If a person makes a promise to another in consideration of a promise by the latter to him, and has not in express terms, or upon a reasonable construction of the contract, made the performance of his promise depend upon performance by the other party, he is not discharged by the latter's breach of his promise.71 He has given his promise in consideration of the promise of the other party, and not in consideration of performance by the latter of his promise. In other words, he has accepted the latter's liability in return for his own promise.
70 Anson, Cont. (4th Ed.) 286.
71 Thorpe v. Thorpe, 12 Mod. 455; Thomas v. Cadwallnder, Wllles, 496; Ware v. Chappell, Style, 1S6; Dey v. Dox, 9 Wend. (N. Y.) 129, 24 Am.
When it has once been determined that mutual promises are absolute and independent of each other, there can be little difficulty in applying the law; but it is often very difficult to decide as to the character of a promise in this respect, and this difficulty has resulted in much conflict between the cases. The old cases turned upon a very technical construction of terms,72 but the modern cases show that the tendency of the courts is not to construe promises to be absolute and independent of one another, where they form the whole consideration for one another, unless there is some very definite expression of an intention of the parties to that effect.73 "Whether covenants be or be not independent of each other must depend on the good sense of the case, and on the order in which the several things are to be done." 74 The order in which the things are to be done is a very sure test for determining whether promises are absolute or not.75 "When it appears that one of two covenants or promises is to be performed at an earlier date than the other, * * * the rule is simple and uniform, namely, that the covenant or promise that is to be performed first is independent and absolute, while the one that is to be performed last is dependent, the performance of the former being a condition precedent to the performance of the latter." 76 Where a person makes a promise to another to convey land, for instance, the date of performance not being fixed, and the other party, in consideration thereof, promises to pay. a sum of money at a fixed date, it has been held that the payment is independent of the promise, and that, "a time being fixed for payment, and none for doing that which was the consideration for the payment, an action lies for the purchase money, without averring performance of the consideration." 77 Where, on the other hand, mutual promises are to be performed at the same time, as where a person promises to convey land or deliver goods to another on a certain day, and the latter, in consideration thereof, promises to pay a sum of money on that day, neither can maintain an action on the other's promise without performing, or offering to perform, his part; and it makes no difference that it does not appear which promise was to be first performed.78
Dec. 137; Long v. Caffrey, 93 Pa. 526; Hard v. Seeley, 47 Barb. (N. Y.) 428; Barnett v. Franklin College, 10 Ind. App. 103, 37 N. E. 427; Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; and cases hereafter cited. See "Contracts," Dec. Dig. (Key-No.) § 318; Cent. Dig. §§ 1508-1527.
72 Rolle, Abr. p. 518; Ware v. Cbappell, Style, 186, and see Glazebrook v. Woodrow, 8 Term R. 366. In 15 Hen. VII. p. 10, pl. 17, for instance, it was held that if A. covenant with B. to serve him for a year, and B. covenant with A. to give him a certain sum of money, and does not say "for the cause aforesaid," A. shall have an action for the money, though he never serves B., but that it is otherwise if B. says that A. shall have the money "for the cause aforesaid." See 2 Pars. Cont. note r, in which the old and modern cases are collected, and the law reviewed at length. See "Contracts," Dec. Dig. (Key-No.) § 318; Cent. Dig. §§ 1513-1528.
73 Anson, Cont. (4th Ed.) 289; MORTON v. LAMB, 7 Term R. 125, Throckmorton Cas. Contracts, 396; Graves v. Legg. 9 Exch. 709; Dakin v. Williams, 11 Wend. (N. Y.) 67; Dey v. Dox, 9 Wend. (N. Y-) 129, 24 Am. Dec. 137; Bank v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Quigley v. De Haas, 82 Pa. 267; Lutz v. Thompson, 87 N. C 334; Hamilton v. Thrall, 7 Neb. 210; Davis v. Jeffris, 5 S. D. 352, 58 N. W. 815; post, p. 578. See "Contracts," Dec. Dig. (Key-No.) §§ 278, 318; Cent. Dig. §§ 1201-1213, 1508-1527.
