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cepted as a substituted performance of the first, and so discharge the first contract. In that case, however, it is not the second contract, but the performance of it, which discharges the original contract.” 1
$ 807. — Intention to discharge old contract by new one must be clear.- But in order that the old contract shall be held discharged by implication, “the intention to discharge the original contract must clearly appear from the inconsistency of the new terms with the old. A mere postponement of performance, for the convenience of one of the parties, does not discharge the contract.
This question has often arisen in contracts for the sale and delivery of goods, where the delivery is to extend over some time. The purchaser requests a postponement of delivery, then refuses to accept the goods at all, and then alleges that the contract was discharged by the alteration of the time of per. formance; that a new contract was thereby created, and that the new contract is void for non-compliance with the seventeenth section of the statute of frauds.
“But the courts have always recognized 'the distinction between a substitution of one agreement for another, and a voluntary forbearance to deliver, at the request of another,' and will not regard the latter as affecting the rights of the parties further than this, that if a man asks to have performance of his contract postponed he does so at his own risk. For if the market value of the goods which he should have accepted at the earlier date has altered at the later date, the rate of damages may be assessed, as against him, either at the time when the performance should have taken place and when by nonperformance the contract was broken, or when he ultimately
1 Citing Rogers v. Rogers, 139 Mass. tract cannot prove it if he has alleged 440,1 N. E. R. 122; Hickman v.Haynes, only the original contract, as there L. R. 10 C. P. 598; Leather Cloth Co. would be a variance between his alv. Hieronimus, L. R. 10 Q. B. 140. legations and proofs. King v. Faist
As a matter of pleading, a party (1894), 161 Mass. 449, 37 N. E. R. 456. who relies upon the substituted con
exhausted the patience of the vendor and definitely refused to perform the contract.” 1
$ 808. Introduction of new parties. The contract may also be discharged and perhaps a new one made by the introduction or substitution of new parties. As has been seen, every man has a right to choose with whom he will deal, and he cannot have new parties thrust upon him without his consent. Any attempt to do so may be wholly disregarded by him, or may be treated as a repudiation. He may, however, consent to the change. Thus, "if A owes B, and B owes C, and it is agreed by these three parties that A shall pay this debt to C, and A is by this agreement discharged from his debt to B, and B is also discharged from his debt to C, then there is an obligation created from A to C, and C may bring an action against A in his own name.” 3
So “if A has entered into a contract with X and M, and these two agree among themselves that M shall retire from the contract and cease to be liable upon it, A may (1) insist upon the continued liability of M, or (2) he may treat the contract as broken and discharged, or (3) by continuing to deal with X after he becomes aware of the retirement of M, he may enter into a new contract to accept the sole liability of X; he cannot then hold M to the original contract.”4
$ 809. Formalities of rescission — Delivery as against creditors.- In general the same formalities are necessary for the rescission of the executed contract of sale as would be required for making it in the first instance. For example, upon the agreement to rescind an executed sale of a chattel or resell it to the original vendor, the same delivery is, in general, requi
1 Anson on Contract, pp. 275, 276. See Mechem's Elements of PartnerCiting Ogle v. Earl Vane, L. R. 2 Q. ship, SS 274–276. B. 275, L. R. 3 Q. B. 272.
5 Robinson v.
gue (1888), 86 Ala. 2 See ante, $ 267.
257, 5 S. R. 685; Miller v. Smith (1818), 31 Parsons on Contracts (8th ed.), 1 Mason (U. S. C. C.), 437, Fed. Cas. *218.
No. 9,590. 4 Anson on Contract (7th ed.), p. 277.
site to preserve the sale as against the creditors of the original vendee, now vendor,' as would have been necessary on the sale to bim. “But where by the terms of the agreement, or by a fair implication therefrom, the article thus sold or resold is to remain in the possession of the vendor for a specific time or for a specific purpose as part of the consideration, and the sale is otherwise complete, the possession of the vendor will be considered the possession of the vendee, and the delivery will be complete and sufficient.” 3
$ 810. One party alone cannot rescind — Breach by one acquiesced in by other as rescission.- It is clear enough that one party alone cannot ordinarily rescind the contract or force the other to rescind, unless his act is in some way authorized or acquiesced in by the other. What two at least are needed to make, one alone cannot ordinarily undo. But while one alone cannot thus usually unmake the contract, the act of one may be so treated or regarded by the other that the combined acts of both will result in a termination. Many instances will be met with hereafter wherein one party has broken or repudiated the contract on his part, and the other, at his option, may either treat that act as a breach and recover damages for it, or he may acquiesce in it as a termination of the contract and thus bring it to an end."
