away or filled up by floods, and extra labor became necessary to repair it. Held, the plaintiff could not prove a verbal promise by the defendants, made either when the contract was executed or in the preliminary negotiations, to make a slope wall against the embankment as the work went on, by which the casualty would have been prevented; as such evidence would control or vary the written contract, and did not fall within the principle by which evidence is admissible, in construing a written contract, of the actual state of things at the time when it is made. - Bayle v. Agawam, &c., xxii. 381.

2. By a written contract for the sale of a farm, a part of the price was to be paid when the deed should be ready, and the rest in annual instalments. The farm was incumbered by a mortgage, which was due, but the vendor tendered a warranty deed. Held, the plaintiff could not show by parol evidence, that the defendant knew of the mortgage when the contract was made, and agreed it should remain; the effect of such evidence being, not to prove a subsequent waiver of exception to the title, but to vary and contradict a written contract. Swan v. Drury, xxii. 485.

3. The plaintiff became receipter for property attached, upon the assurance of the defendant, (the officer,) and the attaching creditor, that, if he should at any time become dissatisfied and give them notice, they would take possession of the property, and discharge him. He accordingly did give notice, but they did not take possession, and the debtor afterwards absconded with the property. The officer then sues, and recovers judgment against the receipter, who brings this action against the officer upon the verbal contract above mentioned. Held, such contract was not an independent agreement, but a mere condition or defeasance of the receipt, and could not be proved by parol evidence. — Curtis v. Wakefield, xv. 437.

4. The law will sustain an entire promise in writing, which is in part collateral, to pay the debt of another, and in part original. Loomis v. Newhall, xv. 159.

5. But, if merely verbal, it will be void for the whole. — Ibid.

6. Thus, where the plaintiff had furnished supplies to the defendant's son, for which the son was liable, and by the defendant's request continued to furnish them, the defendant saying, "for what you have done and for what you shall do for my son I will see you paid"; held, the promise, though founded on a legal consideration, was void under the statute of frauds. - Ibid.

7. Otherwise, had the past supplies been furnished gratuitously, because the defendant's promise would not then be for the debt of another. Ibid.

F. Conditional, mutual and independent contracts.

1. The owner of the right to run a line of stages agreed to sell it, with the stipulation, that if the purchaser ever failed to run the coach according to contract, he should forfeit the right to the vendor, who was to resume the running himself; and if the vendor failed to perform his part of the contract, he should forfeit a mortgage given to the vendee and the notes thereby secured. Held, though the former forfeiture would take effect immediately upon a breach, while the latter, being susceptible of computation in damages, must be enforced by legal process; yet, in contemplation of law, the forfeitures were to be considered as equal in effect between the parties. - Van Deusen v. Frink, xv. 449.

2. By a written contract for the sale of a farm, it was provided, that a part of the price should be paid when the deed was ready, and the rest in annual instalments. The farm was incumbered by a mortgage which was due, but the vendor tendered a warranty deed. Held, he could not maintain an action for the price, without tendering a clear title. Swan v. Drury, xxii. 485.

3. The plaintiff having tendered a warranty deed, held, the defendant's prior declarations, that he should not insist on the removal of the incumbrance, were not a waiver of exception to the title, unless, taken in connexion with what occurred at the time of tender, they showed an intent to waive it; they being invalid for want of consideration, and it not appearing that the plaintiff acted upon the faith of them, or incurred any damage or expense therefrom. Ibid.

4. A dwelling-house, standing within the highway, was conveyed by the defendants, on condition that it should be taken "to some other place, removed from any location on the west side of the road, where it now stands, and between the south-east corner of the defendant's land and the plaintiff's house-yard; and, unless said house is removed permanently as aforesaid between this date and the 25th day of March next, the said house shall be forfeited" to the defendants. The house was seasonably removed, and placed upon the plaintiff's close, adjoining the west side of the road, between the corner and yard mentioned. Held, the condition did not mean merely that the building should not be removed to any other place within the road, that it was not unreasonable, and was broken. Lawrence v. Gifford, xvii. 366.

5. After breach of condition, the defendants received the amount of the note of one A., which had been assigned to them as the consideration of their deed. Held, no waiver of the forfeiture. Ibid.

6. The plaintiff, having been requested by the defendant to prepare plans for a theatre, drew a sketch of a front, which was presented to, and kept for a week by, the defendant; and, being pleased with it, he directed the plaintiff to make the plans. The defendant's master-builder, by his direction, called on the plaintiff and took the plans, in order to estimate the cost of a theatre, kept them a week, made the estimate, and delivered it to the defendThe defendant determined not to build by the plans, and they were in the plaintiff's possession, and produced by him at the trial. Held, the evidence showed a delivery of the plans, and that the plaintiff should recover for his services. Kutts v. Pelby, xx. 65.

ant.

7. So, also, though before commencing a suit he presented a bill, by mistake too large, and pending the action declared that he had refused the plans to the defendant, who should have them when he paid for them or had paid the bill, and not before. — Ibid.

8. Agreement as follows, "I agree with A. to give up his note for the W. stock, and allow him in account the sum paid thereon, depending on his exertion to free me from that concern without further loss." Held, this was a conditional promise, the acceptance of which bound A. to use his exertion, &c. on request. Hubbard v. Coolidge, 1 Met. 84.

