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.
Concurrent covenants are those which by the terms of the contract are to be performed at the same time by each of the parties bound to perform them.1 Either party must be ready to perform to put the other in default.2 Thus under a contract for the sale of realty if no stipulation is made as to the order of time at which the deed is to be delivered and payment made, these acts are concurrent.3 Neither party can treat the other as being in default either for the purpose of considering the contract as discharged,4 or for bringing an action for damages,5 or for the purjx)se of enabling the vendor to forfeit such part of the purchase money as has been paid in,6 without either tendering performance, or notifying the adversary party of his willingness to perform and demanding performance by him. If one of the parties is able, ready and willing to perform, gives notice to the other of that fact and demands performance, this is sufficient to put the other in default if performance is refused.7 Mere readiness and willingness to perform without present ability is not sufficient.8 A and B entered into a contract whereby each was to furnish a machine for making shingles and B was to furnish the power; A was to operate the machines and B was to pay him for all shingles manufactured. A furnished a machine which was levied upon by his vendor for the unpaid purchase price and removed. A's willingness and readiness to perform were held not sufficient if he was unable to furnish the machine.9 So under a contract for the sale of personalty, if no stipulation is made as to the order in time of payment and delivery, they are concurrent.10 To put the one party in default the other must tender performance,11 or without formal tender of performance, must offer to perform and demand performance of the adversary party.12 Without such offer and demand the adversary party is not in default, either for the purpose of considering the contract as discharged, or for the purpose of recovering damages.13 An offer to convey the thing agreed upon, such as a patent right,14 is, if refused, enough to put the adversary party in default. So if A who has agreed to furnish to B all the tin cans used in B 's factory for a year, is unable on B's demand to furnish cans needed, B does not violate the contract by buying cans elsewhere.15 So under a contract whereby a railroad company agrees to furnish a certain amount of grain annually for storage at a certain elevator, the elevator company must be ready and willing to store such grain in order to put the railroad in default; and if it is not able to store the grain tendered the railroad is discharged from tendering the amount agreed upon.16 Under a contract to construct a creamery and cold-storage building to be built under a. certain patent, and to furnish a patent deed from the owner of the patent conveying all rights thereunder, delivery or tender of such patent deed must be made before the contract price can be recovered.17 Since the intention of the parties determines whether covenants are precedent or concurrent, slight differences in phraseology may be decisive of different intentions. If the contract specifically provides that the deed is to be delivered after performance by the vendee, performance by the vendee is a condition precedent to and not concurrent with delivery of the deed by the vendor.18 The use of the word "after " is not conclusive that payment is a condition precedent since the context may show that it is a concurrent covenant. Thus a contract for a deed "after " certain payments are made, the vendee at the same time to deliver a bond and mortgage to secure a balance due makes delivery of the deed concurrent with the last payment to be made apart from that secured by mortgage.19 So a contract to convey " upon payment,"20 or "as soon as " the purchase money is paid,21 provides for concurrent covenants.
Ch. App.), 36 S. W. 968; Norfolk, etc., By. v. Mills, 91 Va. 613; 22 S. E. 556.
2 Norfolk, etc., Ey. v. Mills, 91 Va. 613; 22 S. E. 556.
3 Mallard v. Moody, 105 Ga. 400; 31 S. E. 45.
4 O'Brien v. Construction Co., 107 Eed. 338; State v. Cuyahoga County, 12 Ohio C. D. 328.
5 Norfolk, etc., Co. v. Mills, 91 Va. 613; 22 S. E. 556.
1 Frenzer v. Dufrene, 58 Neb. 432; 78 N. W. 719.
2 J. G. Wagner Co. v. Monroe, 52 La. Ann. 2132; 28 So. 229; Frenzer v. Dufrene, 58 Neb. 432; 78 N. W. 719; Camp v. Wilson, 97 Va. 265; 33 S. E. 591.
3 Telfener v. Euss, 162 U. S. 170; Englander v. Eogers, 41 Cal. 420; Hill v. Grigsby, 35 Cal. 656; Newman v. Baker, 10 App. D. C. 187; Johnson v. Jackson, 27 Miss. 498; 61 Am. Dec. 522; Eaudabaugh v. Hart, 61 O. S. 73; 76 Am. St. Eep.
