THE

LAW OF CONTRACTS

BY

SAMUEL WILLISTON, LL.D.

DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY

IN FOUR VOLUMES

VOLUME |||

NEW YORK

BAKER, VOORHIS & CO.

1920

COPYRIGHT, 1920,

BY

SAMUEL WILLISTON

SOCIAL SCIENCES

One action only is allowed for a single breach of contract.

1291

Sometimes one action only allowed for several breaches of contract..

1292

First half of Cockburn's rule approved in England but inconsistent with

Distinction between defence and right of action..

1315

Distinction between action for restitution and action on the contract.

1316

No inconsistency in allowing full damages before all performance due..

Action may be based on breach of subsidiary promise....

Time of performance fixed by act of the promisee.

1317

1318

1319

7753

Necessity of election to treat repudiation as a breach...

What constitutes an election to treat repudiation as a breach.

Positiveness of repudiation....

What amounts to total repudiation..

Whether anticipatory inability to perform amounts to a breach.

Supreme Court holds bankruptcy anticipatory breach....

1322

1323

1324

1325

1326

1327

There can be no anticipatory breach of unilateral obligations.

Independent obligations..

1328

1329

Repudiated contract of insurance.

1330

Repudiation may be a defence though it does not amount to a breach.... 1331

Time when repudiation becomes effectual.......

1332

Effect of failing to elect to treat repudiation as a breach under the English

rule....

1333

American decisions opposed to English rule

1334

Withdrawal of repudiation...

1335

Possible distinction between the effect of repudiation before breach and after

partial breach of a contract. . . . . . .

1336

Summary of American doctrine in regard to anticipatory breach.

Compensation should be not the value of the contract, but of the perform-

Certainty of damage and certainty of amount of damage..

1346

Illustrations of consequential damages allowed when the defendant had

proper notice..

Where the defendant's performance is due before the plaintiff's.

1351

Recovery of full value of defendant's performance where plaintiff's perform-

Employee's recovery where trial precedes the expiration of contract..

1362

Contract for a particular service....

1363

Seller of goods may recover price where property has passed.

1364

Recovery of price allowed in some jurisdictions where property has not

passed.....

1365

Rule thought anomalous, and opposed by some authorities.

1369

Summary of reasons for allowing seller to recover price..

1376

Damages for failure to deliver goods when property has passed.

1381

Allowance of higher subsequent value....

1382

Buyer is entitled to the difference between the market and contract prices... 1383

Buyer's damages where there is no market price..

1384

Limitation of the buyer's right to recover the difference between the market