Plaintiffs' counsel further argue that the judgment should be affirmed, because this contract was personal alone to D. C. Schnader, defendant's father, who died four days after the heater was put in the house; as he does not survive to indicate dissatisfaction, the defendant has no authority to do so. The plaintiffs raised no such question in the court below, so far as can be learned from the charge or the points presented; but as the case goes back for retrial, it is best we should here briefly pass upon it.

It would rather lack equality to hold that the contract liability for the price passed to the executor and devisee, but the right to insist on performance died with the testator; neither reason nor law imposes upon us such a decision. If D. C. Schnader had lived to make such trial of the heater as was intended by the contract, and had expressed no dissatisfaction with it, there would be a conclusive presumption of plaintiffs' complete performance; but as he died almost immediately after it was put in, his executor and devisee has the right to set up the same defense as the testator might have done had he lived. It was not a contract for a suit of clothes, or for a set of artificial teeth, which could be satisfactory to but one person, but for a heater, which was to be satisfactory to the occupant of the house where it was to be put; death and the last will have made this defendant the occupant, and he has the right to insist that the heater shall work satisfactorily to him as he has succeeded not only to the property, but to the personal use of it.

The defendant's first assignment of error to the refusal of the court to instruct as requested in first point: "That under the law the contract of August 24, 1889, is a guaranty or warranty that the apparatus would work to the satisfaction of Davis C. Schnader, deceased, and that, if the evidence is believed that as executor he fairly and reasonably tried and tested the apparatus and was dissatisfied with it, and so notified plaintiffs, there can be no recovery," is sustained. This in effect disposes of all the other assignments.

The judgment is reversed and a venire facias de novo awarded.

8"The cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes; and whether the particular case at any time falls within the one or the other must depend on the special circumstances, and the question must be one of construction.

"In the one class the right of decision is completely reserved to the prom. isor, and without being liable to disclose reasons or account for his course, and a right to inquire into the grounds of his action and overhaul his deter

ENGINEERING CASES: EXCERPTS FROM

DECISIONS.

PERFORMANCE.

It has been held, where an architect was regularly employed to make plans for a building, that evidence could be introduced to show that there was a custom that the employment carried with it an agreement to superintend the construction. Wilson v. Bauman, 80 Ill. 493.

The non-performance of a building contract is not excused by inevitable accident. 25 N. Y. 272.

mination, is absolutely excluded from the promisee and from all tribunals. It is sufficient for the result that he willed it. The law regards the parties as competent to contract in that manner, and if the facts are sufficient to show that they did so, their stipulation is the law of the case. The promisee is excluded from setting up any claim for remuneration, and is likewise debarred from questioning the grounds of decision on the part of the promisor, or the fitness or propriety of the decision itself. The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others. But this is not always so. It sometimes happens that the right is fully reserved where it is the chief ground, if not the only one, that the party is determined to preserve an unqualified option, and is not willing to leave his freedom of choice exposed to any contention or subject to any contingency. He is resolved to permit no right in any one else to judge for him or to pass on the wisdom or unwisdom, the justice or injustice of his action. Such is his will. He will not enter into any bargain except upon the condition of reserving the power to do what others might regard as unreasonable. The following cases sufficiently illustrate the instances of the first class: Gibson v. Cranage, 39 Mich. 49; Taylor v. Brewer, 1. M. & S. 290; McCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass. 136; Zaleski v. Clark, 44 Conn. 218; Rossiter v. Cooper, 23 Vt. 522; Hart v. Hart, 22 Barb. 606; Tyler v. Ames, 6 Lans. 280.

"In the other class the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination on grounds which are just and sensible, and from thence springs a necessary implication that his decision in point of correctness and the adequacy of the grounds of it are open considerations and subject to the judgment of judicial triers. Among the cases applicable to this class are Daggett v. Johnson, 49 Vt. 345, and Hartford Sorghum Mfg. Co. v. Brush, 43 Vt. 528."-Graves, C. J., in Walter A. Wood &c. Co. v. Smith, 50 Mich. 565, 569-571. See also Exhaust Ventilator Co. v. Chicago &c. Ry., 66 Wis. 218; Silsby Mfg. Co. v. Chico, 11 Sawyer, 183; 24 Fed. Rep. 893.

It was held that an architect had substantially complied with his contract to draw plans for a building to cost $10,000, when he furnished plans, etc., for a building to cost $16,000 and a proposal to reduce the cost to the figure desired. Marquis v. Lauretson, 40 N. Y. Rep. 73 (Iowa).

In a contract of employment for an indefinite period, either party may end it at any time. Greenberg v. Early, 23 N. Y. Supp. 1009.

SECTION III.

BY BREACH.

When a contract is formed, an obligation is placed upon each of the contracting parties. If one of the parties breaks his obligation, the other party immediately acquires a right of action. It should first be determined whether there is a contract; if there is none, there can be no question as to its breach or its performance.. The existence of the contract merely settles the fact that the parties are bound and cannot withdraw without committing a breach. Sometimes this breach will discharge the injured party, from performance of his part of the agreement, but not always. The importance of the breach usually determines this fact. Again, the injured party may decide to waive the breach and continue the contract, reserving the right to sue for damages. Discharge by breach means two things: a release from further performance and a right to bring an action.

