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been introduced of adulterous intercourse during the period covered by the indictment, proof of similar acts or improper conduct prior to that time may be received in corroboration. State v. Pippin, 88 N. Car. 646; State v. Markins, 95 Ind. 464; Cross v. State, 78 Ala. 430; Brevaldo v. State, 21 Fla. 789; State v. Way, 5 Neb. 283; Commonwealth v. Durfee, 100 Mass. 146; State v. Marvin, 35 N. H. 22; State v. Henderson, 84 Iowa, 161; Commonwealth v. Bell, 166 Pa. St. 405. This rule constitutes an exception to the general rule of evidence in criminal proceedings, that the commission of other, though similar, offenses by the defendant cannot be proven to show the likelihood of his having committed the offense charged. But, as was said in a recent case, this rule has been, of necessity, specially relaxed in cases where the offense consists of illicit intercourse between the sexes. State v. Markins, 95 Ind. 464. Later the rule was again extended and has now been generally adopted that, on a charge involving illicit intercourse, during a particular period, evidence of acts subsequent to that time, which tend to illustrate or explain similar acts within the particular period, are admissible in connection with evidence of similar acts during the time laid, to prove illicit intercourse as charged. See Brooks v. State, 52 Ala. 24; State v. Bridgman, 49 Vt. 202; Cole v. State, 65 Tenn. 243; State v. Williams, 76 Me. 480; Commonwealth v. Nichols, 114 Mass. 285. This latter extension of the rule however, has not been universally accepted. For instance, some States, like Iowa, refuse to include subsequent acts within the exception to the general rule and hold that where the charge is of one act of adultery to which evidence has been given, the prosecution is not permitted afterwards to introduce evidence of other acts committed subsequently. State v. Donovan, 61 Iowa, 278, citing 2 Greenleaf on Evidence, sec. 47.

LANDLORD AND TENANT-LIABILITY OF LANDLORD FOR DEFECTIVE PREMISES.-One of the most controverted questions of law to-day is the liability of a landlord for the defective condition of his premises. The common law practically excused the landlord from any liability whatever in such cases. But since the late case of Wilcox v. Hines, 100 Tenn. 538, so severely criticised by law journals and annotators, the tendency has been to relax the rule at common law in favor of the tenant and hold the landlord liable, not only for his positive torts, but also for his concealment of latent defects within his knowledge or which ought to be. This tendency is well illustrated by the recent case of Moore v. Parker, 64 Pac. Rep. 75, where the Supreme Court of Kansas held that a landlord is not an insurer or warrantor, nor is he compelled to exercise constant care and inspection; but if he knows that the premises

discoverable to the tenant by the exercise of ordinary care, and he does not inform the tenant of such defective or dangerous place, and injury is occasioned thereby to the tenant or a member of his family who is not aware of such defective or dangerous place, while in the exercise of ordinary care, the landlord is liable to damages.

The facts in this case show that while the plaintiff in error was about her household duties upon said premises, drawing water from a well used for domestic purposes, and located at the residence, the platform around the well gave way, precipitating her into the well, from which she sustained personal injuries. The allegations in the petition, which was held good on general demurrer, were in substance as follows: First, the allegation of the lease between the parties and the occupation of plaintiff thereunder; that the well that was intended for use for domestic purposes, and situated at the porch of the residence, was covered with a wooden platform or planks; that the defendants in error had built the platform over this well, and had constructed it of inferior aud unsuitable material, selected by them for that purpose, and used in its construction by their direction; that the sleepers or stringers under this platform were in a defective and unsafe condition at the time of the leasing and taking possossion by plaintiff in error; that the defendants in error knew this, and, notwithstanding their knowledge, they negligently, fraudulently and carelessly concealed it from the plaintiff, as well as from her husband, the lessee, and failed to disclose said knowledge to the plaintiff or her husband; that the defects in the sleepers or stringers were not obvious, and could not be discovered by the exercise of ordinary care; that the plaintiff in error did not know of such defective material or the dangerous condition of the platform; that in the performance of her household duties she was required to, and frequently did, draw water from this well; and that upon this occasion, about two months after they had gone into possession, she was in the exercise of ordinary care, and while performing her household duties, and in attempting to draw water from this well, the sleepers or stringers under the platform around the well gave way, and she was precipitated into the well, whereby she sustained personal injuries.

