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 636.

CHAPTER V.

BREACH OF CONTRACT.
PAGE
Breach of contract--remedies- acts equivalent to breach ...... 635
Breach by promiser disabling himself from performance........ 636
Breach by renunciation of contract-renunciation not accepted-
may be withdrawn-effect of renunciation in waiving con-
ditions precedent ........................................ 637
Effect of bankruptcy or insolvency of prominer ............... 640
Discharge of right of action for breach ...................... 640

A BREACH or default in performance discharges a contract in the Breach of

contract.
sense that it converts it into a right of action for damages or
pecuniary compensation; and any subsequent performance of the
terms affords no defence to such action, but operates only by way
of reparation and in mitigation of the damages (a).-At common Remedies.
law the right of action for damages was the only remedy. But the
Court of Chancery exercised the jurisdiction of compelling specific
performance of the contract upon equitable terms, in those cases
wvhich admitted of such remedy, and where the contract could
still be substantially performed notwithstanding the breach. The
courts now constituted under the Judicature Acts administer either
remedy which is appropriate to the case, and to which the party
may appear entitled. But actions for specific performance are
assigned primarily to the Chancery Division of the High Court;
and an action in which specific performance is advanced by way
of counterclaim may be transferred to that division(b).-
The performance of contracts has been treated in a former Acts
chapter; and any default in performance as there explained con- toqivalnt
breach.
stitutes a direct breach (c). It remains here to notice some cases
which are regarded in law as equivalent to a breach of contract,
and have a like effect in giving a right of action:-namely, where,
before the time appointed for performance, the promiser disables
himself from performance; and where, before the time for per-
formance, he absolutely renounces the intention to perform.

(a) Callandery. Hawkins (1877), 2 0. P. London Land Co. v. Harris (1884), 53

D. 592. See Batin v. Bidwell (1881), L. J. Q. B. 536; 13 Q. B. D. 540.
18 Ch. D. 238. (c) See ante, p. 601.
(b) Judicature Act, . 1873, s. 34 :
636 DISCHARGE OF CONTRACTS.

PART IV. An act of the promiser which disables him from performance
Breach by may be equivalent to a breach in giving an immediate cause of
promiser action. Where performance is due at a certain future time, dis-
disabling
himself from ability is in general no breach until the time has arrived; but
performane. where performance is due upon a contingency which may happen
at any time, and which therefore requires a continuing ability and
readiness, the promiser by disabling himself becomes presently
liable to an action for breach of contract. As if a person contracts
to sell or lease land to another upon a request made, or upon a
payment of money, or other discretionary condition, he must con-
tinue ready to do so; and if he disables himself by conveying or
demising the land to a third party, he thereby dispenses with
request or tender or any other condition precedent, and becomes
liable to an immediate action for breach (d). So upon a sale of
specific goods to be delivered upon request, if the seller sells and
delivers them to a third party, he is at once liable to an action for
breach of contract without request, because he has disabled himself
from delivering them (e).-Upon this principle a promise of
marriage is broken immediately by marriage with another party;
all conditions precedent under the contract, as a request, or the
lapse of an appointed or a reasonable time, are thereby dispensed
with; and it is immaterial that the marriage becomes dissolved by
death or otherwise before such conditions are satisfied (f).-A
contract of employment in a business for a certain term at a fixed
salary is broken by the employer abandoning or selling the busi-
ness; and the salary for the whole term may be claimed imme-
diately; but no claim can be made for prospective commission or
profits on business which the employer might carry on or not as
he pleased (g). But where the servant is to be remunerated by
a commission on orders or sales, it is an implied term that, during
the period fixed for the duration of the employment, the master
will do everything on his part to enable the servant to earn his
commission, and may include the carrying on of business (h). So

(d) Ford v. Tiley (1827), 5 L. J. 0. S. 685: L. R. 5 Ch. 737; Rhodesv. Forwood

K. B. 169 ; 6 B. & C. 325; Lovelock v. (1876), 47 L. J. Ex. 396; 1 Ap. Ca.
Franklyn (1846), 15 L. J. Q. B. 146; 256. See Hamlyn v. Wood (1891), 60
8 Q. B. 371. L.J.Q.B. 734; (1891) 2 Q. B. 488;
(e) Bowdell v. Parsons (1808), 10 East, Devoald v. Rosser (1906),75 L. J. K. B.
359. 688; (1906) 2 K. B. 728.
(f) Short v. Stone (1846), 15 L. J. (h) Re Patent Floor Cloth Co. (1872),
Q. B. 143; 8 Q. B. 358; Caines v. Smith 41 L. J. 0. 476; Turner v. Goldsmith
(1 46), 15 L. J. Ex. 106; 15 M. & W. (1891), 60 L. J. Q. B. 247; (1891) 1
189. Q. B. 544.
((.) Maclure's case (1870), 39 L. J. C.
 BREACH OF CONTRACT. 637

an offer to divide a bonus amongst customers may entitle a customer CHAP. V.

