A party cannot recover restitution for total failure of consideration while a valid contract remains on foot, but continued non-performance of essential obligations over an extended period may evidence mutual abandonment or repudiation sufficient to terminate the contract without a formal notice making time of the essence. A prayer for specific performance in earlier versions of a statement of claim does not constitute an irrevocable election against restitutionary relief where the claims have not been brought to judgment. An application to re-open a judgment before entry of orders will fail where the arguments said to have been overlooked were in fact considered and rejected.
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