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arise as to whether a check or draft or note is good, and whether this payment satisfies the contract; a check may be good if cashed to-day, bad if presented to-morrow after the bank has failed. When a note is given in payment, there may be a question of fact whether the contract was discharged by the payment of the note, or whether the party accepted it as a new obligation or contract whose performance by payment would then discharge the original contract. A check bad at the time issued will not discharge the man who drew the check. It may be worth while to accept it as evidence of the debt even if there is some suspicion that it is not good, provided nothing better can be secured at the time. Tender. In some cases one of the parties refuses to accept the money payment offered, or he obstructs the performance by the other party of his contract obligations. The second party is thus forced to make a “tender ’’ of the money or of his services, or of goods, or whatever the contract calls for. Tender may be defined as attempted performance. Tender must observe exactly the terms of the contract as to time, place, and mode of payment. Money tender must be in legal tender, and change cannot be insisted upon, nor a receipt demanded ; the tender must be unconditional. Effect of Tender. A tender of goods, of services, of labor and materials, if refused, relieves the party making it of further obligations, and suffices either to allow him to prosecute or to defend the suit, as the case may be; evidence of the tender is of course essential. The tender of money does not release a debt or obligation, but does secure exemption from paying either interest or costs of suit, the various court costs, the latter being often a large item in a long contested suit, which is true also of interest. The lawyer's charges are not a part of the cost of suit; each party pays his own lawyer. Reasonable Time for Performance. As to the performance of a contract other than by money payment, a reasonable time will be allowed unless the time is specified, and even then, unless time is of the essence of the contract, rigid requirements may not be enforced. In a later chapter special attention will be given to the question of liquidated damages, or penalty, for non-performance as to time. Breach of Contract. A breach of contract may be either positive or negative, that is by repudiation or by failure. The repudiation or renunciation must be unequivocal and absolute, and must be acted upon by the other party, in which case the breach is complete and releases the innocent party from further performance. The repudiation must affect the entire performance, or the essential features of the contract. Any positive act which renders performance impossible by the other party to the contract has the general character of repudiation.
Failure from Negligence. The breach may be, however, in the nature of a failure, the result of negligence or incompetence. The case here is less simple; sometimes the effect is to release the innocent party; sometimes it simply gives him the right to sue for damages after performance of his own part of the agreement. Through the action of law, bankruptcy of one of the parties is equivalent to a breach, and allows the other party to cancel the contract. Impossibility. Impossibility of performance, which may serve as a discharge, may proceed from the act of the other party; if this be intentional, directly or by implication, it is a breach of contract. If the impossibility results without the fault of one party and through some failure or neglect of the second party, not deliberate, not intentional, nevertheless it will act as a discharge. Similarly, if impossible of lawful performance, whether through later legislation or a change in conditions affecting the legal status, as through some judgment of a court affecting the parties or the subject matter, this serves as a discharge. If a thing essential to the performance (the subject matter) has ceased to exist, even though neither party is at fault, an impossibility is again created. When services are definitely personal, the death of the person renders the contract impossible, and frequently sickness or disability will work the same result. Discharge by Agreement. A contract may be discharged by agreement between the parties. Sometimes a provision contemplating this contingency is made a part of the original contract. Sometimes a new contract is made which by its terms supersedes the old. Sometimes the contract is set aside by a direct agreement that it shall cease to bind either. Sometimes a new contract is substituted for the old, or a modification of its terms is agreed upon. New Agreements. Whenever an additional agreement of any sort is entered into, great care should be exercised that such new agreement does not fail for lack of consideration. An agreement to receive less in payment than the contract specified, is void because without consideration; so is an agreement to receive an inferior quality of work or of goods. However, if less money, or a different quality of goods or work has already been accepted, it will not render the contract void. Sometimes provision is made in the contract that the contract shall cease to remain in force if, or whenever, one of the parties shall do a certain specified act, or shall fail to do some act, or on the occurrence of an event, or even at the option of one of the parties, provided that the option be not so sweeping as to make the contract altogether unenforceable against the other. Discharge in Writing. It is evident that it is wise to have a written agreement if a contract in writing is to be discharged; the evidence should be clear. A contract, even under seal, however, has been set aside by a later oral agreement to do so, when the oral agreement has already been executed. Nevertheless, when any contract is to be discharged by a new contract or agreement, the latter ought to be of equal dignity with the original.