who has complied with the conditions on which the offer is based
to damages if the business is transferred (i). The compulsory
winding-up of a company operates as a dismissal of the manager
and other agents of the company, and entitles them to prove for
compensation as for a breach of contract, but a voluntary winding-
up has not this effect (k). And the same result follows from the
transfer of the business to another company (1); and from the
appointment of a manager and receiver who takes over the business
for creditors (m). The winding-up of an insurance company
operates as an immediate breach of the contract with a policy-
holder; it exonerates him from further payment of premiums and
entitles him to an immediate claim for damages, the measure of
which is the sum required to procure a similar policy of the same
amount (n).

If before the time appointed for performing the contract one Breach by
renunciation
party gives notice to the other of his intention not to perform it, of contract.
he may be charged in an immediate action as for a breach; in
which action the other party may claim prospectively such
damages as would be caused by a breach at the appointed time
subject to any circumstances which may operate in mitigation of
the damages (o). The notice for this purpose must express an
absolute and unequivocal intention of renouncing and repudiating
the contract (p). A mistaken construction of the contract or an
imperfect tender which may be amended in time, or an expression
of present disability to perform it, is not sufficient (q). And a
party has no right before performance is due to demand and have
a distinct notice whether the other party intends to perform the
contract or not (r); and upon a similar principle where a charter-

(i) Oqdens Ld. v. Nelson (1905), 74 v. Knight (1872), 41 L. J. Ex. 79; L. R.

L. J. K. B. 433; (1905) A. C. 109.
(k) McDowall's case (1886), 55 L. J.
C. 620; 32 Oh. D. 366; Midland Cos.
Bk. v. Attwood (1904), 74 L. J. C. 286;
(1905) 1 Ch. 357.
(1) Stirling v. Maitland (1864), 34 L. J.
Q. B. 1; 5 B. &S. 840.
(n) Reid v. Explosives Co. (1887), 56
L. J. Q. B. 388; 19 Q. B. D. 264.
Holdich's case (1873), 42 L. J. C.
L. R. 14 Eq. 72.
(o) Hochster v. De la Tour (1853), 22
L. Q. B. 455;2.&B.678;Frost
J.
7 Ex. Ill.
(p) Jones v. Gibbons (1853), 22 L. .
Ex 317; 8 Ex 920; Hersey Steel Co. v.
Naylor (1884), 53 L. J. Q. B. 497; 9
Ap. Ca. 434; Cornwall v. Henson (1900),
(q
L C.e 581. (1 o 884),
53 L. J. Q. B.497; 9 Ap. Ca. 434;
Borrowman v. Free (1878). 48 L. J. Q. B.
65; 4 Q. B. D. 500; JThnstonev. Ailliny
(1885), 55 L. J. Q. B. 167; 16 Q. B. D.
(r) Ripley v. McClure (1849), 18 L. J.
Ex.419;4Ex.34.
638 DISCHARGE OF CONTRACTS.

PART IV. party gave the charterer an option to cancel the contract if the
ship were not an "arrived ship " at a named port by a named date,
the shipowner cannot call upon the charterer to exercise his option
although the day fixed for arrival be passed (s). The renuncia-
tion does not operate as a rescission of the contract, because one
party to a contract cannot alone rescind; but the other party
may adopt such renunciation with the effect that the contract is
at an end, except for the purpose of bringing an action for the
damages consequent upon the renunciation (t).-Where a person
engaged a courier from an appointed future day for three months
certain at a monthly salary, and before the appointed day wrote
to decline his services, it was held that an action would lie as for
a breach of the contract without waiting for the time appointed
to commence the employment (u). So with a contract for the
sale and delivery of goods at a future time, or in instalments at
future times, a notice by the seller to the buyer of his intention
not to deliver may be accepted and acted upon as an immediate
breach; and the buyer is primd facie entitled to damages measured
by the difference between the contract price and the market price
at the appointed time or times of delivery, leaving it to the seller
to show in mitigation that he could in the interval have obtained
a new contract upon better terms; or if the time for delivery has
not elapsed when the damages are assessed, the future damages
must be estimated prospectively (x). Where a shipowner repu-
diated a contract for the carriage of goods to be shipped on A
certain date, as having been made by an agent without authority,
it was held that the owner of the goods was entitled to accept such
repudiation as a breach of the contract and to maintain an action
for damages; though the shipowner when the time arrived, and
before any new arrangement had been made, offered to take the
goods and perform the contract (y). Upon the same principle
where a man promised to marry a woman upon the death of his
father, and afterwards, whilst his father was living, announced to
her his intention of not fulfilling his promise; it was held that she

