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His relative, whom he went to see, was dead; and now that his cousin had accepted his invitation to come and live with him, he felt an increased solicitude about the future. Sandford's main anxiety now was to provide for Stearine's note, which he felt assured the promisor could not meet.
If a breach of contract were regarded in the same light as a tort, it would seem that if, in the course of performance of the contract the promisor should be notified of any particular consequence which would result from its not being performed, he should be held liable for that consequence in the event of non-performance.
A promise to carry might be made and accepted on the understanding that it was mere matter of favor, without consideration, and not legally binding. In that case the detriment of delivery would be incurred by the promisee as before, but obviously it would be incurred for the sole purpose of enabling the promisor to carry as agreed.
That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged.
But the kind of liability incurred, whether that of indorser, original promisor, or surety, by indorsing a note or guarantying payment, is not the same in all the states. There are sundry other points in the law relating to promissory notes, on which the statutes and judicial decisions are not uniform in all the states. Bills of Exchange; Interest; Usury.
18 When several acts of conveyance or performance are comprised in a single stipulation, if the promisor simply answers: 'I promise to convey, he becomes liable on each and all of them, but if he answers that he will convey only one or some of them, he incurs an obligation in respect of those only which are comprised in his answer, there being in reality several distinct stipulations of which only one or some are considered to have acquired binding force: for for each act of conveyance or performance there ought to be a separate question and a separate answer.
This time-honored contract, like the other debts of Glanvill's time, could be established by witness without a writing, /2/ and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated.
Conversely, a stipulation which originally was perfectly good may be avoided by the thing, which is its object, acquiring any of the characters just specified through no fault of the promisor.
Suppose that the contract is in writing, but does not contain it, does such a previous misrepresentation authorize rescission in any case? and if so, does it in any case except where it goes to the height of fraud? The promisor might say, It does not matter to me whether you knew that your representation was false or not; the only thing I am concerned with is its truth.
25 If a man stipulates for performance on the fulfilment of a condition, and dies before such fulfilment, his heir can sue on the contract when it occurs: and the heir of the promisor can be sued under the same circumstances.
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