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.
If a contract provides for notice, either by its express terms or by necessary implication, and either as a condition precedent to the duty of the party to whom notice is to be given to perform, or as a condition subsequent to terminating rights under the contract, full effect is given to such provision, and a substantial compliance therewith is necessary.1 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,2 and if none is given during the five years he may recover an installment of the price for laying the pavement reserved to secure performance of his contract to repair.3 If notice is to be given to the vendee of the time and place at which goods are to be delivered,4 as where such vendee is to furnish the means for transporting such goods,5 such notice is a condition precedent to the liability of the vendee. If an irrigation company agrees to furnish water within a certain time after written notice is given, the giving of such notice is a condition precedent to the liability of the irrigation company.6 A contract to furnish a certain amount of water if required, is operative only when clear and explicit notice to that effect is given.7 If notice of delay by reason of epidemics, strikes, and the like, must be given to obtain an extension of time by the terms of the contract, the happening of such event does not extend the time unless such notice is given.8
16 O'Connor v. Bridge Co, 05 Ky. 633, 27 S. W. 251, 983.
17 In re Deighton's Contract (1808) (C. A ), 1 Ch. 458.
18 Isaacs v. Towell (1808), 2 Ch. 285.
1 United States. Hutchinson v. Kansas Bitulithic Co., 239 Fed. 659, 152 C. C. A. 493.
Georgia. Georgia Railroad & Banking Co. v. Haas, 127 Ga. 187, 119 Am. St. Rep. 327, 56 S. E. 313.
Iowa. Banco de Sonora v. Bankers' Mutual Casualty Co., 124 Ia. 576, 104 Am. St. Rep. 367, 100 N. W. 532; Bone-well v. Jacobson, 130 Ia. 170, 5 L. R. A. (N.S.) 436, 106 N. W. 614; Wheeler v. McStay, 160 Ia. 745, L. R. A. 1915B, 181, 141 X. W. 404; Erisman v. Chicago. B & Q. R. Co., 180 Ia. 759, 163 N. W 627.
Louisiana. Mathieu v. North American Land & Timber Co., 119 La. 896, 121 Am. St. Rep. 548, 44 So. 721.
New Mexico. Culp v. Sandoval, 22 N. M. 71. L. R. A. 1917A, 1157, 159 Pac. 956.
Oklahoma. Chicago, R. I. A P. Ry. Co v. Gray. - Okla. -, 165 Pac. 157.
2 Hutchinson v. Kansas Bitulithic Co., 230 Fed. 659, 152 C. C. A. 493.
3 Southern Paving Co. v. Chattanooga (Tenn. Ch. App.), 48 S. W. 92.
If a notice of forfeiture for breach of condition subsequent is provided for as a means of taking advantage of such forfeiture, such forfeiture can not be enforced unless such notice is given.9 A provision in a contract for the sale of realty to the effect that, in case of default by the vendee, the vendor may declare the contract void, impliedly requires notice by the vendor to the vendee of his election to terminate the contract on default.10 A provision in a building contract that the contractor shall for each day that he is in default pay to the owner five dollars as liquidated damages, but that if delays are due to default of other contractors, such contractor is discharged from liability thereof on giving written notice of such fact to the owner, the contractor is not discharged if he does not give such notice.11 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.12
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.13
4 Bonewell v. Jacobson, 130 Ia. 170,
5 L. R. A. (N.S.) 436, 106 N. W. 614.
5 Culp v. Sandoval, 22 N. M. 71, L. R. A. 1917A, 1157, 159 Pac. 956.
6 Mathieu v. North American Land
& Timber Co., 119 La. 896, 121 Am. St. Rep. 548, 44 So. 721.
7 Wilson v. Charlotte, 110 N. Car. 449, 14 S. E. 961.
8 Florida Northern Ry. v. Supply Co., 112 Ga. 1, 37 S. E. 130; Davis v. La Crosse Hospital Assn., 121 Wis. 579, 99 N. W. 351.
9 Georgia Railroad & Banking Co. v. Haas, 127 Ga. 187, 119 Am. St. Rep. 327, 56 S. E. 313.
10 Higinbotham v. Frock, 48 Or. 120, 120 Am. St. Rep. 796, 7 L. R. A. (N.S.) 791, 83 Pac. 536.
11 Feeney v. Bardsley, 66 N. J. L. 239, 49 Atl. 443.
12 Grand Rapids Fire Ins. Co. v. Finn, 60 O. S. 513, 71 Am. St. Rep. 736, 50 L. R. A. 555, 54 N. E. 640.
In the absence of an express provision in the contract, requiring notice, notice is not necessary if the adversary party is not prejudiced by failure to give such notice.15 Unless notice is required by the terms of the contract, it is not necessary that notice of performance on the part of the party who omits to give such notice, should be made.16 Unless the terms of the contract require it, it is not necessary to give notice requiring performance, to the party from whom performance is due.17
Under some statutes written notice of an intent to forfeit certain classes of contracts,18 such as contracts of insurance,19 must be given. Under such statutes such written notice can not be waived by the party who is entitled thereto under such statute.20