Sec 595

A subscription to a charity or other public undertaking may be conditioned on a certain amount being elsewhere subscribed; and if the condition be not complied with, the subscription is void.3 On the other hand, when such subscriptions are made without such condition, each one on the faith of the other, each subscriber is estopped so far as concerns other bona fide subscribers who have paid in from denying the binding effect of his subscription.4 But unless the condition on which the subscription is dependent is fulfilled, it is not due.5

Sec 596

We have already seen that the refusal of a third party to do an act the defendant guaranteed he should do is no defence to an action against the defendant on the guaranty.6 The same rule applies to a contract that a third person shall do or abstain from doing a particular thing. The promisor, it is settled, becomes absolutely bound on such a promise on the happening of the condition.7

7. Contingent future event.

Sec 597

Although, unless so limited by the contract, the performance of a promise will not be regarded as conditioned by an act to be done by the promisee when not necessary to such performance, yet it is competent for the parties to make a collateral matter a condition precedent. If they so declare, their intention will be carried out by the court, unless the object be to cover an illegal wager.1 "Parties may think some matter, apparently of very little importance, essential, and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital and may be compensated for in damages, and if they sufficiently express such an intention it will not be a condition precedent."2 - Whether the creditor having peculiar knowledge of the occurrence of the contingency is bound to notify the debtor has been already discussed.3

Subscriptions may be conditioned on action of third parties.

Refusal of third party no defence to guaranty.

1 Mercer Co. v. Coovert, 6 W. & S. 70.

2 Tetz v. Butterfield, S. C. Wise. 1881, 4 Wisc. Leg. News, 197, cited supra, and other cases above cited.

3 Supra, sec 16 a, 528; New York Exc. Co. v. De Wolf, 31 N. Y. 273.

4 Wh. on Ev. sec 1068; Gilmore v. Veazie, 24 Me. 202: Brigham v. Mead,.

10 Allen, 245; Mann v. Cook, 20 Conn. 178; Garrett v. R. R., 78 Penn. St. 465; Smith v. Tallahassee, 30 Ala. 650; see for other distinctions, supra, sec 528.

5 Supra, sec 528.

6 Supra, sec 321.

7 Supra, sec 311, 545 et seq.

Sec 598

When there is a promise to pay out of a particular fund, the promisee is restricted to the fund thus specified, and has no remedy if such fund did not come into the promisor's power, supposing its non-reception is not imputable to the promisor'a negligence.4 A promise, also, by a corporation to pay out of funds to be contributed to it from specific parties, is conditioned on the reception of such funds by the corporation.5 Whether a promise is to be so restricted depends upon the terms.6 sec 599. It is not inconsistent with the requisites of a bill of exchange that its acceptance should be conditioned change may on a future contingency; and a holder who takes it subject to such a condition is bound by the condition.1 Thus an acceptance may be made payable "when a navy bill is paid,"2 or when a cargo arrives.3 The same may be predicated of negotiable paper payable in specific goods. "When, however, the engagement is to pay a certain sum in specific articles at a given price, it has been held this gives an election to pay either the money or the articles;4 though it is otherwise if the meaning to be collected from the entire writing is that goods are to be specifically delivered.5 An indorsement, also, may be conditional.6 But a bill of exchange must, to be negotiable as such, be payable absolutely at a specified date. If it be conditioned on a future contingent event, it is not negotiable, and the holder must sue upon it as on an ordinary contract, proving consideration.7 And a note payable in a particular kind of money is not negotiable.8 This is the case, also, with an order drawn by a consignor to his consignee to pay a fixed sum when in funds from a consignment.9

Collateral matter may be made a condition precedent.

Promise to pay out of a fund restricts the promisee to such fund.

1 Supra, sec 449.

2 Per cur. in Beltini v. Gye, L. R.

1 Q. B. D. 183; and see Stavers v. Curling, 3 Bing. N. C. 369; Lambert v. Fuller, 88 111. 260; Green v. Birch,.

2 111. Ap. 528. For promises conditioned on arrival of ships at a certain time, or a cargo being in a certain condition, see Boyd v. Seffkin, 2 Camp. 327; Ellis v. Mortimer, 1 B. & P. 257; Lovatt v. Hamilton, 5 M. & W. 639;.

Shields v. Pattee, 2 Sandf. 262; 4 Comst. 122. 3 Supra, sec 571.

4 Chambers v. Jaynes, 4 Barr, 39; Snell v. Cheney, 88 111. 258.

5 Sunderland Ins. Co. v. Kearney, 16 Q. B. 925; Williams v. Hathaway, L. R. 6 C. D. 544; see Furnwall v. Coombes, 5 M. & Gr. 736.

6 Scott v. Ebury, L. R. 2 C. P. 255.