The court makes this excellent statement of the rule of law to be applied to such a statement of facts:

"In deciding this question, we are not called upon to determine the liability of the landlord, where he did not have actual knowledge of the defective condition of the premises. A landlord is not [an insurer or warrantor, nor is he compelled to exercise constant care and inspection; but if he knows that the premises which he is about to let are in a dangerous condition, and

form him of such danger and injury is occasioned thereby to the tenant or a member of his family, the landlord is liable in damages. The law requires good faith on the part of the landlord towards his tenant. The defect existed when the premises were leased, and the defendants in error knew this, and intentionally concealed it from their lessee; and, it being a defect not discoverable by the lessee or his family in the exercise of ordinary care and reasonable diligence, we have been unable to find any principle upon which the demurrer should have been sustained. The rule seems to be that in the absence of a contract to repair, or warranty of condition, both landlord and tenant must use reasonable care and diligence. If the tenant neglect such reasonable care and diligence to ascertain the condition of the premises, or, knowing their condition, assumes the risk, then he cannot recover against the landlord. On the other hand, if the landlord actually knows they are unsafe, and conceals or misrepresents their condition, then he is liable; the tenant being in no fault."

The court bases this statement of the law on the following authority: Wilcox v. Hines, 100 Tenn. 538; Edwards v. Railroad Co., 99 N. Y. 249; Coke v. Gutkese, 80 Ky. 598. The case of Wilcox v. Hines, however, goes further than the statement of the court in this case and holds the landlord liable for what he ought to know as well as for what he actually knows. For full discussion of this important question see 52 Cent. L. J. 388.

THE POWER OF ONE PARTY TO AN EXECUTORY CONTRACT TO STOP ITS PERFORMANCE WITHOUT THE CONSENT OF THE OTHER.

It has often been ruled by the courts that one party to an executory contract may rightfully stop performance under it at any stage before full completion, but subject to the liability of responding in damages to the party able and willing to continue its execution. Indeed, it is believed, that in all cases except where equity will enforce specific performance-such instances as a class forming an exception to the general rule-one who is willing to subject himself to the liability for such damages as are recoverable at law for the breach of his contract, has the legal right to stop performance at any point before its full accomplishment. The right is usually denominated the power to stop performance, and notwithstanding its exercise is deemed to constitute a breach of the contract, it nevertheless, to such an extent

changes in law the relations of the parties. interested, that it places the one willing to continue under an entire new obligation, and one not specified in the contract. Such obligation is never stated at less than to refrain from further performance, and often there is superadded the duty of using all ordinary care and making all reasonable exertion to render the injury as light as possible.1 By the exercise of the power mentioned the contract is not put an end to as upon a rightful rescission, but survives in force as a basis of the right to recover damages by the party not in fault. The liability to respond in damages on the part of the party stopping performance, and the right of the party willing to perform to recover damages, constitute the foundation of the power to stop performance accorded by the law to the one party and the obligation thereby imposed upon the other to refrain from performance. The damages awarded by the law to the party not in default for a breach of the contract and the exercise of the power under consideration is nothing other than a breach -are deemed to be the equivalent, measured in money, of the advantages to be derived from complete performance, or as often expressed, full compensation for the injury inflicted. In awarding damages the law aims fully to compensate the party not in fault for the injury suffered. Indeed, from the presumed inadequacy in some instances of the damages recoverable at law to compensate for the injury arises the jurisdiction in equity to decree specific performance. And therefrom also doubtless may be discovered one of the reasons for excepting contracts of which equity will decree a specific performance from the general rule under consideration. However, in all cases where the damages recoverable at law for the breach of a contract are judicially deemed a just equivalent for the injury there seems to exist in favor of the party willing to subject himself to a liability for such damages, the right of stopping performance by the other party to

