Where an agreement is in the alternative, and one branch of the alternative cannot in law be performed, the promiser is bound to perform the other (o).

The performance must be of the terms of the contract; therefore if 4. agree to purchase 200 bales of cotton at a certain price, and accept a bill for the amount, it is not sufficient for the vendor to aver that he was willing to deliver 206 bales, but he must show a readiness to deliver the precise number (p).

A contract by a workman to perform work on materials supplied to him by his employer is performed, and the right to sue for work and labour is complete, as soon as the workman has finished the work, and given his employer a reasonable opportunity of ascertaining its correctness (q).

3. When it is to be performed (r).

When a contract is silent as to the period of performance, the law infers an engagement that it shall be executed within a reasonable time (s); as in the case of a covenant at all times to make further assurance, a reasonable time to levy a fine, advised by counsel, shall be allowed (t). We shall presently observe a request is sometimes necessary to complete the right of action for the non-fulfilment of the agreement.

Where a contract is to be performed within or at the expiration of a month, the presumption of law is, that the parties meant a lunar, not a calendar month; unless there be something in the contract, or some custom in the trade, in reference to which the agreement is made, to rebut the presumption, and show that a calendar month was intended (u).

(0) Stevens v. Webb, 7 C. & P. 61. (p) Dixon v. Fletcher, 3 M. & W.

146.

(q) Hughes v. Lenny, 5 M. & W.

183,

(r) As to the materiality of time upon a contract for the sale of an estate, in regard to delivery of abstract, &c., see ante, 310. Lapse of twenty years from time of making contract, when evidence of performance, Kirkman v. Siboni, 4 M. & W. 339; 1 M. & W. 422.

(s) It is a question for the jury what is a reasonable time, and we have seen that parol evidence is admissible, to

And by the custom of mer

show the circumstances and situation of the parties at the time of making the contract, for the purpose of determining what is a reasonable time; Ellis v. Thompson, M. & W. 445; ante, 108. See ante, 536, as to a promise of marriage.

(t) Pexpoint v. Thymbelbye, 1 Rol. Ab. 441; 1 Lord Raym. 402. So in the case of a covenant to find security, Peeter v. Carter, 1 Rol. Ab. tit. Condition (D.), 433.

(u) Lang v. Gale, 1 M. & Sel. 111; Barksdule v. Morgan, 4 Mod. 185; Jocelyn v. Hawkins, 1 Stra. 446; Titus v, Lady Preston, id. 652; Soper

chants, bills of exchange are payable at calendar, not lunar months, from the date thereof.

Where a computation is to be made from an act done, the day of doing the act shall be excluded, at least when the act is done to the party himself (x). Where a contract is to be performed. within ten days after the date, or day of the date, it seems that the day of the date is to be excluded (y). And where goods were sold at two months' credit, it was held that the day upon which the contract was made must be excluded (2).

Where the performance is to take place one month from the date of an agreement, and there is a possible date, it must be executed accordingly; and the month shall not be computed from the making of the contract, although part of the month had elapsed at the time the agreement was entered into. But if the whole of the month had in such case elapsed when the agreement was made, it shall be intended that the parties meant that the act should be done within a month from the actual making of the agreement. And the words "one month from the making hereof," or "from henceforth," in an agreement, impliedly signify one month from the actual execution, not from the date of the contract (a). The date of an agreement is not conclusive evidence that it was then executed (b).

Where an agreement was entered into by an attorney with another person to form a partnership, to commence absolutely in præsenti, it was held, that no time being expressly fixed for the commencement of the partnership, it began at once, if at all, although the latter party was not at the time admitted as an attorney, and that circumstance invalidated the contract (c). There are instances in which, although a future time for doing

v. Curtis, 2 Dowl. 237; Talbot v. Linfield, 3 Burr. 1415; 1 Bla. Rep. 450, S. C.; Chitty's Statutes, tit. Time, note, p. 1044; Jolly v. Young, 1 Esp. R. 186.

(x) Lester v. Garland, 15 Ves. 248; Pellew v. Inhabitants of Wonford, 9 B. & C. 144; 4 Man. & Ry. 130; Hardy v. Ryle, 9 B. & C. 603; 4 Man. & Ry. 295; Rex v. Justices of West Riding of Yorkshire, 4 B. & Ad. 685; 1 N. & M. 426, S. C.; Rex v. Goodenough, 2 Ad. & E. 463; Rer v. Justices of Cumberland, 4 N. & M. 378; Buxton v. Spiers, 2 C., M. & R. 601; Webb v. Fairmaner, 3 M. & W. 473; Young v. Higgon, 6 M. & W. 49.

Where a lease is to commence "from" the 25th March, the term does not end until the last moment of the 25th March in the last year; Ackland v. Lutley, 1 P. & Dav. 636; ante, 81.

(y) Id.; Pugh v. Duke of Leeds, Cowp. 714; Watson v. Pears, 2 Camp.

294.

(z) Webb v. Fairmaner, 3 M. & W.

473.

(a) See Styles v. Wardle, 4 B. & C. 908; 7 D. & R. 507, S. C.

