in the contract.
Contracts calling for services involving significant elements of skill or judgment
are unlikely to be decided under the Code. See Problem Case #1.
Audio Visual Artistry v. Tanzer: The Tennessee Court of Appeals holds that the
trial court was correct in concluding that the UCC, rather than the common law,
controlled the mixed good-and services contract at issue. The court determined
that the goods aspect of the contract for a “smart-home” sound system
predominated over the services aspect; hence, the UCC provided the controlling
rules.
Points for Discussion: Ask the students what the contract contemplated in terms
of good and services. Why does the court conclude that the goods aspect of the
contract predominated? (The components of the sound system were critical
under the contract’s language and purpose, and those components clearly were
goods. AVA’s business centered around the furnishing of goods, with services
—delivery and installation—seeming incidental by comparison. Also, more than
80% of the contract price pertained to the goods sold, as opposed to the services
aspect of the deal.)
2) Note also, however, the tendency of Code principles to "bleed-over" into
traditional contract cases. This is especially true of general Code ideas such as
"good faith" and "unconscionability."
F. Discuss the CISG (See The Global Business Environment in this section).
G. The Restatement (Second) of Contracts
1. Discuss the nature and origins of the Restatement Second.
a. Note that although the Restatements do not have the force of law, they have been
very influential in the evolution of the legal areas that they address.
b. Point out the "modern" contract nature of many of the Restatement Second's
provisions.
H. “Noncontract” Obligations
1. Explain the relationship of the “noncontract” obligations covered in this chapter to
contract obligations. Explain why courts created these doctrines.
a. Discuss the doctrine of quasi-contract. In some cases the courts, to avoid unjust
enrichment, will, as a matter of law imply a promise on a person's part to pay for
benefits that he has received from another.
1) Note that quasi-contract liability is not truly contractual in the sense that it is not
based on any agreement between the parties. Quasi-contract is a device used by
the courts to impose liability in some cases where the elements of a contract are

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Chapter 09 - Introduction to Contracts

not present. In fact, quasi-contract recovery is not available to a party when there
is a valid contract that covers the subject matter in question.
Symons v. Heaton: The Supreme Court of Wyoming affirms the lower court’s
grant of summary judgment to the defendant (The Estate of Gary Plachek) in a
case brought by Plachek’s long-time friend, Curtis Symons. Symons based his
case on three alternative theories: implied contract; unjust enrichment; and
promissory estoppel. He lost on all three claims.
Points for Discussion: Ask the students to note the key facts, including the
circumstances under which Symons moved in with his long-time friend
(Plachek), hauled him around, and did all sorts of things for Plachek while
Plachek did little but sleep and drink to excess. So why doesn’t Symons win in
his claim against Plachek’s estate for the value of the care and services he
provided to Plachek? Ask the students about each of Symons’s claims. Why
does he lose on the implied contract theory? (Among other things, no conduct
suggesting an agreement that if Symons stayed around and provided services, he
would be paid. Do your students agree?) Why does he lose on the unjust
enrichment claim? (Symons admitted he stayed because he wanted to stay, and
that he was fulfilling a commitment he had made to Plachek’s mother. Do your
students agree that there was no unjust enrichment?) Why does he lose on the
promissory estoppel claim? (There was no clear and definite promise on which
Symons relied to his detriment.)
2) Distinguish between quasi-contract liability and implied contract liability. In
implied contract cases liability is imposed because the courts believe that the
parties in fact reached an agreement despite their failure to express all the
agreement's terms. In quasi-contract cases no actual agreement exists, but courts
infer the existence of a promise to pay as a means of avoiding an injustice.
Consider Symons again (see above).
b. Discuss the doctrine of promissory estoppel. Although traditional contract principles
afforded no protection to those who relied on the promises of others when the other
elements of a binding contract were not present, courts in this century have been
increasingly willing to do so.
1) Discuss the elements of promissory estoppel. Note the fundamental difference
between liability based on promissory estoppel and liability based on contract:
promissory estoppel protects reliance--contract law protects bargains. Again,
note Symons (see above).
Thomas v. Archer: Rachel and Steven Thomas were expectant parents. Rachel
sought treatment at Ketchikan General Hospital, at which point Dr. Archer
recommended that she be transferred to Swedish Medical Center in Seattle by
medevac flight. The flight was sure to be very costly, and the Thomases needed
preauthorization from their insurance to be treated in Seattle in order to be sure
that they were not stuck with that bill. Before they agreed to board the medevac
flight, Dr. Archer assured them that she would arrange for the preauthorization
and that, if their insurance failed to pay, “we” will. (The Thomases presumed
“we” meant Ketchikan General Hospital. However, Steven signed an
“Acknowledgment of Financial Responsibility” form, which indicated that the
Thomases agreed to pay any charges that their insurance did not cover.

