appointed day, although its non-performance may occasion a forfeiture; but the right to insist upon such strict performance may be waived, if the party on being informed, upon that day, that the contract cannot conveniently be performed until the following day, make no objection to such substitution of the time of completion. In Carpenter v. Blandford (s), it appeared that A. agreed to sell to B. his interest in a public-house, and his furniture, &c., at an appraisement to be made by two appraisers, the same to be paid for on B.'s taking possession, which was to be on or about the 25th of March then next; and 30%. were paid by B. as a deposit; and he agreed that if he should not complete his part of the agreement, the sum so paid should be forfeited. The buyer and seller appointed appraisers respectively. On the 25th of March the two appraisers met, and the seller's appraiser was then informed that the appraiser of the buyer could not conveniently, on that day, complete the valuation, but would finish the business the next day; no objection was then made to the proposed delay. The appraiser of the buyer went to the seller's premises the following day, to make the valuation; but the seller refused to allow him so to do, and said he would not complete the contract. It was held that, under the circumstances, it was incumbent on the seller, if he intended to insist that the contract should be completed on the day mentioned in the agreement, to have notified such intention to the buyer; and not having so done, that the latter was entitled to recover back the deposit. 4. Of Notice, and Request to Perform. In regard to notice of a fact on the occurrence of which the right to claim performance of the contract depends, the general rule is, that the promisee is not bound to give notice of the fact to the promiser, if the matter be of such a nature that it lies equally within the power of each to ascertain it. Notice, when not expressly required by the contract, is only necessary where the matter lies more properly, or peculiarly, within the knowledge of one of the parties than the other. The defendant, the promiser, must take notice at his peril, where each party has in legal contemplation equal means of information (t). As, if the defendant engage to do an act, on a stranger performing a certain thing; (s) 3 Man. & R. 93; 8 B. & C. 575, S. C. (t) 2 Saund. 62 a, note 4; 1 Chitty Pl. 5 ed. 360. or upon such stranger attaining the age of 21 years, or dying; notice of these events need not be given to the defendant (u). So if A. be bound to idemnify B. against the acts of a third person, the liability attaches without notice from B. to A. of such acts (x). Where a contract is to be performed "upon notice," or "one month after notice," it is necessary to give such notice. Where the promise is to pay the plaintiff so much "as another person had given him for similar goods;" or "to pay him the amount of damages he had sustained by a battery," &c.; notice of the amount the plaintiff had received from the third party, and of the extent of his injury, would seem to be necessary; as these facts are more naturally and properly within the knowledge of the plaintiff (y). Notice by the holder.of a bill or note, to the drawer or indorser of the former, or indorser of the latter, of the non-payment by the acceptor or maker, is required by the Law Merchant; and the necessity of giving it may perhaps be referred to the same principle. The acceptor of a bill, or maker of a note payable at a banker's, &c., is not, in general, entitled to notice of dishonour on presentment at such banker's, &c.; because it is the duty of the party to see that the money is ready on the presentment of the instrument (z). A reasonable notice may sometimes be impliedly requisite from the particular nature of the case. Thus, a theatrical performer who is called on to resume, (in consequence of the illness of another actor), a part in which he has acquired celebrity, is entitled to reasonable notice before the time when the required performance will take place; although the contract by which the party was engaged contain no stipulation that such notice should be given (a). Unless there be an express stipulation (b) in the contract that a request or demand of performance shall be made, or it be requisite from the peculiar nature of the bargain, none is essential to complete the cause of action. The party is bound to perform his contract without being required so to do. As in the common case of a contract to pay a sum of money, generally, or upon a certain day. (u) Harris v. Ferrand, Hardr. 42; 1 Chitty Pl. 5 ed. 361. (x) Cutler v. Southern, 1 Saund. 116; Lilley v. Hewitt, 11 Price, 494. (y) 1 Chitty Pl. 5 ed. 360. (2) Turner v. Hayden, 4 B. & C. 1; 6 D. & R. 5. (a) Graddon v. Price, 2 C. & P. 610. (b) See instances, 1 Chitty Pl. 5 ed. 363. If a note be payable after sight, Chitty, Jr. B. 50, 100 a a; Holmes v. Kerrison, 2 Taunt. 323; or one month after demand, see Thorpe v. Booth, Ry. & M. 388; a demand is necessary; aliter, it seems, as against the maker of a note payable generally on demand; Christie v. Fonsick, Sel. N. P. 8 ed. 141, 352; Chitty, J B. 100 a a. Where mutual acts are to be performed by the parties at the same time, it seems that the plaintiff should aver and prove an express request by him that the defendant would perform his part of the contract; as in the case of an agreement to exchange horses, the plaintiff should, it appears, show that he requested the defendant to deliver to him the horse he, the plaintiff, was to receive (c). But where the contract is to deliver goods bought, on request, at a certain price, the vendee need only aver and prove a request to deliver and a readiness to pay the price, without showing it was tendered (d). In the case of an agent, in suing him for not accounting, a prior demand of an account is necessary (e); and in the instance of a surety, in suing him for not paying the balance of accounts between the principal and the creditor, a request to pay would seem to be proper (f)· 5. Of Excuses of Performance in general. The effect of the performance of a contract being prohibited by an act of parliament, passed after the contract was made, has been already noticed (g). It may here be added, that, where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God (h); but, where a party, by his own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events; and, in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident, or other contingency, although not foreseen by or within the control of the party (i). (c) Back v. Owen, 5 T. R. 409; 1 Chitty Pl. 5 ed. 363. (d) Rawson v. Johnson, 1 East, 203; 1 Saund. 