brought unless some good reason for a contrary course exists, on pain of forfeiting all right to items not included in the action.20 For separate contracts not constituting a running account several actions may be maintained, though all had been broken before the first action was brought, and all might have been enforced in one action.21

22

Wherever the defendant's breach of contract is substantial and material the plaintiff may sue in one action and recover damages based on the entire value of performance, for a consequence of the breach already committed is that the whole contract will not be performed. It may happen, however, that the injured party will prefer not to exercise his right to refuse to continue performance but rather to hold himself ready to perform the remainder of the contract and demand performance from the other party, from time to time, as it may become due. This course though it seems allowed in England is not generally allowed in this country.23 If the breach is such that the injured party may treat it as an entire breach of the contract, it seems that he must do so or, rather, that if he fails to do so he can bring no new action after the first in which he claimed and recovered damages for the partial breach only. The reason of this is that it sufficiently protects the plaintiff in that he is allowed to recover full damages, and, at the same time, it minimizes the damage of the defendant by not allowing him to be vexed with a number of separate suits.24

"Lee v. Tannenbaum, 62 Ala. 501; Avery v. Fitch, 4 Conn. 362; Atlanta Elevator Co. v. Fulton &c. Mills, 106 Ga. 427, 32 S. E. 541; Robbins v. Conley, 47 Mo. App. 502 (compare Alkire Grocer Co. v. Tagert, 60 Mo. App. 389); Guernsey v. Carver, 8 Wend. 492, 24 Am. Dec. 60; Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448. But see contra, Seddon #. Tutop, 6 T. R. 607; Williams v. Abbott Elec. Co., 134 Ia. 665, 112 N. W. 181, 13 L. R. A. (N. S.) 529; Badger v. Titcomb, 15 Pick. 409, 26 Am. Dec. 611; Phelps v. Abbott, 116 Mich. 624, 74 N. W. 1010; Beck v. Devereaux, 9 Neb. 109, 2 N. W. 365; McLaughlin v. Hill, 6 Vt. 20.

21 King v. Sheriff, 1 B. & Ad. 672. 22 See infra, § 1317. It is not intended to intimate that a repudiation before the time for performance will give rise to an immediate cause of action. As to this, see infra, § 1305.

23 This seems necessarily to follow from the statements in cases where the defendant repudiated. See infra, § 1322.

24 Where there has been repudiation the question is covered by the discussion infra, §§ 1305 et seq. In regard to a case where there has been a material breach but no repudiation, the case is not so clear either on principle or on authority, but in such a case, also, it seems that the plaintiff,

§ 1293. Implied promises.

It is not only for breach of express promises that a contractor is liable but of implied promises as well; and the most serious difficulty in this matter is to determine what promises are fairly to be implied in a given contract. The principle to be adopted, however, is plain; the difficulty lies in its application. Since the governing principle in the formation of contracts is the justifiable assumption by one party of a certain intention on the part of the other, the undertaking of each promisor in a contract must include any promises which a reasonable person in the position of the promisee would be justified in understanding were included. 25

Two

unless the circumstances show that the defendant intends to continue performance, not only may but must recover all damages in his action which he can ever recover. Pakas v. Hollingshead, 184 N. Y. 211, 77 N. E. 40, 3 L. R. A. (N. S.) 1042, 112 Am. St. Rep. 601. In this case the defendants agreed to sell and deliver to the plaintiff 50,000 pairs of bicycle pedals in instalments. thousand six hundred and eight pairs were delivered, but the defendant wrongfully failed to make further delivery. After a time, when about 19,000 pairs of pedals should have been delivered, the plaintiff brought action, seeking damages for the failure of the seller to deliver that number. The plaintiff recovered judgment in this action. Subsequently after the time within which the remainder of the pedals should have been delivered, according to the terms of the contract, the plaintiff brought action for the failure of the defendant to deliver them. The Appellate Division of the Supreme Court held that the plaintiff was debarred by his former action from further recovery, and this decision was confirmed by the Court of Appeals. Compare Gall v. Gall, 126 Wis. 390, 105 N. W. 953, 5 L. R. A. (N. S.) 603.

25 See supra, §§ 90, 670, and infra, § 1318. In Brodie v. Cardiff Corp., [1919] A. C. 337, 358, Lord Atkinson said: "The introduction of an implied term into the contract of the parties. . . can only be justified when the implied term is not inconsistent with some express term of the contract and where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties. Hanalyn v. Wood, [1891] 2 Q. B. 488." In C. M. Cecil Co. v. C. D. Wood Electric Co., 103 N. Y. Misc. 687, 170 N. Y. S. 962, 963, the court said:

Wherever, therefore, a contract cannot be carried out in the way in which it was obviously expected that it should be carried out without one party or the other performing some act not expressly promised by him, a promise to do that act must be implied. 26

