good faith will not justify recovery on a contract by a plaintiff who has committed a material breach.53

§ 843. Benefit derived by the defendant from the plaintiff's part performance.

An important element in determining whether part performance rendered by the plaintiff makes it unfair to allow the defendant to refuse to go on with the contract, is the benefit or lack of benefit derived by the defendant from the part performance. It has been stated on high authority that the reason for the doctrine compelling the defendant to continue with the contract after part performance "besides the inequality of damages, seems to be, that where a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he had not the whole, he should therefore be permitted to enjoy that part without either payment or doing anything for it." 54

actual case there was not only wilfulness but dishonesty-certainly a material breach. Peterson v. Mayer, 46 Minn. 468, 45 N. W. 245, 13 L. R. A. 72. See infra, § 1022. The Massachusetts court repeated the statement in Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N. E. 42. It is pretty severe doctrine that any conscious deviation from the contract of however slight importance is fatal to recovery upon it, even though there is no express condition. The question must to some extent be one of degree. "Cresswell Co. v. Martindale, 63 Fed. 84, 11 C. C. A. 33.

$4 Parke, B., in Graves v. Legg, 9 Exch. 709. In that case the court held that the failure of the seller of a cargo of wool to declare at the time of shipment the names of the vessels in which the wool was shipped was fatal to recovery, and the court emphasized the fact that no benefit was taken by the defendant under the contract itself. So in Kauffman v. Raeder, 108 Fed. 171, 177, 47 C. C. A. 278, San

born, J., said: "When a contract has been partially executed, and one of the parties has derived substantial benefits or has imposed upon the other material losses through the latter's partial performance of the agreement, then the first party cannot rescind the contract on account of the failure of the second party to complete his performance, but the agreement must stand, the first party must perform his part of it, and his only remedy for the failure of the second party to completely perform is compensation in damages for that breach. German Sav. Inst. v. DeLa Vergne Refrigerating Mach. Co., 70 Fed. 146, 150, 17 C. C. A. 34, 38, 36 U. S. App. 184, 190; 1 Chit. Pl. (16th Am. Ed.) * 333; Barbee v. Willard, 4 McLean, 356, 359, Fed. Cas. No. 969; Hunt v. Silk, 5 East, 449; Hammond v. Buckmaster, 22 Vt. 375; Brown v. Witter, 10 Ohio, 143; Dodsworth v. Iron Works, 13 C. C. A. 552, 557, 66 Fed. 483; Swain v. Seamens, 9 Wall. 254, 272, 19 L. Ed. 554; Beck v. Bridgman, 40 Ark. 382,

Nevertheless though part performance which is beneficial to the defendant is obviously entitled to greater weight than part performance which is not, cases may arise where a detriment incurred by the plaintiff in part performance of his contract will influence the conclusion of the court, although there has been no corresponding benefit received by the defendant.55

In a divisible contract if the part performance consists of one or more complete divisions, the part performance will either have been paid for, or a debt for it will have arisen. Under these circumstances the plaintiff's part performance will inflict no hardship upon him even if the contract is discontinued.56

390; Andrews v. Hensler, 6 Wall. 254, 258, 18 L. Ed. 737; Conner v. Henderson, 15 Mass. 319, 321, 8 Am. Dec. 103; Teter v. Hinders, 19 Ind. 93; Howard v. Hayes, 47 N. Y. Super. Ct. 89, 103; Welsh v. Gossler, Id. 104, 112; Underwood v. Wolf, 131 Ill. 425, 23 N. E. 598, 19 Am. St. Rep. 40; Brown v. Foster, 108 N. Y. 387, 15 N. E. 608; Vanderbilt v. Eagle Iron Works, 25 Wend. 665; Lyon v. Bertram, 20 How. 149, 153-155, 15 L. Ed. 847; Clark v. Steel Works, 3 C. C. A. 600, 53 Fed. 494, 499; Voorhees v. Earl, 2 Hill, 288, 294, 38 Am. Dec. 588; Barnett v. Stanton, 2 Ala. 181; Churchill v. Holton, 38 Minn. 519, 38 N. W. 611; Treadwell v. Reynolds, 39 Conn. 31, 21 Am. & Eng. Enc. Law, 557, note 2. It is only when the parties to the agreement can be placed in statuquo that one may rescind or repudiate the entire contract for the failure of the other to perform it. When one party has received the benefits of substantial performance by the other without paying for them the price agreed on, and he cannot or does not return these benefits, it is manifestly unjust to permit him to retain them without paying or doing as he promised to pay or do on account of his receipt of them.

In order to avoid such an injustice, the party who has substantially performed may enforce specific performance of the covenants of the other party, or may recover damages for their breach without plea or proof of complete performance, while the defendant, on the other hand, may recover by counter-claim or by an independent action the damages which he has sustained from the plaintiff's failure to completely fulfil his covenants."