. (s) Moe Trivan Ship Co. v. Andrew (u) Hochster v. De Za Tour (1853), 22
Weir Co. (910), 79 L. J. K. B. 898; L. J. Q. B. 455; 2 E. & B. 678.
(1910) 2 K. B. 844. (x) Brown v. Muller (1872), 41 L. J.
(t) .Johnstonev. Milling (1885), 55 L. J. Ex. 214; L. R. 7 Ex. 319; Roper v.
Q. B. 167; 19 Q. B. D. 460 ; Gen. Bill- .Johnson (1872), 42 L. J. C. P. 65; L. R.
Po.ting Co. v. Atkinson (1908), 78 L J. 8 C. P. 167.
C. 77; (1909) A. C. 118. See Measures (y) Danube By. v. Xenos (1862), 31
Bros. v. Measures (1910), 59 L. J. C. 707; L. J. C. P. 284; 13 C. B. N. S. 825.
(1910) 2 Ch. 248.
 BREACH OF CONTRACT. 639

was entitled immediately to treat the announcement as a breach of CHAP. V.

contract, without waiting for the death of the father (z).
Renunciation of the contract will operate as a present breach Renunciation
only if accepted and acted upon as such by the other party; who not accepted.
may, if he pleases, disregard it and insist upon performance
according to the terms. " The promisee may treat the notice of
intention as inoperative and 'await the time when the contract is
to be executed, and then hold the other party responsible for all
the consequences of non-performance. But in that case he keeps
the contract alive for the benefit of the other party as well as his
own; he remains subject to all his own obligations and liabilities
under it, and enables the other party not only to complete the con-
tract, if so advised, notwithstanding his previous repudiation of
it, but also to take advantage of any supervening circumstance
which would justify him in declining to complete it " (a). If
the seller of goods for delivery at a future day gives notice of his
intention not to deliver, or if the buyer gives notice of his inten-
tion not to accept, in either case the other party may abide by the
contract and await the appointed day; and if the contract be not
then performed, he may claim full compensation according to the
market price at that day (b). And where the charterer of a ship
gave notice to the shipowner that he should be unable to provide a
cargo, and requested him to leave the port; but the shipowner
insisted upon having a cargo in fulfilment of the charter-party;
and whilst the days allowed for loading were still unexpired, a
declaration of war put an end to the charter-party; it was held
that the charterer was thereby discharged (c).
Renunciation of the contract, if not accepted by the other party Renunciation
as a present breach, may be withdrawn at any time before the per- withdrawn.
formance is due; but if not in fact withdrawn it is evidence of
continued intention to the same effect (d).-Therefore it operates Effect in
as a continuing waiver and discharge of all conditions precedent conditions
waiving
to the liability for the performance; such as a demand of perform- precedent.
ance, the lapse of a reasonable time or an appointed time, the
tender of money or goods, or the like (e). Where a contract was
(z) Frost v. Knight (1872), 41 L. J. Hart 4 Co. (1902), 71 L. J. K. B. 265;
Ex. 78; L. R. 7 Ex. 111. (1902) 1 K. B. 482.
(a) Per cur. Frost v. Knight (1872), 41 (c) Avern v. Bowden (1856), 26 L. J.
L. J. Ex. 79: L. R. 7 Ex. 112; Johnstone Q. B. 3; 6E. & B. 953.
v. Milling (1885), 55 L. J. Q. B. 167; (d) Ripley v. AfClure (1849), 18 L. J.
16 Q. B. D. 460. Ex. 419: 4 Ex. 345.
(b) Leigh v. Paterson (1818), 8 Taunt. (e) Ripley v. M'Clure (1849), 18 L. J.
540; Phillpotts v. Evans (1839), 9 L. J. E:. 419; 4 Ex. 345.
Ex. 33; 5 & W. 475; v. 6E.
EiehaBl
640 DISCHARGE OF CONTRACTS.

