§ 41. A contract to labor for another for whatever he may see fit to pay, partakes somewhat of the nature of a conditional contract. It does not create a binding obligation on the defendant to pay any thing; he is left solely to his discretion.1 So if the fulfilment of a promise is left entirely to the honor or discretion of the promisor, no action can be maintained against him.2 A promise by a person to give another, in consideration of his services, "as much as to any relation on earth," is too vague and indefinite to constitute a specific contract; but as it shows that the services were not rendered gratuitously, the promisee could recover a reasonable compensation for the same 3 after the promisor's death. So, an agreement by a debtor to pay a certain debt, whenever "in his opinion his circumstances would enable him to do so," creates no legal obligation for which an action will lie, unless the promisor is of ability in his own opinion, although the jury find he was so in fact.4
1 New York Exchange Co. v. DeWolf, 31 N. Y. 273 (1865).
2 Mill Dam Foundery v. Hovey, 21 Pick. 417.
3 McCarren v. MeNulty, 7 Gray, 139; Atkins v. Barnstable, 97 Mass. 428.
4 Ibid.; Brown on Sales, § 44, 45; Com. Dig. Agreement, A., Condition, C.
5 Byrne v. Pattinson, Abbott on Ship. 347; Smith v. Wilson, 8 East, 437; Mitchell v. Darthez, 2 Scott, 771; 2 Bing. N. C. 555; Gibbon v. Mendez, 2 B. & Al. 17.
6 Staunton v. Wood, 16 Q. B. 638.
7 Cuckson v. Stones, 1 El. & El. 248 (1859). See Stray 0. Russell, ib. 886.
8 Bristol v. Jones, 1 El. & El. 484 (1859).
§ 42. A condition subsequent is one which follows the performance of the contract, and operates to defeat and annul it, upon the subsequent failure of either party to comply with the condition. Thus, a devise of, land for "the purpose of building a school-house, provided it be built" on a certain site, was held to be a present grant of the land, subject to forfeiture, in case the school-house should not afterwards be built.5 So, also, where a lease was made, containing a stipulation that, " if the lessee suffer more than one person to every one hundred acres to reside on, use, or occupy any part of the premises, the lease shall be void," the stipulation was considered as a condition subsequent, the non-compliance with which annulled the lease.6
§ 43. Sometimes a condition is of such a nature that its operation may be either precedent or subsequent. Thus where in a policy of insurance there is a clause that no action shall be sustained unless brought within twelve months from the loss, such a stipulation has been sometimes called a condition precedent to the right of recovery, and sometimes a condition subsequent by which the right to indemnity for the loss is defeated, which is the same thing under a different designation.1
1 Roberts v. Smith, 4 H. &N. 315 (1859). And see Taylor v. Brewer, 1 M. & S. 290.
2 Roberts v. Smith, 4 H. & N. 315; Barnard v. Cushing, 4 Met. 230; Kelson v. Von Bonnhorst, 29 Penn. St. 352.
3 Graham v. Graham, 34 Penn. St. 475.
4 Nelson v. Von Bonnhorst, 29 Penn. St. 352.
5 Haychm v. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10 Pick. 309; Atkins v. Howe, 18 Pick. 16; Dresser Manuf. Co. v. Waterston, 3 Met. 9.
6 Jackson v. Brownell, 1 Johns. 267.
§ 44. No particular words are necessary to constitute a condition precedent or a condition subsequent, and if there be any question upon this point, it must be determined by the intention of the parties, as manifested by circumstances of the particular case.2 For not only may the exact terms of a con-
of a proper suspensive condition, or condition precedent, in the contract of sale, is, that there is no complete sale, until the condition is accomplished." So, also, Pothier1 says: "Les conditions resolutoires sont celles qui sont opposees, non pour su8pendre l'obligation jusqu'a l'accomplissement, mais pour la faire cesser lorsqu'elles s'accomplissent. Une obligation contractee sous une condition re'solutoire est done parfait des l'instant du contrat."
1 Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray, 596 (1856); Ketchum v. Protection Ins. Co., 1 Allen (N. B.), 136 (1848); Wilson v. AEtna Ins. Co., 27 Vt. 99; Cray v. Hartford Fire Ins. Co., 1 Blatchf. 280.
2 Worsley v. Wood, 6 T. R. 720; Tufts v. Kidder, 8 Pick. 537'; Johnson v. Reed, 9 Mass. 78; Gardiner v. Corson, 15 Mass. 500; Knight v. The Kew Eng. Worsted Co., 2 Cush. 286; Howland v. Leach, 11 Pick. 151; Kane v. Hood, 13 Pick. 281; Grey v. Friar, 4 House Lords Cases, 565. Crompton, J.: " This was an action of covenant to recover rent, alleged to be due on the lease of a coal-mine. The defendants below having pleaded that the tenancy had been determined by them under a proviso enabling them to determine the lease by notice- at the end of eight years, the plaintiff replied, showing the non-performance of certain covenants; and the question arose, whether, on the true construction of the proviso, the performance of the covenants was or was not a condition precedent to the determination of the term. Whether particular words do or do not amount to a condition precedent must be gathered from the real intention of the parties, as appearing upon the whole instrument. If such intention is apparent, the parties must be bound by the bargain which they have chosen to enter into; but in ascertaining the meaning and true construction of the deed, it is by no means unimportant to observe what the effect of the construction, one way or the other, would be. Accordingly, the counsel for the plaintiffs in error, in their argument, pointed out the multiplicity and minute nature of the covenants contained in this lease, and argued, from the impossibility of performing all of them to the letter, that the parties were not likely to have intended that the benefit of this clause was to be lost to the lessees by the infraction of any of the numerous and minute covenants. A proviso of this kind being for the benefit of the lessees, and being one in its nature to be useful only when the lessees desire to put an end to their lease against the will of their lessor, it seems hardly likely the arrangement should be such as to leave it practically in the power of the lessor to say whether the lessees should ever be able to avail themselves of it or not. I quite agree with what was said in the Exchequer Chamber, that these reasons would not justify the court in refusing to put the construction upon the words which they plainly require; but they appear to me to be important in ascertaining what that construction is, and whether the words do not really bear a condition be modified so as to harmonize them with the evident intention of the parties, but where no condition has been expressed, it may be implied from the facts of the case.1 Thus, where a contract was made in London for the sale of tallow by a particular ship "on arrival," and it was specified, that if it did not arrive before a stated day, the bargain was to be void, and the ship was wrecked, but the cargo was saved, and might have been sent round to London by a different conveyance than the ship, but was not; it was held that the manifest intention of the parties was, that the contract should be void, unless the tallow arrived in the ordinary course of trade and navigation, and that the sellers were not, therefore, answerable for a non-delivery thereof.2 So, also, where in a repository for the sale of horses by auction, certain rules were posted up regulating sales by private contract in such place, and affixing certain conditions thereto, it was held, that where the buyer had notice of them, he impliedly agreed to be bound by them as the conditions of the sale, although no express reference was made thereto.3