was a case where the defendant had refused to be bound by his contract for a future marriage with the plaintiff, before the day set for the celebration of the nuptial vows; and it was held that the refusal was such a breach of the contract that suit could be maintained before the day so set, and full damages recovered.

3

The principles announced in the language quoted has been recognized in other courts, either in cases involving them, or in dicta of the judges. Thus where the plaintiff employed one to go as a courier for him from June 1st, and May 22nd., previous notice of a renunciation having been given by the employe, it was held that an action brought for a breach of the engagement previous to June 1st was was properly brought.

A few cases occupy a middle ground. Thus in an Iowa case it was held that "if before the time of performing the contract arrives the promisor expressly renounces the contract, the promisee may treat this as a breach of said contract, and may at opce maintain an action in respect thereof."5 In a subsequent case this language is explained by saying that such renunciation, prior to the time of performance, is not a technical breach, but that the party may so treat it and bring his action at once for the injury.

6

ing. It is very broad, so far as a refusal, publicly announced, to be bound by a promissory note or acceptance payable in the future may effect the character of such paper, in principle, no doubt the promisee or holder may suffer a damage by such refusal; for it would tend to destroy the commercial value of the paper. But an action for damages in such an instance would be for special damages, and not the face of the note or acceptance.

A refusal to be bound by such a contract, or to perform it, in the future cannot in any way damage the plaintiff to the full extent of the contract. The defendant is not bound to perform until the time of performance, as agreed upon, has arrived. Previous to that time he cannot call upon the defendant for a fulfillment of his engagement, and the latter is under no obligation to the former. By such refusal he has invaded no right of the plaintiff. There is no ground to base a recovery upon, for no injury has been suffered; and an actual injury and not an anticipated one is the ground of a legal recovery. Until by a repudiation of the contract which produces the effect of non-performance, or prevents him from entering upon or completing performance on his part, at the time and in the manner in which he is entitled to perform it or to have it performed, the plaintiff's

3 Heard v. Bowers, 23 Pick. 455, 460 (dicta); Bowdell v. Parsons, 10 East 359 (dicta); Planche v. Colburn, 8 Bing 14; Elderton v. Emmens, 4 C. B. 479; s. c. 6 Id. 160; 4 H. L. Cas. 624, 648; Ripley v. McClure, 13 C. B. (N. S.)825; Dugan v. Anderson, 36 Md. 567; s. c. 11 Am. Rep. 509; Clossman v. Lacoste, 28 Eng. L. & Eq. 140; Burtis v. Thompson, 42 N. Y. 246; s. c. 1 Am. Rep. 516; Danube & Black Sea Co. v. Xenos, 13 C. B. (N. S.) 825 (dicta); Holloway v. Griffith, 32 Iowa 409; s. c. 7 Am. Rep. 208.

4 Hochster v. De la Tour, 2 E. & B. 678 (1853); recognized in Avery v. Bowden, 5 E. & B. 714; s. c. 6 Id. 952; Wilkinson v. Verity, L. R. 6 C. P. 206; and Frost v. Knight, supra.

5 Crabtree v. Menersmith, 19 Iowa 179; see Frost v. Knight, supra.

6 Holloway v. Griflith, 32 Iowa 409; s. c. 7 Am, Rep. 208. "The rule is founded upon correct principles of Justice."

was an action brought on an agreement to convey certain real estate within a given time, and before the time had arrived the defendant refused to be bound by the agreement. The court ruled that an action could not be maintained on the agreement and refusal, previous to the time named therein for its execution. If the debtor convey all his property to defraud his creditor, this does not entitle the latter to bring a suit upon the indebtedness before it is due in order to set aside such illegal conveyance; and even though it is alleged and proven that there was a conspiracy to defraud the party complaining."

