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been often controverted. In one of the cases to the contrary it appeared that a deed granted a right of way to a railroad company, in consideration of the enhanced value to the grantor's other land in consequence of the construction of the road and the location of a station on the land granted, but it did not provide for a reversion on the nonperformance of the conditions by the company. It was held that the deed vested the title in the company, even though it failed to locate or maintain the station as agreed, and the grantor's remedy was by action for the breach of the contract, rather than for the cancellation of the deed. 278 A similar difference of opinion is found in the case where the vendor of land (suburban property, for instance) agrees as part of his contract to make improvements upon the land sold or upon the tract of which it constitutes a part, such as grading, opening streets, making connections for gas and water, or the like. Several of the cases maintain that the breach of these conditions will warrant a rescission by the vendee.279 But there is also authority to the contrary.2 At any rate, it seems that there must be a complete failure to keep all the covenants or conditions of the contract, and that the breach of one out of several such conditions will not give cause for rescission. Thus, in a case in New York, the grantor of lots covenanted to lay sidewalks of cement, and water and gas mains, and to plant shade trees, and to macadamize the street, and performed all that he had promised, except as to macadamizing the street, and it was held that the grantee could not rescind

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278 Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39. And see Lawrence v. Gayetty, 78 Cal. 126, 20 Pac. 382, 12 Am. St. Rep. 29; Troxler v. New Era Bldg. Co., 137 N. C. 51, 49 S. E. 58; Buckner v. Pacific & G. E. Ry. Co., 53 Ark. 16, 13 S. W. 332.

279 Laser v. Forbes, 105 Ark. 166, 150 S. W. 691; Tennant Land Co. v. Nordeman, 148 Ky. 361, 146 S. W. 756.

280 Powell v. Berry, 91 Va. 568, 22 S. E. 365. Under a contract of sale of a lot in which the vendor stipulates to build granolithic walks, the purchaser, two years thereafter, may not rescind because the walks have not been built, where the lot sold was only one of many comprising a single enterprise, and the stipulation manifestly referred to the whole enterprise. Dowling v. Miller-Kendig Real Estate Co. (Sup.) 115 N. Y. Supp. 154.

for this cause alone.281 Moreover, some of the decisions take the position that, if a provision of this kind inserted in a deed is a condition, the breach of it will cause a forfeiture of the estate, and a court of law would adjudge a forfeiture on the same evidence or even less evidence than would be required in a court of equity to cancel the deed, if the case were a proper one for that remedy, and hence, for these reasons, the remedy at law is adequate and a suit for cancellation of the deed should not be maintained.28 282

§ 214. Non-Payment of Consideration.-Failure of one of the parties to a contract to make the stipulated payments to the other may constitute such a breach of condition as will justify the abandonment or rescission of the contract. Thus,' in one of the cases, the plaintiff and another were engaged in building for a canal company an extension of its canal, and a sum of $20,000 which was due to them under the contract remained unpaid. They notified the company that they considered the contract annulled in consequence of the failure to make the payment, but added that, to enable the company to make other arrangements, they would continue the work for six days longer, for which they would ask no pay, except what the company might feel bound to allow them. At the end of the six days, having received no answer from the company, they withdrew their previous note, except that part of it declaring the contract annulled. And it was held that they were justified in abandoning the contract when they did, and were entitled to a fair compensation for the work performed.2 So, where a contractor who has undertaken to do the grading of a railroad has given bond for the faithful performance of his contract, and the other parties to the contract withhold any part of the compensation which is due and payable, though it be for the purpose of paying the hands

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281 Duff v. Queensboro Heights Land Corporation, 79 Misc. Rep. 546, 140 N. Y. Supp. 254.

282 Monnett v. Columbus, S. & H. Ry. Co., 26 Ohio Cir. Ct. R. 469; Piedmont Land Improvement Co. v. Piedmont Foundry & Machine Co., 96 Ala. 389, 11 South. 332.

283 South Fork Canal Co. v. Gordon, 6 Wall. 561, 18 L. Ed. 894. See Cannon v. Turner-Hudnut Co., 185 Ill. App. 9.

or subcontractors, the contractor has a right to abandon the work and recover compensation in damages. 284 And on the same principle, where theatrical managers undertake to produce an author's play, and the latter is given the right, under the contract, to terminate it on their failure to pay his royalties as provided therein, he may put an end to the contract although the other parties had arranged with their agent to remit the royalties which the agent neglected to do.285 And upon a stipulation by the seller to send to the purchaser ten sewing machines each day, and an agreement of the purchaser to sell the same for cash and to remit a certain part of the proceeds to the seller, it is held that his failure to remit will release the seller from the obligation to continue sending the machines.286 So again, a contract may be rescinded for fraud where a payment thereunder, which by its express terms was not to be made in a certain depreciated and worthless currency, was made by giving a check on a bank, which the bank was not obliged to pay in any other medium than such worthless currency, because the drawer had only that kind of money on deposit.287 The case of rescission of a contract of sale, whether of personal property or real property, for non-payment of the purchase money, is governed by special rules, which will be considered in another connection.288

§ 215. Payment or Delivery in Installments.-When a contract provides for the sale or the supplying of certain quantities of a given commodity, deliveries to be made in installments, and the price to be paid in corresponding installments, either at fixed periods (as, weekly, on a certain day of each month, or the like) or upon the delivery and receipt of each installment of the goods, many of the decisions sustain the rather severe rule that default of the purchaser in the payment of any one installment of the price, not justified by the circumstances nor waived by the seller,

