had actually rendered. (u) And where a printer had agreed to print a certain number of copies of a book, and part of the impression was consumed by a fire which broke out on his premises; it was held, that he was not entitled to any remuneration for his work and labour, as the contract was entire, and the working off the stipulated number of copies, and the completion of them ready for delivery a condition precedent to his right to demand payment. (x)

The plaintiff offered to cure a flock of sheep and lambs, consisting of three hundred and fifty sheep, and one hundred and forty-seven lambs, of a disease called the scab, at so much per head for the sheep, and so much for the lambs, and stated that he did not expect to be paid unless he cured all the sheep and lambs; whereupon the defendant accepted his offer, and agreed to employ him; and the plaintiff, after he had materially checked the complaint, but before he had entirely subdued it, brought his action for the money; and it appearing that forty out of the flock were not cured, it was held that he was not entitled to recover anything for his pains. (y)

The defendant had agreed to purchase of the plaintiff the lease of a farm for 5007., and to take the fixtures in the farm-house, together with the growing crops, at a valuation. He paid a deposit of 207. per cent. upon the purchase-money, and was let into possession, and the fixtures and crops were valued to him at 1,2007., but a good title not being made, he refused to pay any part of this sum, or the remainder of the purchasemoney, and the action being brought to recover the value of the crops and fixtures, it was held that it was not competent for the plaintiff to separate them from the lease; that it was with a view to the one that the defendant had agreed to take the other, and the contract, therefore, was entire and indivisible, and must be fully performed by the plaintiff before he could have any right to sue the defendant. (2)

When the consideration is divisible and apportionable, and a part performance of it will sustain an action. But if the thing to be done be in its nature divisible and apportionable, and there be nothing in the terms of the special agreement which, either by express stipulation or necessary intendment, precludes the plaintiff from recovering in respect of a partial execution of it, the plaintiff may, on the performing a part only of his engagement, require a corresponding part performance on the part of the defendant. Thus, where a ship outward bound with goods, being damaged at sea, put into a harbour to receive some repairs, and an agreement was

(u) Appleby v. Dods, 8 East, 299. (x) Gillett v. Mawman, 1 Taunt. 137. Adlard v. Booth, 7 C. & P. 108; and see 1 Saund.

320, b.

(y) Bates v. Hudson. 6 D. & R. 3.

(2) Neal v. Viney, 1 Camp. 471. Lovatt v.

made with a shipwright to put her "into thorough repair," but nothing was said as to the amount, or time or mode of payment, and before the repairs were completed the shipwright struck work, and demanded payment. for what he had done, and brought his action in respect thereof, although the repairs were unfinished and incomplete; it was held that the contract was not an entire contract to do the whole of the repairs and make no demand for payment until they were completed, but that the shipwright might from time to time, in the course of the work, demand payment for what he had done, before proceeding to complete the residue. (a) And if, in a contract of this description, the defendant is deprived, by accident, of the benefit of the work before it is finished, the workman is not, by reason of such accident, deprived of his right to remuneration. Thus, where the owner of a ship having hired a dock of a shipwright, and put his ship into the dock, employed the latter to repair it, and when the repairs were nearly finished, a fire happened at an adjacent brewhouse, which extended to the dock and burnt the ship, it was held that the shipwright was entitled, notwithstanding the fire, to recover the value of the repairs actually done. (b)

The master and freighter of a vessel agreed, by simple contract, that the vessel should proceed to St. Petersburgh, and there load from the freighter's factors a "complete" cargo of hemp, and eighty tons of iron, and proceed therewith to London, and deliver the same on being paid freight for hemp 51. per ton, and for iron 5s. a ton; and the master, fearing an embargo after his arrival at St. Petersburgh, hastily quitted with only half a cargo, and the freighter consequently refused to pay freight for that which he had actually brought it was held, that the contract was divisible and apportionable, and that as the freight was to be paid for by the ton, the fair and reasonable construction was, that the plaintiff should receive freight according to the quantity per ton which he had delivered, and that the defendant should have a remedy by means of a counter action against the plaintiff for that which he had not performed, and which he ought to have done. "In this way," observes Grose, J., "perfect justice will be done to both, but not so if the delivery of a complete cargo were made a condition precedent. (c)

And if the portion of the contract remaining unperformed does not constitute part of the essence of the engagement, and go to the root of the consideration and cause of action, an action is maintainable upon the contract, the defendant being at liberty to resort to his cross action to recover

Hamilton, 5 M. & W. 645.

