Sec 869

The performance of a contract must be in the mode the contract itself specifies.1 If there is a material failure in this respect, the promisor is liable to the promisee for the breach.2 Thus, in an action for a breach of a covenant in a farming lease in selling manure and allowing it to be removed, a plea that the tenant had brought back more manure than he carried oil' was held bad, as introducing a new mode of performance differing from that agreed on.1 - If the delivery be in the way specified, then the creditor cannot recover damages for non-reception, if this arose from his not being present at the time and place designated for the reception.2 The failure is imputable to him, and he cannot transfer the loss to the other party.3 - The way in which delivery of goods is to be made is sometimes specified in the contract of sale, in which case the delivery is to conform to the directions thus given.4 But when there is no such direction, the mode of delivery may be appointed by the purchaser, as whose representative the vendor, in complying with such directions, acts.5 - The delivery to the purchaser's agent is delivery to the purchaser.6 And as we will hereafter see,7 delivery to a common carrier, when in accordance with business usage under the circumstances, is also delivery to the purchaser. - The subject of conditional performance is discussed in prior sections;8 and so of alternative contracts.9

Performance must be in accordance with terms of contract.

1 Leake, 2d ed. 821; Haldane V. Johnson, 8 Exch. 689; Poole V. Tun-bridge, 2 M.& W. 223; Higgins V. Emmons, 5 Conn. 756.

2 Richardson V. Barnes, 4 Ex. 128; Bailey V. Long, 24 Kan. 90. That substantial conformity is enough, see Gla-cius V. Black, 50 N. Y. 149, 67 N. Y. 563; Woodward V. Fuller, 80 N. Y. 312; Heekmann V. Pinkney, 81 N. Y.

211; Dauchey V. Drake, 85 N. Y. 407; Preston V. Finney, 2 W. & S. 53; Danville Bridge Co. V. Pomroy, 15 Penn. St. 151; Messner V. Lancaster Co., 23 Penn. St. 291; Stewart V. McQuaide, 48 Penn. St. 191; and see further supra, sec 190, 259, 607. As to construction of contract, see supra, sec 627 et seq.

Sec 870

Without invalidating a contract, or making its re-execution necessary under the statute of frauds, the mode of performing it may be varied by consent.10 In such cases, as we have already seen, the old contract remains in force, the application of the contract being regarded as something extrinsic to it, which the parties can subsequently mould without affecting the integrity of the contract as such.11 And this is the case even as to contracts under statute of frauds, provided there is no substantial alteration of the terras of the contract.1 Hence, it is competent for the parties to agree to extend the period for performance; and when there is any consideration for this agreement, it is operative.2 And a sufficient consideration is found in the mutual promises of the parties based on gain to one party conditioned on detriment to the other.3 "After the agree-ment has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either to waive, dissolve, or amend the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent terms engrafted upon what will be thus left of the written agreement."4 It will be sufficient if the new agreement be made at the time of the breach of the old. Thus in a case in Pennsylvania, in 1880, P. contracted to buy oil of V., on or before a certain date at seller's option. V. tendered the oil, but P. answered that he could not at the moment take and pay for it, and asked for time. V. thereupon, without withdrawing his tender, agreed that P. might have the oil at any time before the expiration of the then ensuing month. It was ruled that the new agreement of the parties was a binding contract for which the mutual promises of postponement formed sufficient consideration, and that P. having within the stipulated time, and at the proper place, offered to take the oil, but having failed to find V. or any one authorized to act for him, V. had broken his contract, and P. was entitled to recover from a stakeholder margins deposited by V. to secure his compliance with the terms of the original contract.8

By consent mode of performance may be varied.

1 Leigh V. Lillie, 6 H. & N. 165.

2 Case V. Green, 5 Watts, 262.

3 Slingerland V. Morse, 8 Johns. 474; Mitchell V. Merrill, 2 Blackf. 87; supra, sec 312, 325, 603, 716.

4 Leake, 2d ed. 826; Benj.on Sales, 3d Am. ed. sec 683 et seq.

5 Ibid.; Benj. on Sales, sec 319; Pearson ex parte, L. R. 3 Ch. 443.

6 Wing V. Clarke, 24 Me. 373; Hunter V. Wright, 12 Allen, 548.

7 Infra, sec 877.

8 Supra, sec 545 et seq. 9 Supra, sec 616.

10 Wh. on EV. sec 1026; supra, sec 661, 690.

11 Supra, sec 499; Wh. on EV. sec 1026; Leake, 2d ed. 823; Leather Co. V. Hieronymus, L. R. 10 Q. B. 140; Tyers V. Iron Co., L. R. 8 Ex. 315; Plevins V. Downing, L. R. 1 C. P. D. 220; Flagg V. Dryden, 7 Pick. 53; Chester V. Bank of Kingston, 16 N. Y. 336; Agawam Bk. V. Strever, 18 N. Y. 502; Hutchins V. Hebbard, 34 N. Y. 26; Malone V. Dougherty, 79 Penn. St. 46; Bladen V. Wells, 30 Md. 582; Moore V. Davidson, 18 Ala. 209; see Lawrence V. Miller, 86 N. Y. 131.

1 See Wh. on EV. sec 1035.

2 Supra; sec 499.

3 Supra, sec 505; Robinson V. Bachel-der, 4 N. H. 40; Keating V. Price, 1 Johns. Ca. 22; M'Combs V. M'Kennan, 2 W. & S. 216; Carrier V. Dilworth, 59 Penn. St. 406.

4 Goss V. Nugent, 5 B. & Ad. 58.

5 McNish V. Reynolds, 10 Weekly Notes, 24. "If," said Trunkey, J., "at the moment for performance of a contract by one party, both agree to a postponement, is the contract broken ? A. sells B. a horse for a stipulated price; the horse to be delivered and money paid on a certain day. At the appointed time A. tenders the horse. B. says, I am not ready, but if yon will wait till to-morrow, I will take the horse and pay you; to which A. agrees. The new contract is as valid as the old. The mutual promises, the one to deliver, and the other to accept and pay, were ample consideration to sustain the new contract. (Carrier V. Dilworth, 9 P. F. S. 406.) Can it be that in such case the old was broken, and A. could recover damages for the breach? If his right of action accrued at all, it was at the instant he agreed to a change of time for delivery and payment, instead of demanding strict performance. The parties carried the yet unbroken contract into a new one, and neither has a just claim for damages."