§ 1321. The first of these special defences which we propose to consider is Performance of the Contract; and the first question that arises is, By whom the contract is to be performed. The person to be discharged from liability upon a contract by the performance of a certain act is bound to do the act either personally or by his agent.1 Thus, if a party be bound to pay a certain sum of money, a mere readiness to pay is insufficient; 2 it is his duty to make a tender of payment, or actually to pay the money to the party to whom it is due,3 and he cannot plead a discharge by the other party from such tender or payment without showing some new consideration therefor.4 So, also, if the contract be to deliver goods at a specified place, the party who is to deliver them must be at the place appointed, in person or by his agent, and ready to deliver them.5 If no place be appointed, the party whose duty it is to deliver them must offer to deliver them at a reasonable place; and if the offer be not accepted, he must ascertain from the promisee where he will receive them.6 So, also, if special confidence be reposed in the personal skill of the person who undertakes to do any thing, he is bound to do it himself. Thus, if an artist be employed to paint a portrait or to design a ceiling, he cannot intrust the execution of the work to a third party.1

1 Co. Litt. 211 a, 210 b, 220; Bac. Abr. Conditions; Bro. Abr. Conditions, 174; Cheney's Case, 3 Leon. 260.

2 See Haldane v. Johnson, 8 Exch. 689; 20 Eng. Law & Eq. 498.

3 Co. Litt. § 340; Soward v. Palmer, 2 Moore, 276; Cranley v. Hillary, 2 M. & S. 122.

4 Cooper v. Phillips, 1 C, M. & R. 649; Turner v. Hayden, 4 B. & C. 1; 6 Dowl. & R. 5; Ryan,& M. 215.

5 Savary v. Goe, 3 Wash. C. C. 140; Bixby v. Whitney, 5 Greenl. 192; Robinson v. Batchelder, 4 N. H. 40; Savage Manuf. Co. v. Armstrong, 19 Me. 147.

6 White v. Perley, 15 Me. 470; Bean v. Simpson, 16 Me. 49; Howard v. Miner, 20 Me. 325; ante, § 938.

§ 1322. The next question is as to the mode in which a contract is to be performed. The rule is that an agreement must be performed according to its terms as understood and assented to by the parties.2 The assent and understanding of the parties is to be deduced from the terms of the contract, and the accompanying incidental acts by the rules of legal construction; and whether the circumstances constitute a performance is a question for a jury to determine.3 The express stipulations of a contract must, however, be exactly performed, and a substantial compliance is not sufficient where the time or the express manner and details agreed upon are essential and not complied with.4

§ 1323. When, by the terms of the contract, it is in the option of the promisor which of two acts he will perform, - as if he agree either to do a certain act at a certain time, or to pay a sum of money, or deliver a horse, the promisor has the right to elect which he will do.5 For, if an election be given to do two things, he who is the first agent, and who ought to do the first act, is entitled to the election.6 But if the contract be to do one of two things by a certain day, he has the right to elect which he will do until the day is past, and not afterwards.7 So, also, when one alternative is illegal, the promisor is bound to perform the other.8

§ 1324. But when there are reciprocal acts to be performed by the parties at the same time, neither party is bound actually to perform his part of the agreement in order to entitle him to a right of action, but he who is able and ready to perform his contract upon offering to do so has a right of action against him who is not.1 If the act of one party be a condition precedent to that of the other, as if the contract be to pay a sum on request, the plaintiff must specially allege and prove that such act has been performed.2 So, also, where the act of one party must necessarily precede any act of the other, as where one stipulates to manufacture an article from materials to be furnished by the other, and the other stipulates to furnish the materials, the act of furnishing the materials necessarily precedes the act of manufacturing, and will constitute a condition precedent without express words.3

1 Pothier, Louage, No. 121.

2 Dixon v. Fletcher, 3M. &W. 146; ante, ch. 7; 2 Kent, Comm. lect. 39, p. 505 to 510, 4th ed. See Lawrence v. Dole, 11 Vt. 549.

3 Savage Manuf. Co. v. Armstrong, 17 Me. 34.

4 Hill v. School District No. 2 in Millburn, 17 Me. 316; Martin v. Schoenberger, 8 Watts & Serg. 367; Allen v. Cooper, 22 Me. 133. See, also, post, § 1326.

5 Layton v. Pearce, 1 Doug. 16; Penny v. Porter, 2 East, 2; Smith v. Sanborn, 11 Johns. 59; Small v. Quincy, 4 Me. 497; Chippendale v. Thurston, 4 C. &P. 98; Appleton v. Chase, 19 Me. 79.

6 Co. Litt. 145, a.

7 Choice v. Moseley, 1 Bailey, 136; Shearer v. Jewett, 14 Pick. 232.

8 Stevens v. Webb, 7 C. & P. 61.

§ 1325. When there is no agreement as to the time when a contract shall be performed, it must be executed within a reasonable time.4 But on a contract to deliver iron to the plaintiff as required by him, the plaintiff is not bound to demand the iron within a reasonable time after the making of the contract, but only when he requires the iron.6 What constitutes a reasonable time must depend upon the peculiar circumstances of each case, and is a question to be determined by the jury.6 Parol evidence of the situation of the parties and of their conversations is admissible to determine their intention in respect of the time of performance.7 In contracts of sale, however, where there is no stipulation in respect of the time of payment,1 or when notes are given payable in specific articles,2 payment is to be made on demand.8

1 Hammond v. Gilmore, 14 Conn. 479; Brown v. Gammon, 14 Me. 276. See Smith v. Lewis, 26 Conn. 110; Putnam v. Mellen, 34 N. H. 71 (1856); Sumner v. Parker, 36 N. H. 449 (1858).