debtor, where he does so for the purpose of securing other property of greater value, which would be otherwise unavailable; nor by the creditor's releasing an attachment levied on the principal's goods, and returning the goods to the principal, where the attachment suit was not commenced on request of the surety." The dismissal of a suit and the release of an attachment sued out by the payees against the principal on a promissory note is not a discharge of the surety. A surety on notes given for the purchase-money is not discharged by a subsequent conveyance of the land in pursuance of the contract, nor by failure, through fraud of the principal, to record a mortgage given at the time of the conveyance, whereby intermediate claims acquired precedence. Where the holder of a note gives to the principal an extension of time, a surety is not discharged if the holder of the note did not know that there was a surety.

1 Young v. Cleveland, 33 Mo. 126; 82 Am. Dec. 155.

2 Baker v. Marshall, 16 Vt. 522; 42 Am. Dec. 528.

3 Bank of Montpelier v. Dixon, 4 Vt. 578; 24 Am. Dec. 640.

Coombs v. Parker, 17 Ohio, 289; 49 Am. Dec. 459.

Lamson v. Vevay Bank, 82 Ind. 21.

CHAPTER CXVIII.

PERFORMANCE OF CONTRACT.

§ 2486. Performance - Must be according to terms of contract. Substantial performance, when permitted.

§ 2487. § 2488.

Performance as to "quantity" on sale of goods or property.

§ 2489. "About"-"More or less."

Performance as to quality of goods.

§ 2490.

§ 2491.

Delivery of goods.

§ 2500. Conditional promises - Promise upon condition precedent.

§ 2501. Conditional upon expiry of time.

§ 2508.

§ 2509.

Conditional upon notice.

Mutual conditions precedent-When dependent and when independent of each other.

Part performance of conditions precedent.

§ 2510. When performance of conditions precedent waived or discharged.

§ 2511. Conditions subsequent - Contracts terminable upon.

§ 2512.

Alternative promises - Election.

§ 2513. Contracts not entirely performed

part.

When party may recover for

§ 2514. When recovery cannot be had for part completed.

§ 2515. Contract rescinded after part performance.

§ 2486. Performance - Must be According to Terms of Contract. Neither party to a contract can recover against the other for a breach thereof, or put the other in default, without a tender of performance upon his part, or showing a willingness and ability to perform, and that actual performance was prevented or expressly waived by

the other. So by the common-law rule, to discharge a promise by performance, the performance must be in strict accordance with the terms of the contract.2 Where the contract is to convey to a third person, an undertaking is implied that the stranger will accept, and an offer to convey is not equivalent to an actual performance.3 Whatever is necessary to be done in order to accomplish the work specifically set forth in a contract as agreed to be performed is parcel of the contract, though not specified. If goods are ordered of a manufacturer, and are not made substantially according to the order, or if work is done on them not ordered, though increasing the value, the person ordering them may refuse to receive them.5 So when goods are to be delivered within a certain time, and at a certain place, they must all be delivered within the time and at the place; a delivery of part within the time, and part afterwards, will not be sufficient."

ILLUSTRATIONS. - A maker of machines agreed with a newspaper advertising agent that the latter should insert the former's advertisement in such papers as would take their pay in machines. The agent, instead of so doing, placed the advertisement in papers in which he owned space. Held, a non-compliance with the agreement, which precluded a recovery: Allen v. Pierpont, 22 Fed. Rep. 582. Plaintiff contracted to do advertising for defendant in 1,075 newspapers, the advertisement to be set up in a certain style, under the head of new advertisements. The advertisement was inserted in 1,022 papers; in 233 the directions as to style and type were not complied with; in 291

1 Nelson v. Plimpton Fire-proof etc. Co., 55 N. Y. 480.

2 Farrar v. Nightingale, 2 Esp. 639; Duffell v. Wilson, 1 Camp. 407; Hill v. School Dist., 17 Me. 316; Norris v. School Dist., 12 Me. 293; 28 Am. Dec. 182; Allen v. Cooper, 22 Mo. 136; Smith v. Davis, 1 Wis. 447; 60 Am. Dec. 391; Leonard v. Dyer, 26 Conn. 172; 68 Am. Dec. 382; Superintendent v. Bennett, 27 N. J. L. 513; 72 Am. Dec. 373; Dula v. Cowles, 7 Jones, 290; 75 Am. Dec. 463; Derrickson v. Edwards, 29 N. J. L. 468; 80 Am. Dec. 220; Leopold v. Salkey, 89 Ill. 412; 31 Am. Rep. 93.

only partly so; in half the papers the insertion was not under the head of new advertisements. It appeared that the style and position were of importance. Held, that plaintiff had not complied with his contract, and that it was immaterial that the position given to the advertisement was better than that agreed upon: Dauchey v. Drake, 85 N. Y. 407; 9 Daly, 31. See Sheffield v. Balmer, 1 Mo. App. 176.