The Thomases ultimately received bills for more than $90,000 related to the
transportation to and treatment at Swedish Medical Center, because they did not

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Chapter 09 - Introduction to Contracts

receive preauthorization for Rachel’s treatment there. Though Dr. Archer did
notify the Thomases’ insurance about the need for the transfer and her medical
judgment in recommending it, she did not do so until six months after the fact,
well after the 72-hour preauthorization deadline. The Thomases sued Dr. Archer
and Ketchikan General Hospital for, among other things, liability pursuant to a
promissory estoppel claim. Thought the trial court granted summary judgment
for the defendants, the Alaska Supreme Court reversed that summary judgment.
Points for Discussion: Have the students walk through the elements of
promissory estoppel as applied in this case, just as the court’s opinion does. Be
sure to discuss with students that a reversal of summary judgment does not mean
that the Thomases will actually prevail on their claim of promissory estoppel, but
rather that there is a genuine dispute of material fact over whether they can. In
this regard, once students understand that the case was still “live” following the
Supreme Court’s decision, instructors might find it interesting to have students
debate whether they think the Thomases should be able to recover (i.e., what
would they do if they were on the jury?). This debate can be particularly
interesting as it relates to the final element of promissory estoppel, whether
enforcement of the promise is necessary in the interest of justice. While students
will no doubt be sympathetic to the Thomases, who found themselves in a highly
stressful situation depending on the representations of a trusted medical
professional, Steven also signed the “Acknowledgement of Financial
Responsibility.” Why should that not resolve the case, regardless of Dr. Archer’s
well-meaning, but ultimately wrong-headed, “promise” to the Thomases?
Additional Examples: Problem Cases #3 and #6.
2) Note that promissory estoppel is a classic example of an imprecise (what is
"injustice?") modern contract law rule. It enables courts to impose liability in the
name of fairness in cases where no liability would exist under classical contract
principles.
3) Note, however, that promissory estoppel is unlikely to apply if a person relies on
expectations that are not traceable to a fairly clear promise.
Ethics in Action: Quasi-contract plainly rests on an ethics-related foundation--the
idea that, in some circumstances, it is unjust to receive a benefit from others
without paying for it. Another way of stating this is to say that just as the benefits
one obtains from others pursuant to the performance of a freely bargained
contract are matters of right, both legal and moral, in some situations one may
have received benefits from another without being legally or morally entitled to
them. If the circumstances are such that it is impossible to return such benefits
(e.g., a free paint job), quasi-contract forces the recipient to make just
compensation for them. The ethical basis for promissory estoppel may be found
in the idea featured prominently in the ethical and public policy problems in
Chapters 6 and 7; that those who unjustifiably cause harm to another are duty
bound to compensate that other for his injuries. Promisors who make promises
which they should reasonably expect to induce detrimental reliance on the part of
the promisee are accordingly held liable for the promisee's reliance losses.
Promissory estoppel is not, however, perfectly ethically analogous to tort liability
due to the role of the promisee in the process. Certainly, it may be said that "but
for" the promisor's promise, the promisee would not have relied and suffered
loss. But this ignores the question whether the promisee was reasonable in
relying on a promise which was otherwise legally unenforceable and, if not, on

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Chapter 09 - Introduction to Contracts

what ethical basis the law finds itself in the business of protecting reliance which
is, in this sense, unreasonable.

IV. RECOMMENDED REFERENCES

A. RESTATEMENT (SECOND) OF CONTRACTS (1983).
B. E. Allan Farnsworth, CONTRACTS (3rd ed. 2004).
C. Kevin M. Teeven, The Origins of Promissory Estoppel: Justifiable Reliance and Commercial
Uncertainty Before Williston's Restatement, 34 U. Mem. L. Rev. 499 (2004).