(b) Hall v. Cazenove, 4 East, 477.

(c) Williams v. Jones, 7 D. & R. 548; 5 B. & C. 108, S. C.; and see Batley v. Lewis, 1 Scott's N. R. 143; 1 Man. & Gr. 155; ante, 232.

an act be appointed by the contract, the party who is to perform it may, even before the arrival of the time, subject himself to responsibility by disabling himself from fulfilling the agreement. Where a party has disabled himself from making a title to an estate he has stipulated to convey at a future day, by executing an inconsistent conveyance of that estate, he commits a breach of his stipulation, and is liable to be sued before such day arrives (d).

A contract must, in general, be performed strictly on the appointed day (e), 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 (f). We have, however, already seen that where the Statute of Frauds requires that an agreement should be in writing, the partial performance of it cannot be waived by parol (g).

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 (h). As, if the

(d) Per Bayley, J., in Ford v. Tiley, 6 B. & C. 327, 328; 9 D. & R. 448; which is a strong case upon the above doctrine. An agreement to grant a future lease was there held under the circumstances to be broken by joining trustees in a lease to another; although an existing lease had not expired. And see per Tindal, C. J., in Beswick v. Swindells, 3 Ad. & E. 883; 1 Roll. Abr. 268, pl. 1.8; 8 Vin. 225.

(e) On sale of real property, ante, 310, 311; on sale of goods, ante, 444. (f) Carpenter v. Blandford, 3 Man. & R. 93; 8 B. & C. 575, S. C.

(g) Ante, 111; and see Stead v. Dawber, 2 P. & Dav. 451; 10 Ad. & E. 57, S. C.; Marshall v. Lynn, 6 M. & W. 109.

(h) 2 Saund. 62, a, note 4; 1 Chitty Pl. 6 ed. 328. Notice to principal is notice to all his agents; Willis v. Bank of England, 4 Ad. & E. 39, per Denman, C. J.; Mayhew v. Eames, 3 B. & C. 601. When vendor of real estate should give notice to vendee where he may verify the deeds; Rippinghall v. Lloyd, 5 B. & Ad. 742; 2 Nev. & Man. 410, S. C.

defendant engage to do an act, on a stranger performing a certain thing; or upon such stranger attaining the age of 21 years, or dying; notice of these events need not be given to the defendant (i). So if A. be bound to indemnify B. against the acts of a third person, the liability attaches without notice from B. to A. of such acts (k).

Where a contract is to be performed " upon notice," or "one month after notice," it is necessary to give such notice. But a clause in a lease, giving a power of re-entry if the tenant should make default in performance of any of the covenants contained in the lease by the space of 30 days after notice, does not apply to negative covenants, as those not to do certain acts, but is confined to covenants for the performance of substantive acts (7).

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(m). 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 (n).

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 (0).

(i) Harris v. Ferrand, Hardr. 42; 1 Chitty Pl. 6 ed. 328, 329.

(k) Cutler v. Southern, 1 Saund. 116; Lilley v. Hewitt, 11 Price, 494. (1) Doe d. Palk v. Marchetti, 1 B. & Ad. 715.

(m) 1 Chitty Pl. 6 ed. 328.

(n) Turner v. Hayden, 4 B. & C. 1; 6 D. & R. 5.

(0) Graddon v. Price, 2 C. & P.

610.

Unless there be an express stipulation (p) 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, or upon demand, no demand is necessary, though a different rule holds in the case of a bond with a penalty to secure the performance of a collateral act (q).

A request need not be averred, except where by the express terms of the contract a request must precede the delivery, or where that is to be implied from the nature of the contract; in either of the excepted cases a request must be both alleged and proved, but not otherwise (r). And 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 (s). And even where a tender would be otherwise necessary, it is not so if a vendor admits that it would be fruitless (t). In the case of an agent, in suing him for not accounting, a prior demand of an account is necessary (u); 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 (x).

And where a person promises to guarantee the payment of bills by indorsing them, it is incumbent on the promisee to present them for indorsement, and this within a reasonable time (y).

(p) See instances, 1 Pl. 6 ed. 329. Per Lord Abinger, C. B., in Shillibeer v. Glyn, 2 M. & W. 148; Brown v. Dean, 5 B. & Ad. 849, 850. 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; or on demand at sight;" Dixon v. Nuttall, 1 C. M. & R. 307; 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, jr. Bills, 100 a a; Norton v. Ellam, 2 M. & W. 461.

66

(q) Gibbs v. Southam, 5 B. & Ad. 913; 3 Nev. & Man. 155.

(r) See per Lord Abinger, C. B., in dford v. Smith, 3 M. & W. 258; and

see Back v. Owen, 5 Term Rep. 409, as explained by Lord Abinger, ubi supra.

(s) Rawson v. Johnson, 1 East, 203; 1 Saund. 320 €, note 5.

(t) Jackson v. Jacob, 3 Bing. N. C., 869; 5 Scott, 79.

(u) Topham v. Braddick, 1 Taunt.

572.

(x) 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.

(y) Ante, 78.