repudiate his obligation to receive the piano, and recover payment in money for advertising already published, on the ground that all the advertising contemplated by the contract was not done, where it appeared that the defendant had waived his right to the balance.63

§ 199. Performance Not in Accordance with Terms.Every party to a contract has the right to expect and require that the other party will fulfill his engagement exactly according to its terms. No one can be forced to accept a substitution in respect to the subject-matter of the contract, or the tender of something different from, though perhaps equivalent to, what was contracted for. Hence an attempted performance of a contract, not in accordance with its terms, is no performance at all, but furnishes ground for rescission. Thus, if one contracts to buy a machine, an automobile, a piano, etc., of a particular make or kind, and the seller delivers one of a different make or kind, the buyer may rescind the contract.64 So, where a contract for the sale of goods made the price payable when the goods arrived at a designated place, a shipment of them to a different place, with instructions that they were to be held there until the buyer paid the price, was a violation of the contract such as to justify the buyer in rescinding. Similarly, a right of rescission exists where a purchaser of land agrees, as a part of the consideration, to extinguish a mortgage on the premises, but instead of doing so, takes an assignment of the mortgage and attempts to foreclose it, or where money is deposited with trustees under a contract stipulating that they shall purchase certain property in their own names, but instead of that, the property is purchased in the name of a third person.67 But if the person who has a right to object to the faulty or changed performance of the contract does not exercise this right, but accepts such performance as is tendered and expresses himself as

65

66

63 Mail & Times Pub. Co. v. Marks, 125 Iowa, 622, 101 N. W. 458. 64 Barry v. Danielson, 78 Wash. 453, 139 Pac. 223.

65 Robert M. Green & Sons v. Lineville Drug Co., 167 Ala. 372, 52 South. 433.

66 Ong v. Campbell, 6 Watts (Pa.) 392.

67 Payne v. Pomeroy, 21 D. C. 243.

satisfied with it, this will operate as a rescission of the original agreement, so that he cannot afterwards insist upon the terms of it.68 And of course it is always within the power of the parties, by their mutual consent, to change or modify the terms of their contract, and when this is done, performance in accordance with the modified terms will suffice to bind the other party. But a change in some one or more particulars does not throw open the whole contract. Thus, a change in the place of delivery, after making a contract for the sale of a machine, does not release the buyer from the duty of returning the machine, as agreed in the contract, in case of a failure of the warranty.70

69

§ 200. Defective or Unsatisfactory Performance of Work. A person who employs another to do work for him. on the express or implied agreement that the work shall be done in a workmanlike manner, may terminate the contract on discovering that the work is being done unskillfully, negligently, or in a manner injurious to his property." And this rule applies not only to the exercise of such trades or mechanical arts as require training and skill of hand or eye, but to services rendered in those professions where the object is the giving of gratification or entertainment by the display of unusual natural gifts or highly cultivated art, such as the work of actors and musicians.72 The rule also enables the party to whom the services are to be rendered not only to stop the work during its progress, but to repudiate and reject it after completion, when it has been done in such a defective or negligent manner that it is of no value to him; and when this is done, the other party can base no claims upon a subsequent attempt to perform the work according to the original contract.73 In a case where county warrants were issued for the cost of building a bridge, the

68 Buford v. Funk, 4 G. Greene (Iowa) 493.

69 Robinson v. Batchelder, 4 N. H. 40; Babcock v. Purcupile, 36 Neb. 417, 54 N. W. 675.

70 Gammar v. Borgain, 27 Iowa, 369.

71 Ferris v. Hoglan, 121 Ala. 240, 25 South. 834; Husted v. Craig, 36 N. Y. 221; Feinberg v. Weiher (Com. Pl.) 19 N. Y. Supp. 215.

72 McLaughlin v. Hammerstein, 99 App. Div. 225, 90 N. Y. Supp. 943. And see, supra, § 192.

73 Miller v. Phillips, 31 Pa. 218.

contractors undertaking to build it in a workmanlike manner, but the bridge collapsed within a year after its completion because it was unskillfully constructed, it was held that the county could maintain a suit in equity to cancel the warrants and recover the money paid on the contract." So, where a heavy manufacturing building was so constructed by defendants, the contractors, that within two months it required repairs to make it safe, costing approximately $15,000, it was held to be no defense to an action for breach of the contract that the work and materials were approved by the architect as it progressed.75

But one who wishes to terminate a contract for this reason must fulfill whatever duties towards the other party may be imposed upon him by the contract itself. Thus, if it requires him to give written notice of his intention to stop the work, he cannot put an end to the contract without such notice." And his dissatisfaction with the work must be real, not arbitrary, and founded on substantial defects or faults." The courts will discountenance a fraudulent attempt to get rid of the obligations of a contract by a pretended dissatisfaction with the work which is being done under it.78

This rule has been extended to cases where, after the contract is made, but before any steps are taken in the execution of it, it is discovered that the contracting party is incompetent to perform the required work in a proper or satisfactory manner. Thus, it is said that, if one who has hired a servant or other employé discovers, before the term of employment begins, that he is a drunkard, the contract may be rescinded.79

74 Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 South. 196.