11 Suth. Dam. 88, and cases cited; Dillon v. Ander- • son, 43 N. Y. 231.

2 Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. Rep. 96; Griffin v. Colver, 16 N. Y. 489; Allison v. Chandler, 11 Mich. 542.

3 Morgan v. Bell, 3 Wash. 554, 28 Pac. Rep. 925, 16 L. R. A. 614; 3 Par. Cont. 350, ch. 11.

4 Marsh v. Blackman, 50 Barb. 333.

the contract at any period.

8

6

In the nature of things the power exists in respect of executory contracts only, and though as before intimated its exercise is deemed a breach of the contract, it seems nevertheless to adhere in and constitute an implied provision or in. cident of the contract itself, and in point of time to continue until the full execution of the contract is accomplished by the party willing to perform. An early case in New York with great force and clearness states the rule and the reason upon which it rests. Of this decision Mr. Bishop, in his work on Contracts, says: "The opinion in this case is brief; it cites no authorities, but in legal argument it is conclusive," and it might be added that no subsequent decision seems to have discovered or suggested any additional reason for the rule. The case was: The defendant delivered a number of paintings to the plaintiff to be cleaned and repaired at certain prices stipulated for each. After the plaintiff had commenced work upon them, the defendant directed him not to go on as he had concluded not to have the work done. The plaintiff, however, finished the work and claimed to recover for the whole, insisting that the defendant had no right to countermand the order. At the trial requests for instructions by each party according to his contention were asked, but the court instructed the jury that inasmuch as the plaintiff had commenced the work before the order was revoked, he had a right to finish it, and to recover the whole value of his labor and for his materials furnished. The verdict and judgment were for the plaintiff. In considIn considering the defendant's exceptions to the charge upon errors assigned, the court says:

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The defendant by requiring the plaintiff to stop work upon the paintings violated his contract, and thereby incurred a liability to pay such damages as the plaintiff should sustain, but the plaintiff had no right by obstinately persisting in the

5 The right is most frequently designated "power," but it is believed inaptly, inasmuch as it seems to be more in the nature of a right or privilege. But it is not necessary to be hypercritical, and so either designation is used at convenience.

Though the statement of the text seemed paradoxical, yet it is believed to be fully justified by the decisions considered, infra, herein.

7 Clark v. Marsiglia, 1 Denio, 317.

8 Sec. 839, note 1.

work, to make the penalty upon the defendant greater than it otherwise would have been. To hold that one who employs another to do a piece of work is bound to suffer it to be done at all events would sometimes lead to great injustice. A man may hire another to labor for a year, and within the year his situation may be such as to render the work entirely useless to him. The party employed cannot persist in working, though he is entitled to the damages consequent upon his disappointment. So if one hires another to build a house, and subsequent events put it out of his power to pay for it, it is commendable in him to stop the work and pay for what has been done, and the damages sustained by the contractor. He may be under a necessity of changing his residence, but upon the rule contended for, he would be obliged to have a house which he did not need and could not use. In all such cases the just claims of the party em. ployed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted; and to persist in accumulating a larger demand is not consistent with good faith toward the employer." The judgment was reversed.

It is noticeable that in the suppositious cases mentioned the court finds reasons excusing the discharge of the laborer and the discontinuance of work upon the house, but in the statement of facts in respect to which the decision was made, no excuse is discovered or referred to. It is, therefore, clearly inferable that the event by which a party is induced to break his contract is not a material subject of inquiry in an action to recover damages for such breach. And to such effect doubtless is the law as disclosed by the tenor of the decisions upon the questions, though the language of some of the common-law prececents would seem to indicate that the rule is otherwise.