Second. The second class embrace those cases where the person whose duty it is to

7 Daniels v. Newton, 114 Mass. 530; s. c. 19 Am. Rep. 384.

8 Evans v. Thornburg, 77 Ind. 106; Collins v. Nelson

81 Ind. 75.

9 Adler v. Fenton, 24 How. 407.

perform has, by his own action, put it beyond his power to complete a performance. Such is the case where the defendant has promised to marry the plaintiff by a time certain, and before that time marries another. In such an instance the plaintiff has an immediate right of action.10 Another instance is where the defendant has agreed to convey an estate at a future time, and before the time named conveys it to another.11 Instances. Days of Grace. By law all negotiable paper is entitled to three days of grace. Consequently where an

action was brought upon such paper on the last day of grace, it was decided that the action was prematurely brought, and could not be maintained.12 These decisions are put upon the ground that the promisor or acceptor may pay after demand and refusal, and he has the whole day to make the payment if he take the trouble to seek the holder. This has been said to be an "anomalous reason," and another reason assigned: "a better one would be, that as there are no fractions of a day but such as are made by statute, or the custom of merchants, the impetration of a writ is an act which covers the whole day.' The same is true when there is no days of grace, and an action is commenced on the last day of maturity, even after demand.14

13

On the other hand there are a large number of cases in which it is held that suit may be brought immediately after demand and refusal, though it be on the last day of grace;15

10 Lovelock v. Franklyn, 8 Q. B. 371 (dicta); Short v. Stone, 8 Q. B. 358 (dicta).

11 Heard v. Bowers, 23 Pick 455; Ford v. Filey, 6 B. & C. 325; Lovelack v. Franklyn, 8 Q. B. 371; Co. Litt. 2216; 5 Vin. Abr. 224, condition B.; 1 Rol. Abr. 248.

12 Benson v. Adams, 69 Ind. 353; s. c. 35 Am. R. 220; Collins v. Montenry, 3 Ill. App. 182; McFarland v. Pico, 8 Cal. 626; Wilcombe v. Dodge, 3 Cal. 260; Osburn v. Moncure, 3 Wend. 170; Coleman v. Carpenter, 9 Barr. (Pa.), 179; Bell v. Sackett, 38 Cal. 407; Davis v. Eppinger, 18 Cal, 378; Smith v. Ayesworth, 40 Barb. 104; Walter v. Kirk, 14 Ill. 55; Richardson v. Ford, 14 Ill. 332; Oothout v. Ballard, 41 Barb. 33; Etheridge v. Ladd, 44 Barb. 69; Costrique v. Bernabo, 6 Q. B. 498; Hogan v. Cayler, 8 Cow. 203; Wiggle v. Thomason, 11 S. & M. 452; Beavan v. Eldridge, 2 Miler 353; Watkins v. Willis, 58 Tex. 521; Continental Bank v. Townsend, 87 N. Y. 8.

but not against the indorser before service of notice, if the latter and indorsee live in the same town.16 No days of grace are allowable on mere instalments of interest; 17 but in case of an insurance premium note, when negotiable, grace is allowed. 18 Where no demand was made, and the officer served the writ on the last day of grace at 6 p. m. and made return at 6:15 p. m., it was held that the action was begun prematurely. 19 It would have been otherwise in that State if a demand had been previously made. If demand is made at an unusually early hour of the day, a refusal to then pay will not authorize the bringing of the suit. In the case cited below the demand was made at eight in the morning." 20 In case an action is brought on a note before its maturity, the court may instruct the jury to find for the defendant.21

Against an Indorser.-In case of non-payment of a note, or non-acceptance of a bill, the indorser is entitled to notice of it as a matter of right. Whether or not suit may be brought before time for the notice to reach the person to whom it has been directed, or wait until time enough for that purpose has elapsed, has been differently decided. By a number of courts it has been held that suit cannot be brought until a reasonable time for the notice to reach its destination has elapsed;22 other courts hold that the right of action against the endorser is complete as

City Bank v. Cutter, 3 Pick. 414; Whitwell v. Brigham, 19 Pick. 117; Stapler v. Franklin Bank, 1 Met. 43; Gilbert v. Dennis, 3 Met. 495; Flint v. Rogers 3 Shep. (Me.) 67; Dennie v. Walker, 7 N. H. 201; Wilson v. Williman, 1 Nott, & McC. 440; McKenzie v. Durant, 9 Rich. (S. C.) 61; Ammidon v. Woodman, 31 Me. 580; Coleman v. Ewing, 4 Humph. 241; Veazie Bank v. Winn, 40 Me. 62; Crenshaw v. M'Kierman, Minor, 295.

