It is a similar question - sometimes indeed the very same question - whether covenants are mutual, in such sense that each is as a condition precedent to the other. And also whether covenants or agreements be dependent or independent. (q) By the very definition of them, if they are dependent, that is, if each depends on the other, the failure of one destroys and annuls the other. Or, if this dependence is not mutual, but one of them rests upon the other by a dependence which is not equally shared by the other, if that contract upon which this dependence rests is broken and defeated, the other by reason of its dependence is annulled and destroyed also. But they may be wholly independent, although relating to the same subject, and made by the same parties, and included in the same instrument. In that case they are two separate contracts. Each party must then perform what he undertakes, without reference to the discharge of his obligation by the other party. And each party may have his action against the other for the non-performance of his agreement, whether he has performed his own or not. Now the law has no preference for one kind of contract over another; nor does it, by its own implication and intendment, make one rather than the other, and still less does it require * one rather than the other. It may indeed be safely said, that this question in each particular case will be determined by inferring, with as much certainty as the case permits, the meaning and purpose of the parties, from a rational interpretation of the whole contract. (r)1

(g) In Kingston v. Preston, cited in Jones v, Barcley, Doug. 690, Lord Mansfield said: "There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other, for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions and dependent, in which the performance of one depends upon the prior performance of another, and therefore, until this prior condition is performed, the other party is hot liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time; and in these, if one party was ready, and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered has fulfilled his engagement, and may maintain an action for the default of the other; though it Is not certain that either is obliged to do the first act." See also Mason v. Chambers, 4 Litt 258; and Mr. Durnford's note to Acherley v. Vernon, Willes, 167.

(r) In ancient timet the decision of questions of this kind depended rather upon nice and subtle constructions put upon the language of a contract, than upon the evident sense and intention of the parties, as gathered from a rational consideration of the whole instrument, and the subject-matter of the agreement Thus, in 16 H. 7, 10, pl. 17, it was ruled by Fineux, C. J., that if one covenant with me to serve me for a year, and I covenant with him to give him £20, if I do not say for the cause aforesaid, he shall have an action for the £20, although he never serves me; otherwise it is if I say that he shall have £20 for the cause aforesaid. So if I covenant with a man that I will marry his daughter, and he covenants with me that he will make an estate to me and his daughter, and the heirs of our two bodies begotten, if I afterwards marry another woman, or his daughter marries another man, yet I shall have an action of covenant against him to compel him to make the estate; but if the covenant were that he would make the estate to us two for the cause aforesaid, in that case he would not make the estate until we were married. And such was the opinion of the whole court. But Lord Holt, in the great case of Thorp v. Thorp, 11 Mod. 455, and Lord Chief Justice Willes, in Acherley v. Vernon, Willes, 153, advanced more rational ideas upon the subject. And in Kingston v. Preston, already cited. Lord Mansfield declared that the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties. Mr. Serjeant Williams in his elaborate note to Pondage v. Cole, 1 Wms. Saund. 310, has given the five following rules, collected with great care and accuracy from the decided cases. 1. "If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen before the thing which is the consideration of the money, or other act is to be performed; an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act." See Pordage v. Cole, 1 Wms. Saund. 810; Thorp v. Thorp, 12 Mod. 460, 1 Salk. 171, per Holt, C. J.; Peeters v. Opie, 2 Sauna. 350, per Hale, C. J.; Wilks v. Smith, 10 M. & W. 855; Eastern Counties Railway Co. v. Philipson, 16 C. B. 2; Mayor of Norwich v. Norfolk Railway Co. 4 Ellis & B. 397; Northampton Gas Light Co. v. Parnell, 15 C. B. 630, 29 E. B. & E. 229; Underhill v. The Saratoga & W. R. R. Co 20 Barb, 455; Edgar v. Boies, 11 8. & R. 445; Stevenson v. Kleppinger, 5 Watts, 420; Lowry v. Mehaffy, 10 id. 887; Goldsborough v. Orr, 8 Wheat. 217; Robb v. Montgomery, 20 Johns. 15. The principle of this rule has been misapplied in various cases, as in Terry v. Duntze, 2 H. Bl. 389. In that case A covenanted to build a house for B, and finish it on or before a certain day, in consideration of a sum of money which B covenanted to pay A by instalments as the building proceeded. It was held, that the finishing of the house was not a condition precedent to the payment of the money; that A might maintain an action of debt against B for the whole sum, though the building was not finished at the time appointed, on the ground that part of the money was to be paid before the house could be completed. This case was followed in Seers v. Fowler, 2 Johns. 272, and Havens v. Bush, id. 387. But in Cunningham v. Morrell, 10 Johns. 208, Seers v. Fowler, and Havens v Bush, were overruled, and the authority of Terry v. Duntze repudiated. Cunningham v. Morrell was followed in McLure v. Rush, 9 Dana, 64, and in Allen v. Sanders, 7 B. Mon. 598, overruling the earlier cases of Craddock v. Aldridge, 2 Bibb, 15, and Mason v. Chambers, 4 Litt 253. And see to the same effect Kettle v. Harvey, 21 Vt. 901; Lord v. Belknap, 1 Cush. 279; Tompkins v. Elliot, 5 Wend. 486. - In the case of contracts for the purchase and sale of real estate, where the purchaser covenants to pay the purchase-money by instalments, and the vendor covenants to convey by deed, either on the last day of

1 A. contracted to deliver certain coal in twelve equal monthly instalments to B., who took less than the first instalment at the time agreed, whereupon A. rescinded the contract. Held, in an action by B. against A., that B.'s breach in taking less than the stipulated quantity during the first month did not entitle A. to rescind the contract. Simpson v. Crippin, L. R. 8 Q. B. 14.