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and, in accordance therewith, we are arranging | you the business to take up vessels for the first shipment of 1,000 addressed to the plaintiff, signed by the defentons. We cannot restrict ourselves to vessels of dant. The plaintiff afterwards wrote below, "I any particular flag or class, but will of course agree to the above terms, and accept the same," give a preference to neutral ships of high class." and signed. In an action for not selling, the On the 15th of December B. & Co. wrote to A. defence was that the paper was not meant to be saying, "that they would prefer abandoning the a contract of sale. The judge left it to the jury contract altogether." And afterwards on the whether the defendant signed the paper as an same day A. wrote, "We accept your offer of agreement or an offer to the plaintiff, or as a the 19th of November last, coupled with the memorandum of terms on which the plaintiff initialled offer of the 18th. Messrs E. hold us might offer the business for sale to a purchaser : to our contract, and therefore we must hold you -Held, a proper direction. Ib. to yours, and cannot consent to your abandoning it as intimated" :-Held, that these letters did not constitute a complete contract, but that recourse must be had to parol evidence; and, consequently, that it was properly left to the jury to say whether or not a binding contract as alleged in the declaration was to be inferred from the whole. Bolckow v. Seymour, 17 C. B. (N.S.) 107.

Where a contract is to be made out partly by written documents and partly by parol evidence, the whole becomes a question for the jury. Ib.

Evidence is admissible to show that a document, apparently an agreement, was signed without any intention of making a present contract, but that it was to be conditional only upon the happening of an event which has not occurred. Pym v. Campbell, 6 El. & Bl. 370; 25 L. J., Q. B. 277: 2 Jur. (N.S.) 641; 4 W. R. 528. S. P., Davies v. Jones, 17 C. B. 625; 25 L. J., C. P. 21; 4 W. R. 248; Furness v. Meek, 27 L. J., Ex. 34.

Different Contract.]-When letters contain certain terms which may form the basis of a contract, it is necessary to ascertain from the letter whether the terms are finally arrived at, and if they are not, verbal evidence is admissible to shew that a different contract has been entered into. Johnson v. Appleby, 43 L. J., C. P. 146; L. R. 9 C. P. 158; 30 L. T. 261; 22 W. R.

Incomplete Written Agreement.]—Where there is a parol agreement between two persons, and a subsequent written agreement which does not embrace all the terms of the parol agreement, it is a question of fact for the jury whether it was the intention of the parties that there should be a distinct parol agreement collateral to the writ-515. ten agreement, and evidence of the terms of the parol agreement is admissible. Lindley v. Lacey, 17 C. B. (N.s.) 578; 34 L. J., C. P. 7; 10 Jur. (N.S.) 1103; 11 L. T. 273; 13 W. R. 80.

A. verbally agreed with B. to sell him certain goods, B. having induced A. so to do on his undertaking to settle an action about to be commenced against A. The agreement as to the sale was put into writing, and in the agreement authority was given to B. to settle the action, but his obligation to do so was not stated. The action was not stayed, and execution issued. In an action on the agreement for the price of the goods and damages sustained, by the action having been allowed to proceed, it was objected that evidence of the verbal agreement was not admissible, as being part of one entire contract which had been reduced into writing :-Held, that the evidence was admissible. 1b.

State of Document when Signed.]—A. signed a proposal for a contract in a certain form. B. then altered it and signed it in the altered form and brought it to A. Parol evidence having been given in an action against A. that he verbally agreed that the altered document should be the contract:-Held, that such evidence was rightly admitted, as showing what was the state of the document when it became an agreement. Hudson v. Stuart, 43 L. J., C. P. 204; L. R. 9 C. P. 311; 30 L. T. 333; 22 W. R. 534.

No Contract.]-When a document appears on the face of it to contain the terms of a written agreement, parol evidence is admissible to show that it was not intended to be an agreement, but was written for some other purpose, and the question whether this is so or not is for the jury. Clever v. Kirkman, 33 L. T. 672; 24 W. R. 159.