P-T IV. made for the manufacture and supply of goods to be delivered in
certain quantities monthly, and the buyer after accepting a portion
of the goods gave notice to the seller that he had no occasion for
more and would not accept or pay for them; it was held that the
seller might claim for a breach of the contract without manufac-
turing or tendering the rest of the goods (f).
Bankruptcy Bankruptcy or insolvency is not alone such an incapacity to per-
or insolvency
of promiser. form a contract as to entitle the other party at once to treat it as
broken and to claim damages; as it may be for the benefit of the
bankrupt or insolvent or of his estate to complete the contract, and
the representatives of his estate may be authorised to do so (g).
Thus, where a banking company, after giving a letter of credid
undertaking to accept bills to be drawn against bills of lading,
stopped payment before it was used; it was held that there was
no breach for which the holder of the letter could prove damages
in the winding-up; because there had been no refusal to accept
bills, and the liquidator might be authorised to carry out the con-
tract and accept them (h). Nor does bankruptcy or insolvency
alone entitle the other party to rescind the contract; but a notifi-
cation by a party of his insolvency may be taken as presumptively
importing an offer to rescind, which the other party may accept;
and it would, at least, justify a refusal on his part to complete the
contract, unless the insolvent or his representatives should prove
their ability and readiness to complete on their part (i).
Discharge of The claim or right of action arising from a breach of contract,
right of
action for in common with rights of action arising from wrongs of other
breach. kinds, may be discharged by proceeding to judgment in the
ordinary course of legal procedure, thus merging the original cause
of action; and the judgment may be satisfied and discharged by
execution. The law of Practice and Procedure, regulating the
course of proceedings in actions, is not within the scope f the
present work. But besides the ordinary course of legal procedure,
there are some other modes of discharging rights of action, which,
so far as they apply especially to those arising from contract, may
be considered to require notice here; and they are therefore treated
in the following chapters.
(f) Cort v. Ambergate By. (1851), 20 37; L. R. 8 Ch. 294; Morgan v. Bain
L. J. Q. B. 460; 17 Q. B. 127. (1874), 44 L. J. C. P. 47; L. R. 10
(g) Ex p. Stapleton (1878), 10 Oh. D. C. P. 15; Re Phenix Bessemer Steel
586. See post, Pt. VI., Chap. VI. (1876), 46 L. J. C. 115: 4 Ch. D. 108.
(h) Ex p. Tondeur (1868), 37 L. J. C. See Sale of Goods Act, 1893, as. 18. r. 1,
121; L. R. 5 Eq. 160. 42; and see post, Pt. VI., Chap. VI.
(i) Er p. Chalmers (1872), 42 L. J. Bk.
 BREACH. 6400a

CANADIAN NOTES.

Breach.
In Auchterlonie et al. vs. Arms, 25 U. C. C. P., 403, an action
was brought on a judgment recovered in Scotland for breach of
defendant's agreement to deliver sewing machines to plaintiff.
Defendant pleaded that plaintiffs were to be defendant's sole
agent for the sale of his sewing machines in Great Britain, and
to be paid for all machines sent to the plaintiff after plaintiff
had sold and received payment for the same; that defendant was
to furnish a specified number of machines per month and plain-
tiffs were to furnish a monthly statement to defendant of the
machines sold by them and remit the price of the machines so
sold and paid for at a certain rate which the defendant guaran-
teed; and the defendant averred that he delivered the machines
in accordance with the agreement and in all things performed it
until the plaintiffs neglected and refused to furnish such state-
ment and remit the money received by them as aforesaid, and
that defendant's refusal to send any further machines was
solely by reason of plaintiff's said breach of agreement. The
plea was held bad as not showing either that the performance of
plaintiff's covenant was a condition precedent to performance
by the defendant or shewing any fact from which it might be
inferred that the plaintiff's breach entitled the defendant to con-
sider the contract as abandoned and to rescind it; and that the
defendant's remedy was by cross-action.

Breach Before Time for Performance.