V. ANSWERS TO PROBLEMS AND PROBLEM CASES

1. No contract and no quasi-contract. Galloway never made a clear and unambiguous

promise to Hix to pay for the work. And Hix’s work on the pond was gratuitious, thus
not appropriate for a claim of quasi-contract and did not result in unjust enrichment for
Galloway. HAD Ents. v. Galloway, 948 N.E. 2d 473 (Ohio App. 2011).
2. No. The lottery ticket was held to be a valid contract embodying legal rules and
provisions written on lottery ticket. Lottery rules and regulations became part of the
contract and the time limit was a material part of the contract. Thus, Jackson was unable
to collect on his prize because he waited longer than the one year specified on the lottery
ticket to claim his prize. Jackson v. Connecticut Lottery Corporation, 1998 Conn. Super.
LEXIS 2562 (1998).
3. Yes. The court applied the four elements of promissory estoppel to the facts and found
that the Aceves stated a viable claim for promissory estoppel. U.S. Bank made a promise
on which Aceves reasonably and foreseeably relied to her detriment. Aceves v. U.S.
Bank, 120 Cal. Rptr. 3d 507 (Cal. Ct. App. 2011).
4. No. Although software has been found to be a good in several previous cases, the court
declined to apply the U.C.C. to this case. It stated, “[a] website created under
arrangements calling for the designer to fashion, program, and host its operations on the
designer’s server is neither tangible nor moveable in the conventional sense. To be sure
one can copy a website using tangible, movable objects such as hard drives, cables, and
disks. These objects are in themselves just as certainly goods, but it does not follow that
the information they contain classifies as goods as well. The arrangement between POA
and Gray Loon contemplated a custom design for a single customer and an ongoing
hosting relationship. As such, conventional ‘predominant thrust’ doctrine suggests that
the U.C.C. did not apply.” Conwell v. Gray Loon Outdoor Marketing Group, Inc., 906
N.E.2d 805 (Ind. Sup. Ct. 2009).
5. No. The court found that Barron’s acceptance of Lambert’s was merely an indication of
a person accepting the help of a friend. No contract was formed. Lambert v. Barron, 974
So.2d 198 (La. Ct. App. 2008).
6. Yes. Weitz has a valid claim for promissory estoppel. The reliance on H & S’s bid was
foreseeable, and Weitz reasonably relied on it as the lowest bid it received. The court
found that the only way it could avoid injustice to Weitz was to enforce H & S’s low bid
and assess damages against it in the difference that Weitz paid to the replacement
subcontractor and H & S’s bid. Weitz Co. v. Hands, Inc., 882 N.W. 2d 659 (Neb. 2016).
7. The UCC applied. The court found that the predominate purpose of the contract was for
the sale of goods (i.e., the manure). H & C Ag. Servs., LLC v. Ohio Fresh Eggs, LLC, 41
N.E. 3d 915 (2015).
8. No. The court concluded that Palese had entered into a contract with the Lottery Office
when he purchased the ticket, and that the ticket plainly stated that it was subject to state
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Chapter 09 - Introduction to Contracts

lottery regulations. Those regulations indicated that a ticket was required to collect the
jackpot. Palese’s claim for unjust enrichment failed because quasi contract is not
available when there is an existing contract on point and because the Lottery Office did
not act without justification. Palese v. Delaware State Lottery Office, 2006 De. Ch.
LEXIS 126 (Del. Chancery 2006), affirmed, 913 A.2d 570 (Del Sup. Ct. 2006).
9. No. Under section 2-105 of the UCC "goods “must be (1) a thing, (2) existing, and (3)
movable. Water is all three. All who have paid bills for water can attest to its movability.
Under this definition water is "goods" and the implied warranty of merchantability should
attach to its sale. Gall v. Allegheny Health Dept., 555 A.2d 786 (Pa. Sup. Ct. 1989).
10. Yes. Schumacher showed that he made substantial improvements on his parents’
land, that his parents knew of the improvements and either encouraged them or
did nothing to discourage them, and that they benefited by the improvements. The
court held that that was sufficient to create issues of genuine fact for the jury, and
the court denied summary judgment on the claim of unjust enrichment. [Note:
Schumacher also claimed promissory estoppel, but the court decided that
Minnesota law does not allow a claim of promissory estoppel to override the
statute of frauds in the claim of either a promise of lifetime employment or a
promise to make a will.] Schumacher v. Schumacher, 627 N.W.2d 725 (Minn. Ct.
App. 2001).