320 e, note 5. (e) Topham v. Braddick, 1 Taunt. 572. 66 (ƒ) At all events a surety is entitled to a demand where he engaged to pay on request;" Sicklemore v. Thistleton, 6 M. & Sel. 9; Lilley v. Hewitt, 11 Price, 494. But if there be no such stipulation, and the contract were that the money should be paid at the creditor's house on a fixed day, no request need be made; Rede v. Farr, 6 M. & Sel. 121, 125. (g) Ante, 540; and see Platt on Cov. 587. Impossible considerations, ante, 48. (h) See instances as to bailees, ante, 373,4, 379, 381. (i) Paradine v. Jane, Aleyn R. 27, cited by Lawrence, J.; in Hadley v. Clarke, 8 T. R. 267; Atkinson v. Ritchie, 10 East, 533, per Lord Ellenborough, C. J.; Com. Dig., Action upon the Case upon Assumpsit, G.; Bullock v. Dommitt, 6 T. R. 650; Hadley v. Clarke, 8 T. R. 259; Platt on Cov. 582; see ante, 48 to 51. As to bonds with conditions, the performance of which is afterwards rendered impossible by the act of God; id. Co. Lit. 206 2 Com. Dig., Condition, (D 1), (L, 13); 2 Bla. Com. 340. Thus, if a lessee covenant to repair, he is not discharged by the destruction of or injury to the premises by lightning, fire, or wind (k). So, if the charterer of a ship covenant to send a cargo alongside at a foreign port, he is liable if he omit to do so, although all intercourse were forbidden by the law at the foreign port, in consequence of the prevalence of an infectious disorder (1). So, if a man covenant to deliver goods at London, the loss of the boat by tempest will not excuse him (m). And it is no defence to an action on a charter-party for not sailing on the voyage towards a port agreed on, that the port was in a state of blockade; at least, if the blockade had, at the time the charter-party was made, been publicly notified to the English government, so that the defendant must be taken to have been aware of it (n). The lessee in a coal lease covenanted to pay a certain proportion of the value of 900 cwt. of the coals to be raised, unless prevented by unavoidable accident from working the pit. It was held, that if the accident were only of such a nature that the working the pit was not physically impossible, but might have been effected, though the expense would be greater than the value of the coals to be raised, the defendant was liable (0). It is also a general rule, that an entire contract cannot be apportioned (p); and if a party undertake to complete a certain act (entire or indivisible) before his claim to remuneration is to accrue, he cannot recover for a partial performance, although the completion was prevented by accident (q). A sailor was to be paid a certain sum, if he proceeded and continued, and did his duty, on a voyage. He died before the ship arrived. It was held, that his executor had no claim to any part of the wages (q). So, if there be a covenant in a charter (k) Paradine v. Jane, Bullock v. Dommitt, ubi supra; The Brecknock Company v. Pritchard, 6 T. R. 750; Baker v. Holtzapffell, 4 Taunt. 45. No relief in equity; Hare v. Groves, 3 Anstr. 687; Holtzapffell v. Baker, 18 Ves. Jr. 115. (1) Barker v. Hodgson, 3 M. & Sel. 267; see, however, Platt on Cov. 583. (m) Tompson v. Miles, 7 T. R. 384. (n) Medeiros v. Hill, 5 C. & P. 182; 8 Bing. 231, S. C. The borrower of a horse promised to redeliver it on request; the horse died without his default before request. Held he was not liable; Williams v. Lloyd, Sir W. Jones, 179, S. C., by the names of Williams v. Hill, Palm. 548. The ground of the decision must have been that such a bailce is not liable for a loss occasioned by the act of God, and the promise was construed to have relation only to such liability to redeliver as the law implied. (0) Morris v. Smith, 3 Doug. 279. (p) See in general, 3 Vin. Abr. tit. Apportionment; 2 Pothier by Evans, 44. ·(g) Cutter v. Powell, 6 T. R. 320; Appleby v. Dods, 8 East, 300; Hulle v. Heightman, 2 East, 145; 3 Chitty Com. Law, 129. party, to pay freight" on the goods being delivered at A.," no claim to freight arises pro ratâ itineris, although the goods be carried to B., where the ship is wrecked, and the defendant there accept the goods (r). And if a landlord accept the surrender of a tenancy in the middle of a quarter, without any new agreement as to an apportionment of the quarter's rent, he cannot recover any part of it (s). We have, however, seen, that although a partial remuneration for the part performance of an entire act contracted to be done, cannot, in general, be recovered, yet a claim, pro tanto, may sometimes arise upon a quantum meruit, where the entire nature of the contract is destroyed, by the party who is to make the payment, accepting and retaining the benefit of the partial performance, after the time for completing the contract has elapsed (t). Condition precedent.—Whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement, and intention of the parties. To ascertain this intention, and point out when performance, or excuse of performance, by the plaintiff, should be averred in the declaration, and proved at the trial, certain rules must have been collected by various authors, to whose works the reader is referred (u). In the case of a condition precedent, that is, an act to be performed by the plaintiff before the defendant's liability is to accrue under his contract, the plaintiff must aver in his declaration, and prove, either his performance of such condition precedent, or an offer to perform it, which the defendant rejected; or, his readiness to fulfil the condition, until the defendant discharged him, the plaintiff, from so doing, or prevented the execution of the matter to be performed by him (x). Where the right to demand the performance of a certain act (r) Cook v. Jennings, 7 T. R. 381; cited by Bayley, J., Grimman v. Legge, 8 B. & C. 326; 2 Man. & R. 438. (s) Grimman v. Legge, 8 B. & C. 324; 2 Man. & R. 440: partial eviction by landlord, ante, 262. (t) Ante, 352,3, 451, 2. (u) 1 Saund 320, note 4; 2 id. 107 b, 352 n, 5 ed.; 1 Chit. on Pl. 4th ed. |