Upon the authority of this decision the Supreme Court of Vermont, held where a contract in writing had been entered into to do all of a certain class of work upon three miles of railroad at a specified price per cubic yard, and the plaintiffs had performed a part of it when the defendants directed and requested the plaintiffs to discontinue the 9 Derby v. Johnson, 21 Vt. 17.

further execution of the contract, and they so did, that it was not an abandonment but a breach of the contract. Hall, J., says: "The direction of the defendants to the plaintiffs to quit the work was positive and unequivocal, and we do not think the plaintiffs were at liberty to disregard it. In Clark v. Marsiglia, 1 Denio, 317, it was held, that the employer in a contract for labor had the power to stop the completion of it, if he chose-subjecting himself thereby to the consequences of a violation of his contract; and that the workman, after notice to quit work, had not the right to continue his labor and claim pay for it, and this seems to be reasonable." The court further expounds the reason for the rule as applied to the case before it, and says: "Rather than an injury so greatly disproportioned to that which could possibly befall the workman should be inflicted on the employers, it seems better to allow them to stop work, taking upon themselves, of course, all the consequences of such a breach of their contract. Such we think is and ought to be the law." The decision also holds that it was optional with the plaintiffs to treat the contract as rescinded from the beginning, and, though the defendants urged that the rate of compensation specified in the contract should be the only rule of recovery, it was held that the plaintiffs might recover as upon a quantum meruit for the work done.10 The court reasons that to hold to the rule contended for by the defendants "would impose upon the plaintiffs a contract they have never made." The location of the railroad had been changed from the place where the work was contracted to be done. So there was ample excuse for the direction given not to continue the work. And the same court in a later case," speaking by Peck, J., says: "While a contract is executory, a party has the power to stop performance on the other side, by an express direction to that effect, by subjecting himself to such damages as will compensate

The

in the execution of the contract."'12 contract in this case was for the purchase and delivery of a quantity of potatoes, and a fall in the market price was the reason by which the defendant was induced to direct the plaintiff not to make further purchases. The same principle was applied to a contract between a city and a lighting company,13 wherein it appeared that the city by a resolution of its common council approved by the mayor, declared such contract at an end and wholly rescinded and so notified the company. The court say:14 "As we understand the law applicable in such cases, it gives to the city, notwithstanding the contract, the absolute right, at its own election, to decline to receive any more gas under it, thereby refusing performance on its part.15 And the doctrine has been applied to a contract for future employment and service where the employer at the time the service was to commence absolutely repudiated the contract. 16 The case holds that the remedy of the employee is not in action for wages, but to recover damages for the breach of the contract. So when the state had entered into a contract with an individual for the erection of a public building and afterward the legislature passed an act suspending and discontinuing the work or providing for its performance by other agencies, it was held that the state stands, in this respect, in the same position as an individual, and may at any time abandon an enterprise and refuse to allow the contractor to proceed. Such refusal would be only a violation of its contract. The rule that the remedy is limited to the recovery of damages is applicable to contracts only while they are executory and the consideration for which is entire and not divisible.18 In Butler v. Butler19 the case was:

