A condition precedent may, in the course of the performance of the contract, change its character, and in effect cease to be a condition. Acquiescence in its breach may in effect turn it into a mere warranty. In other words, a breach of condition, which would discharge a party if at once treated by him as a discharge, will not have this effect if he goes on with the contract instead of repudiating it, and takes a benefit under it; but in such a case he can only recover his damages.40 "Although conditions precedent must be performed, and a partial performance is not sufficient, yet when a contract has been performed in a substantial part, and the other party has voluntarily received and accepted the benefit of the part performance, knowing that the contract was not being fully performed, the latter may be thereby precluded from relying upon the performance of the residue as a condition precedent to his liability to pay for what he has received, and may be compelled to rely upon his claim for damages in respect to the defective performance." 41
An illustration of such a change in the effect of a condition is afforded by a leading English case, in which it appeared that the defendant had chartered the plaintiff's vessel for a certain voyage, and promised to pay a certain sum in full for her use on condition of her taking a cargo of not less than 1,000 tons. The defendant had the use of the vessel as agreed upon, but it appeared that she was not capable of holding so large a cargo as had been made a condition of the contract. To an action brought for nonpayment of the freight, the defendant pleaded a breach of this condition. The term in the contract which has been described was held to have amounted, in its inception, to a condition, and it was said that the defendant, while the contract was still executory, might have rescinded, and refused to put any goods on board, but as the contract had been executed, and the defendant had received a substantial part of the consideration, he could not rescind the contract, but must be left to his cross action for damages.42
Iron Works, 181 U. S. 453, 21 Sup. Ct. 680, 45 L. Ed. 948. See "Contracts;" Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1032.
40 Behn v. Burness, 3 Best & S. 756; Graves v. Legg, 9 Exch. 709; Pust v. Dowie, Law J. 32 Q. B. 179; Phillips & Colby Const. Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; Wiley v. Inhabitants of Athol, 150 Mass. 426, 23 N. E. 311, 6 L. R. A. 342; Sykes v. City of St. Cloud, 60 Minn. 442, 62 N. W. 613; Young Bros. Mach. Co. v. Young, 111 Mich. 118, 69 N. W. 152; Charley v. Potthoff, 118 Wis. 258, 95 N. W. 124; Carter v. Scargill, L. R. 10 Q. B. 564; Bechtel v. Cone, 52 Md. 698; Foley v. Crow, 37 Md. 51. See "Contracts," Dec. Dig. (Key-No.) § 316; Cent. Dig. §§ 11,80-11,92.
41 Wiley v. Inhabitants of Athol, 150 Mass. 426, 23 N. E. 311, 6 L. R. A 342, per Field, J. See "Contracts" Dec. Dig. (Key-No.) § 316; Cent. Dig. §§ 1480-1492.
A further illustration is found in the case of an executed sale. We have already seen that in an executory sale an undertaking that goods shall possess a certain quality is in effect a condition, and that where goods are sold by description it is an implied condition that they shall conform to the description, and that under some circumstances other conditions, such as that the goods shall be merchantable, will be implied.43 In such cases, where the goods tendered do not fulfill the conditions, it is very generally held that the buyer may nevertheless accept them, and in effect treat the breach of condition as a breach of warranty.44 Some cases, however, draw a distinction between conditions and warranties, and hold that, while an express warranty survives acceptance, a condition that the goods shall be of a certain description does not survive, so far as concerns visible defects, when the buyer had an opportunity to inspect, but that if, after opportunity for inspection, the buyer accepts the goods, he is precluded from recovering damages for any variation between the goods as delivered and as described.45
It seems that the performance must be of a substantial part of the contract,46 and that the acceptance must be under such circumstances as to show that the party accepting knew, or ought to have known, that the contract was not being fully performed.47
42 Pust v. Dowie, Law J. 32 Q. B. 179. See "Contracts," Dec. Dig. (Key-No.) § 316; Cent. Dig. §§ 1480-1491. 43 Ante, p. 580.
44Bagley v. Rolling-Mill Co. (C. C.) 21 Fed. 159; English v. Commission Co. (C. C.) 48 Fed. 197; Id., 6 C. C. A. 416, 57 Fed. 451; Reynolds v. Palmer (C. C.) 21 Fed. 433; Wolcott v. Mount, 36 N. J. Law, 262, 13 Am. Rep. 438; Holloway v. Jacoby, 120 Pa. 583, 15 Atl. 487, 6 Am. St Rep. 737; Lewis v. Rountree, 78 N. C. 323; Eagan Co. v. Johnson, 82 Ala. 233, 2 South. 302; Dayton v. Hooglnnd, 39 Ohio St. 671; Morse v. Moore, 83 Me. 473, 22 Atl. 862, 13 L. R. A. 224, 23 Am. St. Rep. 783; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890. See, also, Marsh v. McPherson, 105 U. S. 709, 26 L. Ed. 1139. See "Sales," Dec. Dig. (Key-No.) §§ 116, 179; Cent. Dig. §§ 436-444, 456-468.
45Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511, 27 N. W. 196; Thompson v. Libby, 35 Minn. 443, 29 N. W. 150 (implied condition of merchantableness does not survive acceptance in respect to visible defects); Comstock v. Sanger, 51 Mich. 497, 16 N. W. 872; McClure v. Jefferson, 85 Wis. 208, 54 N. W. 777. This rule prevails in New York, Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335; except as to a warranty that goods shall conform to sample. Zabriskie v. Railroad Co., 131 N. Y. 72, 29 N. E. 1006. See "Sales," Dec. Dig. (Key-No.) § 276; Cent. Dig. §§ 486-444.
46 Anson, Cont (4th Ed.) 308, citing Ellen v. Topp, 6 Exch. 424. See "Con-tracts," Dec. Dig. (Key-No.) § S16; Cent. Dig. §§ 1480-1491; "Sales," Dec Dig. (Key-No.) §§ 176, 179; Cent. Dig. §§ 436-444, 456-468.
Though performance by one party of a part or the whole of his promise may be a condition precedent to the liability of the other party to perform, still his failure to perform will not discharge the latter, if the latter prevented performance. In such a case the party so prevented is discharged from further performance, and may recover damages for the breach or recover on the quantum meruit for his part performance.48