16 New England Bank v. Lewis, 2 Pick. 125. See same case on other points, 8 Pick. 113. Nor against the makers before demand made. Estes v. Tower, 102 Mass. 65, s. c. 3 Am. Rep. 439.

17 Macloon v. Smith, 49 Wis 200.

18 Jarman v. St. Louis Mut. Life Ins. Co., 1 Flip. C. C. 548.

19 Estes v. Tower, 102 Mass. 65; s. c. 3 Am. Rep. 439, distinguishing Cutler v. Kimball, 5 Met. 94; Pierce v Cate, 12 Cush. 190.

20 Lunt v. Adams, 5 Shep. 230.

21 Seaton v. Hinneman, 50 Iowa, 395.

22 Whereby it is meant until the endorser has had time to receive the notice by due course of mail. Smith v. Bank of Washington, 5 S. & R. 318; Wiggle v. Thomasson, 11'S. & M. 452; Love v. Nelson, 1 M. & Y. (Tenn.) 237.

soon as the notice is put in due course of transmission.23

Non-acceptance of Bill.-If the drawee fails or refuses to accept a bill, an action accrues against the drawer in favor of the endorser as soon as notice is put in train of transmission, or as soon as a reasonable time for it to reach its destination has elapsed; and the holder is not bound to present it for payment at maturity, nor if he does, is his right of action on the non-acceptance affected thereby. 24

25

Marriage Contracts.-It has already been stated that one who contracts to marry at a future day, and, before that day arrives, refuses to perform the contract at any time, is instantly liable to an action for breach of promise to marry." If it is not considered a breach of the contract, then the plaintiff remains bound, although the defendant has declared he would not be bound. Unlike a refusal to be bound by a contract, performance of which is to be made in the future, in a breach of promise case the plaintiff suffers an immediate injury. In the former the plaintiff is not usually damnified. In the latter the defendant has caused the plaintiff all the distress of wounded feelings that a breach by him at the day would inflict, which is an essential consideration in estimating damages. During the engagement neither can consistently enter into a similar engagement with another person. Each has an implied right to have the relation to the other continued until the contract is finally accomplished by marriage. More especially to the woman it is all-important that the relation shall not be put to an end. Its termination, if publicly known, must necessarily operate to her serious disadvantage. During its continuance others will naturally be de

23 Shed v. Brett, 1 Pick. 401; s. c. 11 Am. Dec. 209; see Greeley v. Thurston, 4 Greenl. 479; s. c. 16 Am. Dec. 285; Dennie v. Walker, 7 N. H. 201; Manchester Bank v. Fellows, 28 N. II. 302; Dickins v. Beal, 10 Pet. 572; New England Bank v. Lewis, 2 Pick. 125. The rendition of a judgment for the defendant for the reason that no notice was given him, does not bar a second action on the same demand commenced after notice given. New England Bank v. Lewis, 8 Pick. 113.

24 Lenox v. Cook, 8 Mass. 460; Ballingalls v. Gloster, 3 East 481; Robinson v. Ames, 20 Johns. 146.

25 Holloway v. Griffith, 32 Iowa 409; s. c 7 Am. Rep. 208. Marrying another, as we have seen, incapacitates the defendant to perform his contract with the plaintiff, and renders him liable at once. Short v. Stone, 8 Q. B. 358.

terred from approaching her with matrimonial intentions; nor could she consistently admit of them. The breaking off of the engagement is very apt to cast a slur upon one who has thus been treated. For these reasons it is deemed that the plaintiff has suffered such an immediate damage that she can maintain a suit as soon as the defendant has declined to be bound by his contract; and to this general statement there are no exceptions, or cases holding otherwise, except the first decision in Frost v. Kight.2

