In the first of these three cases - that in which the nonfulfillment of a specified term of the contract gives to one of the parties the option of treating the contract as discharged - we seem to be approaching very near to the subject of the discharge of contract by breach, for this, to, may arise from the nonfulfillment of a term which the parties consider to be vital to the contract. There is, however, this difference between a nonfulfillment contemplated by the parties, the occurrence of which shall, it is agreed, make the contract determinable at the option of one, and a breach, or nonfulfillment not contemplated or provided for by the parties. In the former case the parties have, while in the latter they have not, looked beyond the immediate objects of the contract. In the former case the default which is to constitute a discharge is specified by the agreement of the parties, while in the latter it must always be a question of fact or of construction whether or not the default was in a matter vital to the contract, so as to operate as a discharge by breach. An illustration of this mode of discharge is afforded where a chattel is sold with the understanding that it may be returned if it is not satisfactory, or does not answer the description given by the seller. In a leading case on this point, a horse had been sold under a contract by which it was stipulated that, if it did not comply with a certain warranty, the buyer might return it by a specified time. It did not comply with the warranty, and was returned within the time, but the seller refused to accept it, because it had been injured, though by no fault of the buyer. It was held that the buyer was entitled to return it. "The effect of the contract," it was said, "was to vest the property in the buyer subject to a right of rescission in a particular event, when it would revest in the seller." 49
49 Head v. Tattersall, L. R. 7 Exch. 7, 14. And see RAY v. THOMPSON, 12 Cush. (Mass.) 2S1, 50 Am. Dec. 187, Throckmorton Cas. Contracts, 369; Kimball & Austin Mfg. Co. v. Vroman, 35.Mich. 310, 24 Am. Rep. 558; Bus-well v. Bicknell, 17 Me. 344, 35 Am. Dec. 202; Schlesinger v. Stratton, 9 R. I. 578; McKinney v. Bradlee, 117 Mass. 321; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552. Cf. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 33 L. Ed. 1003. It is otherwise where the injury is caused by the fault of the purchaser. RAY v. THOMPSON, 12 Cush. (Mass.) 28J, .V.) Am. Dec. 187, Throckmorton Cas. Contracts, 309. If no time is specified within which the option to rescind must be exercised, a reasonable time is Implied. Quinn v. Stout, 31 Mo. 100; Hickman v. Shimp, 109 Pa. 10; Washington v. Johnson, 7 Humph. (Tenn.) 408. See "Sales," Dec. Dig. (Key-No.) § 287; Cent. Dig. §§ 811-816.
The law, however, does not favor forfeitures, nor does it incline to such construction of a doubtful contract as will terminate the rights of one of the parties under it. As said in a recent Texas case: 51 "To constitute a condition subsequent upon which a forfeiture may be declared because of a failure of its performance, the language must be clear and the condition must be created by-express terms, or by clear implication, and it must be strictly construed."