Amount of if the creditor refuses to give change, and objects to take the money on that account (a). tender. Tender must be un conditional Tender of a smaller sum, made in respect of a single entire claim of a larger amount, is inoperative; the creditor not being bound to accept less than his whole demand (b). The debtor is not entitled to apply a set-off in reduction of the amount due upon a single entire demand, so as to make a tender of the residue sufficient; a set-off, in the absence of agreement respecting it, being available only by virtue of the statute 8 Geo. II. c. 24, in case of the creditor bringing an action (c). A plea of tender pleaded to part of the general claim in an indebitatus count is admissible, because the claim may be composed of various debts, and therefore the tender may have been well made in respect of a single distinct debt (d); and if in fact it is not so, and the tender made was only sufficient to satisfy part of an entire demand, the plea may be met by a replication to that effect (e). A plea of tender to part of the claim under several indebitatus counts is also admissible, and will be applied according to the evidence (f). A debtor being indebted in respect of several distinct contracts to the same creditor, may make a tender in respect of any one of them, specifying on which account the tender is made. If he tenders without appropriating the amount to a particular debt, and it is not sufficient to cover all, it is not a good tender (g). If the tender is made upon a condition which the creditor has a right to object to, it is not a good tender (h). Thus, if it is made upon the condition that the creditor by accepting it shall admit that no more is due in respect of the (a) Betterbee v. Davis, 3 Camp. 70; Robinson v. Cook, 6 Taunt. 336. (b) Dixon v. Clark, 5 C. B. 365. (c) Searles v. Sadgrove, 5 E. & B. 639; 25 L. J. Q. B. 15; Phillpotts v. Clifton, 10 W. R. Ex. 135; and see post, Chap. IV, Sect. XII, "Setoff." (d) Jones v. Owen, 5 A. & E. 222; Brandon v. Newington, 3 Q. B. 915; Hesketh v. Fawcett, 11 M. & W. 356. (e) Tyler v. Bland, 9 M. & W. 338; Searles v. Sadgrove, 5 E. & B. 639; 25 L. J. Q. B. 15. (f) Robinson v. Ward, 8 Q. B. 920. (g) Hardingham v. Allen, 5 C. B. 793. (h) Eckstein v. Reynolds, 7 A. & E. 80; per Maule, B., Bevans v. Rees, 5 M. & W. 306, 309. debt for which it is tendered, it is not a good tender (a). A tender of a quarter's rent coupled with a demand of a receipt to a particular day, it being disputed whether one or two quarters' rent was due, was held not to be a valid tender (b). It has been held that an offer to pay the money upon the creditor giving the debtor a receipt is not a good tender (c); but if no objection is made on that account, and the creditor refuses the money on account of claiming more to be due, he cannot afterwards object to the tender because a receipt was required as the condition of payment (d). The debtor, after paying the debt, if it is above the sum of £2, is entitled by statute to demand a receipt properly stamped (e). A tender made "under protest is valid; the effect being not to impose a condition on the acceptance of the money, but merely to obviate any effect the payment, without protest, might have as an admission of the validity of the claim (ƒ). Tender to one of several joint creditors, or by one of seve- To and by ral joint debtors, is a valid tender (g). Tender of the debt may be made by any one acting on behalf of the debtor; or by any one professing to act on his behalf, if the tender is afterwards adopted and ratified by the debtor (h). And tender may be effectually made to any one authorized to receive payment of the debt (i). (a) Evans v. Judkins, 4 Camp. 156; Strong v. Harvey, 3 Bing. 304; Ford v. Noll, 2 Dowl. N. S. 617; and see Henwood v. Oliver, 1 Q. B. 409; Bowen v. Owen, 11 Q. B. 130. (b) Finch v. Miller, 5 C. B. 428. (c) Cole v. Blake, Peake, 179; Laing v. Meader, 1 C. & P. 257. (d) Richardson v. Jackson, 8 M. & W. 298. (e) 43 Geo. III. c. 126, s. 5; 16 & 17 Vict. c. 59, ss. 2, 3. (f) Scott v. Uxbridge & Rickmansworth Ry. Co., L. R. 1 C. P. 596; 35 L. J. C. P. 293. (g) Douglas v. Patrick, 3 T. R. 683; and see post, Chap. IV, Sect. VII, "Payment." (h) Read v. Goldring, 2 M. & S. 86. (i) Goodland v. Blewith, 1 Camp. 477; Kirton v. Braithwaite, 1 M. & W. 310; Moffat v. Parsons, 5 Taunt. 307; Anon. 1 Esp. 349; and see post, Chap. IV, Sect. VII, "Payment." whom tender may be made. contract. Breach of A BREACH of contract converts the right to performance created by the contract into a right of action for damages for the non-performance; so far as it extends, it renders the strict performance of the contract impossible, and puts an end to the contract, except for the purpose of maintaining the right of action for the breach. In some cases where the contract may be performed in substance notwithstanding the breach, Courts of Equity will grant a specific performance of the contract upon equitable terms; but, in general, where a court of equity refuses to decree specific performance, the only right remaining under a contract after a breach is the right of action for damages. Acts equi valent to breach of contract. Breach by promiser disabling himself from per A breach of contract consists in any deviation from the exact course of performance stipulated for in the terms of the contract (a). There are also some acts which, though strictly speaking not deviations from the performance of