^ 
 
Kf 
 C9i 
 
 QJorn^U ICam Btl^anl ICthtatg 
 
KF 826.CM"*""'"'"™'*>"-"'"'y 
 
 
 DATE DUE 
 
 
 
 — 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Demco, Inc. 38-293 
 
M Cornell University 
 M Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018822563 
 
u (^^? ^ 
 
 THE 
 
 PERFORMANCE OF CONTRACTS 
 
 A SUMMARY 
 
 OF X 
 
 CONDITIONS IN CONTRACTS 
 
 AND 
 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 BY^^^ll 
 
 GEORGE P. ^OSTIGAN, Jr. 
 
 Profbssok op Law in Nobthwestern Univebsity. 
 
 CHICAGO 
 
 T. H. FLOOD & CO. 
 1911 
 
Cornell University Law Library. 
 
 THE aiPT OF 
 
 (^^/.A^^^^ 
 
 Date J, 
 
 '^..•...Z..f...L^ 
 
THE 
 
 PERFORMANCE OF CONTRACTS 
 
 A SUMMARY 
 
 OF 
 
 CONDITIONS IN CONTRACTS 
 
 AND 
 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 BY 
 
 GEORGE P. COSTIGAN, Jr. 
 
 Phofessoe of Law in K^obthwestbrn University. 
 
 CHICAGO 
 
 T. H. FLOOD & CO. 
 
 1911 
 
°^, /z,/^ 
 
 COPYKIGHT, 1911 
 BY 
 
 Geoege p. Costigan, Jk. 
 
CORNELL UWIVEKSlTl 
 
 JUL 29 1912 
 LAW LIEfiAfiY. 
 
 PREFACE. 
 
 This is a revision and enlargement of an article on Conditions 
 in Contracts whicli appeared in the Columbia Law Review for 
 March, 1907. That article was written for the purpose of assist- 
 ing students to understand a troublesome part of the law of Con- 
 tracts and has served that purpose well enough to make a revision 
 desirable. In the revision various new paragraphs or "rules" 
 on conditions in contracts have been added, and the subject of 
 impossibility of performance has been covered, necessitating a 
 new title. The inaccuracies found in the original article have 
 been corrected and some matters that seemed obscure have been 
 explained more fully. Only a brief summary of the law relating 
 to the performance of contracts, with the minimum of citation of 
 authorities, has been attempted. The specific performance of 
 contracts is not included. The summary is intended to be service- 
 able to those only who read with care the important cases. The 
 references to 1 W. and 2 W. are to the designated volumes of Wil- 
 liston's Cases on Contracts. For further explanation of this sum- 
 mary, the reader is referred to Note 1, post. 
 
THE 
 
 PERFORMANCE OF CONTRACTS. 
 
 PART I 
 
 CONDITIONS IN CONTRACTi 
 
 PRELIMINARY DISTINCTION BETWEEN CONDITIONS 
 RELATING TO THE EXISTENCE OP CONTRACTS 
 AND CONDITIONS RELATING TO PERFORMANCE 
 UNDER ADMITTEDLY EXISTING CONTRACTS. 
 
 Contracts are clwses in action, which means that they come into 
 existence as property of a transient and peculiar nature. The 
 very existence of a contract may be made by the parties to depend 
 upon a contingency, i. e., the happening of the contingency may 
 be necessary before there can be any contract, or, on the other 
 hand, the happening of the contingency may be made to termi- 
 
 1 When the late Professor Langdell was teaching at the Harvard Law 
 School, he privately printed for the use of his classes certain "Rules 
 on Conditions in Contracts." Those "rules" (which are found in Ap- 
 pendix B post) were designed to meet a need of law students which 
 has not yet adequately been provided for, and have constituted the in- 
 spiration and the foundation of this article. The increasingly import- 
 ant field of the performance of contracts with which rules on conditions 
 have to do has been somewhat slighted by later text writers, who 
 have either been too much inclined to treat conditions simply as a 
 relatively unimportant branch of the law of the discharge or breach 
 of contracts, or else, if they have realized fully the importance of the 
 subject, have failed to emphasize the essentially equitable nature of con- 
 ditions implied by law and the difference between them and express 
 
2 PERFORMANCE OP CONTRACTS. 
 
 nate the contract as a whole. With such conditions this article 
 has very little to do, for it is concerned primarily with the per- 
 formance of contracts which actually exist, and which continue to 
 exist until full performance is had or a breach of performance 
 takes place and the cause of action which thereupon arises is 
 merged or discharged and therefore deals principally with condi- 
 tions, which go to performance under existing contracts. But per- 
 haps it will conduce to clearness of understanding of the problems 
 connected with those conditions which go to performance under 
 existing contracts, if preliminary to the statement of the rules 
 applicable to such conditions, and preliminary even to the defini- 
 tion of terms, a word is said about conditions which go to the ex- 
 istence of contracts. 
 
 Conditions going to the existence of contracts may be either 
 those imposed by law or those prescribed by the parties. As in- 
 stances of conditions which the law imposes and which must be 
 complied with before a simple contract comes into being may be 
 noted the necessity of ofEer and acceptance and of consideration. 
 
 In the case of conditions prescribed by the parties, it may be a 
 difficult thing to determine whether the happening of the fact or 
 event made a condition is to precede the existence of the contract 
 or whether the contract is to exist at once and the happening of 
 the fact or event is to cut its existence short. Indeed, except for 
 certain practical consequences under the law of pleading and the 
 law of evidence, the question of whether the condition is prece- 
 
 or implied in fact conditions. No attempt is made here to cover tlie 
 wliole field of conditions, or of impossibility of performance, nor to re- 
 fer more than briefly to the authorities, but it is sought to furnish 
 clear definitions and then to state in the form of "rules" or brief num- 
 bered paragraphs the important doctrines. In framing the "rules" or 
 paragraphs the writer has made an effort to give credit to Professor 
 Langdell wherever possible, and in a number of instances Professor 
 Langdell's wording, which Is characteristically exact and illuminating 
 in those cases where his conclusions can be accepted, has been retained 
 with such modifications as seemed necessary, even though he would not 
 have approved of the modifications. Whatever of value the rules 
 may have that is not attributed to Professor Langdell should be cred- 
 ited to Professor Williston, imder whom the writer first studied the 
 law of Contracts and to whose notes in his excellent collection of 
 cases and in his valuable edition of Wald's Pollock on Contracts fre- 
 quent reference is made. 
 
CONDITIONS IN CONTRACT. 3 
 
 dent or subsequent is, as a contract question, of little importance, 
 though if the contract is one involving the title to property, it 
 may be, as a property question, of very considerable importance. 
 Attention is invited to the following statement of the matter in 
 Williston on Sales : 
 
 "A contract to sell may in terms at least be subject to a con- 
 dition subsequent, but the legal effect of such a condition is gen- 
 erally that of a condition precedent. Thus if A a^ees to sell B 
 goods on January 1st, subject to a proviso that if war is declared 
 before that date the contract shall be thereby terminated, the con- 
 tract is by its terms to exist until and unless something happens, 
 which will thereupon terminate the contract. But the legal ef- 
 fect of this bargain is not altered for any purpose except plead- 
 ing [and evidence] if it be put with a condition precedent as fol- 
 lows : A agrees to sell and B to buy goods on January 1st if war 
 has not been previously declared. Other conditions subsequent 
 in form in contracts may similarly be restated in the form of con- 
 ditions precedent. This results from the fact that there can 
 rarely be any material difference between the termination or di- 
 vesting of a contract by a condition subsequent on the one hand 
 and the impossibility of liability arising on the contract because 
 a condition precedent has not happened and cannot happen on 
 the other. It is only where a transfer of property, whether real 
 or personal, has been made that conditions subsequent become 
 important. ' ' ^ 
 
 But for purposes of pleading and of proof it may be important 
 to determine the nature of the condition. For instance, in speak- 
 ing of the rule adopted in a number of jurisdictions that the of- 
 ferer of a unilateral contract of guaranty must be notified within 
 a reasonable time by the guarantee that the act relied on as an 
 acceptance has been given or recovery cannot be had against him, 
 Professor Harriman says : 
 
 ' ' The contract is complete when the consideration is furnished, 
 that is, when the guarantee makes advances, but failure on the 
 part of the guarantee to take reasonable steps to notify the guar- 
 antor of such advances within a reasonable time will discharge 
 the guarantor. Failure to give notice is therefore a condition 
 subsequent, putting an end to the contract; yet the anomalous 
 
 2 Williston on Sales, sec. 8. 
 
4 PERFORMANCE OP CONTRACTS. 
 
 rule has been laid down by the highest authority that the guar- 
 antee is bound to prove that he has given notice [citing Douglass 
 V. Reynolds (1833), 7 Pet. 113]. Logically, of course, it should 
 be for the guarantor to show that he has received no notice, and 
 is therefore discharged from the obligation which comes into ex- 
 istence as soon as the advances are made by the guarantee. ' ' * 
 
 In this passage, the condition subsequent which Professor Har- 
 riman is talking about is not strictly a condition relating to per- 
 formance under the contract, but instead is a condition either 
 precedent to the existence of the contract or terminating its ex- 
 istence before a default on the part of anybody has taken place 
 under it. Whether the notice is precedent to the existence of the 
 contract — that is whether the offer of contract can be accepted in 
 any other way than by making the advance asked and also by 
 giving notice in the way required by the rule — or whether the 
 contract is completed by the doing of the act and therefore the 
 failure to give the notice cuts short its existence is a question of 
 some theoretical difficulty. While the writer agrees with Profes- 
 sor Harriman's construction of the condition as one relating to 
 the termination of a unilateral contract which comes into exist- 
 ence by the making of an advance in reliance on the offer, it would 
 seem to be equally logical to regard' the giving of the notice in 
 the way required as an essential part of the acceptance, i. e., to 
 regard the making of an advance in reliance on the offer and the 
 giving of the proper notice as both prerequisite to the existence 
 of a contract. If the latter view is taken, then, of course the 
 guarantee must prove that he gave the proper notice, or he can- 
 not recover, since unless he gave the notice there was no contract. 
 If, however, as seems the better view, not because it is more logi- 
 cal but because, as Professor Langdell pointed out, it is more 
 just,^ the giving of notice is not a condition precedent to the ex- 
 
 3 Harriman on Contracts, 2 ed. sec. 149. 
 
 * "Sometimes the consideration for a promise is of such a nature 
 that the promisor will have no sure means of knowing whether or not 
 it has been performed, unless he is informed by the promisee; and 
 this will frequently be a sufficient reason for holding the offer to con- 
 tain an implied condition that notice shall be given of the performance 
 of the consideration within a reasonable time after it is performed. 
 Such a condition, however, will not suspend or postpone the making 
 of the promise until the notice Is given; for that is not necessary for 
 
CONDITIONS IN CONTRACT. 5 
 
 istence of the contract, but the failure to give the proper notice 
 puts an end to the contract which arose when the advance waa 
 made in reliance on the offer, the condition of course is subse- 
 quent. If that view is taken, it is proper to put on the guar- 
 antor the burden of showing that he received no notice, or prob- 
 ably even that none was sent, though the failure to receive notice 
 should make out a prima facie case that none was' sent."* 
 
 Conditions going to the existence of the contract are sometimes 
 called ' ' external conditions, ' ' and thus are contrasted with those 
 •conditions which are in the contract, or are read into it by the 
 court and which are therefore called "internal conditions."* 
 
 the protection of the offerer, and it would work an injustice to the 
 offeree. The promise, therefore, will arise (and the offerer's power 
 to revoke will cease) the moment that the consideration is performed, 
 but the liability of the promisor will depend upon his receiving notice 
 pursuant to the Implied terms of the offer. In other words, the con- 
 dition contained in the offer will be imported into the promise. Thus 
 if A offers B to become guarantor for C to a certain amount, if B will 
 give C credit to that amount, A will become guarantor as soon as the 
 credit is given, but his guaranty may reasonably be held to be condi- 
 tional upon his receiving notice within a reasonable time afterwards 
 that the credit has been given." — Langdell's Summary of Contracts, 
 sec. 6. 
 
 5 That sending notice may be enough even though the notice never 
 reaches the guarantor, see Bishop v. Eaton (1894), 161 Mass. 496. 
 
 Harriman on Contracts, 2 ed., sees. 300, 304. For reasons stated in 
 note 12 post, Professor Harriman regards conditions implied by law as 
 implied on the theory that the parties intended them, and this idea 
 colors his definitions of external and of internal conditions. An ex- 
 ternal condition is said by him to be one created by the law instead of 
 "by the contract of the parties, i. e., is a fact which the law treats as 
 a condition without regard to the Intention of the parties (sec. 300). 
 An internal condition is defined by him as "a condition inserted by 
 the parties, expressly or by implication, in the contract itself, as dis- 
 tinguished from a condition imposed by law," and the statement is 
 made that "internal conditions alone are usually treated under the 
 head of conditions" (sec. 304). As Professor Harriman's theory of 
 conditions implied by law is contrary to the view of such conditions 
 presented in this article, his definitions of external and of internal 
 conditions are not accepted; but the terms external and Internal as 
 applied to conditions are appropriated as an aid in the making of 
 Tight distinctions. 
 
6 PERFORMANCE OF CONTRACTS. 
 
 B. 
 
 DEFINITIONS. 
 
 A party to a contract may promise to perform his part of the 
 contract under any and all circumstances, i. e., he may promise 
 absolutely, or he may promise to perform upon a contingency, 
 i. e., he may promise conditionally. Moreover, he may seem to 
 promise absolutely, and the courts may say that the apparently 
 absolute promise is really conditional. It is desirable, therefore,, 
 to get at the start a definition of a condition. 
 
 (a) Conditions. 
 
 "A condition is a fact or event, which must [accompany ^ or] 
 precede some change in the legal relations of two [or more] par- 
 ties. To constitute a condition, however, the fact in question 
 must be uncertain. * * * The uncertainty in regard to a. 
 fact which makes that fact a condition, need not be objective un- 
 certainty ; it is sufficient if that uncertaiaty exists in the mind of 
 the party who seeks to treat that fact as a condition. ' ' * 
 
 While Professor Langdell insisted,* and there is authority for 
 that view, that a fact or event must be future as well as uncertain 
 before it can be a condition. Professor Harrimau would seem to 
 be right in saying that uncertainty in the minds of the parties is. 
 enough.^" 
 
 If only a contract conditioned upon a present or past fact is not 
 illegal as constituting a wager, the same public policy upholds it 
 because of the uncertainty in the minds of the parties as confirms 
 
 7 This addition is supplied not because it is necessary nor because 
 tbe author quoted would accept it as proper, for he probably would not 
 do so, but simply in order not to prejudice the argument hereinafter- 
 made for the retention of the descriptive phrase "conditions concur- 
 rent." 
 
 8 Harriman on Contracts, 2 ed., sec. 299. 
 
 6 Langdell's Summary of Contracts, sec. 26. 
 
 10 Seward and Scales v. Mitchell (Tenn. 1860), 1 Coldwell, 87, and; 
 cases pro and con cited in 1 W. (Williston's Cases on Contracts) 268^ 
 n. 1. 
 
CONDITIONS IN CONTRACT. 7 
 
 the validity of the compromise of an unfounded but honestly en- 
 tertained claim that is not frivolous." 
 
 (&) Express and Implied Conditions. 
 
 Conditions are classified in several ways. According to one 
 classification, conditions are either 1, express; or 2, implied. 
 
 1. Express Conditions. 
 
 An express condition is one stated or written out, in explicit 
 terms. A condition will be express even though words of con- 
 dition are not used if, on a fair construction of the contract, it is 
 ascertained that the parties actually expressed an intention that 
 the condition should be attached to the promise. Or, as Profes- 
 sor Langdell phrased it in his Rules on Conditions: "An express 
 condition, as its name imports, is one of which the evidence must 
 be found in the language of the parties when read in the light of 
 surrounding circumstances. ' ' ^^^ 
 
 2. Implied Conditions. 
 
 An implied condition is one which is not expressed in terms but 
 which is nevertheless regarded as a part of the contract. 
 
 Implied conditions, like implied promises, are divided into 
 those (1) implied by law; and (2) implied in fact. 
 
 (1) Conditions Implied by Laiv. — Conditions implied by law 
 are those read into the contract by the courts to meet the needs of 
 justice. This is how they differ from express conditions and 
 from conditions implied in fact, both of which rest on the real 
 or supposed actual intention of the parties. Conditions implied 
 by law are conditions supplied by the court to govern in situa- 
 tions for which the parties did not expressly provide, because 
 for one reason or another they never contemplated, or at least, 
 gave no intimation that they contemplated, that the situations 
 would arise. They are conditions which rest not on any intention 
 which the parties had, but on that fair dealing which the court 
 should require as between litigants. As will be noted later also. 
 
 11 For the conflicting cases on this question of compromise see 
 Callisher v. Bischoffsheim (1870), L. R. 5 Q. B. 449, and cases cited in 
 1 W. 298, n. 
 
 iia See Appendix B post. 
 
S PERFORMANCE OF CONTRACTS. 
 
 conditions implied by law ought to have been treated by the 
 courts as in the nature of equitable defenses based upon non-per- 
 formance by the party who is said to break the condition, since in 
 each case the other party says in effect to the wrongdoer: "You 
 have not performed your promise [or "you are not going to per- 
 form your promise,"] and hence it is not fair to compel me to 
 perform" ^^ Such conditions are not found by construction, but 
 result from the application of equitable principles. 
 
 12 The writer has borrowed this doctrine from Professor Williston, 
 who insists to his classes that: "The fundamental equity that one 
 party should not he compelled to perform his promise when he has not 
 received or is not going to receive what was promised him in exchange 
 is the basis of conditions implied by law." The fact that the writer 
 adopts Professor Williston's view of conditions implied by law in pref- 
 erence to that of Professor Langdell, who seems not to have had to ^ts 
 full extent the equitable defense conception of conditions implied by 
 law, will explain for the most part why he rewords some of Professor 
 Langdell's rules on conditions and adds exceptions to others. 
 
 It should be noticed that Professor Harriman does not agree with 
 this description of conditions implied by law. He says: "It has been 
 urged by Professor Keener [Quasi-contracts, p. 225] that the con- 
 ditions implie'd by law are not true conditions, because they are only 
 found when the party to a contract has failed to protect himself by 
 the insertion of express conditions. With regard to a certain class of 
 conditions, which are really external to the contract, this criticism is 
 sound; but with reference to internal conditions it is not well taken. 
 Internal conditions are always gathered from the contract itself, and 
 ■when they are implied by the law they are always implied because 
 the law supposes that the intention of the parties is to treat a given 
 fact as a condition, even though they have not manifested that inten- 
 tion in express words. The fact that the court always tries to discover 
 the intention of the parties by looking at the entire contract, and that 
 such intention is the sole rule for determining whether a given fact is 
 or is not a condition, shows clearly that an internal condition implied 
 by law is just as much a part of the real contract of the parties as if 
 the condition had been set forth in express words. When the court 
 goes beyond the contract itself, however, as It sometimes does, and 
 attempts to introduce conditions which cannot possibly be based upon 
 any construction of the contract, then it is not enforcing the contract 
 obligation, but is modifying that obligation by taking other things 
 than the contract into consideration." Harriman on Contracts, 2 ed., 
 sec. 315. 
 
 But in the passage just quoted Professor Harriman seems to in- 
 dulge in a fallacy. Express internal conditions and internal condl- 
 
CONDITIONS IN CONTRACT. 9 
 
 But since the plaintiff must allege and prove compliance with 
 the ' ' conditions implied by law ' ' before he can recover, and since 
 historically they have been treated as conditions, it seems neces- 
 sary to continue to treat them as such. 
 
 (2) Conditions Implied in Fact. — A condition implied in fact 
 is a condition which from the nature of the case must be per- 
 formed in order that the promise of the other party may be per- 
 formed, although the condition is not expressly stated.^^ 
 
 Conditions implied in fact are for all practical purposes to be 
 treated in the same way that express conditions are, and there- 
 fore must be strictly complied with. Conditions implied by law. 
 
 tions Implied in fact of course depend upon the intent of the parties 
 revealed in the very terms of the contract made hy them or necessarily 
 deduced from those terms, but internal conditions implied by law can 
 be said to do so only by resort to a Action. The court, in implying 
 the last mentioned interna;! conditions, asks what would have been 
 the intention of the parties if the unprovided for contingency to be 
 met had suggested itself to their minds and if they had been actuated 
 by just motives. Now that is a very different thing from the query 
 which the court propounds in the case of internal conditions express 
 or implied in fact, for in regard to such conditions the court asks, 
 what do the terms of the contract made by the parties show that they 
 actually intended should govern in the contingency which arose? 
 Professor Harrimaa confuses a fictitious or constructive intent with 
 actual intent, and therein lies his error. Professor Keener's doctrine 
 that conditions implied by law are not based on the supposed actual 
 intent of the parties would seem to be perfectly sound. 
 
 13 "If a covenant or promise cannot be performed except upon the 
 happening of a certain event, the covenant or promise is necessarily 
 conditional upon the happening of that event, and the condition [if not 
 express] may be sard to be implied in fact." — Langdell's Summary of 
 Contracts, sec. 41. Examples of such conditions are promises by the 
 defendant to perform work under the direction of a surveyor to be 
 appointed by plaintiff (Coombe v. Greene (1843), 11 M. & W. 480), or 
 to manufacture by a designated date goods in assorted sizes as ordered 
 by the buyer (Ault v. Dustin (1897), 100 Tenn. 366), or to put coal free 
 on board plaintiff's ships (Armitage v. Insole (1850), 14 Q. B. 728), 
 performance being impossible until plaintiff names a surveyor, or the 
 buyer orders the sizes wanted, or the plaintiff furnishes ships. As 
 Coleridge, J., said in Armitage v. Insole, ante: "Where circumstances 
 left uncertain by the contract are of such a nature that one party can- 
 not perform his part of the contract until they are fixed, the other 
 party, insisting on the contract, ought to fix those particulars." 
 
10 PERFORMANCE OF CONTRACTS. 
 
 on the other hand, need not be strictly complied with, and only a 
 material breach of such a condition by one party to the contract 
 will excuse performance by the other. As conditions implied by 
 law are on the whole more just to the party who breaks them than 
 are conditions implied in fact, in case of doubt a condition should 
 be deemed to be implied in law rather than implied in fact.^* 
 
 Conditions implied in fact differ from express conditions in 
 general only in being found by inevitable inference rather than 
 in express language, and there would seem to be good reason for 
 saying that this constitutes a distinction without a difference. In 
 any event the separate name is detained here only because it per- 
 haps aids clearness of thought to draw an analogy between express 
 contracts and express conditions, implied in fact contracts and 
 implied in fact conditions, and quasi-contracts and conditions im- 
 plied by law. 
 
 (c) Conditions Precedent, Concurrent and Subsequent. 
 Conditions are also divided in point of time into 1, Conditions 
 precedent ; 2, Conditions concurrent ; 3, Conditions subsequent. 
 
 1. Conditions Precedent. 
 
 A condition precedent, as applied to a condition which goes to 
 performance under a contract in distinction from a condition 
 which goes to the existence of a contract, is a fact or event which 
 must take place or be waived before the party whose performance 
 it is to precede owes such performance, i. e., before he must per- 
 form or be in default under the contract and liable to an action 
 therefor.^" Any fact or event which is capable of being a condi- 
 
 1* "The term 'implied conditions' Is applied ambiguously in the law 
 both to conditions intended by the parties but not expressed in so 
 many words, [such conditions being really express conditions] and 
 more often to conditions imposed by law because of the inherent in- 
 justice of allowing a promise on one side of a bilateral contract to be 
 enforced when the counter-promise has been broken. These types of 
 condition shade into one another by imperceptible gradations, and in 
 contracts to sell especially it is frequently not easy to say absolutely 
 to which type a particular case belongs." — Williston on Sales, sec. 187. 
 
 10 In Harriman on Contracts, 2 ed., sec. 301, it is stated that "A fact 
 or event which giiives rise to a right Is called a condition precedent." 
 But as this definition would Include, and probably was worded ex- 
 pressly to include, what hereinafter are designated as conditions concur- 
 
CONDITIONS IN CONTRACT. H 
 
 tion of any kind may be a condition precedent, but generally the 
 fact or event consists of some act to be done by the covenantee or 
 promisee. 
 
 2. Conditions Concurrent. 
 
 Conditions concurrent, otherwise known as "mutually depen- 
 dent" conditions,^" are those where the performance on each side 
 of the contract is conditional upon simultaneous performance on 
 the other side. 
 
 "A concurrent condition must consist of some act to be done 
 by the covenantee or promisee which can be done at the same mo- 
 ment that the covenant or promise is performed." ^^ 
 
 A typical case is a contract for a purchase and sale, where the 
 money is to be paid for the article and the article to be handed 
 over for the money — the exchange being simultaneous. 
 