When a seller promises to sell a horse, and the buyer promises to pay the price on receiving the horse, he does not in terms agree to accept the horse, but he must be understood to make that promise by implication; the buyer's promise is here subject to a condition (receiving the horse) which cannot be fulfilled without his coöperation. So though a contract of employment contains no other express promise on the part of

the employer than to pay a stipulated compensation, there is an implied promise to employ which is violated by a refusal to allow the employee to perform his duties as such, though there is no refusal to pay the compensation." The damages may or may not be nominal in such a case; but there is in any event a breach of contract. Generally on a fair construction of a contract where the liability of one party to a contract is subject to a condition, express or implied in fact, which cannot happen without his coöperation, he will be held to have given impliedly a promise of such coöperation, 28 but this is not always the case. A contract by which P promises that A shall be his exclusive agent in Liverpool may contain no implication that P will continue business in Liverpool.29 Of such questions it has been said: "Precedent can throw but little light on the sound interpretation of such contracts, especially as to implying unexpressed obligations; each has its own individuality, its own background and surrounding circumstances. Words are only symbols, and at times, even in the most formal agreement, but elliptical expressions of the mutual understanding; the underlying mutual intent, sought by both parties to be clothed in the language used, must be ascertained; text, context, and extrinsic circumstances, including prior negotiations and relations, may be considered to enable the court to view that matter from the standpoint of the parties at the time of making the contract."30

27 Rubel Bronze &c. Co. v. Vos, [1918] 1 K. B. 315, rightly criticising. Turner v. Sawdon, [1901] 2 K. B. 653.

28 See infra, § 1318.

29 Rhodes v. Forwood, 1 App. Cas. 256. See also In re English Marine Ins. Co., 5 Ch. App. 737; Pellet v. Manufacturers' Ins. Co., 104 Fed. 502, 43 C. C. A. 669; Brougham v. Paul, 138 Ill. App. 455; Bradlee v. Southern Coast Lumber Co., 193 Mass. 378, 79 N. E. 777; cf. Ogdens, Ltd., v. Nelson, [1905] A. C. 139, [1904] 2 K. B. 410; Macgregor v. Union Life Ins. Co., 121 Fed. 493, 57 C. C. A. 613; Lewis v. Atlas Mut.

L. Ins. Co., 61 Mo. 534; Glover v. Henderson, 120 Mo. 367, 25 S. W. 175, 41 Am. St. Rep. 695; Horton v. Hall & Clark Mfg. Co., 94 N. Y. App. D. 404.

30 Great Lakes, etc., Co. v. Scranton Coal Co., 239 Fed. 603, 152 C. C. A. 437. In speaking of a contract in which a carrier undertook to carry coal on the Great Lakes on all its steamers going westward from Oswego the court in this case said:

"There is no express provision that the steamers, or any of them, shall make any trips whatsoever, eastward or westward; there is no express provision that the trips, if and when

§ 1294. Performance of a promise must be made as such. Even though a promisor is prepared to keep and does keep his promise according to its express terms, he will, nevertheless, violate his contract unless his performance is rendered as a performance of his promise. In a leading case the parties having contracted to buy and sell a cargo of tea on certain terms, afterwards had negotiations which amounted to a rescission of the first contract and the substitution of a new one for the purchase of the cargo on different terms. When the time for performance came the buyer wrongly contended that the first contract was still in force and the seller on learning of this contention refused to deliver the cargo. The court held that he was entitled not only to do so but to sue the buyer for

made, shall extend as far east as Oswego. And therefore defendant contends that the obligation to carry coal westward is conditional solely upon the Transportation Company's uncontrollable willingness to run the boats on Lake Ontario. If this be the sound construction of the agreement, the bill must be dismissed, for, under such circumstances, the court would not tie defendant's hands.

"But we cannot accede to these contentions or adopt this construction. The obligation to carry defendant's coal on all west-bound trips, fairly interpreted in the light of the context and of the relations of the parties out of which the written agreement grew, carries with it the further implied obligation to run the boats in a reasonable manner continuously during the period of navigation on the Great Lakes east-bound to or beyond Oswego and west-bound calling at this port.

Looking at the agreement in its entirety, we find the circumstances that will suspend the obligation, in whole or in part, of each party, clearly specified, such as strikes, accidents, or the loss of a vessel. It is not the obligation to continue a

west-bound voyage from Oswego once begun, but the obligation to continue in the conduct of its business, that is expressly remitted or suspended. Clearly this has reference to the entire future of the three-year period of the contract; it would be unnecessary to abate the obligation to carry in the event that a vessel be destroyed, if the duty to carry from Oswego were subject to the owner's arbitrary right to keep the vessel on Lake Erie. Furthermore, such а construction would place this part of the plaintiff's business completely at the mercy of the shipowner, inasmuch as plaintiff's obligation is absolute except for the specified excuses, to give defendant its cargo on call at the port. A bilateral contract of the nature here in question will not lightly be construed, so as to give one of the parties a virtual option, instead of imposing upon each of them obligations conditioned solely as they may have expressly agreed."

See also M'Intyre v. Belcher, 14 C. B. (N. S.) 654; Turner v. Goldsmith, [1891] 1 Q. B. 544; Genet v. Delaware & Hudson Canal Co., 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127; Jacquin v. Boutard, 89 Hun, 437, 35 N. Y. S. 496, and supra, § 90