A provision is frequently made for performance upon the happening of some extrinsic act. While the happening of such act is occasionally made in form a condition, it is ordinarily rather a definition of the circumstances under which performance is due, than a condition which renders the policy or certain covenants thereunder void in case of breach.1 Questions of this sort are so clearly related to questions of time, that they are discussed in that connection.2 The problem which arises most frequently in connection with contracts, which by their terms are to be performed upon the happening of a future event, is whether such event is selected merely as a means of fixing the time of performance, or whether the happening of such event is a condition precedent to the right of the adversary party to demand performance. If sufficient consideration exists, the parties may word the contract so that performance is not due until the specified event happens, and if such event does not take place, performance is never to be-come due. Accordingly, if the contract shows that the parties intended to make such act or event a condition precedent to performance, full effect must be given to such intention, and such performance can not be demanded until such act or event occurs.3 Under a provision that one who saws logs into lumber is not to be paid until the adversary party has sold the lumber, payment is not due until such sale.4 If B has made a deposit with the United States Government under a contract for cutting timber, and B subsequently assigns such contract to A under an agreement by which A agrees to pay such deposit to B when the government permits such deposit to be applied in payment of such timber, A must pay to B such parts of such deposit as the United States Government permits to be applied to payments under such contract by a change in their rules.5 A promise to make certain payments which are not, however, to begin until a certain corporation has paid certain amounts to the estate of a deceased creditor, can not be enforced unless it is shown that such amounts have been paid or that the promisor is at fault in preventing such payment.6

9 Anderson v. Kirby, 125 Ga. 62, 114 Am. St. Rep. 185, 54 S. E. 107.

10 See Sec. 2506 et seq.

11 Anderson v. Kirby, 125 Ga. 62, 114 Am. St. Rep. 185, 54 S. E. 107.

12 Anderson v. Kirby, 125 Ga. 62, 114 Am. St. Rep. 185, 54 S. E. 197. 13 See ch. LXXXIV.

1 See Sec. 2100.

2 See Sec. 2100.

If the contract in question is based upon a pre-existing obligation of some sort, and if the effect of treating such event as a condition which will operate as a discharge of all liability in case it does not occur, will be to relieve one of the parties to the contract from such pre-existing liability entirely, the tendency of modern judicial decision is to hold that unless the language of the contract shows unequivocally that the event is a condition,7 the provision with reference to such future act or event will be construed as a provision inserted in order to fix the time of performance, and to indicate what the parties regard as a reasonable or proper time for performance, but that such provision is not intended to make the doing of such act or the happening of such event a condition precedent.8 Under this view of the intention of the parties, the contract is not discharged by the non-performance of such future act, but the performance which was promised upon the happening of such act will be regarded as due in a reasonable time,9 especially if the event on which performance is due is wholly or partially within the control of the promisor.10 Under this principle, a promise to pay or to perform when certain property is sold,11 as when the promisor sells the place he lives in,12 or "as soon as the crop can be sold or the money raised from any other source," 13 or when other specified property is sold at a specified price,14 is regarded as performable in any event, and if such sale is not made or becomes impossible, such performance is due in at least a reasonable time. If A agrees for value to pay a certain amount to B - when A's residence can be sold for a certain price, A's promise is not discharged by the fact that the house burns; and if A collects insurance thereon, such debt becomes due and payable within a reasonable time after A has collected such insurance.15 A promise to pay a certain amount "out of the first receipts from coal lands," after the promisor was reimbursed for a certain amount which he had invested, imposes a duty to pay in at least a reasonable time.16 If a mining company makes a promise for value to pay an amount out of the proceeds of ore sales and compromises, it is bound absolutely if the amount received from ore sales and compromises is not sufficient to pay such debt within a reasonable time.17 Under a contract to pay a certain sum when it is realized from the sale of the products of certain lands, such sum is due at once as soon as the promisor has made literal performance impossible by selling such land.18 A promise to pay when the maker has finished a church which is then in process of construction;19 or to pay in a certain time, "or as soon as I can sell the above amount of Allen's Vegetable Tonic";20 or to pay when a certain dispute is settled;21 or to pay in four months, or as soon as the promisor shall collect a certain note;22 or to pay by a certain date, "on the condition that the banks of Tennessee have resumed specie payment at that time - if not, as soon thereafter as they do resume specie payment";23 or to pay by a certain day, "or as soon thereafter as said railroad company" shall make certain payments to the promisor;24 or to credit the amount of the debtor's cigars sold by the creditor, upon the debt, and thus extinguish it,25 has been held in each case not to be conditioned upon the happening of such event, but to be performable in at least a reasonable time if such event does not occur. A contract to deliver lumber at a certain time, "or as soon thereafter as vessel can be got ready," must be performed in at least a reasonable time after July 10th,26 at least if the party did not contemplate any specific vessel.27 If a note is payable ninety days after the return of a specified ship, and such ship is lost, such note must be paid in ninety days after the time usually required for such a trip.28

3 Kentucky. Fox v. Commercial Press Co. (Ky.), 88 S. W. 1063, 28 Ky. L. Rep. 44.

North Carolina. Gardner v. Edwards, 119 N. Car. 566, 26 S. E. 155.

Ohio. Pfantz v. Humburg, 82 O. S. 1, 91 N. E. 863; Thomas v. Matthews, 94 O. S. 32, L. R. A. 1917A, 1068, 113 N. E. 669.

