Sec 556

It may happen that whether a particular allegation is a representation or a condition may depend on extraneous facts. "If a vessel were described in a charter party as a French vessel, the words would be merely a description in time of peace; but if England were at war and France at peace, with America, they would form a condition precedent of the most vital importance."2 In such case parol evidence is admissible of the extrinsic explanatory facts.3

Sec 557

"Where a day is appointed for doing any act, and the day is to happen or map happen before the promise of the other party is to be performed, the latter may bring action before performance, which is not a condition precedent; aliter, if the day fixed is to happen after the performance, for then the performance is deemed a condition precedent."4 "Where from the nature of things the performance on the one side is conditioned on something to be done by the other, as where goods to be worked on by A. for B. have first to be furnished by B. to A., then the condition must be satisfied before the liability accrues.5 As will be hereafter seen, when no time is fixed for performance, a reasonable time is implied;6 when the time is designated, the full limit is to be allowed;7 though a party disabling himself may be made liable in damages immediately on the breach.8 Punctuality is waived by acceptance, or by giving time in negotiation.1 Time may be made of essence by special contract,2 or by notice.3

Extrinsic facts admissible to explain.

Time of performance of alleged conditions material.

1 See Lang. Cont. II. 1004-5. Infra, sec 641 et seq.

2 Benj. on Sales, 3d Am. ed. 563; citing Behn v. Burness, 3 B. & S. 751.

3 Wh. on Ev. sec 953.

4 Note by Williams to 1 Wms. Saund. 320 b; adopted in notes to Cutter v. Powell, 2 Sm. L. C. 1, and given as text in Benj. on Sales, 3d Am. ed. 547; citing Allard v. Belfast, 40 Me. 376;.

Putnam v. Mellen, 34 N. H. 71; Sumner v. Parker, 36 N. H. 449.

5 Clement v. Clement, 8 N. H. 210; Hill v. Hovey, 26 Vt. 109; Savage Man. Co. v. Armstrong, 19 Me. 147; Mill Dam Foundry v. Hovey, 21 Pick. 439.

6 Infra, sec 882.

7 Infra, sec 884.

8 Infra, sec 885 a.

Sec 558

Where promises relate to the same object, and are jointly conducive to the furtherance of a common enterprise, then one party cannot charge the other with the consequences of failure without averring and showing that he either performed or was ready to perform his part. The question in such cases is, are the promises reciprocally dependent ? If they are, the rule just stated obtains. If they are not, then one party can sue the other party for failure without averring and proving that he himself has performed or was ready to perform his own share of the undertaking.4 Mr. Benjamin5 adopts substantially the follow-

When acts are to be reciprocally dependent, a party suing for non-performance must aver and prove readiness to perform on his own part.

