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.
As in the case of other covenants,1 whatever may have been the original common-law rule,2 the intention of the parties must be considered primarily in determining whether a covenant is concurrent or not.3 If two or more covenants each form the consideration for the other, there is a strong presumption that they are concurrent.4 Accordingly, wherever one covenant is a consideration for the other, and there is no provision in the contract for credit on the part of either party, such covenants are regarded as concurrent.5 Since the intention of the parties determines whether covenants are precedent or concurrent, slight differences in phraseology may be decisive of different intentions. If the contract specifically provides that the deed is to be delivered after performance by the vendee, performance by the vendee is a condition precedent to and not concurrent with delivery of the deed by the vendor.6 The use of the word "after" is not conclusive that payment is a condition precedent, since the context may show that it is a concurrent covenant.7 A contract for a deed "after" certain payments are made, the vendee at the same time to deliver a bond and mortgage to secure a balance due, makes delivery of the deed concurrent with the last payment to be made apart from that secured by mortgage.8 A contract to convey "upon payment,"9 or "as soon as" the purchase money is paid,10 provides for concurrent covenants. The fact that a contract for the sale of realty provides that the purchaser shall "first" make payment therefor, does not prevent the covenants for conveyance and for payment from being concurrent if there is nothing else in the contract to show that the parties do not intend performance at the same time.11
1 United States. World's Fair Mining Co. v. Powers, 224 U. S. 173, 56 L. ed. 717.
Alabama. McCormick v. Badham, 191 Ala. 339, 67 So. 609.
Arizona. World's Fair Mining Co. v. Powers, 12 Ariz. 285, 100 Pac. 957.
Nebraska. Frenzer v. Dufrene, 58 Neb. 432, 78 N. W. 719.
New York. Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313. 123 N. E. 766.
Ohio. Webb v. Stevenson, 6 Ohio 282: Raudabaugh v. Hart, 61 O. S. 73, 76 Am. St. Rep. 361, 55 N. E. 214.
Rhode Island. Marsh v. Babcock (R. I.), 68 Atl. 475.
2 See Sec. 2967 et seq.
1 See Sec. 2948.
2 See Sec. $2944 et seq.
3 McCormick v. Badham, 191 Ala. 339, 67 So. 609.
4 McCormick v. Badham, 191 Ala. 339, 67 So. 609; World's Fair Mining Co. v. Powers, 12 Ariz. 285, 100 Pac. 957.
See Sec. 2948.
5 McCormick v. Badham, 191 Ala. 339, 67 So. 609; Schmidt v. Mitchell, 117 Ga. 6, 43 S. E. 371; Hall v. International Liberty Union of the World, 161 Ky. 299, 170 S. W. 631.