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In cases, however, in which equitable relief is sought, "time is not of the essence of the contract," except where made so by express agreement or express notice, or by implication from the circumstances of the case (2). As regards place, performance must be at the agreed place if any, and if none then the debtor is bound to find the creditor, if in the jurisdiction, and offer him payment or performance (a).

Incidentally the subject of tender should be noted. Tender is an attempted payment or performance by the debtor or party liable, and if refused, and the debtor is afterwards sued for non-performance, he may plead the tender, and in cases of debts, must pay the sum tendered into court, and thereupon he becomes entitled to his costs, if the plaintiff recovers no more than what was tendered. The tender must comply with all the conditions of actual performance as regards time, place, and manner; and must be unconditional (b).

(4) Accord and satisfaction or release is really nothing more than an agreement by one party to accept something in satisfaction of his right of action for breach of contract by the other party (e). There must be some valuable consideration for the agreement, or else a release under seal; otherwise the agreement would be a gratuitous promise, and therefore, as we have already seen, unenforceable (d). In the case of an accord and satisfaction in the proper sense, there must always be a consideration, and this consideration must be executed or satisfied (e).

(5) Merger.—This occurs where a party, by taking or acquiring a security of a higher nature in legal operation

(2) Lery v. Stogdon, [1899] 1 Ch. 5; Hatten v. Russell (1888), 38 Ch. D. 334.

(a) See Comber v. Leyland, [1898] A. C. 524.

(b) Finch v. Brook (1834), 1

Bing. N. C. 253; Greenwood v.
Sutcliffe, [1892] 1 Ch. 1.

(c) Day v. McLea (1889), 22 Q. B. D. 610.

(d) See above, p. 89.

(e) Hall v. Flockton (1851), 16 Q. B. 1039.

than the one he already possesses, merges or extinguishes his legal remedies upon the minor security or cause of action. Thus a simple contract is merged in a bond or contract by deed, and the remedy upon any contract, whether simple or by specialty, is merged in a judgment obtained in respect of it. In order that merger may take place, the two securities or causes of action must be substantially identical and co-extensive, and the parties must be the same (ƒ).

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(6) Bankruptcy.-After a receiving order is made against a debtor, no creditor has "any remedy against the property or person of the debtor," or may commence any action or other legal proceeding, unless with the leave of the court" (Bankruptcy Act, 1883, s. 9 (1)). But a secured creditor may realise or otherwise deal with his security. When a bankrupt has obtained an "order of discharge," it releases him from all debts provable in bankruptcy except debts on recognisance, debts chargeable at the suit of the Crown or the public revenue, or on bail bonds, and debts or liabilities incurred by means of any fraud or fraudulent breach of trust (Bankruptcy Act, 1883. s. 28), and except liability under any judgment in an action for seduction, or under an affiliation order, or as a co-respondent in a matrimonial cause (Bankruptcy Act, 1890, s. 10). This subject is more fully dealt with elsewhere in this work (g).

(7) Breach of contract.-Breach of contract by one party does not necessarily discharge the other. It only does so at the latter's option, first, where the breach occurs either before or after performance was due, and consists in some act which altogether disables the defaulting party from performing his promise, e.g., where A. promises to

(f) Commissioners of Stamps v. Hope, [1891] A. C. 476; McLeod v. Power, [1898] 2 Ch. 295.

(g) See post, bk. II. pt. II. ch. VI.

marry B. and subsequently marries C. (h); secondly, where one party expressly and unequivocally renounces the contract, and notifies his intention not to perform it (i); and thirdly, where the duty of one party to perform his part of a contract is expressly or impliedly conditional on the other performing his, and such other makes default in doing so, e.g., on a sale of goods, payment by the buyer and delivery by the seller are conditional on each other (Sale of Goods Act, 1893, s. 28).

(8) Statutes of limitation.-Generally speaking, actions in respect of simple contracts are barred if not commenced within six years after the right of action first accrued (Limitation Act, 1623, s. 3). Similarly, actions in respect of contracts under seal are barred by twenty years limitation (Civil Procedure Act, 1833, s. 3). Time may be prevented from running by reason of certain disabilities, such as infancy and insanity, and also by part payment or written acknowledgment by the debtor. The statutes, it should be noted, only bar the remedy, and do not, as a general rule, extinguish the right; and therefore the right may sometimes be enforced, indirectly, in various ways, e.g., by realisation of a lien or mortgage securing the debt; by an executor creditor exercising his right of retainer; or by the creditor appropriating to a barred debt an unappropriated payment made by the debtor (k).

