1 Tufnell v. Constable, 3 Nev. & Per. 47; 7 Ad. & El. 798; Story on Bailments, § 36. See ante, § 587; Fischel v. Scott, 15 C. B. 69; 28 Eng. Law & Eq. 404. But in the case of a substitute soldier, who agreed to serve for a year, and was prevented by the termination of the war, he can recover the full amount to be paid. Leas v. Patterson, 38 Ind. 465 (1872). The fact that performance of a contract is rendered more burdensome and expensive, by a law enacted after it is entered into, does not exonerate a party from its obligations. Baker v. Johnson, 42 N. Y. 126 (1870).
2 See ante, § 588; Smith v. Morris, 2 Bro. Ch. 311. 3 Robinson v. Davison, Law R. 6 Exch. 269.
4 Taylor v. Caldwell, 3 B. & S. 826.
§ 1335. But if the promisor be prevented from performing his contract by the act of the promisee, he will be discharged from liability for non-performance,3 unless such act of the promisee be occasioned by a previous default of the promisor.4 Thus, where an agreement was made between the plaintiff and defendant that A., the plaintiff, should pull down the walls of three houses, and erect on their site a malt-house and other buildings for the defendant for a certain sum, and it appeared that the plaintiff was ready, and offered to do the work, but that the defendant prevented him, it was held that the defendant was bound to pay the money, and could not take advantage of his own wrong.5 So, also, if one party be prevented by the other from completing his contract, he may recover for a part performance, although the contract be entire.6 This rule does not, however, apply to cases where the essential purpose of the contract can be accomplished, and the intention of the parties can be substantially, though not literally executed.1 So, if an act cannot be completed without the concurrence of the party for whom it is to be done, and the party who is to do the act do what he can without such concurrence, and offer to go on if such concurrence be given, he is entitled to recover.2 " But a tender or offer to do a thing cannot amount to a performance in law, unless the tender or offer is actually rejected, or unless it is to be made at any particular time or place, and the party to whom it is to be made does not attend; and a man who would insist on a tender or offer at a particular place, and a non-attendance by the party to whom it was to have been made, must show that he was ready at the place up to the last moment that the tender could properly have been made."3 But where, in a contract for the performance of concurrent acts, one party has utterly disabled himself from the performance of his part of the contract, it is not necessary for the other party to make an offer to fulfil his part in order to entitle him to his action.4 Thus, in a contract of sale, where the payment of the price and the delivery of the property are to be simultaneous, and the seller becomes disabled from delivering the property, it is not necessary that the purchaser should pay or tender the price.5 So, also, in a declaration for a breach of promise of marriage, if it appear that the defendant is already married to another person, the plaintiff need not plead a request and offer to perform the contract on his part.6 And it is held that a covenant by a husband to pay an annuity to his wife on separation during their joint lives does not cease to be binding upon the adultery of and divorce from the wife.7
1 Geipel v. Smith, Law R. 7 Q. B. 404 (1872); The Teutonia, Law R. 3 A. & E. 394; Law R. 4 P. C. 171 (1872).
2 Kerrison v. Cole, 8 East, 231; Jones v. Barkley, 2 Doug. 694; Lancashire v. Killingworth, 1 Ld. Raym. 686; Mill Dam Foundery p. Hovey, 21 Pick. 417; Wilhelm v. Caul, 2 Watts & Serg. 26; Champlin p. Rowley, 18 Wend. 187; Baily p. De Crespigny, Law R. 4 Q. B. 180, 185.
3 Ibid.; Stewart v. Keteltas, 36 N. Y. 388. And it is held that where two persons contract, one to do a particular piece of work, and the other to pay for it, the latter may at any time countermand the completion; and in such case the former cannot go on and complete the work and claim the whole price, but will be entitled only to payment for his part performance, and to be compensated for his loss on the remainder of the contract. Clark v. Marsiglia, 1 Denio, 317; Durkee v. Mott, 8 Barb. 423; Hosmer p. Wilson, 7 Mich. 294; Collyer v. Moulton, 9 R. I. 90 (1868).
4 Bryant v. Beattie, 4 Bing. N. C. 263; Com. Dig. Conditions, L. 4; Holme p. Guppy, 3 M. & W. 389; Borden p. Borden, 5 Mass. 67; Thurnell p. Balbirnie, 2 M. & W. 786. See Roberts v. Bury Commissioners, Law R. 5 C. P. 320 (1870); Wallman p. Society of Concord, 45 N. Y. 485 (1871).
5 Peters v. Opie, 1 Vent. 177. See, also, Collins v. Price, 5 Bing. 132; Ferry p. Williams, 8 Taunt. 70.
6 Wilhelm v. Caul, 2 Watts & Serg. 26; Champlin v. Rowley, 18 Wend. 187.
§ 1336. It is no excuse of performance of a contract to pay for the destruction of a thing by the promisor that it would certainly have been destroyed by other means afterwards, as in the case of liquors destroyed by the authorities of a beleaguered city just before evacuation, when the liquors would have been burned directly afterwards by fires set by the evacuating forces.1
1 White v. Mann, 26 Me. 361.
2 Lancashire v. Killingworth, 1 Ld. Raym. 686; 2 Salk. 623; Savary v. Goe, 3 Wash. C. C. 140; Fleming v. Potter, 7 Watts, 380.
3 White v. Mann, 26 Me. 361.
4 Clark v. Crandall, 3 Barb. 612; Lovelock v. Franklyn, 8 Q. B. 372.
6 Short v. Stone, 8 Q. B. 358.
7 Charlesworth v. Holt, Law R. 9 Ex. 38 (1873).
§ 1337. In the next place, as to rescinding a contract on account of non-performance? In case of the violation of a contract by either party, the other party may ordinarily rescind it totally, if the contract be an entirety, or be incapable of apportionment,3 or he may rescind it partially if the contract be capable of apportionment. Where it is partially rescinded, the party receiving the benefit is only bound to compensate the other party pro tanto. But the party who is guilty of no default or violation of contract is alone entitled to rescind it; and he must exercise that right within a reasonable time.4 So, also, if after default of the other part}- he do any act recognizing the contract, he cannot afterwards rescind it.5 A contract cannot ordinarily be rescinded, unless both parties can be reinstated in their original situation in respect of the contract; and if one party have already received benefit from the contract, he cannot rescind it wholly, but is put to his action for damages, or he may set up the default of the other party to perform his part of the contract as a defence pro tanto.6 Whether his acts in a particular case amount to a re-