it is regarded as an undertaking to pay generally, and no special request need be alleged. But it is otherwise when he undertakes for a collateral matter, or as a surety for a third person. There if the agreement be that he will pay on request, the request is parcel of the contract, and must be specially alleged and proved."7

The explanation of the anomaly that a debtor whose promise is expressly conditional upon a demand should be liable without a demand (for the suggestion that bringing an action itself is a demand which satisfies a condition precedent to the plaintiff's right to bring the action, is absurd) is found in the common form of early declarations, which always alleged, even though the defendant's promise was in terms unconditional, that the defendant promised to pay on request, and that though often requested he failed to do so. It was therefore impossible to tell from the pleadings whether or not there was in fact a condition requiring a request or demand; and the decision

See supra, § 1175.

' Bronson, J., speaking for the court in Nelson v. Bostwick, 5 Hill, 37, 40 Am. Dec. 310, an action against Shumway as principal and Nelson as surety upon a bond, "conditioned to be void if Shumway should pay on demand all costs that might be awarded to the defendants" in a certain action. Judge Bronson citedDevenly v. Welbore, Cro. Eliz. 85; Hill v. Wade, Cro. Jac. 523; Waters v. Bridge, Cro. Jac. 639; Birks v. Trippet, 1 Saund. 32, and note (2); Harwood v. Turberville, 6 Mod. 200; Com. Dig. Pleader (c. 69); Sicklemore v. Thistleton, 6 M. & S. 9; Carter v. Ring, 3 Camp. 459; Douglass v. Reynolds, 7 Pet. 113, 8 L. Ed 626, 2 Saund. 108, note (3); Lawes' Pl. 232, 251; 1 Chit. Pl. 363, ed. of '37. Cowen, J., in a concurring opinion, (cited as additional authorities for the necessity of an actual demand in the one case and the needlessness of it in the other; Selman v. King (Cro. Jac. 183); The Case of an Hostler (Yelv. 66); and continued

"A promise to save harmless on request is an instance. (Harrison v. Mitford, 2 Bulstr. 229.)

"This and various other cases to the same effect are cited, 1 Saund. 33, note (2), 'for,' adds the editor, 'a request is parcel of the contract, and must be proved; and no action arises until a request be made.' (Vid. Douglass v. Howland, 24 Wend. 51, and several books there cited to the same point.) In Harwood v. Tuberville (6 Mod. 200) the defendant became surety by bond to pay a previous debt of his mother, on demand; and a special request was held necessary to charge him." These authorities were quoted and relied upon in First Nat. Bank v. Story, 200 N. Y. 346, 93 N. E. 940, 34 L. R. A. (N. S.) 154, where it was held that one who guaranteed payment at maturity "upon demand" was not liable until demand had been made. To the same effect is Bradford Old Bank v. Sutcliffe, [1918] 2 K. B. 833. See . also supra, § 1175; infra, § 2040.

that a demand was unnecessary, and that the allegations in the declarations were purely formal in cases where there was no express condition led the courts mistakenly to hold the allegations equally formal where there was such a condition.

§ 1290. Partial and total breach.

Though breach to any extent of any promise in a contract gives rise to a cause of action, it has already appeared' that a slight breach will not necessarily end further duties of the injured person for the performance of the contract. In spite of a slight breach a promisor may be able so nearly to fulfil the terms of his promise that the just way to deal with the situation is to hold the promisor liable merely for the defect in the performance and not to regard the contract as terminated and as being transformed into a right of action entitling the injured party to recover damages equal in value to the whole performance of the contract.10

In a unilateral contract for the performance of several disconnected acts, or for the payment of several sums in instalments, a breach as to one or any number less than the whole of the instalments is generally partial.11 In a unilateral contract for one continuing performance or in a bilateral contract not yet wholly performed on either side, whether a breach is total or partial is necessarily a question of degree. Until the breach is of sufficient importance it is impossible that it should operate as a transformation of the whole contract into a right of action for damages. Moreover, even after the breach has become of great importance, the injured party may consent to accept further performance from the wrongdoer and thereby restrict his right of action to a right to recover compensation for defective partial performance rather than for total performance.

