one of hazard, by which he might have gained. In the absence. of fraud, he is not entitled to any compensation for a deficiency. 13. RAYMOND V. BERNARD, Aug. T. 1815, 12 Johns. N. Y. Rep. 274. The Court in this case held, that if a contract is rescinded in part, it must be in toto. A contract cannot be rescinded in part. 14. MILLER V. SMITH, 1 Mason's U. S Rep. 437. S. P. SULLIVAN And an agreement v. MASS. MUTUAL FIRE INS. Co. 2 Mass. Rep. 326. Held by the Court, Story, J., that on sale and delivery of, goods if an agreement is afterwards made to rescind the contract, to rescind the contract is not rescinded, until the goods are re-delivered. must be complied with by both parties to be effect ual. IX. PERFORMANCE OF.* 1. ATWOOD V. CLARK, May T. 1823, 2 Greenl. Me. Rep. 249. reasonable The contract was for a grate of crockery, which the plaintiff What is a was to take home and re-pack, and 5 per cent. was to be allow- time for the *If through the act of God the contract cannot be performed, the contractor must answer for the breach; Shubruck v. Salmon, 3 Burr. 1637. Unless there be a provision in the contract exonerating him; Atkinson v. Ritchie, 10 East 530; Parsons v. Hodgson. 3 M. & S. 267. But if the contract be not under seal a parol discharge will release the contractor; Ed.. ards v. Weeks, 1 Mod. 262. Where the law casts a duty upon a person, the performance of the act will be excused, if it be rendered impossible by the act of God; but a very different rule prevails where a party enters into a contract and engages to do an act; in the latter case it is considered the party's own folly that he did not provide against contingencies, and if there be no provision in the contract excusing him, an inevitable accident or other contingency will not relieve him; Shubriek v. Salmond, 3 Burr. 1637; Aleyn Rep. 27, cited by Lawrence, J. in & T. Rep. 267. If a freighter covenants to load a cargo and is prevented by the prevalence of the plague, he is liable on his covenant; Parker v. Hodgson, M. & S. 267. Mutual mistake and a subsequent agreement between the parties is a valid excuse for the non fulfilment of a contract; Cox v. Printice, 3 M. & S. 314. And if money be paid under such a mistake it may be recovered back; Dickison v. Bisc, 1 T. R. 285. And no contract can be carried into execution which was made in violation of law, or which bas become illegal Ly some new law; Atkinson v. Ritchie, 10 East 530; Barker v. Hodgson, 3 M. & S. 267. Legal ignorance is no excuse for the non performance of a contract; Bilbie v. Lumley, 2 East 470. But a mistake of fact induced by the opposite party is an excuse; Chatfield v. Paxon, 2 East, 471. perform ance of a contract is a question for the jury And it must be perform ed even ed for the broken ware, and nothing was said as to the time it should be re-packed. Held by the Court, Mellen, C. J., that what is a reasonable time within which an act is to be performed when a contract is silent on the subject is a question of law. The same principle appears to have been decided in Tucker v. Maxwell, 1 Mass. Rep. 143; Johnson v. Read, 9 Mass. Rep. 78. 2. WRIGHT V. WRIGHT, 1 Little's Ky. Rep. 181. Held by the Court, that where a workman agrees to perform a specific piece of work for a sum of money, but the parties where the agree to certain alterations, the workman is bound by the conaltered so tract, and must perform it so far as it can be traced. contract is far as it can be pursued. Whether tions in a 3. CUNNINGHAM, ET, AL. V. MORRELL, May. T. 1813; 10 Johns. The plaintiff by agreement was to complete a certain peice of road, on or before the 20th of October, 1810, and Morrel cov contract are enanted to pay him for completing the whole of the work, dependent $6,000, to be paid as the work progressed, and the question was, whether C. could maintain an action for the whole consideration money without proving performance. or indepen dent de pend on the order of time in which the ་ transaction their per formance. Per Cur. Kent, C. J. As the road was to be completed on intent of the or before the 20th of October, 1810, and as the defendant requires was to pay therefor the sum of $3,000, to be paid on, or before that day, in instalments as the work progressed, if the plaintiffs will go for the whole consideration money, they are bound to aver and show a performance of the whole work, and if they go for a rateable part of the money, they are bound to show a a rateable performance. (Overruling the cases of Seers v. Fowler, and Havens v. Bush, 2 Johns. Rep. 272. and 387.) The case of Terry v. Duntz, 2 Hen. Bl. 389, was in our opinion carried too far. In that case the plaintiff agreed to finish a building by a certain day, to be paid for by instalments as the work progressed, the last instalment when the building should be completed. The Court held the covenants independent. This we think was contrary to the cases. It was suficient for the plaintiff to have shown the advance of the building as stipulated, to have entitled him to the instalment then to be paid; but to have credited hi nself to the last instalmeat, he was bound to aver and show a completion of the contract. The dependence or independence of covenants depends upon the good sense and meaning of the contract. 