Wherever one party has
already received a substantial benefit under a contract of a kind
which cannot be restored, it is too late to rescind, however
important a breach may be committed later by the other side. Yet
he may be [334] excused from going farther. Suppose a contract is
made for a month's labor, ten dollars to be paid down, not to be
recovered except in case of rescission for the laborer's fault,
and thirty dollars at the end of the month. If the laborer should
wrongfully stop work at the end of a fortnight, I do not suppose
that the contract could be rescinded, and that the ten dollars
could be recovered as money had and received; /1/ but, on the
other hand, the employer would not be bound to pay the thirty
dollars, and of course he could sue for damages on the contract.
/2/
But, for the most part, a breach of promise which discharges the
promisee from further performance on his side will also warrant
rescission, so that no great harm is done by the popular
confusion of the two questions. Where the promise to perform on
one side is limited to the case of performance on the other, the
contract is generally conditioned on it also. In what follows, I
shall take up the cases which I wish to notice without stopping
to consider whether the contract was in a strict sense
conditioned on performance of the promise on one side, or whether
the true construction was merely that the promise on the other
side was limited to that event.
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