If a party, entitled under a contract to receive a profit from another, by his own acts, so confound the measure of that which he was to receive that it can no longer be ascertained, he vacates his whole claim. A. agreed to find sufficient coal for B.'s engine, to draw water from A.'s mine, and B.'s little coal mine, as they then stood. B. sunk to a lower seam; in draining which, he drained the other two seams, but consumed for his engine more coals than before. It was held, that A. was no longer bound to furnish any coal, because B. had destroyed the measure of sufficiency (1).

It seems, however, that the performance of a condition precedent on which a duty attaches, is not excused, where the prevention arises from a mere stranger, it must arise from the party to be charged (m). Where, by the proposals of the Phoenix Company, it was stipulated that persons insured should give notice of the loss forthwith, deliver in an account, and procure a certificate of the minister, churchwardens, and some reputable householders of the parish, importing that they knew the character, &c., of the assured, and believe that he really and bonâ fide sustained the loss; it was decided that, although the minister, &c., without any reason, refused to sign the certificate, the assured could not recover without it (n). So, if a man covenant that his son shall marry the covenantee's daughter, a refusal by her will not discharge the covenantor from making pecuniary satisfaction (o). And if A. covenant with C. to enfeoff B., (a third person), A. is not released from his covenant by B.'s refusal to accept livery of seisin (p). So, where a declaration for the price of goods bought, subject to the valuation of A. and B., stated that A. refused to value, but did not state that the defendant prevented him from valuing, and then averred that a valuation was made by B. alone, it was held that the defendant

(1) Pringle v. Taylor, 2 Taunt. 150. (m) Thurnell v. Balbirnie, 2 M. & W. 786; and see Brogden v. Marriott, 2 Scott, 703; 2 Bing. N. C. 473.

(n) Worsley v. Wood, 6 T. R. 710. Covenant in a charter-party to pay the value of reshipping in case of capture, &c. provided it should appear to a courtmartial that the captain had made the best defence. The holding a courtmartial is indispensable as a condition precedent; Davison v. Moore, 3 Doug, 28. In the case of an agreement to pay for repairs on an architect certify

ing they are done, &c., such certificate is essential; ante, 571; Morgan v. Birnie, 3 M. & Scott, 76; 9 Bing. 672, S. C.; Bradley v. Milnes, 1 Scott, 626, 697. Allowance to tenant out of rent for repairs done by him to be approved of by landlord; Dollman v. King, 4 Bing, N. C. 105; 5 Scott, S82; ante, 571.

(0) Perkins, sect. 756.

(p) Cook v. Jennings, 7 T. R. 384; see M'Neil v. Read, 9 Bing. 68; 3 Moo. & S. 89, S. C., ante, 187.

was not liable for the price of the goods at the valuation of B. alone (9).

Where the purchaser of a new house agreed to pay a certain sum, in addition to the purchase money, provided by a named day the pavement in front of the adjoining houses should be laid down; it was held, that the completion of the pavement by the specified time was a condition precedent; and that no right to the money accrued, as the pavement was not then finished, although the delay was only for four days and was occasioned by the badness of the weather (r). But where a plaintiff contracted to build some cottages for the defendant by the 10th October, but did not finish them until the 15th, when the defendant accepted them, it was held that the plaintiff was entitled to recover the value of his work on the common count, the condition not going to the whole of the consideration (s). The cases of Dallman v. King and Holme v. Guppy have already been considered (t).

6. Of rescinding a Contract on Non-performance by the other Party.

The right to abandon or rescind a contract in toto has been already partially considered (u). It may, however, be useful to notice a few of the leading rules on this subject.

In general, the non-performance of a condition precedent entitles the defendant to consider himself freed altogether from liability to do the act which he was to perform when the condition precedent was executed (x). But if the defendant's agreement be continuous, and his liability is to accrue at intervals upon distinct acts of the plaintiff being performed, the non-completion

(g) Thurnell v. Balburnie, 2 M. & W. 786.

(r) Maryon v. Carter, 4 C. & P. 295. The declaration averred the performance of the condition precedent not an excuse for the delay; but the case seems to be an authority to the above effect. At all events it is sustainable, on the principle that the party had expressly made it a condition precedent without restriction that the pavement should be finished by a particular day, see ante, 740.

