The breach committed by one of the parties may be a breach of a term of the contract only, and of a term which the parties have not, upon a reasonable construction of the contract, regarded as vital to its existence. The injured party is then bound to continue his performance of the contract, but may bring an action to recover such damages as he has sustained by the default of the other.2 In a leading case, the plaintiff, a professional singer, had entered into a contract with the defendant, director of an opera, for his services as a singer for a considerable time, and upon a number of terms, one of which was that the plaintiff should be in London without fail at least six days before the commencement of his engagement, for the purpose of rehearsals. The plaintiff broke this term by arriving only two days before the commencement of the engagement, and the defendant treated this breach as a discharge of the contract. The court held that, in the absence of any express declaration that the term was vital to the contract, it must "look to the whole contract, and see whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different, in substance, from what the defendant has stipulated for, or whether it merely partially affects it, and may be compensated for in damages;" and the court held that the term did not go to the root of the matter, so as to constitute a condition precedent.3
Where a promise is to be performed in the course of the performance of the contract, and after some of the consideration, of which it forms a part, has been given, it will be regarded as subsidiary, and its breach will not effect a discharge unless there be words expressing that it is a condition precedent, or unless the performance of the thing promised be plainly essential to the contract.4
2 Tarrabochia v. Hickie, 1 Hurl. & N. 183; Weintz v. Hafner, 78 111. 27; Boone v. Eyre, 1 H. Bl. 273, note. It is under this principle that a party is not discharged by failure of the other to perform within the time stipulated, where the time is not of the essence. Ante, pp. 512, 572. See "Contracts," Dec. Dig. (Key-No.) § 297; Cent. Dig. §§ 1214, 1215.
3 Bettini v. Gye, 1 Q. B. Div. 183. See "Contracts," Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1082.
4 Anson, Cont (4th Ed.) 294, citing Graves v. Legg, 9 Exch. 716, per Parke, B. See, also, Campbell v. Jones, 6 Term R. 570. See "Contracts," Dec. Dig. (Key-No.) § 278; Cent. Dig. §§ 1207-1213.