the value about $500. The court held that notwithstanding, there was a substantial performance. In short, the deficiency consisted of one-tenth of the total amount.

Deviations from the line of strict performance, which are more than slight or trivial, will defeat a recovery on the contract by the plaintiff. Furthermore, there must be no willful or intentional departure.1 Similarly will the non-performance of a material part of the contract defeat the operation of the doctrine of substantial performance.62 Thus, in the case of Harris v. Sharples," the court found that the contract between the parties was to furnish certain catalogue covers in accordance with the proofs which had been submitted. The plaintiffs printed their name on the last page without the defendant's permission, and were not allowed to recover on the contract.

Where recovery may not be had under the contract, certain rights arise under the principles of quasicontracts, to be treated in a subsequent volume."

64

61 Gillespie Tool Co. v. Wilson, 123 Pa. St. 19, LEADING ILLUSTRATIVE CASES; Van Clief v. Van Vechten, 130 N. Y. 571.

62 Jeffries v. Jeffries, 117 Mass. 184.

63 202 Pa. St. 243.

64 See subject, QUASI-CONTRActs.

CHAPTER XVIII.

DISCHARGE BY OPERATION OF LAW.

202. Modes of discharge by operation of law.Contracts may be discharged by operation of law. Such cases arise where (1) the contract is merged, (2) a written contract is altered or lost, (3) there is a failure of consideration, (4) the breach goes to the essence, (5) the party repudiates, and (6) marriage takes place.

203. Merger. The acceptance of a higher security in place of one of lower degree discharges the lower. Thus, where A sues B for a breach of contract, and a judgment is entered, this judgment absorbs the contract. The contract is said to be merged in the judgment.65 Similarly, where A and B make a simple contract, and then embody its terms in a sealed instrument which both execute, the simple contract is merged in the specialty and is discharged."

A second security taken in addition to one similar in character will not affect the validity of the first, unless there be a discharge because the second is a substituted agreement. Thus, one simple contract does not merge or extinguish another. Although the term merger is sometimes applied to the substitution of one simple contract for another, there is, however, no discharge by merger, but only a substi

65 Miller v. Covert, 1 Wend. (N. Y.) 487.

67

66 Clifton v. Jackson Iron Co., 74 Mich. 183, LEADING ILLUSTRATIVE CASES.

67 Wylly v. Collins & Co., 9 Ga. 223.

tution depending on the intention of the parties. To constitute a merger it is necessary that the subject matter of the two securities be identical and the parties the same.68

Strictly, there is no merger where an oral simple contract is reduced to writing. When it is said that such a set of facts constitutes a merger, it means that the writing cannot be contradicted by evidence of a prior or contemporaneous oral agreement. In reality, this is a rule of evidence.

204. Alteration of written instrument.-A material alteration of a written instrument by a party thereto constitutes a discharge.69 Thus, if A changes the amount B owes him from $50 to $100, this is a material alteration which discharges the contract.

An alteration is an act done upon an instrument by which its legal meaning or language is changed. If what is written upon or erased from an instrument has no tendency to produce this result or to mislead any person, it is not a material alteration.

What constitutes a material alteration is for the court to determine, and depends upon the character of the instrument. Any change in words or form merely, even if made by an interested party, which leaves the legal effect and identity of the instrument unimpaired and unaltered, is not material. In some manner the rights and duties of the parties must be affected. Thus, a change which makes a new stipulation or condition in the contract of the parties is material. Consequently, if A makes a contract of sale

68 Shelby v. Chicago R. Co., 143 Ill. 385.

69 Clough v. Seay, 49 Ia. 111, LEADING ILLUSTRATIVE CASES.

and B inserts a phrase by which A is made to say that he waives any legal defense thereto, such a change is a material alteration.70

Moreover, to discharge the contract the alteration must be made by a party to the contract, or by a stranger with his consent. Changes, however material, which are made by a stranger without the consent of either party, are in legal contemplation not an alteration, but a spoliation. The instrument will be enforced as it was originally written if its original terms may be ascertained therefrom. If, however, the change by one of the parties is made with the consent of the other, there is no alteration. Instead, a new agreement is created. Whenever it is clear from the evidence that an instrument was changed or mutilated by accident or mistake, it is not discharged. This is true even if the act was that of a party.

72

Loss. The loss of a written instrument only affects the rights of the parties in so far as it may cause difficulty in offering proof of the instrument. Generally, the contract is not discharged except in the case of bills of exchange and promissory notes, where upon loss the holder loses his rights unless he offers the party primarily liable an indemnity against possible claims. The courts generally give relief by allowing a party to give secondary evidence of the contents of the instrument.

205. Discharge by failure of consideration.-An

70 Jordan v. Long, 109 Ala. 414.

71 2 Cyclopedia Law & Procedure, p. 151.

72 Camp v. Shaw, 52 Ill. App. 241.

78 McGregory v. McGregory, 107 Mass. 543; Blade v. Noland, 12 Wendell 173 (N. Y.), LEADING ILLUSTRATIVE CASES.

equitable doctrine has sprung up in the United States to the effect that failure of consideration will discharge a contract. Its recognition by the commonlaw courts illustrates the tendency toward the merging of legal into equitable rules. If, for example, in a contract of sale, the article sold fails to correspond with the contracted description so as to give the vendee the right to return the article, there is said to be a consideration subsequent whereby the vendee may return the property and be discharged from his obligation. This right of rescission rests on failure of consideration.75 Similarly, a breach of one unilateral contract may operate to discharge the obligation of a second contract for which the first is the consideration. The same is true of negotiable instruments.76

206. Discharge by breach going to the essence and by repudiation. In a bilateral contract the obligation of one party may be discharged by a breach of contract by the other party. In order that the mere breach should operate as a discharge, the breach must go to the essence of the contract. What is or is not of the essence of the contract has been discussed. The breach does not operate as a discharge, however, unless the injured party treats it as such.

Similarly, the absolute and unqualified refusal to perform entitles the other party to treat such refusal as a discharge. In the case of repudiation, there is a discharge, although it does not go to the essence of the contract."

74 California Civil Code, § 1689, subd. 4.
75 Harriman, Contracts (2d ed.), § 525.
76 Withers v. Greene, 9 How. 213 (U. S.).

77 Harriman, Contracts (2d ed.), §§ 516-520.