The defendant gave the plaintiff a paper stating, "The terms upon which I agree to sell VOL. IV.

A document purporting to be a contract, signed by the parties, is not necessarily so; and it is competent for either of the parties to show by parol evidence that it was not their intention, in signing, that it should operate as a contract, and that the real contract between them was not in writing. Rogers v. Hadley, 2 H. & C. 227; 32 L. J., Ex. 241; 9 Jur. (N.s.) 898; 9 L. T. 292 ; 11 W. R. 1074.

Of what Matters.]-In ambiguous contracts, the domicile of the parties, the place of execution, the purpose, and the various provisions and expression of the instrument are material to be considered in the construction. Lansdowne v. Lansdowne, 2 Bligh, 66; 21 R. R. 43.

Surrounding Circumstances.]-Extrinsic circumstances not only may but must always be looked at, because an agreement can never be made intelligible unless the persons and subjectmatter with which the parties are dealing can be identified. Brown v. Fletcher, 35 L. T. 165.

Unilateral Contract.]—Where a document purports to be a unilateral contract, binding the signatories for an indefinite time to sell certain specified debentures of a company to one of its officers at a specified price; but the circumstances under which it was executed shewed that the real intention of the signatories was to limit for their common benefit their claims against the company, in order to facilitate some financial operation then contemplated :-Held, that such intention controlled its effect, and that it could not be treated as an agreement for sale, for the benefit of such purchaser. Senécal v. Pauzé, 14 App. Cas. 637-P. C.

Subsequent Acts.]-Acts or communications of the parties, after an agreement, may be evidence of facts existing at the time of the agreement material to its construction, but not

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to determine its meaning. Monro v. Taylor, 8 Hare, 56; 3 Mac. & G. 713; 21 L. J., Ch.

525.

To Vary.]-Neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the Statute of Frauds. Hickman v. Haynes, 44 L. J., C. P. 358; L. R. 10 C. P. 598; 32 L. T. 873; 23 W. R. 871.

though after time, and retained in discharge of a larger sum, which in default of payment of the lesser sum would have become due, the receiver cannot retain such sum otherwise than as the discharge. Such larger sum is of the nature of a penalty, and the court is at liberty to grant any equitable relief from such payment as it may think fit. Johnson v. Colquhoun, 32 W. R. 124.

Exercise of Right of Election to Rescind.]. Agreement to purchase established upon a The exercise of a right of election to rescind a correspondence referring to the terms of such building agreement must be signified in an unagreement. Parol evidence is admissible to ex-qualified manner and within a reasonable time, plain the subject matter of an agreement, al- or, at all events, not after the other party to the though not to vary the terms. Ogilvie v. Fol- agreement has gone to expense in the belief of jambe, 3 Mer. 53; 17 R. R. 13. And see Child the right of election not being exercised. v. Comber, 3 Swanst. 423, n. den v. Sambell, 43 L. T. 120; 28 W. R. 952.

Assent to Contract Signed by Other Persons.]-If a party, by the payment of money, and by his conduct in other respects, signify his assent to the terms of a written agreement, signed by other persons, but not by himself, he will not be entitled, in an action arising out of that contract, to give verbal evidence of a subsequent variance, in order to proceed against any of those persons, as on a new and independent contract, or to recover back the money so paid as money had and received, without resorting to the written agreement. Day v. Canning, 5 L. J. (0.s.) K. B. 231.

To show previous Parol Promise.]-When a written contract has been executed, containing all the terms agreed upon between the parties, a previous parol promise relating to the same subject-matter is invalid. Angell v. Duke, 32 L. T. 320; 23 W. R. 548.

The defendant let a house and furniture to the plaintiff by a written agreement; evidence of a previous parol promise by the defendant to put in more furniture was tendered at the trial and rejected-Held, that the rejection was right.

Ib.

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Mistaken Claim to Rescind, Effect of.-A mistaken claim by one of the parties to such an agreement to rescind it, does not ipso facto operate to rescind the agreement, unless the other party claims a rescission on the ground of the mistaken claim. Ib.