the contract, yet, being the same in effect, are held to be equivalent to a breach; as, where, before the time of performance arrives, the promiser disables himself from performance, or absolutely refuses performance of his promise. An act of the promiser which disables him from the performance of his promise before the time of performance arrives may be equivalent to a breach, and render him liable formance. to an immediate action. In Main's case it was resolved, that if a man seised of lands in fee covenants to enfeoff J. S. of them upon request, and afterwards he makes a feoffment in fee of the same lands to another, J. S. shall have an action of covenant without request (b). A person entitled to lands in reversion, expectant upon a lease, agreed that he would grant a lease for a certain term as soon as they should come (a) See "Performance of Contract," ante, p. 435. (b) 5 Co. Rep. 21 a; and see ante, p. 351. into possession, and before that time he granted a lease of the lands to another for the same term; it was held that, having put it out of his power to perform his agreement, he was liable to an action for the breach, although the first lease had not expired (a). So, if a person contracts to sell specific goods and deliver them upon request, and before request made he sells and delivers them to another, he is at once liable to an action at the suit of the first buyer, and no request to deliver is necessary (b). If a man promises a woman to marry her and marries another, he is at once liable to an action for breach of promise of marriage; and by the act which disables him from the performance of his promise he dispenses with the request to perform it, or the lapse of an appointed or reasonable time for its performance, or any other matters which may have been stipulated for as conditions precedent to his liability; and it is immaterial whether the person whom he has married remains still alive, the contract having been once broken (c). A woman before her marriage covenanted with the plaintiff to leave certain matters in difference between them to arbitration and to abide the award, and before the award was made married, and thereby incapacitated the arbitrator from making any award to bind her; it was held that she thereby broke her covenant (d). The defendant covenanted that he would at the request of the plaintiff avow and confirm all actions which the plaintiff should bring in respect of a bond of which the defendant was obligee without releasing the same; the defendant having released the bond, it was held that he had disabled himself from avowing an action on the bond, and was liable for a breach of his covenant, without any request of performance (e). An insurance company in consideration of a sum of money paid by the plaintiff to the company, appointed a person as agent to the company, and covenanted with the plaintiff, that in case the company should at any time dis (a) Ford v. Tiley, 6 B. & C. 325; see Lovelock v. Franklyn, 8 Q. B. 371. (b) Bowdell v. Parsons, 10 East, 359. (c) Short v. Stone, 8 Q. B. 358; Caines v. Smith, 15 M. & W. 189. (e) Amory v. Brodrick, 5 B. & Ald. 712. perform the contract. place that person from his appointment as agent, they would repay to the plaintiff the money so paid by him; the company having afterwards transferred their business to another company, it was held that they had thereby displaced the agent by rendering it impossible to continue him in their employment, and were bound to repay the sum of money to the plaintiff (a). Breach by If before the time appointed for performing the contract promiser refusing to has arrived the promiser wholly refuses to perform it, the promisee may be entitled to treat such refusal as an immediate breach of the contract, and to commence an action for damages in respect of it (b). The plaintiff agreed to enter the services of the defendant, and the defendant agreed to employ him, as a courier from an appointed future day for three months certain, and before the appointed day the defendant wholly refused to employ the plaintiff according to the agreement; it was held that upon the refusal by the defendant to employ, the plaintiff was entitled to bring an action immediately, and was not bound to wait until after the day agreed upon for the commencement of the employment had arrived (c). A contract was entered into between the plaintiffs and an agent of the defendant for the carriage of the plaintiffs' goods in a vessel of the defendant, and before the day appointed for the shipment of the goods the defendant wrote to inform the plaintiffs that he did not hold himself responsible, as the agent had no authority to act in his name; the plaintiffs wrote in answer that they should make other arrangements and hold the defendant responsible for the consequence, and they proceeded to negotiate a new contract with another person for the carriage of their goods; on the day appointed by the first contract for the shipment, and before the new contract was completed, the defendant informed the plaintiffs that he was ready to take the goods; it was held that upon the original denial of the contract by the defendant the plaintiffs were entitled to treat the (a) Stirling v. Maitland, 5 B. & S. 840; 34 L. J. Q. B. 1. (b) Hochster v. Delatour, 2 E. & B. 678; Danube and Black Sea Railway Co. v. Xenos, 11 C. B. N. S. 152; 13 ib. 825; 31 L. J. C. P. 84, 284. (c) Hochster v. Delatour, 2 E. & B. €78; 22 L. J. Q. B. 455. |