1 Where a defendant has "received a substantial portion of the consideration, it is no longer competent to him to rely upon the non-performance of that which might have been originally a condition precedent." Carter v. Scargill, L. R. 10 Q. B. 564. One who covenants to devote himself entirely to another's business for three years, and is prevented from so doing for about two weeks during the busy season without fault on his part, commits thereby a breach of his covenant, and cannot maintain an action on the contract for not being allowed to resume his position thereafter. Leopold v. Salkey, 88 Ill. 412. A singer agreed with G. to sing in "both public and private, in Great Britain and Ireland,"from March 30, 1875, to July 13, 1875, "and to be in London without fail at least six days before the commencement of his engagement, for the purpose of rehearsals." It was held, on demurrer, that his failure to attend at rehearsals during the six days did not go to the root of the matter, so as to make it a condition precedent to G.'s performance of the contract but that the latter must seek redress in an action for damages. Bettini v. Gye, 1 Q. B. D. 183. But the failure of a skilled and capable singer, through serious illness of an uncertain duration, to perform on the opening and early performances of a new opera, for which she had been engaged, goes to the root of the consideration, to the extent of justifying her employers in rescinding their contract with her to so sing. Poussard v. Spiers, 1 Q. B. D. 410.

2 In Frost v. Knight, L. R. 7 Ex. Ill, where the defendant, who promised to many the plaintiff so soon as his father should die, refused absolutely, during such lifetime, to marry her, it was held, that the plaintiff could sue while the father was still alive Cockburn, C. J., said that "the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time.

The validity of many of these defences, resting upon the act or default of the other party, must depend upon the question, which is sometimes difficult, whether the contracts are in fact dependent or independent. There are cases, and especially some early ones, which seem to be severe, and more technical than rational; but of late the courts incline to decide these questions as good sense and common justice require. But there are rules by which they gives notice to the vendor not to manufacture any more, as he has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the contract.

(q) Thus where one was bound to deliver a deed on a day certain, and at the day was ready with the deed, and would have tendered it but for the evasion of the other party, this was held to be equivalent to a tender. Borden v. Borden, 5 Mass. 67. And see Com. Dig. Condition, L. (6); Goodwin v. Holbrook, 4 Wend. 377; Whitney v. Spencer, 4 Cowen, 89; People v. Bartlett, 3 Hill, 570; Grandy v. McCleese, 2 Jones, Law, 142; Warters v. Herring, id. 46.

1 If money is paid in part fulfilment of a fair contract, it cannot be recovered back when the non-fulfilment of the entire contract is owing to the fault of the one paying. Alden v. Goddard, 73 Me. 345. See Haines v. Tucker, 50 N. H. 307.

are guided in this matter, if not controlled; and we would add to what we have already said on this subject, that the classes of engagements contained in a contract, - dependent, concurrent, and independent, - may be thus distinguished. Where the agreements go to the whole of * the consideration on both sides, the promises are dependent, and one of them is a condition precedent to the other. If the agreements go to a part only of the consideration on both sides, and a breach may be paid for in damages, he promises are so far independent. If money is to be paid on a day certain, in consideration of a thing to be performed at an earlier day, the performance of this thing is a condition precedent to the payment; and if the money is to be paid in instalments, some before a thing is to be done, and some when it is done, the doing of the thing is not a condition precedent to the former payments, but is to the latter. And if there is a day for the payment of the money, and this comes before the day fixed for the doing of the thing, or before the time when the thing, from its nature, can be performed, then the payment is at all events obligatory, and an action may be brought for it independently of the act to be done. Concurrent promises are those where the acts to be performed are simultaneous, and either party may sue the other for a breach of the contract, on showing either, that he was able, ready, and willing to do his act at the proper time and in the proper way, or, that he was prevented from doing it, or, being so ready to do it, by the act or default of the other contracting party. (r)

The defendant may rely on the fact that the contract has been rescinded; and this may have been done by mutual consent, or by the plaintiff, who had the right to do so, or by the defendant, if he had the right. And a suit for recovery of damages for breach of a contract is equivalent to a notice of rescission, and the contract can no longer be enforced unless it is renewed by mutual consent. (rr) Whichever party has the right to rescind, must do it within the time specified, if there be such a time, or otherwise within a reasonable time. (s) What is a reasonable time, is in this, as in most other cases, a question of law for the court only. (t)

(r) See this subject considered and the authorities cited, ante, p. et seq.

(rr) Graham v. Halloway, 44 Ill. 385.