Sec 548

While the condition is still undetermined, the promise, so far as concerns any legal efficiency, is suspended. "Ante condicionem non recte agi, cum nihil interim debeatur."3 But the promise is not on this account to be treated as a nullity. A party conveying away his property to escape an indebtedness would expose himself to process under the statutes making penal fraudulent insolvency, and any assertions based on a negation of such indebtedness would sustain an action for deceit, but the conveyance would stand if the indebtedness were cleared. Contracts of this class are like contracts by infants; their efficiency is suspended for the time, but they nevertheless exist.4 The Roman jurists speak on several occasions to this effect.5 The promisee, also, in such a contract, has a right susceptible of valuation, of taxation, and of assignment. The promisor is not to be bound only in the future; he is bound from the time he makes the promise; and the title he passes vests subject to the condition. Any intermediate disposition of the title made by the promisor before the happening of the condition is subject to the condition. A. may promise, for instance, to give B. an estate upon B.'s marriage, and may intermediately convey this estate to C, but C.'s interest expires when B. marries, and the estate passes to B. - The promisor, also, who agrees to convey an estate on a future contingency, is liable in damages if he makes his compliance with his promise impossible, or subjects, the property to waste.6

Sec 549

Whether a promise to pay at some future date is to be regarded as conditional has been questioned; though in contracts in which the whole debt be-

While condition is still undetermined, promise is operative though suspended.

Promises to pay in comes immediately payable on failure of payment of interest, there is no question that the promise is conditioned by the duty to pay interest punctually. But be this as it may, there is high authority to the effect that a promise to pay a debt infuturo is to be regarded as a promise conditioned by time.1 And it is plain that when the date of payment is fixed infuturo, the promise is so far conditioned that there can be no suit upon it until the time of payment arrives.2 Whether this condition exists, is to be determined from all the circumstances of the case.3 Taking in payment of goods a bill of exchange, payable at a future date, for instance, postpones the period when the price of the goods, as thus liquidated, can be sued for, until the maturity of the bill; but if the bill be not given, in conformity with the contract of sale, then the price of the goods can be at once recovered.4 - As will be hereafter seen, the acceptance of immature negotiable paper on account, operates as conditional payment;5 though such paper may be accepted in satisfaction of the debt.8

1 Cohen p. Ins. Co., 50 N. Y. 610; Sands v. Ins. Co., 50 N. Y. 626, supra, sec 476.

2 Wheeler v. Ins. Co., 82 N. Y. 545.

3 L. 13, sec 5 D. de pign. (20,1); supra, sec 16.

4 Supra, sec 2, 28.

5 See citations in Windscheid, sec 89.

6 Infra, sec 549, 601 et seq. So, in the Roman law, Wachter, ii. p. 700; Windscheid, sec 89. That a party who makes the condition impossible cannot set up the impossibility, see supra, sec 312.