 Some writers insist that conditions concurrent are only a spe- 
 cies of conditions precedent, since "an offer to perform the act 
 called a condition concurrent" is necessary to put the other party 
 to the contract in default.^^ The fact or event which must pre- 
 cede the change in the legal relations of the two parties here is a 
 tender of performance by the one seeking to put the other in de- 
 fault. It is highly desirable, however, to retain the distinction 
 between conditions concurrent and conditions precedent because 
 it aids clear thinking to classify those cases where only an offer to 
 perform need be averred and shown separately from those where 
 actual performance must be averred and proved. 
 
 "The distinction between express conditions, conditions im- 
 plied by law and conditions implied in fact are as applicable to 
 concurrent conditions as to conditions precedent, though much 
 the greater number of concurrent conditions are implied by 
 law."" 
 
 Wherever possible concurrent conditions are implied by law 
 upon the general ground that the performance on one side of a 
 
 rent, and there is good reason to distinguish between conditions pre- 
 cedent and conditions concurrent, the definition cannot be accepted. 
 i»See Langdell, Summary of Contracts, sec. 105. 
 
 17 LangdeU, Summary of Contracts, sec. 20. 
 
 18 See Harriman on Contracts, 2 ed., sec. 303; Professor Clarence D. 
 Ashley in 14 Yale L. J. 424. 
 
 19 Langdell, Summary of Contracts, sec. 20. 
 
12 PERFORMANCE OF CONTRACTS. 
 
 contract is intended to be in exchange for the performance on the- 
 other, and so the performances should take place simultaneously. 
 Besides, concurrent conditions protect both parties, siace they re- 
 quire neither party to trust the other.^" 
 
 3. Conditions Subsequent. 
 
 A condition subsequent is to be contrasted with a condition 
 precedent, and, accordingly, is any fact or event which will re- 
 lieve the promisor from a default under the contract, — i. e., will 
 relieve him from a cause of action which has accrued against 
 him because performance on his part became due and has not 
 been given, — or which will affect in any way the cause of action 
 which arises from such default. 
 
 Though conditions precedent are often found in contracts, 
 conditions subsequent that are really such are rarely found in 
 them. In the law of properly, where an interest previously 
 vested becomes divested of the happening of a condition, there 
 are genuine conditions subsequent; but in the law of contracts, 
 though there are a number of conditions which are subsequent 
 in form, conditions which seem to be subsequent usually turn out 
 
 20 "Several conditions must occur, however, to make mutual de- 
 pendency [concurrent conditions] possible and appropriate. 1st. Each 
 of the covenants or promises must be capable of performance in a 
 moment of time; for otherwise it would not be possible for them to 
 be performed concurrently. 2dly. The object pt the covenants or prom- 
 ises must, it seems, be the exchange of some property or right for 
 some other property or right; otherwise mutual dependency will be 
 inappropriate. For this 'reason, as well as the former, two covenants or 
 promises can seldom, if ever, be mutually dependent, unless they both 
 consist in giving (dando) as distinguished from doing (faoiendo).. 
 In particular, mutual covenants or promises which are entered into 
 for the promotion of some object common to both parties can never, 
 it seems, be mutually dependent. 3dly. The exchange contemplated 
 by the covenants or promises must be between the parties thereto; 
 otherwise it cannot, in legal contemplation, be made in an instant of 
 time. Mutual promises, therefore, between A and B that A shall giv& 
 something to B and B shall give something to C will not be mutually 
 dependent [unless expressly made so]. 4thly. The covenants or prom- 
 ises must be capable of being performed at the same place; otherwise 
 they cannot be performed at the same time."— Langdell, Summary of 
 Contracts, sec. 133. 
 
CONDITIONS IN CONTRACT. 13 
 
 when closely examined, to be in fact conditions preoedent,^^ or pos- 
 sibly in rare instances conditions concurrent. The way to test 
 a condition subsequent in form to see if it is subsequent in reality 
 is to try to put it in precedent or concurrent form; if its form 
 can be changed, then, to the extent that it can be so changed, it 
 is not a genuine condition subsequent. 
 
 An example of an actual condition subsequent is the clause in 
 an insurance policy," or an indemnity bond," that after a right 
 of action shall arise on the policy or on the bond, defendant's 
 liability shaU cease unless suit be brought within a specified time 
 which is shorter than the regular statute of limitations.''* 
 
 21 See note 25 post for a discussion of some such conditions. 
 
 22 See Semmes v. Hartford Ins. Co. (1871), 13 Wall. 158, and cases 
 cited in 1 W. 728, n. 
 
 23Helmer v. Title Guaranty Surety Co. (1909), 55 Wash. 558. 
 
 2* In Holmes' Common Law, p. 317, it is insisted that even this con- 
 dition is not subsequent, but instead is precedent to plaintitTs cause 
 of action. In support of the proposition that "all conditions are pre- 
 cedent * * * to the existence of the plaintiff's cause of action," It is 
 said: "As strong a case as can be put is that of a policy of insurance 
 conditioned to be void if not sued upon within one year from a failure 
 to pay as agreed. The condition does not come into play until a loss has 
 occurred, and the duty to pay has been neglected, and a cause of action 
 has arisen. Nevertheless it is precedent to the plaintiff's cause of ac- 
 tion. When a man sues, the question is not whether he has had a 
 cause of action in the past, but whether he has one then. He has not 
 one then, unless the year is still running." But the fallacy involved 
 in that contention was eacposed by Professor Clarence D. Ashley in 14 
 Yale Law Journal at p. 424 in the following language: "As is truly 
 said [in the passage just quoted from Holmes' Common Law], the 
 cause of action has already arisen; how then can bringing the action 
 within a given time be precedent to a cause of action which already 
 exists?" It would seem to be clear too, that the passage of the speci- 
 fied time does not terminate the cause of action, but that it is only 
 terminated when the defendant pleads such lapse of time as a defense. 
 The condition is clearly subsequent, and in Holmes' Common Law this 
 is really recognized, for the learned author ended his discussion of this 
 surance policy clause by saying (p. 318) : "The most logical distinction 
 would be between conditions which must be satisfied before a promise 
 can be broken and those which, like the last, discharge the liability 
 after a breach has occurred." This is just the distinction insisted 
 on in this article as regards conditions in a contract in distinction 
 
 2 
 
14 PERFORMANCE OF CONTRACTS. 
 
 While certain other events are constantly referred to by courts 
 and text writers as conditions subsequent, such conditions so 
 rarely exist in contracts that practically all the instances given 
 are of conditions subsequent in form but precedent in fact.^^ 
 
 from conditions which, go to the existence of the contract. Though 
 Mr. Justice Holmes added that this distinction "Is of the slightest 
 possible importance, and it may be doubted whether another case like 
 the last could be found," It is believed that any sound distinction in 
 the elucidation of a difficult topic is of considerable importance and 
 that even though there are few conditions subsequent in contracts 
 those few Justify the retention of the descriptive phrase and its ap- 
 propriate definition. 
 
 While Professor Ashley has defended the condition stated in the 
 text against Mr. Justice Holmes' suggestion that It is precedent, he 
 nevertheless denies that It is a condition subsequent in contracts. 
 "Provisions of this character," says Professor Ashley, "do not seem 
 to be conditions at all, but merely limitations attached to the proce- 
 dure. At any rate they are not conditions in contracts." — 14 Yale L. J. 
 at p. 430. The argument seems to be that as the contract is already 
 broken they are not conditions limiting the performance of the con- 
 tract and the conclusion is drawn that "as to so-called conditions sub- 
 sequent, there seems to be no instance in contract in which one can 
 be found." — 14 Yale L. J. at p. 424. Yet the same writer defines a con- 
 dition precedent as one which requires that some uncertain event 
 must occur before the promisor is obligated to perform. Id. And by 
 contrast a condition subsequent must be one which operates upon that 
 obligation to j)erform after it has become final and hence, not being 
 lived up to, has given rise to a cause of action in the obligee. A con- 
 tract remains a contract for purposes of suit, a least, and some times 
 for other purposes, even after it is broken, and a provision in the con- 
 tract terminating a cause of action for the breach, or affecting it in 
 the way that the state statute of limitations affects a cause of action 
 against which it has run, is in the contract (being given effect to in 
 fact only because it is there and supported by the consideration for 
 the contract) and is fairly entitled to be called a condition subsequent 
 in contracts. 
 
 25 Some of the more interesting call for detailed consideration. 
 Professor Langdell, for instance, in his Summary of Contracts, sec. 42, 
 said: "Any event may indeed be a condition subsequent as well as a 
 condition precedent, but the only events which are in fact often made 
 conditions subsequent, in the case of covenants or promises, are those 
 which render the performance of the covenant or promise impossible, 
 or at least impracticable;" and he cites as true conditions subsequent 
 implied by law the death or serious illness of persons who have cov- 
 
CONDITIONS IN CONTRACT. 15 
 
 Though conditions precedent are implied by law in contracts 
 as well as put in. them in express terms by the parties, it has been 
 supposed that all conditions subsequent in contracts, defined as 
 they must be in opposition to conditions precedent and in dis- 
 
 enanted or promised to render personal service, and tlie destruction 
 of specific property whicli one has covenanted or promised to convey, 
 wliile he cites as express conditions subsequent: "The exceptions com- 
 monly introduced into charter parties and bills of lading by which the 
 carrier's obligation to deliver the goods is to cease in the event of 
 their being lost or destroyed by certain enumerated perils." 
 
 But clearly in the first cases cited by Langdell the possibility of 
 performance is a condition precedent of the liability to perform; for 
 "the performance of a condition subsequent extinguishes a pre-exist- 
 ing right" (Langdell, Summary of Contracts, sec. 43), while the death 
 or serious illness of the persons who have covenanted or promised to 
 render personal service, or the destruction of specific property which 
 one has covenanted or promised to convey, simply prevents a right from 
 existing. In other words, the promise of the person whose death or 
 serious illness is assumed" was in effect, "If I am alive or am well 
 enough to perform at the time this contract contanplates that I am 
 to perform, I shall perform." That is, the being alive and the being 
 in sufficiently good health constitute conditions precedent to the ex- 
 istence of any cause of action against the promisor for failure to per- 
 form. The promise is to perform, if able. 
 
 So, too, in the carrier case which Liangdell cites, the condition is 
 genuinely precedent; for "a negative event may constitute a condition 
 as well as a positive one" (Langdell, Summary of Contracts, sec. 43), 
 and the not happening of the loss or destruction of the goods by the 
 enumerated perils is a condition precedent to the carrier's obligation 
 to deliver them (see end of sec. 44, Langdell, Summary of Contracts). 
 The carrier's promise is in effect, "If the goods are not lost through 
 the perils herein enumerated, I shall deliver them," and it is clear 
 that before there can be any actionable default on the part of the 
 promisor the goods must continue in existence long enough for the 
 carrier to be able to perform if it wants to or else must cease to exist 
 for reasons other than those excepted. 
 
 In all the casese mentioned by Professor Langdell in the instances 
 here discussed, therefore, the conditions are precedent in fact and 
 subsequent only in, form. 
 
 Much more difficult to dispose of are some examples of so called 
 conditions subsequent stated in Harriman on Contracts. Professor 
 Harriman in his book on Contracts says that "A fact or event which 
 gives some one the right to put an end to some existing right of an- 
 other is called a condition subsequent" (Harriman on Contracts, 2 ed.. 
 
16 PERFORMANCE OF CONTRACTS. 
 
 tinction from those conditions subsequent which, have reference 
 only to the existence of a contract, are express. It is true that 
 a cause of action due to a breach of contract may be discharged 
 by accord and satisfaction or by a release, but these things are 
 
 sec. 301), and asserts that "if A covenants to pay B $100 per annum for 
 ten years, provided B does not use tobacco during that time, B's use of 
 tobacco is a condition subsequent entitling A to be discharged from his 
 obligation to pay the annuity" (Harriman on Contracts, 2 ed., sec. 305), 
 and that "if A sells a cow to B as a Jersey cow for $100 and agrees that 
 B may return the cow if phe is not a Jersey, the fact that the cow is 
 not a Jersey is a condition subsequent, entitling B to rescind the con- 
 tract" (Harriman on Contracts, 2 ed., sec. 305). 
 
 The case about the tobacco is highly interesting and is much more 
 troublesome than the Jersey cow case. 
 
 The first thing to settle about the tobacco case is the matter of con- 
 struction. If it is a fair constrution of the covenant to say that by 
 each year's abstinence from the use of tobacco, added to prior abstin- 
 ence under the contract, B is to earn $100, which thereupon becomes 
 due him regardless of what use of tobacco he may make thereafter, 
 then clearly B must abstain each year in order to be entitled to sue 
 for the $100 for that year, and the contract contains ten unmistakable 
 precedent conditions. But the construction just suggested does not 
 seem fair. The covenant is to pay B $100 per annum for ten years, 
 provided B does not use tobacco "during that time," and it must be 
 taken to be a case where A is to pay $1,000 in ten yearly instalments 
 for a total of ten years of abstinence from the use of tobacco by B. 
 On this interpretation of the covenant, it is a condition precedent to a 
 right of action for any yearly instalment that up to and through the 
 year for which the right arises, B shall not have used tobacco, i. e., 
 even though the language be construed to be subsequent in form the 
 condition is nevertheless precedent in fact. While this is true, how- 
 ever, it is also true that as to past due yearly payments not yet made 
 nor reduced to judgment, the use of tobacco is clearly a condition sub- 
 sequent, for it cuts short a right of action for such earlier yearly pay- 
 ments. While it is still possible to contend that after B uses tobacco 
 it is apparent that B's right to sue never had any foundation in fact 
 but was in reality wholly illusory, having seemed to exist only be- 
 cause what the future actually developed was not in the nature of 
 things susceptible of proof at the time of such seeming, that conten- 
 tion is after all too metaphysical. By the terms of his covenant A as- 
 sumes the burden of going forward with all payments except the last 
 before complete performance by B takes place, and by any default in 
 payment made by A while B is still performing on his part B acquires 
 a right ot action, and any provision which operates to cut oft such 
 
CONDITIONS IN CONTRACT. 17 
 
 not conditions implied by law in the contract under which the 
 cause of action arose, but are themselves subsequent separate 
 contracts. Even the state statute of limitations, barring as it does 
 the remedy on the cause of action, is not properly to be regarded 
 
 right of action -which B has acquired Is a genuine condition subse- 
 quent even though in another aspect, i. e., as applicable to future pay- 
 ments, the provision Is one of condition precedent. Of the two aspects 
 of the condition in the tobacco case stated by Professor Harrlman, 
 the condition precedent Is the more conspicuous and would seem to be 
 the more likely to engage the attention of the courts, but it must 
 frankly be admitted that since the first publication of this article the 
 writer has come to see that this tobacco case is also an instance of a 
 true condition subsequent in the law of contracts. 
 
 With reference to the tobacco case it should be noticed that two 
 situations may arise where neither aspect of the express condition is 
 applicable, and where, accordingly, some other principle must deter- 
 mine the rights of the parties. Those situations are (1) Where a 
 judgment against A and in favor of B for earlier annual payments is 
 obtained and while It is unpaid and within the ten years, B uses to- 
 bacco, and (2) where annual payments have actually been made prior 
 to such use of tobacco by B. Whether the condition Is precedent or 
 subsequent, or one having both aspects, it would seem to be clear that 
 it can operate as a condition precedent only where a cause of action 
 has not accrued against A, and can operate as a condition subsequent 
 only where the cause of action against A for unpaid instalments has 
 not been merged in a judgment nor been satisfied by payment; and, 
 accordingly, in the two situations above stated, since the express con- 
 dition can have as such no application, the law will have to apply 
 some principle of justice which, in the absence of a stipulation in the 
 contract about the matter, should govern the case. It is believed that 
 an unpaid judgment for any instalment recovered by B against A 
 would be set aside, or Its collection enjoined, If after entry thereof, 
 within the ten years, and prior to a substantially complete perform- 
 ance on his part B used tobacco. It is also believed that B's use of 
 tobacco after any payment by A to him, and at any time within the 
 ten years prior to a substantially complete performance on his part, 
 conclusively establishes that B has no right under the contract to re- 
 tain that payment (compare Missouri Electric Light & Power Co. v. 
 Carmody (1897), 72 Mo. App. 534), and that thereupon A gets a quasi- 
 contractual right to recover the money so paid, unless the court is 
 convinced that, while as to amounts payable but not paid prior to 
 breach of condition B, after breach, has no right of recovery, still, by 
 his abstinence during each year for which he was paid, B has earned 
 the money paid for that year and hence the contract being divisible, it 
 
18 PERFORMANCE OF CONTRACTS. 
 
 as a condition implied by law in the contract, but is external to 
 the contract. But the supposition that there is no condition sub- 
 sequent implied by law in contracts must cease if an example of 
 
 is not unconscientious for him to retain what he has received. Both 
 beliefs just expressed rest on the fundamental doctrine that unless 
 the performance to be furnished by one party for the partial or com- 
 pleted performance already furnished by, or evidenced by a judgment 
 against, the other party is forthcoming, the former party will be un- 
 justly enriched at the expense of, or allowed to retain an unjust ad- 
 vantage over, the latter party. 
 
 While the tobacco case is in one aspect an example of condition 
 subsequent in the law of contracts, the Jersey cow case seems not to 
 be a case of condition subsequent in the law of contracts, but instead 
 is either a case of condition subsequent in the law of property or of 
 condition precedent dn the law of contracts. While the Jersey cow 
 case seems at first sight to be clearly one of condition subsequent, re- 
 flection shows that the condition does not terminate any existing lia- 
 bility of B under the contract, because, since the cow was not a Jersey, 
 B never was really liable to an action for its price; but the condition 
 at the most justifies the redelivery of the cow and a demand for a 
 return of the purchase money already paid, if any was paid. One of 
 two things is true: either there is a sale on approval, which, as the 
 cow Is not a Jersey, is no sale at all unless the buyer chooses to waive 
 his right to disapprove, and hence becomes liable by a subsequent 
 contract implied in fact, or there is "a aale or return" by which title 
 passes, but the title may be divested at the option of the buyer. So 
 far as the law of property is concerned, if there is a sale by which 
 title passes, but the title may be divested, this is a condition subse- 
 quent; but so far as the law pf contracts is concerned It is not dn any 
 view of the case a condition subsequent, for If the buyer has already 
 paid the purchase money there is no liability of his to be terminated 
 by the return of the cow, but instead on such return an obligation to 
 repay the money will rest on the seller, while, if the buyer has not 
 paid, the established fact that the cow is not a Jersey shows that he 
 never was under any genuine liability which required to be termi- 
 nated, i. e., never was in default under his contract to pay and hence 
 no right of action against him existed to be cut short. The buyer had 
 to return the cow, to be sure, but as the case of Wlieeler v. Klaholt 
 (1901), 178 Mass. 141, shows, that was simply to escape having a lia- 
 bility thrust upon him by a subsequent contract implied in fact be- 
 cause he kept still when it was his duty to act, and did not return 
 the cow within the time specified, or within a reasonable time if one 
 was not specified. See House v. Beak (1892), 141 111. 290; Greacon v. 
 Poehlman (1908), 191 N. Y. 493. 
 
CONDITIONS IN CONTRACT. 19 
 
 such a condition is found, and there does seem to be at least one 
 condition subsequent implied by law in contracts. It is found 
 in a case where the promisor is to give performance in instal- 
 ments and successive breaches on his part occur. At each breach 
 a cause of action arises, but in order that the party in default 
 may not be vexed by unnecessary separate actions the law an- 
 nexes to each cause of action as it comes into existence a condi- 
 tion to the effect that if a subsequent cause of action for a breach 
 of the same contract arises and is prosecuted to judgment in 
 an action in which the earlier cause of action, not previously sued 
 upon, is not joined, the earlier cause of action shall thereupon 
 terminate.^® 
 
 4. Importance of the Precedent or Subsequent Form of a Con- 
 dition. 
 
 Though there are relatively few conditions that are subsequent 
 in fact, several practical consequences may result from putting 
 a precedent condition in subsequent form. 
 
 " In an action upon a covenant or promise the burden of alleg- 
 ing or proving the performance of a condition lies upon the 
 plaintiff or defendant according as the condition is precedent or 
 subsequent, unless the covenant or promise provides otherwise. 
 It is competent, however, for the parties to shift the burden by 
 providing that the defendant shall have the burden of alleging 
 and proving that a condition precedent has not been performed 
 or that the plaintiff wiU have a like burden in ease of a condition 
 subsequent. The mere language of a condition will not indicate 
 with certainty, therefore, whether it is precedent or subsequent. 
 Thus the condition of an ordinary bond is always subsequent in 
 form, i. e., it provides that the bond shall be void on the happen- 
 ing of a certain event, and accordingly the obligor always has 
 
 28 "It is a well established proposition of law that if a contract pro- 
 vides for payment by instalments, due at different times, the instal- 
 ments may, of course, be successively sued on as they become payable 
 (Wells, Res Adj. 203), but each action should include every instal- 
 ment due when it is commenced, unless a suit is, at the time, pending 
 for the recovery thereof, or other special circumstances exist (Loril- 
 lard V. Clyde, supra [122 N. Y. 41] ) ."—Woodward, J., In Seed v. John- 
 ston (1901), 63 N. Y. App. Div. 340, 343. See also Beecher v. Conradt 
 (1855), 13 N. Y. (3 Keman) 108. 
 
20 PERFORMANCE OF CONTRACTS. 
 
 the burden of alleging and proving that the event has happened. 
 In respect to the rights of the parties, however, the not happen- 
 ing of the event is clearly intended to be a condition precedent; 
 for otherwise an action might be brought immediately upon every 
 bond that is given. Both of the foregoing positions in regard to 
 bonds, namely, that no action will lie upon them until the con- 
 dition is broken, and that the defendant has the burden of alleg- 
 ing and proving performance of the condition, are established 
 by uniform and immemorial practice. ' ' ^' 
 
 27 Langdell, Summary of Contracts, sec. 44, citing Cage v. Acton 
 (1700), 1 Ld. Raym. 515. In an article on Conditions in Contract, in 
 14 Yale L. J. 424, 430, Professor Clarence D. Ashley has criticised what 
 he states to be the suggestion in the passage above quoted, "that the 
 parties by drawing a condition precedent so that it is in form subse- 
 quent indicate their intention that the burden of establishing in ref- 
 erence to such condition precedent shall be shifted from the plaintift 
 to the defendant." His objections are: "In the first place it is not at 
 all probable that the piarties had such intention, nor does such a form 
 necessarily indicate anything of the kind. Then it does not appear 
 that the courts have decided upon any such ground. Where they have 
 held that the burden was upon the defendant [citing Gray v. Gardner 
 (1821), 17 Mass. 188] it seems to have been solely upon the ground 
 that they supposed they were dealing with a true condition subsequent, 
 and that therefore the burden was naturally upon the defendant. The 
 fault was with their analysis. It may well be doubted whether the 
 parties to a contract have any power to change the burden of estab- 
 lishing from plaintiff to defendant, as that would seem to be a matter 
 for the law to settle." 
 
 It must be conceded that there is no probability that the parties 
 adopted the subsequent form of stating precedent conditions in order 
 to change the burden of pleading or the burden of proof. No doubt 
 that form was adopted for other reasons (as to bonds see note 28 post) 
 and no doubt the courts announced the rules of pleading and of proof 
 under the impression that conditions subsequent in form only were 
 subsequent in fact. But now that courts are realizing, as are some 
 text writers and teachers, that most so-called conditions subsequent 
 are really conditions precedent put in subsequent form, and yet courts 
 feel that the old rules as to pleading and the burden of proof are con- 
 venient and just, the doctrine that the parties by the form in which 
 they have stated the condition have intentionally placed the burden 
 on the party who otherwise would not have it, but who ought to have 
 it since he has assumed it, becomes of very considerable importance. 
 Since burden of proof is an ambiguous phrase, meaning some times 
 
CONDITIONS IN CONTRACT. 21 
 
 What Professor Langdell thus stated is subject to some quali- 
 fication. His statement about the burden of proof in the case 
 
 (1) the burden of going forward with evidence to make or to negative 
 a prima facie case, and at other times (2) the burden of establishing 
 a case on the whole evidence, each meaning should be regarded in any 
 discussion of this matter. While Professor Ashley assumes that Pro- 
 fessor Langdell meant by burden of proof the burden of establishing, 
 the writer is inclined to think that he meant merely the burden of 
 going forward with evidence to make or to negative a prima facie 
 case. There would seem to be no more objection to letting the parties 
 determine by contract beforehand which shall have the burden of go- 
 ing forward first with evidence than to let them stipulate at the time 
 of the trial as to the order of the introduction of evidence, or than 
 to let them stipulate that no action shall be brought for breach of 
 contract except for an amount found by arbitrators to be due. If there 
 is any public policy opposed to agreements to change the burden of 
 proof in a law suit, it can relate only to the burden of establishing 
 as contrasted with the burden of going forward with evidence; but in 
 fact there seems to be no public policy opposed to changing even the 
 burden of establishing. One who can consent to a judgment against 
 himself can surely take the lesser step of consenting to judgment unless 
 he establishes or disproves by a preponderance of testimony that which 
 ordinarily the other party would be required to produce a preponder- 
 ance of testimony to disprove or to establish. The rules relating to 
 the rights of the parties alone may well be changed by them. It is 
 true that in Gittings v. Baker (1853), 2 Ohio St. 21, 24, it is stated 
 that "no agreement would be valid that would require the court to 
 change the rules of evidence [or?] to submit the decision of the facts 
 in a case to a jury of less than twelve men," but the court did not put 
 its decision on that ground because of "the court * * • not being 
 fully agreed on this point," (Id. p. 25) but instead put it on the ground 
 that as the stipulation was that the action should abide the result of 
 another action not shown to be like it the stipulation amounted to a 
 wager on the result of the other lawsuit and should be disregarded. 
 It is also true that a stipulation cannot bind a court to accept as true 
 what it can see from the facts which it has before it or of which it 
 takes judicial notice cannot be true (Holmes v. Johnston, 12 Heisk. 
 (Tenn. 1873) 155; Wells v. Covenant Mutual Benefit Assoc. (1895), 126 
 Mo. 630; Atty. Genl. v. Rice (1887), 64 Mich. 385; Owen v. HerzshofE 
 (1906), 2 Cal. App. 622, 84 Pac. 274), and cannot bind the court to de- 
 cide moot questions. But on agreement to change the burden of 
 establishing does not compel the court to hold that to be true which 
 it knows is not true and does not ask it to pass on moot questions. 
 Instead it Is like a stipulation that a creditor shall sue for part of an 
 entire demand and if he succeeds the balance will be paid. Mills v. 
 