12 See also Freidlander v. Pugh, 43 Miss. 117, 5 Am. Rep. 781, citing with approval Clark v. Marsiglia, 1 Denio, 317.

13 City, etc. v. The Nebraska, etc. Co., Neb. 339, N. W. Rep. 870.

14 Lake, J., writing the opinion.

15 Citing Clark v. Marsiglia, 1 Denic, 317.

16 Howard v. Daly, 61 N. Y. 362.

The plaintiff contracted to erect on the defendant's premises a complete machine all ready to make gas. The defendant agreed to pay freight on the machine and to furnish tank and house and pay $1,500 "when the works are on the ground." The plaintiff shipped the materials and parts of the machine which the defendant received and paid the freight thereon, but did not permit the plaintiff to put up the machine. The court held that an action to recover the contract price was not maintainable; that as the contract was entire and had not peen performed, and as the contract price was not divisible no recovery could be had for any portion of it. The delivery of the parts only did not constitute the delivery of a complete article ; the property of such parts did not vest in the defendant and the consideration or contract price not being divisible the plaintiff's only remedy was to recover damages for a breach of the contract.20 To the same effect is Hosmer V. Wilson, 21 wherein Christiancy, J., after stating the reason assigned for the holding in Clark v. Marsiglia, says: "This doctrine is fully approved in Derby v. Johnson above cited.22 This would seem to be good sense and, therefore, sound law. And it would seem that any other rule must tend to the injury and, in many cases, to the ruin of all parties." The rule has been approved in Massachusetts.23 The court says: "A party to an executory contract may stop its performance by an explicit order, and will subject himself only to such damages as will compensate the other party for being deprived of its benefits." And the explicit order or notice would be sufficient if given to such agent or employee as was authorized to stand in the place of and represent his principal in the particular branch of his business connected with the subject of the contract, though such notice should never come to his personal knowledge.24

And again the question was directly presented to the Supreme Court of North Dakota in 1892.25 Corliss, C. J., writing for

20 Citing Ichbald v. The Western, etc., 17 C. B. (N. S.) 733; Blanch v. Cocheran, 8 Bing. 14.

21 7 Mich. 204.

the court, says: "The utmost that can be urged is that he (the defendant) arbitrarily refused to perform his part of the contract. This would subject him to an action for damages for breach of the contract. But the plaintiffs could not, in the face of this refusal, undertake to carry to completion the work and insist that they were entitled to recover from the appellant his share of the contract price. The authorities are very clear on this point."2 The defendants were two of a large number of subscribers agreeing to contribute specified sums towards the contract price of a creamery to be built by the plaintiffs. No reason is assigned for the defendant's countermand of his subscription. He acted arbitrarily.

And, the same year the question came before the Supreme Court of Minnesota. The general principle is fully affirmed upon the authority of the case of Davis V. Bronson, just cited and of some of the decisions in note 25, supra. Collins, J., continuing says: "The legal right, on general principles, of either party, to violate abandon, or renounce his contract, on the usual terms of compensation to the other for the damages which the law recognizes and allows-subject to the jurisdiction of equity to decree specific performance in proper cases-is universally recognized and acted It should be noted also that in upon. ''28 this instance no reason, other than the arbitrary will of defendant, is found or required justifying the exercise of the right. In each of these actions the contract price was sought to be recovered.29

26 Citing Bishop. Cont., secs. 837 841; Danforth v. Walker, 37 Vt. 239, 40 Vt. 257; Moline Co. v. Beed, 52 Iowa, 307, 3 N. W. Rep. 96; City of Nebraska v. Coke Co., 9 Neb. 339, 2 N. W. Rep. 870; Clarke v. Marsiglia, 1 Denio, 317; Butler v. Butler, 77 N. Y. 473.

27 Gibbons v. Bente, 51 Minn. 499, 53 N. W. Rep. 756.

28 Citing Bishop, Cont. par. 837; Leake, Cont. 868, 1044; 1 Suth. Dam. 113; 2 Suth. Dam. 193, 526; Hickley v. Steele Co., 121 U. S. 264, 7 Sup. Ct. Rep. 875; Ins. Co. v. McAden, 109 Pa. St. 399, 1 Atl. Rep. 256; Frost v. Knight, L. R. 7 Exch. 112; Roper v. Johnson, L. R. 8 C. P. 167; Laird v. Rim, 7 Mees. & W. 474; Hochster v. Dela Tour, 2 El. & Bl. 678.

29 The cases cited from North Dakota and Minnesota were upon the same general form of contract, only differing in names and location. A motion for a

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