have waived all departures therein from the thing bargained for which are obvious to the senses by ordinary exercise thereof." "The reasonable time mentioned in the foregoing rule commences to run from the time the person receiving the article has reasonable opportunity to observe its defects, unless the opposite party, by fraud or deceit, prevents such person from examining it or induces him not to do so; but such person cannot successfully refer merely to deception practiced upon him at the time of his giving the order or entering into the contract, to excuse failure to observe obvious departures in the thing delivered from that bargained for, at or within a reasonable time after the delivery." "Upon the reception of an article by a person under the circumstances stated in the two foregoing rules, nothing occurring then for which the opposite party is responsible, reasonably preventing him from using, or inducing him not to use, his senses so as to discover obvious departures therein from the thing bargained for, the rule applies that the law requires men, in their dealings with each other, to exercise proper diligence and apply their attention to those particulars which may be supposed to be within the reach of their judgment, and not to close their eyes to means of information which are accessible to them."

A party desiring to rescind after discovering fraud or other ground which gives him a right to do so, must put the other party in statu quo, that is, the position he occupied before making the contract, unless it is not within his power to do so. He must redeliver to the other everything he has received under the contract, or offer to do so. In case the party cannot put the other in statu quo, he may rescind so far as the contract is not executed and hold the other for damages. The rule in regard to returning what has been received is not inflexible, and courts will only require a party to do what is within his power to restore the other to his former position. The Supreme Court in speaking of this class of cases says: "A total rescission of the contract, and return of the money or property received thereunder, and such rescission and offer to make such return, is held necessary except where the contract is severable, so that no injustice would be done, the guilty party by the contract being considered severable and discharged in part by pay

ments made thereon, and subject to rescission as to the balance, or where restoration of the property received by the plaintiff upon the contract was rendered impossible by the wrongful conduct of the defendant. In the latter class of cases it was said that the doctrine of rescission and restoration as a condition precedent to an action at law is based on equitable principles, and to be applied only so far as equity and good conscience require."

A party to a contract may also rescind when there is no ground for rescission. This of course will result in breach of contract. In a few cases courts will compel a specific performance of contracts, and thus practically prevent a rescission, but in the vast majority of cases courts can only give damages for a breach. Under the law, a party to a contract is at liberty to rescind it, making himself liable for the damages resulting from breach. Thus, a person who orders goods may countermand the order before delivery. He cannot thereafter be compelled to accept the goods, but will be liable in damages. When a party wrongfully rescinds an entire contract which he has only partly performed, he can recover no compensation.

Where a party who is entitled to rescind has parted with specific property or money, he may recover it; in case he has made a written contract, such as a note or deed, a court will entertain a suit to cancel the written instrument. A party who has a right to rescind may of course fulfill the contract, and sue for damages, and he may also rescind and hold the other party for damages thus far incurred.

Breach.-A breach of contract may result in several ways. A party may wrongfully repudiate it, he may fail to perform wholly or partly, or he may by his conduct make it impossible for the other party to perform. In the usual case of breach, the party injured can maintain an action for damages against the other. If the contract is entire, damages for the breach of the whole may be recovered; if it is divisible, damages for the part unperformed. In some cases of breach of a severable contract, if it appears that performance of the rest will not be forthcoming, or the nonperformance of a part is equal to a refusal to perform the rest, damages may be recovered as for a breach of the whole. This is a matter, however, which will depend upon the circumstances of each case.

Whenever the conduct of a party to a contract is such that he evinces an intention not to perform, the other may at once treat the contract as rescinded and sue for damages. Thus, a person who has agreed to buy a manufactured article, and who upon an offer to deliver refuses to accept it, can be sued at once for damages for a breach, and the party suing need do nothing further towards performance.

When the time for performance has not arrived, but the contract is repudiated before that time, an action can generally be brought for breach immediately, without waiting for the time for performance to expire. If one who is entitled to take advantage of a breach goes on to perform or accepts performance as though no breach had occured, he will be held to have waived it, and he cannot rescind, although in some cases he may hold the the other for damages.

A breach must be of a substantial part of a contract; a violation of some trivial or technical provision will not entitle a party to consider it as broken.