55 Freeman v. Taylor, 8 Bing. 124; Bettini v. Gye, 1 Q. B. Div. 183. In the latter case, Blackburn, J., said: "The plaintiff, therefore, has, in consequence of this agreement, been deprived of the power of earning anything in London from the first of January to the 30th of March; and though the defendant has, perhaps, not received any benefit from this, so as to preclude him from any longer treating as a condition precedent what had originally been one, we think this at least affords a strong argument for saying that subsequent stipulations are not intended to be conditions precedent, unless the nature of the thing strongly shows they must be so." 56 See infra, § 870.

844. Breach in limine.

Where a breach occurs at the very outset (a breach in limine) a stricter rule is applicable. It is sometimes said that any breach in limine will excuse the other party; 57 and at least in the law of sales of personal property this extreme statement is nearly if not quite justified.58 In equity, however, a rule prevails which differs from this. It is possible for equity to make a decree in favor of a plaintiff who has not fully performed, conditional upon compensation being given by the plaintiff for his partial default. Equity can of course find opportunity for the exercise of this rule only in regard to contracts for breach of which specific performance will lie; that is generally only in regard to contracts for the sale of real estate. In such contracts the principle has been applied in favor of a vendor who is able to give a good title to nearly, but not quite all of the property which he contracted to sell, and who has not been guilty of bad faith,59 or who has been unable to remove some small incumbrance on the property,60 or who offers the property in a condition inferior to that which the buyer is entitled to require. If,

"Langdell, Summ. Cont., §§ 158160. See also Petersburg Fire Brick & Tile Co. v. American Clay M. Co., 89 Ohio, 365, 106 N. E. 33, 36, L. R. A. 1915 B. 536.

See infra, § 1009.

"Poole v. Shergold, 1 Cox Eq. Cas. 273, 2 Bro. C. C. 118, s. c.; Calcraft v. Roebuck, 1 Ves. Jr. 221; McQueen v. Farquhar, 11 Ves. 467; King v. Wilson, 6 Beav. 124; Keepers v. Yocum, 84 Kan. 554, 559, 114 Pac. 1063; Hammer v. Westphal, 120 Md. 15, 87 Atl. 488; Van Blarcom v. Hopkins, 63 N. J. Eq. 466, 52 Atl. 147; Mundy v. Irwin, 20 N. Mex. 43, 145 Pac. 1080; Leigh v. Crump, 1 Ired. Eq. 299; Courcier v. Graham, 2 Oh. 341; McCourt v. Johns, 33 Or. 561, 53 Pac. 601; Stoddart v. Smith, 5 Binn. 355; Charles B. James &c. Co. v. Vernon, 129 Tenn. 637, 168 S. W. 156, 52 L. R. A. (N. S.) 959; Nagle v. Newton, 22 Gratt. 814; Farris

v. Hughes, 89 Va. 930, 17 S. E. 518; Creigh's Adm'r v. Boggs, 19 W. Va. 240; Corless v. Sparling, Ir. R. 9 Eq. 595.

60 Howland v. Norris, 1 Cox Eq. Cas. 59; Drewe v. Hanson, 6 Ves. 675; Halsey v. Grant, 13 Ves. 73; Horniblow v. Shirley, 13 Ves. 81; Fildes v. Hooker, 3 Madd. 193, 195; Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063; Capstick v. Crane, 66 N. J. Eq. 341, 57 Atl. 1045; Winne v. Reynolds, 6 Paige, 407; Guynet v. Mantel, 4 Duer, 86; Thompson v. Carpenter, 4 Pa. State, 132, 45 Am. Dec. 681.

61 Grant v. Munt, Cooper Ch. t. Eldon, 173; Dyer v. Hargrave, 10 Ves. 505; Scott v. Hanson, 1 Russ. & M. 128; Powell v. Elliot, 10 Ch. 424; Towner v. Tickner, 112 Ill. 217; King v. Bardeau, 6 Johns. Ch. 38; Smyth v. Sturges, 108 N. Y. 495; Stewart v. Conyngham, 1 Ir. Ch. R. 534.

however, the deficiency in quantity or quality is essential so that the buyer would not get the substantial benefit of his bargain if specific performance were granted, the plaintiff will be denied relief.62 In England contracts for the sale of land not infrequently provide that in case of any error or omission in the plans or descriptions the sale shall not be annulled, but enforced with compensation. Even in such a case, however, if the error is material specific performance will not be decreed." And materiality of the error does not depend altogether on the difference in value between what is tendered and what was contracted for. "A vendor could not fulfil a contract to sell Whiteacre by conveying Blackacre, although he might prove to demonstration that the value of the latter was largely in excess of the value of the former." 64 It is not improbable

