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before, the sealing and delivery of the deeds, cause and procure good and sufficient security to be given to the defendant, to be approved of by the defendant, for the payment of £250 monthly, to the defendant, in lieu of a moiety of the monthly produce of the stock in trade, until the value of the stock should be reduced to £4000. Then the plaintiff averred, that he had performed, and been ready to perform, his covenants, and assigned for breach on the part of the defendant, that he had refused to surrender and give up his business, at the end of the said year and a quarter. The defendant pleaded, 1. That the plaintiff did not offer sufficient security; and 2. That he did not give sufficient security for the payment of the £250, etc. And the plaintiff demurred generally to both pleas. On the part of the plaintiff, the case was argued by Mr. Butler, who contended, that the covenants were mutual and independent, and, therefore, a plea of the breach of one of the covenants to be performed by the plaintiff was no bar to an action for a breach by the defendant of one of which he had bound himself to perform, but that the defendant might have his remedy for the breach of the plaintiff, in a separate action. On the other side, Mr. Grose insisted, that the covenants were dependent in their nature, and, therefore, performance must be alleged: The security to be given for the money, was manifestly the chief object of the transaction, and it would be highly unreasonable to construe the agreement, so as to oblige the defendant to give up a beneficial business, and valuable stock in trade, and trust to the plaintiff's personal security (who might and, indeed, was admitted to be worth nothing), for the performance of his part. In delivering the judgment of the court, Lord Mansfield expressed himself to the following effect: There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other, for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant, to allege a breach of the covenants on the part of the plaintiff. 2.

There are covenants which are conditions and dependent, in which the performance of one depends on the prior performance of another, and, therefore, till this prior condition is performed, the other party is not liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time; and, in these, if one party was ready, and offered, to perform his part, and the other neglected, or refused, to perform his, he who was ready, and offered, has fulfilled his engagement, and may maintain an action for the default of the other; though it is not certain that either is obliged to do the first act. His Lordship then proceed to say, that the dependence, or independence, of covenants, was to be collected from the evident sense and meaning of the parties, and, that, however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance. That, in the case before the court, it would be the greatest injustice if the plaintiff should prevail: The essence of the agreement was, that the defendant should not trust to the personal security of the plaintiff, but, before he delivered up his stock and business, should have good security for the payment of the money. The giving such security, therefore, must necessarily be a condition precedent. Judgment was accordingly given for the defendant, because the part to be performed by the plaintiff was clearly a condition precedent."

Question 179: What breach of contract did plaintiff allege in this case? What was the defense? How did plaintiff reply to the defense? Was the defense good? Why?

§ 167. (Contracts, Sec. 135.) Breach of one part of a severable contract not a breach of the contract.

Case 180. Hill v. Balkcom, 79 Ga. 444, 5 S. E. 200.

BLANDFORD, J.: "Hill brought his action against Balkcom upon a contract in which he, Hill, had agreed to

teach Balkcom's children, together with other children, for nine months for $45. The court below held that inasmuch as he showed he did not teach but 812 months, he could not recover. To this ruling Hill excepted, and this is the error complained of here.

"We think the court below was right in its ruling. Had the suit been upon a quantum meruit [a contract implied in law or quasi contract] it would have presented a very different question. But where the action was upon the contract itself, inasmuch as he showed he had not performed his part of the contract, he, of course, could not A contract is either entire or sever

recover.

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able. If it be severable, a party who has performed a portion thereof, may recover for that portion from the other contracting party, and an entire contract may be apportioned. For instance, if Hill had agreed to teach this school for 9 months at $5 per month, the contract could have been apportioned, although he had failed to teach for the full term agreed upon.

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Question 180: What was Hill to do in this case before he could claim the payment? If he had sued not on the contract but on a quantum meruit ("as much as he deserves") did the Court think it might have allowed him something? In that case would a recovery by him have been allowed (his breach being wilful) by the weight of authority? If his contract had been to teach for $5 per month for 9 months payable monthly and he had taught 412 months, could he have recovered $20 for the 4 months? $22 for the half month?

(Note: The question whether a contract is entire so that a breach of a part is a breach of the whole, or severable (or divisible) is one of the hard questions in the law.

"The governing principle is the manifested intention of the parties in view of the nature of the contract and the usages of business-that is, their intention to have performance of the contract in parts and have the performance of a part on one side the price or exchange of a corresponding price on the other. If the payment of a lump sum is to be made for several articles, the contract is necessarily indivisible. Contracts of service for a specified term are held severable when the wages

or salary can be construed as payable at specified shorter periods, and generally the mere fact that a rate for a shorter period is stated seems enough to warrant such a construction" (Williston on Contracts, 1920, Sec. 862). In the note to Case 178 in which the right of a person to recover for services performed when guilty of a breach, we assumed that he was suing for breach of an indivisible contract or an indivisible part of a divisible contract. Of course if one sues for performance of a part when he is guilty of breach of the whole, he is responsible in damages for his breach.

For cases upon sales of personal property upon installments, see "Sales," Sec. 366.)

§ 168. (Contracts, Sec. 136.) To what one of a number of contracts performance relates-Application of payments.

(Note: It is the rule as to a voluntary payment by a debtor, the debtor has the right in making the payment to direct its application as among several debts, but if he does not so direct, the creditor may apply it as he chooses, that is, to an unsecured claim rather than a secured claim, to an older claim, etc.)

§ 169. (Contracts, Sec. 137.) Breach of contract by renunciation prior to time of performance.

Case 181. Hochster v. De La Tour, 2 El. & Bl. 678. Facts: Plaintiff, in April, 1852, agreed to serve defendant, as courier, for three months from June 1, 1852, on certain terms. May 11, 1852, defendant wrote plaintiff he had changed his mind and would not employ plaintiff. May 22nd plaintiff brought suit. Defendant claimed that there could be no breach until time of performance, and that until that time, he should have opportunity to change his mind and decide to perform.

Point Involved: Whether an executory contract can be treated by the promisee as broken by the promisor before the time for performance.

LORD CAMPBELL, C. J.:

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But it is surely

much more rational and more to the benefit of both parties that after the renunciation of the agreement by the

defendant the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Thus, instead of laying out money in preparations which must be useless he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract. It seems strange that the defendant, after renouncing the contract and absolutely declaring that he will never act on it, should be permitted to object that faith is given to his assertion, and that an opportunity is not left to him of changing his mind.

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Question 181: Can a contract be broken by a party thereto before the time has come to perform it?

Case 182. Kadish v. Young, 108 Ill. 170.

Facts: On December 15, 1880, Y. agreed to sell to K. 100,000 bushels of No. 2 barley at $1.20 per bushel, to be delivered in January, 1881. On December 16, 1880, K. gave notice that he would not receive the barley. Y. nevertheless treated the contract as still subsisting and on January 12, 1881, tendered the warehouse receipts to K., who refused to accept. Thereupon Y. sold the barley on the market, at less than $1.20 per bushel, and sued K. for the loss. K. contends that Y. should have acted on his renunciation and attempted to sell the barley in December, when barley was higher, and thus have diminished the damages in whole or part.

Point Involved: The same question as above. With the additional point whether the other party must act upon the attempted renunciation or may hold the contract open; and the consequences of so doing.

MR. JUSTICE SCHOLFIELD: "But the well settled doctrine of the English Courts is, that a buyer cannot thus create a breach of contract upon which the seller is bound to act.

"The question came before this Court in Fox v. Kitton,

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