22 PERFORMANCE OP CONTRACTS. 
 
 of bonds must be confined to bonds for the payment of money,^* 
 for "In those eases where a bond other than for payment of 
 money is sued upon, and the plaintiff has alleged breach, as he 
 is bound to do, his right to recover depending upon the breach, 
 
 Garrison, 3 Keyes (N. Y. 1866), 40. Or like the stpulation in a personal 
 injury action that if the plaintiff dies before verdict neither the cause 
 of action nor the action shall abate. McGuire v. N. Y. C. & H. R. R. 
 Co., 6 Daly (N. Y. 1875), 70. Or like the stipulation that the statute 
 of frauds of the state where it is claimed that the contract was made 
 shall govern the case rather than the statute of the state where the ac- 
 tion is pending. Aldrich v. Carpenter (1893), 160 Mass. 166. See also 
 Matter of CuUinan (1906), 113 N. Y. App. Div. 485. These cases and 
 the burden of establishing cases come under the doctrine that "Par- 
 ties by their stipulations may in many ways make the law for any le- 
 gal proceeding to which they are parties, which not only binds them 
 but which the courts are bound to enforce. They may stipulate away 
 statutory and even constitutional rights." Matter of N. Y., etc., R. R. 
 Co. (1895), 98 N. Y. 447, 453. The courts may properly say that the 
 burden of proof in both senses may be changed by stipulation of the 
 parties, for to quote language supporting the doctrine that judicial ad- 
 missions may relate among other things "to a rule of evidence consti- 
 tutionally sanctioned for the benefit of the waiving party:" "Any other 
 result would seem to be inconsistent with the general spirit and prac- 
 tice of our litigation, which judicially leaves to the parties the fram- 
 ing of their pleadings and issues and determines no objection not ex- 
 pressly raised by one of them." 4 Wigmore on Evidence, sec. 2592. 
 See also Muir v. Preferred Accident Ins. Co. (1902), 203 Pa. St. 338. 
 
 28 "A bond is a deed wherein a party acknowledges himself to be 
 bound or indebted to another in a certain sum of money. It is some- 
 times called an obligation in a special sense of the word; and the par- 
 ties are called respectively the ohUgor and the oMigee. A bond con- 
 taining such acknowledgment simply is called a single hand; but there 
 may be appended to it a condition that upon the performance of a cer- 
 tain act the bond is to be void, otherwise to remain in full force, and it 
 is then called a bond with a condition. And the debt acknowledged by 
 the bond, being fixed at a larger sum than the equivalent of the con- 
 dition, for the purpose of securing its performance, is called the penal 
 sum or penalty. Common money bonds are bonds with the condition 
 to pay a sum of money with interest at a certain day on payment of 
 which at the day the bond is to be void, otherwise it is to be forfeited. 
 In such bonds the penalty acknowledged to be due is generally fixed 
 at double the sum secured. The condition may be adapted to secure 
 any other matter: As the performance of the covenants in a deed, the 
 faithful discharge of an office, or the rendering of accounts, upon satis- 
 
CONDITIONS IN CONTRACT. 23 
 
 the burden of proving it rests upon him, although it may involve 
 the proving of a negative. "-^^ As to bonds for the payment of 
 money the rule as to the burden of proof stated by Professor 
 Langdell followed the rule as to pleading, and as late as 1876 
 the American edition of Chitty on Pleading contained the "ob- 
 servation" that "The plaintiff has no occasion to assign any 
 breach of the condition of a common money bond in his declara- 
 tion or other pleading (unless the defendant plead specially that 
 he has performed the condition) and need never suggest such 
 breach on the roll."^° Under such a rule of pleading, it was 
 apparent that the burden of pleading performance of the condi- 
 tion defeating the money obligation and the burden of proof 
 rested on the defendant, and the same thing was held true of 
 written promises to pay money followed by a condition in form 
 like the condition in a bond. Of such a written promise with 
 condition subsequent in form the Massachusetts Supreme Judicial 
 Court said in 1821: "It is like a bond with condition; if the 
 obligor would avoid the bond, he must show performance of the 
 condition. The defendants, in this case, promise to pay a cer- 
 
 f action of which the bond is declared to be void; such bonds are called 
 bonds with special conditions. By the common law the whole penalty 
 became forfeited and was recoverable upon breach of the condition, 
 according to the literal construction of the bond. But the court of 
 chancery gave relief against the forfeiture at law upon payment of the 
 amount really due, or of the damages actually arising from the breach 
 of the condition." — ^Leake on Contracts, 5 ed. 94-95. The English stat- 
 utes (the first being 4 and 5 Anne c. 16, sees. 12 and 13), various Ameri- 
 can statutes, and action by the common law courts under the influence 
 of the equity practice, have made it "a settled rule that no other sum 
 can be recovered under a penalty than that which shall compensate the 
 plaintiff for his actual loss." 1 Sedgwick on Damages, 8 ed., sec. 393. 
 It may be added that "Penal oUigations are well known to other sys- 
 tems of law besides our own; but the precise form of a contract by 
 which an absolute obligation is at first declared, and thus converted 
 into a mere penalty by the addition of a subsequent condition, is en- 
 tirely peculiar to the English law. * * * Lord Kaimes says, that 
 the bond was introduced originally to evade the common law of Eng- 
 land, which prohibited the taking of interest. Whatever reason led 
 to its introduction, certain it is, that its peculiar form has occasioned 
 infinite doubt and contradiction." Id., sec. 390. 
 
 20 2 cyclopedia of Evidence, 570. 
 
 30 2 Chitty on Pleading (16th American Ed.) 87. 
 
24 PERFORMANCE OP CONTRACTS. 
 
 tain sum of money, on condition that the promise shall be void 
 on the happening of aji event. It is plain that the burden of 
 proof is upon them; and if they fail to show that the event has 
 happened, the promise remains good." °^ 
 
 But the rule of pleading in actions on bonds has changed, and 
 now "It may be stated, generally,, that breaches should be as- 
 signed in a declaration or complaint in an, action on a bond. The 
 distinction is made, however, that in bonds other than for the 
 payment of money the breach of the condition relied on must be 
 specifically alleged in the declaration."^^ Under this better 
 rule of pleading, the fact that the condition is essentially prece- 
 dent is recognized and yet the court can give the subsequent form 
 of the condition its proper significance by making the bond, or 
 other acknowledgment of debt with a condition of defeasance, 
 prima facie evidence of the debt.^' Probably some courts wiU 
 adhere to the old rule of putting the burden of establishing the 
 fact of defeasance on the defendant,'* while others no doubt will 
 apply the same rule that they do in the case of bonds other than 
 for the payment of money, and therefore put the burden on the 
 plaintifE without even making the bond prima facie evidence of 
 the debt.'" Where there is no bond, but there is a written 
 promise in writing to pay money followed by a condition of de- 
 feasance, the old rule which puts on the defendant the burden 
 of proof will probably be followed.'" 
 
 But though the bond cases relating to the burden of proof 
 still present no settled rule, the insurance contract cases on the 
 point seem to be fairly uniform. 
 
 "While plaintiff [in suing on a fire insurance policy] is re- 
 
 31 Gray v. Gardner (1821), 17 Mass. 188, 189. To the same effect see 
 Thayer v. Connor (Mass., 1862) 5 Allen, 25. 
 
 32 5 Cyo. 826. 
 
 33Hoxsey v. Patterson (1871), 59 111. 522. But see Barrett v. Doug- 
 las Park Bldg. Assoc. (1897), 75 111. App. 98. 
 
 34. See Philbrook v. Burgess (1863), 52 Me. 271; Douglas v. Hennes- 
 sey (1886), 15 R. I. 272; Booth v. Comegys, Minor (Ala., 1824), 201. 
 Cf. Adams v. "Way (1866), 33 Conn. 419. 
 
 35 See Barrett v. Douglas Park Assoc, ante. 
 
 30 See Thayer y. Connor, ante;.Root v. Childs (1897), 68 Minn. 142; 
 Wooters v. International R. Co. (1881), 54 Tex. 294. But see Perkins 
 V. Maurepas Milling Co. (1906), 88 Miss. 804. 
 
CONDITIONS IN CONTRACT. 25 
 
 quired to allege performance of conditions precedent, and 
 therefore may logically be said to have the bxirden of prov- 
 ing such performance, yet under the rule now generally recog- 
 nized that defendant to raise an issue on [plaintiff's] gen- 
 eral allegation of performance must particularly allege the 
 breach relied on, it is almost uniformly held that without regard 
 to whether the breach complained of is that of a condition pre- 
 cedent or a promissory warranty or condition subsequent, the de- 
 fendant has the burden of proving the facts constituting such a 
 breach. Thus defendant must prove breach of warranty against 
 alienation, encumbrance in violation of the conditions of the 
 policy ,'' that the premises were vacant or unoccupied in vio- 
 lation of provisions on that subject, or the existence of other or 
 additional insurance. While the burden of proving notice and 
 proofs of loss is usually upon plaintiff, yet if plaintiff proves 
 facts which are suflScient prima facie to show that notice or proofs 
 were given, defendant has the burden of proving non-compUance 
 with the conditions of the policy in that respect. It is clear 
 that breach of a condition subsequent or of a warranty of exis1> 
 ing .conditions or other affirmative defense must be established 
 by defendant. " *^ 
 
 5. Preferences in Construction. 
 
 With reference to conditions precedent, concurrent and sub- 
 sequent, it should be noted that in the law of property "the 
 courts tend to construe a condition to be subsequent, rather than 
 
 37 Even in a state where conditions as to encumbrances and as to the 
 kind of ownership of the insured are deemed precedent and the burden 
 is regarded as upon the plaintiff, the production of the policy in evi- 
 dence with proof of its execution and delivery may make a prima facie 
 case. Allen v. Phoenix Assurance Co. (1906-1907), 12 Idaho, 653, 669. 
 Compare Vincent v. Mutual Reserve Fund Life Assoc. (1904), 77 Conn. 
 281. 
 
 38 19 Cyc. 936-937. In Barker v. Metropolitan Life Ins. Co. (1908), 
 198 Mass. 375, 383, Sheldon, J., for the court, said: "It is no doubt true, 
 as argued by the defendant, that at common law, while the burden was 
 upon the defendant to show the materiality and the falsity of any mis- 
 representations upon which it relied for the avoidance of any policy 
 or other contract the plaintiff was bound to prove the truth of or com- 
 pliance with all express warranties, whether positive or negative." 
 
26 PERFORMANCE OP CONTRACTS. 
 
 precedent, so as to give the grantee or devisee a present estate 
 liable to be divested, rather than to defer the vesting,"^' but 
 that ia the law of contracts the courts imply, wherever possible, 
 conditions concurrent, which under that name, at least, are un- 
 known to the law of property, and in the case of certain con- 
 tracts, as for instance fire insurance policies, for practical rea- 
 sons, favor treating certain conditions as subsequent rather than 
 precedent." 
 
 (d) Representations and Warranties. 
 The relation between conditions, representations and warran- 
 ties must be kept in mind. 
 
 1. Mere Representations. 
 
 A representation is a statement of fact or assertion made by 
 one party to the other, before or at the time of the making of the 
 contract, of some matter or circumstance relating to the contract 
 and which in part at least induces it. Representations which do 
 not form a part of the contract are either immaterial or in the 
 nature of conditions going to the existence of the contract, and 
 may be disregarded in this discussion of conditions in contracts. 
 But representations embodied in the contract, either expressly or 
 by legal implication, may constitute genuine conditions in con- 
 tracts, or, on the other hand, may be mere representations; and 
 
 39 X Tiffany on Real Property, sec. 69. 
 
 40 Of the rule In the fire insurance cases putting the burden on the 
 insurance company in regard to the vacancy of the building, etc., the 
 Ohio Supreme Court says: "Any other rule would be highly incon- 
 venient, if not impracticable. The clause of the policy under which 
 the defendant sought to be relieved from liability is but one of a great 
 number of conditions, for the violation of any of which the insurer 
 might also claim to be relieved; and if the issue raised by the denial 
 that the plaintiff performed all the conditions precedent on his part, 
 Imposed upon him the burden of proving there had been no violation 
 of that particular clause, it also imposed upon him the burden of prov- 
 ing there was no breach of either [any?] of the other conditions, and 
 for want of such proof as to either [any one?] he must fail, although 
 in fact neither [none?] was the subject of any real controversy. This 
 would be an unreasonable requirement, not only operating as a hard- 
 ship on the plaintiff, but in most cases unnecessarily prolonging the 
 trial." — Williams, J., in Moody v. Insurance Co. (1894), 52 Ohio St. 12, 
 19-20. See note 55, post. 
 
CONDITIONS IN CONTRACT. 27 
 
 in consequence a descriptive statement in a contract must be 
 scrutinized to see if it is a mere representation or constitutes a 
 condition. If it is a mere representation, it may be as to either a 
 material or an immaterial matter; but the question whether a 
 representation amounts to a warranty when not expressly made 
 such by the parties can arise only where the representation is 
 material. If a representation is material and yet remains a mere 
 representation, then, unless it is made fraudulently, the rule of 
 insurance law is that it need be only substantially true, while if 
 it constitutes a warranty its literal truthfulness is required.*"^ 
 
 Whether a representation is embodied in the contract is some- 
 times a matter of doubt. For instance, the authorities are di- 
 vided on the question whether a representation made some time 
 before a sale of goods can constitute a warranty even though the 
 representation induces a sale, or whether it must have been made 
 at the time of the sale in order to constitute a warranty.*^ In 
 any jurisdiction where it is held to be a Warranty the question 
 of whether it constitutes a condition will be answered according 
 to the conception of the nature of a warranty in the law of sales 
 entertained by the courts of that jurisdiction. It is important, 
 therefore, to consider what is meant by the word warranty. 
 
 *oa "Answers to questions propounded by the insurers in an appli- 
 cation for insurance, unless they are clearly shown by the form of the 
 contract to have been intended by both parties to be warranties, to be 
 strictly and literally complied with, are to be construed as represen- 
 tations as to which substantial truth in everything material to the 
 risk is required of the applicant. * * * But the parties may by 
 their contract make material a fact that would otherwise be imma- 
 terial, or make immaterial a fact that would otherwise be material." — 
 Gray, J., in Phoenix Life Ins. Co. v. Raddin (1886), 120 IT. S. 183, 189. 
 But in some jurisdictions statutes have limited the scope of warranties 
 in insurance policies. See note 53, post. 
 
 *i Wllliston on Sales, sees. 209, 210. "There seems no reason to dis- 
 tinguish a case where the seller makes a statement in regard to goods 
 at the time of the sale, a little while before that time, or a long time 
 before, if the statement was originally made with reference to a pos- 
 sible sale, or was expressly or impliedly adopted as the basis for sub- 
 sequent negotiations. Affirmation may induce the sale as fully when 
 the buyer buys after considerable further negotiation, as when he buys 
 immediately." Id., sec. 209. 
 
28 PERFORMANCE OF CONTRACTS. 
 
 2. Warranties. 
 
 Warranty is a mucli abused word, for it has been "used in a 
 variety of senses. " *^ It is important to note its meanings in the 
 law of real property and in the law of sales of personal prop- 
 erty, and then to see its meaning as applied to promises in re- 
 gard to other mattera. 
 
 (1) Warranty in Real Property Law. — In the law of real prop- 
 erty ' ' warranty ' ' has been used to cover two very different things : 
 (a) Common law warranty; (b) the modem personal covenants 
 of warranty. 
 
 (a) The common law warranty "was in its nature a 'covenant 
 real' — that is, compensation for its breach was awarded, not in 
 damages, but in kind, by a judgment in favor of the warrantee or 
 his heirs, against the original warrantor or his heirs, for the re- 
 covery of other lands equal in value to those of which the war- 
 rantee has been deprived. * * * The remedy on a warranty 
 was available only in connection with freehold estates, and con- 
 sequently, if the warranty was attached to a term of years, or if 
 the grantee of a freehold estate was evicted for a term, the war- 
 rantee could not recover. In the later history of the subject, 
 however, there was a relaxation of this rule to the extait that 
 when, in such a case, the warranty failed as a covenant real, it 
 might be construed as a personal covenant on which an action for 
 damages might be brought." *' 
 
 (b ) " The modem covenant of warranty, by which one covenants 
 that he ■will warrant and defend the premises unto the grantee 
 against all lawful claims by third persons, is entirely different 
 from the old common law warranty, and is merely a personal 
 covenant, a breach of which entitles one to the recovery of dam- 
 ages * * * . So when * * * a covenant of warranty oc- 
 curs in a conveyance in fee, there can be no recovery unless there 
 is an eviction either by the grantor or by a third person under 
 lawful claim of title." ** 
 
 *2 Anson on Contracts (Huffcut's 2d Amer. Ed.), 378. In a note 
 Sir Wm. Anson specified six different meanings given to the word, not 
 naming its real property significations. 
 
 *3 2 Tiffany on Real Property, sec. 394. 
 
 ** Id., sec. 398. 
 
CONDITIONS IN CONTRACT. 29 
 
 As used in the law of real property, therefore, warranty does 
 not have the sense of condition. 
 
 (2) Warranty in the Law of Sales of Personal Property. — In 
 section 62 of the English Sale of Goods Act, 1893," it is pro- 
 vided that "In this Act, unless the context or subject matter 
 otherwise requires, * * * 
 
 " 'Warranty' as regards England and Ireland means an agree: 
 ment with reference to goods which are the subject of a contract 
 of sale, but collateral to the main purpose of such contract, the 
 breach of which gives rise to a claim for damages, but not to a 
 right to reject the goods and treat the contract as repudiated. ' ' 
 
 In other words, under that act a warranty is, as it was imder 
 the English law of sales of goods prior to the act, a promise 
 collateral to the sale, and the performance of it is not a condi- 
 tion.** While a number of American jurisdictions adopted the 
 English conception of warranty in the law of sales of personal 
 property,*' the better American doctrine has been embodied in 
 the American Sales Act where the collateral promise conception 
 is ignored and a material promise is made a condition for breach 
 of which the buyer may repudiate or rescind. In that American 
 Sales Act is the following definition of "express warranty," 
 namely : 
 
 "Any affirmation of fact or any promise by the seller relat- 
 ing to the goods is an express warranty if the natural tendency 
 of such afSrmation or promise is to induce the buyer to purchase 
 the goods, and if the buyer purchases the goods relying thereon. 
 No affirmation of the value of the goods, nor any statement pur- 
 porting to be a statement of the seller's opinion only shall be 
 construed as a warranty. ' ' *' 
 
 45 56 and 57 Vict. c. 71. 
 
 *8 "A warranty in a sale of personal property is a statement or rep- 
 resentation made by the seller contemporaneously -with and as part 
 of the contract of sale, though collateral to the express object of it, 
 having reference to the character or the quality of or the title to the 
 goods or articles sold, and by which he promises or undertakes that 
 certain facts are or shall be as he represents them." 28 Am. & Engl. 
 Ency. of Law, 1 ed. p. 738. 
 
 *7 See cases cited in Williston on Sales, sec. 608, p. 1011. 
 
 *8 Uniform Sales Act, sec. 12. The act is given in the appendix to 
 
 3 
 
30 PERFORMANCE OP CONTRACTS. 
 
 And by a subsequent section it is provided that "where there 
 is a breach of warranty by the seller, the buyer may, at his elec- 
 tion * * * (c) Refuse to accept the goods, if the property 
 therein has not passed, and maintain an action against the seller 
 for damages for the breach of warranty, (d) Rescind the con- 
 tract to sell or the sale and refuse to receive the goods, or if the 
 goods have already been received, return them or offer to return 
 them to the seller and recover the price or any part thereof which 
 has been paid. ' ' *" 
 
 Thus in the law of sales warranty means in some jurisdictions 
 a collateral promise, the performance of which is not a condi- 
 tion, and in other jurisdictions, a material promise the perform- 
 ance of which is a condition. 
 
 (3) Warranty in Insurance Policies and in Charter Parties. — 
 But in insurance policies and in charter parties warranty has not 
 the meaning of collateral promise. In such contracts' what is 
 properly called a warranty means, not a collateral promise, but a 
 representation or promise which is so essential a part of the con- 
 tract that its truth or performance is a condition precedent to the 
 other party 's liability to perform.^" 
 
 It has been pointed out that in the case of insurance policies, 
 the insured makes no promise for breaking which he can be 
 sued, but that in the case of charter parties "the charterer may 
 sue the owner of the vessel for breach of promise and, further- 
 more, the charterer is himself excused from performing his 
 promise. ' ' °^ But in the case of both kinds of contracts, warranty 
 means that the thing warranted is a condition. 
 
 "Whether a statement in an insurance policy or in a charter 
 party amounts to a warranty or not is determined by a fair con- 
 
 Williston on Sales. In sections 13 to 16 implied warranties not con- 
 trary to the intent of the parties are provided for. 
 
 40 Uniform Sales Act, sec. 69. 
 
 fiooilive V. Booker (1847), 1 Exch. 416; Thompson v. Gillespy (1855), 
 5 B. & B. 209; 2 W. 58, n. "The terms 'warranty' and 'condition' are 
 often confused and used interchangeably. The distinction, however, is 
 clear. In speaking of a representation by A to B, as a warranty, we 
 are looking at that representation with reference to A's obligation. 
 When we speak of the same representation as a condition, we are deal- 
 ing with the effect of that representation on B's obligation." Harri- 
 man on Contracts, 2 ed., sec. 311. 
 
 Bi Williston on Sales, sec. 181. 
 
CONDITIONS IN CONTRACT. 31 
 
 struetion of the contract as a whole,"^ the importance of the state- 
 ment being given due significance. "Any statement or stipula- 
 upon the literal truth or fulfillment of which in the intention of 
 the parties the validity of the contract is made to depend, 
 whether appearing as a condition or warranted, or however other- 
 wise, amounts to a warranty. But no particular form of words 
 virill make a statement or stipulation a warranty, not even the 
 use of the word 'warranty,' where it is apparent, from the con- 
 text or from the other parts of the contract, that it is not the in- 
 tention of the parties to make the validity of the contract de- 
 pend on the literal truth or fulfillment of the statement or stipu- 
 lation. " ^^ If the truth of a representation which forms a part 
 of the contract is expressly guaranteed as a condition precedent 
 to recovery and no statute forbids making it a warranty, it is, in 
 the law of insurance and of charter parties, a warranty.'^ But 
 "it is well settled that in case of doubt as to whether statements 
 made by the applicant for insurance are to be regarded as war- 
 ranties, the benefit of the doubt will be given to the insured, and 
 they will be held as representations merely, as to all things not 
 material to the risk." ^'^ 
 
 There are two kinds of warranty in insurance policies and in 
 charter parties. One is the warranty as to the existence of a 
 
 siaBut see Schofleld's Admx. v. Metropolitan Life Ins. Co. (1906), 
 79 Vt. 161. 
 