74 MORTON v. LAMB, 7 Term R. 125, Throckmorton Cas. Contracts, 396; Stavers v. Curling, 3 Bing. N. C. 355; Proprietors of Mill-Dam Foundry v. Hovey, 21 Pick. (Mass.) 417; Lowber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 14 L. Ed. 157; City of New Orleans v. Texas & P. Ry. Co., 171 U. S. 312, 18 Sup. Ct 875, 883, 43 L. Ed. 178 See "Contracts," Dec. Dig. (Key-No.) § 321; Cent. Dig. §§ 1508-1527.
75 Mattock v. Kinglake, 10 Adol. & E. 50; Couch v. Ingersoll, 2 Pick.
(Mass.) 292; Robson v. Bohn, 27 Minn. 333, 7 N. W. 357; State v. Railroad Co., 21 Minn. 472; McCoy's Adm'rs v. Bixbee's Adm'r, 6 Ohio, 310, 27 Am. Dec. 258; Slater v. Emerson, 19 How. 224, 15 L. Ed. G26; Front St. M. & O. R. Co. v. Butler, 50 Cal. 574; Phillips & Colby Const. Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; American Emigrant Co. v. Adams County, 100 U. S. 61, 25 L. Ed. 563; Standard Gaslight Co. v. Wood, 61 Fed. 74, 9 C. C. A. 362; Loud v. Water Co., 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822; Reindl v. Heath, 115 Wis. 219, 91 N. W. 734. "Where the act of one party must necessarily precede any act of the other, as where one stipulates to manufacture an article from materials to be furnished by the Other, and the other stipulates to furnish the materials, the act of furnishing the materials necessarily precedes the act of manufacturing, and will constitute a condition precedent without express words." Proprietors of Mill-Dam Foundry v. Hovey, 21 Pick (Mass.) 417. See "Contracts," Dec. Dig. (Key-No.) § 821; Cent. Dig. §§ 1508-1527.
76 Langd. Sum. Cont § 122; Dey v. Dox, 9 Wend. (N. Y.) 129, 24 Am. Dec. 137. And see Kinney v. Federal Laundry Co., 75 N. J. Law, 497, 68 Atl. 111. See "Contracts," Dec. Dig. (Key-No.) § 278; Cent. Dig. §§ 1207-1213.
77 Mattock v. Kinglake, 10 Adol. & E. 50. And see Goldsborough v. Orr, 8 Wheat. 217, 5 L. Ed. 600; Bean v. Atwater, 4 Conn. 3, 10 Am. Dec. 91; Edgar v. Boies, 11 Serg. & R. (Pa.) 445; Lowry v. Mehaffy, 10 Watts (Pa.) 387; Kane v. Hood, 13 Pick. (Mass.) 281; Headley v. Shaw, 39 111. 354; Tronson v. University, 9 N. D. 559, 84 N. W. 474. "Where a contract for the sale of land provides for partial payments of the purchase money prior to delivery of the deed, the vendor may sue for such installments when due without tendering a conveyance. Paine v. Brown, 37 N. Y. 228; Harrington v. Higgins, 17 Wend. (N. Y.) 376. But when, after the installments are all due, the vendor brings an action for the purchase money, he is not entitled to recover without proving an offer before suit to convey. * * * When the last installment falls due, the payment of the whole of the unpaid purchase money and the conveyance of the land become dependent acts. Beecher v. Conradt, 13 N. Y. 108, 64 Am. Dec. 535. And the same rule applies when an action is brought for any installment payable at or after the term fixed for the delivery by the deed. Eddy v. Davis, 116 N. Y. 247, 22 N. E. .362, 363. See, also, Grant v. Johnson, 5 N. Y. 247; McCroskey v. Ladd, 96 Cal. 455, 31 Pac. 558; First Nat. Bank v. Spear,
Neither this nor any other test, however, can be relied upon in all cases, for often it does not appear when or in what order promises are to be performed. The question in each case is what intent is disclosed by the language employed.79