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sent and in the presence of all parties, the deed was held to be valid on the ground that there was no complete execution until the blank was filled in (a). A deed was executed by the defendant whereby he covenanted to deliver up to the plaintiff certain articles "as per schedule annexed"; at the time of the execution of the deed there was no schedule annexed, but it was annexed after the execution by an agent of both parties; it was held that the schedule formed no part of the deed (b).

tion.

Where a written document is produced containing a ma- Party proterial alteration, it lies upon the party producing it to ex- tered inducing alplain the alteration, so as to show that it does not affect the strument to explain validity of the instrument in respect of the issue which it is the alteraproduced to prove (c); but he is not bound to account for alterations which are not material to that issue (d). In an action on the acceptance of a bill of exchange in which the defendant pleaded a traverse of the acceptance, the plaintiff put in the bill, which appeared to have been altered from "three" months to "two" months, but offered no evidence to account for the alteration; it was held that the jury could not, on mere inspection of the bill, decide whether it was altered at the time of making, and that the plaintiff must be nonsuited (e).

instru

In general, the loss of a deed or written agreement does Loss of not affect the right of a party arising out of the contract written incontained in it, further than occasioning a difficulty of proof. ment. He is entitled, upon proof of the loss, to give secondary evidence of the contents of the instrument (ƒ); and such evidence is admissible even in the case of a written con

(a) Hudson v. Revett, 5 Bing. 368, where see the observations of Best, C.J., as to the effect of an alte ration of a deed with the assent of parties, p. 388; and see as to the execution of a deed with a blank to be afterwards filled up, ante, p. 79. (b) Weeks v. Maillardet, 14 East, 568.

(c) Henman v. Dickinson, 5 Bing. 183; Knight v. Clements, 8 A. & E. 215, 220; per Parke, B., Earl Fal

mouth v. Roberts, 9 M. & W. 469,
471; Parry v. Nicholson, 13 M. & W.
778, 779; Cariss v. Tattersall, 2 M.
& G. 890; Clifford v. Parker, 2 M.
& G. 909.

(d) Sibley v. Fisher, 7 A. & E. 444.
(e) Knight v. Clements, 8 A. & E.
215; and see Clifford v. Parker, 2
M. & G. 909.

(f) Read v. Brookman, 3 T. R. 151; see Taylor on Evidence, 4th ed. 414.

Loss of negotiable

instrument.

tract within the Statute of Frauds (a), or of a written promise to pay a debt barred by the Statute of Limitations (b), which are required by those statutes to be in writing.

An exception to the general rule occurs in the case of negotiable instruments, which are regulated by the custom of merchants. The holder of a negotiable bill or note cannot insist upon payment without producing and offering to deliver up the instrument (c). The same rule does not apply to a non-negotiable bill or note (d); but it applies to a negotiable bill or note, although, when lost, it was in a non-negotiable state, as a bill or note payable to order and lost before indorsement (e). In an action brought upon a bill or note, the defence that the instrument is lost must be specially pleaded, and if merely the making of the instrument is denied, upon the trial of such issue the ordinary rule applies, that upon satisfactory evidence being given to account for its non-production, secondary evidence of its contents is admissible (ƒ).

Courts of equity, however, grant relief against the loss of a negotiable instrument by compelling the party liable upon it to pay, upon the loser giving to him a sufficient indemnity against future claims (g); and now a similar relief may be obtained by the loser in the Courts of Common Law, under the C. L. P. Act, 1854, 17 & 18 Vict. c. 125, s. 87, whereby it is enacted that "in case of any action founded upon a bill of exchange, or other negotiable instrument, it shall be lawful for the Court, or a judge, to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the Court, or judge, or a master, against the claims of any other person upon such negotiable instrument" (h).

(a) See Nichol v. Bestwick, 28 L. J. Ex. 4.

(b) Haydon v. Williams, 7 Bing.

163.

(c) Hansard v. Robinson, 7 B. & C. 90; Ramuz v. Crowe, 1 Ex. 167; Crowe v. Clay, 8 Ex. 295; 9 Ex. 604.

(d) Wain v. Bailey, 10 A. & E. 616; Charnley v. Grundy, 14 C. B. 608.

(e) Ramuz v. Crowe, 1 Ex. 167. (f) Blackie v. Pidding, 6 C. B. 196; Charnley v. Grundy, 14 C. B. 608.

(g) See Hansard v. Robinson, 7 B. & C. 90, 95; Byles on Bills, 8th ed. 354.

(h) See Noble v. Bank of England, 2 H. & C. 355; 33 L. J. Ex. 81.

CHAP. IV. SECT. III. PERFORMANCE OF CONTRACT.

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ance.

A CONTRACT may be discharged by performance. A promise Performmay be capable of performance, independently of any act or concurrence on the part of the promisee, or it may be incapable of complete performance without some act or concurrence on his part; thus, if a person undertakes to pay money or deliver goods to another, he engages to do an act which he cannot completely perform without the concurrence of the other party in accepting the goods or the money (a).