4. CROCKER V. WHITNEY, Oct. T. 18:3, 10 Mass. Fep. 316. Assumpsit on a promise to the plaintiff to 'pay him the amount A promiso of a note made by one Head, if Head should have so much on by the su board a ship from the East Indies to Nantucket, when she should pay the cre return to the latter place. ditor of a seamาก A sum "if there should be so much from is not a nu Verdict for plaintiff. Motion in arrest on the ground of want certain of consideration, and because the promise was conditional. Per Cur. Jackson, J. The general principle has long been dem settled, that such assignment with notice to the defendant im- the ship," poses upon him an equitable and moral of obligation to pay the dam pac money to the assignee. And although such an obligation is tum. not sufficient to support an implied assumpsit, so as to enable the assignee to maintain an action in his own name, yet it is a good consideration for an express prou ise to that effect. It is no objection to such an assignment that it is for an unliquidated balance of account. If the defendant promises to pay what shall appear to be due from lim he is liable for the amount when ascertained. Nor does it make any difference, that if instead of a debt now due, the ass gament is of money which is expected to become due. 5. M'MILLAN, ET AL. V. VANDERLIP, Jan. 1815, 12 Johns. Rep. 165. S. P. READ V. MOORE, 19 Johns. Rep. 337; GRAY v. GARDNER, 17 Mass. Rep. 188. for work Plaintiff agreed to work one year for the defendants, and to spin yarn at 3 cents per run. He worked 12 or 13 weeks and Fulfilment of the speci left the service, and brought this action for the service rendered. fed time is Per Cur. Spencer, J. The question is whether the contract a condition precedent of the defendant in error, was an entire contract operating as a to recover condition precedent, and as such necessary to be performed be- done by the fore the plaintiffs in error were liable. The old cases proceel- piece. ed on very nice and subtle distinctions, and the good sense of modern times has exploded these subtle notions. Contracts are now expounded according to the real intention of the parties. The VOL. III. 52 Not where a note was ment. contract here is entire, and must be performed as a condition precedent before the action can be sustained for the price of the labour. 6. THORP V. WHITE, ET AL. Jan. T. 1816, 13 Johns. N. Y. Rep. p. 53, Defendants agreed to pay the plaintiff wages for one year's given in pay service in their factory and to settle with him every three months. A settlement took place between them at the expiration of the first three months, and defendants gave their note in payment and the plaintiff left their service. Verdict for plaintiff. Motion for a new trial. Per Cur. The original contract between the parties was an entire contract, and if there had been no subsequent modification the plaintiff could not have recovered upon it until the expiration of the year, but giving the note in question was pro tanto a change or modification of the contract, and precludes them from setting up the original agreement against their note. Motion denied. As where a the condi tion is pre the 7. WILLIAMS V. THE BANK OF THE UNITED STATES, 2 Peter's Per Cur. Washington, J. If a party to a contract who is enparty bound titled to the benefit of a condition, upon the performance of which to perform his responsibility is to arise, dispense with, or by any act of his own prevent the performance, the opposite party is excused vented by from proving a strict compliance with the condition. As for inparty's acts stance, if the holder of a bill or promissory note, in order to entitle himself to call upon the drawer or indorser, must give notice of its dishonour to the party whom he means to oharge, but if he be absent from the state, if he abscond, or has no place of residence which reasonable diligence can discover, the law dispenses with the necessity of giving regular notice. 8. SMITH V. LOOMIS, June T. 1828, 7 Conn. Rep. 110. S. P. Rix V. STRONG, 1 Root's Rep. 55; NICHOLS V. WHITING, 1 Root, 443; WILT, ET AL. V. OGDEN, 13 Johns. N. Y. Rep. 56; BARNES V. GRAHAM, 4 Cowen, 452. Assumpsit for the non-delivery of a quantity of brick accordfic articles ing to contract. Plea, tender of the brick at the defendant's yard according to contract, and that the plaintiff was not there On a con tract to de liver speci at a certain time and to receive them, where the brick now remain ready to be deliv- place, a rea ered. diness to deliver at the time and Held by the Court, that the plea of tender was not sufficient, place is not it should have been averred that the brick was set apart and de- a perform signated, so as to have enabled the party to distinguish them contract; from others. ance of the they ought to be set a creditor to Peters, J. observing, that though he had found much confu- part and de sion and contradiction in the books, the practice of the state enable the signated to had established these propositions. 1. That a debt payable in distinguish specific articles, may be discharged by a tender of the articles them from at the proper time and place. 2. That the articles must be set others. apart and designated, so as to enable the creditor to distinguish them from others. 3. That the property so tendered, vests in the creditor, and is at his risk. 4. That a tender may be made in the absence of the creditor. Vide Robbins v. Luce, 4 Mass. Rep. 474, contra. 9. WILLIAMS V. BANK OF THE U. S. Jan. T. 1829. Supreme C. may be Per Cur. Washington, J. If a party to a contract, who A condition is entitled to the benefit of a condition, upon the performance of recedent which his responsibility is to arise, dispense with, or by any act waived. of his own, prevent the performance, the opposite party is excused from proving a strict compliance with the condition. Thus if a precedent act is to be performed at a certain time or place, and a strict performance of it is prevented by the absence of the party, who has a right to claim it, the law will not permit him to set up the non performance of the condition, as a bar to the responsibility which his part of the contract had imposed upon him. 10. JOHNSON V. JOHNSON, Sept. T. 1814, 11 Mass. Rep. 359. 3. P. DAY V. LEAL, 14 Johns. N. Y. Rep. 401; JACKSON V. SHAFFER, 11 Johns. Rep. 513; BURDOCK V. GREEN, 15 Johns. Rep. 247; BANGOREE V. HOVEY, 5 Mass. R. 11; THATCHER, ET AL. V. DINSMORE, 5 Mass. R. 299, MANLY V. M'GEE, 6 Mass. Rep. 143. ance of an Per Cur. Parker, C. J. It is clear that a subsisting simple The accept contract is not discharged or extinguished by the acceptance of other or another simple contract given by the same party, for the same rity does higher secu |