several times is divisible, unless the consideration to be paid is entire.

Breach by Refusal or Denial. Where the party positively refuses to perform, or denies the existence of the contract, an action may be brought at once for a breach of the contract. The other party does not need to do anything further on the contract himself, and, if he does do anything further, cannot recover anything for the extra work, for the plaintiff has no right to aggravate the damages. There must be, however, a positive refusal to perform under any conditions.

Time to Bring Suit. The party has always a right to ignore an intermediate breach and to wait until the time for final performance arrives before bringing suit; but if he does this he takes the risk that some other happening may discharge the contract before that time. If, on the other hand, he waits until the time for performance, he is entitled to all the damages which he has sustained up to that time. In any case professional advice should be secured and followed.

Notes:

1. Where there is a contract for the delivery of goods
or the performance of work by instalments, and
there is a failure to perform one of the parts of
the contract as agreed upon, a party ought to
consult a lawyer as to his rights before making
any statements to the other party about it.
2. It is always a matter for serious consideration
whether a breach of contract justifies a remedy
so costly and uncertain as a suit at law.
Chapter IV, "Law and Equity.")

§ 71. Law Governing Remedy

(See

It has already been explained (§ 40) that a contract is interpreted in reference to the law of the place where it was made, unless the parties state that they intend it to be governed

by some other law; but if they specify some other law merely to evade the law of the place where the contract was made, the local law will govern despite their provision.

In bringing an action on a contract, the method of bringing it, the right to bring it, and the defenses that may be made to it, are all governed by the law of the place where it is brought, and defenses which may be made in some states cannot be used in others. The Statute of Limitations (§ 72) differs in the different states, so that a contract on which an action may not be brought in one state may be sued on in another if the party to be sued is subject to its jurisdiction. Note:

I. The place to bring suit is a matter regarding which it is necessary to seek legal advice.

$ 72. Statute of Limitations

The Statute of Limitations is the law that specifies the time limit within which an action may be brought. For the sake of peace and in order to put some limit to the time in which rights of property, etc., can be upset by lawsuits, laws have been enacted in every state providing that after a certain length of time specified in the law actions may not be brought in the courts. These laws apply to all the various forms of actions, including those on contracts. If the contract is under seal, the law usually gives a longer time in which to bring action on it.

The Statute of Limitations begins to run, not from the date when the obligation was made, but from the date when payment is due. In cases in which demand is necessary before a party is liable, the statute begins to run from the time the demand was actually made. In the case of a checking account in a bank, the time on each check does not begin until demand is actually made or some act of the banker has dispensed with

it. If each of the parties has an account with the other, and if they clearly intended to balance these accounts against each other, the statute begins to run against the balance at the date of the last entry.

A written promise to pay the debt is sufficient to renew the contract and to furnish a new date from which the statute A part payment of principal or interest of the sum due will likewise renew the contract.

runs.

Sometimes the Statute of Limitations provides that, after the time specified, the party shall have no further right of action. This means that the cause of action is dead altogether, and thus cannot be enforced anywhere. If the law of the state where the contract was made has such a statute, the contract cannot be sued on anywhere after that time has passed, because the statute is said to "go to the right of suit"; that is, it ceases to exist.

Usually, however, the Statute of Limitations merely "goes to the remedy"; that is, the cause of action remains, but the law does not allow the courts to enforce it after a certain time, and, if suit is brought after that time, the other party may plead that the law has barred the right of remedy. If, however, the other party does not plead the Statute of Limitations in such a case, the action may be brought, because it was passed only to protect him from the bringing of a suit at a time when he might not be able to get the evidence for his side, and if he is willing to fight the case on its merits he can do so.

Where the Statute of Limitations in the state where the contract was made affects only the remedy, it does not affect the contract; and the question as to whether the action may or may not be brought depends on the law of the state in which it is desired to sue. Therefore, a contract on which an action could not be brought in the state where it was made might be sued on and enforced in some other state where

a longer time is allowed by the Statute of Limitations for the bringing of the action, provided the other party lives there. Note:

I.

It is right and just that if a party sleeps on his rights he should lose his cause of action, and that men should not have to fight stale claims.

REVIEW QUESTIONS

1. To take legal action against a person who has failed to perform his part of a contract, what must the other party show?

2.

What is the rule as to time? What is "reasonable time"? 3. If a tailor was to have a suit finished on the 20th of the month and it was not ready till the 25th, could he hold his customer? How would it be if the customer had told him that he was to sail for Europe on the 21st?

4. If a person had agreed to sell 60 barrels of flour and 10 barrels of apples and only delivered the apples, could he collect the agreed price for the apples? Why? Suppose that the price of flour and apples had advanced at the time of delivery, how would that affect the situation?

5. If a person is working by the month and leaves ten days before the end of his period because he can get a better job, can he collect for the time he worked?

6. How soon is it best to bring suit for a breach of contract? What is to be considered before bringing suit?

7. What law governs the interpretation of a contract? Where may suit be brought? Why?

8. What is the Statute of Limitations and on what policy is it founded? Explain fully.

9. In the state in which you live: 3

How soon must a crime be prosecuted?

How soon must action be brought for a personal injury?
How soon must action be brought on an oral contract?
How soon must action be brought on an open account?
How soon must action be brought on a written contract?

The data required will be found in the Revised Statutes of the State.

IO.

II.

How soon must action be brought to recover land?
How soon must action be, brought on a sealed contract?
State two ways of renewing a debt so that the Statute of Limita-
tions will recommence to run.

Give three ways that will prevent the statute from running
against an ordinary debt.

12. Define liquidated damages in relation to a building contract. 13. If, by admitted breach of contract of A, B's business is stopped for a period, can B recover damages for profits estimated or only for profits proved to have been lost?