If one of the parties to such an agreement himself rescinds it, he is not entitled to make entry on the premises for the purpose of removing the goods after the date of rescission. Ib.

Mutual Stipulations-Discharge of One Party, whether Discharge of Both.]-Where something is covenanted or agreed to be performed by each of two parties at the same time, he who was ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part. Jones v. Barkley, 2 Dougl. 684.

Where Third Party has Acquired an Interest.] -Where an agreement is made between two parties, by virtue of which a third party acquires such an interest as would entitle him, after the death of one of the contracting parties, to sue as plaintiff in a court of equity, the contracting parties are not necessarily prevented from alter

In Cases between_Landlord and Tenant.]—ing or rescinding the contract. Hill v. Comme, See LANDLORD AND TENANT.

To Connect Documents.]-See supra, STATUTE OF FRAUDS-Sufficiency of Memorandum. See further, EVIDENCE.

E. DISCHARGE AND BREACH OF CONTRACTS.

1. BY DISCHARGE OR RESCISSION. Where new Agreement.]-Novation means that, there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be), or between different parties; the consideration mutually being the discharge of the old contract. A common instance is in partnership cases, when the members of the new firm take over the liabilities of the old firm. Scarf v. Jardine, 51 L. J., Q. B. 612; 7 App. Cas. 351; 47 L. T. 258; 30 W. R. 893-H. L. (Sc.) And see Hobson v. Cowley, 27 L. J., Ex. 205; 6 W. R. 334.

Retaining Smaller Sum in Lieu of Larger.]Where a le ser sum has been tendered, even

1 Beav. 540. Affirmed, 5 Myl. & C. 250; 9 L. J., Ch. 54; 4 Jur. 165.

Mutual Consent.]-B., being about to erect seats for viewing a public funeral, entered into an agreement with A., a foreign agent, to make the scheme known abroad and dispose of tickets for the seats. A. was to be paid for his work and expenses by a percentage on the tickets which he sold. After he had incurred expenses, but before he had sold any tickets, B. desired him not to dispose of them, as he would sell them himself. A. accordingly sent all applicants for the tickets to him, and after the funeral delivered to B. a bill for work done and expenses incurred. B. paid the expenses, but refused to pay for the work :-Held, that it was a question for the jury whether the original contract was not rescinded by mutual consent, and whether there was not a new implied contract that A. should be paid for the work actually done, as upon a quantum meruit. De Bernardy v. Harding, 8 Ex. 822; 1 C. L. R. 884; 22 L. J., Ex. 340; 1 W. R. 415.

A rescission of a contract can only be by mutual consent, and any expression of wish to rescind uttered by one party, and not communi

cated to the other, is immaterial. Heinekey v. | 2 H. & N. 79; 26 L. J., Ex. 240; 3 Jur. (N.s.) 470; Earle, 8 El. & Bl. 410; 28 L. J., Q. B. 79; 4 Jur. 5 W. R. 560. (N.S.) 848; 6 W. R. 687-Ex. Ch.

Two persons, in 1799, sign and give to each other papers by which each charges his real and personal estate with 1,0007. in favour of the other if he should survive him, each paper expressly referring to the other as its inducement. The parties never met afterwards; but, many years afterwards, a correspondence took place between them, in which each expressed a wish to abandon the agreement, and one of them sent back to the other his paper. Shortly afterwards both died-Held, that the estate of the survivor had no purely equitable claim against that of the other, and, the legal claim being doubtful, the bill was retained for twelve months, with liberty to bring an action. Ryan v. Daniel, 1 Y. & Coll.

C. C. 60.

Quære, whether he had a legal claim, and whether, if legal originally, it was not legally cancelled. Ib.

Proof.]-A rescission of an agreement requires proof of an actual agreement to rescind. Rockcliffe v. Pearce, 1 F. & F. 300.