26

27

Contracts. It is only in case of negotiable paper that suit may (in some States) be brought after demand on the last day of grace. In all other cases of contracts the debtor cannot be subjected to an action until after the whole of the day of payment or performance has passed, except in those instances where a repudiation of the contract has been made, or previously stated. Thus where the plaintiff entered into the defendant's employ, agreeing to serve as a clerk until a certain time, and then become a partner; and before that time arrived, the defendant discharged the plaintiff and refused to receive him as a partner, it was held that the plaintiff could maintain his action at once for a breach of the contract, and the objection that the contract was not an entire one, but separable, was overruled.28 Likewise, where A. made a contract with B., by the terms of which B. was to cultivate A.'s farm on shares for one year from a certain date, and, before the end of the year, A. ordered B. off the premises, and refused to allow him to go on under the contract, and let the land to a third person by a written lease for a year, it was decided that B, was entitled to maintain an action at once against A., and to recover as damage the value of the contract.29

Agreements to Support.-Where an agreement to support another for life, or for a certain specified time, is made, and is entirely broken by the person agreeing to furnish the

26 Burtis v. Thompson, 42 N. Y. 246; s. c. 1 Am. Rep. 516; Frost v. Knight, supra.

27 Greeley v. Thurston, 4 Greenl. 479; s. c. 16 Am. Dec. 285; Webb v. Fairmoner, 3 Mees. & W. 473; Coleman v. Ewing, 4 Humph. 241.

28 Dugan v. Anderson, 36 Md. 567; s. c. 11 Am. Rep. 509; Citing Masterton v. Mayor, etc., of Brooklyn, 7 Hill 61 as to indivisibility of contract.

29 Jewett v. Brooks, 134 Mass. 505; see Amos v. Oakley, 131 Mass. 413.

support, the person for whose benefit it was made may bring an action at once and recover damages for the whole value of the contract.30

Lost Bond. The case of Sohier v. Lamb,31 furnishes an illustration of a suit in equity to procure the release of a certain sum of money given to certain persons to protect them against a liability on a lost bond. The bond was lost on or about October 13, 1866. Before it was lost, it had been duly executed and prepared ready to be issued, but, it was claimed, had not been issued. It was for the sum of $5,000, payable in five years from July 16, 1866, with interest at the rate of six per cent., payable semi-annually, according to the tenor of interest coupons attached. The bond was payable to bearer, and consequently negotiable by delivery.

1879.

In 1870 all the bonds actually issued were paid, and the property originally conveyed to trustees as security for the payment of the bonds was by them conveyed back to the corporation which the plaintiff or receiver represented. To obtain this reconveyance from the trustee, the receiver was compelled to place in their hands $6,500, to be held as security for the payment of the lost bond and its coupons. The bill was filed January 4, No one had appeared as holder of the lost bond, or of any of its coupons, and no one who was a party to the suit had any knowledge or information that the bond or any of its coupons was in existence. All the facts were known to the receiver at the time he placed the money in the hands of the trustees. Nine years had elapsed at the time the bill was filed from the time of the deposit of the money with the trustees, and meanwhile the principal of the bond had become due; but in no other respect had the legal status changed. No offer was made by the receiver to give an indemnity bond to the trustees. The court held that the suit was prematurely brought, and that the receiver was not entitled to the money. The court thought that the receiver, without offering security to the trustees, was not entitled to the money until the statute of limitation of actions on contracts, such as the lost bond was, had completely run.

30 Amos v. Oakley, 131 Mass. 417; Lyman v. Lyman, 133 Mass. 414.

31 134 Mass. 275.

Attorney-Fee Note.-According to the general rule, that a suit cannot be maintained before a demand is due, it was held in Illinois that a suit on a note containing an agreement, if the "note is not paid without suit," to pay ten dollars in addition for attorney fees, could not include the attorney fee; for the terms of the note was to pay such fee only in case of suit brought upon the note, and it was therefore not due until after the writ issued, and consequently could not be included in assessment of damages. A separate suit was held necessary in order to recover the fee. The clause containing the agreement to pay the ten dollar attorney fee differed from the usual clause to that effect. In such a case it is usually agreed to pay the fee if the note is not paid when due, or if suit is instituted upon it; 34 and perhaps on this ground the Illinois case is distinguishable from the other cases cited.