 52 May on Insurance, 4 ed., sec. 156. See Globe Mutual Life Ins. 
 Assoc. V. Wagner (1900), 188 111. 133. 
 
 53 "The practical operation of such literal warranties Is so often harsh 
 and unfair that courts require their existence to be evidenced clearly 
 and unequivocally, and are not inclined to allow it to rest upon a mere 
 verbal interpretation, where a reasonable construction of the contract 
 as a whole will authorize a different meaning." — Gray, J., in McClain 
 V. Provident, etc., Co. (1901), 110 Fed. 80, 84. See also note 40a, ante. 
 By statutes in a number of states no misrepresentation or warranty 
 will defeat recovery on an insurance policy unless the misrepresen- 
 tation is made with actual intent to deceive or the matter misrepre- 
 sented is material to the risk. See White v. Provident, etc., Soc. (1895), 
 163 Mass. 108. Such statutes have been held to be a proper exercise of 
 legislative power. Penn Mut. Life Ins. Co. v. Mechanics', etc., Co. 
 (1896), 72 Fed. 413. But due weight should be given to the opinion 
 of the company as to what is material. See Continental Casualty Co. 
 V. Lindsay (Va. 1910), 69 SE 344. 
 
 BsaGray, J., in McClain v. Provident, etc., Co. (1901), 110 Fed. 80, 86. 
 
32 PERFORMANCE OP CONTRACTS. 
 
 present or past fact known as ' ' affirmative warranty ; ' ' the other 
 is the warranty as to the performance of a promise known as a 
 "promissory warraoaty." °* While a promissory warranty is rec- 
 ognized as a promise, its primary importance is due to the fact 
 that it is not simply a promise, but that, if it is not performed, 
 the other party to the contract need not perform. Promissory 
 warranties, like affirmative warranties, are conditions. 
 
 "Warranties are in the nature of [express] conditions prece- 
 dent in that upon a strict compliance with them in every partic- 
 ular depend all rights of the insured in the policy. They differ 
 from such conditions, however, in that when the insured seeks 
 to recover on the policy he need not set forth the warranties and 
 recite his compliance with each; but by the weight of authority 
 it is held that in order to defeat a recovery on the ground of a 
 breach of warranty, it is incumbent upon the defendant to allege 
 breaches and to prove them as alleged." °° 
 
 In insurance policies and charter parties, therefore, a repre- 
 sentation or promise, which from its importance and iatended 
 effect receives the name warranty, is also a condition. It is 
 probably always in the nature of a condition precedent,"® but 
 differs from an ordinary condition precedent in that the defend- 
 ant must allege and has the burden of proving its falsity or 
 breach. 
 
 B* Vance on Insurance, sec. 105. 
 
 65 Id., sec. 104. "The questions which an applicant for [life] insur- 
 ance is required to answer are so numerous, covering, as they do, in- 
 quiries concerning his age, health, hahits and even the age and health 
 of his ancestors, that to require the beneficiary in the first instance to 
 take the aflSrmative and prove each of these to be true would be an in- 
 tolerable burden, while if the insurer knows, or has reason to believe, 
 that any one of the representations made by the deceased was untrue, 
 it is only fair that it should be required to furnish proof of such fals- 
 ity." — McBride, J., in Francis v. Mutual Life Ins. Co. (Ore., 1910), 106 
 Pac. 323, 326. See notes 40 and 40a, ante. 
 
 56 In Vance on Insurance, sec. 105, it is stated that a promissory war- 
 ranty "is in the nature of a subsequent condition of defeasance, the 
 nonfulfillment of which renders the policy voidable," but query? The 
 only cases cited by the author, namely, Schultz v. Ins. Co. (1881), 6 
 Fed. 672, and Glehdale Woolen Co. v. Protection Ins. Co. (1851), 21 
 Conn. 19, are cases where no liability attached because of the breach 
 of condition, so the conditions, while appearing to be subsequent, were 
 in fact precedent. 
 
CONDITIONS IN CONTRACT. 33 
 
 (4) Warranty in Other Contracts. — While the word warranty- 
 is used mainly in the law of real property, in the law of sales 
 of personal property, and in the law of insurance policies and of 
 charter parties, it may be applied to contracts in general. When 
 it is used ia reference to statements or promises in general mer- 
 cantile contracts, only that which is a condition is called a war- 
 ranty."' 
 
 HISTORY OF CONDITIONS. 
 
 Originally in the common law there were no conditions except 
 express ones. This seems to have remained true until after sim- 
 ple bilateral contracts were enforced. But as justice demanded 
 the finding of conditions, the courts would serutiaize contracts 
 under seal containing mutual covenants for express conditions, 
 and they did so even before simple bilateral contracts were 
 recognized. "This gave great importance to the precise terms 
 in which mutual covenants were expressed and it not infre- 
 quently happened that a single word turned the scale. Thus if 
 A covenanted with B to give or do something for something else 
 which B covenanted to give or do in return, it was conmionly 
 held that the word 'for' made A's covenant dependent upon 
 -gig )>58 rpjjjg undue emphasis on such a word as "for" as im- 
 porting an express condition was the result of the feeling of the 
 judges that performance should be conditional on performance at 
 a time when the judges had not yet reached the conception of con- 
 ditions as capable of implication. 
 
 When simple bilateral contracts established a footing, the old 
 
 57 •'In the contracts of merchants, time Is of the essence. The time 
 of shipment is the usual and convenient means of fixing the prohable 
 time of arrival, with a view of providing funds to pay for the goods 
 or of fulfilling contracts with third persons. A statement descriptive 
 of the subject matter, or of some material incident, such as the time or 
 place of shipment, is ordinarily to be regarded as a warranty, in the 
 sense in which that term is used in insurance and maritime law, that 
 is to say, a condition precedent, upon the failure or non-performance 
 of which the party aggrieved may repudiate the whole contract." — 
 Gray, J., in Norrington v. "Wright (1885), 115 U. S. 188, 203. 
 
 58 Langdell, Summary of Contracts, sec. 140. 
 
34 PERFORMANCE OP CONTRACTS. 
 
 analogies seem to have prevailed and at first only express condi- 
 tions were recognized in such contracts.^' Although in 1701, in 
 Thorpe v. Thorpe,"" Lord Holt came so close to the implication 
 of conditions in explaining when the word "for" did and when 
 it did not make a promise conditional that later in his notes to 
 Pordage v. Cole,"^ Sergeant Williams reworded Lord Holt's ob- 
 servations to make the first two of the Sergeant's rules on im- 
 plied conditions,"^ it was not until in 1773, in Kingston v. 
 Preston,"^ that it was held that the dependency of one covenant 
 upon another would be implied so as to create a condition pre- 
 cedent — that is, that performance by the plaintiff would be held 
 to be by implication a condition precedent to performance by the 
 defendant."* It was in 1792, in Goodisson v. Nunn,"' that 
 it was held that concurrent conditions, as well as precedent ones, 
 would be implied, and of Eawson v. Johnson,"" following in 1801 
 the case of Goodisson v. Nunn, Langdell said: "With this case, 
 therefore, the doctrine of mutual dependency was completely es- 
 tablished as it has ever since remained. " "^ 
 
 D 
 
 RULES ON CONDITIONS. 
 
 (a) General Rules. 
 In framing rules on conditions it is desirable to treat express 
 conditions and implied conditions separately, but certain ob- 
 
 58 Id., sec. 141. 
 
 80 12 Mod. 455. 
 
 81 1 Williams' Saunders, 319. 
 
 62 Id., 319Z. See Appendix A, post. 
 
 68 2 Douglas, 689. 
 
 »* Langdell, Summary of Contracts, sec. 143. 
 
 6B 4 T. R. 761. 
 
 88 1 East, 203. 
 
 87 Langdell, Summary of Contracts, sec. 143. 
 
 Implied concurrent, or mutually dependent) conditions did not date 
 from Jones v. Barkley, Douglas, 684, 1 ed., p. 659, decided in 1781, for 
 the reason that the case was regarded then and should be regarded 
 today as involving a condition precedent. See Langdell, Summary of 
 Contracts, sec. 133. 
 
 In Lock V. Wright (1723). 1 Strange, 569, the court showed that it 
 appreciated the possibility of conditions concurrent, for Pratt, C. J., 
 
CONDITIONS IN CONTRACT. 35 
 
 servations which apply to all kinds of conditions should be noted 
 first. They are : 
 
 1. If after breach of a condition by one paxty the other party 
 chooses to go on with the contract, he thereby waives the breach 
 as a breach of condition, but may still sue and recover damages 
 for the breach of contract unless the breach of contract also is 
 waived."* 
 
 2. Where the condition is precedent, and the condition has not 
 been dispensed with by the other party or is not a warranty in 
 a charter party or in an insurance poUey '"' the paorty who is first 
 to perform must allege and prove performance before the other 
 party can be regarded as in default.^" 
 
 3. Where the conditions are concurrent and the conditions 
 have not been dispensed with by either party, the party seeking 
 to put the other in default must allege and prove offer of per- 
 formance, and refusal by the other party.'^ 
 
 said: "The intent of the parties appears to be, that one should have 
 the money, and the other the stock; and not that either should per- 
 form his part of the agreement, and lay himself at the mercy of the 
 other for the equivalent;" but the court ended by holding that there was 
 an express condition precedent. See also Lord Mansfield's opinion in 
 Kingston v. Preston (1773), 2 Douglas, 689, where a similar apprecia- 
 tion of concurrent conditions was shown. But Goodison v. Nunn 
 (1792), 4 T. R. 761, seems to have been the first case actually implying 
 them. 
 
 68 Langdell, Rules No. 11 on Implied Conditions and No. 1 on Ex- 
 press Conditions. See Page on Contracts, sees. 1509, 1510; Williston 
 on Sales, sec. 485. Whether the breach of contract is waived along 
 with the breach of condition is a question of fact in each case. Willis- 
 ton on Sales, sees. 487, 488. Though "there is no reason why the rule 
 in the law of sales should be different" from that in contracts generally 
 (Id., sec. 485), it is held in some jurisdictions that the buyer's accept- 
 ance of goods under a sale or contract of sale waives any right to dam- 
 ages for the seller's delay in performance (Id., sec. 487), or for defect- 
 ive quality of the goods (Id., sec. 489). 
 
 69 See Vance on Insurance, sec. 104. 
 
 70 Langdell, Summary of Contracts, sec. 30; Harriman on Contracts, 
 2 ed., sec. 337. 
 
 71 Delaware Trust Co. v. (3alm (1909), 195 N. Y. 231. "Where the 
 conditions are concurrent it necessarily follows that neither party can 
 maintain an action against the other for breach of the latter's obliga- 
 tion without first making an offer of performance himself. It has been 
 said that readiness and willingness on the part of the plaintiff is suflS- 
 
36 PERFORMANCE OF CONTRACTS. 
 
 4. "Where actual performance in the case of conditions pre- 
 cedent, or the tender of performance in the case of conditions 
 concurrent, has been dispensed with by the other party, as for 
 instance by repudiation in advance, by deliberate prevention of 
 performance " etc., the plaintiff must allege and prove readiness 
 and willingness on his part to perform,'^ and his proof of readi- 
 
 cient, or that even this is not part of the plaintiff's case. But it Is 
 evident not only that the plaintiff must be ready and willing, but also 
 that readiness and willingness, unless manifested by some notice to 
 the defendant, are insufficient. For if neither buyer or seller ap- 
 proached the other, but each stayed at home ready and willing to per- 
 form, the rule suggested would give each party a right of action; 
 whereas neither party would have a right of action without putting 
 the other in default. * * » The evidence by which this offer [to 
 perform in the case of concurrent conditions] can be shown is another 
 matter. A request or a notice may be sufficient indication to the de- 
 fendant that the plaintiff not only wishes the defendant to perform, 
 but is himself ready to perform. Certainly a formal tender either of 
 goods or money is not necessary, but in the absence of any legal ex- 
 cuse, some notification that in effect amounts to an offer to perform, 
 coupled with an immediate ability to perform, seems requisite, both 
 on principle and authority, in order to give the plaintiff a right of ac- 
 tion." — Williston on Sales, sec. 448. 
 
 In Pead v. Trull (1899), 173 Mass. 450, the party to whom tender had 
 to be made within forty-five days died, but as the plaintiff exhibited 
 in acts a bona fide willingness and ability to perform the court said 
 the period was extended to give plaintiff a reasonable time after ap- 
 pointment of administrator in which to make the proper tender. 
 
 72 U. S. V. Peck (1880), 102 U. S. 64, and cases cited in 2 W. 180, n. 
 "Prevention of the happening of conditions is to be distinguished from 
 prevention of performance of a promise. Prevention of performance 
 of a promise excuses the promisor from liability for nonperformance. 
 Prevention of the performance of a condition entitles the party pre- 
 vented to a right of action although the condition has not been per- 
 formed. It is true that an act of prevention will frequently be a pre- 
 vention both of performance by the other party of his promise and also 
 of the condition qualifying the liability of the preventing party. * * * 
 The condition, however, may be something which neither party has 
 promised shall be performed, and in such a case it may be important, 
 to distinguish between prevention as excusing a condition and as ex- 
 cusing performance of an obligation."— "Williston on Sales, sec. 193. 
 
 73 "Where by the terms of the contract the defendant has not per- 
 formed some condition precedent, it is enough for the plaintiff to al- 
 lege that he was ready and willing; he need do nothing actively until 
 
CONDITIONS IN CONTRACT. 37 
 
 ness must show ability to have performed if there had been no 
 repudiation, prevention, etc."* 
 
 (6) E^lles on Express Conditions. 
 
 Because the right to contract as one chooses is in general 
 sacred in the eyes of the common law, we start with the proposi- 
 tion that express conditions, having been put into the contract 
 by the parties, must be strictly complied with.''"* With reference 
 to such conditions, the following things must be noted : 
 
 the defendant has performed the prior obligation." — ^Wllllston on 
 Sales, sec. 448. 
 
 74 Gray v. Smith (1896), 76 Fed. 525; 83 Fed. 824, and cases cited in 
 2 W. 285, n. See Eddy v. Davis (1889), 116 N. Y. 247; Robertson v. 
 Davenport (1855), 27 Ala. 574; Thompson v. Kyle (1897), 39 Fla. 582. 
 
 "= See Page on Contracts, sec. 61. Professor Harriman's statement 
 in regard to the distinction between express and implied conditions 
 that "it seems to be of no practical importance at the present day" 
 (Harrlman on Contracts, 2 ed., sec. 315) cannot be conceded. While 
 it is true that express conditions and conditions implied in fact are 
 practically one, express conditions are as unlike conditions implied by 
 law as express contracts are unlike quasi-contracts. Professor Harrl- 
 man seems to confuse express conditions, which are mainly the expres- 
 sion of that intention which the parties actually had, with conditions 
 implied by law, which are the expressions of the court's notion of that 
 intention which the parties neither had nor expressed, because they 
 never thought about the contingencies at all, but which just men simi- 
 larly placed would have. While the courts succeed many times in get- 
 ting around harsh express conditions precedent by construction, such 
 conditions often drive a plaintiff to a quasi-contract remedy, if that 
 is open to him, when the conditions which in the absence of express 
 conditions the law would imply would permit a recovery on the con- 
 tract itself. The fact that the court tries by a forced construction of 
 the express conditions to reach the equitable result which conditions 
 implied by law came into being to accomplish should not blind us to 
 the fact that the two kinds of conditions are of different natures and 
 affected by very different considerations. An express condition, un- 
 less it is violated by judicial legislation, as it seems sometimes to be in 
 the New York building contract cases, must be lived up to literally; but 
 a condition implied by law is always subject to the doctrine that where 
 a defendant has "received a substantial portion of the consideration it 
 is no longer competent to him to rely upon the non-performance of that 
 which might have been originally a condition ^precedent." Carter v 
 Scargill (1875), L. R. 10 Q. B. 564, 566. The failure to discriminate 
 
38 PERFORMANCE OP CONTRACTS. 
 
 1. "Express conditions may exist equally in bilateral and 
 unilateral contracts ; and it is immaterial whether there are alsO' 
 implied conditions in the same contract ; " '^ but because it is un- 
 certain whether implied conditions exist in unilateral con- 
 tracts ^^^ a court will be more apt to construe doubtful words in 
 such contracts to create express conditions than it would in the 
 case of bilateral contracts.'^ The fact that the terms require 
 definition will not keep the condition from being express; for 
 explaining what is expressed in the contract — interpretation — is 
 not implying something not expressed. 
 
 2. A court will endeavor to construe the language of an ex- 
 press condition in such a way as not to work an unjust forfeiture 
 or oppression as contrasted with a mere loss of privilege, i. e., 
 the court will so construe the condition where the wording of the 
 contract will permit. In insurance contracts, for instance, the 
 courts will go far in construction to hel^p out the insured.''* 
 
 between express conditions and conditions implied by law is the cause 
 of the New York courts' occasional seeming application to express con- 
 ditions of the doctrine of substantial performance applicable only to 
 conditions implied by law (see note 88, post), a departure from princi- 
 ple, of which Professor Harriman complains (Harriman on Contracts, 
 2 ed., sec. 339) ; but the New York doctrine, which at the most can 
 properly affect only the measure of damages (Id.), since recovery 
 should be allowed in quasi-contract in all cases of substantial perform- 
 ance in good faith (see Handy v. Bliss (1910), 204 Mass. 513), is less 
 objectionable, if it is objectionable at all, than Professor .Harriman's 
 notion that conditions implied by law must be lived up to as literally 
 as express conditions must be (Id., sec. 340). The practical import- 
 ance of the distinction between express conditions and conditions im- 
 plied by law is that it enables us to avoid the error of the New York 
 court (if it is an error) on the one hand and the error of Professor Har- 
 riman on the other. 
 
 76 Langdell, Rule 2 on Express Conditions. 
 
 78a See Rule 22 on Conditions Implied by Law, post. 
 
 77 See Worsley v. Wood (1796), 6 T. R. 710; Langdell, Summary of 
 Contracts, sec. 33.- 
 
 78 Liverpool, etc., Ins. C^. v. Kearney (1901), 180 U. S. 132; Globe 
 Mutual, etc., Asoc. v. Wagner (1900), 188 111. 133. "Policies are drawn 
 by the legal advisers of the company, who study with care the decisions 
 of the courts, and, with those in mind, attempt to limit as narrowly as 
 possible the scope of the insurance. It is only a fair rule, therefore, 
 which the courts have adopted, to resolve any doubt or ambiguity in 
 
CONDITIONS IN CONTRACT. 39 
 
 For other examples of liberal construction see rules 6 and 8 post 
 under this head. 
 
 3. "Wherever it is doubtful whether certain words do or do 
 not constitute an express condition, it is material to inquire 
 whether they constitute a covenant or promise; for if they do 
 not, that will be an ar^ment in favor of their being a condition, 
 it being a cardinal rule of interpretation to give effect in some 
 way to all the words of a contract, if it be possible ; and the argu- 
 ment becomes much stronger when a covenantor or promisor 
 would otherwise have no remedy for the equivalent of his coven- 
 ant or promise. ' ' ''^ 
 
 4. In leases and deeds of conveyance, the courts are inclined 
 to find only express or implied in fact conditions and to con- 
 sider some words which would naturally import an express con- 
 dition to have been inserted as a matter of form without any 
 intention of creating a condition f but no fixed rule can be laid 
 down. 
 
 5. Where a contract to sell or a sale of goods is made at a 
 price or on terms to be fixed by a third person and "the valuer 
 either dies or refuses to act, the buyer cannot be compelled to 
 pay the price because of the condition in his obligation and the 
 seller, similarly, if he has not already transferred the property, 
 cannot be compelled to do so either because his promise to trans- 
 fer is itself expressly conditional, or because the present or pros- 
 pective failure on the part of the buyer to pay the price excuses 
 the counter obligation to transfer the property in the goods. If 
 [the property is] already transferred to the buyer before it ap- 
 pears that the valuation cannot be made, either party to the bar- 
 gain should have the right to rescind it if the other party can 
 be put in the same position which he was in before the bargain 
 was made. It may, however, happen that the buyer has made use 
 
 favor of the insured and against the Insurer." Taft, J., in Manufac- 
 turers' Accident Indemnity Co. v. Dorgan (1893), 58 Fed. 945, 956. See 
 also Wright v. Fraternities' Health & Accident Assoc. (Me., 1910), 78 
 Atl. 475. 
 
 79 Langdell, Rule 4 on Express Conditions. 
 
 80 Substantially Langdell's Rule 7 on Express Conditions. See Daw- 
 son V. Dyer (1833), 5 Barn. & Adolph. 584. Cf. Edge v. Boileau (1885), 
 16 Q. B. D. 117. 
 
40 PERFORMANCE OP CONTRACTS. 
 
 of the goods or otherwise has become unable to restore them. In 
 such a case the seller is entitled on principles of quasi-contract 
 to recover the fair value of the goods." *^ 
 
 6. The decisions in reference to architect's certificates made a 
 condition precedent in building contracts are not harmonious. 
 Everywhere the fraudulent collusion of the other contracting 
 party with the architect will excuse the non-performance of the 
 express conditions,^^ and the general American rule is that the 
 fraud of the architect or his refusal to exercise ah honest judg- 
 ment, even though he does not collude with the other party, will 
 excuse a failure to produce the architect's certificate,*' or will 
 keep it from being conclusive if produced.^* So where the archi- 
 tect makes such gross mistake in his estimates as necessarily to 
 imply bad faith, a failure to produce his certificate is excused.*' 
 But with these exceptions the general American rule seems to be 
 that the express condition to produce the architect's certificate 
 must be literally complied with,*" and the certificate when pro- 
 duced is conclusive if expressly made so.*"*^ Where the architect 
 dies, before giving the certificate, and the owner was by the con- 
 tract given the right to select any architect, the certificate seems 
 not to be dispensed with altogether, but the appointment of a new 
 architect should be demanded and only on refusal of the demand 
 
 siWilllston on Sales, sec. 175. 
 
 82Batterbury v. Vyse (1863), 2 H. & C. 42, and cases cited in 1 W. 
 ■696, n. 
 
 S3 Cases cited in 1 W. 696-7, n. But in England the fraud of the 
 architect (Jacson v. Tullis [1892] 3 Ch. 441) or his refusal to exercise 
 an honest Judgment (Clarke v. "Watson (1865) 18 C. B. N. S. 278) Is no 
 defense if there is no collusion between the architect and the owner. 
 
 84Tetz V. Butterfield (1882), 54 "Wis. 242; Brin v. McGregor (Tex. 
 Civ. App. 1901), 64 S. W. 78. See also Mercantile Trust Co. v. Hensey 
 (1907), 205 V. S. 298; Mallard, Stacy & Co. v. Moody (1898), 105 Ga. 
 400. 
 
 85 See Chicago, etc., R. R. Co. v. Price (1891), 138 U. S. 185, and cases 
 cited in 1 "W. 703-4, n. See also Norfolk, etc., R. Co. v. Mills & Fairfax 
 (1895), 91 Va. 613; McDonald v. MacArthur Bros. Co. (N. C. 1910), 69 
 S. E. 832. But this is probably not true in England. See note 83, ante. 
 
 86 Bush V. Jones (1906), 144 Fed. 942; Filston Farm CO. v. Henderson 
 & Co. (1907), 106 Md. 335. See 9 Cyc. 615, n. 71; "Williaton on Sales, 
 sec. 177. 
 
 88aLoftus v. Jorjorlan (1907), 194 Mass. 165; Young v. Stein (1908), 
 152 Mich. 310; Shriner v. Craft (Ala. 1909), 51 So. 884. 
 
CONDITIONS IN CONTRACT. 41 
 
 is it clear that the condition is waived." But if 'the architect is 
 named in the contract and dies, a situation like that in Rule 5, 
 ante, arises, with the probability that in these building contracts 
 eases the court will regaxd the condition as no longer existing. 
 
 In New York, unlike most American jurisdictions, express con- 
 ditions in building contracts seem to be treated practically as if 
 conditions implied by law."' In England, on the other hand, 
 
 87 Compare remarks of Willes, X, in Clarke v. "Watson (1865), 18 
 C. B. N. S. 278, 285. Since a discharge of the architect by the owner 
 absolves the builder from the necessity of producing the certificate 
 (Fltts V. Reinhaxt (1897), 102 Iowa, 311), just as a withholding of a 
 certificate at the owner's order does (Caldwell & Drake v. Schmulbach 
 (1909), 175 Fed. 429), the refusal to appoint a new architect in place 
 of a deceased one should have the same effect. That the certificate of 
 the architect who takes the place of the dead architect is as necessary 
 as the latter's would have been, see Beecher v. Schuback (1893), 4 Misc. 
 (N. Y.) 54. 
 
