he discovered prior to the litigation that he was not receiving the return for which he bargained in exchange for his own performance. Though one who has contracted to buy a horse and to pay the price for him may be morally blameworthy if he repudiates his contract in ignorance of the prior death of the horse, the seller has suffered no legal injury because he could not have carried out the contract on his own part; and for the same reason whenever the performance promised to the defendant was not or would not be given as agreed, the defendant cannot be held liable on his promise, however ignorant he may be of the plaintiff's default. This principle finds its most frequent application in contracts of service. An employer who discharges an employee in ignorance of a sufficient cause for discharge, is not liable if, in fact, an adequate cause existed. 28

The principle is equally applicable to other contracts, though occasion for its application is not so common. Thus where delivery of property was demanded by the plaintiff who had bought it of the defendant, and the demand was refused, but not on a ground which justified the assertion of a lien, the

* Baillie v. Kell, 4 Bing. N. C. 638; Spotswood v. Barrow, 5 Ex. 110; Willets v. Green, 3 C. & K. 59; Boston Deep Sea Fishing Co. v. Ansell, 39 Ch. D. 339; Carpenter Steel Co. v. Norcross, 204 Fed. 537, 123 C. C. A. 63, Ann. Cas. 1916 A. 1035; Farmer v. First Trust Co., 246 Fed. 671, 158 C. C. A. 627, L. R. A. 1918 C, 1027; Troy Fertilizer Co. v. Logan, 90 Ala. 325, 8 So. 46; Loveman v. Brown, 138 Ala. 608, 35 So. 708; Abendpost Co. v. Hertel, 67 Ill. App. 501; Von Heyne v. Tompkins, 89 Minň. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524; Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Allen v. Aylesworth, 58 N. J. Eq. 349, 44 Atl. 178; Green v. Edgar, 21 Hun, 414; Arkush v. Hanan, 60 Hun, 518, 15 N. Y. S. 219; Hutchinson v. Washburn, 80 N. Y. App. D. 367, 80 N. Y. S. 691; Corgan v. George F. Lee Coal Co., 218 Pa. 386, 389, 67 Atl. 655;

Coates v. Allegheny Steel Co., 234

Pa. 199, 206, 83 Atl. 77; Wyatt v. Brown, (Tenn. Ct. App.), 42 S. W. 478; Crescent &c. Iron Co. v. Eynon, 95 Va. 151, 27 S. E. 935; Loos v. Walter Brewing Co., 145 Wis. 1, 129 N. W. 645, 140 Am. St. R. 1052; Thomas v. Beaver Dam Mfg. Co., 157 Wis. 427, 147 N. W. 364; McIntyre v. Hockin, 16 Ont. App. 498, 501; Tozer v. Hutchison, 1 Hanney (N. B.), 540. But see Cussons v. Skinner, 11 M. & W. 161; Strauss v. Meertief, 64 Ala. 299, 310, 38 Am. Rep. 8; Whitmore v. Fourth Cong. Soc., 2 Gray, 306; Sheahan v. Barry, 27 Mich. 217; Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712; Levy v. Jarrett (Tex. Civ. App.), 198 S. W. 333. If the employer knew of the valid ground for discharge and nevertheless assigned an invalid one, the result is the same; see supra, 8 744.

defendant having discovered afterwards that the plaintiff was insolvent at the time of his demand was allowed to set this up as justifying the retention of the goods. 29 So where goods were obtained by fraud, and the seller made an unsuccessful attempt to bring himself within the principles of stoppage in transitu, a redelivery by the carrier to the seller was held, because of the buyer's fraud, to impose no liability on the carrier, though the redelivery was before the discovery of the fraud.30 So where the defendant had contracted to supply the plaintiffs with all the barrels which he should require for use during the current year, a refusal by the defendant to fill an order was held justified because the plaintiff had previously ordered barrels for use during the succeeding year, though the defendant was not aware of this fact when he refused to fill the order.31 Conversely a justification for a refusal to carry out a contract cannot be found in the mistaken belief or opinion, however reasonable, of the existence of supposed facts which if true would have justified the refusal.32 It should be observed, however, that under some circumstances the conduct of the defendant in assigning a reason for his refusal to go on with the contract may, when relied upon by the other party, amount to a waiver of other defences. When this is true has been previously considered.33

§ 840. Promises in separate contracts.