75 Mohawk Overall Co. v. Brown, 163 App. Div. 157, 148 N. Y. Supp. 369. But compare Town of Packwaukee v. American Bridge Co., 183 Fed. 359, 105 C. C. A. 579.

76 Rodemer v. Gonder, 9 Gill (Md.) 288.

77 Gould v. McCormick, 75 Wash. 61, 134 Pac. 676, 47 L. R. A. (N. S.) 765, Ann. Cas. 1915A, 710.

78 Brucker v. Manistee & G. R. R. Co., 166 Mich. 330, 130 N. W. 822.

79 Johnson v. Gorman, 30 Ga. 612; Nolan v. Thompson, 11 Daly (N. Y.) 314.

§ 201. Excuses for Default.-Failure of performance is not ground for the rescission of a contract when the party in default can show a justification or a sufficient excuse for his delinquency. The fact that performance of the contract has become impossible by reason of supervening facts for which he is not responsible is such an excuse.80 But mere financial stringency or the difficulty of raising money is not a legally sufficient excuse for failure to make a payment on a contract for the purchase of land.81 And one who has contracted to convey land, having first to get in an outstanding title, is not excused from punctual performance of his undertaking by the fact that pressure of business upon the holder of the outstanding title caused a delay in the conveyance of it to him.82 So, where one has contracted to deliver, in weekly installments, a large number of manufactured articles, he cannot claim an extension of time for delivery as a matter of right because he is unable to secure a sufficient number of workmen to complete his contract, but the other party may cancel the order for the actual or expected delay.83 In some exceptional cases, however, an excuse for delay may be found in accidental causes for which the party was not responsible and over which he had no control. In a case in the federal courts, it appeared that plaintiff sold to defendant the old rails to be taken up from its railroad, to be shipped as soon as the new rails were laid, "delivered f. o. b. Pennsylvania Railroad cars" at a named place. Two shipping orders were given by defendant covering part of the rails. The first was promptly filled, and, on receipt of the second, cars were at once ordered and were filled as fast as received, but there was a delay on the part of the railroad company in furnishing the cars, of which fact defendant was advised. It was shown that plaintiff did all that was in its power to obtain the cars promptly. It was held that, under the contract, plaintiff was not bound to furnish the cars, nor was it responsible for the delay, and hence it was not chargeable with such a breach of the con

80 See, infra, §§ 208, 209.

81 Yoss v. De Freudenrich, 6 Minn. 95 (Gil. 45).

82 Haynes v. Fuller, 40 Me. 162.

83 White v. Wolf, 185 Pa. 369, 39 Atl. 1011.

tract as would warrant the defendant in canceling the same or in refusing to order or accept further shipments.

84

Again, a party cannot rescind a contract because of a breach or failure of performance which was occasioned by his own act or fault.85 Thus, the owner of an undivided one-fourth interest in mortgaged land agreed to convey his interest on a day stated if the vendee would pay one-fourth of the mortgage. This the vendee agreed to do and was ready and able to do, but found it impossible, because the owner had secured an extension of the mortgage as to the other three-fourths and the mortgagee would not accept payment of one-fourth of the mortgage. It was held that the vendor could not declare a forfeiture.86 So, where a title bond binds the obligor to convey a certain quantity of land in one, two, or three surveys, as the obligee may choose, the former is not bound to convey until the latter has made his selection; and if circumstances make an actual survey necessary, a rescission of the contract cannot be decreed until a survey has been made.87 In another case, vendors sued to annul a contract for the conveyance of land on the ground that the vendees had failed and refused to make the required payment. But rescission was denied because it was shown that the vendees had endeavored to comply with the notice served on them, and attempted to make payment of the balance due at the place specified and to the officers of a bank, who were plaintiffs' agents to receive the payments, which they declined to accept, and referred the vendees to one of the plaintiffs, to whom they paid the balance. 88 And generally, where the delay of a purchaser of land to make payment is occasioned by facts which throw a cloud on the title and render it suspicious to the minds of reasonable men, and to any considerable extent affect the value of the property, such delay does not en

84 Baltimore & L. Ry. Co. v. Steel Rail Supply Co., 123 Fed. 655, 59 C. C. A. 419.

85 Burris v. Shrewsbury Park Land & Improvement Co., 55 Mo. App. 381. And see, infra, § 205. Compare Carter v. Hoke, 64 N. C. 348.

86 Guthrie v. Baton, 223 Pa. 401, 72 Atl. 788.

87 Purcell v. McCleary, 10 Grat. (Va.) 246.

88 Nelson v. Geaskamyier, 84 Minn. 432, 87 N. W. 1121.