by the tender; and on the other hand, if the property passes by the tender, the contract is discharged. And therefore, whenever a tender would discharge the contract, it must be so complete and perfect as to vest the property in the promisee, and give him instead of the jus ad rem which he loses, an absolute jus in re. If there be a contract to deliver wares or goods which are merchandise, and belong to a certain trade, this means wares or goods of the kind, fashion, and quality in common use in that trade, and not such as are antiquated and unsalable. (x) And the kind and quality of the goods should be such as would be necessary to make a sale of them legal. (y) * 656 *3. OF THE KIND OF PERFORMANCE. When the defence against an action on a contract is performance, the question sometimes arises whether the performance relied upon has been of such a kind as the law requires. The only general rule upon this point is, that the performance must be such as is required by the true spirit and meaning of the contract, and the intention of the parties as expressed therein. A mere literally accurate performance may wholly fail to satisfy the true purpose of the contract; and such a performance is not enough, if the true purpose of the contract can be gathered from it, according to the established rules of construction. Thus a contract for the conveyance of real estate is satisfied only by a valid conveyance with good title. (z) But if the contract expresses and defines the to ask an indemnity from the defendant, who seems to have been in all things equally innocent. And as he chose to exact of the defendant a rigid compliance with the terms of the contract, he must not complain if the defendant now chooses to shield himself under the rigid rules of the law." But this decision has not been approved of, and it probably would not now be considered as law in any jurisdiction. (r) Dennett v. Short, 7 Greenl. 150. (4) Thus when a statute required all leather offered for sale to be stamped G. or B., a tender of unstamped leather is not sufficient. Elkins v. Parkhurst, 17 Vt. 105. So if the law requires the article to be packed in a certain manner. Clark v. Pinney, 7 Cowen, 681. A contract to deliver good coarse salt is fulfilled by a delivery of coarse salt of a medium quality, of the kind generally used at the place and time of delivery. Goss v. Turner, 21 Vt. 437. In Crane v. Roberts, 5 Greenl. 419, there was a contract to deliver such hay as B should say was merchantable." That which he did deliver, B called "a fair lot, say merchantable, not quite so good as I expected; the outside of the bundles some damaged by the weather," - Held, no compliance with the contract. (z) Smith v. Haynes, 9 Greenl. 128. Here the agreement was "to sell certain laud." It was held to be an agreement also to "convey "the land; but it was not determined whether the deed should contain a warranty or not. In Brown v. Gammon, 14 Me. 276, the contract was to convey a certain tract of land, the title to be a good and sufficient deed;" and this was held to be a contract to give a good title by deed. Lawrence r. Dole, 11 Vt. 549, bears upon the same point. It was there held, that if the contract be "to convey the land by a deed of conveyance," for a stipulated price, this is not fulfilled by executing a deed of conveyance merely. The party must be able to convey such a title as the other party had a right to expect, and this is to be determined by the fair import of the terms used with reference exact method of conveyance, and that method is accurately followed, although no good title passes, this is a sufficient performance. (a) But if the expression is, "a good and sufficient deed," the deed must not only be good and sufficient of itself, but it must in fact convey a good title to the land, because otherwise it would not be sufficient for the purpose of the contract. (b) * 657 *If the contract be in the alternative, as to do a thing on one day or another, or in one way or another, the right of election is with the promisor, if there be nothing in the contract to control the presumption. (c) It is an ancient rule, that "in case an election be given of two several things, always he that to the subject-matter. Redfield, J., said: "The contract is, not to execute a deed merely, but to convey, by a deed, &c., a certain tract of land. Could language be more explicit? What is implied in conveying land? Surely, that the title shall be conveyed." But it has been held in Ohio, that a contract for a good title was discharged by a tender of a quitclaim deed, the grantor having the whole title. Pugh v. Chesseldine, 11 Ohio, 109. 