Whenever a breach has occured, it is the duty of the person who is entitled to claim damages to keep the damages down to as low a figure as possible. Thus, if a lessee vacate a building contrary to the terms of his lease, it is the duty of the lessor to use reasonable diligence to find another tenant and re-rent the premises for the account of the lessee. Whenever a contract has been wrongfully rescinded, the party entitled to damages has no right to continue performance and thus increase the damages. Thus, if a person contract for the delivery of an article to be manufactured, he may repudiate the contract and make himself liable for its breach, but the manufacturer has no right to continue the manufacture and thus increase the damages.

A party who is entitled to take advantage of a breach usually may pursue one of three courses. 1) He may disregard the contract entirely and sue for the reasonable value of the benefit he has conferred on the other. Thus, if a contract of hire for a year at a certain sum is terminated by the fault of the employer, the employe may sue for the reasonable value of his services, which might exceed the agreed compensation or not. Again: a person who has delivered goods under a contract which

has been broken by the vendee before complete delivery, may sue for the reasonable value of the goods delivered, irrespective of the contract price. 2) He may treat the contract as in force and await the period set for performance, holding himself ready to perform in the meantime, and then sue for damages for the breach. This is the usual course in those cases where the damages cannot be ascertained at the time of breach. For instance, if a person who had leased a store for a year at a specified rental should vacate and refuse to pay rent after a few months, the damages could not be ascertained until the end of the year, as the landlord might have been able to rerent the premises before the expiration of the year, and thus cut down the damages. 3) He may sue immediately for breach of contract. This is the usual course where the damages are reasonably certain. For instance, if a contractor agreed to erect a building for a certain price and have it completed within a year, and the other party should repudiate before the construction is begun, the contractor may sue immediately for damages on account of the breach.

Performance.-In order to determine whether there has been a performance of a contract it is first necessary to ascertain what the contract is. There are certain agreements which the law implies in every contract, and these must be complied with, and are as much a part of the contract as though expressly inserted therein by the parties. Thus, where no time for performance is specified, the law presumes a reasonable time. One who undertakes to do certain work impliedly agrees that he has the necessary skill and that he will exercise reasonable care. A substantial performance is necessary in every case. Thus, the fact that in a house built under contract a small part of the lumber used does not come up to specifications, would not justify a rejection, although the contractor might be held liable for damages caused. Thus, it has been decided in Wisconsin where one agreed to build a carriage for another according to model, that a substantial compliance with the contract only was necessary, and that the builder could recover the agreed price if the carriage when built was as good in all respects as the model and conformed to it in size, style

and appearance although it differed therefrom in unimportant particulars.

Entire contracts must be fully performed before there can be a recovery. There are various contingencies which will in some cases excuse performance, such as death, sickness, impossibility, act of God, illegality, etc., which have already been discussed.

Damages. In case of the breach of contract, the question arises as to what is the rule by which the damages are fixed. Damages are a pecuniary reparation which the law compels a wrongdoer to make to a person injured by his wrong. This definition applies not only to damages growing out of breach of contract, but to all cases of breach of duty not arising out of contract. The object of damages is to make indemnity, and the object of rules of law on this subject is to ascertain such indemnity. A party whose legal rights have been violated, although he suffers no appreciable damage, is still entitled to nominal damages for the invasion. Thus, if one walk over another's land, he may be sued for trespass, and if no real damage is done, the law, in order to vindicate the rights of the owner, will assess nominal damages and costs. Nominal damages are usually estimated at six cents.

Compensation may be recovered only for proximate loss and not for that which is remote, that is, the loss must be the natural and probable effect of another's wrong. Loss which ensues directly from another's wrong is always proximate. In cases of breach of contract, the damages are usually limited to such loss as was reasonably to be anticipated as a consequence of the breach, at the time the contract was made. The following rules have been generally adopted by the courts of the United States: 1) Damages which may fairly and reasonably be considered as naturally arising from a breach of contract, according to the usual course of things, are always recoverable; 2) damages which would not arise in the usual course of things from a breach of contract, but which do arise from circumstances peculiar to the special case, are not recoverable unless the special circumstances are known to the person who breaks the contract; 3) that where the special circumstances are known, or have been communicated to the person who breaks the contract, and where the damage complained of flows natur