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nothing more could be required, and the time for payment had arrived; for 'that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.'

“Another rule has prevailed where the object of the contract was to gratify taste, serve personal convenience, or satisfy individual preference. A different

case is before us."

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Question 176: (1) In what respect does this case differ from the one above? Are they opposed in principle?

(2) Apply the principles of the above cases to the following contracts to be performed to the other's satisfaction:

(a) Laying a roof; (McNeil & Armstrong, 81 Fed. 943). (b) Painting a portrait: (Pennington v. Howland, 21 R. I. 65).

(c) Making a statue: (Zaleski v. Clarke, 44 Conn. 218).
(d) Grading a dock: (Keeler v. Clifford, 165 Ill. 544).

(Note: These cases must not be confused with cases in which articles are sent for trial to be accepted if satisfactory or if the recipient desires to keep them. In such a case, of course, there is an absolute right of rejection.)

§ 164. (Contracts, Sec. 132.) Of the performance that will not discharge and therefore constitutes breach.

(Note: Obviously, less than performance (substantial performance) is breach unless (1) there is acceptance of defective performance as full performance; or (2) there is some other excuse than that of performance recognized by law as a valid discharge. See following sections.)

§ 165. (Contracts, Sec. 133.) Effect of acceptance of performance which does not fulfill requirements of terms.

Case 177. Smith v. Aiker, 102 N. Y. 87.

Facts: Suit brought to recover for balance due on a building contract. This contract provided for the production by the contractor of the architect's certificate before the owner was obliged to accept the building or

pay the balance due. No such certificate was produced. The evidence showed, however, and the jury found that the owner accepted the work.

Point Involved: Whether a provision in the contract for the benefit of the party sued could be set up as a defense by him, where the evidence discloses that he freely accepts the performance without insisting on such benefit.

DANFORTH, J.: "*

trial

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It was contended on the that a recovery could not be had without the production of the architect's certificate. (The Court below) held, and so instructed the jury, that the defendant could waive the stipulations he had introduced into the contract for his own benefit and that if he had accepted the house as under a complete contract, the plantiff would be entitled to recover, although no certificate had been given, and even if the architect was not satisfied. That was the principal question presented; it was, we think, rightly decided.

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"Judgment for plaintiff affirmed."

Question 177: What does the above case decide?

(Note: See Cases on Sales for a development of the subject of acceptance as waiver of breach. It is there brought out that one who accepts who has an opportunity to reject, may thereby forego his right to afterwards reject and yet may still save his right to have damages for the breach. But the acceptance may also show a waiver of damages. Circumstances govern.)

Case 178. Elliott v. Caldwell, 43 Minn. 357.

Facts: E. and others agreed to build for C. a dwelling house. C. resists payment according to the contract because the house as built was materially different from the one called for by the plans. The evidence was taken before a referee, who found that E. and the others materially deviated from the contract in numerous particulars both in work and materials.

Point Involved: Whether a retention of a benefit which

one has no option to restore can be considered as acceptance.

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MITCHELL, J.: They are not mere slight defects or omissions, which may be remedied without difficulty so as to give defendants substantially the building they bargained for, but they are of a substantial nature, which run through the whole work, and are now incapable of correction and render the house substan→ tially different from and inferior to the one which plaintiffs contracted to build. Neither were they the result of mistake or oversight, but intentional and even fraudulent.

* In the case of a building on land under a contract which the builder fails to complete, or which he completes in a manner not conforming to the contract

the mere fact of the building remaining on the land, and that the owner resumed possession and enjoys the fruits of the labor, is not such an acceptance as alone will imply a promise to pay for it; for the possession of the land necessarily involves possession of the buildings in their existing state, and the owner has no option in rejecting them."

Question 178: What are the facts, the question presented and the Court's decision in the above case?

(Note upon right of plaintiff who has broken his contract to recover on a quasi contractual basis for benefits conferred. In this note the editor suggests his obligation to Professor Frederic C. Woodward's text on Quasi Contracts, Chapter X.