A declaration alleged that the plaintiff was possessed of a house for the residue of a term of six years, and of goods and furniture therein, and that the plaintiff agreed to assign the lease of the house to the defendant at a certain price, and the furniture at a valuation, possession to be delivered at a certain day; and that she was ready and willing to assign her interest in the house, and to deliver up possession of the goods at a fair appraisement. It was proved at the trial that a great part of the house and furniture were destroyed by fire shortly after the agreement, and before the time of its completion. The agreement provided that either party making default should pay to the other 5007. as liquidated damages. After making the agreement, but before the day for its completion arrived, the parties agreed, by an indorsement on the former agreement, to enlarge the time for its performance for a few days :-Held, that this amounted to a fresh agreement. Bacon v. Simpson, 3 M. & W. 78; M. & H. 309; 7 L. J., Ex. 34.

A waiver of a stipulation in an agreement must, to be effectual, be made intentionally, and with knowledge of the circumstances. Darnley (Earl) v. London, Chatham, and Dover Ry., 36 L. J., Ch. 404; L. R. 2 H. L. 43; 16 L. T. 217; 15 W. R. 817.

Where a written agreement exists, and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for the written agreement, he must clearly show, not merely his own understanding as to the new terms of arrangement, but that the other party had the same understanding. Ib.

A contract in writing was made for the sale of goods above 107. in value, to be delivered at a future time. Before the time for delivery arrived the parties made a parol agreement extending the time :-Held, that the parol agreement, being invalid under the Statute of Frauds (29 Car. 2, c. 3, s. 17), did not effect an implied rescission of the former contract. Noble v. Ward, 4 H. & C. 149; 36 L. J., Ex. 91; L. R. 2 Ex. 135; 15 L. T. 672; 15 W. R. 520-Ex. Ch.

Leave and licence cannot be pleaded to a breach of contract; but the defendant must show an exoneration or discharge. Dobson v. Espie,

A plea, in an action on a contract to do several things, that the contract was rescinded before breach, even although the breach laid in the declaration is general, is to be construed as meaning that the rescission was before any breach, and, therefore, if this is not proved, the plea fails in toto, and there is no necessity for a new assignment. Burgess v. De Lane, 27 L. J., Ex. 154.

A valid contract cannot be waived unless both parties assent, at the same time, to the proposal to put an end to it. Whittaker v. Fox, 13 L. T., 588; 14 W. R. 192.

A contract cannot be rescinded by one party for the default of the other, unless both can be put in statu quo, as before the contract. Hunt v. Silk, 5 East, 449; 2 Smith, 15; 7 R. R. 739.

When Impossible.]-A contract which cannot be rescinded in toto, cannot be rescinded at all; but the party complaining of the non-performance of the fraud must resort to an action for damages. Sheffield Silver Nickel and Plated Co. v. Unwin, 46 L. J., Q. B. 299; 2 Q. B. D. 214; 36 L. T. 246; 25 W. R. 493.

A defendant entered into an agreement in writing with the plaintiff, by which he was to board and lodge with the plaintiff at a certain weekly sum, and the plaintiff agreed to take in payment for the board and lodging certain furniture of the defendant in the plaintiff's house. The furniture having afterwards, and before the plaintiff had appropriated it, been taken in execution for a debt of the defendant to another party :-Held, that the plaintiff was entitled to recover for board and lodging generally, as if the special contract had never existed. Keys v. Harwood, 2 C. B. 905; 15 L. J., C. P. 207.

By Parol.]-Agreement in writing may be discharged by parol, notwithstanding the Statute of Frauds. Goman v. Salisbury, 1 Vern. 240.

Recovery back of Money Paid.]—An action for money had and received lies when a payment has been made on a contract which is put an end to. Towers v. Barrett, 1 Term Rep. 133. S. P., Weston v. Downes, 1 Dougl. 23; Davis v. Street, 1 Car. & P. 18.

But if it continues open, the plaintiff can only recover damages, and then he must state the special contract and the breach of it. Ib.