66 (a) Hill . Hobart, 16 Me. 164; per Redfield, J., in Lawrence v. Dole, 11 Vt. 554. In Tinney . Ashley, 15 Pick. 546, the obligors undertook to execute and deliver a good and sufficient warranty deed" of certain land; and the court held, that the words "good and sufficient" were to be applied to the deed and not to the title, and that the condition was performed by making and delivering a deed good and sufficient in point of form to convey a good title, the remedy for any defect being upon the covenant of warranty in the deed; but see next note. (b) Tremain v. Liming, Wright, 644. It was held that the words "good and sufficient deed" meant a deed of warranty conveying a fee-simple; and a deed without warranty, and not signed by the obligor's wife, was held no compliance with the contract. In Hill v. Hobart, 16 Me. 164, the contract was to make and execute a good and sufficient deed" to convey the title; this was held not to be performed unless a good title passed by the deed. In this case also the distinction in the text was recognized, that if the contract is for the conveyance of land, or for a title to it, performance can be made only by the conveyance of a good title. But when it stipulates only for a deed, or for a conveyance by a deed described, it is performed by giving such a deed as is described, however defective the title may be. That the words " good and sufficient," when used as descriptive of a deed, have reference to the title to be conveyed, and not to the mere form of the deed, see Fletcher v. Button, 4 Comst. 396; Clute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 Johns. 525; Stow v. Stevens, 7 Vt. 27. But see Aiken v. Sanford, 5 Mass. 494: Gazley v. Price, 16 Johns. 268; Parker v. Parmele, 20 id. 130; Stone v. Fowle, 22 Pick. 166. See also Tinney v. Ashley, 15 Pick. 546, cited in preceding note. In this last case the court lay considerable stress on the fact that the deed was to contain a covenant of warranty, which showed that the party intended to look at that as his muniment of title. (c) Smith v. Sanborn, 11 Johns. 59; Layton v. Pearce, Doug. 16, per Lord Mansfield; Small v. Quincy, 4 Greenl. 497. In this case A contracted to deliver "from one to three thousand bushels of potatoes," and he was allowed the right to deliver any quantity he chose within the limits of the contract. And see M'Nitt v. Clark, 7 Johns. 465; 13 Edw. IV. 4 pl. 12. If the contract is to do one of two things by a given day, the debtor has until that day to make his election; but if he suffer that day to pass without performing either, his contract is broken and his right of election gone. Choice. Mosely, ley, 136; M'Nitt v. Clark, 7 Johns. 465. Bai 1 Money lent "for the term of nine or six months" is at the option of the borrower. Reed v. Kilburn Co-operative Society, L. R. 10 Q. B. 264. Brandt v. Lawrence, 1 Q. B. D. 344, decided that a contract for the shipment of a specified quantity of grain, "by steamer or steamers," within a certain time, contemplated its shipment in parcels, and therefore the purchaser was bound to accept a parcel shipped in time, although the remainder was shipped too late. See Reuter v. Sala, 4 C. P. D. 239. — K. is the first agent, and which ought to do the first act, shall have the election." (d) But this same rule may give the election to the promisee, if something must first be done by him to create the alternative. (e) If one branch of the alternative becomes impossible, so that the promisor has no longer an election, this does not destroy his obligation, unless the contract expressly so provide; but he is now bound to perform the other alternative. (f)1 An agreement may be altogether optional with one party, and yet binding on the other. (g) * 658 *4. OF PART PERFORMANCE. A partial performance may be a defence, pro tanto, or it may sustain an action, pro tanto; but this can be only in cases where the duty to be done consists of parts which are distinct and severable in their own nature, (h) and are not bound (d) Co. Litt. 145, a. And see Norton v. Webb, 36 Me. 270. (e) Chippendale . Thurston, 4 C. & P. 98. (f) Stevens v. Webb, 7 C. & P. 60. (9) Thus, where A agreed to deliver to B by the first of May, from 700 to 1,000 barrels of meal, for which B agreed to pay on delivery at the rate of six dollars per barrel, and A delivered 700 barrels, and also before the day tendered to B 300 barrels more, to make up the 1,000 barrels, which B refused; it was held, that B was bound to receive and pay for the whole 1,000 barrels; the delivery of any quantity between 700 and 1,000 barrels, being at the option of A only, and for his benefit. Disborough v. Neilson, 3 Johns. Cas. 81. (h) Thus, in an entire contract of sale or manufacture of a large quantity of an article or articles, at an agreed price for each, the current of authorities holds, that a delivery and acceptance of part gives a right to recover for that part, deducting whatever damages the other party sustained by the non-fulfilment of the contract. Bowker v. Hoyt, 18 Pick. 555, a sale of 1,000 bushels of corn at 85 cents per bushel. The plaintiff delivered only 410 bushels, and refused to deliver the remainder; the vendee kept what he had received, and was held bound to pay for it, deducting his damages. Oxendale r. Wetherell, 9 B. & C. 386, was a sale of 250 bushels of wheat at 85 