The careful engineer will see to it that any supplementary agreements are clear, that proper evidence of them exists, and that such agreements are in all respects valid and legal.
Remedies for Breach. For a breach of contract there may be several remedies. Sometimes the breach operates as a discharge of the innocent party, and this is sufficient. Often money damages to the party injured, are the remedy to be pursued in a suit at law. Sometimes neither of these remedies is sufficient, and a suit in Equity is brought to secure specific performance of the contract. A later chapter will be devoted to Equity.
Law of Torts. The principle underlying the law of torts has been well stated by Judge Cooley:
“The maximum benefit of which government is capable is attained when individual rights are clearly and justly defined by impartial laws, which impose upon no one any greater restraint than is essential for securing equivalent rights to all persons, and which furnish for the rights of all an adequate and equal protection.”
Therefore the rights of one can be secured only by imposing upon others the duty to observe those rights. So it has been said:
“Every right is accompanied by a duty.”
Sometimes the duty is more evident, but sometimes the right. A somewhat similar point of view is that:
“The Common Law is generally said to consist in the established usages of the people, by which their respective rights are recognized and limited, and to which they are expected to conform in their dealings.”
Definition. More specifically a tort may be defined as:
“An act or omission which unlawfully violates a person's right created by law, and for which the appropriate remedy is a Common Law action for damages by the injured person.”
The right must not be one conferred directly by the terms of a contract; that is taken care of under the law of contracts.
Crimes and Torts. It is further true that certain violations of the rights of others are classed as crimes. It is a fact that crimes and misdemeanors on the one hand, and torts on the other, are both offenses against the rights of others. There is this distinction, that a tort is an offense against an individual for which the individual should receive redress, while a crime or misdemeanor is an offense which affects the general community and which the public interest demands should be punished.
Classification of Torts. Efforts to systematize and classify torts have been somewhat unsatisfactory. It is sufficient for present purposes to state that while the Common Law does not attempt to right all wrongs, nevertheless it has from time to time recognized certain rights whose violation constitutes a breach of duty of a sort which may be designated a tort, for which a suit of damages may be maintained; and attention will be called to a number of torts of special interest to engineers. Ways in which Torts Occur. There are various ways in which torts may occur. One may take unlawful action in the nature of tort, by: 1. Actually doing something he has no legal right to do, to the prejudice or injury of another. 2. Doing something, not in itself unlawful, wrongfully by such means, at such times, or in such manner that injury results to another. 3. Neglecting to do that which he ought to do, with the result that another suffers injury. Under the first class come trespass, fraud, and others; under the second, under some conditions, nuisance; while negligence clearly comes under the second and third classes.
LIST OF TORTS
An eminent writer has classified as torts the following: fraud; negligence; trespass; violation of right of support; violation of water rights; nuisance; conversion; procuring refusal to contract; procuring breach of contract; infringement of patents, trademarks, and copyrights; escape of dangerous things; damage by animals; slander and libel; slander of title; malicious prosecution; false imprisonment; seduction; assault and battery.
In many of these the engineer has little interest, and only a few will receive further attention here.
Fraud or Deceit. A duty exists not to mislead another to his injury by false and fraudulent representations. The term “deceit * is often used instead of “fraud,” although fraud is a more common expression. Requisites. In order to establish fraud before a court it is requisite that there has been : A wrongful representation of fact; which is material; and with knowledge of its falsity; with the intent that it should be acted upon by the other party; who did act upon it; to his damage; while ignorant of its falsity.