 88 Nolan V. Whitney (1882), 88 N. Y. 648; Crouch v. Gutmann (1892), 
 134 N. Y. 45; MacKnight Flintic Stone Co. v. The Mayor (1899), 160 
 N. Y. 72. In Nolan v. Whitney, ante, the builder's plastering on a 
 ?11,700 contract showed "trivial defects • * • for which a deduc- 
 tion of $200 should be made" and because of these defects the architect 
 refused to give the certificate for the last Instalment of $2,700. The 
 court allowed a recovery after deducting the $200. The ground stated 
 was that the "unreasonable" refusal of the architect to give the certifi- 
 cate dispensed with its necessity although the contract provided that 
 the certificate must be obtained before any payment could be required 
 to be made. For much the same reason that causes the courts to con- 
 strue insurance policies liberally in favor of the insured (see ante, 
 Rule 2 on Express Conditions) and to construe agreements to perform 
 to the satisfaction of the other party to the contract liberally in favor 
 of the one performing (see post, Rule 8 on Express Conditions), the 
 architect clause of a building contract should be construed liberally in 
 favor of the builder; but this New ,York case seems to have been one 
 of refusing to give effect to the clearly expressed intention that the hon- 
 est dissatisfaction of the architect should be final so far as recovery on 
 the contract was concerned. In Crouch v. Gutmann, ante, where the 
 contract was for the building of a brick block for $16,500 payable in in- 
 stalments, and the architect's certificate was an express condition pre- 
 cedent to the right to any payments upon the work, the architect re- 
 fused to give the last certificate because there were defects in the work 
 to the amount of $216.71. The court held that the refusal to give a 
 certificate after deducting that amount was unreasonable and dispensed 
 with the necessity of production of the certificate, since the builder had 
 
42 PERFORMANCE OP CONTRACTS. 
 
 express conditions are upheld so enthusiastically that a building 
 contractor can bind himself not to attempt to set aside for the 
 architect's fraud, a certificate of the architect which must be ob- 
 
 substantially performed. Bradley, J., for the court, said: "The rule of 
 substantial performance should not be extended beyond the purpose 
 in view when the relaxation of the strict performance was adopted, 
 which was founded upon equitable considerations in furtherance of jus- 
 tice, and made applicable to cases of honest intention of contractors to 
 fairly perform their contracts, and who shall in the main have done so, 
 with only slight defects or omissions inadvertently and unintentionally 
 caused and appearing in the work" (p. 55). In dissenting Follett, C. J., 
 said: "The tendency, called equitable, of courts to relieve persons from 
 the performance of engagements deliberately entered into, and in legal 
 effect to make for litigants new contracts which they never entered 
 into, and which it cannot be supposed they ever would have entered 
 into, has been and is being carried to a length which cannot be justified 
 in reason" (p. 58). In connection with this dissenting opinion, see 
 Fuchs V. Saladino (N. Y. 1909), 133 App. Div. 710, where it was held 
 that there was no substantial performance of a building contract, and 
 that the architect's certificate was not unreasonably withheld, because 
 fifteen per cent in value of the work was unperformed. There Laugh- 
 lin, J., for the court said (pp. 715-716) : "Neither a complete nor a sub- 
 stantial performance can be predicated upon facts showing omissions, 
 deviations and defects of this magnitude, regardless of whether or not 
 they constituted structural defects. * * * Contractors should un- 
 derstand that the obligation to perform a building contract is the same 
 as the law imposes with respect to other contracts, and that there can 
 be no recovery where there have been deviations or omissions of a 
 material nature, unless a sufficient excuse or waiver be pleaded and 
 proved, and that the rule with respect to allowing a deduction on ac- 
 count of small or immaterial items, and a recovery as for a substan- 
 tial performance, will not be extended." While the New York build- 
 ing contract cases seem to violate the express contract of the parties, 
 they do seem to apply the fairest rule of damages for the circumstances 
 and if there were no difficulty from the point of view of the law of 
 pleading, might perhaps be justified as cases, laying down the most 
 convenient rule of thumb for computing damages in quasi-contract 
 rather than as cases allowing a recovery on the contract contrary to 
 its intent. The fairness of the rules of damages is emphasized by 
 the rule of Spence v. Ham (190'0), 163 N. Y. 220, 226, under which the 
 builder is required as part of his proof of substantial performance to 
 show not only that the defects or omissions "were unsubstantial and 
 unintentional, but also the amount needed to make them good, so that 
 it can be deducted from the contract price and a recovery had for the 
 
CONDITIONS IN CONTRACT. 43 
 
 tained before the contractor can recover.*' Wliile the New York 
 doctrine is perhaps followed in a few states,'" the English view 
 seems not to have been adopted anywhere in the United States. 
 
 7. "In insurance policies an appraisement or valuation of the 
 injury is frequently made a condition precedent to any right of 
 action. This condition may, however, be excused by the miscon- 
 duct of the company or its appraisers [as, for instance, by the in- 
 excusable refusal of the company 's appraiser to agree on an um- 
 pire.®'] It will be noticed that the situation in such case is an- 
 alogous to that [in paragraph 5 ante] in a sale where title to the 
 goods has passed and they have been used by the buyer. * * ♦ 
 The loss having taken place, it is impossible to remit the parties 
 on their original possession. The plaintiff is therefore entitled to 
 recover the amount of his loss as estimated by a jury. ' ' "^ 
 
 8. In contracts to be performed to the satisfaction of the other 
 party to the contract before payment by him, there is a tendency 
 in the cases to let the honest judgment of the party to be satis- 
 fied control in matters peculiarly the subject of personal taste 
 and judgment, but to construe the language to mean the satisfac- 
 iion of a reasonable man where quality, workmanship, and sale- 
 
 balance only." Theoretically the New York rule Is unsound, but as a 
 practical matter it seems to secure a just result. 
 
 soTuUis V. Jacson [1892], 3 Cb. 441. 
 
 loSee Sullivan v. Byrne (1877), 10 So. Car. 122; Washington Bridge 
 Co. V. Land & River Imp. Co. (1895), 12 Wash. 272. The seeming New 
 York doctrine that the court may disregard the express condition 
 precedent and substitute its judgment or that of the jury for that of 
 the architect it the defects for which the architect refuses to certify 
 seem trivial, must not be confused with the doctrine that in the ab- 
 sence of express conditions a substantial performance of a building con- 
 tract entitles the contractor to recover the contract price less proper de- 
 ductions for the unperformed part. Keeler v. Herr (1895), 157 111. 57; 
 Feeney v. Bardsley (1901), 66 N. J. Law, 239; Foeller v. Heintz (1908), 
 137 Wis. 169. See also Concord, etc., Co. v. O'Brien (1907), 228 111. 360; 
 International Cement Co. v. Beifeld (1898), 173 111. 179. The latter doc- 
 trine is one of conditions implied by law in the absence of express 
 conditions. As to what constitutes a substantial performance of a 
 building contract, see Handy v. Bliss (1910), 204 Mass. 513, 518. 
 
 91 Brock V. Dwelling House Ins. Co. (1894), 102 Mich. 583. See 1 
 "W. 706, n. 
 
 92Williston on Sales, sec. 176. 
 
44 PERFORMANCE OF CONTRACTS. 
 
 ability, of which others can just as well judge, axe wanted."* 
 There is much confusion and conflict in the cases;, however, 
 though it seems clear that "In doubtful cases courts have been 
 incUned to construe agreements of this class as agreements' to do 
 the thing in such a way as reasonably ought to satisfy the def end- 
 ant. "»4 
 
 9. "A promise to pay when able is to be reasonably interpreted. 
 On the one hand it does not imply ability to pay without embar- 
 rassment, or even without crippling the debtor's resources or 
 business, while on the other hand ability to pay cannot be fairly 
 implied while the debtor, although he may be in possession of 
 property sufficient to pay the particular debt, is plainly insol- 
 vent or when payment, if enforced would strip him of his means 
 of support. * * * It is not contemplated by the parties that 
 the debtor will pay the debt out of earnings necessary for the 
 support of himself or his family, or that he will pay the particu- 
 lar debt to the prejudice of other creditors, whose debts are ab- 
 solute and unconditional. " ®° If it is really a promise to pay 
 only when the promisor's circumstances "change for the better, 
 either by an acquisition of fortune or a decrease of obligation,"" 
 it is an essential part of the plaintiff's ease to show such chang& 
 at a period subsequent to the time when the promise was made."" 
 
 10. Arbitration and award may be made express conditions 
 precedent in a proper case. In England and in many American 
 jurisdictions, "if the parties have covenanted that the liability is 
 only to arise after the amount has been adjusted by arbitration, 
 then such adjustment is a condition precedent to the right to re- 
 
 83 Duplex Safety Boiler Co. v. Garden (1886), 101 N. Y. 387; Hawkins 
 V. Graham (1889), 149 Mass. 284, and see cases cited in 1 W. 711, n.; 
 Doll V. Noble (1889), 116 N. Y. 230. 
 
 94 Holmes, C. J., in Hawkins v. Graham, ante. "Perfect satisfaction"^ 
 ■was held to mean only the satisfaction of a reasonable man in Tobin 
 V. Kells (Mass. 1911), 93 N. E. 596. 
 
 95 Andrews, J., in Tebo v. Robinson (1885), 100 N. Y. 29, 30. See 
 cases cited in 1 "W. 719, n. 
 
 90 Work V. Beach (1891), 13 N. Y. Supp. 678. If the promisor once 
 becomes able to pay, the condition disa(pi>ears and his promise becomes 
 absolute, and his subsequent inability will not restore the condition. 
 Denney & Co. v. Wheelwright Co. (1833), 60 Miss. 733. As soon as he 
 •has ability to pay the statute of limitations begins to run. Tebo v.. 
 Robinson (1885), 100 N. Y. 29. 
 
CONDITIONS IN CONTRACT. 45 
 
 cover;"" but, as Professor Williston points out, "in a number 
 of [American] jurisdictions an agreement to arbitrate, though 
 expressed in the form of a condition precedent, is void if it con- 
 cerns more than the amount of damages recoverable, as distin- 
 guished from the existence of a right of action. ' ' ^^ 
 
 11. "Parties may think some matter, apparently of very little 
 importance, essential ; and if they sufficiently express an intention 
 to make the literal fulfillment of such a thing a condition prece- 
 dent, it ■will be one ; °^^ or they may think that the performance of 
 some matter, apparently of essential importance and prima facie 
 a condition precedent, is not really vital and may be compensated 
 for in damages, and if they sufficiently expressed such an inten- 
 tion, it will not be a condition precedent." *" 
 
 12. "While the subject-matter of an implied condition is al- 
 ways a covenant or promise, the words or clause in which an ex- 
 press condition is foimd may or may not constitute also a cove- 
 nant or promise, according to the intention of the parties. " ^'"' 
 
 (c) Rules on Conditions ImpUed in Fact. 
 
 1. Conditions implied in fact are for all practical purposes ex- 
 press conditions and governed by the same rules."^ 
 
 2. When a party's liability is conditional upon the happening 
 of an uncertain event, knowledge of which is peculiarly within 
 the possession of the other party — as where the landlord has 
 promised to repair the inside of a house to which he has not re- 
 served a right of entry for inspection purposes, — ^it is a condition 
 
 87 Wills, J., in Viney v. Bignold (1887), 20 Q. B. D. 172. See Hamil- 
 ton V. Liverpool, etc., Ins. Co. (1890), 136 U. S. 242, and cases cited in 
 2 W. 461, n. But, as Wills, J., also said: "If there is a covenant to pay 
 the amount of the loss accompanied by a collateral provision that the 
 amount shall be ascertained by arbitration, such arbitration is not a 
 condition precedent to the maintenance of an action on the covenant." 
 Viney v. Bignold, ante. 
 
 Oswald's Pollock on Contracts, 3 ed., 449, n; 2 W. 467, n. 
 
 98a But see the insurance statutes referred to in note 53, ante. 
 
 99 Blackburn, J., in Bettini v. Gye (1876), 1 Q. B. D. 183; Adams t. 
 Guyandotte Valley R. Co. (1908), 64 W. Va. 181. 
 
 100 Langdell's Rule No. 3 on Express Conditions. 
 
 101 See Coombe v. .Green (1843), 11 M. & W. 480. See also pp. 9-10, 
 ante. 
 
 4 
 
46 PERFORMANCE OF CONTRACTS. 
 
 precedent to liability on his part to perform that the other party- 
 notify him that the event has happened."^ When, however, both 
 parties have equal means of knowing about the event it is the 
 duty of the promisor to perform without notice.^"' 
 
 (d) Rides on Conditions Implied hy Law. 
 
 Conditions implied by law ought to have been treated by the 
 courts as defenses based upon non-performance by the plaintiff, 
 since the defendant in each case says in effect to plaintiff: — "You 
 have not performed [or "you are not goiag to perform,"] your 
 promise, hence it is not fair to compel me to perform." Some 
 writers treat them imder the head of "Discharge of Contracts:" 
 but as the plaintiff must allege and prove compliance with the 
 conditions before he can recover, and as- historically they have 
 been treated as conditions, it seems better to continue to treat 
 them under the head of conditions. Nevertheless the fact that 
 they really partaJie of the nature of equitable defenses must not 
 be forgotten.^''^ 
 
 ifl2Makln v. Watkinson (1870), L. R. 6 Exch. 25, and cases cited in 2 
 W. 144, n., 147, n. 
 
 103 "The rule to be collected from the cases seems to be this, that 
 where a party stipulates to do a certain thing in a certain specific event 
 which may become known to him, or with which he can make himself 
 acquainted, he Is not entitled to any notice, unless he stipulates for it; 
 but when it is to do a thing which lies within the peculiar knowledge 
 of the opposite party, then notice ought to be given him. That is the 
 common sense of the matter, and is what is laid down in all the cases 
 on the subject; and if there are any to be found which deviate from 
 this principle it is quite time that they should be overruled." Abinger, 
 C. B., in Vyse v. Wakefield (1840), 6 M. & W. 442. See Hayden v. 
 Bradley, 6 Gray (Mass. 1856), 425. But see Hugall v. McLean (1885), 
 53 L. T. Rep. 94, and compare the discussion on pp. 3-5, ante, in regard 
 to notice of advances where a unilateral contract of guaranty is called 
 for. 
 
 104 "The true basis of the rule excusing one party to a contract on ac- 
 count of the default of the other whenever the contract itself does not 
 provide for such excuse is to be found in the fact that parties to a bi- 
 lateral contract, save in exceptional cases, always contemplate that the 
 performance on one side is the exchange or price for the performance 
 on the other, and it is inequitable that either party should be required 
 to perform on his side not only when he has not received but when he 
 
CONDITIONS IN CONTRACT. 47 
 
 Preliminary to any attempted statement of rules as to condi- 
 tions implied by law, it should be pointed out tbat it is often im- 
 possible to draw a sharp line between what is gathered from the 
 terms of the contract as a matter of construction — ^that is, what 
 it is concluded that the parties really expressed as their intention 
 even though they did so obscurely — and what is not expressed 
 but is supplied by the courts by the application of equitable prin- 
 ciples. Accordingly there will be found in some of the follow- 
 ing numbered paragraphs some statements which might perhaps 
 have been given under the head of express conditions, but which, 
 as the tendency today is against express conditions because of the 
 exactness with which they must be performed and in favor of 
 conditions implied by law because of their less harsh operation, 
 are classed by choice under the head of conditions implied by law. 
 
 Because the parties to contracts often fail to provide expressly 
 the order in which their performances are to take place, and be- 
 cause, in every bilateral contract, the performances are neverthe- 
 less presumed to be given in exchange for each other, the courts, 
 in the interest of justice will, wherever possible, regard perform- 
 ance on either side as prima facie conditional on concurrent per- 
 formance on the other side; and this whether the bilateral con- 
 tract is under seal or not under seal.^"^ 
 
 But with reference to this prima facie rule it must be noted : 
 
 1. If the covenant or promise on one side is to do something 
 which requires time for its performance, while the covenant or 
 promise on the other side is simply to pay money or give prop- 
 erty, the act requiring time must prima facie be fully performed 
 before the money is payable or the property is to be handed 
 pygj. 106 Instances of such contracts are : service contracts, build- 
 ing contracts, charter parties.^"' 
 
 is not going to receive performance from the other party. This doc- 
 trine is entirely analogous to the doctrine of failure of consideration." — 
 Wald's Pollock on Contracts, 3 ed., 324, n. 
 
 105 This is a rewording of Langdell's general rule on Implied Condi- 
 tions and first two comments thereon. Ct. Langdell's Summary of 
 Contracts, sees. 132, 133. That concurrent conditions are favored, see 
 Delaware Trust C o. v. C alm (1909), 195 N. Y. 231; Ink v. Rohrig (So. 
 DaK. lyuSJ, l7a N. W. l>^. 
 
 106 See Baker v. Higglns (1860), 21 N. Y. 397, and cases cited in 2 
 W. 83, n. The above rule is a rewording with variations of part of 
 
48 PERFORMANCE OP CONTRACTS. 
 
 2. "When a bilateral contract is in writing and performance 
 by A is in terms made conditional upon performance by B, while 
 B's promise is in terms absolute and unconditional, there is no 
 room for implying [as a matter of construction] a condition in 
 B's promise, the maxim expressum facit cessare taciturn being 
 applicable ; " 1"^ but for all that, since on grounds of justice con- 
 current conditions are implied wherever possible, and since they 
 are not expressly negatived by the contract, the mutual promises 
 would seem to constitute mutual and concurrent conditions ac- 
 cording to the general rule. And even if Professor Langdell's 
 opinion to the contrary was right and "A's promise is subject to 
 an express condition precedent while B 's promise is [ordinarily] 
 independent, ' ' ^°° the qualification contained in Rule 3 next post 
 applies. 
 
 3. "When by the express terms of a contract, one side is to be 
 (Performed before the other, the side which is to be performed 
 first is [ordinarily to be treated as] independent and absolute, 
 while the other side is subject to a condition precedent ; " ^i" but if 
 before performance is due from the side which is first to perform, 
 the party who is to perform the other side renders his own per- 
 formance impossible, becomes insolvent and in consequence it is 
 certain that neither he nor those entitled to act in his place will 
 be both able and willing to perform,^^^ or in any other way makes 
 
 Langdell's Rule No. 3 on Implied Contracts. Cf. Langdell, Summary 
 of Contracts, see. 125. The latter part of Langdell's Rule No. 3 on Im- 
 plied Conditions needs tlie qualification given in Rules 3 and 4 next 
 post. 
 
 107 But "Contracts of service for a specified term are held severable 
 when the wages can be construed as payable at specified shorter pe- 
 riods." 2 W. 83, n. 
 
 108 Quoted from Langdell's Rule No. 14 on Implied Conditions. 
 
 108 Id. 
 
 110 Langdell's Rule No. 4 on Implied Conditions. 
 
 111 Ordinarily the insolvency of a party to an executory contract, or 
 an adjudication that he is a bankrupt, does not constitute a breach of 
 the contract, and the same is true of his discharge in bankruptcy if 
 the statute does not make it apply to the contract. Phenix Nat'l Bank 
 V. Waterbury (1910), 197 N. Y. 161. "Nor does bankruptcy or 
 insolvency alone entitle the other party to rescind the contract; but 
 a notification by a party of his insolvency may be taken as presump- 
 tively importing an offer to rescind, which the other party may accept 
 
CONDITIONS IN CONTRACT. 49 
 
 it certain that he will not or cannot perform, the party who was 
 first to perform is excused from performing.'^^^ 
 
 If it is uncertain from the tenns of the contract when made 
 which side is to be performed first, but it afterwards becomes 
 
 [see Hobbs v. Columbia Falls Brick Co. (1892), 157 Mass. 109]; and It 
 would at least justify a refusal on his part to complete the contract, 
 unless the insolvent or his representatives should prove their ability 
 and readiness to complete on their part." Leake on Contracts, 5 ed., 
 p. 621. See Ex parte Chalmers (1873), L. R. 8 Ch. 289. "The insolv- 
 ency of one party to a contract does not release the other from its ob- 
 ligations, provided always the consideration promised, if money, be 
 paid, or if the consideration be the note or other obligation of the In- 
 solvenf, money be tendered in its place." — Field, J., in Florence Min- 
 ing Co. v. Brown (1888), 124 U. S. 385, 389. See Pratt v. Mfg. CO. 
 (1902), 115 "Wis. 648. 
 
 "The only question of difficulty is concerning the duty of the solvent 
 party to tender performance on the chance that the trustee in bank- 
 ruptcy may wish to assume the contract. It has been held that bank- 
 ruptcy does not discharge the solvent party from making such a ten- 
 der. It seems, however, that this rule is a harsh one. In most cases 
 contracts made by bankrupts are not carried out, and It seems a Justi- 
 fiable assumption for the solvent party in a particular case that the 
 contract is not going to be carried out, in the absence of an assertion 
 by the trustee in bankruptcy of his intention to adopt the contract." — 
 Williston on Sales, sec. 662, p. 1112. 
 
 111a See Wald's Pollock on Contracts, 3 ed., 323-324, n, and cases 
 there cited. But in Kinney v. Federal Laundry Co. (1907), 75 N. J. 
 L. 497, and United & Globe Rubber Mfg. Co. v. Conrad (N. J. 1910), 
 78 Atl. 203, it was held that the first promise is so independent that 
 though the other party is in default he may recover on it. Compare the 
 case where the lessor of a room rented to view King Edward's corona- 
 tion procession was allowed to recover its price, which was payable be- 
 fore the procession was to take place, although the action in which he 
 recovered was not brought until after the date when the procession was 
 prevented from taking place by the King's illness. Chandler v. Web- 
 ster [1904], 1 K. B. 493. The soundness of the decision is doubted in 
 Anson on Contracts (Huffcut's 2 Amer. Ed.) 401. 
 
 One who refuses to perform on the ground that the other party can- 
 not or will not perform does so, of course, at the peril of proving the 
 Inability or uncertainty. "The case comes down to this, as far as the 
 rule of law governing it is concerned: Plaintiff believed and perhaps 
 had reasonable cause to believe the city would be unable to carry out 
 its part of the contract; that is to say, would be unable promptly to 
 furnish a right of way for the sewer system, and in consequence he 
 
50 PERFORMANCE OP CONTRACTS. 
 
 certain, it is then the same as if in the original contract the dates 
 for performance had been put in as they afterwards turn out 
 to be. 
 
 4. "If the covenant or promise on the one side is to do specific 
 acts which require time for their performance, while the covenant 
 or promise on the other side is simply to pay money, and the time 
 for the payment of the money is fixed, while the time for the per- 
 formance on the other side is left indefinite and may be either be- 
 fore or after the money becomes payable, or partly before and 
 partly afterwards according to circumstances, both sides of the 
 contract wiU [ordinarily] be deemed independent and abso- 
 lute;" ^^^ but if prior to the time fixed for either party to per- 
 form the other party repudiates the contract, renders his own 
 performance impossible, becomes insolvent and ia consequence it 
 is certain that neither he nor those entitled to act in his place will 
 be both able and willing to perf orm,^^^ or in any other way makes 
 it certain that he will not or cannot perform, the party not so 
 behaving will be excused from performing.^^* 
 
 5. "But when in an agreement for the sale of real estate a day 
 is fixed for the payment of the money and nothing is said as to 
 the time of delivering the deed, the deed will be deliverable by im- 
 putation when the money is payable ; and the effect will be the 
 same as if the same day has been expressly fixed for the payment 
 of the money and tlie delivery of the deed, and the two sides of the 
 contract wiU be mutual and concurrent conditions ; " ^^^ and, in 
 general, when in an agreement a day is fixed for performance on 
 one side and nothing is said as to the time for performance on the 
 other, the latter performance, will, if possible, be due by impli- 
 cation on the day fixed for the first performance.^^' 
 
 might sustain loss; but this was by no means certain, and the law does 
 not relieve a man from a contractual obligation because he believes 
 with good cause the person with whom he has contracted will be un- 
 able to perform." — Goode, J., In Coonan v. City of Cape Girardeau (Mo. 
 App. 1910), 129 S. W. 745, 748. 
 
 112 To this point the rule is Langdell's Rule No. 5 on Implied Con- 
 ditions. 
 
 lis On Insolvency see note 111, ante. 
 
 11* See note Ilia, ante. 
 
 116 Langdell's Rule No. 6 on Implied Conditions. 
 
 118 See Stillman Hdw. Co. v. Davis (1890), 53 N. J. L. 144. "Thus 
 
JUL 2y im 
 
 CONDITIONS IN CONTRACT. L^ W LIB^AR Y 
 
 6. Where real property is to be paid for in several installments 
 and by the contract a deed is not to be given except at the time 
 of the receipt of the last installment, but there is no provision 
 that the last payment shall not be due without the deed, the courts 
 of most states will imply mutual concurrent conditions at the 
 time of the last payment ; ^" and because such conditions are im- 
 plied in the interests of justice the better view would seem to be 
 that if, under a contract where several installments of the pur- 
 chase money are to precede final payment and the final payment 
 and the giving of the deed constitute concurrent conditions, the 
 seller does not sue for the earlier installments until the last comes 
 due, then after such last installment comes due he cannot sue 
 upon any installment without tendering a deed "' and any judg- 
 ment recovered by him will merge all unsued for prior install- 
 ments.^^® 
 
 7. When the covenant or promise on the one side is negative 
 and is to refrain from doing something perpetually, while the 
 covenant or promise on the other side is to pay money at a fixed 
 time, it is, of course, impossible that the negative covenant or 
 promise should be fully performed before the money is payable,^^" 
 but if before the day comes for the payment of the money there is 
 
 in the case of the delivery of a deed and payment of money. If no 
 date is set for performance, or if the date as to either delivery or pay- 
 ment is fixed, or the same date is set for both, then they are to be per- 
 formed simultaneously, and either side must tender performance or 
 show a waiver to put the other In default." — ^Professor Clarence D. 
 Ashley on "Conditions in Contract," 14 Yale L. J. 424, 427. 
 
