Whether a promise to pay or to perform when the promisor "is able," is a promise upon condition, or whether such provision as to ability is inserted merely in order to indicate what is regarded as a reasonable time for performance, is a question upon which there is a conflict of authority. In a number of jurisdictions it is held that such a promise is upon condition and that accordingly the promisee can recover only in case he is able to show that the promisor is able to perform.1

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

25 Jacoby v. Jacoby, 103 Fed. 473.

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

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

28 Randall v. Johnson, 59 Miss. 317, 42 Am. Rep. 365.

1 England. Davies v. Smith, 4 Esp. 36; Hart v. Prendergast, 14 Mees. & W. 741.

Indiana. Veasey v. Reeves, 6 Ind. 406 (obiter, as a prima facie case of ability to pay was made out).

Kentucky. Stainton v. Brown, 36 Ky. (6 Dana) 240; Eckler v. Gal-braith, 75 Ky. (12 Bush.) 71; Chism v. Barnes, 104 Ky. 310, 47 S. W. 232, 875.

Maine. Mattocks v. Chadwick, 71 Me. 313.

Massachusetts. Boynton v. Moul-ton, 150 Mass. 248, 34 N. E. 361.

Michigan. Halladay v. Weeks, 127 Mich. 363, 89 Am. St. Rep. 478, 86 N. W. 799.

Mississippi. Denney v. Wheelwright, 60 Miss. 733. (If ability once exists, the condition is performed even if the debtor becomes unable to perform thereafter.)

New Hampshire. Barker v. Heath, 74 N. H. 270, 67 Atl. 222.

New York. Cocks v. Weeks, 7 Hill (N. Y.) 45; Tebo v. Robinson, 100 N. Y. 27, 2 N. E. 383.

North Carolina. Cooper v. Jones, 128 N. Car. 40, 38 S. E. 28.

Pennsylvania. Nelson v. Von Bonn-horst, 29 Pa. St. 352.

Tennessee. Scott v. Thornton, 104 Tenn. 547, 58 S. W. 236.

In some jurisdictions a promise to pay as the debtor "might feel able to pay," is held to leave the time of payment in the bona fide and honest judgment of the debtor, though a legal liability is created by such contract.2

In other jurisdictions such a promise has been held to amount in legal effect to a promise to pay or to perform in at least a reasonable time.3 Accordingly, a promise to pay "as soon as I can"4 or "when I can make it convenient,"5 or "as fast as I can spare the same from my salary,"6 or as fast as the promisor was financially able without sacrificing his interests in a given corporation, for stock in which the contract in question was made,7 or "when payor and payee mutually agree,"8 has been held in each case to require payment in a reasonable time.

Accordingly, in some cases it has been held that the promisee is not obliged to show that the promisor is able to perform, but that an action may be brought upon such promise after a reasonable time has elapsed without alleging or proving such ability.9 An additional reason for this result has been said to be the improbability of the parties intending that the contract should never be performed unless the promisor should be able to perform his entire obligation at once.10 In any event, if the debtor is in fact financially able to pay, he is bound to make the payment stipulated under such contract,11 even if such financial ability does not persist to the date of the trial.12

2 Pistel v. Ins. Co., 88 Md. 552, 43 L. R. A. 219, 42 Atl. 210.

3 Alabama. Culver v. Caldwell, 137 Ala. 125, 34 So. 13.

Connecticut. Norton v. Shepard, 48 Conn. 141, 40 Am. Rep. 157.

Iowa. Jenckes v. Rice, 119 Ia. 451, 93 N. W. 384 (apparently not necessary to show ability).

Kansas. Benton v. Benton, 78 Kan. 366, 27 L. R. A. (N.S.) 300, 97 Pac. 378.

Ohio. Lewis v. Tipton, 10 O. S. 88, 75 Am. Dec. 498s*

Vermont. Cummings v. Gassett, 19 Vt. 308.

Wyoming. Chadwick v. Hopkins, 4 Wyom. 379, 62 Am. St. Rep. 38, 34 Pac. 899.

4 Benton v. Benton, 78 Kan. 366, 27 L. R. A. (N.S.) 300, 97 Pac. 378.

5 Lewis v. Tipton, 10 O. S. 88, 75 Am. Dec. 498.

6 Culver v. Caldwell, 137 Ala. 125, 34 So. 13 (payable after a reasonable time for getting money from that source has elapsed).

7 Chadwick v. Hopkins, 4 Wyom. 379, 62 Am. St. Rep. 38, 34 Pac. 899 (a delay of four years was held more than a reasonable time).

8 Page v. Cook, 164 Mass. 116, 49 Am. St. Rep. 449, 28 L. R. A. 759, 41 N. E. 115.

9 Norton v. Shepard, 48 Conn. 141, 40 Am. Rep. 157; Jenckes v. Rice, 119 Ia. 451, 93 N. W. 384 (apparently unnecessary to prove ability to pay); Benton v. Benton, 78 Kan. 366, 27 L. R. A. (N.S.) 300, 97 Pac. 378; Cummings v. Gassett, 19 Vt. 308.

10 Benton v. Benton, 78 Kan. 366, 27 L. R. A. (N.S.) 300, 97 Pac. 378.

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