Not infrequently the terms of a single bargain are expressed in more than one instrument. If the two documents are neither of them specialties they constitute but a single contract-the two writings taken together being the integration of the agreement of the parties. Where, however, the promise on either side is a formal document, this seems impossible. A sealed instrument and an unsealed writing, not by reference

29 Crummey V. Raudenbush, 55 Minn. 426, 56 N. W. 1113.

30 Clough v. London & North Western Ry. Co., L. R. 7 Exch. 26. Cp. Wright's Case, 7 Ch. App. 55.

31 Williams Cooperage Co. v. Scofield, 115 Fed. 119, 53 C. C. A. 23. The court said: "The legal effect of an act

amounting to a breach of contract must be the same whether it is known or unknown to the opposite contracting party."

32 Jefferson v. Paskell, [1916] 1 K. B. 57, per Phillimore, L. J. 33 See supra, § 744.

adopted into the sealed contract, cannot form together one contract. The impossibility of suing at common law on such a hybrid either in covenant or assumpsit is of itself enough to prove this, and the insistent requirement of the common law that a sealed instrument must contain within its own four corners the whole obligation, establishes the same conclusion. Likewise a negotiable bill of exchange or promissory note, though requiring consideration to support it as between the original parties, 34 is a mercantile specialty, and therefore is a distinct contract from a counter promise for which it is given. Though an entirely separate contract, if made simultaneously with another, may be looked at like any of the surrounding circumstances 35 as an aid in determining the meaning of the other contract, its terms cannot be carried over as part of that other contract by any process of construction. If, therefore, the doctrine which passes under the name of implied conditions were based solely on construction, the promise contained in a promissory note, in terms unconditional, could not be treated as conditional upon performance of a promise given in a separate instrument in exchange for the note, and so the English court has held. 36 With these decisions Professor Langdell agreed.37 The American law, however, is almost uniformly otherwise. 38 It seems clear that the

34 See supra, § 108.

35 See supra, § 628.

36 Moggridge v. Jones, 14 East. 486; Spiller v. Westlake, 2 B. & Adol, 155. Lord Tenterden said in the latter case, "Where, by one and the same instrument, a sum of money is agreed to be paid by one party, and a conveyance of an estate to be at the same time executed by the other, the payment of the money and the execution of the conveyance may very properly be considered concurrent acts, and in that case no action can be maintained by the vendor to recover the money until he executes or offers to execute a conveyance; but here the vendee by a distinct instrument agreed to pay part of the purchase-money on the 2d of February."

37

Summary of Contracts, § 117.

38 Rice v. Fidelity & Deposit Co., 103 Fed. 427, 433, 43 C. C. A. 270; Gentry v. Rogers, 40 Ala. 442; Smith v. Henry, 7 Ark, 207, 44 Am. Dec. 540; Sorrells v. McHenry, 38 Ark. 127, 134; Perry v. Quackenbush, 105 Cal. 299, 38 Pac. 740; Rochester Distilling Co. v. Geloso, 92 Conn. 43, 101 Atl. 500; Tyler v. Young, 3 Ill. 444, 35 Am. Dec. 116; Duncan v. Charles, 5 Ill. 561; Headley v. Shaw, 39 Ill. 354; Thompson v. Shoemaker, 68 Ill. 256, 259; Weiss v. Binnian, 178 Ill. 241, 52 N. E. 969; Bowles v. Newby, 2 Blackf. 364; Cunninghham v. Gwinn, 4 Blackf. 341; McCulloch v. Dawson, 1 Ind. 413; Hickman v. Rayl, 55 Ind. 551; Zebley v. Sears, 36 Iowa, 507; Little v. Thurston, 58 Me. 86; Smith v. Boston &

American decisions reach the better result. Though the contract contained in a promissory note, and that contained in a counter promise of the payee are separate contracts, the performances are, nevertheless, intended as equivalent exchanges for one another, and a failure to perform on one side should excuse performance on the other.39 Though as matter of substance no recovery should Maine R., 6 Allen, 262; Hunt v. Livermore, 5 Pick. 395; Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134, 39 N. E. 786; Siglin v. Frost, 173 Mass. 284, 53 N. E. 820; Bryne v. Dorey, 221 Mass. 399, 109 N. E. 146; Sutton v. Beckwith, 68 Mich. 303, 36 N. W. 79, 13 Am. St. Rep. 344; Powell v. Newell, 59 Minn. 406, 61 N. W. 335; Peques v. Mosby, 15 Miss. 340; Divine v. Divine, 58 Barb. 264; Hoag v. Parr, 13 Hun, 95; Ewing v. Wightman, 167 N. Y. 107, 60 N. E. 322; Shelley v. Mikkelson, 5 N. Dak. 22, 63 N. W. 210; Dahl v. Stakke, 12 N. Dak. 325, 96 N. W. 353; First Nat. Bank v. Spear, 12 S. Dak. 108, 80 N. W. 166; Chandler v. Marsh, 3 Vt. 161; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L. R. A. (N. S.) 807.