 117 Hill V. Grigsby (1868), 35 Cal. 656, and cases cited pro and con in 
 2 "W. 47, n. See also Kane v. Hood, 13 Pick. (Mass. 1832) 281. 
 
 iisBeecher v. Conradt (1855), 13 N. Y. (3 Kernan) 108, and cases 
 cited pro and con in 2 W. 152, o. See Eddy v. Davis (1889), 116 N. Y. 
 155. 
 
 119 "It is a well established proposition of law that if a contract pro- 
 vides for payment by instalments, due at different times, the instal- 
 ments may, of course, be successively sued on as they become payable, 
 but each action should include every instalment due when it is com- 
 menced, unless a suit is, at the time, pending for the recovery thereof 
 or other special circumstances exist." — Woodward, J., in Seed v. John- 
 son (1901), 63 N. Y. App. Dlv. 340, 343. See Beecher v. Ct)nradt, ante. 
 
 120 To this point the rule is a rewording of Langdell's Rule No. 7 on 
 Implied Conditions. 
 
52 PERFORMANCE OP CONTRACTS. 
 
 either a breach or certainty that there will be a breach, payment 
 of the money will be excused.^^^ 
 
 8. Where each side of a bilateral contract is put into a sepa- 
 rate instrument, complete in itself and not making any reference 
 to the other side, the better rule is that each side will neverthe- 
 less be dependent upon the other, if it would have been so had 
 both sides been put in the same instrument.^^^ In such eases, the 
 defendant has of course to plead any breach of condition, but 
 when he has done that the general American rule places on the 
 plaintiff the burden of proving af&rmatively the performance of 
 the condition on his part.^''* 
 
 9. "When the covenant or promise on the one side is to pay a 
 fixed sum of money or do some other act and on the other side to 
 guarantee a debt or insure against some risk or contingency, both 
 sides of the contract will be independent and absolute; for al- 
 though the covenant or promise on the one side is the equivalent of 
 the covenant or promise on the other side, yet there is no equiva- 
 lency in the performance. In such cases the covenant or promise 
 on the one side to guarantee or insure is the full equivalent for ac- 
 tual performance on the other side. ' ' '^^ 
 
 10. Where there has been a breach of condition after part per- 
 formance of the party making default, his default cannot be 
 taken advantage of by the other party to terminate the latter 's 
 obligation unless the breach is so substantial that it defeats the 
 main scope or an important object of the contract ^^^ — ^that is, 
 
 121 See the last part of Rule 3, ante, on Conditions Implied by Law. 
 
 122 Hunt V. Livermore, 5 Pick. (Mass. 1827) 395, and cases pro and 
 con in 2 W. 150, n. Langdell's Rule No. 8 on Implied Conditions ex- 
 pressed the opposite doctrine of Moggridge v. Jones (1811), 14 East, 
 486, that where each side of a bilateral contract is in a separate instru- 
 ment the promises are independent and that "In fact, there are in that 
 case two separate and distinct contracts, and it is erroneous to say that 
 the two instruments constitute one bilateral contract; and it seems 
 that parol evidence is not admissible to connect them together." Lang- 
 dell's Rule No. 8. See Harriman on Contracts, 2 ed., sec. 334. 
 
 123 See 2 W. 151, n. 
 
 12* Langdell's Rule No. 9 on Implied Conditions. The same is true 
 where each side guarantees a debt or insures against a risk or contin- 
 gency. Christie v. Borelly (1860), 29 L. J. Rep. C. P. 153, and cases 
 cited in 2 W. 176, n. Cf. Martindale v. Fisher (1745), 1 Wilson, 88. 
 
 126 Langdell's Summary of Contracts, sec. 161; Harriman on Con- 
 tracts, 2 ed., sec. 516; 2 W. 55, n. See Kauffman v. Raeder (1901), 108 
 
CONDITIONS IN CONTRACT. 53 
 
 -goes to the substance, essence or root of the contract — and even if 
 the breach is in limine, that is, at the outset, it is not any trifling 
 or formal breach which will justify non-performance by the other 
 party,"" though a less breach will justify non-performance by 
 the other party if the breach is in limine than if it takes place 
 after part performance. A trifling breach, though not justifying 
 non-performance, may nevertheless give the other party a right 
 of action for damages.^^' 
 
 In England a breach of a promise or covenant to perform an 
 act at a certain time will perhaps more quickly be held to go to 
 the essence than will a breach of a promise or covenant to pay 
 money at a certain date ; '^* but it should be remembered that the 
 general American rule is that in mercantile contracts, whether 
 an act or money only is called for, time is of the essenee.^^' 
 
 11. The temporary illness of an employee which does not go 
 to the root of the contract wiU not prevent him from enforcing 
 the contract ; ^^^ but where the illness makes it necessary to get a 
 -substitute and no adequate substitute can be obtained unless en- 
 gaged for the full period of service of the sick employee, the ill- 
 ness goes to the root of the matter, and the employment of the 
 substitute for the full period of service discharges the employer 
 from further liability on the contract to the sick employee. "^ 
 
 Fed. 171. "When the failure to perform the contract Is In respect to 
 matters which would render the performance of the rest a thing dif- 
 ferent in substance from what was contracted for, so far as we are 
 advised, the authorities all agree the party not in default may aban- 
 don the contract." — Schofield, J., In Leopold v. Salkey (1878), 89 111. 
 -412, 422, ,423. 
 
 i2ttSee Bettini v. Gye (1876), 1 Q. B. D. 183. Compare Hoare v. Ren- 
 nie (1859), 5 H. & N. 19. 
 
 12' See Rule 1 of General Rules, ante. 
 
 128 "All that the [English] authorities require of us is not to pre- 
 sume delay in payment, as distinguished from delivery, to be in itself 
 a total breach. In other words, non-payment will not as a rule justify 
 refusal to perform on the other side, unless there be something more in 
 the circumstances by which it Is shown to amount to repudiation." — 
 Wald's Pollock on Contracts, 3 ed., 330. 
 
 129 Norrington v. Wright (1885), 115 U. S. 188, and cases cited in 
 2 W. 110, n.; National, etc.. Tool Co. v. Standard, etc., Co. (1902), 181 
 Jdass. 275. 
 
 130 2 W. 69, n. 
 
 131 Poussard v. Spiers (1876), 1 Q. B. D. 410, and cases cited in 2 W. 
 
54 PERFORMANCE OP CONTRACTS. 
 
 12. A contract to employ may imply a condition not only to- 
 pay a salary but also actually to furnish work. It depends upon 
 the nature of the business. If work has to be furnished, it is 
 probable that in every case it would be a breach to the essence not 
 to furnish it.^^^ 
 
 13. "A servant may be discharged by the master from his em- 
 ployment provided a sufficient cause actually exists, whether the 
 same was known to or assigned by the master at the time of the 
 discharge or not. ' ' ^'' 
 
 14. In contracts for the purchase and sale of personal property 
 the risk of loss through fire is in general on the one having the 
 legal title,^^* but in the case of conditional sales many jurisdic- 
 tions make the buyer stand the loss if the goods are accidentally 
 destroyed or injured ^^^ and in the case of shipments under bills 
 of lading where the situation is analogous to that where a condi- 
 tional sale is made, some jurisdictions also put the loss on the 
 buyer although title has not- vested in him.^*° 
 
 15. In those contracts for the sale of real property where the 
 obligation of the buyer to take the property is absolute, the weight 
 of authority seems to put the loss on the buyer, although the l^al 
 title has not passed, since the buyer has a right to specific per- 
 formance and is in equity the real party in interest,^'^ but on that 
 point there is a vigorous minority.^^* 
 
 16. ' ' In contracts for the purchase and sale of real estate there 
 are important differences between the law of England and the 
 law of this country as to what constitutes performance by the 
 parties respectively. Thus in England the presumption [in the 
 absence of a provision in the contract to the contrary] is that the 
 deed of conveyance is to be prepared by the buyer and tendered 
 to the seller for execution ; while in this country [in such case] 
 
 69, n. A similar doctrine seems to exist as to the effect of the fletentioit 
 of the employee as a result of his arrest. Leopold v. Salkey (1878); 
 89 in. 412. 
 
 132 Stirling, L. J., in Turner v. Sawdon Co. [1901], 2 K. B. 653. 
 
 133 Green v. Edgar (1880), 21 Hun, 414, and cases cited in 2 "W. 82, n. 
 184 Williston on Sales, sec. 301. 
 
 135 Id., sec. 304. 
 
 136 Id., sec. 305. 
 
 137 Professor Williston in 9 Harv. Law. Rev. 112-114, and cases cited. 
 i3sid. 113, and cases cited. Wells v. Calnan (1871), 107 Mass. 514. 
 
CONDITIONS IN CONTRACT. 55 
 
 the presumption is that it is to be prepared by the party who is 
 to execute it. Hence in an action by the seller, it is only neces- 
 sary in England to aver a readiness and willingness to execute a 
 deed of conveyance ; while in this country it is necessary to aver 
 an execution of it and an oifer to deliver it. In an action by the 
 buyer, on the other hand, it is necessary in England to aver a 
 tender of a deed of conveyance for execution ; while in this coun- 
 try it is only necessary to aver a readiness and ■willingness and an 
 offer to pay the purchase money upon the delivery of a deed of 
 conveyance. ' ' ^'° 
 
 17. Where a vendor of real property voluntarily conveys it 
 away after the contract of sale is made, the vendee is relieved 
 from performance in most jurisdictions on the ground that the 
 vendor has made himself imable to perform,^*" but that seems 
 wrong on principle where it is apparent that the vendor can get 
 the property back again in time to perform.^*^ It has been held 
 in one of the majority jurisdictions that an outstanding incum- 
 brance which neither party knew about, but which the vendor 
 might have removed did not show inability of the vendor to per- 
 form."^ 
 
 18. Where a buyer of real property dies intestate and the time 
 within which a conveyance is to be made to him and payment to 
 be made by him will expire before an administrator can be ap- 
 pointed, it seems that if within the time fixed for performance by 
 the contract the seller evidences unmistakably his readiness and 
 willingness to perform, he wUl be given a reasonable time after 
 the appointment of an administrator in wMch to make his tender 
 and demand the carrying out of the bargain, provided, of course. 
 
 139 Langdell, Summary of Contracts, sec. 170. 
 
 140 James v. Burchell (1880), 82 N. Y. 108, and cases cited in 2 W. 
 163, n; Eddy v. Davis (1889), 116 N. Y. 247, See Sir Anthony Mayne's 
 Case (1596), 5 Rep. 20, b. 
 
 1*1 See cases contra to James v. Burchell in 2 W. 163, n. 
 
 142 Ziehen v. Smith (1836), 148 N. Y. 558; Higgins v. Eagleton (1897), 
 155 N. Y. 466. So an agreement to sell personal property one does not 
 yet own is all right. Borrowman, etc., Co. v. Free (1878), 4 Q. B. D. 
 500. But "in some jurisdictioiis contracts to sell in the future stock 
 or merchandise which the seller did not own at the time of the contract 
 are made illegal [by statute] without reference to any Intention that 
 there shall be no delivery." 2 W. 206, n. 
 
56 PERFORMANCE OF CONTRACTS. 
 
 that he is diligent about securing the appointment of an admin- 
 istrator after his right to do so acerues.^*^ 
 
 19. In leases, the covenant to pay rent and the covenant to re- 
 pair are in general independent ; ^** but if a landlord covenants 
 to keep premises in repair and nevertheless allows the premises 
 to become untenantable, the tenant may move out — constructive 
 eviction — and thereby terminate his liability for future rent.^*° 
 
 20. The general American rule is that in the case of divisible 
 contracts — that is, contracts where part performance on one side 
 is apportioned to part performance on the other side ^*'' — condi- 
 tions will be implied to prevent further performance from being 
 compelled by a party whose breach has gone to the essence of the 
 contract.^*^ Whether or not a breach as to one or more appor- 
 tioned part performances goes to the essence, that is, is so ma- 
 terial as to defeat the other party's legitimate object in making 
 the contract, is a question of fact in each case. The American 
 tendency is to hold that non-performance of one installment will 
 
 i«Pead V. Trull (1899), 173 Mass. 450. There readiness to perform 
 was evidenced by a tender within the contract time to the widow, and 
 to one who had been the attorney of the deceased In other matters and 
 who later was appointed administrator. 
 
 i**Leavitt v. Fletcher, 10 Allen (Mass. 1861), 119, and cases cited in 
 2 W. 177, n. 
 
 i« 2 W. 177, n. 
 
 1*8 "It is not always an easy question to determine whether a bar- 
 gain constitutes a simple divisible contract or whether there are sev- 
 eral separate contracts. * * * The question essentially is one of 
 fact: Did the parties give a single assent to the whole transaction or 
 did they assent separately to several things?" — Williston on Sales, sec. 
 466. 
 
 "Primarily the question whether a contract is entire or separable is 
 one of intention. But the general rule is that where the part to be per- 
 formed by one party consists of several distinct and separate items and 
 the price to be paid is apportioned to each item according to the value 
 thereof, and not as one unit in the whole or a part of a round sum, the 
 contract may and will be regarded as severable. And this rule holds 
 true, even though the contract may be in a sense entire, if what is to 
 be paid Is clearly and distinctly apportioned to the different items as 
 such, and not to them as parts of one whole." — Morton, J., in Barlow 
 Manufacturing Co. v. Stone (1908). 200 Mass. 158, 160. 
 
 147 Norrington v. Wright (1885), 115 U. S. 188, and cases cited in 2 
 W. 117, n. Cf. Wald's Pollock on Contracts, 3 ed., 331. 
 
CONDITIONS IN CONTRACT. 57 
 
 justify a refusal to proceed with the rest of the contract, whether 
 the seller fails to deliver or whether the buyer fails to accept de- 
 livery or pay for the installment.'*' 
 
 The English doctrine, which has some American support, seems 
 to be that the breach of a divisible contract does not justify re- 
 scission unless the acts or conduct of the wrongdoer evince an 
 intention on his part no longer to be bound by the contract, i. e., 
 "wholly to abandon the contract and set the other party free.'"** 
 
 "Defective quality of one installment, however, does not seem 
 generally to excuse the purchaser from taking other installments 
 either in England or this country, though he may refuse to ac- 
 cept any installment when offered if it is of poor quality. ' ' "" 
 Nevertheless there are cases which seem to show that in some ju- 
 risdictions defective quality in one installment may excuse the 
 purchaser from further performance. '°' 
 
 21. In England and a majority of American jurisdictions it is 
 an implied condition of a contract that the promisor shall not an- 
 
 i^sRugg V. Moore ,(1885), 110 Pa. St. 236, and cases cited in 2 W. 
 123, n; Williston on Sales, sec. 467. But see Beatty v. Howe Lumber 
 Co. (1899), 77 Minn. 272. 
 
 149 Lord Coleridge, C. J., in Freeth v. Burr (1874), L. R. 9 C. P. 208; 
 Mersey Steel & Iron Co. v. Naylor (1884), 9 App. Cas. 434. For an 
 American case, see Quarton v. American Law Book Co. (1909), 143 
 Iowa, 517. That the refusal ot one party to perform unless the other 
 party will consent to a modification of the contract may amount to a 
 total breach of the contract, see Withers v. Reynolds (1831), 2 B. & A. 
 882; Richards v. Manitowoc, etc., Co. (1909), 140 Wis. 85. In Corn- 
 wall V. Henson (1900), 2 Ch. 298, 304, Collins, L. J., said that since Mer- 
 sey Steel & Iron Co. v. Naylor, ante, "the law is now clear that the 
 breach of one stipulation [in a contract] does not necessarily carry 
 with it even an implication of an intention to repudiate the whole 
 contract. It may do so if the circumstances lead to the inference; but 
 the further the parties have proceeded in the performance the less 
 likely is it that by the breach of one stipulation by one party he should 
 intend to declare his incapacity to perform the contract, or his inten- 
 tion not to carry it out." That repudiation is a good positive test but 
 an insufficient negative one is pointed out in Wald's Pollock on Con- 
 tracts, 3 ed., 330. 
 
 isoWald's Pollock on (3ontracts, 3 ed., 332, n.; Cahen v. Piatt (1877), 
 69 N. Y. 348. 
 
 iBiFullam V. Wright & Cblton Co. (1907), 196 Mass. 474. See also 
 McDonald v. Kansas City Bolt & Nut Co. (1906), 149 Fed. 360. 
 
58 PERFORMANCE OF CONTRACTS. 
 
 noTince beforehand that he will not perform an importajit part 
 of the contract and if he does so announce the other party may, 
 in those jurisdictions, not only change his position accordingly, 
 and thereby be excused from performing on his part ^^^ but also 
 sue at once on the contract.^^^ Before the other party changes 
 his position, however, or sues, the party who has announced a 
 repudiation may repent and withdraw his repudiation even 
 against the other party's protest,'^^* except where mutual prom- 
 ises to marry or other contracts calling particularly for stead- 
 fastness are concerned. 
 
 It has been intimated that there is no anticipatory breach 
 where the promisor announces that he will be unable to perform 
 yet has no intention of repudiating the contract if, contrary to 
 all his expectations, he should become able to perform ^°'* and it 
 has also been held that there is no such breach where the prom- 
 isor says that he wiU perform if an altogether improbable thing 
 shall happen.^^* Moreover the anticipatory breach doctrine does 
 not apply to all kinds of contracts.^'^ 
 
 In all jurisdictions the party who has been notified of repudia- 
 tion may, and in some jurisdictions he must,^°* wait until the 
 
 i52Rayburn v. Comstock (1890), 80 Mich. 448. 
 
 iBsHochster v. De La Tour (1853), 2 E. & B. 678, and cases cited in 
 2 W. 221, n.; 226, n.; 240, n., and contra to Daniels v. Newton in 2 W. 
 250, n. The anticipatory breach doctrine is not accepted in Massachu- 
 setts and a few other American jurisdictions. Daniels v. Newton 
 (1874), 114 Mass. 530, and cases cited in 2 W. 250, n. 
 
 is*Traver v. HaJsted (1840), 23 Wend. 66; Perkins v. Frazer (1901-2), 
 107 La. 390. See Zuck v. McClure (1881), 98 Pa. St 541. 
 
 156 Johnstone v. Milling (1886), 16 Q. B. D. 460. 
 
 156 Dingley v. Oler (1886), 117 U. S. 490. 
 
 167 The anticipatory breach doctrine does not apply to promissory 
 notes. See cases cited in 2 W. 250, n. It has also been held not to ap- 
 ply to a contract to make a will. Warden v. Hinds (1908), 163 Fed. 
 20. Cf. Pittman v. Plttman (1901), 110 Ky. 306. The cases divide on 
 the question whether it applies to insurance policies. That it does is 
 asserted in O'Neill v. Supreme Council American Legion of Honor 
 (1904), 70 N. J. L. 410, and in an early New York case, Fischer v. 
 Hope Mutual Ufe Ins. Co. (1877), 69 N. Y. 161. But the contrary is 
 Insisted in Langan v. Supreme Council American Legion of Honor 
 (1903), 174 N. Y. 266. As in such cases the company refuses to receive 
 premiums or other dues, it is probable that an actual and not an an- 
 ticipatory breach exists. See 24 Harv. Law Rev. 404. 
 
 158 Daniels v. Newton (1874), 114 Mass. 530, and cases in 2 W. ^50, n. 
 
CONDITIONS IN CONTRACT. 59 
 
 time set for performance before suing, even though in reliance 
 on the repudiation he enters into contracts with others which 
 make it impossible for the repudiating party to withdraw his 
 repudiation. Damages must not be enhanced against the other 
 party needlessly, however, so except, it seems, in England and in 
 Illinois the non-repudiating party, or the party notified to stop 
 performing, must stop if to go ahead will enhance the damages 
 the other party will have to pay,^°° and accordingly damages 
 may be recovered without further performance by the non-re- 
 pudiating or notified party if only he can show readiness and 
 ability to have performed but for the repudiation or notice.^®" 
 
 The doctrine of anticipatory breach must not be confused with 
 xjases of actual breach of contracts calling for continued perform- 
 ance, where the actual breach justifies or requires the assessment 
 of full damages.^*^ And it should be remembered that even 
 though no change of position in reliance on the anticipatory 
 breach takes place, a repudiation of contract unretracted down to 
 the time of performance may be held not only to justify the non- 
 repudiating party in failing to tender performance but also to 
 entitle him, after the time for performance and without tender of 
 performance on his part, to recover for actual breach of con- 
 tract.^"^ 
 
 22. In the case of partly unilateral and partly bilateral con- 
 
 159 Clark v. Marsiglia, 1 Denio (N. Y. 1845), 317, and cases in 2 W. 
 255, n. The opposite Idea announced In the case of Roebling's Sons 
 Co. V. Lock Stitch Fence Co. (1889), 130 111. 660, while It has some 
 English authority In Its favor (see Frost v. Knight (1872), L. R. 7 Ex. 
 Ill, 112, and Wald'a Pollock on Contracts, 3 ed., 348, 349) Is indefensl- 
 "ble. Kadish v. Young (1883), 108 111. 170, was a case where it was 
 proper for the plaintiff to go ahead after notice to stop because there 
 was nothing to show that damages could or would be enhanced by so 
 going ahead. 
 
 leoCort V. Ambergate, etc., Ry. Co. (1851), 17 Q. B. 127; Rayburn v. 
 Comstock (1890), 80 Mich. 448. 
 
 161 Parker v. Russell (1882), 133 Mass. 74, and cases cited in 2 W. 
 253, n. Cf. Henry v. Rowell, Exec. (1900), 64 N. Y. Supp. 488. In 
 Daniels v. Newton, ante, it is suggested as barely possible that there 
 may "be sound reason to deduce from a promise to marry, or to em- 
 ploy in a special capacity, at a future time, present obligations of im- 
 plied contract upon which an action may be founded" If the promise 
 is repudiated before the time set arrives. 
 
 i6ia Ripley v. McClure (1849), 4 Ex. 345. 
 
60 PERFORMANCE OF CONTRACTS. 
 
 tracts, where the part which is actually performed is compara- 
 tively immaterial, and the part promised and yet to be performed 
 is the essential and material part of the consideration, condition* 
 are implied just as in wholly bilateral contracts, since for aU 
 practical purposes such partly bilateral contracts are the same as. 
 wholly bilateral contracts partly performed ; "^ but where the 
 part which is actually performed is the essentially material part 
 of the consideration and the part promised and yet to be per- 
 formed is comparatively immaterial, either conditions are not im- 
 plied, because after the essentially material part has been per- 
 formed by one party the great difference between the part still "ta 
 be performed by him and that promised by the other party makes 
 it as impossible to regard the performances as in exchange as we 
 found it to be in the cases of insurance and guaranty covered by 
 Rule 9 ante, on Conditions Implied by Law, or else, if conditions 
 were implied before such substantial part performance, that per- 
 formance makes them cease to exist.^'^ 
 
 23. Whether in wholly unilateral contracts there are conditions 
 implied by law is a question of some difficulty, but despite the 
 opinion to the contrary expressed in the article of which this is 
 a revision it seems that in some such contracts there may be such, 
 conditions. In the case of a simple unilateral contract there is 
 usually no question of performance except whether an offer of 
 contract has been accepted by the giving of the act or thing called 
 for, or whether an absolute or expressly conditioned promise 
 given in consideration of the act or thing has been performed. 
 And in the case of sealed unilateral contracts, such as insurance 
 policies, there is usually no question except whether the express 
 conditions have been complied with. In the ordinary case of uni- 
 lateral contracts therefore, no possibility of conditions being im- 
 plied by law in contracts would seem to exist. But in the case of 
 a unilateral option, as where for $50 paid to A by B, A promises 
 in writing not under seal that if within sixty days B pays A 
 $5,000, A will deed Blackaere to B in fee, but B makes no prom- 
 ise to do anything, or where by writing under seal A covenants 
 to the same effect, B not covenanting to do anything, it is per- 
 haps difficult to say whether the parties iu view of general busi- 
 
 i»2 Ellen V. Topp (1851), 6 Ex. 424, and cases cited in 2 "W. 51, n. 
 163 See Rule No. 24, post. 
 