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Another random document with
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the old house looked very pretty, and were glad that some
one had come to live in it.

"Will he live by himself, Stephen, do you think?" said

Audrey.

But before Stephen had time to answer, Aunt Cordelia's

voice was heard calling—

"Now, Audrey, tea-time! What about your pinafore?"

The pinafore was quite clean this time, and Audrey went
in with a light heart; and as a reward for keeping clear of
dirt, she was allowed to play with Stephen again after tea.
She was eager to get out, that she might catch another
glimpse of her old man, as she called him; but she found
the shutters closed, and she and Stephen could only watch
the flickering of the bright light inside.

"He's got a fire," said Stephen; "look at the smoke

coming up out of the chimney."

"And he's got a lamp, too," said Audrey. "Look, you can
see it through the crack in this shutter."
 "THERE'S SOME ONE SITTING IN THE WINDOW!" HE SAID.

"Listen—" said Stephen. "What is he doing?"

The sound of hammering came again and again from

the room, the window of which looked into the churchyard.

"He's putting up his pictures," said Audrey. "How pretty

it will look in the morning!"

There was, however, no time for her to peep at it before

school; but when she came home at twelve o'clock, she
found Stephen full of excitement.

"There's some one sitting in the window, and I can't

make out who it is," he said. "I can see something white,
and it moves, but it isn't the old man's head; it's too white
for that."

"Why don't you go and look?" said Audrey.

 "I daren't," said Stephen; "I waited for you, Audrey."

The little girl went on tip-toe and peeped in.

"It's an old woman, Stephen," she reported, when she

came back to him. "Such a pretty old woman, and she is
sitting in that arm-chair, knitting, and she is smiling to
herself as she knits. I wonder what she is thinking about
that makes her smile. Come and look, Stephie."

Very, very quietly the two children crept to the window

and peeped in.

"Is any one there?" said a pleasant voice.

But the children were so startled when she spoke, that

they ran away and hid behind the bushes, and it was some
time before they dared to venture again near the window.

"Is any one there?" said the kindly voice of the old
woman. "I am sure I hear some little feet outside."

"Yes, ma'am," said Audrey; "it's me and Stephen."

"You and Stephen, is it?" said the old woman. "And

what are you and Stephen like?"

Instead of answering, the two children put their heads

in at the window.

How pretty it was inside that room! The walls were

covered with pictures and photographs and coloured texts,
a fire was burning in the grate, and in front of it lay a
tortoiseshell cat fast asleep; the chimney-piece was
adorned with stuffed birds and vases filled with grass, and
on the round table was a large bunch of wallflowers, which
filled the whole room with sweetness.
 "Now then, what are you and Stephen like?" said the
old woman, smiling again.

"Can't you see us, ma'am?" said Audrey.

"No, I can't see you," said the old woman quietly; "I'm
blind."

"Oh dear, what a pity!" said little Stephen.

"No, not a pity," said the old woman, "not a pity,

because the good Lord sees best; we must never say it's a
pity."

"Can't you see anything?" said Audrey.

"Not a glimmer," said the old woman, "it is all dark now;
but I can feel the warm sunshine, thank God, and I can
smell these sweet flowers, and I can hear your bonny
voices."

"I'm so sorry for you," said little Stephen, "so very, very
sorry!"

"God bless you, my dear child!" said the old woman,

and a tear rolled down her cheek and fell upon her knitting.
"And now tell me who you are, and what you are like."

"I'm Audrey, please, ma'am," said the little girl, "and

he's Stephen, and he's as good as my brother, only he isn't
my brother—are you, Stephie? And he's got shaky legs, and
he can't walk far; but he plays with me among the graves—
don't you, Stephie?"

"And now, Stephen, what is Audrey like?" asked the old

woman.
 "She's got yellow hair," said little Stephen, "and she's
nice!" And then he turned shy, and would say no more.