Oklahoma. Leeper Bros. Lumber Co. v. Gunter, - Okla. - , 160 Pac. 606.

4 Gardner v. Edwards, 119 N. Car. 566, 26 S. E. 155.

5 Yanish v. J. Neils Lumber Co., 101 Minn. 78, 11 L. R. A. (N.S.) 92, 111 N. W. 921.

6 Thomas v. Matthews, 94 O. S. 32, L. R. A. 1917A, 1068, 113 N. E. 669.

7 See note 3, this section.

8 United States. Nunez v. Dautel, 86 U. S. (19 Wall.) 560, 22 L. e<l. 161

Alabama. Crass v. Scruggs, 115 Ala. 258, 22 So. 81.

California. Poirier v. Gravel, 88 Cal. 79, 25 Pac. 962.

Florida. Whiting v. Gray, 27 Fla. 482, 11 L. R. A. 526, 8 So. 726.

Georgia. Eaton v. Yarborough, 19 Ga. 82; Bryant v. Atlantic Coast Line Ry., 110 Ga. 607, 46 S. E. 829.

Illinois. Harlow v. Boswell, 15 III. 56; McCarty v. Howell, 24 III. 341.

Kansas. Greenstreet v. Cheatum, 99 Kan. 290, 161 Pac. 596.

Maine. C'rooker v. Holmes, 65 Me. 193. 20 Am. Rep. 687.

Massachusetts. Alvord v. Cook, 174 Mass. 120, 75 Am. St. Rep. 288, 54 N. . 499.

Mississippi. Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365; Hughes v. McEwen, 112 Miss. 35, L. R. A. 1917B, 1048, 72 So. 848.

Ohio. Wright v. Hull, 83 O. S. 385, 94 N. E. 813.

Oregon. Noland v. Bull, 24 Or. 479, 33 Pac. 983.

Tennessee. Walters v. McBee, 69 Tenn. (1 Lea) 364.

Utah. White v. Century Gold Min. ft Mill. Co., 28 Utah, 331, 78 Pac. 868.

See also, Jacoby v. Jacoby, 103 Fed. 473.

See Sec. 2597.

9 United States. Nunez v. Dautel, 86 U. S. (19 Wall.) 560, 22 L. ed. 161.

Alabama. Crass v. Scruggs, 115 Ala. 258, 22 So. 81.

Florida. Whiting v. Gray, 27 Fla. 482, 11 L. R. A. 526, 8 So. 726.

Georgia. Eaton v. Yarborough, 19 Ga. 82; Bryant v. Atlantic Coast Line Ry.. 119 Ga. 607, 46 S. E. 829.

Illinois. Harlow v. Boswell, 15 III. 50; McCarty v. Howell, 24 III. 341.

Kansas. Greenstreet v. Cheatum, 99 Kan. 290, 161 Pac. 596.

Maine. Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687.

Massachusetts. Alvord v. Cook, 174 Mass. 120, 75 Am. St. Rep. 288, 54 N. E. 499.

Mississippi. Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365; Hughes v. McEwen, 112 Miss. 35, L. R. A. 1917B, 1048, 72 So. 848.

Ohio. Wright v. Hull, 83 O. S. 385, 94 N. E. 813.

Oregon. Noland v. Bull, 24 Or. 479, 33 Pac. 983.

Tennessee. Walters v. McBee, 69 Tenn. (1 Lea) 364.

Utah. White v. Century Gold Min. & Mill. Co., 28 Utah, 331, 78 Pac. 868.

10 Bryant v. Atlantic Coast Line Ry., 119 Ga. 607, 46 S. E. 829; Sears v. Wright, 24 Me. 278; Hughes v. McEwen, 112 Miss. 35, L. R. A. 1917B, 1048, 72 So. 848.

11 Hughes v. McEwen, 112 Miss. 35, L. R. A. 1917B, 1048, 72 So. 848; Simon v. Etgen, 213 N. Y. 589, 107 N. E. 1066.

Contra, Blake v. Coleman, 22 Wis. 415, 99 Am. Dec. 53.

12 Crooker v. Holmes, 65 Me. 105, 20 Am. Rep. 687. (Hence judgment and levy on such property do not relieve the promisor from liability to pay in a reasonable time.)

13 Nunez v. Dautel, 86 U. S. (19 Wall.) 560, 22 L. ed. 161.

14 Noland v. Bull, 24 Or. 470, 33 Pac. 983.

As to pay a commission by conveying realty when other realty is exchanged. Alvord v. Cook, 174 Mass. 120. 75 Am. St. Rep. 288, 54 N. E. 490.

15 Greenstreet v. Cheatum, 99 Kan. 290, 161 Pac. 596.

16 Wright v. Hull, 83 O. S. 385, 94 N. E. 813. (In such a case a reasonable time would expire, at least at the end of ten years )

17 White v. Century Gold Min. & Mill. Co., 28 Utah 331, 78 Pac 868.

18 Poirier v. Gravel, 88 CaL 79, 26 Pac. 962.

19 Eaton v. Yarborough, 19 Ga. 82.

20 Harlow v. Boswell, 15 III. 56.

21 Bryant v. Atlantic Coast Line Ry., 119 Ga. 607, 46 S. E. 829.

22 McQarty v. Howell, 24 III. 341.

23 Walters v. McBee, 69 Tenn. (1 Lea) 364.