284 Dobbins v. Higgins, 78 Ill. 440.

285 Weber v. Mapes, 98 App. Div. 165, 90 N. Y. Supp. 225.

286 Stewart v. Many, 7 Ill. App. 508.

287 Scott v. Johnson, 5 Heisk. (Tenn.) 614.

288 As to sales of personal property, see, infra, § 411; as to sales of real estate, see, infra, § 439.

will warrant the latter in rescinding the unexecuted portion of the contract, in refusing to make any further deliveries, and in suing for the value of what has been delivered.289 For example, where a contract was made for the sale and purchase of a crop of peaches on the trees, to be delivered. from day to day, and it was agreed that payment should be made at the end of each week, and the purchaser neglected at the end of one week to make the payment, it was held that the seller had a right to consider the contract as at an end, and that an offer on the part of the vendee two days afterwards to pay the sum due was too late.290 And indeed, it has been held, under the express provisions of a contract for the sale of coal to be delivered at different times, that a delay of one day in mailing a check for a shipment entitled the seller to refuse further deliveries.291 So, where a judgment creditor receives notes for a part of his debt and agrees that, if all the notes are paid as they respectively fall due, he will acknowledge satisfaction of the judgment, but if either of the notes should not be paid at maturity, the sums which had been received should be credited on the judgment, he may treat the agreement as rescinded, and proceed to enforce payment of the original indebtedness, when any note is not paid at maturity.292 This rule is ap

289 Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 Fed. 256, 51 C. C. A. 213; Youghiogheny & O. Coal Co. v. Verstine (C. C.) 176 Fed. 972; Stokes v. Baars, 18 Fla. 656; W. H. Purcell Co. v. Sage, 200 Ill. 342, 65 N. E. 723; George H. Hess Co. v. Dawson, 149 Ill. 138, 36 N. E. 557; Burt v. Garden City Sand Co., 141 Ill. App. 603; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574, 11 Ann. Cas. 1045; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. 415; City of Baltimore v. Schaub Bros., 96 Md. 534, 54 Atl. 106; Eastern Forge Co. v. Corbin, 182 Mass. 590, 66 N. E. 419; Jenness v. Shaw, 35 Mich. 20; Peet v. City of East Grand Forks, 101 Minn. 518, 112 N. W. 1003; Strother v. McMullen Lumber Co., 200 Mo. 647, 98 S. W. 34; Bean v. Miller, 69 Mo. 384; Price v. City of New York, 104 App. Div. 198, 93 N. Y. Supp. 967; New Publication Co. v. Stern (Sup.) 127 N. Y. Supp. 393; Bright v. Dean, 2 City Ct. R. 433, 2 N. Y. Supp. 658; Rugg v. Moore, 110 Pa. 236, 1 Atl. 320; Eastern Arkansas Hedge-Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886.

290 Reybold v. Voorhees, 30 Pa. 116.

291 Southern Coal & Coke Co. v. Bowling Green Coal Co., 161 Ky. 477, 170 S. W. 1185.

292 Haggerty v. Simpson, 1 E. D. Smith (N. Y.) 67.

plicable to contracts for the purchase of land. Where such a contract makes the consideration payable in installments, and the purchaser defaults in the payment of the first or any subsequent installment, without any legally sufficient excuse, and without a tender of the amount due, the vendor may at once declare a forfeiture or sue for the rescission of the contract.293 This, however, is on the supposition that the contract itself does not provide what shall be done in case of such default. If it does, it will control and its provisions must be followed.294 But in the common case where the contract provides that, in case of default in the payment of any installment, the agreement shall be null and void, and the rights of the purchaser thereunder shall be forfeited, this provision is held to be for the exclusive benefit of the vendor, and he is not bound to terminate the contract on the vendee's default. He has the option to do so, but he may, if he chooses, elect to treat the contract as continuing and insist on performance according to its terms.295 The same rule is also applicable in the case of building contracts. Unless there are some special provisions in the contract, a contractor for the erection of a building has generally the right to rescind for the owner's failure to pay any installment of the contract price at the time it is due.2

296

But there are also numerous authorities to the contrary of the general rule above stated. These cases hold that, when the seller agrees to deliver goods in installments, and the buyer agrees to pay proportionate parts of the price on the delivery of each installment of the goods, the mere default by either party with reference to any one installment will not ordinarily entitle the other party to abrogate the contract.297 The theory of these decisions is that noth

293 Davidson v. Keep, 61 Iowa, 218, 16 N. W. 101; Thompson v. Kilcrease, 14 La. Ann. 340; Gonsoulin v. Adams, 28 La. Ann. 598; Pell v. Chandos (Tex. Civ. App.) 27 S. W. 48; Reard v. Ephrata Orchard Homes Co., 78 Wash. 180, 138 Pac. 678.

294 Davis v. Hall, 52 Md. 673.

295 Morris v. Green, 62 App. Div. 460, 70 N. Y. Supp. 1096; Meagher v. Hoyle, 173 Mass. 577, 54 N. E. 347; Cape May Real Estate Co. v. Henderson, 231 Pa. 82, 79 Atl. 982.

296 Fairchild-Gilmore-Wilton Co. v. Southern Refining Co., 158 Cal. 264, 110 Pac. 951; Harton v. Hildebrand, 230 Pa. 335, 79 Atl. 571. 297 Rock Island Sash & Door Works v. Moore & Handley Hard

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