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.
Under an agreement by a vendee of property, to pay part of the purchase price in advance, payment is a condition precedent to his enforcing delivery of the property sold.1 A provision requiring notice to be given by the vendee before the vendor was to ship the goods sold, is a condition precedent to the vendee's liability.2 A stipulation in a contract to sell, that the goods sold were to be shipped by " sailer or sailers " within a specified time, is a condition precedent, and the vendor cannot hold the vendee liable for the goods so shipped by steamer, and not within such time.3 The formation of a corporation is a condition precedent to enforcing a contract of subscription for corporate stock.4 Under a contract to deliver certain shares of stock when certain syndicates have completed the subscription to the securities of a given corporation, performance by the syndicate is a condition precedent to the delivery of such stock.5 A contract with an agent for commissions depends upon the vendee's taking the property and paying therefor.6 Under a contract to give certain rebates to a vendee if he buys for a certain period of time from the vendor exclusively, such exclusive patronage is a condition precedent to the recovery of such rebates.7 Under a contract for the exchange of realty providing that the contract is to be void unless each can furnish an abstract showing title, the ability of each party to furnish such abstract is a condition precedent.8 If payment is to be according to the measurement of the property contracted for, such measurement is a condition precedent to payment.9 A contract to pay a certain sum for a receipt for dyeing hosiery a certain shade of black, payment to be made on a certain day if the color is right, makes the production of such color by means of such receipt, if used in good faith, a condition precedent to payment.10 Under a contract whereby A agrees to cancel certain notes and a mortgage when B surrenders certain property to A, A's refusal to cancel them when B has surrendered part but not all of such property, is not a breach.11
1 Stevens v. Ambler, 39 Fla. 575; 23 So. 10.
2 Wagar Lumber Co. v. Logging Co., 120 Ala. 558; 24 So. 949.
3 Sherzer v. Buckholz, 108 la. 749; 78 N. W. 818; Jackson v. Cres-well, 94 la. 713; 61 N. W. 383.
4 Judson University v. Kinkaid, 50 Kan. 369; 31 Pac. 1074.
1 Straus v. Russell Co., 85 Fed. 589; Langley v. Rodriguez, 122 Cal. 580; 68 Am. St. Rep. 70; 55 Pac. 406; Stokes-Evans Co. v. Oil Co.. - Miss. - ; 33 So. 283.
2 Maddox v. Wagner, 111 Ga. 146. 36 S. E. 609.
3 Ashmore v. Cox (1899), 1 Q. B. 436.
4 McCoy v. Columbian Exposition, 186 111. 356: 78 Am. St. Rep. 288; 57 K. E. 1043; Brooksville Ry. Co. v. Byron (Ky.), 50 S. W. 530.
5 Becker's Estate, 166 Pa. St. 313; 31 Atl. 95.
6 Pryor v. Jolly, 91 Tex. 86: 40 S. W. 950.
7Dennehy v. McNulta. 86 Fed. 825; 41 L. R. A. 609; 30 C. C. A. 422.
8 McLaughlin v. McAllister, 36 Fed. 745.
9 Street paving. New Telephone Co. v. Foley. 28 Ind. App. 418; 63 N. E. 56. Logs. Jesmer v. Rines, 37 Minn. 477; 35 N. W. 180. Sale of marble. Lowry v. Barelli, 21 O. S. 324.
10 Hecht v. Taubel, 55 N. J. L. 419: 26 Atl. 902.
11 Ward v. Sherman. 192 U. S. 10S; reversing, - Ariz. - ; 64 Pao. 434.
'1461. Notice as condition precedent.
By the terms of the contract a notice by one party may be necessary before the adversary party can be compelled to perform certain covenants. Thus a contract to furnish a certain amount of water if required, is operative only when clear and explicit notice to that effect is given.1 So, under a contract to keep a pavement in good condition and repair for five years, the city engineer to determine whether such pavement is in satisfactory condition, and repairs to be made upon notice by the board of public works, no liability rests upon the contractor until such notice is given, and if none is given during me five years he may recover an installment of the price for laying the pavement reserved to secure performance of his contract to repair.2 Different principles apply if the notice is to be evidence, though not necessarily the sole evidence of performance. If a payment is to be made when certain work is done and a notice to that effect given by the party to do such work is to be conclusive that it has been done, payment may be enforced when the work is done, even if the notice is defective.3 If the provision for arbitration in effect makes it necessary on demand of either party, such demand or offer of arbitration is a condition precedent to the operation of the arbitration clause.4