Where the master and part owner of a vessel agreed to purchase the remaining moiety of his partner, and having paid the purchase-money, and received the title-deeds, which he deposited with a third person as a security, required entire possession of the ship, but his partner afterwards refused to execute a bill of sale or refund the money :-Held, that an action would not lie to recover the purchase-money, as the parties could not be restored to their original situation. Reed v. Blandford, 2 Y. & J. 278.

Where some act is to be done by each party under a special agreement, and the defendant, by his neglect, prevents the plaintiff from carrying the contract into execution, the plaintiff may recover back any money paid under it. Giles v. Edwards, 7 Term Rep. 181; 4 R. R. 414.

B. engaged to let A. land on building leases, and to lend him 4,000l. to assist him in the erection of twenty houses, the money to be repaid

by June, 1828. A. agreed to build the houses, to | note to C., and informed him of H.'s objection. convey them as security for the loan, and repay C. struck his pen through the word objected to the money. When six houses were built, and by H., placing his initials over that erasure, and 1,1687. had been advanced, B. requested A. not to returned it to the broker, who thereupon dego on with the other fourteen houses; A. desisted: livered it, so altered, to H. & Co. The broker Held, that, after June, 1828, B. might recover delivered to C. & Co., on the following day, a the 1,1687. as money lent; and that it was not bought note, which differed in certain material necessary to sue on the agreement, which was terms from the sold note. In an action brought rescinded by consent. James v. Cotton, 7 Bing. by H. & Co. against C. & Co. for non-performance 266; 5 M. & P. 26. of the contract contained in the sold note:Held, that the transaction was one of bought and

Discharge in Country of Debtor's Domicil.]-sold notes, and that the circumstances attending The discharge of a debt or liability under a contract by the law of a foreign country, not being the country where the contract was made or is to be performed, is no answer to an action upon the contract in England, even though the discharge has been obtained in the country of the debtor's domicil. Gibbs v. Société Industrielle des Métaux, 59 L. J., Q. B. 510; 25 Q. B. D. 399; 63 L. T. 503-C. A.

C.'s alteration of the sold note, and affixing his initials, were not sufficient to make that note alone a binding contract; and that, there being a material variation in the terms of the bought note with the sold note, they together did not constitute a binding contract. Cowie v. Remfry, 5 Moore P. C. 232; 3 Moore Ind. App. 448; 10 Jur. 789.

Not Insisted on.]-An alteration made Necessary to Determine Voidable Contract.]—by the owner of a house in the terms of an agreeWhen a contract is voidable, but not void, it ment for a lease thereof, but not insisted on by remains valid till it is rescinded. Reese River him :- Held, not to vitiate the contract. Jolliffe Mining Co. v. Smith, 39 L. J., Ch. 849 ; L. R. 4 v. Blumberg, 18 W. R. 784. H. L. 64; 17 W. R. 1042.

2. ALTERATION.

After Breach.]-An alteration of a written agreement, even after breach, after delivery to the party suing upon it, renders the agreement void. Davidson v. Cooper, 11 M. & W. 778; 12 L. J., Ex. 467.

Plea, to a guarantee, that, after it had been signed and delivered to the plaintiff, and whilst in his hands, it was, without the knowledge or consent of the defendant, altered in a material particular by some person to the defendant unknown, and its nature and effect materially

By Agent Building Contracts.]-A. built a house on land of B. under a written agreement with him containing provisions for payment, on certificates of B.'s architect, and stipulations as to orders for extras. The contract, while in the custody of the architect, was altered in a material particular relating to such orders. The main work only having been certified and paid for, A. sued B. upon a quantum meruit to obtain pay-changed, by such unknown person affixing a seal ment for certain extra work done, and he put the written agreement in evidence :-Held, that the alteration by the architect must be treated as if made by B. himself; but, nevertheless, that A. could not recover, because the work, having been done on land, no contract could be implied by law from the mere retention of that which could not be returned; and it appeared that a special written bargain had been made, the terms of which, however, could not be proved by A., as the agreement containing them having been vitiated by a material alteration, was inadmissible, although sufficiently existing in specie to be capable of showing that an express contract had been entered into under which the work was done. Pattison v. Luckley, 44 L. J., Ex. 180; L. R. 10 Ex. 330; 33 L. T. 360.