cents per bushel. The vendor delivered only 130 bushels, when, corn having advanced, he refused to deliver the remainder. The jury found the contract to be entire, but as the vendee had retained the corn delivered, until after the expiration of the time for the completion of the contract, the whole Court of King's Bench held him liable for the same. Champion v. Short, 1 Camp. 53, is to the same effect. There the defendant, who resided at Salisbury, ordered from the plaintiff, a wholesale grocer in London," half a chest of French plums, two hogsheads of raw sugar, and 100 lumps of white sugar, to be all sent down without delay." The plums and raw sugar arrived nearly as soon as the course of conveyance would permit; but the white sugar not coming to hand the defendant countermanded it, and gave notice to the plaintiff, that as he had wished to have the two sorts of sugar together, or not at all, he would not accept of the raw The plums the defendant used, and this action having been brought to recover the price of the plums and the 1 As where one promises to return certain property or its money equivalent, and the former perishes, Drake v. White, 117 Mass. 10; or where a physician agrees to form a copartnership with another physician, or if the latter withdraws entirely from that field of practice," to give him a pecuniary compensation, and then refuses to practise in copartnership with him. Frothingham ». Seymour, 121 Mass. 409 — K. An agreement by a preacher to allow one of the subscribers to his salary to pay the amount in preaching services will discharge the society to that extent. So held in Glover v. Dowagic Universalist Parish, 48 Mich. 595.-K. * together by expressions giving entirety to the contract. It is not enough that the duty to be done is in itself severable, if the contract contemplates it only as a whole. (i) * * 659 Here (i) The most frequent cases where the entirety of a contract is sustained as a good defence in law to an action for part performance, are, perhaps, contracts of labor and service for a fixed time. the current of authorities agrees that part performance gives no right to part compensation, unless the fulfilment of the contract is prevented by the act of the obligee. Cutter v. Powell, 6 T. R. 320, is well known as the leading case on this subject. There a sailor had taken a note from the master of a vessel to pay him 30 guineas, raw sugar, he tendered the price of the and repudiate the doctrine of Oxendale v. plums; and at the trial the question was, Wetherell, supra; Champlin v. Rowley, whether he was liable to pay for the sugar. 13 Wend. 285, 18 id. 187; Mead v. DegAnd per Lord Ellenborough: Where sevolver, 16 Wend. 632; Paige v. Ott, 5 eral articles are ordered at the same time, Denio, 406; McKnight v. Dunlop, 4 Barb. it does not follow, although there be a sep- 36; and see ante, p. 523, n. (i). arate price fixed for each, that they do not form one gross contract. I may wish to have articles A, B, C, and D, all of different sorts and of different values; but without having every one of them as I direct, the rest may be useless to me. I therefore bargain for them jointly. Here, had the defendant given notice that he would accept neither the plums nor the raw sugar, as without the white sugar they did not form a proper assortment of goods for his shop, he might not have been liable in the present action; but he has completely rebutted the presumption of a joint contract, including all the articles ordered, by accepting the plums, and tendering payment for them. Therefore, if the raw sugar was of the quality agreed on, and was delivered in reasonable time, he is liable to the plaintiff for the price of it." And see Barker v. Sutton, 1 Camp. 55, n.: Bragg v. Cole, 6 J. B. Moore, 114; Shaw v. Badger, 12 S. & R. 275, recognize the same rule. In Booth v. Tyson, 15 Vt. 515, the contract was to mould for the defendant two hundred stove patterns; only a part was ever made, which the defendant used and disposed of as they were made. The plaintiff gave up the contract without completing it; but he was allowed to recover on a quantum meruit, deducting the damages to the other party. In Mavor v. Pyne, 3 Bing. 235, also, it was held, that a contract to publish a work in numbers, at so much a number, meant that each number should be paid for as delivered. Shipton v. Cason, 5 B. & C. 378, holds also, that an accept ance of part under an entire contract, gives a right of action for such part, although, in accordance with the sugges tions in that case, it may be questioned whether the plaintiff can sustain an action for part, until after the expiration of the time for the delivery of the whole; for perhaps the vendee may conclude to return what he has received unless the whole is delivered, which cannot be known until the time has expired. See Waddington v. Oliver, 5 B. & P. 61. The New York courts adopt a different doctrine, and hold, that part performance, although accepted, furnishes no ground of recovery