"Now," said the old woman, "you must often come and
talk to me as I sit in my window, and you must tell me all
you are doing. I know what to call you, but you must know
what to call me. My name is Mrs. Robin, and you shall call
me Granny Robin. I have some little grandchildren, but they
live over the sea in America, so you must take their place."

"Thank you, ma'am," said Audrey. "Thank you, Granny

Robin, I mean," she added, laughing.

That was the beginning of a great friendship between

the two children and the new-comers. Mr. Robin had been a
schoolmaster, and for many years had worked hard and
lived carefully, so that in his old age he had saved enough
to retire, and to take the old house, and make a
comfortable home in it for himself and for his wife.

The rent was low, for few liked to take a house the
windows of which looked out upon graves, but the
schoolmaster made no objection to the churchyard. There
were green trees in it, which would remind him of the pretty
village where he had lived so long, and he did not mind the
graves: he would soon be lying in one himself, and it was
well to be reminded of it, he said. And as for his wife, she
could not see the graves, but she could hear the twittering
of the swallows that built under the eaves of the deserted
church, and she could smell the lilac on the bush close to
her window, and it would be a quiet and pleasant home for
her until the Lord called her.

The only fear that the schoolmaster had had in choosing

his new home had been lest his wife would miss the
company to which she had been accustomed in the village
where they were so well known. She had a large and loving
heart, and there were very few in the village who did not
come to her for sympathy both in joy and in sorrow. She
knew the history of every one, and, one by one, they
dropped in to tell her all that was going on in the village—
countless little events which would have been of small
interest to others, but which were of great interest to Mrs.
Robin.

She sat at her knitting when the neighbours had gone,

thinking over what she had heard, and carrying the sorrows
of others, as she ever carried her own, to the throne of
grace.

But Mr. Robin need not have feared for his wife. She
had a happy, contented spirit. It is true she had felt sad at
leaving her happy country home, but new interests were
already springing up in the one to which she felt the Lord
had brought her. Little Stephen with his shaky legs, and
Audrey with her motherly care over him, had already won
Granny Robin's heart, and the children from that time spent
a very large part of their playtime in talking to their new
friend, as she sat at her window knitting.

CHAPTER IV
Forgotten Graves

ONE day, as the children stood by Granny Robin's side,

they talked about the old graves in the churchyard. It was a
bright spring evening, and the golden sunshine was
streaming through the branches of the ragged, untidy trees,
which nearly hid the old church from sight. Granny Robin
could not see the sunshine, but Stephen could see it, and
he told her about it, and said he was sure the swallows liked
it as much as he did, for they were flying round and round
in long circles, twittering as they flew.

It had become quite a regular thing for Stephen to tell

the old woman all he saw, and he loved to hear her say that
she was now no longer blind, for she had found a pair of
new eyes.

One day she called him her "little Hobab," and when he
laughed and asked her why she gave him such a funny
name, she said it was because, long, long ago, when Moses
was travelling through the wilderness with the children of
Israel, he said to his brother-in-law, Hobab:

"Thou mayest be to us instead of eyes." And she said

that God had sent little Stephen to her, in her old age, that
he might be instead of eyes to her.

"I am so sorry for those poor graves," said Stephen on

that spring evening, when he had been telling Granny Robin
about the sunlight and the swallows.

"Why are you sorry for them?" asked the old woman.

"They look so sad and lonely," said Stephen.

"What are they like?" asked Granny Robin.

"Oh, all green and dirty," said Audrey, "and the trees
are fallen against them, and when the wind blows, their
branches go beat, beat, beat, against the stones, till Aunt
Cordelia says she can't bear to hear them when she's in bed
at night."

"Does nobody bring flowers to put on them?" asked the

old woman.

"No, never," said little Stephen.

"Nor wreaths?"

"Oh no, never."

"Does no one ever come to look at them?"

"No, never once, Granny Robin," said Audrey.

"And they do look so sad," said Stephen.

"Yes," said the little girl, "I went with Aunt Cordelia to
the cemetery one day, and it's lovely there, just like a
garden; the flowers are beautiful, and there were heaps of
people watering graves, and raking them and pulling off the
dead flowers, and some of them were crying."

"But no one cries over these graves," said Granny

Robin.

"No, not one person," said Stephen. "My father says all
the people that loved them are dead and buried
themselves."