$ 811. —Thus, for example, if the seller has undertaken to supply goods of a certain kind, or at a certain time, or in a certain amount, or at a certain place, the buyer is not bound to receive goods of a different kind, or at a different time, or in a different amount, or at a different place. The seller's performance is here a condition precedent to the buyer's liability;
1 Folsom v. Cornell (1889), 150 Mass. of Contract for Fraud upon Credit115, 22 N. E. R. 705; State v. Intoxicating Liquors (1873), 61 Me. 520; Col. 3 Hotchkiss v. Hunt (1860), 49 Me. cord v. Dryfus (1893), 1 Okla. 228. 32 213. Pac. R. 329; Quincy v. Tilton (1828), 4 See post, $ 1088; Filley v. Pope 5 Greenl. (Me) 277.
(1885), 115 U. S. 213; Norrington v. 2 As to these, see post, Avoidance Wright (1885), 115 U. S. 189; Pope v.
Allis (1885), 115 U. S. 363.
and if the seller makes default in any of these particulars, the buyer may treat the contract as broken simply and claim dam. ages for the breach, or be may treat the contract as at an end. He is not, in any event, bound to give the seller another trial, or wait while the seller experiments to see if he can perform his contract,' and he may, of course, insist upon strict performance without rescinding.
TERMINATION OF THE CONTRACT IN PURSUANCE OF THE ORIGINAL
$ 812. Parties may stipulate for subsequent termination. At the time of making the contract the parties may expressly stipulate that the contract shall come to an end, or may, at the option of one of the parties, be terminated, upon the happening of some event or for some reason specified. In such a case, though one party alone may have the option, the contract is terminated in pursuance of it by the consent of both.
Where such a contract, however, is in writing, and the writing purports to contain all the terms agreed upon, a stipulation that one party may terminate it in a certain event cannot be annexed by word of mouth.?
1 Thus in American White Bronze delivered is not of the description of Co. v. Gillette (1891), 88 Mich. 231, 50 the article ordered, the purchaser N. W. R. 136, the court, per Morse, J., has a right to reject it, and to rasaid: “I know of no rule of law, in scind the contract in toto." such a case as this, where the manu- 2 Lilienthal v. Suffolk Brewing Co. facturer has tendered goods or ma- (1891), 154 Mass. 185, 28 N. E. R. 151, chinery in performance of a written 26 Am. St. R. 234. Here was an ap order or agreement of purchase that parently complete written contract obliges the purchaser, if the article for the sale of hops at a certain price, or articles do not conform to the but the buyer contended that it had agreement, to permit the manufact- signed it on the oral condition that urer to keep on tendering other goods if, when its president, who acted for or new machinery until the terms of it, returned from a trip he was then his contract are performed, unless about to make, he should find that the contract expressly provides that the price named was not the market he shall have such opportunity price, it was not to be a sale. Said When, as in this case, the article the court: “It is admitted that if the
$ 813. Right may be reserved to terminate for any cause. It is of course competent for the parties to stipulate that one party shall have the right to terminate the contract for any reason which he deems sufficient, or to limit the right to be exercised only for a specified reason. Instances of the first sort have already been observed in dealing with the contract of “sale or return.”! As has there been seen, if the vendee, for example, may buy or return, he may return the article and terminate the contract for any reason satisfactory to himself; and the same principle applies to the contracts already considered of “sale upon approval”? and “sale if satisfactory.”3 Similar to these is a recent case in which it was stipulated that, if the buyer should be “dissatisfied” at the end of the year, the seller should refund the money and the buyer should reconvey the chattel.
$ 814. Right to terminate may be limited to particnlar cause or event.- On the other hand, the contract may limit the party's right of termination to a particular cause or event, and in such case he cannot terminate the contract except for that cause or in that event. Thus, to recur again to cases already several times referred to, if the contract is that the buyer of a machine may return it if it does not do good work, his right to return and terminate the contract is dependent on the fact that it does not do good work,-a fact of which he would not necessarily be the only judge. But if, on the contrary, the alleged condition was a condition the hops. Davis v. Randall, 115 Mass. subsequent, the defendant(the buyer] 547, 15 Am. R. 146; Batchelder v. was not entitled to prove or to rely Queen Ins. Co., 135 Mass. 449; Gordon upon it. There could be no argument v. Niemann, 118 N. Y. 152, 23 N. E. R. that it was a subsequent modification 454; Daly v. Kimball Co., 67 Iowa, of the written memorandum. It was 132, 24 N. W. R. 756." strictly contemporaneous talk. Clark 1 See ante, SS 675-685. v. Houghton, 12 Gray, 38, 41. This 2 See ante, SS 657-662. being so, of course the defendant 3 See ante, SS 663-671. could not modify by spoken words 4 O'Rourke v. Schultz (1899), 23 the effect of a writing signed by it. Mont. 285, 58 Pac. R. 712. which purported to set forth all the. 5 Manny v. Glendinning (1862), 15 terms of the bargain, and to bind the Wis. 50. defendant unconditionally to accept