not entitled to the money until he had performed his part of the contract and found a purchaser for the whole farm. Weber v. Clark, 24 Minn. 354.

This rule does not apply to contracts in which the promises are independent of each other. Here a breach by one does not discharge the other.

The covenant in a lease provided that Tracy, the lessee, might have the refusal of the premises at the expiration of the lease for three years longer. When the lease expired the Albany Exchange Company, the landlord, refused to renew it at the same rate, but asked $200 per year more. Tracy was somewhat in arrears of rent at the expiration of the first lease. Held, that the payment of the rent was not a condition precedent to the right of Tracy to a renewal of the lease, the covenant to renew and the covenant to pay rent being independent promises. Tracy could bring his action for breach of the contract to renew, although he was guilty of default in the payment of his rent. - Tracy v. Albany Exchange Co., 7 N. Y. 472.

Breach by Failure to Perform Entire and Divisible Contracts. It is clear that when one party wholly fails in the act that was the entire consideration for the second party's promise, and that must be done before the second party can be required to perform his part, the second party will be excused. But certain cases come up in which one party has done part of what he promised or a part of the contract has been carried out, and we have to consider whether or not the whole contract has therefore failed. In other words, is it an entire or a divisible contract? A common illustration of the cases under which this question arises is an agreement to deliver and pay for goods in installments at different times.

Myer sold to Wheeler ten carloads of barley, like sample, to be delivered from time to time on the railroad tracks at Calmar, Iowa, and Wheeler was to pay seventy cents per bushel for each carload when delivered. After the first car was delivered Wheeler refused to allow more than sixty-five cents, saying that the barley was not equal to sample, but urged Myer to ship balance. Myer refused. Held, that the contract was divisible, and that the refusal to pay for the first carload did not entitle Myer to rescind and refuse to deliver the other carloads; that Myer could recover the actual value of the car delivered, and Wheeler could recover damages for the failure to deliver the other nine cars. Myer v. Wheeler, 65 Iowa 390.

But the courts in this country generally seem to hold the contrary view, and make the test the real intent of the parties. If it was intended to be all one contract, the courts do not make it divisible because it is to be executed or carried out at stated periods.

Norrington made a contract of sale to Wright of 5000 tons of iron rails for shipment from a European port at the rate of about 1000 tons per month, beginning in February, the whole contract to be shipped before August. Norrington shipped only 400 tons in February and 885 tons in March. As soon as Wright learned of the failure of Norrington to ship as agreed, he refused to accept and pay for what was shipped, and sought to rescind the whole contract for the failure to ship 1000 tons per month. In this case the contract was held to be entire and not divisible, and Wright had the right to rescind the whole contract. Norrington v. Wright, 115 U.S. 188.

QUESTIONS

1. How may a contract be discharged by agreement? Give an example. 2. How may a waiver be effected?

3.

When is a contract said to be terminated by performance?

4. Give an example of a contract substantially performed.

5. When a contract calls for the payment of money, does the ac

ceptance of a check discharge the contract? Explain.

6. What rules of law are applied to "performance by one party satisfactory to the other party?"

7. What is legal tender?

8. (a) What constitutes a good tender in the payment of a debt? (b) What is the effect of a good tender?

9. How does impossibility of performance affect a contract?

10. Give an example of a contract where performance is impossible. II. How should the promisor protect himself against contingencies which may arise?

12. How does death of the promisor affect a contract involving personal services?

13. When will a contract be discharged by operation of law?

14. Under what conditions will the alteration of a written instrument discharge the contract?

15. When is a contract said to be discharged by breach?

16. In what three ways may a contract be broken?

17. What right has the injured party when the other party to the contract renounces his liability?

18. What happens if one party refuses to continue with his part of the contract?

19. How may a contract be broken by making performance impossible?

20. How may a breach result from failure to perform?

21. When is a contract said to be entire or indivisible? When divisible?

10. DAMAGES

Nature and Extent. As we have already learned, the party who is guilty of a breach in the performance of his part of the

contract may be compelled by the courts to make good the loss incurred by the other party. If the contract be discharged by the breach, the party not in default is released from further performance. He may also recover a pro rata amount upon the part performed if he has done anything under the contract. In certain cases there is also provided the extraordinary relief of an injunction or a specific performance.

If the action brought by the party not in default is for money damages, the amount allowed will be the loss or injury caused as the natural result of the breach or that would ordinarily be within the contemplation of the parties. The object is to compensate the party injured and not to punish the party in default.

Banta contracted to construct a refrigerator for Beeman, who was engaged in preparing poultry for market, and with a knowledge that he intended to make use of it at once for freezing and keeping chickens for the May market, expressly warranted that the freezer would keep them in perfect condition. This it failed to do, and as a consequence a large number of chickens spoiled. It was held that Beeman, in an action on the warranty, could recover as damages the difference in the value of the refrigerator as constructed and its value as it would have been if made according to contract, and that he could also recover the market value of the chickens lost, less the cost of getting them to market and selling them.

