entire. A distinct breach occurs upon failure in any month to deliver the stipulated quantity.

Conditions. Sometimes parties make their contracts subject to certain conditions, a compliance with which, or the happening of which, will affect their rights. By a condition is here meant the performance of some act or the happening of some event which must take place before some obligation provided for in the contract can take effect. Generally, when the thing which a party untertakes to perform is in consideration of something to be done by another, the performane on each part is a condition precedent to performance on the part of both. Conditions are divided into 1) conditions precedent and 2) conditions subsequent.

A condition precedent consists in the happening of some event or the performance or omission of some act, which must take place before the contract becomes binding. For instance, a man might order a portrait of himself, to be paid for by him on condition that it satisfied him. His acceptance of the portrait in this case would be a condition precedent to his liability on the contract. The complete performance of an entire contract is a condition precedent to any recovery thereon. Where payment for work is to be made on the certificate of an architect or other person supervising the work, the furnishing of such certificate is a condition precedent to any liability. If such certificate is, however, arbitrarily withheld, a recovery can be had without it. Where a party agrees to sell a certain quantity of grain to another, the latter to pay as fast as delivered and to furnish bags, the furnishing of the bags is a condition precedent to the furnishing of grain. Where in a contract for the sale of land the seller agrees to convey upon payment of the purchase price, the payment is a condition precedent. There may be a condition precedent to be performed on the part of all the parties to a contract, that is, performance on one side may be a condition precedent to performance on the other. In such case all parties must stand ready to perform.

A condition precedent must happen or be performed or no contract will result, or will be broken, as the case may be. The fact that the performance of a condition precedent has become impossible will not excuse performance, and no contract will result in such a case.

A condition subsequent is one which by its occurrence

increases or decreases rights already acquired under a contract. This term is used usually only in connection with rights created in real estate. Conditions subsequent are not favored by the law, as they tend to create forfeitures, and their existence and intention to create them must be clearly established. The following are examples of conditions subsequent: The sale of a horse on condition that the horse shall be used only in the saddle; a violation of the condition would avoid the sale. Again, real estate may be sold with the condition that the buyer shall reside on it for a term of years, and that upon failing to comply his deed shall be void.

The performance of conditions precedent or subsequent may be waived by the party in whose favor they operate. Such waiver may be express or implied. For instance, recognition of the rights of the other after non-fulfillment of a condition would be a waiver. See also the chapter on Wills.

CHAPTER V.

RESCISSION, BREACH AND PERFORMANCE OF

CONTRACTS AND DAMAGES.

In general. After a contract has been created by parties, and rights and obligations mutually established, the contract as entered into may for some cause or other fail of performance, or may only be partly performed. This may happen by operation of law or by act or omission of the parties. Thus, a person liable on a contract may be discharged from liability thereunder by a general discharge in bankruptcy, or a claim may be discharged by the operation of the statutes of limitation. Generally, a contract after it is made is carried out by performance, but it may be rescinded or broken.

Rescission. As already stated, it takes at least two parties to make a contract, and therefore it takes the consent of all the parties thereto to change it. Parties who have made a contract may mutually agree to release each other from its operation; this can be done without any other consideration than the mutual release of liabilities. This may be done orally whether the contract is in writing or not, except that in releasing a contract required by law to be in writing, such as a contract under the Statute of Frauds, the release must also be in writing. A rescission by mutual consent may be express or implied from the conduct of the parties. If both parties are in default under a contract, so that neither can sue the other, the contract is practically rescinded. If a rescission is agreed upon, and something has already passed to one of the parties from the other, the latter will be obliged to return it so as to put the parties in statu quo, unless, of course, the rescission is made conditional upon his retaining it. When a contract has been completely performed it can, of course, not be rescinded.

For instance, where real estate has been conveyed by deed, a destruction of the deed by the parties will not revest the title, since title to real estate can only be transferred by an instrument in writing.

A contract may often be lawfully rescinded by one of the parties on account of the conduct of the other, or on account of some provision in the contract itself. Many cases of rescission of this kind occur for fraud or failure of performance. As already stated, if the contract as to one of the parties is voidable on account of illegality, infancy, fraud, duress or for other cause, he may rescind it or stand by it at his option. If he exercises his option to stand by it he cannot thereafter rescind. Any cause therefore which makes a contract voidable in its inception is cause for rescission.

If one party disables himself from performing a contract or fails to perform, or gives notice that he will not perform, the other is entitled to rescind. Ordinarily, when a contract requires successive steps to be performed, and performance is due under the terms of the contract, if the party to perform fails to take any of such steps, the other is entitled to rescind.

A breach of part of a divisible contract will not justify a recission of the whole contract, however, nor will a slight failure which does not prevent a substantial performance entitle thereto. The party rescinding should notify the other of his intention to do so, and usually must put the other in statu quo, that is, in the position the other occupied before the contract was made. Thus, a person buying goods by sample may rescind the contract of sale if the goods are not according to sample, but he must return all the goods received, if possible.

Some instances of rescission.-If a party fails to complete his contract within a reasonable time, no specified time being stated, the other may rescind. He will not be liable for the benefit received, but he cannot retain it in such case. The mere fact that a party did not understand the terms of the contract will not entitle him to rescind on the ground of want of assent, in the absence of fraud or imposition. If personal property is destroyed during the existence of an executory contract for the sale and purchase of an interest therein, it operates to rescind the contract, and the vendee

may recover the purchase money. Upon failure to make payments on a building contract the party to whom payments are due may rescind. In case of an executory contract to make a delivery of goods, the vendee may receive and test them and if found defective, may rescind the contract. A party may rescind a conveyance where the blanks left to be inserted by another therein are at the request of the grantee filled in a different manner than authorized by the grantor. The breach of an independent agreement, though connected with the same transaction and embraced in the contract, will not ordinarily constitute ground for rescission. Thus, the breach of an agreement to keep lumber from accumulating upon skids will not authorize rescinding a contract for the sale of the lumber. Where one party disables another from performing a contract, he may at his option treat the contract as rescinded. But this option does not arise where the failure to perform is only partial, and there remains a distinct part of an subsisting contract. In such case the remedy of an injured party is by an action for damages. The vendee of land may rescind when the vendor is unable to give a perfect title, and may recover the payments made upon tendering a re-conveyance.

The general rule is that when a person has been induced to part with his property by means of fraud practiced upon him under color of a contract, he may rescind the contract, return or offer to return what he received within a reasonable time and bring an action to recover the value of the property obtained from him, or if the specific property is still in existence, he may recover that. In case a party entitled thereto wishes to rescind, he must act with reasonable diligence, and must do nothing which would amount to an affirmance of the contract after discovery of the ground for rescission. Our Supreme Court in a recent case says: "If a person contracts with another for an article to be delivered, or gives an order therefor, and thereafter a thing is delivered to him ostensibly in compliance with the order or fulfillment of the contract, unless at the time thereof or within a reasonable time thereafter, he notifies such other that such article will not be accepted as satisfying the contract or order, he will be conclusively presumed to