La Salle Extension University v. Ogburn

Walker, J., after stating the case: There is no merit in the defense. A recovery is resisted simply on the ground, which .is the sum and substance of it, that plaintiff charged $1 more in the statement of the account than he thought was the amount due by him. This $1 was the express charges “on the text,” which is expressly allowed to the plaintiff in the contract, and had been prepaid by it. The language of the agreement in this respect is: “Express charges on text to be prepaid by the university and included in my account.” The statement sent to the defendant was correct, but if not so, because of the $1 item being inserted in it, the defendant could not abandon the contract, but should have paid what was then due on it and declined to pay the $1. He would then have been within the law, but when he repudiated the contract entirely he certainly went too far and beyond the pale of the law. The overcharge, if any was made, did not warrant his refusal to pay anything, or was no such breach of the contract, if breach at all, as justified his conduct. Nor could defendant break the agreement by refusing to pay, and compel the plaintiff to sue at once for his damages. The latter may-refuse to treat the renunciation by the other party as a breach, and may continue to perform the contract in omnibus, as it is expressed, to the time when full performance on his part is required by its terms, or he may elect to sue at once for the breach, the option being his to adopt either course at his will. A party is entitled to the full benefit of the contract if he claims it. We said, in Edwards v. Proctor, 173 N. C., 41: “When parties enter into a contract for the performance of some act in the future, they impliedly promise that in the meantime neither *431 will do anything to the harm or prejudice of the other, inconsistent with the contractual relation they have assumed. The promisee, it also has been said (and this seems to be the better reason), has an inchoate right to the performance of the bargain, which becomes complete when the time for such performance has arrived, and meanwhile he has a right to have the contract kept open as a subsisting and effective one, as its unimpaired and unimpeached efficacy may be essential to his interests,” citing Clark on Contracts (1904), pp. 445, 447; Frost v. Knight, L. R., 7 Exch., 111. The subject is fully discussed in the principal case. In Vittum v. Estey, 67 Vt., 158, the Court says: “As to a breach by renunciation, it is settled law in England and in many jurisdictions here that when one party to a bilateral contract, before the time of performance on his part has arrived, repudiates the entire contract, or a part of it that goes to the whole consideration, and declares that he will no longer be bound by it, the other party may, if he pleases, act upon the declaration and treat the contract as thereby broken and at an end for all purposes except for bringing a suit upon it, which he may bring at once, without waiting for the time of performance.” So we see that the innocent party has an election to proceed with the execution of the contract until there has been full performance by him and then sue for damages, which will extend to the whole contract and will compensate for the benefit he would have derived therefrom if the delinquent party had also kept his promise and fully performed his part of the agreement. 9 Cyc., at p. 637, says: “The renouncing party cannot force the. other, nor is the other bound, to sue for a breach of the contract before the day fixed for performance arrives, and have the damages assessed as of the time of the renunciation. The party keeping the contract, in other words, need not mitigate the damages by treating as final the premature repudiation.” This is the general rule, and while there may be a few cases apparently looking the other way, it will be found upon a close examination of their facts that they are made exceptions to the rule because of special circumstances which made it inapplicable. The rule holds good where, if there is a renunciation, the damages recoverable in an action for the breach before the full time of performance has arrived will not be an adequate compensation for' the same. There may be exemptions from the operation of the general rule in- cases where the claims of the injured party can be satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted. Marsh v. Blockman, 50 Barb. (N. Y.), 329; Watson v. Smith, 7 Oregon, 448. Here the money was payable in installments as the work was periodically done, and the case is like Smith v. Lumber Co., 142 N. C., 26. But it is not necessary to invoke this principle in order to decide our case, as the contract expressly provides that in the event of any one *432 installment not being paid for sixty days after it becomes due, and without the consent of the university, the unpaid balance of the amount payable, under the terms of the contract, shall immediately become due. We see nothing in the correspondence indicating that the plaintiff made any excessive demands upon the defendant or called for more than was due. The statement sent at first to defendant was manifestly intended to show what was due in all, and not as a demand for more than the installment, which was then payable. In his eagerness to rid himself of an undesirable bargain, he unconsciously misconstrued his own deliberate contract, which is plainly expressed to the contrary of what he contends is its proper meaning. If he had appealed to the generosity of his creditor, instead of repudiating his solemn agreement, he would perhaps have received a more acceptable response from it, and one which might have relieved him of his present embarrassment; but this was not done, and we must view the situation in the clear light of the law. The case comes within the principle of Teeter v. Horner Military School, 165 N. C., 767. The objection to the statement of the account as evidence under the statutes (Revisal, sec. 1625, and Public Laws 1917, chap. 32) cannot be sustained. It is answered squarely by the terms of those acts. This is “an account for goods sold and delivered, for services rendered and labor performed,” which is the language of the Public Laws of 1917, chap. 32. It was ratified 12 February, 1917, and took effect from that time. The trial took place 22 February, 1917, so that the act applies to this case and brings it within the principle stated in Carr v. Alexander, 165 N. C., 665. There is really no disputed fact in this case, and the charge of the court, therefore, was correct, both in form and substance, and it follows that the motion for a nonsuit was properly denied. If the defendant could dictate to the plaintiff when their contract should cease and be determined, and could correctly and legally insist that he was liable only for damages at the time of the breach, and not to the full extent of the benefit which would have accrued if the contract had been fully performed according to its terms, as settled by the parties, it would seriously impair the value of contracts. In Teeter v. Horner Military School, supra, we said, in regard to a similar contract, where there was an advance payment for a period of the school term which was unexpired when plaintiff’s son was expelled for good cause: “An examination of our cases, while they do not deal with the subject in every phase presented in this record, will show that we have substantially approved the doctrine as already stated. It is founded upon justice and common sense, and should prevail, as in no other way could our schools be successfully conducted,” citing Horner & Graves v. Baker, 74 N. C., 65; Horner School v. Westcott, 124 N. C., 518. A contract is not *433 made to be broken, but to be kept, and it is implied that neither party will do anything to prevent this performance or to disappoint the just expectation of the other party that it will be carried out in accordance with its terms. It may also be said that defendant could not reject a part of the contract and accept another part. He could not keep that which was beneficial, viz., the text-books sent to him, and refuse to perform the part which he did not like. He must reject all or none, as this is the essence of fairness. Publishing Co. v. Barber, 165 N. C., 478; Rudasill v. Falls, 92 N. C., 222; 31 Cyc., 1257, 1258; Brimmer v. Brimmer Co., at this term. There is no harshness in requiring the defendant to do what he promised should be done by him, and it is no reason, in law or in morals, for breaking the contract that he had acted improvidently in making it. The defendant did not even ask that he be allowed to compensate the plaintiff as of the time of the breach by him, but repudiated the contract and broke off relations with the plaintiff, refusing peremptorily even to answer its letters, which were conciliatory in their tone. There was no error committed at the trial of the case. No error.