62 Hick v. Phillips, Prec. Ch. 575; Long v. Fletcher, 2 Eq. Ab. 5 pl. 4; Fordyce v. Ford, 4 Bro. C. C. 494, 497; Stewart v. Alliston, 1 Mer. 26; Collier v. Jenkins, Younge, 295; Leyland v. Illingworth, 2 De G. F. & J. 248; Drewe v. Corp, 9 Ves. 368; Stapylton v. Scott, 13 Ves. 425; Knatchbull v. Grueber, 1 Madd. 153, 3 Mer. 124; Roffey v. Shallcross, 4 Madd. 227; Dalby v. Pullen, 3 Sim. 29; Casamajor v. Strode, 2 M. & K. 706, 726; Peers v. Lambert, 7 Beav. 546; Perkins v. Ede, 16 Beav. 193; Hughes v. Jones, 3 De G. F. & J. 307; Arnold v. Arnold, 14 Ch. D. 270; Hepburn v. Auld, 5 Cranch, 262, 3 L. Ed. 96; Beck v. Bridgman, 40 Ark. 382; Lombard v. Chicago Congregation, 64 Ill. 477; O'Kane v. Kiser, 25 Ind. 168; McKean v. Reed, Litt. S. C. 395, 12 Am. Dec. 318; Winne v. Reynolds, 6 Paige, 407; Hinckley v. Smith, 51 N. Y. 21; Bird v. Bradburn, 127 N. C. 411, 37 S. E. 456; Buchanan v. Alwell, 8 Humph. 516; Spunner v. Walsh, 11 Ir. Eq. R.

597.

63 Arnold v. Arnold, 14 Ch. D. 270. Cf. Fawcett v. Holmes, 42 Ch. D. 150.

64 Lee v. Rayson, [1917] 1 Ch. 613 618, the court added: "Value, no doubt, is an element to be taken into

account in determining whether an error in description is substantial or material, but it is certainly not the only element, nor, in my opinion, the dominant one. A statement of Lord Eldon's, quoted by Buckley, J., in the case to which I have already referred-Jacobs v. Revell, [1900] 2 Ch. 858, 863, indicates, in my opinion, the pertinent inquiry which has to be answered. It is in Knatchbull . Grueber, [1817] 3 Mer. 124, 146, where Lord Eldon says: 'This Court is from time to time approaching nearer to the doctrine that a purchaser shall have that which he contracted for, or not to be compelled to take that which he did not mean to have.' I take that to mean that what the Court has to do in such a case as I have here to deal with is to decide whether the purchaser is getting substantially that which he bargained for, or whether the vendor is seeking to put him off with something which he never bargained for, and in arriving at a conclusion on this question the Court is bound to consider every incident by which the property offered to be assured can be differentiated from that contracted for. If the sum of these incidents really alters the subject-matter, then the purchaser can

that the rule at law may become somewhat ameliorated and though one who still can make accurate performance will not be allowed to recover without tender of such performance, one who has already committed a breach in limine making exact performance impossible, but who can and does tender performance varying but slightly from his agreement will be allowed to enforce the agreement at law, the defendant's right of recoupment or counterclaim being regarded as equivalent to the compensation which equity requires.

§ 845. Distinction between breach as to the time of performance and as to character of performance.

When a promisor binds himself to do a particular act at a particular time, or within a particular period, his promise might conceivably be regarded either as indivisible or composed of two severable parts. On the first supposition, whether the promisor failed to do what he agreed or failed to do it at the time when he agreed, the consequences would be the same. It is, however, desirable to distinguish between a breach of promise to do a thing and a breach of promise as to the time when it shall be done, and courts of equity in England and America have treated stipulations as to time as subsidiary and of comparatively little importance, unless either the language of the parties or the nature of the case imperatively indicated that the date of performance was vital. In courts of common law, however, and especially in mercantile contracts, it is held that time is of the essence of the contract,65 and

repudiate the contract; if, on the other hand, the subject-matter remains unaffected, or so little affected as to be substantially that which was agreed to be sold, then the purchaser must be held to his contract."

65 Startup v. Macdonald, 2 Man. & G. 395 (seller contracted to deliver "on or before" a certain day. The buyer was held justified in refusing to accept after that day); Gath v. Lees, 3 H. & C. 558 (seller contracting to deliver cotton "at seller's option in August or September," and having

given notice that he elected to deliver in August, must deliver in that month, and the buyer need not accept a later delivery). Coddington v. Paleologo, L. R. 2 Ex. 193 (a contract which called for delivery to begin on April 17, justifies the buyer in repudiating the agreement if delivery is not begun on that day); Reuter v. Sala, 4 C. P. Div. 239, 249 (goods shipped in December under contract for goods of November shipment need not be accepted); Bowes v. Shand, 2 A. C. 455 (shipment chiefly in February will not satisfy a