240. Breach of contract is where a party thereto breaks through the obligation which it imposes.

241. The effect of a breach of contract is that -

(a) It always gives the party injured a right of action.

(b) It often, but not always, discharges the contract. This depends upon circumstances to be presently discussed.

If one of the parties to a contract breaks through the obligation which it imposes, a new obligation arises in every case - a right of action conferred upon the party injured by the breach. Besides this, there are circumstances under which the breach will discharge the injured party from such performance as may still be due from him. Every breach of contract confers the right of action upon the injured party, but every breach does not necessarily discharge him from doing what he has undertaken to do under the contract. The contract may be broken wholly or in part, and, if in part, the breach may or may not be sufficiently important to operate as a discharge; or, if it is of such importance, the injured party may choose not to regard it as a discharge, preferring to continue to carry out the contract, reserving to himself the right to sue for such damages as he may have sustained by the breach. It is often very difficult to determine whether or not a breach of one of the terms of a contract discharges the party injured.45 These questions will be discussed in the following pages.

Pick. (Mass.) 48; Lindsay v. Matthews, 17 Fla. 575. See Jones, Mortg. § 900. Tender to pledgee of amount secured is not vitiated by condition that pledge be delivered. Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435. See "Tender," Dec. Dig. (Key-No.) § 14; Cent. Dig. §§ SS-S8.

40 Waldron v. Murphy, 40 Mich. 668. See "Tender," Dec. Dig. (Key-No.) §§ 8, 9; Cent. Dig. §§ 11-19.

41 Berley & Kyzer v. Columbia, N. & L. R. Co., 82 S. C. 232, 64 S. E. 397. See "Tender," Dec. Dig. (Key-No.) § 8; Cent. Dig. §§ 11, 12.

42 Weinberg v. Naher, 51 Wash. 591, 99 Pac. 736, 22 L. R. A. (N. S.) 956. See "Tender," Dec. Dig. (Key-No.) §§ 4, 5; Cent. Dig. §§ 5-7.

43 Dixon v. Fletcher, 3 Mees. & W. 146; Hart v. Mills, 15 Mees. & W. 85; Curliffe v. Harrison, 6 Exch. 903; Perry v. Iron Co., 16 R. I. 318, 15 Atl. 87; Rommel v. Wingate, 103 Mass. 327; Croninger v. Crocker, 62 N. Y. 151; Tiffany, Sales, 187. See "Sales," Dec. Dig. (Key-No.) § 158; Cent. Dig. §§ S58S66.

44 Isherwood v. Whitmore, 10 Mees. & W. 757; Wyman v. Winslow, 11 Me. 398, 26 Am. Dec. 542; Holmes v. Gregg, 66 N. H. 621, 28 Atl. 17; Tiffany, Sales, 197. See "Sales," Dec. Dig. (Key-No.) § 153; Cent. Dig. §§ 358S66.