By one Party-Assent.]-An alteration in a material part of a written contract, without the consent of both parties, is a material alteration, which avoids the contract, although it may not have altered the duty of the party sought to be charged. Mollett v. Wackerbarth, 5 C. B. 181; 17 L. J., C. P. 47.

A material alteration in a sold note made by a buyer without the knowledge or consent of the seller, prevents the former from suing on the contract, notwithstanding the duty of the latter may not be varied by the alteration. Ib.

Č. & Co. and H. & Co. were merchants at Calcutta. H. & Co. sold to C. & Co. a quantity of indigo, through a broker, who drew up a sold note, addressed to H. & Co., and submitted it to H. for his approval, when he having objected to a particular word remaining, the broker took the

by or near to the signature of the defendant, so as to make it purport to be sealed by the defendant, and to be the deed of the defendant; by reason of which alteration the guarantee became void. At the trial it was proved that the guarantee when signed had no seal to it, but, when produced in evidence by the plaintiff, it had a waifer affixed to it before the signature of the defendant :-Held, that the plea was proved, and that it purported to be the deed of the defendant. Ib. Affirmed in the Exchequer Chamber, 13 M. & W. 343; 13 L. J., Ex. 276.

Held, also, that the plea was a good defence to the action. Ib.

By Broker-Margin of Charterparty.] — A merchant at Liverpool entered into a charterparty on the following terms with the owner of a vessel :-"It is mutually agreed with the owner of the good ship 'Zwaan,' now at Amsterdam, and to sail from thence for Liverpool on or before the 15th of March next, of the one part, and the charterer, of the other part, that the ship, being tight, staunch and strong, shall with all convenient speed be made ready," as in the usual printed form of charterparty. The exception was as follows: "Restrictions of princes and rulers, the dangers and accidents of the seas and navigation, the act of God, fire, pirates, and enemies throughout this charterparty always excepted." After signing the charter, the broker who had acted for the owner wrote in the margin, to come in after the words "March next," "wind and weather permitting, with cargo or in ballast, for ship's benefit." He then took the charter to the charterer, and told him that he had made

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the note in the margin, which he said did not | he does not hold himself bound by it, the other affect it. The charterer said that the note is at liberty to treat such renunciation as a breach altered the matter, and he did not know that he would then accept the charter; and he ultimately refused to do so. The ship did not sail from Amsterdam, in consequence of what was admitted to be "the act of God" :-Held, that the charterparty was avoided by the alteration so made in the margin. Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J., Ex. 153; 5 W. R. 348.

Bank Note-Erasure of Number.]-In an action against the Bank of England for the nonpayment of notes payable to bearer which had been regularly issued by the bank, it appeared that the notes had been bonâ fide purchased by the plaintiff for value, but that before the plaintiff took them the notes had been altered by erasing the numbers upon them, and substituting others, with the object of preventing the notes from being traced, as payment had been stopped and a notice issued specifying their numbers-Held, that although the alteration did not vary the contract, it was material in the sense of altering the notes in an essential part, and that therefore the notes were vitiated, so that the plaintiff could not recover in his action on them against the bank. Suffell v. Bank of England, 51 L. J., Q. B. 401; 9 Q. B. D. 555; 47 L. T. 146; 30 W. R. 932; 46 J. P. 500—C. A. | Schedule added after Execution of Agreement.] -Where the subject-matter of an agreement of hiring was expressed to be "furniture, &c., &c., mentioned in the schedule hereto," and the schedule was added by the plaintiff after execution:-Held, that this did not vitiate the agreement. Harris v. Tenpany, 1 Cab. & E. 65.

By Court.]-Court of equity has no power to alter the contracts of parties from an eventual change not contemplated at the time. Revell v. Hussey, 2 Ball & B. 288; 12 R. R. 87.

