Same - Vital Conditions

In the cases last considered, neither the nonfulfillment of the condition nor an action brought before fulfillment will discharge the promisor. The condition merely suspends the right to performance of the promise.18

The conditions with which we are now concerned effect a discharge of contract by their breach.

Where the promise of one party is conditional upon the promise of the other, the performance of the latter promise is either a condition precedent or a condition concurrent, as the case may be, and in either case the nonperformance of the condition not only gives ground for an action for breach of the contract, but discharges the contract. Where the promise of each party is the whole consideration for the promise of the other, and there is nothing to indicate that either was to perform first, or that the promises are independent, the case is one of concurrent conditions.17

It may appear, however, either expressly, or impliedly from the nature of the contract, that one promise is to be performed before the other. In such a case, as we have seen, the promise which is to be first performed is independent, and the promisee may enforce it, or sue for its breach, without having performed, or offered to perform, on his part. The promise of the latter, on the other hand, is conditional; that is, performance by the other is a condition precedent to any liability to perform it.18 If a person promises to work for another, or to build or repair a house for him, and the latter agrees to pay him certain compensation therefor, the promise to work or to build the house is impliedly, from the nature of the contract, to be first performed, and is independent. The promise to pay, on the other hand, is conditional. The servant19 or contractor 20 cannot recover unless he shows a performance on his part, or unless he was prevented from fully performing by the other party, or by such an impossibility as excuses him. If a time is fixed for his performance, and it is of the essence of the contract, a failure to perform within that time will discharge the other party.21

14 Allen v. Allen, 116 Iowa, 697, 88 N. W. 1091. See "Contracts," Dec. Dig. (Key-No.) § 277; Cent. Dig. §§ 1217-1232.

15 Makin v. Watkinson, L. R. 6 Exch. 25. See "Contracts," Dec. Dig. (Key-No.) § 277; Cent. Dig. §§ 1217-1232.

16 Palmer v. Temple, 9 Adol. & E. 508. See "Contracts" Dec. Dig. (Key-No.) §§ 225, 278; Cent. Dig. §§ 1207-1213.

17 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; People v. Glann, 70 111. 232; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Quigley v. De Haas, 82 Pa. 267; Lutz v. Thompson, 87 N. C. 334; Clark v. Collier, 100 Cal. 256, 34 Pac. 677; Leslie v. Casey, 59 N. J. Law, 6, 35 Atl. 6; Gray v. Smith (C. C.) 76 Fed. 525; ante, p. 575. See "Contracts," Dec. Dig. (Key-No.) §§ 225, 278; Cent. Dig. §§ 1207-1213.

18 Gail v. Gail, 127 App. Div. 892, 112 N. Y. Supp. 96. And see ante, p. 568. See '"Contracts," Deo. Dig. (Key-No.) § 278; Cent. Dig. §§ 1207-1213.

19 If the servant without legal excuse abandons the employment before full performance, he can recover nothing for his services, neither upon the contract, because under an entire contract full performance is a condition precedent to the right of recovery thereon, nor upon an implied contract, because the special contract controls the rights of the parties in respect to what has been done under it, and excludes any implied contract Stark v. Parker, 2 Pick. (Mass.) 267, 13 Am. Dec. 425; Olmstead v. Beale, 19 Pick. (Mass.) 528; Miller v. Goddard, 34 Me. 104, 56 Am. Dec. 638; Lawrence v. Miller, 86 N. Y. 131; Goldstein v. White (Com. Pl.) 16 N. Y. Supp. 860; Hansell v. Erickson, 28 111. 257; Thrift v. Payne, 71 111. 408; Peterson v. Mayer, 46 Minn. 468, 49 N. W. 245, 13 L. R. A. 72; Diefenback v. Stark, 56 Wis. 462, 14 N. W. 621, 43 Am. Rep. 719. But see Hilderbrand v. American Fine Arts Co., 109 Wis. 171, 85 N. W. 268, 53 L. R. A. 826, holding that a servant discharged for cause may recover for services rendered subject to the employer's right to recoup damages by reason of facts justifying discharge. In some states, however, a recovery upon a quantum meruit, to the extent of benefits received, is permitted, the recovery, if any, being estimated at the contract price, with deduction for what it would cost to procure a completion and of any damages sustained by reason of the breach. Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713; McClay v. Hedge, 18 Iowa, 66; Duncan v. Baker, 21 Kan. 99; Parcell v. McComber, 11 Neb. 209, 11 N. W. 529, 38 Am. Rep. 366; West v. Van Pelt, 34 Neb. 63, 51 N. W. 313. See "Master and Servant," Dec. Dig. (Key-No.) §§ 52-58; Cent. Dig. §§ 66-69.

20Homer v. Shaw, 177 Mass. 1, 58 N. E. 160. As to substantial performance, ante p. 539. See "Contracts," Dec. Dig. (Key-No.) § 278; Cent. Dig. §§ 1201-1213.

21Carter v. Phillips, 144 Mass. 100, 10 N. E. 500; Goldsmith v. Guild, 10 Allen (Mass.) 239; Taylor v. Longworth, 14 Pet. 172, 10 L. Ed. 405; Hicks v. Aylsworth, 13 R. I. 562; Wilson v. Roots, 119 111. 379, 10 N. E. 204; Chris-man v. Miller, 21 111. 227; Wynkoop v. Cowing, 21 111. 570; Grigg v. Landis, 21 N. J. Eq. 494; Adams v. Guyandotte Valley Ry. Co., 64 W. Va. 181, 61 S. E. 341. In the case of a contract for sale of goods, failure to deliver at the time specified discharges the buyer, and he is not bound to accept a subsequent tender. Welsh v. Gossler, 89 N. Y. 540; Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644; ante, p. 512. See "Contracts," Dec. Dig. (Key-No.) § 299; Cent. Dig. §§ 1372-1381.