Specific Performance and Injunction. The special relief of specific performance and injunction is granted only when money damages do not constitute an adequate remedy, as in a contract calling for the conveyance of land. The particular place could not be duplicated elsewhere, and it might have a special value to the purchaser for which money would but poorly compensate him. Specific performance would therefore be decreed at the instance of the purchaser compelling the vendor to convey, but it would not be decreed against the purchaser to compel him to accept the property because there would be an adequate remedy at law in the way of damages, as the owner could sell to some one else, and the difference between what the purchaser had agreed to pay and what he could get for the land after the breach would be the amount of his damages.

So also the remedy by injunction is exercised only in special cases in which damages would not afford adequate relief to the injured party. An injunction is an order from a court restraining

one from doing a certain thing, the doing of which would cause injury to some one else.

Douglas contracted with Vale for the purchase of a tract of land, near a rapid stream of water, on which to erect a factory. When the time came to deliver the deed to the property Vale refused delivery on the ground that the neighbors in the vicinity objected to a factory being erected on this particular site. As this contract calls for the conveyance of land, Douglas has the special relief of specific performance. Vale will have to deliver the deed according to the terms of the contract.

Cort, a theatrical manager, sought to restrain the Lassards, who were acrobats, from performing at a rival theater in the same place. The Lassards had agreed to perform for Cort exclusively for six weeks, and Cort alleged that he had prepared for them and advertised them and that he would lose large profits, as they were unique attractions. Held, that when a contract stipulates for special, unique, or extraordinary personal services, involving special merit, skill, or knowledge, so that in case of default the same services could not be easily obtained elsewhere nor be compensated for by an action at law, a court of equity will be warranted in applying its preventive remedy of injunction.

- Cort v. Lassard, 18 Oregon 221.

Damages Allowed. - Damages are allowed only for actual loss sustained. The amount of damage is estimated by the judge or jury after hearing the case. The party damaged must show by a preponderance of evidence that he has suffered a loss in dollars and cents as a result of failure on the part of the other party to the contract. The damages must be shown to be a direct or natural result of the breach of contract. No damage as an indirect result of a breach of contract will be allowed.

Evans purchased a machine, for use in his factory, from the Bedford Manufacturing Company. The machine was not delivered and Evans brought suit for damages, claiming that he had lost a great amount of business by not having the machine. He could collect no damage resulting indirectly from the non-delivery of the machine. The only damage he could collect would be the difference between the price he agreed to pay for the machine and the price he would have to pay for one elsewhere.

In order to avoid the necessity of proving in court the amount of damages suffered the parties sometimes provide in the contract that in case of breach damages shall be paid at a specified rate or lump sum. Damages so fixed in advance are called liquidated damages. The amount fixed must be reasonably near the actual loss of the injured party. If it is so large as to amount to a penalty the stipulation will not be enforced, as courts seek to recompense the injured party and not to punish the guilty.

Duties of Injured Party. When a contract is broken the party damaged must do his part to reduce the damages as much as possible.

Harcourt was a business tenant in a building in which a water pipe broke and damaged his stock. Feeling that the landlord was responsible for the loss, he did not put forth any effort to move or protect his goods. Under the circumstances Harcourt could not collect damages which resulted from a neglect of duty.

QUESTIONS

1. What are damages? How are damages recovered?

2. What determines the amount of damage allowed?

3. What is specific performance?

4. When will the special relief of specific performance be granted? Give an example.

5. What is an injunction?

6. Is injunction a remedy for a breach of contract? Explain.

7. Define and explain liquidated damages.

8. What are the duties of the injured party as to decreasing the amount of damages?

II. DISCHARGE OF RIGHT OF ACTION

As the breach of a contract gives rise to a right of action for the damages suffered, we have to determine how this right may be discharged, and we find there are three means by which it may be effected, namely, by mutual agreement, by the judgment of a court, and by the Statute of Limitations.

By Mutual Agreement. The parties may discharge the right of action by mutual agreement if a valuable consideration be given as a payment in satisfaction of the damages, or if the agreement is made by an instrument under seal.

Spaulding agreed in writing to pay Hale six sevenths of any loss he might be subjected to as the indorser of a certain note. Thereafter Hale executed, under seal, a receipt "in full satisfaction of Spaulding's liability on the document." This discharged the right of action on the original agreement. - Hale v. Spaulding, 145 Mass. 482.

By Judgment. The party may prosecute the right of action in the courts and obtain a judgment, the right of action. being then merged in the judgment. A judgment is the final determination by a court of the rights of the parties in an action. By Statute of Limitations. If the right of action is not