While the courts now assume that covenants are dependent rather than independent, and concurrent on the one hand rather than precedent and subsequent on the other, this rule, like the other rules of modern law on this subject, is merely a guide to aid the court in ascertaining the intention of the parties; and it is not a rigid rule of substantive law. Whether covenants are dependent or independent, and whether they are concurrent on the one hand or precedent and subsequent on the other, depends entirely upon the intention of the parties shown by the entire contract as construed in the light of the circumstances of the case, the nature of the contract, the relation of the parties thereto, and other evidence which is admissible to aid the court in determining the intention of the parties.1 While a number of tests have been laid down,2 and while they are of great help in ascertaining the intention of the parties, they are not, at modern law, arbitrary rules, but merely guides to aid the court in discovering the intention of the parties; and accordingly they are not conclusive in every case.3 The fact that a covenant is referred to as a condition precedent, or as a precedent covenant, is not of itself conclusive as to its character.4 It is the order in which the parties intend the covenants to be performed, and not the name that the parties give to them, which determines whether they are precedent covenants or not.5 The intention of the parties must be ascertained from the contract as a whole, and specific provisions must be ignored if they are inconsistent with the general intent.6 While the fact that a covenant goes to a part only of the consideration,7, or that the covenants are to be performed at different times without any apparent relation between the performance of the one and the performance of the other,8 may tend to show that such covenants are independent, neither of these rules can be regarded as arbitrary and unbending; and if the contract as a whole shows that the covenants are dependent, effect will be given to such intention, although one of the covenants goes to a part of the consideration only,9 and although the contract provides that different covenants are to be performed at different times without any apparent relation between the performance of the two.10 On the other hand, the injustice of the result that may follow in some cases from treating a covenant as independent, may induce the court to construe it as independent, although in outward form it may seem to be dependent.11
As where A, by articles of agreement, in consideration of a sum of money to be paid to him by B on a certain day, covenants to convey to B on the same day a house, together with the fixtures and furniture therein, and that he was lawfully seized of the house and possessed of the fixtures and furniture, in an action against B for the money, A must aver that he conveyed either the whole of the premises or at least the house to B, or it must be admitted by B in his plea that A did convey the house, but was not lawfully possessed of the furniture or fixtures.
"4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. 1 Vent. 147, Large v. Cheshire; 1 H. Black 270, Duke of St. Alban'd v. Shore.
"5. Where two acts are to be done at the same time, as where A covenants to convey an estate to B on such a day, and in consideration thereof B covenants to pay A a sum of money on the same day, neither can maintain an action without showing performance of, or an offer to perform, his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale. 1 Salk. 112, 113, Callonel v. Briggs; Ibid 171."
4 See Sec. 2948 et seq.
1 England. Stavers v. Curling, 3 Bing. N. C. 355; Glazebrook v. Wood-row, 8 T. R. 366; Graves v. Legg, 9 Exch. 709; General Billposting Co. v. Atkinson , A. C. 118 [affirming (1908), 1 Ch. 537].
United States. Pollack v. Brush Electric Association, 128 U. S. 446, 32 L. ed. 474; Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (NS.) 849.
Alabama. McCormick v. Badham, 191 Ala. 339, 67 So. 609.
Arizona. World's Fair Mining Co. v. Towers, 12 Ariz. 285, 100 Pac. 957.
Florida. Southern Colonization Co. v. Derfler, 73 Fla. 924, L R. A. 1917F, 744, 75 So. 790.
Louisiana. Stockstill v. Byrd, 132 La. 404, 61 So. 446.
Massachusetts, Johnson v. Reed, 9 Mass. 78, 6 Am. Dec. 36; Bryne v. Dorey, 221 Mass. 399, 109 N. E. 146.
Missouri. Con P. Curran Printing Co. v. St. Louis, 213 Mo. 22, 111 S. W. 812.
New York. Delaware Trust Co. v. Calm, 105 N. Y. 231, 88 N. E. 53; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.
North Carolina. Statesville Flour Mills Co. v. Wayne Distributing Co., 171 N. Car. 708, 88 S. E. 771.
North Dakota. Sunshine Cloak & Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E, 932, 152 N. W. 369.
Ohio. Commissioners of Clermont County v. Robb, 5 Ohio 491.
South Dakota. Ink v. Rohrig, 23 S. D. 548, 122 N. W. 594.
Tennessee. Bradford v. Montgomery Furniture Co., 115 Tenn. 610, 9 L. R. A. (N.S.) 979, 92 S. W. 1104.
Washington. Toellner v. McOinnis, 55 Wash. 430, 24 L. R. A. (N.S.) 1082, 104 Pac. 641; Ihrke v. Continental Life Ins. & Investment Co., 91 Wash. 342, L. R. A. 1916F, 430, 157 Pac. 866.
"Conditions have no idiom. * * * Whether they be precedent or subsequent is a question purely of intent, and the intention must be determined by considering not only the words of the particular clause, but also the language of the whole contract, as well as the nature of the act required and the subject-matter to which it relates." Bucksport & Bangor Railroad Co. v. Brewer, 67 Me. 295.
2 See Sec. 2047 and 2951 et seq.
3 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.