(a) Status of the Parties.

1. After a breach the injured party may deem himself released from further performance; he may not elect to sue, but if an action is brought against him for non-performance, he may successfully defend it.1

2. He may bring suit for damages resulting from the breach without showing that his own performance has been done or tendered.

3. He may not waive the breach and keep the contract in existence for the purpose of increasing the damages.2

1 Davidson v. Von Lingen, 113 U. S. 40; Lake Shore etc. Ry. v. Richa:ds, 152 Ill. 59.

2 Clark v. Marsiglia, 1 Denio (N. Y.) 317; Dillon v. Anderson, 43 N. Y.

4. If there has been part or complete performance on the part of the injured party, he has a claim to payment for the same, and he may consider this as arising from a new contract due to the acceptance of the executed consideration."

(b) Manner in which a breach occurs.

The parties to an executory contract not only have a right to its performance, but they have a right to the continuance of the contractual relation up to the time of its fulfillment.

1. If one of the parties repudiates the contract before the time of its performance, the other party is discharged if he so elects and may bring suit at once.*

2. The renunciation must be unequivocal and absolute; it must be so understood and acted upon by the injured party; it must terminate the entire contract.5

3. If one of the parties places himself in such a position that it is impossible for him to perform his part, the effect is the same as though he had renounced the agreement."

4. If one of the parties repudiates the contract during the performance of the same, the other party is exonerated from further performance and may bring his action at once."

(c) Conditions in contract.*

"A man may make such lawful promise as he sees fit, and is only bound by the promise he has made. This necessarily follows because a contract is, in its nature, based upon the consent of the parties, and hence one can only be bound in contract by the promise to which he has assented. He may make a promise which is to be performed absolutely and at all events, or he may limit such promise in any way he desires. Perhaps he may not be willing to perform until the promisee has done some specified thing, and in

3 Dermott v. Jones, 2 Wall (U. S.) 1; Hale v. Trout, 35 Cal. 229; Derby v. Johnson, 21 Vt. 17.

Windmuller v. Pope, 107 N. Y. 674; Kurtz v. Frank, 76 Ind. 574; Kadish v. Young, 80 111. 170; Hochster v. Delatour, 2 E. & B. 678; Contra: Daniels v. Newton, 114 Mass. 530.

5 Dingley v. Oler, 117 U. S. 490; Roebling's Sons Co. v. Lock Switch Fence Co., 130 Ill. 660; Davis v. Bronson, 2 N. Dak. 300.

6 United States v. Peck, 102 U. S. 64; Wolf v. Marsh, 54 Cal. 228.

7 United States v. Behan, 110 U. S. 338; Lake Shore etc. Ry. v. Richards, 152 Ill. 59; Derby v. Johnson, 21 Vt. 17; Hale v. Trout, 35 Cal. 229. Ashley, "Summary of Contracts," Appendix B.

*

that case he can make the performance of his own promise depend upon that specified thing being done first. In that event the obligation to perform his promise does not arise until the specified precedent act is performed by the promisee. These limitations are known as conditions.

Note. A condition in contract is a qualification, restriction or limitation inserted by the promisor, modifying or destroying the original act with which it is connected. It may assume the form of a statement or of a promise.

"These true conditions are based upon the intent of the parties as found in the contract. It is not necessary that they be stated in the language of conditions, as the intent must be gathered from the entire contract. They may well be called express conditions, and have been described by Professor Langdell as follows:

"An express condition, as its name imports, is one of which the evidence must be found in the language of the parties when read in the light of surrounding circumstances.'

"Some contracts are modified by facts or events not mentioned therein. These modifying facts are true conditions and are based on the intent of the parties, although not found in the language of the contract. These have been called conditions implied in fact. "Shaw, J., in Cadwell v. Blake, 6 Gray 402, describes them as follows:

'When, in the order of events, the act to be done by the one party must necessarily be done before the other can be done, it is necessarily a condition precedent, although there be a stipulation for liquidated damages for the breach on each side, and although there be a fixed future time for payment sufficiently distant to have the work done in the meantime. Suppose B agrees to build, at his own shop, a carriage for A, of A's materials; A stipulates seasonably to furnish materials, and to pay B in four months; and each, upon failure, stipulates to pay a sum as liquidated damages. The furnishing or tendering the materials by A is a condition precedent. Without it B cannot perform. He must build it of A's materials. Even building it of his own would not be performance. B has his shop, his workmen and his tools all ready, but A does not furnish the materials. If B sues A, averring readiness to perform, he may recover. But if A sues B for not building the carriage, it would be a good answer that A himself had not furnished the materials, because, whatever else the contract may contain, this is in its nature a condition precedent.

"There is another class of cases where the performance of the promisor depends upon the continuation of life, health or the