§ 1. Position op pabties whebe a Contbact

IS DISGHABQED BY BbEACH.

In a contract between A and X, a breach by X might be Exonera-

considered to be a discharge of the contract if Ay in bringing perform™

action upon it, was not required to allege that he had per- *'^*^®-

formed or endeavoured to perform that which was still due

from him under the contract ; or if X could not successfully

use such non-performance by A either as a cause of action

or a ground of defence.

Further, where X made default after A had done all or Right to

a part of that which he promised, the contract was discharged ^{^gfnatus

by such default if A could sue for the value of that which assumpsit.

he had done in indebitatus assumpsity or upon a new and

distinct contract arising upon the acceptance of money, goods,

or services offered by the plaintiff and accepted by the

defendant.

This needs a short explanation.

Before the Judicature Acts came into operation, where an

action was brought upon a contract arising on considera-

tion executed, that is a promise, acted or uttered, to pay

for money, goods, or services offered and accepted, the

plaintiff might state his case in certain short forms known

as the indebitatus counts. These, which were an adaptation the^!L^t-

of the action of Assumpsit to the subject-matter of the ^^^^^

counts.

268

DISCHARGE OF CONTRACT.

PartV.

See App. A.

P- 323-

When ap-

plicable to

special

contract.

Ante, p. 83.

Per Cur.,

Beverley v.

Lincoln Gas

Ught & Coke

Ca, 6 A. & E.

837.

action of Debt, did no more than state a money claim existing

for money due, goods supplied, or services rendered.

In certain cases these counts were applicable to a clai^I

arising out of a special contract, that is a contract arising

upon express promises made on either side, but they were

so applicable only where the contract was dischctrged hy

breofh.

If A had performed all that he had promised in a contract

made with X, and there remained only a money payment

due from X resulting in a present liability in which X made

default by non-payment, A might Bue X in the /orm of an

indebitatus count. This means that A might sue upon a

new and distinct contract, arising upon the offer and accept-

ance of that which he had performed. The performance of

the original contract was so fieir complete that nothing re-

mained to be done but a payment to be made by JT to ii :

the payment was presently due ; default discharged the con-

tract, and A might sue, not on the special contract as having

been made and broken, but upon a contract arising from

conduct, from the offer of an act, its acceptance, and a

consequent implied promise to pay its worth, such as we

described in speaking of executed consideration.

* The principle as to the proper form of declaring where

the original contract has been executory, but the period of

credit has expired, or condition has been performed, is, not

that the law alters the mode of declaring on the original

contract and states it not according to the fact, but that it

conclusively infers that simple contract to pay the price for

goods sold and delivered which wovld a/rise upon thefatts of

a sale and delivery without a/ny special circtmistances accom-

panying them. He who seeks to disturb that inference must

not content himself with merely showing conditions, or other

special provisions forming part of the contract at the time of

its being entered into : he micst show them in existence and

operation a^ the time of action brought : if not, they must be

Chap. III. § I. BY BREACH. 269

struck out of consideration and the contract treated as

originally simple, unconditional, and executed.'

A similar practice prevailed where, A ' having done a A qruant^m

part, though not all that he was bound to do under the

contract, X committed a breach which amounted to a dis-

charge. If that which A had done could be represented in

a claim for money payment, A was entitled to sue, not only

on the special contract, but in indebitatfM assumpaitf for a

quardum meruit or the value of so much as he had done.

' If a man agrees to deliver me one hundred quarters of

com, and after I have received ten quarters, / decline taking \ll^^* ^ J-

any more, he is at all events entitled to recover against me ^ ^"*^' "^

the value of the ten that I have received.*

But the right to sue in this form on a quantum meruit When it

is frequently and emphatically stated to depend on the fact ^^ upon.

that the contract has been discharged. On the other hand, it «"!>« v.

° ' Heightman,

is laid down * as an invariably true proposition, that where- ' ^*^'' '^^

ever one of the parties to a special contract not under seal

has in an unqualified manner refused to perform his side

of the contract, or has disabled himself from performing

it by his own act, the other party has thereupon a right

to elect to rescind it, and may, on doing so, im/mediatdy sue

on a quantwm meruit, for anything which he had done under

it previously to the rescission.' a sm. l. c. ai.

It is possible that A may have done nothing under the

contract which can be estimated at a money value, or that

the default made by X is not such as can be stated in the

form of a money claim. Then if the breach amount to a

discharge, A is exonerated from such performance as may

still be due from him, and is entitled to sue at once upon the

special contract for such damages as he has sustained.

Though the rules of the Judicature Act make it doubtful order xix.

rule 4.

whether under the new system of pleading the short forms of

declaration known as the indebitatus counts are any longer

270

DISCHARaE OP CONTRACT.

PartV.

See p. 334. admissible, yet the relations of the parties are not thereby

substantially altered.

Rights of

party dis-

charged.

Behn v.

Bumess,

3 B. & S. 756.

Cort V. Am-

berfjfate Rail'

way Co.,

17 Q. B. 137.

Planch^ V.

Colbum,

8 Biag. 14.

Thus where a contract between A and X is discharged by

the default of X, A may —

(a) Consider himself exonerated from any further perform-

ance which may have been due on his part ; and successfully

defend an action brought for non-performance :

(0) Sue at once upon the contract for such damages as

he has sustained by its breach, without being obliged to show

that such performance has been done or tendered by him. f

(y) Lastly, if he has done all or a portion of that which he

promised, so as to have a claim to a money payment for such

performance, he may deal with such a claim as due upon a

different contract arising upon a promise understood from the

acceptance of an executed consideration.