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.
Under a contract by which a carrier agrees to transport passengers, the duty of the passenger to pay his fare is frequently precedent to the duty of the carrier to begin performance of his duty to transport such passenger.1 In some cases, in the case of street railways, or of other means of transportation where there is no means of preventing a passenger from entering without paying his fare in advance, the fare is payable on demand; and such duty on the part of the passenger is precedent to the duty on the part of the carrier to continue to perform the contract of transportation. A clause in a railway ticket to the effect that it must be stamped by the agent of the company at the terminal point to be good for the round trip, imposes a provision which must be complied with before such ticket can be used.2 In the absence of a specific agreement by which the carrier extends credit to the consignor, the duty of the consignor to pay freight in advance is precedent to the duty of the carrier to accept the goods or to transport them.3 If the carrier does not waive his right to demand payment of freight in advance, he is not bound to accept goods without a prepayment of freight, either from the consignor,4 or from a connecting carrier.5 It has been said that if the carrier receives such goods, his common-law liability does not attach until freight is paid in advance, unless he has waived his right to such payment and has agreed to extend credit to the consignor.6
4 Stevens v. Ambler, 30 Fla. 575, 23 So. 10; Persinger v. Bevill, 31 Fla. 364, 12 So. 366.
See also, Sickels v. Anderson, 63 Mich. 421, 30 N. W. 78.
5 Gardner v. Walsh, 95 Mich. 505, 55 N. W. 355.
6 Indianapolis Ry. v. Holmes, 101 Ind. 348.
7 Pontiac, O. & P. A. Ry. v. King, 68 Mich. 1, 35 N. W. 705.
8 Ogden v. Kirby, 79 Ill. 555.
9 Courtright v. Strickler, 37 Ia. 382.
10 Quinlan v. Green County, 157 Fed. 33, 19 L. R. A. (N.S.) 849 [affirmed, Green County v. Quinlan, 211 U. S. 582, 53 L. ed. 335].
1 Hurt v. Southern Ry., 40 Miss. 391; Martin v. Rhode Island Co., 32 R. I. 162, 32 L. R. A. (N.S.) 695, 78 Atl. 648; Curtis v. Louisville City Ry., 94 Ky. 573, 21 L. R. A. 649, 23 S. W. 363.
2 United States. Boylan v. Hot Springs Ry., 132 U. S. 146, 33 L. ed. 290.
California. Marlow v. Southern Pac-cific Ry., 151 Cal. 383, 128 Am. St. Rep. 127, 90 Pac. 928.
Kansas. Dangerfield v. Atchison Ry., 62 Kan. 85, 61 Pac. 405.
Michigan. Edwards v. Lake Shore & Michigan Southern Ry., 81 Mich. 364, 21 Am. St. Rep. 527, 45 N. W. 827.
Pennsylvania. Bowers v. Pittsburgh, Ft. Wayne & Chicago Ry., 158 Pa. St. 302, 27 Atl. 893.
South Carolina. Bethea v. Northeastern Ry., 26 S. Car. 91, 1 S. E. 372.
Tennessee. Watson v. Louisville Ry., 104 Tenn. 194, 49 L. R. A. 454, 56 S. W. 1024.
Texas. Russell v. Missouri, Kansas & Texas Ry., 12 Tex. Civ. App. 627, 35 S. W. 724.
3 Wadley Southern Ry. v. Georgia, 235 U. S. 651, 59 L. ed. 405; Dixon v. Central of Georgia Ry., 110 Ga. 173, 35 S. E. 369; Illinois Central Ry. v. Frankenberger, 54 Ill. 88, 5 Am. Rep. 92 (obiter); Lehigh Valley Transportation Co. v. Post Sugar Co., 228 Ill. 121, 81 N. E. 819; Bird v. Southern Ry., 99 Tenn. 719, 63 Am. St. Rep. 856, 42 S. W. 451.
4 Illinois Central Ry. v. Frankenberger, 54 Ill. 88, 5 Am. Rep. 92 (obiter).
5 Wadley Southern Ry. v. Georgia, 235 U. S. 651, 59 L. ed. 405; Lehigh Valley Transportation Co. v. Post Sugar Co., 228 Ill. 121, 81 N. E. 819; Bird v. Southern Ry., 99 Tenn. 719, 63 Am. St. Rep. 856, 42 S. W. 451.
6 Dixon v. Central of Georgia Ry., 110 Ga. 173, 35 S. E. 369.
Under a contract by which A is to cut timber sufficient to keep B's teams employed in transporting it, A's failure to keep such-amount of timber cut is a breach of a precedent covenant;7 and B may treat the covenant on his part as discharged.8