8 See, e. g., Taylor v. Laird, 1 H. & N. 273; Milske v. Steiner Mantel Co.. 103 Md. 235, 249, 63 Atl. 471, 5 L. R, A. (N. S.) 1105, 115 Am. St. Rep.

354.

'See §§ 812 et seq.

"In the early law it seems that any breach of contract justified an action for the value of the whole

performance to be rendered. Rudder v. Price, 1 H. Bl. 547; Bush v. Stowell, 71 Pa. 208. This was on the theory that the plaintiff was entitled to everything promised him, and a failure in any respect made performance altogether impossible.

11 Green v. Petersen, 218 N. Y. 280, 112 N. E. 746. See infra, § 2024.

§ 1291. One action only is allowed for a single breach of contract.

Certain rules of procedure qualify the right of an injured party to sue for breach of promise. In laying down these rules the law seems to have had two objects in view: first, the restriction of suits to such a number as is absolutely necessary for purposes of justice and, second, the minimizing of damages to the defendant so far as is possible, without denying to the injured party compensation for the wrong which he has suffered. Accordingly there can be but one action for a single breach. 12 Non-performance by one party will give rise to a cause of action as soon as there is a day's delay in performance beyond the period stipulated for in the contract, for it is fundamental that for any actual failure to do as agreed the injured party has a remedy. But if the breach is not such as will involve the non-performance of the contract altogether, the damages recovered will be calculated on the assumption that the contract will be carried out in the future; that is they will be limited to the damage caused by breaches which had taken place at the date of the writ; 13 whereas, if the breach at the time of suit has already been so serious as to involve the failure of the whole contract, damages based on the loss of the defendant's whole performance may be awarded to the plaintiff.1

14

Unless the contract is totally broken it is not desirable that a money equivalent should be given instead of what the parties bargained for. It is often better that the contract should be carried out a little late or defectively rather than that the parties should be deprived of the opportunity of performance altogether and that a money equivalent should be substituted which, in the nature of the case, is more or less imperfect relief.

12 Rudder v. Price, 1 H. Bl. 547; South & North R. Co. v. Henlein, 56 Ala. 368; Leggett v. Lippincott, 50 N. J. L. 462, 14 Atl. 577; Bendernagle v. Cocks, 19 Wend. 207, 209, 32 Am. Dec. 448; Goldberg v. Eastern Brewing Co., 136 N. Y. App. D. 692, 121 N. Y. S. 465.

13 Kansas &c. R. Co. v. Curry, 6

Kan. App. 561, 51 Pac. 576; Fay v. Guynon, 131 Mass. 31; Wittenberg v. Mollyneaux, 59 Neb. 203, 80 N. W. 824; Wharton v. Winch, 140 N. Y. 287, 35 N. E. 589; Erie &c. R. v. Johnson, 101 Pa. 555. Cf. Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369.

14 See infra, § 1317.

In case of a breach of an indivisible contract where there is not a total breach of contract, the damages of the plaintiff will be such an amount as will compensate the plaintiff for the late or defective performance of the defendant. 15 It may, however, appear subsequently that the defendant will never perform, either because of his own permanent unwillingness to do so, or because his delay is so great before he becomes willing to perform that the plaintiff is justifiably unwilling to allow him to perform thereafter. If, however, the plaintiff has already recovered, in an action on the same breach of promise, damages based on the assumption that the contract is to be carried out in the future he can bring no further action. He has already sued upon this cause of action and but one action is allowed him, although the damages he received in that action have proved inadequate compensation. Had he deferred bringing action until it appeared that a consequence of the breach of contract was that the contract would never be performed at all, not simply that its performance would be delayed, he might have recovered damages sufficient to compensate him for the total loss of the defendant's performance.

