This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Performance of a contract consists in doing the thing which has been promised.1 "While the term performance ordinarily implies affirmative action, it may also include negative action wherever the contract in question contains a negative covenant.2
A contract which has been performed by both of the parties thereto is frequently said to be fully executed;3 while a contract which has been performed by one party, but not by the other, is said to be executed as to the party who has performed.4 In this sense the term "execute" is regarded as equivalent to "perform." In one sense the use of this term is natural. If the contract has not been performed on one side by one party, it is called executory as to such party.5 The natural antithesis of an executory contract is an executed contract; and if the term "executory" is to be used of contracts which have not been performed, the term "executed" would seem to be the natural term to employ in referring to contracts which have been performed. The chief objection to the use of this term in this sense, however, is that it is already used in another sense. Execution is practically equivalent to formation, especially if the contract is under seal,6 or if the contract is in writing though not under seal.7 The same term should not be used to indicate the formation of the contract on the one hand and the performance of the contract on the other. While there is relatively little danger of confusion in thought, it is nevertheless necessary, if the term "executed" is to be used in each of these senses, to explain in which sense it is used in the particular instance. In some cases the term "executed" is limited to contracts which are fully performed on each side; 8 and a contract which has been performed on one side and which is executory in whole or in part on the other side, is classed as an executory contract.9
1 McGuire v. J. Neils Lumber Co., 07 Minn. 293, 107 N. W. 130; Wertheim v. Maintenance Co., 110 N. Y. Supp. 909; McElraevy & Hauck Co. v. St. Joseph's Home, 143 N. Y. Supp. 235.
"Performance is, as the term implies, such a thorough fulfilment of a duty as puts an end to obligations by leaving nothing more to be done. Hare, Cont. 569." McGuire v. J. Neils Lumber Co., 97 Minn. 293, 107 N. W. 130.
"Performance of a contract consists in doing the thing agreed to be done." McElraevy & Hauck Co. v. St. Joseph's Home, 143 N. Y. Supp. 235.
"Perform" is regarded as synonymous with "fulfil." Wertheim v. Maintenance Co., 119 N. Y. Supp. 000.
The meaning of the word "perform" or "performance" in a statute, is frequently affected or modified by the context. In a statute which is intended to protect laborers who have done work in constructing a building by giving them a lien thereon for labor which they have performed, the word "perform19 is regarded as equivalent to "commenced." Griffith v. Black water Boom & Lumber Co., 46 W. Va. 56, 33 S. E. 125.
Under a statute which provides that an action against a corporation may be brought in a county in which a contract of such corporation is to be performed, it is held that "the words 'to be performed' have reference to a contract that is to be performed wholly or in all its essential parts in one county, and that when a contract provides that it may be performed in more than one county, the venue of the action is confined to the other counties mentioned in the section in which the action may be brought." Job Iron & Steel Co. v. Clark, 150 Ky. 246, 150 S. W. 367; Bight of Real Estate and Loan Brokers to Commissions, 26 American Law Register, 545 (N.S.) 1887; Bight of Real Estate and Loan Brokers to Commissions, 26 American Law Register, 545 (N.S.) 1887.
For a special question under performance, see The Real Estate Broker and Hie Commissions, by Floyd R. Mechem, 6 Illinois Law Review, 145, 238, 313.
2 Old Colony Trust Co. v. Tacoma, 210 Fed. 775.
3 DeBergere v. Chaves, 14 N. M. 352, 93 Pac. 762; Galbreath Gas Co. v. Lind-sey, - Okla. - , 161 Pac. 826.
4 Oliver v. Sattler, 233 III 536, 84 N. E. 652.
5 Fletcher v. Peck, 10 U. S. (6 Cranch) 87, 3 L. ed. 162; Farrington v. Tennessee, 05 U. S. 670, 24 L. ed. 558. See Sec. 52.
A contract which has been performed on one side and not on the other is sometimes referred to as a contract which is executed on one side and executory on the other;10 and sometimes it is referred to as a unilateral contract. The difficulties in the way of using the term "unilateral" as a technical term have already been indicated.11 It is actually used much more frequently to indicate a promise which is not a contract, especially a gratuitous promise; or to indicate a contract which is unenforceable because of a failure to comply with the Statute of Frauds or because of the disability of one of the parties thereto, than it is used to indicate a contract which is a valid obligation against each of the parties thereto. It has also been suggested as the proper term to use of a contract which is made by the acceptance of a promise by means of an act so that it is never executory as to one of the parties thereto.12 To employ the same term of a contract which was originally executory as to each of the parties thereto, but which has been performed in full by one of the parties, leaving it executory as to the adversary party, is to add another opportunity for confusion in names which in this case not infrequently leads to confusion in thought.
6 See Sec. 1157 et seq.
7 See Sec. 1173 et seq.
8 United States. Farrington v. Tennessee, 95 U. 6. 679, 24 L. ed. 558.
Colorado. McCutchen v. Klaes, 26 Colo. App. 374, 143 Pac. 143.
Georgia. Walking v. Nugen, 118 Ga. 872, 45 S. E. 262.
Illinois. Fox v. Kitton, 19 111. 519.
New Jersey. State v. Jersey City, 31 N. J. L. 575, 86 Am. Dec. 240.
Oregon. Leadbetter v. Hawley, 59
Or. 422, 117 Pac. 289 [ rehearing denied, Leadbetter v. Hawley, 117 Pac. 505].
Utah. Adams v. Reed. 11 Utah 460, 40 Pac. 720.
9 McCutchen v. Klaes. 26 Colo. App. 374. 143 Pac. 143; Leadbetter v. Hawley, 59 Or. 422, 117 Pac. 289 [rehearing denied, Leadbetter v. Hawley, 117 Pac, 505].
10 See Sec. 52.
11 See 151.
12 See Sec. 51.