"Poor forgotten graves!" said the old woman. "And my

grave will be like one of them in fifty years' time—a
forgotten grave."

She was talking to herself more than to the children,

but little Stephen answered her.
 "Will no one remember it, Granny Robin?"

"Yes, some one will," she said brightly; "my Lord will
never forget. He will know where it is, and whose body lies
inside, and it will be safe in His care till the great
Resurrection Day."

"Will the angels know too?" said Stephen.

"I think they will," she said.

"Do they know who are buried in these poor old

graves?" asked the child.

"Yes, I believe they do," said the old woman.

"In every one?"

"Yes, in every one."

"Even when the names are worn off?" asked the little
boy.

"Yes, I believe they do," said Granny Robin softly.

"I'm so glad," said Stephen. "Then maybe the angels do

come and look at them sometimes. I expect they come at
night, when Audrey and me are in bed. I'll get out and look
some night, Granny Robin; maybe I shall see them; my
window looks out this way."

The forgotten graves weighed heavily on Stephen's

mind after this talk with the old woman. When Audrey was
at school, he used to wander up and down amongst them,
pitying them with all the pity of his loving little heart. And
he would try to put aside some of the branches that kept
blowing against the stones, and which were so fast wearing
them away, and he would pull up some of the long grass,
which in some places hid the stones completely from sight.

"Audrey—" he said one afternoon when Aunt Cordelia

had given her leave to have a long play with him, "Audrey,
couldn't we make these poor old graves look nice?"

"We couldn't do them all," said Audrey. "Why, Stephen,

there must be a hundred or more!"

"No, we couldn't do them all; we might begin with two—

one for you and one for me, Audrey."

"Well, let's choose," said the little girl. "We'll walk round
and have a look at them all."

"We'll have one with some reading on," said Stephen,

"and then we shall know what to call it."

"Here's a poor old stone against the wall," said Audrey;

"I'll read you what it says."

"'SACRED
TO THE MEMORY OF
CHARLES HOLDEN,
WHOSE REMAINS LIE
HERE INTERRED.
HE WAS
OF HUMANE DISPOSITION,
A SOCIAL COMPANION,
A FAITHFUL SERVANT,
AND A SINCERE FRIEND.
HE DEPARTED THIS LIFE
THE 23RD OF DECEMBER, 1781.
 AGED 38.'"

"I don't like that one bit," said Stephen; "it has got too
many hard words in it."

"Well, here's another."

"'IN MEMORY
OF
JOHN POWELL.
DIED IN 1781.
ALSO MARY, RELICT OF
THE ABOVE, WHO DIED
JANUARY 20, 1827,
AGED 87.
ALSO TWO GRANDCHILDREN,
WHO DIED YOUNG.'"

"That's much nicer," said Stephen. "I like those two

grandchildren who died young. I wonder how old they were;
do you think they were as old as you and me, Audrey?"

"I don't know," said Audrey; "it doesn't say, and it

doesn't tell if they were girls or boys."

"Never mind," said Stephen, "we can guess. I think one

was a girl and one was a boy. And are their bodies really
down under here, Audrey?"

"Yes, what there is of them," said Audrey; "Aunt

Cordelia says they turn to dust."
 "Oh," said little Stephen, in an awestruck voice, "I wish
we could see the dust of the two grandchildren who died
young! I'll have this grave, Audrey, and take care of them.
Is there any one else inside it?"

"Yes, there's John Powell, died in 1781; also Mary, relict

of the above," read Audrey.

"What does relict mean?" asked Stephen.

"Aunt Cordelia has a relict," said Audrey, "and she

keeps it in a box."

"Is it a woman?" asked Stephen.

"No, it's a bit of grey hair; she cut it off her mother's
head when she was dead, and she says it's a relict. I don't
know what she means, but she keeps it locked up ever so
safe."

"I hope John Powell didn't lock Mary up," said Stephen.

"She must have got out if he did," said Audrey, "for she
lived a long, long, long time after him. He died in 1781, and
she didn't die not until 1827; let me count up, it's quite a
long sum. Why, it's forty-six years, Stephen!"

"Oh dear," said Stephen, "that is a long time! Let's tell

Granny Robin about it, and I'll ask her if she would have
that one if she was me."

