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.
No recovery can be had upon a contract by a party who has not performed the conditions precedent on his part to be performed.1 The party in default in performance of a condition precedent cannot recover damages from the adversary party for his default in performance of subsequent covenants.2 He cannot treat such breach of a subsequent covenant as a ground for discharge.3 Thus a building contractor who has failed of substantial performance cannot treat the subsequent refusal of the owner to pay an installment thereafter due as discharging him from liability on the contract.4 Performance of a condition precedent is necessary to the enforcement of covenants subsequent thereto.5 Thus under a contract to give a railroad company a right of way if a certain route were selected, the selection of such route is a condition precedent to obtaining such right of way.6 Under a contract to pay a certain sum of money in aid of a railroad if it is ready for operation by a certain time, getting it ready for operation by such time is a condition precedent to enforcing payment.7 A contract to pay when a certain railroad "is constructed and the cars are running thereon between " certain specified points, does not make the construction of the entire road a condition precedent, but only the construction and operation of the road between the points named.8 Under a contract to sell certain land at a certain price if the vendee shall pay a pre-existing note to the vendor,9 or to convey certain realty and relinquish a tree-claim, such contract "not to be performed until" the grantee shall pay a debt owing by him to a third party and secured by a mortgage upon personalty the transfer of which is the consideration for such contract,10 the payment of such debt is in each case a condition precedent. Under a bond for a deed which declares that improvements to be made on the realty conveyed are the chief condition, and are to be made by a certain date, the construction of such improvements is a condition precedent to the delivery of such deed.11 If payment is to be made in advance, failure to make such payment discharges the contract and no recovery can be had thereon.12
7 Sherk v. Holmes, 125 Mich. 118; 83 N. W. 1016.
1 Bank v. Trading Co. (1894), A. C. 266; Loud v. Water Co., 153 U. S. 564; Hull, etc., Co. v. Coke Co., 113 Fed. 256; Aarnes v. Windham, 137 Ala. 513; 34 So. 816; Whitley v. Murray, 34 Ala. 155; Hill v. Grigsby, 35 Cal. 656; Thomson v. Kyle, 39 Fla. 582; 63 Am. St. Rep. 193; 23 So. 12; Lake Shore, etc., Ry. v. Richards, 152 111. 59; 30 L. R. A. 33; 38 N. E. 773; Angle v. Hanna, 22 111. 429; 74 Am. Dec. 161; Van Sicklen v. Ballard, 97 111. App. 640; Vinton v. Baldwin, 88 Ind. 104; 45 Am. Rep. 447; White v. Day, 56 la. 248; 9 N. W. 210; National Contracting Co. v. Commonwealth, 183 Mass. 89; 66 N. E. 639; Wiley v. Athol, 150 Mass. 426; 6 L. R. A. 342; 23 N. E. 311; Olmstead v. Beale, 19 Pick. (Mass.) 528; Aaron v. Moore, 34 Mo. 79; Franklin v. Shultz, 23 Mont. 165; 57 Pac. 1037;
Cornell v. Cornell, 96 N. Y. 108; Bonesteel v. New York, 22 N. Y. 162; Cunningham v. Jones, 20 N. Y. 486; Gilbert v. Port, 28 O. S. 276; Lyndon Granite Co. v. Farrar, 53 Vt. 585; Williams v. Thrall, 101 Wis. 337; 76 N. W. 599.
2 Griffin v. Machine Co., 135 Ala. 490; 33 So. 177; Tufts v. Sams, 47 Mo. App. 487; Hale v. Sheehan, 52 Neb. 184; 71 N. W. 1019; Lake v. McElfatrick, 139 N. Y. 349; 34 N. E. 922; Ingram v. Mining Co., 25 Wash. 318; 65 Pac. 549.
3 Barrett v. Verdery, 93 Ga. 526; 21 S. E. 64; Coldren v. Clark, 93 la. 352; 61 N. W. 1045; Reddish v. Smith, 10 Wash. 178; 45 Am. St. Rep. 781; 38 Pac. 1003.
4 Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114; 38 Pac. 635.
5 National Surety Co. v. Long, 125 Fed. 887; Marshall v. Bumby, 25 Fla. 619; 6 So. 480.