(s) Lucas v. Godwin, 4 Scott, 502; 3 Bing. N. C. 737, S. C.

(t) Ante, 571, 572.

(u) See ante, 444, 458 to 467, 737, 738, 739. Instance of an agreement to rescind, James v. Cotton, 7 Bing. 266; 5 M. & P. 26, S. C. Bankruptcy does not in general rescind a contract; Boorman v. Nash, 9 B. & C. 145. Impliedly rescinding by new inconsistent agreement; Taylor v. Hillary, 1 C., M. & R. 741; 1 Gale, 22, S. C.; Patmore v. Colburn, 1 C., M. & R. 65.

(x) Supra, note (u). See Mawman v. Gillett, 2 Taunt. 325, n. ; post, 742.

of the plaintiff's part of the agreement in one instance shall not discharge the defendant from liability on a subsequent occasion upon which the plaintiff' is not in default. As if a brewer agree to supply good porter to an innkeeper, and the latter agree to purchase the same, although the innkeeper be not bound to take bad porter tendered to him upon one occasion, he is liable to receive good porter subsequently offered (y).

The right to abandon a contract vests only in the party who has been guilty of no default; and by him it must be exercised within a reasonable time (z). And on the principle that a party cannot take advantage of his own wrong, it has been held that the vendee on a sale by auction cannot rescind the contract on the ground of his neglect to pay the auction duty, though it was made a condition of the sale under the authority of the stat. 17 Geo. 3, c. 50, s. 8, that the purchaser should pay the auction dutythough the statute declare that on non-performance of such condition the bidding shall be "void to all intents and purposes (a).”

Where the party who was to perform the condition precedent by a certain time disables himself before that time from performing it, we have seen that the other party may immediately abandon the contract (b).

A printer agreed to do certain work within six months, and to insure from fire his employer's (the plaintiff's) materials. The court held that this did not bind the employer to furnish the materials within six months; and that although, by extending the time, the risk was prolonged, the defendant continued liable for loss by fire; unless, on account of the delay, he absolutely abandoned the contract; and that his remonstrating against such delay was not sufficient to obviate his liability with regard to fire, as he still continued to print the work (c).

The general rule is, that a contract cannot be rescinded by one party so as to enable him to recover back money paid by him thereon, as money had and received to his use, unless the other party concur in treating the agreement as abandoned ab initio ;

(y) Weaver v. Sessions, 6 Taunt.

154.

(z) Towers v. Barrett, 1 T. R. 136; Hinde v. Whitehouse, 7 East, 571; Hodgson v. Davies, 2 Camp. 530; Okell v. Smith, 1 Stark. R. 108, 140, 477; Prosser v. Hooper, 1 Moore, 106; Mawman v. Gillett, 2 Taunt. 325, note. In case of illegal policy;

ante, 637; or fraud, Campbell v. Fleming, 1 A. & E. 40; 3 Nev. & M. 34, ante, 409, 634, 681.

(a) Malins v. Freeman, 6 Scott, 187; 4 Bing. N. C. 395, S. C.

(b) Ante, 731, 732.

(c) Mawman v. Gillett, cited 2 Taunt. 325, note (a).

or unless it were part of the original bargain, that in a certain event the power of rescinding, and right to recover back such money, should be vested in one of the parties (d).

There are some instances in which, although an agreement of a continuing nature has been in part performed, the further performance of it may be excused, or discharged by conduct of the other party wholly at variance with the spirit of the contract (e). These are not cases strictly within the law relative to the total abandonment or rescinding of the contract ab initio, when a right to recover back money paid as the consideration may arise.