CONDITIONS IN CONTRACT. 61 
 
 ness usage actually have and express an intention to make a 
 simultaneous exchange of the deed and the $5,000, should B de- 
 cide within the time limited to exercise his option, or whether there 
 is the absence of such expression of intention and accordingly the 
 law implies concurrent conditions. Because, however, owing 
 to their more just operation, conditions implied by law should be 
 found to exist wherever possible in preference to express condi- 
 tions, probably it should be admitted that the option unilateral 
 contract constitutes an instance of conditions implied by law.^°* 
 
 24. Where the law implies a condition precedent it is done on 
 grounds of justice, and after the condition has been substantially 
 performed, the same reason of justice makes it "no longer com- 
 petent for the defendant to insist upon the non-performance of 
 that which was originally a condition precedent." "" 
 
 164 The original rule, reworded and slightly enlarged to bring out 
 more accurately and clearly the point Involved, was In substance this: 
 "In wholly unilateral contracts there seem to be no implied condi- 
 tions; but the courts seek to accomplish the same just result as if 
 conditions were implied by construing a unilateral promise to convey 
 property for money at the option of the promisee to require a tender 
 to put the promisor In default, by giving the promisor in a unilateral 
 contract to pay money for goods at the option of the promisee a lib- 
 eral power of rejection of goods, etc." 
 
 It should be noted that Langdell's Rule No. 13 on Implied Conditions 
 read: "As there are no implied conditions in contracts only partly 
 bilateral, a fortiori, there are none in contracts wholly unilateral." 
 Professor Langdell's view that there are no conditions implied by law 
 In partly bilateral contracts was rejected in Rule No. 22, ante, and his 
 view as to wholly unilateral contracts, which was also the view ex- 
 pressed in the article of which this is a revision, is now, though with 
 some hesitancy, abandoned. 
 
 165 Parke, B., in Graves v. Legg (1854), 9 Exch. 709. Approved in 
 Carter v. Scargill (1875), L. R. 10 Q. B. 564. 
 
 5 
 
PART II 
 
 IMPOSSIBILITY OF PERFORMANCE 
 
 When so-called impossibility of performance, whicli may or 
 may not be actual impossibility, is recognized as a defense to a 
 contract, it is in the nature of a condition implied by law which 
 is precedent in fact but subsequent in forrn.^"' It is in the na- 
 nature of a condition implied by law, however, only because it is 
 essentially an equitable defense, for as such a defense it is based 
 upon a different reason from that which sustains conditions im- 
 plied by law. In the case of a condition implied by law the de- 
 fendant's defense is that he has not had or is not going to receive 
 the performance which the plaintiff was to give the defendant in 
 exchange for the latter 's performance. Where impossibility is 
 recognized as a defense, the plaintiff's performance in exchange 
 for the defendant's was assured, and the defendant's defense is 
 simply that because of the extraordinary circumstances which the 
 courts consider to constitute impossibility, it is not fair to require 
 the defendant to perform as nearly as is possible or else to pay 
 damages, unless by his contract he assumed the risk of the hap- 
 pening of those extraordinary circumstances. 
 
 (a) Bules on Impossibility of Performance. 
 
 In regard to the defense of impossibility, it should be noted : 
 1. The common law general doctrine, to which there are im- 
 portant exceptions, seem still to be that impossibility arising after 
 the formation of the contract is no defense to an action for 
 breach of contract, unless the contract itself expressly makes 
 it one. That general doctrine has such vitality that it is not yet 
 the law that an act of God or of the public enemies which pre- 
 vents performance will excuse the breach of contract,^"' though. 
 
 io8C!ompare the discussion of certain express conditions subsequent, 
 so called, in note 25, ante. 
 187 In Lord Clilford v. Watts (1870). L. R. 5 C. P. 577, 586, Willes, J., 
 
IMPOSSIBILITY OF PERFORMANCE. 63 
 
 as the later numbered paragraphs will show some acts of God 
 will serve to excuse.^'* But because the general doctrine that 
 impossibility is no defense is a harsh one, the courts are inclined 
 to construe a contract, if they can fairly, so as not to make it re- 
 quire a performance under after-happening circumstances so ex- 
 traordinary that the risk of them ought not to be thrown on the 
 promisor. 
 
 "There can be no question that a party may by an absolute 
 contract, bind himself to perform things which subsequently be- 
 come impossible, or pay damages for the non-performance, and 
 such construction is to be put upon an \mquaMed undertaking 
 where the event which causes the impossibility might have been 
 anticipated and guarded against in the contract, or where the 
 impossibility arises from the act or default of the promisor. But 
 where the event is of such a character that it cannot be reasonably 
 supposed to have been in the contemplation of the contracting 
 parties when the contract was made, they will not be held bound 
 by general words, which, though large enough to include, were 
 not used with reference to the possibility of the particular con- 
 tingency which afterwards happens." ^*° 
 
 2. If performance of a promise becomes impossible owing to a 
 
 said: "But where the performance of the thing covenanted to be done 
 is not made Impossible by the law of this country, the case falls within 
 the principle laid down In the leading case of Paradlne t. Jane (1648), 
 Aleyn, 26, where the defendant, in an action for rent, sought to excuse 
 himself by reason of his having been expelled from the premises by 
 alien enemies, and his plea was held insufficient. The material resolu- 
 tion of the court was that 'where the law creates a duty or charge, and 
 the party is disabled to perform it, without any default in him, and 
 hath no remedy over, there the law will excuse him;' but 'when the 
 party by his own contract creates a duty or charge upon himself, he Is 
 bound to make it good If he may, notwithstanding any accident by in- 
 evitable necessity, because he might have provided against it by his 
 contract; and therefore if the lessee covenant to repair a house, 
 though It be burnt by lightning, or thrown down by enemies, yet he 
 ought to repair It.' Where a thing [promised] become Impossible of 
 performance by the act of a third person, or even by the act of God, 
 Its impossibility affords no excuse for its non-performance; it is the 
 defendant's own folly that has led him to make such a bargain without 
 providing against the possible contingency." 
 
 188 See, for instance, Rules 3, 5, 6 and 8, post. 
 
 i»o Chicago, M. & St, P. Ry. Co. v. Hoyt (1893), 149 U. S. 1, 14, 15. 
 
64 PERFORMANCE OF CONTRACTS. 
 
 change in domestic law as contrasted with foreign law,"" or to 
 action of the home govemmental authority,"^ after the maJdng 
 of the contract, and the promisor has not expressly assumed the 
 risk of such change, performance is excused; "^ but "where the 
 law prevents performance of a contract for a limited time only, 
 the obligation of the contract is suspended but not discharged. ' ' "* 
 3. If performance of a promise becomes impossible owing to 
 the death or Ulness"* of the promisor whose personal services 
 
 170 Impossibility owing to foreign law does not excuse. 2 W. 290, n. 
 The reason for the difierence is sometimes said to be that impossibility 
 by law is no excuse, but that prevention by local law makes the prom- 
 ise illegal. Tweedie Trading Co. v. McDonald Co. (1902), 114 Fed. 985. 
 But that reasoning seems inapplicable to all cases of the application 
 of local law. See, for instance, Bailey v. De Crespigny (1&69), L. R. 
 4 Q. B. 180. The distinction between impossibility caused by local law 
 and impossibility caused by foreign law seems purely arbitrary. 
 
 "1 Thomas v. Hartshorne (1881), 45 N. J. Eq. 215; Adler v. Miles 
 (1910), 126 N. Y. Supp. 135. That dispossession by the military au- 
 thorities of one's own country will relieve a lessee from the obligation 
 to pay rent during the period of dispossession, see Gates v. Cioodloe 
 (1879), 101 U. S. 612. 
 
 172 Bailey v. De Crespigny, ante, and cases cited in 2 W. 290, n. Im- 
 possibility arising subsequent to the making of the contract is all that 
 is covered by this statement. Impossibility caused by the law govern- 
 ing the contract at the time the contract is entered into usually makes 
 the contract illegal and enforceable by neither party. But in some 
 cases an exception has been made where the plaintiff was ignorant of 
 the facts on which the illegality depends. "Where the Impossibility 
 is known to the promisor, but not known to the promisee, he must be 
 taken to promise absolutely; as where a married man promises to 
 marry a woman, who was then unaware of his being married [citing 
 Wild V. Harris (1849), 7 C. B. 999; Milward v. Llttlewood (1850), 5 Ex. 
 775]." — Leake on Contracts, 5 ed., 483, 484. 
 
 173 Wald's Pollock on Contracts, 3 ed., 625, n., citing School District 
 of Sherman County v. Howard (1904), 5 Neb. (unofBcial) 340, 98 N. W. 
 666. See also Hadley v. Clarke (1799), 8 T. R. 259 (where, however, 
 the suspension lasted two years and probably should have been held 
 to excuse defendant from performance); Esposito v. Bowden (1857), 
 7 B. & B. 763; Geipel v. Smith (1872), L. R. 7 Q. B. 404. 
 
 174 The impossibility by illness does not have to be absolute, but 
 may be only practical impossibility. If a singer Is so sick that It is 
 unreasonable to ask him to sing, he is excused. Elven the apprehended 
 illness of one party has been held to excuse the other party from tfie 
 performance of a contract to buy an interest as partner in the busi- 
 
IMPOSSIBILITY OF PERFORMANCE. 65 
 
 are contracted for, or of some one whose personal services he has 
 agreed to furnish, and the promisor has not expressly assumed 
 the risk of such happening, performance is excused.^^° So if the 
 
 ness of the one whose illness was apprehended. Powell v. Cash (1896), 
 54 N. J. Eq. 218. And it has been held that an employee is excused 
 from performing his contract of service if a cholera epidemic breaks 
 out "so dangerous in its character that a man of ordinary care and 
 prudence, in the exercise of those qualities" is justified in leaving, and 
 the employee, in fear of the epidemic, actually does leave. Lakeman 
 V. Pollard (1857), 43 Me. 463. Compare the case of an employee com- 
 pelled by strikers to quit work. Walsh v. Fisher (1899), 102 Wis. 172. 
 
 "5 Spalding v. Rosa (1877), 71 N. Y. 40, and cases cited in 2 W. 316, n. 
 On the effect of the dissolution of a corporation see note 178, post. If 
 either party to a contract to marry becomes aflSlcted without fault with 
 a disease which is of a permanent character and which would make 
 the marriage state dangerous to the life or health of either, perform- 
 ance by either is excused. Sanders v. Coleman (1899), 97 Va. 690; 
 Allen V. Baker (1882), 86 N. C. 91; Grover v. Zook (1906), 44 Wash. 
 489. "We hold, therefore, that a contract to marry is coupled with the 
 Implied condition that both parties remain in the enjoyment of life 
 and health, and if the condition of the parties has so changed that the 
 marriage state would endanger the life or health of either a breach of 
 the contract is excusable." — Sanders v. Coleman (1899), 97 Va. 690, 
 694-695. But see Hall v. Wright (1859), E. B. & E. 745, 765, contra, 
 where the defendant was the one afflicted. As to the effect of a subse- 
 quent change in mental condition, see dictum in Shackelford v. Hamil- 
 ton (1892), 93 Ky. 80, 88. 
 
 Where after the contract to marry one of the parties acquires a 
 loathsome disease by an immoral act, his condition is not a defense 
 to an action for breach of contract of marriage. Smith v. Compton 
 (1902), 67 N. J. L. 548. Such a case is to be treated as one where the 
 defendant has prevented performance. Where without his fault the 
 defendant has become afflicted with a loathsome disease making mar- 
 riage improper, "if the disease is of a temporary character * * * 
 and could easily be cured, the defendant is entitled [only] to postpone 
 the marriage until he is cured." — Marshall, J., in Trammell v. Vaughan 
 (1900), 158 Mo. 214, 223. In Grover v. Zook, ante, where one party 
 -was seriously affected with pulmonary tuberculosis and the other had 
 an hereditary taint of the same disease, their contract to marry was 
 teld void as against public policy, though the parties were aware of 
 the facts prior to the engagement. 
 
 "In this country it is generally held that where one engaged under 
 an entire contract for personal services, after part performance, is by 
 sickness disabled from fully performing, or dies, an action lies in his 
 
66 PERFORMANCE OF CONTRACTS. 
 
 emj)loyer in such a personal contract dies, the contract is dis- 
 charged.^^" 
 
 4. If performance of a promise is made impossible by act of the 
 promisee, the promisor is of course excused from performance, as 
 such act of the promisee is a prevention of performance ; ^^' but 
 if the performance is made impossible by the act of the promisor, 
 the impossibility thus created is no defense."' 
 
 favor, or his administrator's as the case may be, to recover on account 
 of the work actually performed, but as to the measure of recovery the 
 cases are not harmonious. [Citations.] As to sickness, which It was 
 held plaintiff should have foreseen^ and which, therefore, did not ex- 
 cuse non-performance, see Jennings v. Lyons (1876), 39 Wis. 553." — 
 W aid's Pollock on Contracts, 3 ed., 548, n. 
 
 178 Lacy V. Getman (1890), 119 N. Y. 109, and cases cited in 2 W. 
 320, n. It is stated in that note that "The death of one member of a 
 partnership is generally held to dissolve a contract of employment 
 made with the firm." But if the surviving partner continues the part- 
 nership business and treats the contract of employment as in force, 
 it seems that he cannot later insist that the death of his partner ended 
 it. Hughes v. Gross (1896), 166 Mass. 61. 
 
 i"Dodd V. Churton [1897], 1 Q. B. 562, and cases cited in Wald's 
 Pollock on Contracts, 3 ed., 549, n., and Page on Contract, sees. 1444r- 
 1446. Of. note 72, ante. 
 
 1-8 Bell V. Shields (Idaho, 1910), 116 Pac. 1076; Teachenor v. Tibbals 
 (1906), 31 Utah, 10; Page on Contracts, sec. 1443; Wald's Pollock on 
 Contracts, 3 ed., 549, note 37; 7 Halsbury's Laws of England, 432. 
 
 Where without compulsion of the Board of Health a school board 
 closes the schools because of the prevalence of contagious diseases, the 
 impossibility of performance thus created is generally held not to ex- 
 cuse payment of the salaries of the teachers for the period of suspen- 
 sion. Dewey v. Union School District (1880), 43 Mich. 480, and cases 
 cited in 2 W. 323, n. See also McKay v. Barnett (1900), 21 Utah, 239; 
 Randolph v. Sanders (1899), 22 Tex. Civ. App. 331, 54 S. W. 621. But 
 where the Board of Health closes the school, the impossibility, being 
 created by the local law, is held to excuse such payment. School Dis- 
 trict of Sherman County v. Howard (1904), 5 Neb. UnofE. 340, 98 N. W. 
 666. 
 
 If a corporation voluntarily dissolves, it is liable for failing to ful- 
 fill its contracts (2 W. 331, n.) because any impossibility is of its own 
 creation; and where the corporation is wound up by the state, while 
 some courts hold that the resulting impossibility, like the death of a 
 natural person, is a defense (People v. Globe Mut. Life Ins. Co. (1883), 
 91 N. Y. 174, and cases cited in 2 W. 331, n.), it would seem that It 
 ought not to be such defense where the wrong doing and not merely 
 
IMPOSSIBILITY OF PERFORMANCE. 67 
 
 5. If the defendant contracts to furnish labor and materials and 
 to build a house on the land of plaintiff, the destruction of the 
 house before its completion and acceptance will not excuse hiTin 
 from performance and will not even justify his retention of in- 
 stalments paid him on account.^™ But if the defendant con- 
 tracts to repair an existing house or chattel of the plaintiff or to 
 furnish part of the labor and materials for a house for plaintiff 
 towards the erection of which house the plaintiff is to furnish 
 other labor and materials under an arrangement in substance like 
 a contract by defendant to repair, and the house is destroyed 
 without the defendant's fault, the defendant is excused from 
 further performance,^*" and the question whether there may be a 
 
 the excusable misfortune of the corporation causes the state's action, 
 for there also the impossibility is the fault of the corporation. See 
 Rosenbaum v. U. S. Credit System Co. (1898), 61 N. J. L. 543. 
 
 "Impossibility as an excuse for non-performance, must as a general 
 rule be a physical or legal impossibility, and not merely an impossibility 
 with reference to the ability and circumstances of the promisor." — 
 7 Halsbury's Laws of England, 427. On the effect of insolvency on 
 contracts, see note 111, ante. 
 
 178 stees V. Leonard (1874), 20 Minn. 494. "Where one contracts to 
 build a house on the land of another and performance becomes Imprac- 
 ticable either by reason of a latent defect in the soil, or, the contract 
 being to finish and deliver the house by a day named, by reason of 
 the accidental destruction of the building shortly before that day, he 
 is not excused from performance; and performance not being excused 
 he cannot retain installments paid on account." — ^Wald's Pollock on 
 Contracts, 3 ed., 528, n., and cases cited. On recovering back install- 
 ments paid, see School Trustees v. Bennett (1859), 37 N. J. L. 513. 
 
 180 Butterfield v. Byron (1891), 153 Mass. 517; Cook v. MoObe 
 (1881), 53 Wis. 250; Krause v. Board (1903), 162 Ind. 278. But in 
 Vogt V. Hecker (1903), 118 Wis. 306, a contract to build a barn upon a 
 foundation and with materials furnished by the property owner was 
 held to be one for the construction of a complete building, or, at least, 
 governed by the rule applicable to such a contract, and in (Thapman v. 
 Beltz & Sons Co. (1900), 48 W. Va. 1, where under a contract to remodel 
 and rebuild a house, using some of the old walls, the building without 
 the builder's fault collapsed, the builder was held liable in damages for 
 breach of contract, because the owner notified the builder that he ex- 
 pected to restore the building to the condition it was in when the 
 builder began the improvements and required the builder to furnish 
 it and the builder on receiving the notice wrote the owner it would 
 insist that there was no obligation on it to restore or complete the im- 
 
68 PERFORMANCE OP CONTRACTS. 
 
 quasi-contractual recovery for repairs prior to the destruction of 
 the house or chattel will be answered variously in different juris- 
 tions. By the general rule recovery for the work done after de- 
 ducting payments made is generally allowed/"^ but in England 
 and some American jurisdictions both parties are discharged and 
 neither may recover against the other unless the contract is sev- 
 erable, in which latter event recovery may be had for the amount 
 already earned at the time of the destruction of the building.^*'' 
 6. If the performance of a contract for the sale of existing 
 goods, the title to which has not passed to the buyer, becomes im- 
 possible without the fault of the promisor because of the de- 
 struction of the goods after the making of the contract ^^' or of 
 such deterioration in their quality after the making of the con- 
 tract that they are so substantially changed in character that the 
 buyer may properly, and actually does, refuse to accept them,^** 
 or because they are contracted to be made at a particular factory 
 which bums down,^" or are to be a crop grown on a particular 
 piece of ground in a particular season and the crop is destroyed 
 by a disease which "no skill or care on the part of the defendant 
 [the seller] could have prevented,"^'' the seller is excused from 
 performance ; ^" but where a crop may be grown anywhere that 
 
 prpvements on said building. But that such offer of the owner will 
 not make the builder liable, see Krause v. Board (1903), 162 Ind. 278, 
 291-293. 
 
 181 Wald's Pollock on Contracts, 3 ed., 537, n. 
 
 182 Appleby v. Myers (1867), L. R. 2 C. P. 651; Anglo-Egyptian Navi- 
 gation Co. V. Rennie (1875), K R. 10 C. P. 271; Siegel Cooper & Co. 
 V. Eaton & Prince Co. (1897), 165 111. 550. See The Madras [1898], P. 
 90. Of Siegel Cooper & Co. v. Eaton & Prince Co., ante, it has been 
 said: "The court held the contract in that case severable, but without 
 apparent reason." — Harrlman on Contracts, 2 ed., sec. 274, note 5. 
 
 183 Williston on Sales, sec. 164. Compare case where destruction 
 precedes sale. Id., sec. 163. 
 
 184 Williston on Sales, sec. 164. Compare case where deterioration 
 precedes sale. Id., sec. 163. 
 
 185 Stewart v. Stone (1891), 127 N. Y. 500. 
 
 186 Howell V. Coupland (1876), L. R. 9 Q. B. D. 258, and cases cited in 
 Wald's Pollock on Contracts, 3 ed., 539, n. See also Whipple v. Lyons 
 Beet Sugar Refining Co. (1909), 118 N. Y. Supp. 338, where the crop 
 was to be grown In a certain town. according to specific directions pre- 
 scribed by the buyer. 
 
 isTAn analogous situation is that presented by Lord Clifford v. 
 
IMPOSSIBILITY OF PERFORMANCE. 69 
 
 the grower pleases, or goods may be manufactured anywhere that 
 the manufacturer pleases, the fact that the crop fails from causes 
 not reasonably to be expected,'*^ or that the factory selected by the 
 manufacturer as the one where the goods were to be made bums 
 down without his fault "° is no defense. 
 
 7. If a leasehold building is accidentally destroyed, the com- 
 mon law doctrine is that the lessee's obligation to pay rent con- 
 tinues ; ^"^ and if a lease contains an express covenant by the les- 
 see to make repairs or a covenant to surrender the premises at 
 the expiration of the term in as good condition as at the begia- 
 ning of the tenancy, the common law doctrine is that if the prem- 
 
 "Watts (1870), L. R, 5 C. P. 577, where performance of defendant's 
 promise to raise 1,000 to 2,000 tons of pipe clay per year for twelve 
 years from designated clay pits was held to be excused by the fact that 
 there was no clay of that description in the land. See also Brick Co. 
 V. Pond (1882), 38 Ohio St. 65. But the promisor may assume the 
 risk ■of such deficiency and so be liable. Marquis of Bute v. Thompson 
 (1844), 13 M. & W. 487. See Du Bois Boro v. Du Bois Water "Works 
 Co. (1896), 176 Pa. St. 430, and see cases cited in Wald's Pollock on 
 Contracts, 3 ed., 541, n. The case of Clifford v. Watts, ante, is not one 
 of supervening impossibility but of mutual mistake of the parties as 
 to the existence of the subject matter of the contract, which mistake 
 lias the same consequences as impossbility. See Muhlenberg v. Hen- 
 ning (1887), 116 Pa. St. 138; Boyer v. Fulmer (1896), 176 Pa. St. 282. 
 For such mistake in the case of sales of personalty, see Williston on 
 Sales, sec. 161. On the deterioration or partial destruction of the 
 goods prior to sale, see Id., sec. 162. 
 
 138 Anderson v. May (1892), 50 Minn. 280; Newell v. New Holstein 
 ■Canning Co. (1903), 119 Wis. 635. 
 
 189 Booth V. Spuyten Duyvil Rolling Mill Co. (1875), 60 N. Y. 487. 
 See Turner v. Goldsmith [1891], 1 Q. B. 544, where the same doctrine 
 was applied to a contract to employ plaintiff as traveling salesman 
 for goods "manufactured or sold" by the defendant. Though the de- 
 :fendant's place of business burned down, the defendant was held not to 
 l>e excused since "the plaintiff's employment was not confined to articles 
 manufactured by the defendant." See also Summers v. Hibbard (1894), 
 153 111. 102, where the maker's mill plant became disabled. 
 
 190 Fowler v. Bott (1809), 6 Mass. 63. See Wald's Pollock on Con- 
 tracts, 3 ed., 531, and n. "It is held in this country that the lessee of 
 apartments in a building, his lease giving him no interest in the soil 
 upon which the building stands. Is released from his covenant to pay 
 rent by the accidental destruction of the edifice." — Id. 
 
70 PERFORMANCE OP CONTRACTS. 
 
 ises are injured by third persons^"' or the building thereon is 
 destroyed by accidental fire,"^ the performance of the covenant 
 is not excused, but the premises must be restored. But this com- 
 mon law doctrine has been changed by statute or decision in some 
 states.^'^ 
 
 8. If the performance of other contracts than those covered by 
 the foregoing paragraphs becomes impossible because of the 
 destruction of the subject matter, without the fault of either 
 party, and without an assumption by the promisor of the risk of 
 such destruction, the impossibility caused by the destruction ex- 
 cuses performance.^^* 
 
 9. If owing to some accidental cause, a lessee from year to year 
 is unable to vacate the leased premises at the end of the term, 
 there are two views as to his situation where he notifies the land- 
 lord that he will not occupy for another year. Those two views 
 cannot exist, it would seem, in jurisdictions where to create a new 
 tenancy by holding over "there must be a new contract either ex- 
 press or inferable from the dealings of the parties ; " ^'^ but in 
 other jurisdictions one view is that despite the accidental cause 
 and notice the tenant by holding over becomes a tenant for a new 
 term,^°° while the other view is that as the law imposes the new 
 tenancy on the party who holds over it can and does excuse him 
 from it, or more accurately, declines to impose the new tenancy 
 if he holds over only because inevitable accident or the act of 
 God prevents removal.^*'' 
 
 loiPolack V. Ploche (1868), 35 Cal. 416. See Beach v. Grain (1848), 
 2 N. Y. 86. 
 