Granny Robin quite approved of their plan, and of

Stephen's choice of the two grandchildren who died young.
She told them that relict meant the wife left behind, and
tears came into the old woman's sightless eyes, as she sat
at her knitting and thought of the poor widow left behind for
forty-six years. She pictured her living on and on, year after
year, coming doubtless often to that grave to look at the
place where her John lay, but still kept waiting for forty-six
years for the glad day when she should see him again.

Granny Robin thought it must have seemed a longs

dreary time to poor Mary. And then, maybe, those two
grandchildren were a cheer and comfort to her. Yet they
were taken, they died young, but old Mary still lived on. Till
at last, on that winter's day, January 20, 1827, the call, so
long waited for, came, and she and her John were together
again. Then, too, the old grandmother saw once more the
faces of the two grandchildren who died young.

So Granny Robin mused as she sat at her work; and she

wondered whether the waiting-time seemed as long to old
Mary, as she looked back to it from the brightness and the
joy of the Home above, or did it seem short as a troubled
dream seems when we wake from sleep?

"Our light affliction, which is but for a moment."

So long, when we are passing through it; but for a

moment, as we look back to it from God's eternity.

CHAPTER V
The Collection
 STEPHEN had now quite settled upon the grave which
he was to make his especial care, but he promised not to
begin his work until Audrey had chosen hers. She was very
undecided for a long time, but at length she chose one,
sacred to the memory of another John.

"It will be nice for us each to have a John," she said.

"'BENEATH IS DEPOSITED
ALL THAT WAS MORTAL OF
JOHN HUTTON,
WHO DIED THE 12TH OF APRIL, 1793,
AGED 47.'"

"'Go home, dear wife, and shed no tear,

I must ly here till Christ appear;
And at His coming hope to have
A joyful rising from the grave.'"

"How do you spell lie, Granny Robin?" said Audrey,

when she had finished reading it to her.

"L-i-e," said the old woman.

"Well, it's l-y here," said the child.

"That's the old-fashioned way," said Granny Robin.

"Well, now, we'll set to work," said Audrey; "we must

wash them first, Stephen. Do you think your father would
give us some water in a basin? I daren't ask Aunt Cordelia;
she would say I should dirty my pinafore."

"If Stephen's father will give him a basin, I will give you
one, Audrey," said Granny Robin.

"And I'll get you both an old sponge," said Mr. Robin,
who was smoking his pipe in the window.

What a scrubbing went on after that! Stephen's father,

who was always pleased to do anything his poor little boy
asked him, brought out soap and two scrubbing brushes,
and the children worked away diligently for more than an
hour.

At the end of it, they were far from satisfied with their
work.

"The two grandchildren who died young won't come

clean, Granny Robin," said little Stephen mournfully.

"They're quite as nice as my John is," said Audrey.

"Anyhow," she added more hopefully, "they're a deal
cleaner than they were before. Now what's the next thing to
be done?"

"We must cut the long grass behind them," said

Stephen, "and then we must dig up the grave in front of the
stone. I'll get father's big scissors and my little spade."

Father's big scissors cut the grass down very

successfully, but Stephen's little spade refused to go into
the hard ground. It had been trodden underfoot for many
years, and it lay hard and dry and stony over the heads of
the two grandchildren who died young.
 But at this point old Mr. Robin came to the rescue. He
brought a large spade out of his house and dug the grave
over for little Stephen, and then, after he had rested a little,
he did the same for Audrey's John, as she called him.

AT THIS POINT OLD MR. ROBIN CAME TO THE RESCUE.

"Wouldn't the wife be pleased if she saw we were doing

it?" she said.

"What wife?" asked Stephen.

"This wife it says about in the hymn—"

"'Go home, dear wife, and shed no tear.'"

 "I wonder if she did shed any," said Stephen.

"I expect she did," said Audrey; "I wonder what has
become of her. Do you think she will ever come to see how
nice we have made her John's grave, Granny Robin?"

"When did John die?" asked the old woman.

"In 1793," said Audrey.

"1793—a hundred years ago!" said Granny Robin. "Why,

Audrey, the wife must have been dead long since!"

"And she never sheds any more tears now," said

Stephen, "because she's in heaven."

"I hope so," said Granny Robin.

"Does everybody go to heaven when they die?" asked

the child.

