CHAPTER XX.

REMEDIES AND AUTHORITIES.

216. Remedies for breach of contract.-There are two kinds of remedies which arise where a breach of obligation is involved: first, those which are preventive; second, those which are for redress. Thus, a threatened breach of contract may be prevented by the issuance of a writ of injunction. This is an order entered by a court of equity or a court possessing chancery jurisdiction, restraining the defendant from breaking a contract.92 An injunction is only granted when adequate redress cannot be obtained by the remedies offered at law. Thus, a singer of peculiar merits who contracts to sing at a particular theatre exclusively may be prevented by injunction from singing elsewhere during the term of her engagement."

93

The remedies for redress for a breach of contract are of two kinds: An action for damages and an action for specific performance. The former is a remedy at law; the latter is an equitable remedy.

94

217. Damages. The object of damages for breach of contract is to compensate the injured party for the loss actually sustained. Only such damages will be allowed as a reasonable man would suppose the contract was intended to provide for.95

92 See subject, EQUITY.

93 Lumley v. Wagner, 1 De G. M. & G. 604 (Eng.).

94 See subject, DAMAGES.

95 Hadley v. Baxendale, 9 Ex. 341 (Eng.).

Generally, interest is not recoverable at common law as damages for the retention of money due unless the contract so provides, or usage of trade so dictates. In this country, however, interest is generally recoverable on liquidated claims; that is, where the amount of the claim is fixed. The several states have passed statutes regulating the question of interest.

The parties to a contract may agree upon the damages to be paid in case of a breach. But the courts usually relieve against penalties. Where no sum has been fixed, the actual expenses incurred by the injured party, the actual value of his services and the loss of anticipated profits are elements of damages.96

218. Specific performance. If the remedy entitling the injured party to damages is inadequate, a court of equity may grant the complaining party an order requiring the specific performance of the contract. Where A agrees to sell B his land, and then A refuses to convey, inasmuch as B cannot purchase the same land with any damages he might recover from A, the court will order A to convey to B. If A refuses to obey, the chancellor may commit him to jail until he does obey.97

219. Cancellation and rectification.-Courts exercising chancery jurisdiction possess the peculiar power of ordering the cancellation of instruments upon a proper showing. Similarly, if a contract fails to include all of the terms which the parties intended, chancellors may rectify the mistake by inserting the

96 United States v. Behan, 110 U. S. 338.

97 See subject, EQUITY.

omissions, or in the case of accidental insertion, by striking out the portions not intended by the parties.

BIBLIOGRAPHY.

Many treatises have been prepared on the law of contracts. The best known English author is Sir William Anson, and his work has passed through many editions, of which Huffcut's second American edition is the most valuable to the American student of law. Other English writers on this subject are Chitty, Addison, Pollock, and Leake. The latter has recently given to the profession an exhaustive and voluminous volume. The American writers on the law of contracts include Story, Parsons, Benjamin, and Bishop. Page offers a three-volume work which is exhaustive. Harriman on Contracts is recommended, with the suggestion that care must be taken in not confusing the author's personal terminology.

Particular phases of this subject have been treated by Fry on Specific Performance, Browne on Statute of Frauds, and Bloom on Building Contracts. Costigan's Performance of Contracts furnishes an excellent summary of the rules of conditions.

Legal periodicals, especially the law reviews of the various schools, furnish excellent discussions of all the phases of the law of contracts. By referring to a legal periodical index, these numerous articles may be readily located.

QUIZ QUESTIONS

CONTRACTS

(The numbers refer to the numbered sections in the text.)

1. If A agrees to pay B $25 per week and B agrees to act as his private secretary for a year, state the kind of obligation which has been created.

2. Give three definitions of a contract.

3. A agrees to sell B his house for $1,000. B agrees to buy the house for that sum. Pick out the essential things that make this a contract.

4. What other terms are used to indicate a contract? 5. Give the general classification of contracts. Explain what is meant by a specialty; by a simple contract.

6. (a) What kind of contract is that in question 3: Express, implied in fact, or a quasi-contract?

(b) Give an example of an implied in fact contract.

(c) If by reason of a mistake in adding a bill for groceries you pay A two dollars too much, would your right to recover for those two dollars be based on an express, implied in fact, or quasi-contract?

7. When is a contract executed; when executory?

8. A offers a reward of ten dollars for the return of his dog. B finds the dog and returns it to A. Is this a bilateral or a unilateral contract?

9. Define commutative contract.

10. Explain the difference between the terms void, voidable,

and unenforcible.

11. Trace the history of contract.

12. What are the names of the forms of action brought in the enforcement of contract rights?

13. (a) A invites B to take dinner with him and B accepts. Is this an agreement which may become a contract?

(b) Explain the term agreement used in reference to the formation of a contract.

14. What may be said of the nature of agreement? What is necessary to constitute an agreement?

15. (a) Name the characteristics of an offer.

(b) Is this a good offer, "My kingdom for a horse!”?
(c) Is this an offer capable of acceptance, "I offer you
my watch for purchase"?

16. (a) On Wednesday, A offered to sell B his book of Anson on Contracts for one dollar. B told A, “I shall tell you later if I will accept." After three weeks, B met A and said that he accepted his offer. Was a contract created?

(b) On Wednesday, B offered to sell A his book of Cooley on Torts for two dollars. A told B to give him until Thursday to decide. B said, "All right.” That same night, without A's knowledge, B sold the book to C. The next morning B telephoned to A and informed him that he had withdrawn his offer. But A, who had decided to take the book, told B so as soon as B finished speaking to A on the telephone. Did B have the right to withdraw the offer? Give reasons for your answer.

17. What is an option?!

18. In what ways do offers terminate?

19. What effect has death of the offerer on his offer?

20. Give a case where acceptance is not in the terms of the offer.

21. (a) A offered B a watch for ten dollars. After a year B accepted the offer, but A had meanwhile sold it to C. Is this a termination or a revocation of an offer? (b) B offered to sell A a suit case for a dollar. Before A accepted, B sold it to D and then told A he withdrew the offer. Is this a termination or a revocation of an offer?

22. Give an example of a continuing offer.

23. What are the differences between a counter offer, an inquiry, and a quotation?

24. B bid for a clock which the auctioneer was holding up for sale. The auctioneer said, "The clock is yours," but