Sec 606

A party who disables himself from performing a contract cannot set up in defence to a suit on it a technical default by the other party subsequent to the occurrence of the disability.4 Thus when, after a contract for the sale of goods to be delivered when requested by the purchaser, the vendor sold the goods to a third party, it was held that to subject the vendor to liability to the purchaser it was not necessary that the purchaser should have requested delivery;5 nor when one party has disabled himself absolutely from performing his part of the contract need the other party even tender to perform his part in order to bring suit.6 A man, who, when engaged to be married to one woman, marries another, cannot, to a suit for breach of promise brought against him by the first, set up the want of a request to him to marry;7 and generally after an agreement to sell real estate to A. upon certain conditions precedent, an absolute sale to B. relieves A.

Party disabling himself cannot set up technical default by other party.

1 Note to Peeters v. Opie, ut supra.

2 Infra, sec 716.

3 Infra, sec 612, 717 et seq.

4 Infra, sec 712-16; supra, sec 312, 325; Kerrison v. Cole, 8 East, 231; Avery v. Boden, 5 E. & B. 714; Cort v. R. R., 17 Q. B. 127; Caines v. Smith, 15 M. & W. 189; Mill Dam Foundry v. Hovey, 21 Pick. 417; Heard v. Lodge, 20 Pick. 53; Smith v. Lewis, 24 Conn. 624; 26 Conn. 110; Stewart v. Ketal-tas, 36 N. Y. 388; Fleming v. Potter, 7 Watts, 380; Law v. Henry, 39 Ins. 414; see Denby v. Graff, 10 111. Ap. 195, and see infra, sec 885 a, 995, for other cases.

5 Bowdell v. Parson, 10 East, 359; Amory v. Brodrick, 5 B. & Ald. 712; infra, sec 994-5.

6 Clark v. Crandalls, 3 Barb. 600; supra, sec 575 et seq.

7 Supra, sec 575; Short v. Stone, 8 Q. B. 358; Freath v. Burr, L. R. 9 C. P. 208; Caines v. Smith, 15 M. & W. 189; Wagonseller v. Simmers, 97 Penn. St. 465, and cases supra, sec 324, 575; see Harrison v. Cage, 1 Ld. Ray. 387. That his incapacity is no defence to a suit for damages, see supra, sec 324. That a contract to marry must be to marry in a reasonable time, see infra, sec 882.

from proving that the conditions precedent had not been performed by him, provided there was no default on his part prior to the sale to B.1 A promisor, also, prevented by the interference of the promisee from completing his contract may recover for part performance, though the contract was entire.2 - An employer who refuses to give notes, as required by the contract of employment, is suable at once on quantum meruit.3 - Whenever, in other words, there are concurrent conditions, neither party can sue without showing that he was ready and willing to perform, or that performance on his part was prevented or waived by the other party.4 "The plaintiff," as was said by Storrs, C. J., in a well-considered case in Connecticut,5 "in order to sustain this action, need only to show that he did what the law required of him; and all that it required was that he should be ready and willing to perform on his part if the defendant was also ready to perform on his." "Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties as applicable to the case of mutual and concurrent promises. The word ' tender,' as used in such a connection, does not mean the same kind of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, but the transaction is completed and ended; but it only means a readiness and willingness accompanied with an ability on part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability, and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreement we are now considering. It is not an absolute unconditional offer to do or transfer anything at all events, but it is in its nature conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement." - The distinctive rules with regard to divisibility of performance are considered in other sections.1

1 Leake, 2d ed. 668; Main's case, 5 Co. 20 6; Lovelock v. Franklyn, 8 Q. B. 371.

2 Hill v. Hovey, 26 Vt. 109; Wil-helm v. Caul, 2 Watts & S. 26; infra, sec 714 et seq. That an employer cannot set up a failure in service induced by himself as a defence to a suit by the employee, see infra, sec 716 et seq. That a quantum meruit lies in cases of failure on defendant's part to perform condition precedent, see infra, sec 707 et seq.

3 Brown v. Foster, 51 Penn. St. 165.

4 Supra, sec 558; Giles v. Giles, 9 Q. B. 164; Atkinson v. Smith, 14 M. & W. 695; Bankart v. Bowers, L. R. 1 C. P. 484; Howe v. Huntington, 15 Me. 350; and cases cited in prior notes to this section and to sec 558. For other cases see infra, sec 994-5.

5 Smith v. Lewis, 26 Conn. 110; see 2 Ch. on Cont. 11th Am. ed. 1085,. where this opinion is given at length.