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 by one party has three results:
(3) If the contract has not already been broken by the adversary party so as to discharge it, the party performing may perform without the consent or acquiescence therein of such adversary party.3
In discussing the nature of performance, the question of its effect has been involved necessarily, and a detailed discussion thereof would merely be a repetition of the questions which have been considered already.4 Failure to perform, on the other hand, amounts to breach, unless the contract has been discharged by some of the means, other than performance or breach, by which a contract may be discharged;5 and the nature and effect of breach is considered elsewhere.6
7 Detwiler v. Downes, 110 Minn. 44, . 60 L. R. A. (N.S.) 753, 137 N. W. 422.
8 Bracken v. Fidelity Trust Co., 42 Okla. 118, L. R. A. 1915B, 1216, 141 Pac. 6.
9 Sanford v. Brown Brothers Co., 208 N. Y. 90, 60 L. R. A. (N.S.) 778, 101 N. E. 797.
1 Gottlieb v. Rinaldo, 78 Ark. 123, 6 L. R. A. (N.S.) 273, 93 S. W. 750; McGuire v. J. Neils Lumber Co., 97
Minn. 293, 107 N. W. 130; Adams v. Tri-City Amusement Co., - Va. - , 98 S. E. 647; Courteen v. Kanawha Dispatch, 110 Wis. 610, 55 L. R. A. 182, 86 N. W. 176.
2 McGuire v. J. Neils Lumber Co., 97 Minn 293, 107 N. W. 130. See eh. LXXXIV.
3 Central Coal & Coke Co. v. Good, 120 Fed. 793.
4 See Sec. 2772 et seq.
The distinction which our law draws between covenants for the payment of money only and other covenants is so marked for some purposes that it is necessary to treat payment as a subject separate and apart from performance in general.7
Attempted performance by one party, which is prevented from being complete performance by the refusal of the adversary party to accept it, has some of the consequences of performance, on the one side, and some of the consequences of breach on the other. It is accordingly treated separately under the heading of tender.8
5 See chs. LXXV to LXXIX and ch. LXXXV.
6 See ch. LXXXIV.
7 See ch. LXXXI. 8 See ch. LXXXIII.