A contract cannot, in general, be rescinded in toto by one of the parties, where both of them cannot be placed in the identical situation which they occupied, and cannot stand upon the same terms as those which existed when the contract was made (ƒ). The most obvious instance of this rule is, where one party, by having had possession, &c., has received a partial benefit from the contract (g). It would be unjust to destroy a contract in toto where one party has derived some advantage by the other party having to some extent performed the agreement; in such case the agreement shall stand; the defendant must perform his part thereof, and must seek in a cross action a compensation in damages for the plaintiff's default. Of late, however, the courts, to prevent unnecessary litigation, have, in many instances, allowed a defendant, in case of a partial failure of consideration, (except where the action is on a bill of exchange, and a question of unliquidated damages would be raised by inquiring into the consideration for such bill (h)), instead of bringing a cross action, to reduce the damages by setting up such partial failure of consideration. This relaxation of the rule generally applies in the case of a contract for goods, or work and labour and materials, in which the defendant, when sued for the price, may show the insufficiency of the goods, or incomplete performance of the work, &c., although a specific sum were agreed upon (i).

(d) Ante, 308, 458, 466, 625; and Hurst v. Orbell, 3 N. & P. 237; 8 Ad. & E. 107, S. C.

(e) As in the case of the author, ante, 565; see, however, ante, 739.

(f) Hunt v. Silk, 5 East, 449; Beed v. Blandford, 2 Y. & J. 278; ante, 622 to 627; Franklin v. Miller, 4 Ad. & E. 599, 605.

(g) Id.; ante, 458, 622, 623.

(h) Moggridge v. Jones, 14 East, 486; Spiller v. Westlake, 2 B. & Ad. 155; Trickey v. Larne, 6 M. & W. 278; post, 773.

(i) Ante, 464, 568; Havelock v. Geddes, 10 East, 564; Wilbeam v. Ashton, 1 Camp. 78; Bragg v. Cole, 6 Moore, 114; Pordage v. Cole, 1

A contract for freight cannot, it seems, be rescinded, if the consignee has received the goods, and has therefore derived some benefit from the carriage, although the goods were damaged by the negligence of the carrier beyond the amount of the freight (k). And we have seen, that if a vendee receive, and keep after the time for completing the contract, one of several articles, bought together under one contract, he must pay for such article, although he might have refused to take it; for such retention of a part of the goods sold disaffirms the entirety of the contract (1).

II. PAYMENT (m).

1. Payment-by and to whom made. 2. Of the Amount paid.

3. When presumed, and how made,

4. Of the Appropriation of a Payment where there are distinct Accounts.

5. Of a Receipt for the Money.

1. Payment, by and to whom made.

If one of several plaintiffs, or a nominal plaintiff suing for another person beneficially interested, fraudulently, and by collusion with the defendant, give him a receipt for the debt, without any money passing between them, the court in which an action is brought for the debt will on application preclude the defendant from availing himself of such a receipt (n). But in general a payment to a trustee is effective at law, though in equity it might

Saund. 320 b, note; Allen v. Cameron, 1 C. & M. 832; Cousens v. Paddon, 2 C., M. & R. 547; Groundsell v. Lamb, 1 M. & W. 352; Baillie v. Kell, 6 Scott, 379; 4 Bing. N. C. 638. In the case of builders, ante, 568; of attorneys, ante, 555 to 564; agents, ante, 548; apothecaries, ante, 553; authors, ante, 565; surveyors, ante, 585.

(k) Shields v. Davies, 6 Taunt. 65. (1) Ante, 446.

(m) This defence must be specially pleaded, and cannot be given in evidence in reduction of damages, Reg. Gen. Trin. Term, 1 Vic. But no plea of payment is necessary, where the particulars give credit for a specific sum, id. And see Eastwick v. Harman, 6 M. & W. 13. If the payment be made after action brought it must be pleaded in bar of the further maintenance of the

action; see Corbett v. Swinburne, 8 Ad. & E. 673. Where there has been a special mode of payment it should seem that the plea should shew specially the mode; France v. White, 6 Bing. N. C. 36. See forms of pleas, and replications, and law, Chitty, jun., Precedents in Pleading, 359 to 365; New assignment, when necessary; James v. Lingham, 5 Bing. N. C. 553; 7 Scott, 603.

(n) Post, 780; Tidd, 8th ed. 730, 731; 9th ed. 677; Mountstephen v. Brooke, 1 Chitty R. 391; Alner v. George, 1 Camp. 392; Barker_v. Richardson, 1 Y. & J. 362; post, Releases. Such application should be made to the court as soon as possible upon an affidavit of the facts clearly establishing the fraud, see Crook v. Stephen, 5 Bing. N. C. 688; 7 Scott,

848.