33

Fraudulently Obtaining Possession of Note by Payor.-If the payor by force or fraud obtain possession of the note and refuse to return it, this does not entitle the payee to bring suit upon it before the note is due by its terms, such an action must necessarily fail. 35

Condition Precedent.-If there is a condition precedent to happen or to be performed by the complaining party prior to the attaching of a liability, such condition must happen or be performed before suit can be brought. Thus where a contract stipulates that arbitration is to be a condition precedent to a suit on the contract, a suit cannot be maintained, unless the plaintiff shows that he has made all reasonable effort to comply with the condition. 36 So on a contract for building, not performed so as to justify a recovery thereon, there can be no recovery for work and materials unless the owner has first accepted the building. In case, however, of a repudia

37

32 Nickerson v. Babcock, 29 Ill. 497; see Nickerson v. Sheldon, 33 Ill. 372.

33 Woods v. North, 16 Alb. L. J. 116; Stoneman v. Pyle, 35 Ind. 103; s. c. 9 Am. Rep. 637; Hubbard v. Harrison, 38 Ind. 323; Sperry v. Harr, 32 Iowa 184.

34 Johnson v. Crossland, 34 Ind. 334; Seaton v. Seoville, 18 Kan. 433; s. c. 16 Alb. L. J. 148; Gaar v. Louisville Banking Co., 11 Bush 180; s. c. 21 Am. Rep. 209.

35 Ilsley v. Jewett, 2 Met. 168; see Swift v. Crocker, 21 Pick. 241.

36 Perkins v. United States Electric Light Co. 16 Fed. Rep. 513.

37 Bozarth v. Dudley, 15 Vrs. (N. J.) 304; s. c. 43

tion of the contract, the defendant cannot insist upon a performance of the condition precedent. Thus where D procured a conveyance of land to himself, promising that upon re-sale he would divide the profits thereof with A; a re-sale having been made partly for cash and partly for notes, and before the maturity of the notes, A demanded his share of the profits of the transaction, which D refused to pay, denying the agreement, whereupon A brought suit, it was held that D could not, for the first time, then set up the defense that the demand and suit were premature.38

Collateral Security.-It is a universal proposition that remedies upon the primary debt and upon the collateral security may be prosecuted at the same time, even to judgment and execution, though but one satisfaction can be obtained. Suit may first be brought upon the collateral security and judgment rendered thereon, and afterwards suit brought and judgment rendered on the principal, even though one of the defendants in the first judg

Am. Rep. 373; Dermott v. Jones, 2 Wall. 1; see School Trustees v. Bennett, 3 Dutch. 513; Haslack v. Mayers, 2 Dutch. 284. Upon this point there is much confusion in the cases. Thus the English cases hold that when the contract remains open and unperformed though in slight particulars, no recovery can be had either upon it or upon an implied contract. Ellis v. Hamlin, 3 Taunt. 53: Munro v. Butt, 8 El. & Bl. 738; and this rule has been adopted in New York, Smith v. Brady, 17 N. Y. 173. But mere technical, inadvertent or unimportant deviations from the terms of the contract will not alone defeat a recovery. If there has been a substantial compliance with the contract, recovery may be had thereon, a proper allowance or reduction from the contract price being made for deficiencies. Glacins v. Black, 50 N. Y., 145; s. c. 10 Am. Rep. 449; Cutler v. Close, 5 C. & P. 337; Dallman v. King, 4 Bing, N. C. 105: Stadhard [v. Lee, 3 B. & S. 364; see 2 Add. Cont. §§ 864, 865. Where recovery is allowed, in such an instance, upon a quantum meruit one class of cases adopts the view that the recovery should be had in such cases whenever the work and materials are of any value to the owner of the lands to which they have been affixed, and that the measure of damages is the contract price, deducting therefrom so much as the structure is worth less on account of variations from the contract price. Hayward v. Leonard, 7 Pick. 180; s. c. 19 Am. Dec. 268; Smith v. First Congregational Church, 8 Pick. 178; Snow v. Ware, 13 Met. 42; Atkins v. Barnstable, 97 Mass. 428; Fitzgerald v. Allen, 128 Mass. 232. Another class of cases hold, that while a contractor guilty of fraud or having wilfully abandoned the work unfinished, cannot recover in any form of action, he may recover in assumpsit when he has in good faith done the work which though not done according to the contract, has been accepted by the owner (Dermott v. Jones, 2 Wall 1), as stated in the text.