(a) Roberts v. Havelock, 3 B. & Ad. 404.
(b) Menetone v. Athawes, 3 Burr. 1592. Ad-

lard v. Booth, 7 C. & P. 108. Contra if the contract be entire, ante p. 196.

(c) Ritchie v. Atkinson, 10 East, 295, 310.

compensation for any damage he may have sustained by reason of the nonperformance of the literal terms of the engagement. (d) If a particular time, for example, is mentioned for the completion of work contracted to be done and actually commenced, the performance of it by the exact hour or day specified is not a condition precedent to the right of action upon the contract, unless the intention of the parties that such should be the case is clearly and unequivocally expressed. (e) Thus, if a builder contracts to build a house for 5007. by a day certain, and completes it reasonably near the time specified, he is entitled to an action for the money, for the stipulation as to time is not, in such a case, a condition going to the essence of the contract. The parties never could have contemplated, that if the house were not completed by the day named, the builder should have no remuneration; at all events, if an engagement so unreasonable was contemplated, the parties should have expressed themselves with a precision that could not be mistaken." (ƒ) A condition that the work contracted for shall be done in " a proper and workman-like manner" is not a condition precedent going to the whole root of the action." "Such a condition is implied in every contract for work and labour, and if it were a condition precedent to the plaintiff's right to remuneration, any little deficiency would destroy the contract, and deprive the plaintiff of any claim for payment." Neither is "the performance of every portion of the work a condition precedent to the payment of the stipulated price, otherwise the least deviation would deprive the plaintiff of the whole price." (g)

If the contract, in fact, has been substantially performed, the action is maintainable. By an agreement between a landlord and tenant, it was stipulated that the tenant should, within one year from the making of the agreement, expend the sum of 2007. in erecting a kitchen and making various alterations and repairs upon the demised premises, to be inspected and approved of by the landlord, and done in a substantial manner, and the tenant was to be allowed to deduct 2001. out of the first year's rent. The alterations and repairs were done, and the tenant claimed the deduction, but the landlord, conceiving the value of them to be far below 2007., refused to allow it, and maintained that his approval was a condition precedent to the tenant's right to retain the amount; but the court held that the essential part of the contract was the making of the alterations and repairs, and that the landlord's approval could not be considered a condition

(d) Littledale, J., Franklin v. Miller, 4 Ad. & E. 605. Chanter v. Dewhurst, 13 Law J. N. S. (Excheq.) 198.

(e) "Of late the doctrine as to conditions prece dent has been considerably relaxed. ... In

all cases it is a mere question of intention." Vaughan, J., 5 Sc. 382.

(f) Tindal, C. J., Lucas v. Godwin, 4 Scott, 509; 3 Bing. N. S. 744.

(g) Mondel v. Steel, 8 M. & W. 870.

precedent, as, if it were, the tenant's right to the money might be altogether defeated, although the contract on his part had been faithfully fulfilled. ()

The defendant promised to pay the plaintiff 57. if he would get him a tenant for certain premises. The plaintiff procured one S., with whom the defendant entered into an agreement, and from whom he received a deposit. Subsequently, however, the defendant consented to release S. from the further performance of the agreement, but retained the deposit; and it was held that the condition as to the procuring of the tenant had been substantially performed on the part of the plaintiff, and that the latter was entitled to recover the 5l. (i)