§ 2487. Substantial Performance, when Permitted.In equity, on the other hand, it has always been held that, where the contract is substantially performed, the party may recover as for a complete performance, less such damages as the other party may have been put to by reason of the matters not performed. The equity rule has been generally adopted in the United States, particularly in the code states. Thus in New York, it is laid down that, in building contracts, "where the builder has in good faith intended to and has substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage, on account of such defects. . . . . There must be no willful or intentional departure, and the defects must not pervade the whole, or be so essential as that the object which the parties intended to accomplish-to have a specified amount of work performed in a particular manner is not accomplished. This is a question of fact." One who agrees to make a carriage just like a certain model carries out his contract by making a carriage substantially like the model.

1

Halsey v. Grant, 13 Ves. 77; Davis v. Howe, 2 Schoales & L. 347; Green v. Low, 22 Beav. 625; Lord v. Stephens, 1 Younge & C. 222; Stewart v. Metcalf, 68 Ill. 109; Page v. Greeley, 75 Ill. 400; Foley v. Crow, 37 Md. 51. 2 Goldsmith v. Hand, 26 Ohio St. 101; Cullen v. Blum, 37 Ohio St. 236; Nolan v. Whitney, 88 N. Y. 648; Wolfe v. Howes, 20 N. Y. 197; 75 Am. Dec. 388; Hayward v. Leonard, 7 Pick. 181; 29 Am. Dec. 269; Porter v. Woods, 3

A contract to perform work

Humph. 56; 39 Am. Dec. 153; Gleason v. Smith, 9 Cush. 484; 57 Am. Dec. 62; Hovey v. Pitcher, 13 Mo. 191; Chambers v. Jaynes, 4 Pa. St. 39; Rees v. Smith, 1 Ohio, 124; 13 Am. Dec. 599.

3 Phillip v. Gallant, 62 N. Y. 264; Nolan v. Whitney, 88 N. Y. 648; Johnson v. De Peyster, 50 N. Y. 666; Glacius v. Black, 50 N. Y. 145; 10 Am. Rep. 449.

Meincke v. Falk, 61 Wis. 623; 50 Am. Rep. 157.

"under his own personal and immediate superintendence, and not by subcontract," binds the contractor to give it his personal attention, but does not require his perpetual presence, nor preclude his employing assistants.1 So it has been held that a person may recover for work done under a contract, though not strictly according to it, where the work was beneficial to the other party, and the parties cannot be placed in statu quo.2

ILLUSTRATIONS.-The defendant agreed to buy all the fruit raised by the plaintiff and delivered at its works, at a uniform price per pound. As it ripened, the plaintiff delivered, and the defendant accepted, quantities from time to time, but declined to pay for any until the whole was delivered. The plaintiff discontinued delivering, and sued for the price of that delivered. Held, that the action was maintainable: Veerkamp v. Hulburd Canning etc. Co., 58 Cal. 229; 41 Am. Rep. 265.

§ 2488. Performance as to "Quantity" on Sale of Goods or Property. In contracts for the sale of goods, the seller must deliver the exact quantity contracted for.3 A contract to deliver 250 barrels is not fulfilled by delivering 260 barrels, and the vendee may refuse the whole, on account of the excess delivered. A contract to build a mill fifty by one hundred and fifty feet is not complied with by building one that is seventy-eight by one hundred feet. A contract to deliver" all my crop," "to be in good merchantable order," is satisfied by the delivery of such part as is well ripened, though it be but a few bushels. A contract, "we have sold to W. all the ginseng we have on hand and shall collect this season or fall, amounting to from five to eight thousand pounds, as near

1 Reed v. Conway, 26 Mo. 13.

2 Gilman v. Hall, 11 Vt. 510; 34 Am. Dec. 700; Chance v. Comm'rs, 5 Blackf. 441; 35 Am. Dec. 131; Davis v. Fish, 1 G. Greene, 406; 48 Am. Dec. 387.

$ Leake on Contracts, 823; Waddington v. Oliver, 2 Bos. & P. N. R. 61; Hoare v. Rennie, 5 Hurl. & N. 19; Dennitt v. Shortt, 7 Greenl. 150;