 182 Hoy V. Holt (1879), 91 Pa. St. 88; Armstrong v. Maybee (1897), 
 17 Wash. 24; Phillips v. Stevens (1819), 16 Mass. 238. 
 
 193 Wattles V. South Omaha lee & Coal Co. (1897), 50 Neb. 251; See- 
 vers V. Gabel (1895), 94 Iowa, 75. 
 
 194 Taylor v. Caldwell (1863), 3 B. & S. 826, and cases cited in Wald's 
 Pollock on Contracts, 3 ed., 536, n. 
 
 195 1 Tiffany on Real Property, 153. 
 
 190 Mason v. Wierengo's Estate (1897), 113 Mich. 151, where the ten- 
 ant of a store was taken sick after beginning removal and his clerks 
 did not finish the work of removal until ten days after the expiration 
 of the term. 
 
 i97Herter v. Mullen (1899), 159 N. Y. 28, where removal from a 
 dwelling house was impossible because the tenant's mother was sick 
 
IMPOSSIBILITY OF PERFORMANCE. 71 
 
 10. If the performance of other contracts than those covered 
 by the foregoing paragraphs becomes impossible because of "the 
 failure of the [only] contemplated means of performance "^"^ 
 and the promisor has not assumed the risk, some courts hold that 
 performance is excused "^ and others do not. 2°° The better opin- 
 ion would seem to malte such impossibility an excuse.^"^ 
 
 11. If the performance of a contract is to take place within a 
 reasonable time, and an unexpected strike which the promisor 
 cannot stop, except on unreasonable terms to which he refuses 
 to accede, interrupts performance, that unusual happening, while 
 not excusing performance, may be taken into account in determin- 
 ing what is a reasonable time for performance ; ""' but in general 
 an unexpected strike is no excuse for failure of performance 
 within an agreed time or, if none, within a reasonable time.^"^ 
 
 In bed and it would have endangered her life to remove her before the 
 end of the holding over. 
 
 isswilliston on Sales, sec. 661. 
 
 108 Id.; Clarksville Land Co. v. Harriman (1895), 68 N. H. 374; 
 NickoU V. Ashton [1900]', 2 Q. B. 298. 
 
 2oowilliston on Sales, sec. 661. In Ashmore v. Cox [1899], 1 Q. B. 
 436, there cited, it was held that the fact that prevention of perform- 
 ance of a contract of shipment was due to the Spanish American war 
 was no excuse. 
 
 201 See cases cited in notes 185 and 186, ante. "It is probable that 
 the tendency of the law is toward an enlargement of the defense of 
 impossibility, and in any case where it may fairly be said that both 
 parties assumed that the performance of the contract would Involve 
 the continued existence of a certain state of affairs, impossibility of 
 performance due to a change in this condition will be an excuse." — Wil- 
 liston on Sales, sec. 661. 
 
 202 Empire Transportation Co. v. Philadelphia & Reading Coal & Iron 
 Co. (1896), 77 [Fed. 919, and cases cited in 2 W. 344, n.; Castlegate 
 Steamship Co. v. Dempsey [1892], 1 Q. B. 854; Hick v. Raymond [1893], 
 A. C. 22; Geismer v. L. S. & M. S. R. R. Co. (1886), 102 N. Y. 563; 
 Haas V. Kansas City, etc., R. Co. (1888), 81 Ga. 792. 
 
 208 Isaacson v. Starrett (1909), 56 Wash. 18; Morse Dry Dock & Re- 
 pair Cta. V. Seaboard Transportation Co. (1907), 154 Fed. 90; Black- 
 stock V. New York & Erie R. R. Co. (1859), 20 N. Y. 48. But see contra 
 where common carriers are under obligation to deliver in a reasonable 
 time and it is the lawlessness of strikers whose places have been taken 
 by competent men that causes the delay. Pittsburg, Fort Wayne & 
 Chicago R. R. Co. v. Hazen (1876), 84 111. 36; Indianapolis & St. Louis 
 
72 PERFORMANCE OF CONTRACTS. 
 
 12. "It sometimes happens that because of excusable impossi- 
 bility or other legal defense a contractor is unable to fulfill all of 
 a number of similar obligations and yet could fulfill any one of 
 these obligations if he totally disregarded the others. In such a 
 case the contractor may apportion the possible performance pro 
 rata among the several contracts, and be excused from further 
 liability. "="* 
 
 R. Co. V. Juntgen (1881), 10 111. App. 295; I. & G. N. R. R. Co. v. Server 
 (1889), 3 Tex. Ct. of Appeals Civ. Cas. §■ 441. 
 
 In Budgett v. Binnington [1891], 1 Q. B. 35, shipowners were al- 
 lowed to recover against consignees on a contract that a cargo should 
 be taken out of a ship in a certain number of days after unloading 
 began, with a specified demurrage, although after unloading began 
 there was a strike of the laborers both of the shipowners and of the 
 consignee and although both sets of laborers were needed for the un- 
 loading, which by the custom of the port of discharge was made the 
 joint act of the shipowners and the consignees. 
 
 204Williston on Sales, sec. 661, citing Oakman v. Boyce (1868), 100 
 Mass. 477. But "One who agrees to do a specific act which can, with- 
 out violating the terms of the contract, be performed in one of two 
 ways, is not discharged from his contract because one of the two meth- 
 ods of performance becomes impossible." — Page on Contracts, sec. 1380, 
 citing Board of Education v. Townsend (1900), 63 Ohio St. 514, and 
 Adams v. Adams (1898), 19 Wash. 425. 
 
APPENDIX A. 
 
 Sergeant Williams' Rules on Conditions in Contracts^''° 
 
 "It is justly observed, that covenants, etc., are to be corLstnied 
 to be either dependent or independent of each other, according to 
 the intention and meaning of the parties, and the good sense of 
 the case ; and technical words should give way to such intention 
 [Citations]. In order, therefore, to discover the intention, and 
 thereby to learn, with some degree of certainty, when perform- 
 ance is necessary to be averred in the declaration, and when not, 
 it may not be improper to lay down a few rules, which will per- 
 haps be found useful for that purpose. 
 
 "1. If a day be appointed for payment of money or part of it, 
 or for doing any other act, and the day is to happen or s&etf ha:p- 
 pe» iefore the thing which i.s the consideration of the money or 
 other act is to be performed, an action may be brought for the 
 money, or for not doing such other act before performance ; for 
 it appears that the party relied upon his remedy, and did not in- 
 tend to make the performance a condition precedent ; es^ ee i* is 
 
 ■tttT-\ y^■w^^ i-> j-\ -i-ttnn j-\ -t n ^^S^Q£L ^^Ud ■ir\f\tn+ f\-nw\ n-tn t^r\ ^^t ■<■ li ft 4- ttt1-\'i n.1^ i n ■♦■T-i ^\ nj^-r\ 
 TV i-I.\_' J. \J ±±.\J IJ I I I IT? TCT I I Jlil-'Xi: J. VX \J\ X ^\J i. iJJ.\X±X\j\J yjA. VIXVLTJ K JJIXTS^Z to tut? TJTTxT" 
 
 oidoration ef *be money e* other fte*.°°° [Citations]" ; [bnt if 
 
 205 Any discussion of conditions implied by law would be Incomplete 
 that did not refer to Sergeant Williams' Rules on Conditions contained 
 in his note to Pordage v. Cole (1669), 1 'Williams' Saunders, 319. 
 Those rules were originally published in 1799, but are copied here from 
 volume 1, pp. 55(K556, of the 1871 edition of "Notes to Saunders' Re- 
 ports by the late Sergeant iWilliams, continued to the present time 
 by the Right Hon. Sir Edward Vaughan Williams." The lines drawn 
 through words or rules indicate that for one reason or another stated 
 in the notes post, the language of Sergeant Williams is not approved. 
 Additions made by the present writer to the text of the rules are brack- 
 eted. 
 
 208 In explaining his first rule, Sergeant Williams said: "This seems 
 to be the ground of judgment in this case of Pordage v. Cole, the money 
 being appointed to be paid on a fixed day, which might happen lefore 
 the lands were, or could be, conveyed" (1 Notes to Saunders' Reports 
 (1871 ed.) 551). But if Pordage v. Cole were up for decision today it 
 
74 PERFORMANCE OP CONTRACTS. 
 
 before the day fixed for the payment of the money or the doing 
 of the act the other party repudiates his own covenant, renders 
 his own performance impossible, becomes insolvent and in con- 
 sequence it is certain that neither he nor his representatives will 
 be both able and willing to perform, or in any other way makes 
 it certain that he will not or cannot perform, the party who was 
 to pay the money or do the act on the day appointed but will be 
 excused from performing. ]^*^ 
 
 "But, 2, when a day is appointed for the payment of money, 
 etc., and the day is to happen after the thing which is the con- 
 sideration of the money, etc., is to be performed, no action can 
 be maintained for the money, etc., before performance. [Cita- 
 tions.] 
 
 "3. Whoro ft Govonant gees eeiy te part ef *be oonoidoration 
 
 damagco, i* is aa indopondcnt oovonant , fta4 aa action mscf be 
 maintained ie¥ a breach e^ covenant ee tbe ^a^t ei tbe dofond - 
 a»*^ without averring porformanoo [j» *fee ease ef a condition 
 
 current ] m tbe declaration . °°° [Citations.] 
 
 would be held to be a case of concurrent conditions, and accordingly 
 the words of Sergeant Williams' Rule 1, inserted by him in reliance on 
 Pordage v. Cole, are marked for omission by having a line drawn 
 through each. 
 
 207 This bracketed matter is an addition suggested by the present 
 writer. See Rule 3 on Conditions Implied by Law, ante. 
 
 208 Sergeant Williams' Rules 3 and 4 are taken from the brief opin- 
 ion of Lord Mansfield in Boone v. Eyre (1777), 1 H. Bl. 273, note. When 
 that case was decided, conditions concurrent were not yet recognized 
 and enforced as such, so the language used related only to conditions 
 precedent. But even as applied to conditions precedent the language 
 is not clear. Since the language comes from Boone v. Eyre, ante, 
 where the contract was for the conveyance of an equity of redemption 
 of a plantation, together with the stock of negroes on the plantation, 
 in consideration of £500 and an annuity of £160 per annum for the 
 seller's life, where to the breach of covenant to pay the annuity the 
 plea alleged, and the seller by general demurrer admitted, that the 
 seller was not legally possessed of the negroes on the plantation, and 
 where the court gave judgment for the plaintiff because "if this plea 
 were to be allowed any one negro not being the property of the plaintiff 
 would bar the action," it seems clear that the language of the two rules 
 was intended as a general statement to the effect that if a breach by 
 
APPENDIX A. 75 
 
 "4. ©ft* whcro ike mutual oovonanto ge *e tfee wholo oonoid - 
 oration ©» both oidoo, *bey ft¥e mutual oonditiono ftad perform - 
 
 one party to the contract does not go to the essence of the contract, 
 the other party is bound to perform on his part, though he has an action 
 for the damages due to the breach, but that if the breach Is so ma- 
 terial as to go to the essence of the contract, such other party is ex- 
 cused from performing. As was said by Goode, J., in Koerper v. Royal 
 Inv. Co. (1903), 102 Mo. App. 543, 77 S. W. 307, 309: "By no means every 
 breach of a contract by a party entitles the other to regard it as aban- 
 doned, and it is not always easy to tell what breach Is sufficient to do 
 so. One rule is that, when the failure or refusal to perform substan- 
 tially deprives the innocent party of the benefit that would arise from 
 performance — in other words, goes to the entire consideration that in- 
 duced him to make the contract — he may treat it as abandoned by the 
 non-performing party." But because of its ambiguity, the language 
 of Boone V. Eyre, ante, and therefore of Sergeant Williams' Rules 3 
 and 4 has been twisted so as to suggest the application of part of it to 
 divisible contracts in a way that may be proper in England but not 
 generally in this country. In 2 Parsons on Contracts (9 ed.), 682, for 
 instance, we find this language: "It is said that where the clause in 
 question goes to the whole of the consideration it should be read as a 
 condition. The meaning of this must be that if the supposed condition 
 covers the whole ground of the contract and cannot be severed from it, 
 or from any part of it, a breach of the condition is a breach of the 
 whole contract, which gives to the other party the right of avoiding 
 or rescinding it altogether. But where the supposed condition is dis- 
 tinctly separable, so that much of the contract may be performed on 
 both sides as though the conditions were not there, it will be read 
 as a stipulation, the breach of which only gives an action to the injured 
 party." Such loose paraphrasing seems to make Sergeant Williams' 
 Rule 3 turn every divisible contract into as many separate and inde- 
 pendent contracts as there are apportioned performances, which, of 
 course, is wholly contrary to our general American doctrine. The fact 
 of the matter is that Lord Mansfield's language in Boone v. Eyre, ante, 
 which is adopted by Sergeant Williams in his Rules 3 and 4 is unintel- 
 ligible until it is translated, and yet is so likely to be translated in- 
 correctly that wherever possible It should be avoided. Although when 
 the rules are interpreted to refer to breaches as going or not going to 
 the essence they may be said to be correct, it has seemed best to mark 
 them for omission by drawing lines through them after supplying nec- 
 essary words to make the rules cover conditions concurrent, as they 
 must if they are to be retained as rules. 
 
76 PERFORMANCE OF CONTRACTS. 
 
 m tb© ease ei ft ooDdition oonourront ] muot fee avorrod .'"" [Ci- 
 tations. ] 
 
 "5. Where two acts are to be done at the same time, as where 
 A covenants to convey an estate to B on such a day, and in con- 
 sideration thereof B covenants to pay A a sum of money on the- 
 same day, neither can maintain an action without showing per- 
 formance of or an offer to perform, his part, though it is not cer- 
 tain which of them is obliged to do the first act ; and this particu- 
 larly applies to all cases of sale. [Citations.] " 
 
 209 See note 208. 
 
APPE.NDIX B. 
 
 LANGDELL'S RULES ON CONDITIONS IN 
 CONTRACTS 21" 
 
 Conditions in contracts may be divided into express conditions 
 and implied conditions, i. e. a covenant or promise may be con- 
 (.litional, either expressly or by implication or construction.^^^ 
 
 FIRST. 
 
 Implied Conditions. 
 
 In every purely bilateral contract (i. e. in every contract which 
 is wholly executory on both sides) , as all the covenants or prom- 
 ises on the one side are collectively the equivalent for all the cove- 
 nants or promises on the other side collectively, the covenants or 
 promises on each side are prima facie subject to the implied con- 
 dition that the covenants or promises on the other side be per- 
 formed at the same time. In other words, the two sides of ev- 
 ery purely bilateral contract, being the equivalent for each other, 
 constitute prima facia mutual and concurrent conditions. 
 
 But as this rule is very general, and like all other rules of 
 construction, only holds primxi facie, in applying it the following 
 distinctions must be borne in mind : — 
 
 1. It makes no difference in the application of the rule whether 
 the contract is under seal or not under seal; nor is it any 
 objection that the consideration of the promise on eadi side 
 is the promise, and not the performance, on the other side. 
 
 210 The propriety of printing these "rules" In an appendix was sub- 
 mitted to Professors Joseph H. Beale and Eugene Wambaugh, the ad- 
 ministrators of Professor Langdell, and they very courteously replied 
 that they saw "no objection whatever" to that being done. The respects 
 wherein the present writer agrees and disagrees with these "rules" 
 are sulEciently indicated at the proper places in the text and notes 
 ante, so the "rules" are inserted here without annotation. 
 
 211 por the distinction between construction and interpretation, see 
 Lieber, Legal and Political Hermeneutics, cap. 1, sec. 8; cap. 3, sec. 2; 
 caps. 4 and 5. — Langdell's Note. 
 
 6 
 
78 PERFORMANCE OP CONTRACTS. 
 
 for mutual promises are always the consideration of each 
 other in bilateral contracts not under seal. 
 
 2. The notion which prevailed at one time that a covenant or 
 
 promise is independent whenever the promisor or covenantor 
 hag a remedy by action to recover payment for his covenant 
 or promise, is repugnant to the rule in question, and wholly 
 erroneous. 
 
 3. If the covenant or promise on the one side is to do specific 
 
 acts which require time for their performance, while the 
 covenant or promise on the other side is simply to pay money, 
 the specific acts must prima facie be fully performed before 
 the money is payable. In other words, the two sides of the 
 contract do not in that case constitute mutual and concur- 
 rent conditions, but one side is subject to a condition prece- 
 dent, while the other side is absolute and unconditional. 
 
 The most common instances of contracts of this description are 
 ordinary contracts for service, building contracts, and charter- 
 parties, while the most common instances of contracts to which 
 the general rule applies, i. &. where the two sides of the contract 
 constitute mutual and concurrent conditions, are contracts for 
 the sale of real and personal property. 
 
 4. When by the express terms of the contract, one side is to be 
 
 performed before the other, the side which is to be performed 
 first is independent and absolute, while the other side is sub- 
 ject to a condition precedent. 
 
 5. If the covenant or promise on the one side is to do specific 
 
 acts which require time for their performance, while the 
 covenant or promise on the other side is simply to pay 
 money, and the time for the payment of the money is fixed, 
 while the time for performance on the other side is left in- 
 definite, and may be either before or after the money be- 
 comes payable, or partly before and partly afterwards, ac- 
 cording to circimistances, — both sides of the contract wiU 
 be deemed independent and absolute. 
 
 6. But when, in an agreement for the sale of real estate, a day 
 
 is fixed for the payment of the money, and nothing is said 
 as to the time of delivering the deed, the deed will be de- 
 liverable by implication when the money is payable ; and the 
 effect will be the same as if the same day had been expressly 
 
APPENDIX B. 79 
 
 fixed for the payment of the money and the delivery of the 
 deed, and the two sides of the contract will be mutual and 
 concurrent conditions. 
 
 7. "When the covenant or promise on the one side is negative, and 
 
 is to refrain from doing something perpetually, while the 
 covenant or promise on the other side is to pay money at a 
 day named, as it is impossible that the former should be 
 fully performed before the money is payable, both sides of 
 the contract will be deemed independent and absolute. 
 
 8. When each side of a bilateral contract is put into a separate 
 
 instrument, each being complete in itself, and neither mak- 
 ing any reference to the other, each side will be independ- 
 ent and absolute. In fact, there are in that case two separ- 
 ate and distinct contracts, and it is erroneous to say that 
 the two instruments constitute one bilateral contract; and it 
 seems that parol evidence is not admissible to connect them 
 together. 
 
 9. When the covenant or promise on the one side is to pay a fixed 
 
 sum of money or do some other act, and on the other side to 
 guarantee a debt or insure against some risk or contingency, 
 both sides of the contract will be independent and absolute ; 
 for although the covenant or promise on the one side is the 
 equivalent of the covenant or promise on the other side, yet 
 there is no equivalency in the performance. In such cases 
 the covefiant or promise on the one side to guarantee or in- 
 sure is the full equivalent for actual performance on the 
 other side. 
 
 10. The most important distiaetion applicable to the general rule 
 
 under consideration is that between a breach of an implied 
 condition in limine, and a breach after a part performance of 
 the contract by the party committing the breach. In the for- 
 mer case the breach will be fatal to any action on the contract 
 by the party committing it, without regard to its extent or 
 importance; while in the latter case nothing but a breach 
 which goes to the substance, essence, or root of the contract, 
 or which defeats the main scope and object of the contract, 
 will be a defense to an action on the contract by the party 
 committing the breach. 
 
 11. If, after a breach of an implied condition by one party, the 
 
 other chooses to go on with the contract as if no breach had 
 
80 PB3RF0RMANCE OF CONTRACTS. 
 
 happened, he thereby waives the breach as a breach of con- 
 dition, though he may still sue upon it as a breach of (3on- 
 tract. 
 
 12. It follows from the terms of the general rule under consid- 
 
 eration, as well as. from the reason on which it is founded, 
 that it is wholly inapplicable to a contract which is only 
 partly bilateral, i. e. to a contract in which a part of the 
 equivalent on one or both sides is given and received when 
 the contract is made. 
 
 It will be observed that this is a different principle from that 
 of part performance referred to in Rule 10. When the present 
 rule is applicable, the covenants or promises are wholly inde- 
 pendent, and hence the distinction between a breach which does 
 and which does not go to the essence is irrelevant. It is also 
 distinct from waiver, referred to in Rule 11. 
 
 13. As there are no implied conditions in contracts only partly 
 
 bilateral, a fortiori there are none in contracts wholly 
 unilateral. 
 
 14. When a bilateral contract is in writing, and performance by 
 
 A. is in terms made conditional upon performance by B., 
 while B.'s promise is in terms absolute and unconditional, 
 there is no room for implying a condition in B.'s promise, 
 the maxim, expressum facit cessare taciturn being applicable. 
 The mutual promises, therefore, do not constitute mutual 
 and concurrent conditions, according to the general rule; 
 but A.'s promise is subject to an express condition preced- 
 ent, while B. 's promise is independent. 
 
 SECOND. 
 
 Express Conditions. 
 
 An express condition, as its name imports, is one of which the 
 evidence must be found in the language of the parties when 
 read in the light of surrounding circumstances. 
 
 As the only foundation of express conditions is the intention 
 of the parties in each case, and as the power of the parties to 
 create them is practically unlimited, they are not susceptible of 
 classification like implied conditions, nor can they be reduced 
 to any definite rules. Still, certain rules may be laid down re- 
 
APPENDIX B. 81 
 
 speeting them, which will be of material service in dealing with 
 them. 
 
 1. The rules heretofore given as to implied conditions have very- 
 
 little, if any, application to express conditions, with the 
 exception of the 11th Rule as to waiver, which applies to 
 both classes of conditions equally. 
 
 2. Unlike implied conditions, express conditions may exist 
 
 equally in bilateral contracts and in unilateral contracts; 
 and it is immaterial whether there are also implied condi- 
 tions in the same contract. 
 
 3. While the subject-matter of an implied condition is always a 
 
 covenant or promise, the words or clause in which an ex- 
 press condition is found may or may not constitute also a 
 covenant or promise, according to the intention of the par- 
 ties. 
 
 4. "Whenever it is doubtful whether certain words do or do not 
 
 constitute an express condition, it is material to inquire 
 whether they constitute a covenant or promise ; for if they 
 do not, that will be an argument in favor of their being a 
 condition, it being a cardinal rule of interpretation to give 
 effect in some way to all the words of a contract, if it be 
 possible ; and the argument becomes much stronger when a 
 covenantor or promisor would otherwise have no remedy 
 for the equivalent of his covenant or promise. 
 
 At one time, indeed, the notion prevailed that words which 
 created a covenant or promise could not also create an express 
 condition ; but such a notion as to express conditions is even more 
 repugnant to principle than the analogous notion as to implied 
 conditions. See Implied Conditions, Rule 2. 
 
 5. When a policy of insurance against fire contains a condition 
 
 requiring the insured to give notice or furnish proof of his 
 loss, such condition is always express; for even if the policy 
 contained a covenant or promise by the insured to give such 
 notice or furnish such proofs, such covenant or promise 
 would not constitute an implied condition, for the reasons 
 given in Rule 9, under Implied Conditions. 
 
 6. Conditions in building contracts and the like, that the work 
 
 shall be done to the satisfaction of an architect or surveyor, 
 may, for all practical purposes, be regarded as express con- 
 
82 PERFORMANCE OF CONTRACTS. 
 
 ditions; for although the contract may contain a covenant 
 or promise by the builder to do the work to the satisfaction; 
 of an architect, and from such covenant or promise a con- 
 dition will be implied, yet such a condition could never be 
 broken until the contract had been in part performed, and 
 the breach could not, in the nature of things, go to the es- 
 sence of the contract. Unless the condition were expressed,, 
 therefore, it would be of no real value. 
 
 7. In leases and deeds of conveyance, words naturally importing 
 
 an express condition have sometimes been disregarded by the 
 courts, it being held that they were inserted as words of 
 form, and without any intention of creating a condition. 
 
 8. A covenant or promise which constitutes an implied condi- 
 
 tion may, of course, be made also an express condition, if 
 the parties so desire ; and sometimes this happens from the 
 relation of mutual covenants or promises to each other. 
 Thus, in an agreement for the purchase and sale of un- 
 specified goods, if the seller promise that the goods shaU be 
 of a certain quality, the buyer's promise to buy the goods 
 and pay for them is in the nature of things conditional upon 
 . the goods being of the quality designated. For most pur- 
 poses it will not be material to inquire whether such condi- 
 tion is express or implied, but if it ever becomes material,, 
 it seems that it is express as well as implied. 
 
 9. It seems that the conditions in policies of marine insurance, 
 
 commonly called warranties, unlike such conditions in char- 
 ter-parties, are express conditions, and hence they must al- 
 ways be performed literally. 
 
 Indeed, for the reasons stated in Rule 9 upon Implied Con- 
 ditions, it seems that conditions in contracts of insurance must 
 always be express.