Where the performance of the promise is independent of the concurrence of the promisee, the promiser is bound to the promisee for its complete performance at all events, although it may depend upon the concurrence of a third party over whom the promiser has no control (b).

perform

ance.

Where the performance of the promise is dependent Tender of upon the concurrence of the promisee, and cannot be completed without some act on his part, the promiser is not responsible for the promisee withholding his concurrent act; in such case the promiser discharges his liability by doing all that is necessary on his part, so that the promisee has the opportunity of accepting a complete performance (c).

ance must

The performance which is necessary to discharge a con- Performtract must be in strict accordance with the terms of the con- be accordtract, as appears in the following instances :

ing to the terms of the

A covenant to insure is broken if the premises are left in contract. part uninsured for any time, although afterwards wholly insured, and although no loss has occurred from the defective.

(a) See Startup v. Macdonald, 6 M. & G. 593, 610.

(b) See ante, p. 369.
(c) See "Tender," post, p. 451.

Perform

insurance (a). A covenant to insure in the names of certain persons was held not to be performed by an insurance effected in those names jointly with that of the covenantor (b). A contract providing for keeping up the insurance of a ship was held to be broken by failing to keep the ship actually insured for three days, although the usual slip for the insurance had been delivered by the underwriters, in accordance with which the policy was afterwards executed, and no loss was sustained by the omission (c).

In an action for a breach of a covenant in a farming lease in selling a quantity of farmyard manure and allowing it to be carried off the premises, the defendant pleaded that he brought back a greater quantity of manure and of better quality in place of that carried off; but the plea was held bad as substituting a performance different from that contracted for (d).

Where a party had contracted to deliver up a lease, it was held that he did not perform his contract by delivering it up cancelled with the seal cut off, although the term had expired and the instrument had no further operation (e).

In a contract to pay money the debtor performs his proance of con- mise by paying the money at the time and in the manner repay money. quired by the terms of the contract; the performance of a

tracts to

contract to pay money is commonly known by the term payment. The term payment is also used to designate the giving and acceptance of money in satisfaction of debts,not in strict performance of the contract to pay them, but after a default has been made in payment according to the contract, and a right of action has consequently accrued for the breach of contract; the payment is then made in satisfaction of the right of action.

Payment in satisfaction will

(a) Penniall v. Harborne, 11 Q. B. 368; relief may be obtained against a forfeiture for breach of a covenant to insure against loss by fire where no loss has happened, in certain cases, under the statutes 22 & 23 Vict. c. 35, s. 4, 6; and the C. L. P. Act, 1860, 23 & 24 Vict. c. 126, s. 2.

(b) Penniall v. Harborne, 11 Q. B. 368.

(c) Parry v. Great Ship Company, 4 B. & S. 556; 33 L. J. Q. B. 41.

(d) Leigh v. Lillie, 6 H. & N. 165; 30 L. J. Ex. 25.

(e) Richardson v. Barnes, 4 Ex. 128.

be treated of amongst the modes of discharging rights of action arising out of contracts after breach (a).

Besides the mere delivery of money, there are other transactions which may become by agreement of the parties equivalent to payment, and may be so called, as a set-off of mutual debts, delivery of goods instead of money, etc.; these will be more conveniently noticed, once for all, in treating of payment in satisfaction (b).

Perform

tracts for

quantity

Upon a contract for the sale and delivery of goods the seller must deliver the exact quantity contracted for, and ance of condoes not perform the contract on his part by delivering a the sale of larger quantity which he insists upon the buyer accept- goods, as to ing (c); in such case the buyer is, in general, entitled to refuse the whole (d). So, if the seller delivers a smaller quantity of goods than is contracted for in discharge of his contract, it is not sufficient, and such smaller quantity may be refused by the purchaser (e); but if the purchaser accepts the quantity delivered, the seller is entitled to recover from him the price of the goods so accepted (f).

In contracts for the sale of goods the quantity of goods to be delivered is sometimes specified with the addition "more or less;" in such cases the quantity which the seller may deliver in fulfilment of his contract has certain reasonable limits of allowance according to the circumstances of each case (g); so, in a contract to deliver "about" a specified quantity of goods (h). Under a contract to sell and deliver a certain quantity of goods then being in a warehouse in Liverpool, the giving a delivery order of "about" the quantity, evidence being admitted of a usage of warehousemen

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9 B. & C. 386; Hoare v. Rennie, 5 H.
& N. 19; 29 L. J. Ex. 73.

(f) Morgan v. Gath, 3 H. & C.
748; 34 L. J. Ex. 165.

(g) See Cross v. Eglin, 2 B. & Ad. 106; Cockerell v. Aucompte, 2 C. B. N. S. 440; 26 L. J. C. P. 194; Gibbs v. Gray, 2 H. & N. 22; 26 L. J. Ex. 286.

(h) Bourne v. Seymour, 16 C. B,

337.

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