PART IV DISCHARGE OF CONTRACTS Chapter 20. Discharge by Performance, Tender and Breach. Chapter 21. Discharge by Other Means than Performance or Breach. Chapter 22. Remedies of the Parties. CHAPTER 20 DISCHARGE BY PERFORMANCE, TENDER § 161. Meaning of phrase "discharge of contracts." § 162. Of the performance which will discharge contracts. Contracts, to be performed "to satisfaction.'' § 163. § 164. Breach. § 165. Effect of acceptance of defective performance. § 166. Performance or tender required of one party before he can require performance by the other. § 161. Meaning of phrase "discharge of contracts. (Note: Assuming a contract has been entered into, not voidable, or, if voidable, not avoided, that is to say, assuming that there is a contractual obligation upon a person, how may he discharge the obligation? Obviously if he performs, he discharges it, but there are other manners of discharge. Discharge may possibly be by 4. Impossibility of performance, 5. Agreement, 6. Waiver, 7. Merger, 8. Operation of law, 9. Alteration.) § 162. (Contracts, Sec. 130.) Of the performance which will discharge contracts. Case 173. Bowes et al. v. Shand et al., 2 App. Cas. (Eng.) 455. Facts: Shand agrees to sell B a cargo of rice, under a contract, which as construed by the Court, required S to put the rice on board the "Rajah of Cochin" in Madras in March and April, for shipment to London. The rice was put on board in February, and B refused to accept it. This was an action for damages caused by such refusal. Point Involved: Whether a party may, without respect to its importance, insist on every term of his contract. * LORD BLACKBURN: 66* It was argued that it was enough that it was rice and that it is immaterial when it was shipped. * * * If you contract to sell peas, you cannot oblige a party to take beans. If the description of the article tendered is different in any respect, it is not the article bargained for * *. I think in this case what the parties bargained for was rice, shipped at Madras, or the coast of Madras. Equally good rice might have been shipped a little to the north or a little to the south of the coast of Madras. I do not quite know what the boundary is, and probably equally good rice might have been shipped in February as was shipped in March, or equally good rice might have been shipped in May was shipped in April, and I dare say equally good rice might have been put on board another ship as that which was put on board the 'Rajah of Cochin.' But the parties have chosen, for reasons best known to themselves, to say: We bargain to take rice, shipped in this particular region, at that particular time, on board that particular ship, and before the defendants can be compelled to take anything in fulfillment of that contract, it must be shown not merely that it is equally good, but that it is the same article that they have bargained for otherwise they are not bound to take it." Quetsion 173: What is the rule stated in the above case? Case 174. Nolan v. Whitney, 88 N. Y. 648. Facts: Michael Nolan contracted to do the mason work in the erection of two buildings in Brooklyn for $11,700 to be paid in installments as the work progressed. The last installment of $2,700 was payable 30 days after completion and acceptance of the work. The work was to be performed to the satisfaction and under the direction of an architect, whose certificate was necessary before any payment could be claimed. All installments were paid except the last, for which this suit was brought. The defense was that the contract was not performed as agreed and that the architect's certificate had not been obtained. The referee found that Nolan substantially and in good faith complied with the contract, but that there were trivial defects for which a deduction of $200.00 should be made. Whitney appeals. Point Involved: Whether a party under contract to construct a building according to plans and specifications involving minute details, can recover on the contract at the contract price, with a deduction for error, when he has not performed literally, but has performed substantially and in good faith. EARL, J.: "It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance; but the performance need not in all cases be literal and exact. It is sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially, and then he may recover for his work, notwithstanding slight or trivial defects in performance, for which compensation may be made by an allowance to the other party. Whether a contract has been substantially performed is a question of fact depending upon all the circumstances of the case to be determined by the trial court. According to the authorities cited, under an allegation of substantial performance, upon the facts found by the referee, Nolan was entitled to recover unless he is barred because he failed to get the architect's certificate, which the referee found was unreasonably and improperly refused. But when he had substantially performed his contract, the architect was bound to give him the certificate, and his refusal to give it was unreasonable, and it is held that an unreasonable refusal on the part of the architect in such a case to give the certificate dispenses with the neces sity." Question 174: What is the doctrine of substantial per formance? § 163. (Contracts, Sec. 131.) Of the performance of contracts which by their terms are to be to the satisfaction of the other party. Case 175. Brown v. Foster, 113 Mass. 136. Facts: Suit to recover the price of a suit of clothes which the tailor agreed to make up to the customer's satisfaction. Defense, that he was not satisfied. Point Involved: Whether one who has contracted that another shall make him a suit of clothes "to his satisfaction" may reject the clothes with no other reason than that he is not satisfied. DEVENS, J.: "There was evidence at the trial to show that the contract between the parties was an express contract and by the terms of it the plaintiff agreed to make and deliver to the defendant, upon a certain day a suit of clothes which were to be made to the satisfaction of the defendant. The clothes were made and delivered upon the day specified, but were not to the satisfaction of the defendant, who declined to accept, and promptly returned the same. If the plaintiff saw fit to do work upon articles for the defendant and to furnish materials therefor, contracting that the articles when manufactured should be satisfactory to the defendant, he can recover only upon the contract as it was made; and even if the articles furnished by him were such that the other party ought to have been satisfied with them, it was yet within the power of the opposite party to reject them as unsatisfactory. It is not for any one else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction. Although the compensation of the plaintiff for valuable services and materials may thus be dependent upon the caprice of another, who unreasonably refuses to accept the articles manufactured, yet he cannot be relieved from the contract into which he has voluntarily entered. 99 Question 175: (1) Would the defense that the defendant was not satisfied have been good if there had been nothing said as to satisfaction? Case 176. Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387. Facts: Contract to alter boilers for G., payment to be made only when G. was "satisfied that the boilers as changed were a success." The work was done in a workmanlike manner; but defendant, G., claimed he was not satisfied. Point Involved: Whether one who has contracted that another shall do work of a mechanical character to his satisfaction, can aver in full defense for not accepting the work simply that he is not satisfied. DANFORTH, J.: In the case before us the work required was specified, and was completed; If there was full performance on the plaintiff's part, |