CHAPTER IX. OF THE DISCHARGE OF CONTRACTS. I. CONTRACTS UNDER SEAL can be discharged— 1. Before breach by another instrument under seal only. Illustration. One Hicks took a lease from John West of certain premises, and thereby covenanted to yield up at the expiration of his term all erections and improvements on the demised premises. During the term he erected a greenhouse, which at the end of his term was removed. In an action by the executors of John West against Blakeway, to whom Hicks had assigned the lease, for a breach of the covenant, a letter was put in from John West, written before the greenhouse was erected, giving Hicks leave to remove it at the expiry of the term. It was held that the license in writing was no discharge of the defendant's liability under the covenant in the indenture of lease. (c) 2. After breach. (i) By another instrument under seal. (ii) By accord and satisfaction (see post, p. 28). Provided unliquidated damages only are sought to be recovered. Illustration. Eden let a house to Price, who covenanted to repair. Price assigned to Blake. In an action against Blake by Eden (c) West v. Blakeway, 3 Sc. N. R. 199. But a Court of Equity would grant an injunction to restrain the breach of an agreement, [Lumley v. Wagner, 5 De G. & Sm. 485] so that a written agreement not to enforce a specialty contract would, since the Judicature Act, 1873, be maintainable in a Court of Law. for not repairing, a defence was raised of an agreement with Eden by which the defendant was discharged from his liability. It was held that this would have been no answer to a claim for a sum certain, as under a bond; but that it was a good answer to a claim for damages, which were of an uncertain amount, not depending on the terms of the covenant. (a) II. SIMPLE CONTRACTS can be discharged- (i) By a subsequent parole agreement. (ii) By being merged in a subsequent contract under 2. After breach (i) By a release under seal. (ii) By "accord and satisfaction": that is, where something is given, or done, to or for, the one party by the other party, and agreed to by the former, as satisfying the cause of action. Illustration. Turley took a publichouse, called "The Edinboro' Castle," from Lavery, a wine merchant, and paid him £100 on account of the stock and fixtures. Lavery afterwards supplied him with wine, and brought an action (a) Blake's case, 6 Coke's Rep. 43 b. (b) Goss v. Lord Nugent 5 B. & Ad. 65; Stead v. Dawber, 10 Ad. & E. 65 ; Noble v. Ward, L. R. 2 Ex. 135. for the price of it. Turley set up in answer an agreement with Lavery to surrender the publichouse, and be repaid the £100, and exonerated from all charge for the wine. It was held that this agreement was a good accord and satisfaction. (c) [NOTE. A smaller sum paid, without further consideration, is no satisfaction for a claim for a larger one. But in everything but a money payment, the value of the thing given in satisfaction is not material] (c) Lavery v. Turley, 30 L. J. Ex. 49. CHAPTER X. HOW A CONTRACT IS VITIATED. I. FRAUD. A contract induced by fraud is not void, but is voidable at the option of the party defrauded. He may elect to treat it as void, or not, as he likes. And he must make his election as soon as he discovers the fraud. Illustration. Selway agreed with Fogg to cart away a quantity of rubbish for £15. He afterwards sued Fogg for £20, as the price of the labour done, alleging that Fogg had fraudulently misrepresented the quantity of rubbish to be removed, and thereby induced him to do the job for £15. It was held that he might have repudiated the contract, and sued in an action of deceit (an old form of action now extinct) but as he had elected to sue on the contract, he could only recover the £15. (a) [See also post, Book II. Chap. III. and Book III. Part VI. Chap. II.] II. DURESS. A contract made under improper pressure is void. Illustration. James Bailey, whose son had forged his father's name to a number of promissory notes, and had got them cashed at the bank of Williams, Bros., agreed with the bank to mortgage his property to them to secure the amount of the notes, in consideration of the bank forbearing to prosecute. It was held that he was not a free and voluntary agent, and that the contract was void. (b) (a) Selway v. Fogg, 5 M. & W. 86, III. MISTAKE. A contract based upon a misapprehension of facts by both parties is void; and money paid under a mistake of facts can be recovered back. (c) Illustration. Joseph Willis was tenant for life of an estate, and died on September 24, 1863, insolvent. On October 28, 1863, Cochrane, Joseph's assignee, who was intending to cut and realize the timber on the estate, and Daniel Willis, the tenant in tail, who was anxious to save the timber, both being ignorant of Joseph's death, agreed that Cochrane should have the same right to the timber, as if he had actually cut it on August 15, 1863. Daniel would obviously not have signed such an agreement had he known of Joseph's death; as, on that event happening, he became entitled to, and the assignee lost his claim upon, the timber. It was held that the agreement was founded on a mistake, and without consideration, and therefore void. (d) IV. AN IMMORAL CONSIDERATION avoids a contract; as, where a bond or promissory note is given to a woman in order to induce her to live in a state of concubinage. Illustration. Pearce & Co. were coachbuilders, and sued a prostitute for hire of a brougham. They had supplied it with the knowledge that it would be used by her as part of her display to attract men. The Court held that Pearce & Co. could not recover. (e) V. CONTRACTS OPPOSED TO PUBLIC POLICY ARE VOID. Examples. 1. A contract by a father to abstain from seeing or exercising any control over his children. 2. A contract of maintenance; that is to furnish money to be risked on the event of a law suit by one who has no interest in the litigation. (c) But not when the mistake is one of law. (e) Pearce v. Brooks, L. R. 1 Ex, 213, |