In Sanders vs. Baby, 5 U. C. C. P., 441, the defendant agreed
to sell to the plaintiff the net profits for two years of certain
shares in a mining company. Shortly after, the company sold
and assigned to another company certain tracts of land in the
conveyance described, and all tools, engines and so on for a large
sum, to which sale the defendant assented. It was held that the
defendant, having disposed of his stock, which represented his
interest in the mine, before the time at which he was to sell the
profits to the plaintiff, had placed it out of his power to fulfil
his agreement, and plaintiff was immediately entitled to sue for
the breach.
In Dullea vs. Taylor, 34 U. C. Q. B., 12, the declaration was
that the plaintiff agreed to sell and defendant to buy certain
1-640
640b CANADIAN NOTES.

lands in Oshawa adjoining the lands of the plaintiff for $325,

the money to be paid and the conveyances executed on demand;
that defendant should in eighteen months put up a factory there-
on of specified dimensions, and that, in case he should not do
this, he would at the expiration of eighteen months reconvey the
land and receive back back the purchase money. The plaintiff
was ready to convey, but defendant did not pay the plaintiff or
complete the purchase, but notified the plaintiff that he aban-
doned and would not perform the agreement. There was a plea
upon equitable grounds that the defendant made the agreement
on behalf of himself and others who were about to associate
themselves as a company to manufacture plated ware on the
said lot, and with the intention of securing said land as a site
for their factory in case the company should decide to erect it
thereon; that the plaintiff knew this when he made the agree-
ment, and, before any demand by the plaintiff for payment and
before any conveyance of the said land, the defendant and
others decided not to carry on the business, and gave notice to
the plaintiff thereof, and that they would not require said lands,
and that the plaintiff was released and defendant did not other-
wise abandon the .said agreement. It was held that the declara-
tion was good and that the plea was no answer to it, following
the case of Hochster vs. La Tour, 2 E. and B., 678.

Breach, Where Committed.

In Offord vs. Bresse, 16 Ont. P. R., 332, the defendant, resident

in the Province of Quebec, there wrote and posted to the plaintiff
in Ontario a letter putting an end to a contract of hiring entered
into in Quebec between the parties. It was held in an action for
wrongful dismissal that the breach of the contract was made-in
Quebec and not where the letter was received.
In Bell vs. Villeneuve, 16 Ont. P. R., 413, it was questioned
whether, where a contract of hiring was ended by a letter sent
from another province, this indicated that the breach comr
plained of was out of the province.

Pleadings.

In Leonard vs. Northy, 22 U. C. C. P., 11, the declaration was

on a contract by testator to build a marine boiler and steam
engine for plaintiff, alleging partial completion by the testator
 BREACH. 640c

before his death and a promise by the defendants, his executors,

to complete it for the balance due, but that they did not com-
plete it in time, and delivered it unfinished and not according to
the specifications. The defendants pleaded, among other pleas,
that the testator and the defendants, since his death, made all
the variations from the plans and contracts in the declaration
mentioned by the leave and license of the plaintiff or his agents.
This was held bad, because, among other reasons, leave and
license could not be pleaded to a breach of contract, but a plea,
as to so much of the declaration as referred to alleged imperfec-
tions of material and workmanship, that, after .the occurrence
thereof and before suit, the boiler and engine were taken by the
plaintiff from the defendants as executors whereby and by force
of the contract set out in the declaration the defendants ceased
to be liable in damages in respect to the cause of the action to
which the plea was pleaded was held good.

In Abel vs. Leonard, 12 U. C. R., 192, the action was on a con-

tract to make and furnish a steam engine and boiler, the breach
being that the boiler furnished was not made of good and suffi-
cient materials, and was not reasonably fit and proper for the
said engine. The plea that the said boiler was made of good and
sufficient materials was held bad, as not answering the whole
breach.

In MacNamara vs. Skain, 23 0. R., 103, under a building con-

tract in writing, the contractor agreed that, subject to any
extension of time by the architect, the building should be fin-
ished by a named day, with liquidated damages in default. It
was also provided that all extras, etc., should form part of the
contract if authorized by the architect, who was first to fix the
price and grant such extension of time therefor as he thought
necessary, and power was also given him to extend the time for
completion in case of a strike. The building was not completed
for over four months after the time fixed, and this action for
the balance of the contract price was commenced within thp
time the final payment was made payable under the contract.
Although some extras were done and there was evidence as to
delay by strike, the architect was not asked for and he did -not
grant any extension of time. It was held that the contract must
govern, and that the defendants were entitled to recover by way
640d CANADIAN NOTES.

of counter-claim the sum provided for by the contract as liqui-

dated damages.