Abatement of the claim, and of the correspondent liability, when the consideration for a simple contract has not been fully and literally performed. If a contract of sale, or for work and services on the one side, and payment on the other, has been so far executed as to give rise to of action in respect of the thing sold or the work done, but has not been fully performed, it is competent to the defendant to show, in reduction of the price agreed to be paid, that the subject matter of the contract is diminished in value by reason of the incomplete and inefficient execution of the contract by the plaintiff. In an action for the price of a warm-air apparatus, it appeared that the plaintiff had agreed to erect a powerful warm-air stove and apparatus in a chapel, and that the defendant had agreed to pay him the sum of 707. for so doing, and the claim for the money was resisted on the ground that the apparatus was imperfect, and did not answer the purpose for which it was known to be required; and it was held by Tindal, C. J., that if the stove in question was altogether incompetent and unfit for the purpose, and did not at all answer the end for which it was intended, the defendant was not bound to pay for it; but that if the apparatus was in the main substantial, but not quite so complete as it ought to have been, according to the contract, the action was maintainable for the price, and that the jury might deduct from the full price such a sum as would enable the defendant to do that which was required to make it complete and perfectly effective. (k) "Where a party engages to do certain work on certain specified terms, and in a certain specified manner, but does not perform the work so as to correspond with the specification, he is not, of course, entitled to recover the price agreed upon in the specification, nor can he recover according to the actual value of the work done, as if there had been no special contract. What the plaintiff is entitled to recover" (if he

(h) Dalman v. King, 5 Sc. 382.

(i) Horford v. Wilson, 1 Taunt. 12.

(k) Cutler v. Close, 5 C. & P. 337. Allen v.

Cameron, 1 Cr. & M. 832. Chapel v. Hicks, 2
Cr. & M. 214; 4 Tyr. 430, s. c.

is entitled to recover anything) "is the price agreed upon in the specification, subject to a deduction, and the measure of that deduction is the sum which it would take to alter the work to make it correspond with the specification." (7) And the defendant is not, by reason of his having given evidence of such breach of contract on the part of the plaintiff, and obtained a reduction of the agreed price, according to the difference between the value of the work actually done and that which ought to have been done according to the contract, precluded from bringing his cross action to recover compensation for any special damage he may have sustained by reason of the non-compliance of the plaintiff with the strict terms of the engagement. (m)

Thus, in an action for the breach of a special contract to build a ship, with scantlings, fastenings, and planking, according to a certain specification, by reason whereof the ship so strained herself on a voyage that it became necessary to re-fasten and repair her, the defence pleaded was, that the defendant had previously sued the plaintiff for the agreed price of the ship, and given evidence of such breach of contract in reduction of the price, and that the same had been reduced accordingly; it was held, that the plea constituted no answer to the action, as all that the plaintiff could by law have been allowed on the former trial was the difference in value between the ship as she was at the time of the delivery and what she ought to have been according to the contract; that to that extent the plaintiff must be considered to have received satisfaction for the breach, but no further; and that all claim for damages beyond that amount arising from the subsequent necessity of more extensive repairs and alterations, which could not have been allowed in the former action, might then be recovered. (n)

In contracts for the sale of goods and chattels, as well as in contracts for work and labour, the agreed price may be reduced by showing that the goods were not of the proper quality or description, or that the consideration was not fairly and fully performed, but care must be taken to make the distinction between an action on the special contract itself for the agreed price, and an action upon a bill of exchange or promissory note given by way of payment of the amount. "The cases have completely established the distinction between an action for the price of the goods and an action on the security given for them. In the former, the value only can be recovered; in the latter, the party holding bills given for the price of

(1) Parke, J., Thornton v. Place, 1 Mood. & Rob. 218. Ellis v. Hamlen, 3 Taunt. 53. Baillie v. Kell, 4 Bing. N. S. 652. Street v. Blay, 4 Bing.

N. S. 638.

(m) Mondel v. Steel, 8 M. & W. 858.
(n) Ib. 872.