This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The question whether a covenant is independent or dependent turns entirely upon the intention of the parties as shown in the entire contract, and the tests hereinafter suggested, while of great help, cannot be conclusive in every case. "The question whether covenants are dependent or independent must be determined in each case upon the proper construction to be placed upon the language employed by the parties to express their agreement. ... If parties think proper they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condi* tion precedent to performance by the other. The question in each case is, which intent is disclosed by the language employed in the contract ?"1 It is said ' where the acts stipulated to be done are to be done at different times the stipulations are to be construed as independent of each other.' This as a general rule is correct, but it is subject to the intention of the parties as signified in the language of the contract. The great rule is to ascertain the intent of the parties from the language used."2 The tendency of the Common Law was, wherever possible, to construe the covenants of a contract as independent each of the other.3 There is a strong tendency in modern decisions to treat covenants as dependent, if possible, on the ground that such construction is the most fair and just.4 As between precedent and concurrent covenants the tendency of Modern Law is to construe covenants as concurrent rather than precedent.5 A covenant may be precedent as to certain covenants of the adversary party and subsequent as to others. Under a building contract requiring payment by installments at certain specified dates and requiring the building to be completed at an intervening date, the completion of the building was a condition precedent to the payment of the installments due after the date fixed for completion.6 A contract to pay A a certain sum for exploring land, and his necessary traveling expenses, does not make payment of such expenses a condition precedent to A's doing the work, and hence failure to advance such expenses is not a breach.7
1 New Orleans v. Ry., 171 U. S 312.
1 Loud v. Water Co., 153 U. S. 564, 576.
2 Slater v. Emerson, 19 How. (U. S.) 224, 238.
3 Ware v. Chappell, Style 186.
4 Bank v. Hagner, 1 Pet. (U. S.) 455; Meeum v. Ry., 21 111. 533; Smith v. R. R., 6 All. (Mass.) 262; Hamilton v. Thrall, 7 Neb. 210; Lutz v. Thompson, 87 N. C. 334; Seheland v. Erpelding, 6 Or. 258; Davis v. Jeffris, 5 S. D. 352; 58 N. W. 815. "Although many nice distinctions are to be found in tbe books upon the question whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent; yet it is evident the inclination of the courts has strongly favored the latter construction as being obviously the most just" Bank v. Hagner, 1 Pet. (U. S.) 455, 464. To the same effect, Tel-fener v. Russ, 162 U. S. 170.
5 Deacon v. Blodgett, 111 Cal. 416; 44 Pac. 159.
6 Dermott v. Jones, 23 How. (U. S.) 220.