Sec 601

An affirmative condition is regarded as performed when the thing contemplated by the party imposing it as such occurs in the way that party prescribes. A negative condition is to be regarded as performed when the thing contemplated by the party imposing it as such is either shown not to have existed or occurred within the limits designated, or to be incapable of occurring or existing. In the Roman law, when the condition was that a particular person should not do a particular thing, and this thing was one he could do at any time during life, the non-fulfilment of the condition could not be shown until death.2 In our own law we have illustrations of conditions of this class in cases in which estates are limited on the death of parties of whose whereabouts nothing is known.3 Of conditions based upon the non-happening of events requiring certain bodily aptitudes to insure them we have illustrations in estates limited on capacity for child-bearing, which, with women, is supposed to cease at fifty-five years.4 In what way the condition is to be specifically fulfilled is to be determined from the terms of the contract.5 When, however, a party claims to recover on the ground of having performed a condition precedent, the burden of proving such performance is on him;6 and the performance must be satisfactorily established.7 The performance of the condition must be in the mode stipulated, unless the mode be modified by agreement.1 An impossible condition precedent precludes a contract from becoming operative.2

Mode of performance depends on terms.

1 Lambert v. Fuller, 88 111. 260.

2 sec 4. I. de V. O. (3,15); I. 73 D. de cond. (35, 1).

3 Wh. on Ev. sec 1274 et seq.; see Finlay v. King, 3 Pet. 376; Decorah Bank v. Haug, 52 Iowa, 538.

4 Wh. on Ev. sec 1300. As to divisibility of performance, see infra, sec 899.

5 Windscheid, sec 92; Stockton Soc. v. Hildreth, 53 Cal. 721. As to construction, see supra, sec 553 et seq.; infra, sec 624 et seq.

6 Johnson v. Reed, 9 Mass. 78; Dana v. King, 2 Pick. 155; Albany Church v. Bradford, 8 Cow. 457; Decorah Bank v. Haug, 52 Iowa, 538; see Wh. on Ev. sec 353.

7 Jones v. U. S., 96 U. S. 24; Dana v. King, 2 Pick. 155; Albany Dutch Church v. Bradford, 8 Cow. 457; Levy v. Burgess, 64 N. Y. 390.

Sec 602

In the Roman law an unfulfilled condition is considered as fulfilled whenever the party to be benefited by the condition releases its performance: "quotiens per eum, cujus interest conditionem impleri, fit quo impleatur."3 The same view was taken in England in 1787, by Ashurst, J., who in an opinion of the court of king's bench said, that when the promisee dispenses with the performance of the condition, this " is equal to performance."4

Sec 603

The same rule obtains when the party to be benefited by the non-performance of a contract prevents the happening of the condition. In the Roman law the rule is thus stated: "Jure civile re-ceptum est, quotiens per eum, cujus interest conditionem non impleri, fiat, quo minus impleatur, perinde haberi ac si impleta conditio fuisset."5 A party cannot in this way take advantage of his own wrong.6 "The conduct of one Fiction of fulfilment of condition when party benefited releases.

And so when such party prevents fulfilment.

1 Supra, sec 558; Savage Man. Co. v. Armstrong, 19 Me. 147; Wellington v. Boylston, 4 Pick. 101; Hunt v. Liv-ermore, 5 Pick. 395; Mill Dam Foun-dery v. Hovey, 21 Pick. 417; Albany Dutch Church v. Bradford, 8 Cow. 457; Cole v. Hester, 9 Ired. 28; Stockton Soc. v. Hildreth, 53 Cal. 721. See, as to performance of contracts, infra, sec 898.

2 Supra, sec 547.

3 Savigny, op. cit. 138, citing I. 5, sec 5, quando dies (36, 2).

4 Hotham v. E. I. Co., 1 T. R. 645; adopted in Benj. on Sales, 3d Am. ed. sec 567, citing also Pontifex v. Wilkinson, 1 C. B. 75; Armitaget v. Insole, 14 Q. B. 728; Laird v. Pirn, 7 M. & W. 474; Cort v. R. R., 17 Q. B. 127; Smith v. Lewis, 26 Conn. 110; Grove v. Donaldson, 15 Penn. St. 128; Kugler v. Wiseman, 20 Ohio, 361; Follansbee v. Adams, 86 111. 13. As to releases, see infra, sec 1031 et seq.

5 L. 161 de R. J. (50, 17) and other citations in Savigny, op. cit. 140.

6 See supra, sec 312, 579; infra, sec 716, 747, 901, and citations in Wind-scheid, sec 92; Benj. on Sales, sec 566; Hotham v. E. I. Co., 1 T. R. 645; Holme v. Guppy, 3 M. & W. 387; Ar-mitage v. Insole, 14 Q. B. 728; Frost v. Knight, L. R. 7 Ex. 111; Mackay v. Dick, L. R. 6 Ap. Ca. 251; Williams v. Bank, 2 Pet. 102; Webb v. Stone, 24 N. H. 288; Webster v. Coffin, 14 Mass. 196; Miller v. Ward, 2 Conn. 494; Burtis v. Thompson, 42 N. Y. 246; Howard v. Daly, 61 N. Y. 370; Risley v. Smith, 64 N. Y. 576; Homer v. Ins. Co., 67 N. Y. 478; Marie v. Garrison, 83 N. Y. 14; Lawrence v. Miller, 86 N. Y. 131; Winch v. Ice Co., 86 N. Y. 618; Kline v. Cutter, 34 N. J. Eq. 329; Johnson v. Somerville, 33 N. J. L. 152; Grove v. Donaldson, 15 Penn. St. 128; party to a contract which prevents the other from performing his part is an excuse for non-performance."1 Hence, where a covenantee prevents the performance of a covenant, this is a defence for the covenantor on a suit for the performance of the covenant.2 But, as has already been seen, one party cannot rescind a contract on account of the failure of the other party to perform a condition precedent without on his part doing equity;3 nor can a party sue on a quantum meruit, on part performance, treating the contract as rescinded in consequence of prevention of full performance on the other side, and sue also for damages under the contract.4 But that in case of prevention by one party of an entire fulfilment by the other, the latter may sue on a quantum meruit for the price of the part performance is well settled.5 - The practice in case of rescission is considered in a subsequent section.6.