of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, which is changed into a matter of record." As the latter is of higher nature, the inferior remedy is merged in the higher." But no right or claim, other than that actually involved and determined, is thus merged in the judgment." ALTERATION 80 33. The alteration of a contract in writing, whether under seal or not, after its execution, will, under certain circumstances, discharge the contract." To have this effect the alteration must be in a material part of the instrument;"1 it must be made by a party, or by a stranger while the document is in the possession of the party, and for his benefit; it must be an intentional alteration and made without the consent of the other party." While an unexplained alteration prima facie vitiates the instrument, it will not have the effect of totally discharging the obligation, if innocently made without any improper motive. The decisions in the United States are, like the English cases, inclined to regard an alteration by a stranger, without the knowledge of the party benefited, as merely a spoliation and not as totally destroying the effect of the instrument."3 BANKRUPTCY 34. An adjudication in bankruptcy operates as an assignment of the property and choses in action of the bankrupt to his trustee in bankruptcy for the benefit of his creditors, and an order of discharge in bankruptcy releases the bankrupt from all provable debts." 77 13 M. & W. (Eng.) 494 (1884). 786 Wall. (U. S.) 231 (1867); 151 Mass. 386 (1890). 79 94 U. S. 606 (1876); 99 U. S. 261 (1878). 80 See subtitles Implied Contracts. Express contracts exclude implied, supra. 816 Wall. (U. S.) 80 (1867). 82 13 M. & W. (Eng.) 342 (1844); L. R. 10 83 101 Ala. 205 (1893); 81 Me. 44 (1888); 168 BY PERFORMANCE SUFFICIENCY OF PERFORMANCE 35. Where the parties to a contract have performed all their reciprocal obligations according to the terms of their agreement, the contract is discharged. It is obvious that parties entering into agreements must perform them according to their legal effect, and, if they charge themselves with obligations possible to be performed, they must make them good unless performance be rendered impossible by the act of God, the law, or the other party to the contract. Unforeseen difficulties, however. great, are no excuse." Against such results they must guard themselves by provisions in the contract. At the same time a merely literal performance of an agreement may fail to meet its true purpose. The general rule is that the performance must be such as is required by the true spirit and meaning of the contract and the intention of the parties as expressed therein." Performance need not in all cases be literal and exact. It is sufficient if the party bound to perform, acting in good faith and intending and attempting to perform his contract, do so substantially; then he may recover, notwithstanding slight or trivial defects in performance for which compensation can be made by an allowance to the other party." The difficulty of adhering in all instances to the literal performance of a contract is illustrated by the case where one party agrees to perform a contract to the satisfaction of the other. It is declared by some authorities that it is not a compliance with such a contract to prove that the promisee should have been satisfied, particularly where the subjectmatter involves questions of taste, fancy, interest, or personal satisfaction and judgment, such as the making of a suit of clothes, or the painting of a portrait; although, in contracts for work and labor to be performed in an ordinary 852 Wall. (U. S.) 1 (1864); 16 Me. 164 (1839); 20 Johns. (N. Y.) 130 (1822). 862 Pars. Cont.,* p. 656. business, the courts are inclined to construe such stipulation as agreements to do the thing in such a way as should reasonably satisfy the promisee, and that an obligation must be made in good faith after trial and not as a result of mere caprice." A vendor of goods does not comply with his contract by the tender or delivery of either more or less than the exact quantity contracted for or by sending the goods sold mixed with other goods." The supreme court of the United States has said that the seller is bound to deliver the quantity stipulated and has no right, either to compel the buyer to accept a less quantity, or to refuse him to select a part out of a greater quantity; and, when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once." 36. No principle of the common law has been better established or more often affirmed, both in the United States and England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud and is neither the manufacturer nor the grower of the article he sells, the maxim caveat emptor applies; there is no warranty of the quality of the goods and the purchaser buys at his own risk." But where a manufacturer of an article sells it for a particular purpose, the purchaser making known to him at the time the purpose for which he buys it, the seller thereby warrants it reasonably fit and proper for the purpose for which it is sold and bought." It is also a general rule that where goods 58 108 Pa. 201 (1885); 163 N. Y. 404 (1900); 113 Mass. 136 (1873); 39 Mich. 49 (1878); 101 N. Y. 387 (1886); 149 Mass. 284 (1889); 165 Ill. 544 (1897); 155 Pa. 394 (1893). 90 115 U. S. 188 (1885), at p. 204. 91 10 Wall. (U. S.) 383 (1870). 92110 U. S. 108 (1883). 892 Benj. Sales (6th Am. Ed.), Sec. 1,030; see The Law of Property: Sales of Personal Property; 115 N. Y. 539 (1889). are sold by description, the seller must deliver goods of the kind and quality contracted for, or else the buyer may refuse to accept them; and it is further generally implied that the goods are of such a quality as to be merchantable." 37. Where the quantity to be delivered is stated in the contract with the addition of such qualifying terms as about, or more or less, the question may arise as to what may constitute performance." To govern such cases, the United States supreme court has laid down the following rules: (1) Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of "about," or "more or less," or words of like import, the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. (2) When no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material, and governs the contract. The addition of the qualifying words "about," "more or less," and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses and deficiencies in number, measure, or weight. (3) But, if the qualifying words be supplemented by other stipulations or conditions, which give them a broader scope or a more extended significance, then the contract is to be governed by such added stipulations and conditions." 93 Leake Cont. (3d Ed.), p. 714; 167 N. Y. 48 (1901); 24 Q. B. Div. (Eng.) 650 (1890). 942 Benj. Sales (6th Am. Ed.), Sec. 1,034. 95 96 U. S. 168 (1877), at p. 171, by Justice Bradley. SUBSTANTIAL PERFORMANCE 38. Generally, an entire contract must be performed in all its parts by him who claims counter performance from the other contracting parties, and, if there be a failure in any particular, no recovery can be had." In the case of mutual promises, that is, where two acts are to be done concurrently by parties under a contract, the obligation on the part of each is dependent on that of the other, and the act of each is done upon the implied condition of performance by the other." A rigid adherence to this rule, in all cases, would inflict injustice, particularly where the contract is in form entire but embraces a variety of acts more or less essential to the whole performance. Where a party, acting honestly and intending to fulfil his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered." When a special contract has not been fully performed, but the plaintiff (the party seeking to recover) has in good faith done what he believed to be a compliance with the contract, and has thus rendered a benefit to the other party (the defendant), he can recover the value of his services, not exceeding the contract price, after deducting the damages which the defendant has sustained by the breach of the stipulations of the contract." For, if the part which he agreed to perform and did not perform were of slight importance, it is not a condition precedent to recovery. 39. There is a distinction which must be particularly remembered between cases where the deviation from the literal contract is so slight as to amount in fact to substantial performance by the promisor, and those where there is an 965 S. Dak. 352 (1894). 9721 Fed. Rep. 352 (1884). 997 Pick. (Mass.) 180 (1828); 141 Mass. 25 (1886). 981 H. Bla. (Eng.) 273 (1777), note; 15 Pa. 151 (1850); 61 Wis. 623 (1884); 9 N. Y. Supp. 439 (1890). |