Assume that a person has not substantially performed his contract, and has no legal excuse for non-performance (such as impossibility of performance) and is therefore guilty of breach. He has, however, conferred a benefit upon the other party. In arriving at the amount of this benefit, clearly the defendant's damages must be considered. It is conceivable that a builder has put a $5,000 foundation upon a person's land, and yet by breach of his contract in not completing the building he may have actually damaged the other party in excess of the benefit conferred. With this understood, it is still conceivable and, in

fact likely, that the other party is enriched in most cases by the work done by a party before he broke his contract. Does the party breaking the contract have no redress? If he cannot sue on the contract, is he not entitled to some compensation for the value of the actual benefit conferred? Now this breach is either wilful, or not wilful. If he wilfully breaks his contract, we may look less kindly upon him than if he unwillingly breaks the contract and perhaps give him a remedy in one case and not in the other. (Examples of unwilling breach are: Inability to get material; inability to get help; where those contingencies have not been provided against in the contract.)

Professor Woodward classifies contracts for purposes of his discussion as: service contracts; buildings and like contracts; contract for sale of goods; contracts for payment of money.

Service contracts: In these contracts the breach is wilful. Discontinuance of the service because of death, illness, and the like, would not be breach, but discharge by impossibility of performance. The weight of authority is that an employee who wilfully breaks his contract of service cannot recover for the service actually rendered. Stark v. Parker, 2 Pick. 267 (Mass.) is a leading authority on this point and is generally followed. But a minority view is that of Britton v. Turner, 6 N. H. 481, which took the view that justice required an allowance of recovery. This view has been followed in Iowa, Kansas, Nebraska, South Dakota and Texas cases. It is generally felt, however, that to allow a recovery in such cases is to encourage breach of contract. If the employee is discharged, i. e., doesn't quit of his own accord, and the discharge is merited, there is a "closer division of authority" although on principle the same reasoning would seem to apply to both situations.

Building and like contracts. Here the breach may be wilful or not wilful. If wilful, the majority view is, no recovery. If not wilful the majority view is he may have a quasi contractual recovery, that is, a recovery for the actual benefit conferred which we measure by disregarding the contract price and taking into consideration the damages, if any, caused by the breach. But some states deny any recovery.

Contracts for sale of goods. The weight of authority allows recovery where the buyer retains the goods and thus accepts where he might reject. There seems to have been little distinction made between wilful and not wilful breach in such cases.

Contracts for payment of money. Where a person pays money for goods or lands and then defaults in further payment, thereby breaking his contract, can he recover what he has paid? Frequently this contingency is expressly provided for (as that it shall be retained as liquidated damages). If not, the weight of authority denies recovery.

In conclusion it may be said that it is impossible with exactness to state the law on the question under discussion in a brief note of this character. The general state of the law, however, has been given.)

§ 166. (Contracts, Sec. 134.) Performance or tender of performance required of one party before he can require performance by the other.

Case 179. Kingston v. Preston, as cited in argument in 2 Doug. 689.

"It was an action of debt, for non-performance of covenants contained in certain articles of agreement between the plaintiff and defendant. The declaration stated: That, by articles made the 24th of March, 1770, the plaintiff, for the considerations thereinafter mentioned, covenanted, with the defendant, to serve him for one year and a quarter next ensuing, as a covenant-servant, in his trade of a silk-mercer, at £200 a year, and in consideration of the premises, the defendant covenanted, that at the end of the year and a quarter, he would give up his business of a mercer to the plaintiff, and a nephew of the defendant, or some other person to be nominated by the defendant, and give up to them his stock in trade, at a fair valuation; and that, between the young traders, deeds of partnership should be executed for 14 years, and, from and immediately after the execution of the said deeds, the defendant would permit the said young traders to carry on the said business in the defendant's house. Then the declaration stated a covenant by the plaintiff, that he would accept the business and stock in trade, at a fair valuation, with the defendant's nephew, or such other person, etc., and execute such deeds of partnership, and, further, that the plaintiff should, and would, at, and

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