Sec 607

When there is a substantial performance of a condition precedent, the agreement, if the condition is divisible, will be enforced pro tanto.2 Thus, where a ship-owner contracted to load a full cargo and deliver it on payment of freight, but sailed with only a partial cargo, it was held that, supposing the loading to be a condition precedent, yet, as the condition was divisible, a suit might be maintained for freight pro rata on the goods carried.3 Where it was a condition precedent in a contract for the sale of a business that the profits should appear by the books to amount to a certain sum per week, the purchase money to be paid by instalments, it was held, after the purchaser had taken possession of the business and carried it on until all the instalments were due, that he could not set up as a bar to a suit for the purchase money that the profits fell below the figure designated in the agreement.4 And where, even though the contract is entire, entire performance by one party is prevented by the interference of the other, the value of what has been done can be recovered on a quantum meruit.1 "It is remarkable that, according to this rule, the construction of the instrument may be varied by matter ex post facto; and that which is a condition precedent when the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less. This is no objection to the soundness of the rule, which has been much acted on. But there is often a difficulty in its application to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiff forms only part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract."2 - But while substantial performance of a condition is essential, such performance must be proved by the party setting it up.3 - A condition whose performance is of no possible value whatever to the promisee need not be performed.4

Substantial performance of condition precedent may be sufficient, but this must be proved.

1 See supra, sec 190, 601; infra, sec 898 et seq.

2 Leake, 2d ed. 664; Benj. on Sales, 3d Am. ed. sec 564; Ellen v. Topp, 6 Ex. 441; Havelock v. Geddes, 10 East, 563; Bradford v. Williams, L. R. 7 Ex. 260; Stanton v. Richardson, L. R. 7 C. P. 421; Divinal v. Howard, 30 Me. 258; Holden Steam Mill Co. v. Westervelt, 67 Me. 446; Maryland Fertilizing Co. v. Lorentz, 44 Md. 418; McGrath v.

Herndon, 4 T. B. Mon. 480. As to performances generally, see infra, sec 867 et seq.

3 Ritchie v. Atkinson, 10 East, 295; Roberts v. Havelock, 3 B. & Ad. 404; see Heilbutt v. Hickson, L. R. 7 C. P. 450. As to divisibility of conditions, see supra, sec 552. As to other cases of divisibility, see sec 338, 511, 899.

4 Pust v. Dowie, 5 B. & S. 20.