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.
A contract which provided for making compensation to the contractor for the transportation of his implements to a specified point, is performed substantially if the contractor finds that he can perform by having his implements transported to a different point; and he is entitled to compensation therefor under such contract if the freight to such point is less than it is to the point specified in the contract.1 A contract to consolidate two corporations and to assign all the stock of one of them is substantially performed by transferring the assets, good will and three-fourths of the stock of such corporation, and suppressing its competition.2 A contract by which a hospital
4 Petersburg Fire, Brick & Tile Co. v. American Clay Mach. Co., 89 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.
5 North v. Mallory, 94 Md. 306, 61 Atl. 89.
6 Manitowoc, etc., Co. v. Glue Co., 120 Wis. 1, 97 N. W. 615.
7 Clarke v. Machine Co. (Ky.), 42 S. W. 844.
8 Heine Safety Boiler Co. v. Francis, 117 Fed 235, 54 C. C. A. 267.
9 Kramer v. Messner, 101 Ia. 88, 69 N. W. 1142.
1 Snyder v. Patton & Gibson Co., 143 Mich. 350, 106 N. W. 1106.
2 German Savings Institution v. Refrigerating Co., 70 Fed. 146, 17 C. C. A. 34.
agrees to support three beds for use of soldiers, to be used by others when there are no soldier applicants, is substantially performed where the hospital accepts all applications for admission made by soldiers.3 A contract by which a wife agrees to pay premiums or assessments upon her husband's policy of life insurance, is performed substantially if such payments are in fact made, although part of them are made by the father of the husband who had promised the wife to make such payments if she was unable to do so, but who was not making such payments in performance of such promise.4 If a surrender of an insurance policy is required as a condition of obtaining a paid-up policy, the fact that the original policy has been stolen from the insured does not defeat his right, on complying with all the other requisites, to obtain a paid-up policy.5 The right of the insured to change the beneficiary is not defeated because the former beneficiary refuses to deliver up the original certificate, and he is therefore unable to comply with a provision requiring its surrender as a prerequisite to changing the beneficiary.6 A contract to keep buildings and machinery insured for not less than six thousand, two hundred dollars, payable to the lessors as their interests may appear, is substantially performed if the lessee obtains insurance upon the buildings amounting to more than three thousand dollars, and upon the machinery amounting to more than four thousand dollars, payable to the lessors as their interests should appear.7 In this case the machinery belonged to the lessees, but a provision of the lease gave the lessors a lien thereon for all unpaid rent. A contract by a bridge company with the city to sell a hundred tickets crossing the bridge for one dollar, is substantially performed if the bridge company sells five tickets for one dollar, each ticket good for twenty crossings.8
A contract to form a partnership is not substantially performed by forming a corporation.9 A contract for operating a mine in one state, by a mining corporation, is not performed substantially by the formation of a corporation under the laws of another state.10 A contract by a warehouse company, to keep cotton of a bailee insured in his name, is not substantially performed by keeping all the cotton in the warehouse, including that of the bailee, insured by a policy taken out in the name of the warehouseman.11 A contract to obtain an assignment of a note on deposit as collateral security for one debt, as further security for another, is not performed substantially where an assignment is made, valid as between parties but invalid as to attaching creditors.12 A contract to bring suit to contest the legality of certain charges is not substantially performed where such suit is brought, but is dismissed before final judgment without the consent of the promisee.13 It has been held that if A agrees to support B for life on condition that B remains sober, in consideration of which B conveys certain property to A, such contract is not performed substantially if B at once resumes his habits of drunkenness which were well known to A, and A treats such contract as discharged by reason of the breach of such condition.14 If A conveys land to B in consideration of B's promise to give to A a home for life, and B immediately treats A with harshness and frightens him, and if B then removes from the house, leaving A alone, A may have rescission of such conveyance, although B invites A to go with him to the house to which A removes.15 A contract of fidelity insurance which provides that the accounts of the employe shall be examined and verified by his employer, at certain intervals, is not performed substantially if the employer relies upon the amount shown by his deposit book as the amount which he has on deposit.16
3 Cottage Hospital v. Merrill, 02 Ia. 649, 61 N. W. 400.
4 Sipe v. Sipe, 102 Kan. 742, L. R. A. 1918E, 1029, 173 Pac. 13.
5 Wilcox v. Assurance Society, 173 X. Y. 50, 93 Am. St. Rep. 579, 65 N. E. 857
6 Lahey v. Lahey, 174 N. Y. 146, 95 Am. St. Rep. 554, 61 L. R. A. 791, 66 N. E. 670. (An action between the former beneficiary and the new beneficiary.)
7 Guetzkow Bros. Co. v. Breese, 96 Wis. 591, 65 Am. St. Rep. 83, 72 N. W. 45.
8 Newport v. Bridge Co., 90 Ky. 193. 8 L. R. A. 484, 13 S. W. 720.
9 Knottsville Roller Mill Co. v. Mat-tingly (Ky.), 35 S. W. 1114.