Concurrent conditions seem, in point of fact, to be conditions precedent, for the simultaneous performance of his promise by each party must needs be impossible except in contemplation of law. What is meant by the phrase is that there must be a concurrent readiness and willingness to perform, and that, if one is not able or willing to do his part, the other is discharged.0 This form of condition is more particularly applicable to contracts of sale, where payment and delivery are assumed, in the absence of express stipulation, to be intended to be contemporaneous.7 Where goods are sold, and nothing is said as to the time of the delivery or the time of payment, the seller cannot demand payment of the price unless he is ready at the same time to deliver the goods, and the buyer cannot demand possession of the goods unless he is ready to pay the price.8 In an action for breach of a contract by which the plaintiff had agreed to buy a certain quantity of corn of the defendant at a certain price, and the defendant had promised to deliver the corn within one month, the plaintiff merely alleged that he had always been ready and willing to receive the corn. The court held that as the plaintiff did not allege that he had been ready to pay the price, there was nothing, as he had shaped his case, to show that he had not himself broken the contract and discharged the defendant by non-readiness to pay.9
5 Ante, p. 526.
6 Gail v. Gall, 127 App. Div. 802, 112 N. Y. Supp. 96. See "Contracts," Dec. Dig. (Key-No.) §§ 173, 278; Cent. Dig. §§ 762-764, 1207-1215.
Conditions Precedent - Suspensory Conditions 10
We are here dealing with the subject of discharge of contract, and are therefore concerned with those conditions precedent the nonfulfillment of which is a cause of discharge. To make the sub ject clear, however, we must mention and explain a class of conditions precedent which do not operate as a discharge, but merely suspend the operation of a promise until they are fulfilled. These are called by Anson floating or suspensory conditions. A promise, for instance, may be conditional upon the happening of an uncertain event, as in the case of a contract of fire or marine insurance, where the insurer's liability on his promise does not accrue until the loss of the property insured. The condition suspends the operation of the promise.
7 Anson, Cont. (4th Ed.) 298.
8 MORTON v. LAMB, 7 Term R. 125, Throckmorton Cas. Contracts, 396; Bloxam v. Sanders, 4 Barn. & C. 941; Stephenson v. Cady, 117 Mass. 6; Hapgood v. Shaw, 105 Mass. 270; Porter v. Rose, 12 Johns. (N. T.) 209. 7 Am. Dec. 306; Cook v. Ferral's Adm'rs, 13 Wend. (N. T.) 285; Phelps v. Hubbard, 51 Vt. 489; Hough v. Rawson, 17 111. 588; Posey v. Scales, 55 Ind. 282; Simmons v. Green, 35 Ohio St. 104; Campbell v. Moran Bros. Co., 97 Fed. 477, 38 C. C. A. 293; Allen v. Hartfield, 76 111. 358; Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53. So, also, in case of a sale of real estate. Smith v. Lewis, 26 Conn. 110; Swan v. Drury, 22 Pick. (Mass.) 485; Clark v. Weiss, 87 111. 438, 29 Am. Rep. 60; Gazley v. Price, 16 Johns. (N. T.) 267; Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; ante, p. 568 See "Sales," Dec. Dig. (Key-No.) § 82; Cent. Dig. §§ 229-233.
9 MORTON v. LAMB, 7 Term R. 125, Throckmorton Cas. Contracts, 396. See "Sales," Dec. Dig. (Key-No.) § 411; Cent. Dig. §§ 1161-1164.
10Anson, Cont (4th Ed.) 296, 297.
Again, a promise may depend upon the act of one of the parties or of some third person.11 For instance, it may be made a condition precedent to one party's liability under the contract that he shall be satisfied with the other party's performance; and in such a case, by the weight of authority, he cannot be compelled to perform his part, unless he is satisfied.12 Other examples are in the case of promises to pay for the construction of a building or other construction work, conditional upon the approval and certificate of the architect or other third person. In such cases payment cannot be enforced without such approval unless there is fraud, or such gross mistake as to necessarily imply bad faith.18
Again, a promise may be conditional in the sense that its operation is postponed until the lapse of a certain time, as in case of a debt for which a fixed period of credit is given, or until the happening of an event that is certain to happen, as in the case of a contract of life insurance.
Or, again, a promise may be conditional in the sense that its operation awaits the performance of some act to be done by the promisee. If no time is specified in which the act is to be done, the nonfulfillment of the condition merely suspends, and does not discharge, the rights of the promisee. Illustrations of such conditions are furnished by cases of promises conditional upon demand or notice. If a person promises another to do something upon demand, he cannot be sued until demand has been made;14 or if he promises to do something upon the happening of an event, and stipulates that notice shall be given him of the event having happened, he cannot be sued until such notice has been given. Even if there is no such stipulation for notice, yet, if the happening of the event is peculiarly within the knowledge of the promisee, an implied condition will be imported into the contract that notice must be given before a suit can be maintained.15
11 Cavanaugh v. Iowa Beer Co., 136 Iowa, 236, 113 N. W. 856. See "Contracts," Dec. Dig. (Key-No.) §§ 225, 282; Cent. Dig. §§ 1284-1289.
12 Ante, p. 541.
13 Morgan v. Birnie, 9 Bing. 672; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Kihlberg v. United States, 97 U. S. 398. 24 L. Ed. 1106; Sweeney v. United States, 109 U. S. 618, 3 Sup. Ct. 344, 27 L. Ed. 1053; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; Kennedy v. Poor, 151 Pa. 472, 25 Atl. 119; Lewis v. Railroad Co. (C. C.) 49 Fed. 708; Bradner v. Roffsell, 57 N. J. Law, 412, 31 Atl. 387; Gilmore v. Courtney, 158 111. 432, 41 N. E. 1023; Ashley v. Hene-han, 56 Ohio St. 559, 47 N. E. 573; King v. City of Duluth, 7S Minn. 155, 80 N. W. 874; John Pritzlaff Hardware Co. v. Berghoefer, 103 Wis. 359, 79 N. W. 564. Where the recovery of sick benefits depended on certificate of a physician, his refusal to make it did not excuse failure to produce it. Au-dette v. L'Union St. Joseph, 178 Mass. 113, 59 N. E. 668. Where there is fraud or bad faith, the action of the third person is not conclusive. Baltimore & O. R. Co. v. Brydon, 65 Md. 198, 611, 3 Atl. 306, 9 Atl. 126, 57 Am. Rep. 318; Whelen v. Boyd, 114 Pa. 228, 6 Atl. 384; Teal v. Bllby, 123 U. S. 572, 8 Sup. Ct. 239, 31 L. Ed. 263. In New York it is held that failure to obtain the certificate will not defeat a recovery if it is refused unreasonably. Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634; MacKnight Flintic Stone Co. v. City of New York, 160 N. Y. 72, 54 N. E. 661. See, also, Bird v. St Johns Episcopal Church, 154 Ind. 138, 56 N. E. 129. Cf. Audette v. L'Union St Joseph, supra. See "Contracts," Deo. Dig. (Key-No.) § 284; Cent. Dig. §§ 1292-1342. Clark Cont.(3d Ed.) - 37