Connecticut. Scovill v. McMahon, 62

Conn. 378, 21 L. R. A. 58, 36 Am. St Rep. 350, 26 AtL 479.

Massachusetts. Sohier v. Trinity Church, 109 Mass. 1.

Rhode Island. Greene v. O'Connor 18 R. I. 56, 19 L. R. A. 262, 25 Atl. 692.

Wisconsin. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175.

"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 ex-press 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 condition precedent to performance by the other. The question in each case is. Which intent is disclosed by the language employed in the contract?" Loud v. Pomona Land & Water Co., 153 U. S. 564, 576, 38 L. ed. 822.

4 United States. Stanley v. Colt, 72 U. S. (5 Wall.) 119, 18 L. ed. 502; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. 701.

Connecticut. Scovill v. McMahon, 62 Conn. 378, 21 L. R. A. 58, 36 Am. St. Rep. 350, 26 Atl. 479.

Massachusetts. Sohier v. Trinity Church, 109 Mass. 1.

Rhode Island. Greene v. O'Connor, 18 R. I. 56, 19 L. R. A. 262, 25 Atl. 692.

Wisconsin. Hartung v. Witte, 50 Wis. 285, 18 N. W. 175.

"The calling of a provision or stipulation a condition is not conclusive, and if, from the contract or other circumstances, it is seen that it was not the intention of the parties that its performance should be a condition precedent, it will not be held to be such." Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (N.S.) 849.

5 Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (N.S.) 849; McCormick v. Badham, 191 Ala. 339, 67 So. 609.

"The question whether the performance of a stipulation in a contract is a condition precedent to the performance of other stipulations in it depends upon the order in which the parties intend the several stipulations to be performed." Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (N.S.) 849.

6 United States. Stanley v. Colt, 72 U. S. (5 Wall.) 119, 18 L. ed. 502; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. 701.

Connecticut Scovill v. McMahon, 62 Conn. 378, 21 L. R. A. 58, 36 Am. St. Rep. 350, 26 Atl. 479.

Massachusetts. Sohier v. Trinity Church, 109 Mass. 1; Griggs v. Moors, 168 Mass. 354, 47 N. E. 128.

New York. Rosenthal Paper Co. v. National Folding Box & Paper Co., 220 N. Y. 313, 123 N. E. 766.

Rhode Island. Green v. O'Connor, 18 R. I. 56, 19 L. R. A. 262, 25 Atl. 692.

Virginia. Allemong v. Augusta National Bank, 103 Va. 243, 48 S. E. 897.

Wisconsin. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175.

7 See Sec. 2974.

8 See Sec. 2972 and 2973.

9 Graves v. Legg, 9 Exch. 709; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.

10 "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." Slater v. Emerson, 60 U. S. (19 How.) 224, 238, 15 L. ed. 626.

While there is occasionally a lack of harmony in construing some provisions,12 as is often the case when questions of construction are presented,13 the courts agree that arbitrary tests must be discarded.14 Special emphasis is placed upon good sense or common sense as the best guide in ascertaining the relation of the covenants.15 The order in which the covenants appear in the contract is generally regarded as immaterial;16 while there is apparently some authority to the contrary.17 The fact that the contract provides that one party shall "first" do a certain act does not of itself show conclusively that such covenant is intended as a precedent covenant.18 A covenant may be precedent as to one or more covenants to be performed by the adversary party, and concurrent or subsequent as to others.19 Under a building contract requiring payment by instalments 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 instalments due after the date fixed for completion.20

11 Hunt v. Tibbetts, 70 Me. 221; Todd v. Summers, 43 Va. (2 Gratt.) 167.

12 See Sec. 2951 et seq.

13 See ch. LXIII.

14 "By a long series of decisions, the rule has been established that the question whether covenants are to be held dependent or independent of each other is to be determined by the intention and meaning of the parties, as expressed by them, and by the application of common sense to each case submitted for adjudication. Stavers v. Curling, 3 Bingham's N. C. 355; Tipton v. Feitner, 20 N. Y. 423; Pollak v. Brush Electric Association, 128 U. S. 446; Loud v. Pomona Land & Water Co., 153 U. S. 564; Griggs v. Moors, 168 Mass. 354; Leonard v. Dyer, 26 Conn. 172. The efforts put forth in judicial opinions and by text writers to define or formulate the distinctions of dependence and independence of promises or covenants have revealed their comparative futility and served, in the main, to strengthen the rule. Parties have the right to contract as they will for any lawful purpose, and the problem for the courts is to ascertain, in accordance with established rules of interpretation, the real contract or agreement. If they make their promises dependent or independent throughout, or dependent in part and independent in part, it is not for the courts to thwart them. Their expressed intention and meaning, ascertained from the whole instrument, rather than from technical or conventional expressions, are the guides in determining the character and force of their respective covenants." Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.

"This court has said: Perhaps there is no other branch of the law in which is to be found a larger number of decisions or a greater apparent con-flict of authorities than that in which the effort has been made to define the dependence and independence of covenants, and to designate the class to which any given case in dispute is to be referred. The great effort, however, in the more recent decisions has been to discard, as far as possible, all rules of construction founded on nice and artificial reasoning, and to make the meaning and intention of the parties, collected from all parts of the instrument, rather than from a few technical expressions, the guide in determining the character and force of their respective undertakings.' Per Daniel, J., in Roach v. Dickinson, 9 Gratt. 154.

" 'Courts construe agreements so as to prevent a failure of justice, and hold dependent covenants to be independent when the necessity of the case and the ends of justice require it, notwithstanding the form.' Todd v. Summers, 2 Gratt. 167; Brockenbrough v. Word, 4 Rand. 352; Bream v. Marsh,