361; 55 N. E. 214; Eummington v. Kelley, 7 Ohio (Second Part) 97; Webb v. Stevenson, 6 Ohio 282; Frink v. Thomas, 20 Or. 265; 12 L. E. A. 239; 25 Pac. 717; Gregg v. English, 38 Tex. 139; Clark v. Gordon, 35 W. Va. 735; 14 S. E. 255; Watson v. Coast, 35 W. Va. 463; 14 S. E. 249.
4 Ludlow v. Cooper, 4 O. S. 1; Frink v. Thomas, 20 Or. 265; 12 L. E. A. 239; 25 Pac. 717. The vendor cannot avoid. Avila v. Pereira, 120 Cal. 589; 52 Pac. 840; Gaughen v. Kerr, 99 la. 214; 68 N. W. 694; Corning v. Loomis, 111 Mich. 23; 6'.) N. W. 85; Johnson v. Eklund, 72 Minn. 195; 75 N. W. 14; McPher-son v. Fargo, 10 S. D. 611; 65 Am. St. Eep. 723; 74 N. W. 1057. Vendee cannot avoid. Mahan v. Close, 63 Minn. 21; 65 N. W. 95.
5 Eaudabaugh v. Hart, 61 O. S. 73; 76 Am. St. Eep. 361; 55 N. E. 214.
6 Gaughen v. Kerr, 99 la. 214; 68 N. W. 694; Corning v. Loomis, 111 Mich. 23; 69 N. W. 85; Johnson v. Eklund, 72 Minn. 195; 75 N. W. 14; Frink v. Thomas, 20 Or. 265; 12 L. R. A. 239; 25 Pac. 717.
7 Adams v. Turner, 73 Conn. 38; 46 Atl. 247; Frenzer v. Dufrene, 58 Neb. 432; 78 N. W. 719.
8 Leek Milling Co. v. Langford, 81 Miss. 728; 33 So. 492.
9 Leek Milling Co. v. Langford, 81 Miss. 728; 33 So. 492.
10 Eames v. Haver, 111 Cal. 401; 43 Pac. 1120; Cole v. Swanston, 1 Cal. 51; 52 Am. Dec. 288; Rice v. Appel, 111 la. 454; 82 N. W. 1001;
Morton v. Clark, 181 Mass. 134; 63 N. E. 409; W. A. McArthur Co. v. Bank, 122 Mich. 223; 81 N. W. 92; Lamont v. La Fevre, 96 Mich. 175; 55 N. W. 687; Fishback v. Van Dusen, 33 Minn. Ill; 22 X. W. 244; Behrends v. Beyschlag, 50 Neb. 304; 69 N. W. 835; Vandegrift v. Engineering Co., 161 N. Y. 435; 48 L. R. A. 685; 55 N. E. 941; Pratt v. Mfg. Co., 115 Wis. 648; 92 N. W. 368.
11 Vandegrift v. Engineering Co., 161 N. Y. 435; 48 L. R. A. 685; 55 N. E. 941.
12 Eames v. Haver, 111 Cal. 401; 43 Pac. 1120.
13 Campbell v. Moran Bros. Co.,
97 Fed. 477; 38 C. C. A. 293; Van-degrift v. Engineering Co., 161 N. Y. 435; 48 L. R. A. 685; 55 N. E. 941.
14 Adams v. Turner, 73 Conn. 38; 46 Atl. 247.
15 E. C. Dailey Co. v. Can Co., 128 Mich. 591; 87 N. W. 761.
16 Chicago, etc., Ry. v. Hoyt, 149
U. S. 1; Dunlap v. Ry., 151 111. 409, 428; 38 N. E. 89, 95.
17 Davis v. Jeffris, 5 S. D. 352, 363; 58 N. W. 815, 928.
18 Loud v. Water Co., 153 U. S. 564; Hill v. Fisher, 34 Me. 143; Kirtz v. Peck, 113 N. Y. 222; 21 N. E. 130; Gale v. Best, 20 Wis. 44.