§ 1292. Sometimes one action only allowed for several breaches of contract.

Sometimes, however, a contract may provide for more than one performance by a promisor. In such a case it seems the non-performance of each thing promised is a separate breach of contract rendering the promisor liable; and an action upon a breach of one promise will not necessarily involve an inability to sue subsequently on later breaches of the same contract, for the causes of action are different. 16 And a promise in form

16 If the breach consists of nonpayment of a sum of money absolutely due, the statement in the text must be qualified. In such a case judgment will be given for the money due, not merely damages for delay.

Fay v. Guynon, 131 Mass. 31, 35; Barrie v. Earle, 143 Mass. 1, 5, 8 N. E. 639, 58 Am. Rep. 126. The common law took a distinction between debt and assumpsit in regard

In

to the recovery of instalments.
debt on a bond or covenant to pay
several sums of money at different
dates, the action could not be brought
ur til all the sums were due (though
on a bond on condition to secure
payment of several sums there was
a breach of condition of the whole
bond if the first sum was not paid).
See Rudder v. Price, 1 H. Bl. 547,
and cases cited. Bush v. Stowell,

single may involve several performances, and thus be in effect several promises. Such is a covenant to repair in a lease, on which repeated actions may be brought," or a covenant by a carrier to give free transportation for life.18

After more than one breach of the same contract has occurred, however, the injured party must join in any action brought all breaches which have theretofore taken place; since to bring separate actions for each breach is unnecessarily vexatious to the defendant without giving the plaintiff any advantage. 19

This rule is based on reasons of policy and has even been applied to entirely distinct bargains where they constitute a running account between the parties. Though each item of such an account must in law be regarded as a separate transaction, it is frequently held that the plaintiff must bring a single action for whatever is due on the account at the time action is

71 Pa. 208; Lyall v. London, 8 U. C. C. P. 365. On the other hand, in assumpsit an action lay on breach of the first instalment, ibid., and it was said "that where a man brings such an action for breach of an assumpsit upon the first day, it is best to count of damages for the entire debt, for he cannot have a new action." Reporter's note to Beckwith v. Nott, Cro. Jac. 504. These distinctions, however, have doubtless wholly disappeared, and the plaintiff now may bring a separate action for breach of each instalment, as soon as the breach takes place and recover damages for that instalment. Beecher v. Conradt, 13 N. Y. 108, 64 Am. Dec. 535; Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362; Seed v. Johnston, 63 N. Y. App. Div. 340, 71 N. Y. S. 579. The qualification stated in the text, however, requiring joinder of all breaches which have occurred, must be observed.

17 Kingdon v. Nottle, 1 M. & G. 355, 365; Phelps v. New Haven &c. Co., 43 Conn. 453; Shaffer v. Lee,

8 Barb. 420; Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369.

18 Kansas &c. R. v. Curry, 6 Kan. App. 561, 51 Pac. 576; Pittsburgh & R. v. Peterson, 58 Pa. Super. 44.

19 Bagot v. Williams, 3 B. & C. 235; Pinney v. Barnes, 17 Conn. 420; Casselberry v. Forquer, 27 Ill. 170; Indiana & R. v. Koons, 105 Ind. 507, 5 N. E. 549; Manton v. Gammon, 7 Ill. App. 201; Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448; Wilson v. Mechanical Orguinette Co., 170 N. Y. 542, 553, 63 N. E. 550. In Seed v. Johnston, 63 N. Y. App. Div. 340, 343, 71 N. Y. S. 579, the court said: "It is a well-established proposition of law that if a contract provides for payment by instalments, due at different times, the instalments may, of course, be successively sued on as they become payable (Wells, Res Adj. 203), but each action should include every instalment due when it is commenced, unless a suit is, at the time, pending for the recovery thereof or other special circumstances exist. Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. 292, 19 Am. St. Rep. 470."