A covenant may be independent because it is intended by the parties as an absolute promise; that is, each party may accept the promise of the adversary party rather than the performance thereof, not merely as the consideration for his promise, but also with reference to the promisor's duty to perform.1 The use of the term "absolute" in this connection shows that dependent covenants are regarded as analogous to conditions in that the breach of such covenant may affect the liability of the adversary party to perform. A covenant may be made independent by an express provision to the effect that breach of a given covenant shall not affect the duty of the adversary party to perform.2 Under a contract by which A agrees to pay certain assessments in consideration of which he is to receive medical and hospital services when necessary, which contains an express provision to the effect that his failure to pay assessments while sick shall not operate as a cancellation of such contract, his duty to pay such assessments while sick is an independent covenant the breach of which does not discharge the adversary party.3 In some of the cases in which covenants are held to be independent because of the intention of the parties to accept the promise of the adversary party rather than performance, performance on one side is due only on the happening of an event which either may not happen at all, or may not happen during the period for which the contract is in effect.4 Under a contract of insurance in which credit is given for payment of the premiums and no provision is made for forfeiting the rights of the insured because of his failure to pay such premiums, his duty to pay the premiums and the liability of the insurer are independent covenants; and failure to pay premiums does not operate as a discharge of the contract of insurance.5 Under a contract by which A and B agree mutually to guarantee debts due to each from third persons, such covenants are regarded as independent, since the liability of each is continued and performance may never be required,6 Under a contract by which A gave A's note to B, and B agreed to pay A's note to X, it was held that such covenants were independent and that B might recover on such note without paying A's note to X,7 even if such notes were of the same amount.8 Under a contract by which A sold his business to B and agreed not to compete for a certain time and gave bond to secure performance of such contract, and B gave his notes in consideration of A's promises, it was held that such covenants were independent on the theory that the bond was the sole consideration for the notes.9 Under a contract by which A gave his note to B, and B agreed to transfer certain property to A upon payment of such note at maturity, time being of the essence of the contract, it was held that such covenants were independent and that B might recover upon such note without showing that he had performed, or that he had offered to perform.10 Under a contract by which A sold property to B, and A agreed to convey when the first payment was made, and B agreed to pay in three instalments, it was held that such covenants were independent and that A might recover the last instalment, although he had not made such conveyance when the first instalment was made.11 Some of these cases seem to be cases of explanation only on the ground that the court still follows the original theory that covenants are prima facie independent in the absence of any provisions in the contract tending to show that the performance of one covenant depends upon the performance of the covenant of the adversary party, even though such covenants form the consideration, each for the other.12

32 Measures Bros. v. Measures [1910], 2 Ch. 248 [affirming (1910), 1 Ch. 336].

1 Alabama. Logan v. Hodges, 6 Ala. 699; Equitable Life Assurance Society v. Golson, 159 Ala. 508, 48 So. 1034.

Kentucky. Hutchings v. Moore, 61 Ky. (4 Met.) 110.

Nebraska. Haas v. Mutual Life Ins. Co., 84 Neb. 682, 26 L. R. A. (N.S.) 747, 121 N. W. 996.

New Hampshire. Clough v. Baker, 48 N. H. 254.

North Carolina. Woodfi n v. Asheville Mutual Ins. Co., 51 N. Car. 558.

Ohio. Mutual Life Insurance Co. v. French, 30 O. S. 240.

Oklahoma. Friend v. Southern States Life Ins. Co., 58 Okla. 448, 160 Pac. 457.

Oregon. Hawley v. Bingham. 6 Or. 76; Coffey v. Northwestern Hospital Association, - Or. -, 183 Pac. 762.

Virginia. Allemong v. Augusta National Bank, 103 Va. 243, 48 S. E. 897.

Wisconsin. Alexander v. Continental Insurance Co., 67 Wis. 422, 30 N. W. 727.

2 Coffey v. Northwestern Hospital Association, - Or. -, 183 Pac. 762.

3 Coffey v. Northwestern Hospital Association, - Or. -, 183 Pac. 762.

4 England. Christie v. Borelly, 29 L. J. Rep. C. P. 153.

Alabama. Equitable Life Assurance Society v. Golson, 150 Ala. 508, 48 So. 103-1.

Nebraska. Haas v. Mutual Life Ins. Co., 84 Nob. G82, 26 L. R. A. (N.S.) 747, 121 N. W. 900.

North Carolina. Woodfin v. Ashe-ville Mutual Ins. Co., 51 N. Car. 558.

Oklahoma. Friend v. Southern States Life Ins. Co., 58 Okla. 448, 160 Pac 457.

Ohio. Mutual Life Ins. Co. v. French, 30 O. S. 240.

Wisconsin. Alexander v. Continental Ins. Co., 67 Wis. 422, 30 N. W. 727.

5 Alabama. Equitable Life Assurance Society v. Golson, 159 Ala. 508, 48 So. 1034 (obiter as forfeiture clause was part of contract).

Nebraska. Haas v. Mutual Life Ins. Co., 84 Neb. C82, 2G L. R. A. (N.S.) 747, 121 N. W. 00G.

North Carolina. Woodfin v. Ashe-ville Mutual Ins. Co., 51 N. Car. 558.

Ohio. Mutual Life Ins. Co. v. French, 30 O. S. 240.

Oklahoma. Friend v. Southern States Life Ins. Co., 58 Okla. 448, 160 Pac. 457.

Wisconsin, Alexander v. Continental Ins. Co., 67 Wis. 422, 30 N. W. 727 (waiver of clause of forfeiture).

6 Christie v. Borelly, 29 L. J. Rep. C. P. 153.

7 Logan v. Hodges, 6 Ala. 699.

8 Logan v. Hodges, 6 Ala. 699.

(In this case B paid A's note to X after he had brought the action, but before the trial.)

9 Dough v. Baker, 48 N. H. 254.