G. Time, in relation to contracts.

1. The defendant, in a contract with the plaintiffs for building the hull of a schooner, agreed that she should be "built, caulked, finished, and ready for the rigger to complete his work, launched and delivered afloat in the harbor of Eden," on or before June 1, 1833. It was a custom to rig vessels on the stocks at Eden, where they could be rigged in this way, more safely and cheaply. Held, the defendant was bound to have the vessel ready for the rigger so long before June 1, that the rigging might be completed and the vessel launched by that day. Curtis v. Brewer, xvii.

513.

2. If the vessel was not finished on or before June 1, it was agreed that the defendant should pay charter to the plaintiffs at the rate of $1.50 per ton per month, for any delay in the completion of the vessel after that time; and the parties bound themselves to performance of the contract in the penal sum of $1000. Held, the damages for the delay were liquidated by the contract. Ibid.

3. In case of a contract of service for a certain time, nothing being said as to the time of payment; the presumption, that pay

ment is to be made at the end of the term, may be rebutted by any evidence of a different agreement. Thayer v. Wadsworth,

xix. 349.

4. One party, who has contracted to work for another for a certain time, if he voluntarily leave the latter within that time, without the consent or fault of the employer, cannot recover for his services, either upon the contract or upon a quan. mer. · Olmstead v. Beale, xix. 528.

H. Entire contracts, and part fulfilment thereof.

1. Where one contracts to do an entire work for a certain sum, and, by a subsequent accident, the labor and cost of the work are increased, he must bear the loss.- Bayle v. Agawam, &c., xxii.

381.

2. The plaintiffs contracted with the defendants, a canal corporation, to construct a portion of the canal for a certain sum per cubic yard of excavation and embankment, the defendants to pay 75 per cent. on the estimates of the engineer, which were to be made monthly as the work advanced, and the balance on its completion, together with a further sum for losses in the construction of the work prior to the contract. Before completing the work, a part of the embankment and excavation was washed away or filled up by floods, and extra labor became necessary to repair it. Held, the plaintiff could not recover therefor. Ibid.

3. Promise to deliver a certificate of 10 shares of the stock of a manufacturing company, whose capital shall be $100,000, divided into not more than 200 shares. Held, it was no fulfilment of such promise, to tender a certificate of 10 shares, $ 35,000 being paid in, and the stock divided into 70 shares. Dyer v. Rich, 1 Met. 180.

4. A contract to do several things at several times is divisible, and assumpsit lies upon each breach. - Badger v. Titcomb, xv.

409.

5. Thus, the defendant, being the keeper of an office for procuring ships' crews, in consideration that the plaintiff undertook to furnish necessary supplies and advances, promised to pay him so much for each man shipped, and repay the advances. Held, though the contract was entire, the performance was several, and assumpsit would lie for every breach. - Ibid.

6. Charges made at different times, in a running account, for goods sold, or money lent or paid, are in their nature several, and may be separately sued on, unless it be agreed to the contrary. Ibid.

7. The defendant, A., accepted an order drawn upon him by B., to pay $200 from the first money of B. received by A. on account of a newspaper establishment. A. having received a part of the amount, the holder, after demand, brought an action and recovered judgment for that sum, upon the order. A further sum being afterwards received, he brings a new action therefor. Held, the former judgment was no bar to this suit. Perry v. Harrington, 2 Met. 368.

I. Waiver, satisfaction and discharge of contracts.

1. The maker of a note, assigning his property for the benefit of his creditors, was released by the holder. By an instrument under seal, it was afterwards agreed between the parties to the assignment, that 50 per cent. should be paid to the creditors, in 18 months; that during that time the assignor should not be sued or molested; and, unless the 50 per cent. should be paid, as agreed, the whole amount of the debts should be paid, "the release contained in said assignment to the contrary notwithstanding." Held, the note was not merged in the latter agreement, but, upon failing to pay the 50 per cent. within the time specified, the promiser was liable to a suit thereupon. Whitney v. Whitaker, 2 Met. 268.

2. The defendant, having given a note to the plaintiff, after its maturity agreed with one A. and his creditors, that A. should periodically receive his wages from his employers as they fell due, for the benefit of creditors, and pay the note by monthly instalments; and that, so long as this contract was fulfilled, the plaintiff should not sue upon the note. Two of the instalments having been paid, the plaintiff brings an action for the balance of the note. Held, the above facts were no defence. Walker v. Russell, xvii. 280.

3. If A., having contracted to convey land to B. at a future day, before that time conveys it to C., B. is discharged from his obligation to take the land, though A. should repurchase it before the time fixed. Otherwise, if A. were involuntarily disabled for a time from fulfilling his contract, and before the time appointed might regain the power of fulfilling it. - Heard v. Bowers, xxiii. 455.

4. On the 2d day of February, 1835, the plaintiff, A., having a large claim against the defendant, B., and being also assignee of two mortgages of land made by B., entered for breach of condition, and leased the estate to B. and C., the other defendant, for three years, at a quarterly rent, the lease to be paid when the mortgages should be redeemed. November 9, 1837, A. and B.