"No, my dear boy, not every one."

"Shall I go there when I die, Granny Robin? I do hope I

shall," said little Stephen.

"I hope so too, my little man. The Lord wants to have

you there," she said.

"What is it like, Granny Robin?" asked Stephen.

"We know very little about it, Stephen," said the old
woman, "but we can't help thinking about it, and dreaming
about it; and I always think of it as a beautiful garden,
where the King walks with His friends. I may be wrong,
Stephie, but that's what I always see in my mind when I
think of it."
 "The two grandchildren who died young will like being in
the garden," said Stephen. "Do you think they're glad they
died young, Granny Robin?"

"I think they are, Stephie," she said; "they did not have
to tread far on life's rough ways; their little feet reached the
garden long, long years ago."

"And there will be soft grass for them to walk on there,"

said Stephen, "Maybe I'll see them when I get there. Do
you think I'll know them, Granny Robin?"

"I think you will, Stephie; I feel almost sure you will,"
she said.

"If I see any very dear little children playing under the
trees of the garden," said little Stephen, "I might ask them,
'Are you the two grandchildren who died young?' And then
they could tell me, couldn't they?"

"God bless you, my dear little lad!" was all the answer
Granny Robin gave him.

The next day was Saturday, which was market-day in

the old city. It was Audrey's holiday, and the happiest day in
the week to Stephen and to herself. Aunt Cordelia was
always busy cleaning from morning till night, and sent
Audrey into the churchyard, that she might be out of the
way of her sweeping-brush and dust-pan.

On this particular Saturday, Audrey and Stephen were

whispering together under the lilac tree for a very long
time; and about ten minutes afterwards, Mr. Robin, who
was smoking his pipe in the window, saw a sight which
made him laugh so much, that for a long time he could not
tell Granny Robin at what he was laughing.
 As he looked across the churchyard, he saw Audrey and
Stephen coming towards the window arm in arm. Stephen
was dressed in the tall hat which his father wore when he
went to chapel on Sunday night, and in an old greatcoat,
which was fastened round his neck, and dragged like a long
tail behind him, whilst the sleeves were turned up so far
that there was far more lining than cloth to be seen. Audrey
had a red shawl thrown over her head, and her pinafore
was tied round her waist like an apron. Each child carried a
tin, on which old Mr. Robin distinctly read the words
"Colman's Mustard."

As soon as they came up to the window both children

made a low bow, but neither of them spoke.

"Well, what do you want?" said Mr. Robin, as gravely as

he could. "Are you going round begging this fine spring
morning?"

"Please, sir, we're making a collection," said Audrey.

"Yes, it's a collection," echoed little Stephen.

"What's it for, my little dears?" said Granny Robin, as

she laid down her knitting, and began to put her hand into
her pocket.

"Mine's for the TWO GRANDCHILDREN WHO DIED

YOUNG," said little Stephen.

"And mine's for ALL THAT WAS MORTAL OF JOHN

HUTTON," said Audrey.

"Oh, I see," said the old woman; "you want to go and

get some roots in the market for your graves—is that it?"
 That is it, and Granny Robin's hand must go in the
pocket again. It goes in empty, but it comes out well filled.
Three pennies for the grandchildren go into Stephen's tin,
and three more for John Hutton go rattling to the bottom of
Audrey's.

Now it is Mr. Robin's turn, and his pocket seems to be

full of pennies too; and the tins make such a noise when
they are shaken that Granny Robin pretends to stop her
ears, that she may not hear the din.

Then the two children go on to the next window, where

Stephen's father sits busy with his work. But the boot is laid
down, that the collection may have due attention, and it is
silver this time which goes into the tins, two quiet silver
threepences, which make no noise, but which the two
children admire greatly as they slip in amongst the copper.

"Now for Aunt Cordelia," says Audrey. "You must go

first, Stephen; she won't say 'No' to you."

Aunt Cordelia makes a dive at Audrey's pinafore, the

bottom of which she declares is collecting all the dust in the
churchyard, but she is not angry when she hears why they
have come. And when Stephen pleads for something for his
two grandchildren, she goes to her till and brings out
several pence for each tin, and willingly gives Audrey leave
to go that afternoon to the market with Mr. Robin to make
her purchases.

CHAPTER VI