1 Infra, sec 891.

2 Infra, sec 887.

3 Infra, sec 892. That this applies to conditional contracts, see Benninger v. Hankee, 61 Penn. St. 343.

4 Infra, sec 581, 606; Leake, 2d ed. 650; citing Pordage v. Cole, 1 Wms. Saund. 320 e; Benj. on Sales, 3d Am. ed. sec 592; Doogood v. Rose, 9 C. B. 132; Giles v. Giles, 9 Q. B. 164; and see Cook v. Jennings, 7 T. R. 381; Howe v. Huntington, 15 Me. 350; Smith v. Lewis, 26 Conn. 110; Gazley v. Price, 16 Johns. 267; Campbell v. Gittings, 19 Ohio, 347; Hough v. Raw-son, 17 111. 588; Grandy v. McLees, 2 Jones, L. 142; and see cases cited infra, sec 606. Lord Ellenborough, Ritchie v. Atkinson, 10 East, 306, following Lord Mansfield, Boone v. Eyre, 1 H. Bl. 273 n, 2 W. Bl. 1, 314, stated the rule to be that "when mutual covenants go to the whole consideration on both sides, they are mutual conditions, the one precedent to the other; but where the covenants go only to a part, then a remedy lies on the covenant to recover damages for the breach of it; but it is not a condition precedent." See, also, Bet-tini v. Gye, L. R. 1 Q. B. D. 183; Poussard v. Spiers, L. R. 1 Q. B. D. 410. As sustaining the position in the text, see further, Warren v. Wheeler, 21 Me. 484; Jones v. Marsh, 22 Vt. 144; Dana v. King, 2 Pick. 155; How-land v. Leach, 11 Pick. 151; Smith v. Lewis, 26 Conn. 110; Gazley v. Price, 16 John. 267; Williams v. Healey, 3 Denio, 363; James v. Burchell, 82 N. Y. 109; Long v. Caffrey, 93 Penn. St. 526; see, also, remarks of Storrs, C. J., in Smith v. Lewis, 26 Conn. 110, as quoted infra, sec 606; Newman v. Per-rill, 73 Ind. 153; Skidmore v. Eiken-berry, 49 Iowa, 621; Drake v. Hill, 54 Iowa, 37; Gjerness v. Matthews, 27 Minn. 320; Winona v. R. R., 27 Minn. 415; Ernst v. Cummings, 55 Cal. 179. " When conditions are interdependent, one party cannot put the other in default" without tender of performance, or at least proof of a readiness and willingness to perform. Finch, J., Levy v;. Loeb, 85 N. Y. 372. As to tender, see infra, sec 970. That in ining distinctions, being the third and fourth of Mr. Sergeant Williams': "Where the mutual promises go to the whole consideration on both sides, they are mutual conditions precedent; formerly called dependent conditions."1 " Where each party is to do an act at the same time as the other, as where goods in a sale, for cash, are to be delivered by the vendor, and the price to be paid by the buyer, these are concurrent conditions, and neither party can maintain an action for breach of contract, without averring that he performed or offered to perform what he himself was bound to do."2 "In determining whether the stipulations as to the time of performing a contract of sale are conditions precedent," Mr. Benjamin states, "the court seeks simply to discover what the parties really intended, and if time appear, on a fair consideration of the language and the circumstances, to be of the essence of the contract, stipulations in regard to it will be held conditions precedent."3 But where the understanding of the parties appears to have been that each would be entitled to redress in damages in case of the other's default, without regard to the question whether he was in default himself, then he can bring suit without averring on his own part performance or readiness to perform.4 In other words, when the surance contracts, the payment of premiums is at once a condition precedent and condition subsequent, see supra, sec 551. That substantial performance of a condition must be shown, see infra, sec 607.

5 Sales, 3d Am. ed. sec 562.

1 Citing Glazebrook v. Woodrow, 8 T. R. 366; Mill Dam Foundery v. Hovey, 21 Pick. 439; Knight v. Worsted Co., 2 Cush. 285; Dox v. Dey, 3 Wend. 356; Cole v. Hester, 9 Ired. 23.

2 See infra, sec 601 et seq.; Gazley v. Price, 16 Johns. 267; Clark v. Weis, 87 111. 438.

3 Benj. on Sales, 3d Am. ed. sec 593; as to time, see infra, sec 881 et seq.

4 Roberts v. Brett, 18 C. B. 573; Pordage v. Cole has been the subject of constant dispute. Lord Ken-yon (Goodisson v. Nunn, 4 T. R.

761), said that it "outraged common sense." Mr. Langdell, who discusses the points involved at great length and with much subtlety, thinks " that by the true construction of the contract in that case, the land was to be conveyed when the money was paid, and hence, the covenants were mutually dependent by implication" (Lang. Cont. II. 1067); and argues, that it is virtually overruled by Mars-den v. Moore, 4 H. & N. 500. On the other hand, Mr. Pollock, 3d ed. 401, contents himself with speaking of the note of Serjeant Williams, to Pordage v. Cole, as " the classical authority on this topic;" and Mr. Leake (2d ed. 649, 650, 652) accepts it as apparently settled law. Pordage v. Cole is further discussed infra, sec 580.

stipulations in a contract are independent, each party has his remedy on the contract without averring and proving on his part performance or readiness to perform.1 A contract, however, may he so constructed, that the stipulations on one side may be dependent, and on the other side, independent.2 But when this is not the case, and when the stipulations are interdependent, a defendant cannot be sued for non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed, unless release or waiver be shown.3 When one party refuses to perform a condition precedent, the other party may treat the contract as rescinded;4 and so when the party privileged waives or prevents performance;5 and the failure of both parties to a contract to perform the conditions assumed by them, will constitute a waiver on the part of each of the default of the other, and either may tender the performance of his stipulation within reasonable time, and enforce the performance of the contract against the other.6