Breach Not Discharging Promisor.

In Campbell vs. McLeod, 24 N. S. R., 66, the defendant agreed
to furnish all the stone required to ballast a pier, to be paid $400
in instalments of $100 as the work progressed. It was held that
the failure to pay the first instalment did not discharge the
defendant from his obligation to perform the rest of the work.

In Mattinson vs. Hewson, 43 N. S., 339, plaintiffs sued before

justices of the peace for work done and materials supplied in
connection with the building of an addition to a cottage owned
by defendant, and the defendant relied upon certain defects in
the workmanship. It was held that the implied contract that
the work should be done in a workmanlike manner was not one
going to the essence of the contract, but that the defendant was
entitled to an abatement of the price on account of the defects
shewn to exist. Per Graham, E. J., citing the remarks of
Tindal, C. J.: "If it were a condition precedent to the plain-
tiff's remuneration (that the work should be done in a workman-
like manner) a little deficiency of any sort would deprive the
plaintiff of all claim for payment, but under such circumstances
a jury may say what the plaintiff really deserves to have."

In Brown vs. Nelson, 7 0. R., 90, the plaintiff agreed to pur-

chase from the defendant 76 shares of the stock of the Globe
Printing Company, and gave the defendant his note, payable in
two years, for the price of the shares. At the defendant's request
he then pledged these shares and forty-four other shares of his
own to a bank, which discounted the note for the defendant. It
was found by the jury that it was a condition of the purchase
that the defendant, who had a large interest in the company,
should keep the plaintiff in the position which he occupied as
managing director of the company at a fixed salary. The
defendant, at the maturity of the note, retired it, and took an
assignment to himself of 120 shares. The plaintiff having been
afterwards dismissed from his position, brought an action for
the return of the 44 shares, on the ground that the purpose for
which they had been pledged had been fulfilled, and for a return
of the note, and to be relieved from the purchase of the 76
 BREACH. 640 e

shares, on the ground that the condition of the purchase, namely,

, his being retained in office, had not been fulfilled, but had been
broken by the defendant's procuring his dismissal. It was held
that, as there had been a partial performance of the defendant's
agreement by retaining the plaintiff in office for the period
within which the 76 shares were to have been paid for, there
could be no rescission of the whole contract, but that the plain-
tiff was entitled to a return of the 44 shares, and the defendant
to judgment.foi the price of the 76 shares, and that the plain-
tiff's remedy, if any, for wrongful dismissal ,was by independent
action. It was held, also, that the defendant having performed
his portion of the agreement, the Statute of Frauds, as regards
agreements not to be performed within a year, was not appli-
cable to the undertaking to keep the plaintiff-in office.

In McLellan vs. Winston, 12 0. R., 431, it was held that, in

order to recover in an action for non-performance of a contract
to do work, the plaintiff must show a willingness and readiness
on his part to perform and on the defendant's part a distinct
and unequivocal and absolute refusal, and that such refusal was
treated and acted upon by the plaintiff, for if after refusal he
continued to urge or demand compliance with the contract he
must be deemed as considering it as not at an end. In the case
cited the plaintiffs set up a contract made with defendant to cut
and lay down on the defendant's limits a quantity of ties, that
he was to ship his outfit to Port Arthur, where he was to receive
instructions from defendants as to the means and the way of
forwarding the same to the place where the work was to be per-
formed. The plaintiff sent his outfit to Port Arthur and claimed
that defendant neglected and refused to give such instructions
and refused to carry out the contract, but the evidence was held
to disclose that the plaintiff himself was not ready and willing
to perform the contract, and, further, if a refusal to perform by
defendant was proved, that it was not treated and acted upon
by plaintiff as such, but thereafter he continued to treat the
contract as still subsisting. It was held, therefore, that the
action failed.

In Cowan vs. Fisher, 31 0. R., 426, an agreement for the sale

of a machine provided that the inventor should personally
inspect the placing and setting of it in operation. The machine
2-640
640f CANADIAN NOTES.

was delivered, but the inventor refusing to go, the vendor sent
another competent person to set it up. It was held that the
vendors were nevertheless entitled to recover the price, on the
principle that the stipulation alleged did not go to the whole
root and consideration of the contract, and, therefore, was not
to be considerd as a condition precedent, but as a distinct
covenant, the breach of which could be satisfied by damages.