(9) Impossibility of performance.--As a general rule, a contract which is not absolutely and physically impossible of performance when it is made, is not discharged merely because it subsequently becomes impossible (1). But there

(h) Short v. Stone (1846), 8 Q. B. 358; O'Neill v. Armstrong, [1895] 2 Q. B. 70.

(i) Hochster v. De la Tour (1853), 2 E. & B. 678; Rhymney Railway v. Brecon, etc. Railway (1900), 83 L. T. 111.

(k) London and Midland Bank v. Mitchell, [1899]2Ch. 161; Friend v. Young, [1897] 2 Ch. 421.

(1) Paradine v. Jane (1646), Aleyn, 26.

are certain exceptions to this rule, of which the following are the most important: (1) where a contract becomes impossible of performance by a change of English law (m) ; (2) where a contract is for personal services, and performance is prevented by the personal incapacity of the party, owing to death, illness, or otherwise (n); (3) where the performance of the contract is dependent on the continued existence of a specific thing, which is accidentally destroyed (o); and (4) where the impossibility is caused by the act of one of the parties to the contract, the other is, as we have already seen, discharged (p).

Sub-section (10). - Construction of Contracts.

Questions frequently arise as to the exact meaning of the words of a contract. It is for the court to interpret such words in each particular case; but certain general rules of construction have gradually been established, which apply to all contracts. The primary thing to be considered is, what was the true intention of the parties; and in order to ascertain this intention the court will carefully scrutinise the exact terms of the contract. If such terms are quite clear and unambiguous, the court will not go outside them, notwithstanding that it may be alleged that the intention of the parties was otherwise, except, of course, in cases where the parties may be on proper grounds entitled to rectification of a written contract, as not expressing the actual agreement.

The leading rule of construction, therefore, is "that the. "grammatical and ordinary sense of the words is to be "adhered to, unless that would lead to some absurdity or "some repugnancy or inconsistency with the rest of the "instrument, in which case the grammatical and ordinary

(m) Bailey v. De Crespigny (1869), L. R. 4 Q. B. 180.

(n) Robinson v. Davison (1871), L. R. 6 Ex. 269.

(0) Taylor v. Caldwell (1863), 3 B. & S. 826; Nickoll and Knight v.

Ashton & Co., [1901] 2 K. B.

126.

(p) O'Neill v. Armstrong, [1895] 2 Q. B. 418; The Blairmore, [1898] A. C. 593.

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sense of the words may be modified so as to avoid that "absurdity or inconsistency, but no further" (9). Regard must be had to the whole agreement. Particular expressions must be construed in the light of their context (»).

Another rule is, that general words must be construed in application to the particular purpose for which they are used. Hence, general words following an enumeration of specific things are usually construed as restricted to things of the same kind (ejusdem generis) as those specifically enumerated (s). Again, the construction must as far as possible be favourable, i.e., such as to support the validity of the contract, on the principle “ut res magis valeat quam pereat" (t). On somewhat the same principle, the construction must be reasonable, and not necessarily in all cases literal (u). Finally, there is a rule, only applicable if all other rules fail, that an ambiguity of expression must be construed rather against the party using it than against the other party; according to the maxim, “ verba fortius accipiuntur contra proferentem” (x).

Sub-section (11).-Remedies for Breach of Contract.

(A) Action for damages. This is the ordinary common law remedy. The principle upon which it is based is, that if one party breaks a contract he ought to make pecuniary compensation to the other party to such an extent that the "so far as money can do it, be placed in "the same situation as if the contract had been performed" (y). The measure of damages is therefore, in general, the value of the performance to the plaintiff, and

latter may,

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(9) Lord

WENSLEYDALE in (t) Roe v. Trunmarr (1758), Grey v. Pearson (1857), 6 H. L. Willes, 682. C. 61; McCowan v. Baine, [1891]

A. C. 401.

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(u) Rawlinson v. Clarke (1845), 14 M. & W. 187.

(x) Rodger v. Comptoir d'Escompte (1869), L. R. 2 P. C. 406.

(y) PARKE, B., in Robinson v. Harman (1847), 1 Exch. 855; Michael v. Hart, [1902] 1 K. B.

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