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expenses of his sickness, it was held that a subsequent promise by the father to reimburse them could not be enforced. It is now established law that the past performance of services constitutes no consideration even for an express promise, unless they were performed under the express or implied request of the defendant, or unless they were done in performance of some duty resting on him.

§ 458. Failure and want of consideration.-A contract may be based on a consideration apparently good, but which fails altogether, in which event the contract will not be enforced. Thus, where a promissory note is . given for a horse warranted to be sound, which turns out to have been diseased and worthless at the time, the maker of the note is absolved from his liability to pay it, unless it is a negotiable note in the hands of one who purchased it in good faith before it was due. Even where money is paid on a contract supposed to be valid, if the consideration fails the money may be recovered back. If there is no warranty of the things sold, or if the defects complained of were apparent, failure of consideration can not be pleaded. Ordinarily, in a sale of personal property the seller warrants the title, but if at the sale it is clearly stated or understood that the seller is simply disposing of his interest in the thing sold, and the title fails, it is no failure of consideration, for the buyer gets all he bargained for. The subsequent depreciation in value of the thing sold, as when by new inventions a patent is made worthless, is not in law a failure of consideration.

If a contract is based upon a consideration in part legal and in part illegal, it will be enforced as to the legal part if it can be separated, but if no separation can be made, the whole contract fails for want of consideration.

A party to a contract, having full knowledge of the facts, may waive his right to plead a want or failure of consideration, as he may waive his right to plead the statute of limitations, his discharge in bankruptcy, his infancy or the like.

§ 459. Discharge of contracts.-Contracts may be discharged either by agreement, performance, breach or by impossibility of performance. Where two parties enter into an agreement they may subsequently enter into another agreement rescinding the first, which would be an example of a discharge by agreement. Discharge by performance takes place where a party performs his undertaking in accordance with the terms of the agreement and is thereby discharged from all liability. Where a party to a contract is guilty of a substantial breach of its terms or declares that he will not perform, the other party is discharged from further performance. If the breach only concerns a mere detail, such as the failure to paint the cellar door in the erection of a house, the other party is not discharged but must perform his part of the agreement, although he will be allowed damages for the unimportant breach. A contract is discharged by impossibility of performance where the impossibility exists at the time of the making of the contract, or where the impossibility is subsequent to the making of the contract if it consists in the destruction of the subjectmatter of the contract, or in the death or disability of one of the parties if the contract involves personal service, or where the impossibility is due to a rule of law. A contract to sell a certain horse is discharged if the horse dies before time for the execution of the sale, or if it was dead, unknown to the parties, at the time of the sale. A contract to sing at a theater is discharged by the singer's inability to sing through sickness. A con

tract to build a frame building is discharged if a subsequent ordinance makes such buildings in that location unlawful.

§ 460. Remedies for breach of contract.—Where one of the parties refuses to perform or otherwise commits a breach of contract, the other party is generally discharged from further performance and he has an action for damages in which he can recover what he has lost through the other party's breach. He may, however, choose to abandon the contract and sue the other party for a reasonable compensation for whatever services he has already performed. In certain cases coming under the jurisdiction of equity the injured party may secure specific performance. Thus if A has contracted to convey to B a certain lot and then refuses to convey, B can go into equity and get a decree of specific performance compelling A to make the conveyance. Equity will only give relief, however, in certain classes of cases where the remedy at law is inadequate.

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§ 461. History of the statute.-To prevent frauds and perjuries, a statute was enacted in the reign of Charles II in England, in the year 1677, providing that no action should be brought to enforce certain agreements, "unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." It is to be noticed that by this statute parties are not prohibited from making such agreements by parol, but the performance of such parol agreements is purely voluntary. It is simply declared that the courts. will not aid in enforcing them. There is some curious history as to who is entitled to the credit of suggesting or formulating this law. Some give it to Lord Hale, but the better opinion is that Lord Nottingham is its author. That it is regarded as a good law in principle is shown by the fact that its most important provisions have been re-enacted in all English-speaking countries, especially the fourth and seventeenth sections of the

statute.

§ 462. Provisions of the statute.-The fourth section provides that no action shall be brought whereby to charge:

(1) Any executor or administrator upon any special promise to answer damages out of his own estate.

(2) Or to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person.

(3) Or to charge any person upon any agreement made upon consideration of marriage.

(4) Or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them. (5) Or upon any agreement that is not to be performed within the space of one year from the making thereof.

Unless the agreement or some memorandum thereof in writing should be signed as above required.

The seventeenth section provides that no contract for the sale of any goods, wares and merchandise for the price of ten pounds sterling (fifty dollars) or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, unless some note or memorandum of the bargain in writing be made and signed, as required in the fourth section.

Let us consider the contracts affected by the statute, in the order in which they are mentioned in the statute itself.

§ 463. Promises of executors and administrators.An executor or an administrator coming into possession of the estate of the testator or decedent is only liable to pay the debts of the estate in the order required by law and so far as the assets of the estate properly ad

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