pro tanto, provided he proceeded, continued, and did his duty as second mate from Jamaica to Liverpool." The sailor died on the voyage, and his administrator was not allowed to recover anything for the service actually performed. But as the sailor was by the contract to receive about four times as much, provided he completed the voyage, as was generally paid for the same service without any special contract, this fact might have had much influence upon the court in determining this contract to be entire and not apportionable. But in this country, sickness or death of the laborer has been frequently held a sufficient excuse for non-performance of the whole contract, and the laborer, or his administrator, may recover for the service actually rendered. Fenton v. Clark, 11 Vt 557; Dickey v. Linscott, 20 Me. 453; Fuller. Brown, 11 Met. 440. The same rule has been applied where the non-performance was caused by the act of law. Jones v. Judd, 4 Comst. 412. See ante, p*38, n. (j). Although in the same courts the general rule is fully recognized and constantly acted upon, that part performance of such a contract gives no right to part payment, if the non-performance is voluntary on the part of the plaintiff, and not caused by the defendant or by an act of God. See St. Albans St. Co. v. Wilkins, 8 Vt 54; Hair v. Bell, 6 Vt. 35; Philbrook v. Belknap, 6 Vt. 383; Brown v. Kimball, 12 Vt. 617; Ripley. Chipman, 13 Vt. 268; Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528. And see ante, p. 36, n. (9) and ante, p. 523, n. (i). So if rent is to be paid quarterly, and during a quarter the lessee delivers up If money is to be paid when work is done, and an action be brought for the money, non-performance of the work is of course a good defence; but if there is a part performance, and this is a performance of the whole substance of the contract, and an omission only of what is incidental and unimportant, (j) it is a sufficient performance; but the contract may expressly and in special terms, provide that these formal, incidental, and non-essential parts shall be done, and then they are made by the parties 660 matters of substance. Thus, if the time be set in which certain work is to be done, it is not in general so far of the substance of the contract, that if the work be done, but not until some days later, no compensation will be recovered; but an action for the price will be sustained, leaving the defendant to show an injury he has sustained by the delay, and use it in reduction of damages, by way of set-off, or to sustain a cross action, according to the circumstances of the case. (k) But if the parties see fit to stipulate in unequivocal language that no money shall be paid for the work unless it is done within a fixed time, both parties will be bound by their agreement. (1) Although we should say that even then the promisee would not be permitted to receive and retain the work after the due time of delivery, and make no compensation. Either his acceptance would amount to a waiver of the condition of time, or the other party might have his action on a quantum meruit. and the lessor accepts possession of the premises, without anything said about rent pro rata, none is payable. Grimman v. Legge, 8 B. & C. 324; and see Badeley v. Vigurs, 4 Ellis & B. 71, 26 Eng. L. & Eq. 144. (j) Thus, in Gillman v. Hall, 11 Vt. 510, A contracted to build $60 worth of stone-wall for B, of a given length, height, and thickness. He built a wall worth $60, but in some parts it was not of the given height, the deficiency being made up in extra length. He was allowed to recover on a quantum meruit, on the ground that there had been a substantial compliance. See also Chambers v. Jaynes, 4 Barr, 39, that a substantial bona fide compliance is all that is necessary. And see ante, 523, n. (i). p. * (k) Thus in Lucas v. Godwin, 3 Bing. N. C. 737, A contracted to finish some cottages by the 10th of October. They were not finished until the 15th. The defendant then accepted them, and he was held bound to pay on a quantum vale bant. See also Porter v. Stewart, 2 Aik. 417; Warren . Mains, 7 Johns. 475; Lindsey v. Gordon, 13 Me. 60; Smith ». Gugerty, 4 Barb. 614. But in most or all of these cases it is to be noted, that there had been an acceptance by the defendant after the time stipulated in the contract. See ante, p. * 523, n. (¿). (1) Kent v. Humphreys, 13 III. 573; Westerman v. Means, 12 Pa. 97; Liddell v. Sims, 9 Smedes & M. 596; Tyler v. McCardle, id. 230. In Sneed v. Wiggins, 3 Ga. 94, A recovered two judgments against B, who being about to appeal, A agreed in writing that if he would not appeal, he (A) would give certain time for the payment of the amount due by instalments, "provided that if any of the instalments should not be paid at the time specified, then A should proceed with his execution." Held, that time was of the essence of the contract; and that B, having failed to pay one of the instalments when due, was not entitled to relief in equity. |