3. REPUDIATION AND NON-PERFORMANCE. Repudiation.]—An absolute unconditional renunciation of a contract before time of performance amounts to a breach at the election of the promisee. Wilkinson v. Verity, 40 L. J., C. P. 141; L. R. 6 C. P. 206; 24 L. T. 32; 19 W. R. 604. S. P., Frost v. Knight, 41 L. J., Ex. 78; ; L. R. 7 Ex. 111; 26 L. T. 77; 20 W. R. 471-Ex. Ch.

The repudiation of a contract upon insufficient grounds will be good, if at the time there existed sufficient grounds of which the person repudiating was not aware. London and Mediterranean Bank, In re, Wright's Case, 41 L. J., Ch. 1; L. R. 7 Ch. 55; 25 L. T. 471; 20 W. R. 45.

of the contract, without waiting the arrival of the day fixed for its performance. Danube and Black Sea Railway and Kustendjie Harbour Co. v. Xenos, 11 C. B. (N.S.) 152; 31 L. J., C. P. 84; 5 L. T. 527. Affirmed, on appeal, 13 C. B. (N.S.) 825; 31 L. J., C. P. 284; 8 Jur. (N.S.) 439; 10 W. R. 320-Ex. Ch.

When there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more, as he has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the contract. Cort v. Ambergate Ry., 17 Q. B. 127; 20 L. J., Q. B. 460; 15 Jur. 877.

A declaration stated an executory contract, whereby the plaintiff agreed to sell and the defendant to buy, on arrival by a certain ship, onethird of a cargo of tea, to be consigned to the plaintiff, and delivered in Belfast, from the ship to the defendant, at a certain price payable after delivery. It averred that the ship arrived at Belfast with a cargo of tea, consigned to the plaintiff; that the plaintiff was ready and willing to deliver the cargo in Belfast to the defendant according to the agreement; yet the defendant before the arrival of the ship with the cargo at Belfast, discharged the plaintiff from delivering the cargo, and thenceforth refused to perform the agreement :-Held, first, that the defendant was not bound before the arrival of the cargo to give the plaintiff a distinct answer whether he would fulfil the contract or not. Ripley v. MClure, 4 Ex. 345; 18 L. J., Ex. 419.

Held, secondly, that a refusal by the defen dant, before the arrival of the cargo, to perform the contract, was not a breach of it; but that such refusal unretracted, down to and inclusive of the time when the defendant was bound to receive the cargo, was evidence of a continuing refusal, and a waiver of the condition precedent of delivery, and consequently the defendant was liable for the breach of contract. Ib.

See also SALE OF GOODS.

Before Time for Performance-Election.]— In a lease of premises for a term of twentyone years determinable by the lessee at the end of the first four years by a six months' notice, the lessor covenanted to rebuild the premises after the expiration of the first four years of the term upon a six months' notice from the lessee requiring him to do so. Before the re-expiration of the first four years of the term the lessor on many occasions told the lessee that he would be unable to procure the money for rebuilding the premises. The lessee, in consequence of this statement by the lessor, gave the requisite notice, under the provisions of the lease, to determine the term at the end of the first four years. After the determination of the lease he continued to occupy the premises for some months, paying rent to the lessor s mortgagees, on the chance, as he stated, of the lessor's procuring the money to rebuild. The lessor being, however, unable to rebuild the premises, the lessee claimed damages against

When the defendant has contracted to sell goods to be delivered at various times, if he pudiates at the date of an early delivery, the plaintiff may treat that as a breach of the whole contract and sue accordingly. And the measure of damages will be the differences between the contract price and the prices at the different times of intended delivery. Roper v. Johnson, 42 L. J., C. P. 65; L. R. 8 C. P. 167; 28 L. T. 296; 21 W. R. 384.

Of Executory Contract.]-When two parties enter into a contract which is to be performed at a future day, and, before the day for performance arrives, one of them gives the other notice that

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