38 Benjamin v. Zell, 100 Pa. St. 33; Parker v. Siple, 76 Ind. 345.

ment is the sole defendant upon the original claim.39

Guarantor.-As soon as his principal's debt is due a surety ordinarily may be sued. In other words, the surety's debt is his principal's debt, and whenever his principal may be sued so may he.40 Not so a guarantor. His liability stands on a very different footing. His obligation is to pay only in case the principal cannot be made to pay by the use of due diligence. There are a class of cases which hold that before the guarantor can be sued, suit must first be brought against the principal, judgment and execution obtained, and a return of nulla bona made by the executive officer.41 On the other hand are many cases, a decided majority, which hold that suit against the principal is unnecessary where it would prove unavailing, or where he is totally insolvent, and the result would be fruitless. 42

Contracts of Servants.-Where the master wrongfully terminates his contract with his servant, before it has expired, he is immediately liable, at least in nominal damages.45 When discharged he may at once bring an action to recover for past services rendered,

. The Corn Exchange Ins. Co. v. Babcock, 57 Barb. 231; s. C., 8 Abb. Pr. (N. S.) 256; Davis v. Anable, 2 Hill, 339; Butler v. Miller, 1 N. Y. 496; Hawks v. Hinchcliff, 17 Barb. 492, 504. For a case where collat eral security for future advances did not prevent suit as soon as money was advanced, although the security was not due until in the future, see Wolff v. McGavock, 29 Wis. 290.

40 Hoey v. Jarman, 39 N. J. L. 523; Geddis v. Hawk, 1 Watts (Pa.), 280; Garey v. Hignutt, 32 Md. 552; Abercrombie v. Knox, 2 Ala. 728; Ranelaugh v. Hayes, 1 Vernon, 189; Redfield v. Haight, 27 Conn. 31; Wilson v. Campbell, 1 Scam. 493; Penny v. Crane Bros. Manf. Co., 80 Ill. 244. No demand is necessary. Carr v. Card, 34 Mo. 513; Mitchell v. Williamson, 6 Md. 210. 41 Craig v. Parkis, 40 N. Y. 181: Maine v. Haight, 14 Barb. 76; Cumpston v. McNair, 1 Wend. 457; French v. Marsh, 29 Wis. 649; Shepherd v. Phears, 35 Tex. 763; Burt v. Horner, 5 Barb. 501; Cady v. Sheldon, 38 Barb. 103; Newell v. Fowler, 23 Barb. 628; Bosman v. Akeley, 30 Mich. 710; s. c., 33 Am. Rep. 447; Dwight v. Williams, 4 McLean, 581. See Peck v. Frink, 10 Iowa, 197; Ely v. Bibb, 4 J. J. Marsh, 72.

42 Brackett v. Rich, 27 Minn. 485; s. c., 23 Am. Rep. 703; Stone v. Rockefellow, 29 Ohio St. 625; Wheeler v. Lewis, 11 Vt. 265; Sylvester, 18 Vt. 32; Bull v. Bliss, 30 Vt. 127; Dana v. Conant, Id. 246; Perkins v. Collin, 11 Conn. 213; Ranson v. Sherwood, 26 Conn. 437; Gillighan v. Boardman, 29 Me. 79; M'Doal v. Yeomans, 8 Watts, 361; McClurg v. Fryer, 15 Pa. St. 293; Marsh v. Day, 18 Pick. 321; Sanford v. Allen, 1 Cush. 473; Camden v. Doremus, 3 How. 515.

43 Ricks v. Yates, 5 Ind. 115; Goodman v. Pocock, 69 E. C. L. R. 574; Howard v. Daly, 61 N. Y. 285; s. C., 19 Am. Rep. 285.