In Ewing v. Wightman, 167 N. Y. 107, 111, 60 N. E. 322, the court said: "Some learned text writers have asserted the doctrine that promises contained in unilateral contracts cannot be dependent, though each is given in consideration of the other, and have criticised the cases in this country holding a contrary rule. Whatever may be the force of the arguments of those writers, or whatever the rule in England (Spiller v. Westlake, 2 Barn. & Ad. 155; Moggridge v. Jones, 14 East, 486), the general current of authority in this and other states is opposed to that doctrine." So in Bryne v. Dorey, 221 Mass. 399, 403, 109 N. E. 146: "The notes, mortgages and contract bear a common date on which they were simultaneously transferred, and having been given and received in con

be allowed on a note if default sideration for each other, they are to be construed as dependent promises, even if in form they are unilateral." See also Duncan v. Clements, 17 Ark. 279; Farish v. Jones, 23 Ark. 323; Falvey v. Woolner, 71 N. Y. App. Div. 331. Contrary decisions are: Hageman v. Sharkey, 2 Miss. 277; Gibson v. Newman, 2 Miss. 341; Hazlip v. Noland, 14 Miss. 294; Snyder v. Murdock, 51 Mo. 175; Lewis v. McMillen, 41 Barb. 420. See also Tronson v. Colby University, 9 N. Dak. 559, 84 N. W. 474. These latter decisions are, however, mostly overruled.

39 In Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 244, the court said: "In some respects the note is one thing and the executory contract upon which it was based another. As to right of action, pleading and evidence, each stands on its own footing, but in substance, in the settlement of the ultimate rights of the parties, both are to be considered together. The giving of the note did not take away any of the rights of either party respecting the executory contract of sale out of which it grew, or on which it was based. If the purchaser had refused to deliver the goods, that fact could have been proven as constituting a total failure of consideration by way of full defence to the action on the note." Therefore even though judgment is obtained on the note, equity will enjoin the enforcement of the judgment if the promise for which the note is given is afterwards broken. Wray's Adm. v. Furniss, 27

Ala. 471.

has been made in performance of a promise given in exchange for the note, as matter of procedure the payee of the note establishes a prima facie case without alleging or proving that the consideration of the note was a promise, and therefore without alleging or proving that performance of the promise had been made or tendered.40 Consequently, in the case supposed, the burden should be on the defendant to allege and prove the plaintiff's failure to comply with his promise;11 but it must be conceded the weight of authority is opposed to this view.42 The rule contended for is not without analogy; where collateral security is deposited to secure payment of a note or debt, the debtor may demand the return of collateral as a condition of his payment of the debt, but it is unnecessary for the creditor to tender the return of the collateral before bringing an action on the debt.43

§ 841. Part performance on one side.

Lord Mansfield decided soon after his recognition of the dependency of promises in bilateral contracts that where there had been part performance by the plaintiff and a breach of promise by him went only to part of the consideration and could be compensated in damages the plaintiff might recover in spite of such breach.44 The principle thus established has been uniformly followed.45

4 The general rule permits the holder of a negotiable instrument to declare upon it without alleging or proving consideration. 2 Ames Cases on Bills and Notes, 876; Uniform Neg. Inst. L., $824, 28; Brannan's Uniform Neg. Inst. L. (3d ed.) 95.

41 This has been so held in Maine. Manning v. Brown, 10 Me. 49; Niles . Phinney, 90 Me. 122, 37 Atl. 880, and in Walker v. Clay, 21 Ala. 797, 804, the court said: "If the payee of the note had failed or refused to perform the services stipulated, that would be a failure of consideration."

42 In many of the cases cited supra, n. 38, it is not clearly brought out whether the court intended to decide that the

plaintiff must show affirmatively as part of his case payment by him of his obligation, but this was decided in the following cases: Newsome v. Williams, 27 Ark. 632, 635; Cunningham v. Gwinn, 4 Blackf. 341; Summers v. Sleeth, 45 Ind. 598; Hatfield v. Miller, 123 Ind. 463, 466, 24 N. E. 330; School District v. Rogers, 8 Iowa, 316; Ewing v. Wightman, 167 N. Y. 107, 60 N. E. 322; Withers v. Atkinson, 1 Watts, 236, 246.

43 See supra, § 835.

44 Boone v. Eyre, 1 H. Bl. 273, n. See supra, § 818.

45 Lord Blackburn expressed the principle in Robinson v. Mollett, L. R. 7 H. L. 802, 814, "where the plaintiff