§ 45. A condition precedent corresponds to the suspensive condition of the civil and Scottish law, and a condition subsequent to the resolutive condition. Mr. Brown, in his Treatise on Sales, says: " A condition resolutive, when it is accomplished, puts an end to the contract, but does not suspend its existence." " The contract is perfect, notwithstanding the presence of a condition subsequent, and is merely liable to be rescinded, on the condition being accomplished." " The effect struction which would not lead to consequences which the parties were not likely to have contemplated. Words capable of being treated as conditions precedent to rights of action, have in many cases, some of which were cited at the bar, been construed as not amounting to conditions precedent, by looking at the provisions of the whole deed as assisting to ascertain the meaning and construction of the particular expressions; and words of this nature cannot be said necessarily to amount to conditions precedent, as they are not construed to do so when they occur in the common case of covenants for quiet enjoyment."
1 Boyd v. Siffkin, 2 Camp. 327; Idle v. Thornton, 3 Camp. 274; Story on Sales, § 252; Dodge v. Gardiner, 31 N. Y. 239.
2 Idle v. Thornton, 3 Camp. 274.
3 By water v. Richardson, 3 Nev. & Man. 748; 1 Ad. & El. 508.
§ 46. Where no time is fixed within which a condition shall be performed, the rule is, that it must be performed within a reasonable time.2 Of course, no universal rule can be laid down as to what constitutes reasonable time, which will apply to all cases. The only rule which can be stated, is, that any delay in the performance of the condition, which operates as an injury to the other party, will be considered as unreasonable.3 What is such a delay in any particular case, must depend upon its peculiar circumstances. In relation to conditions precedent which operate to the advantage of the party performing the first act, performance is usually at the option of such party at any time during his life.4 But in relation to conditions subsequent, the rule is otherwise,5 and the time of performing the condition does not depend upon the mere will and pleasure of the party who is to perform it, but on the circumstances of the case, and it must be done within a reasonable time.6 If, however, the time of performance be specified in the contract, the condition must be performed at the appointed time.7
§ 47. Again, where the condition is precedent, it must be strictly performed in every particular, in order to entitle the party, whose duty it is to perform it, to enforce the contract against the other party.1 Thus, where A. covenanted to pay B. for doing the carpenter's work on certain houses, when he should receive from the architect his certificate, that "the work was fully and completely finished according to the specification," it was held to be a condition precedent, which must be strictly performed before payment could be recovered; and that a certificate by the architect, that the houses, although not finished exactly according to the specification, yet were "finished " in such a "manner, that he would accept them, if he were the owner," and that "he was satisfied as to the work and material," was not a sufficient performance of the condition.2 Nor does it matter that such condition is difficult or foolish, for if it be so, it is the fault of the party who engages to perform it, and he should suffer the consequences.3 A condition of a fire insurance policy, that the insured shall procure a certificate from the nearest magistrate as to the fact and amount of the loss before he can recover, is a condition precedent that must be strictly performed, and a refusal of the magistrate to make such a certificate because he did not know the facts will not excuse a non-compliance.4 But if the condition be impossible or illegal, or repugnant at the time the contract is made, or become so afterwards, it will usually he void, and the contract will be considered absolute.1 So, also, if a strict performance be waived or prevented by the party, who bad a right to insist upon it, be cannot absolve himself from his part of the contract, on the ground of a non-performance of the condition.2 2 It would seem, also, that a performance according to the exact terms, or in the exact mode stated in the contract, would not, in all cases, be necessary, but that a substantial performance would suffice, provided no injury or inconvenience was thereby occasioned to the other party, and provided the exact performance of the condition as to mode and time, were not of the essence of the contract.3 Such cases are, however, in their nature exceptional, and peculiar in their circumstances. The mere fact, moreover, that the performance of the condition does not accrue to the benefit of the other party, will be no excuse for the non-performance thereof.4
1 Traite des Obligations, No. 224. See also No. 198.
2 Hamilton v. Elliott, 5 S. & R. 384; Hayden v. Stoughton, 5 Pick. 628.
4 Finlay v. King's Lessee, 3 Pet. 376; Plowd. 16; Hayden v. Stoughton, 5 Pick. 534; Bothy's Case, 6 Co. 31a; Com. Dig. Condition, G. 3, 4.
5 Ibid.; Hayden v. Stoughton, 5 Pick. 534.
6 Com Dig. Condition, G. 5.
7 As to Time of Performance, see post, § 1327, 1328, 1396. See also 1 Wms. Saunders, 320 b.
1 Dana v. King, 2 Pick. 155; Seymour v. Bennet, 14 Mass. 266; Hunt v. Livermore, 5 Pick. 395; Albany Dutch Church v. Bradford, 8 Cow. 457; Shaw v. Turnpike Co., 2 Penn. 454; Johnson v. Reed, 9 Mass. 78; Byrne v. Pattinson, Abbott on Ship. 347; Mason v. Harvey, 8 Ex. 819.
2 Smith v. Briggs, 3 Denio, 73. See also upon this subject of architects', surveyors', or engineers' certificates, Veazie v. Bangor, 51 Me. 509; Scott v. Corporation of Liverpool, 1 Giff. 216; 3 De G. & J. 334; Ranger v. Great Western Railway Co., 5 H. L. C. 72 (1854); MTntosh v. Great Western Railway Co., 3 Sm. & Gif. 146 (1855); North Lebanon Railroad Co. v. McGrann, 33 Penn. St. 530 (1859); Condon v. Southside Railroad Co., 14 Gratt. 302 (1858); Snodgrass v. Gavit, 28 Penn. St. 221 (1857); Milner v. Field, 5 Exch. 829 (1850); Herrick v. Belknap, 27 Vt. 673 (1854); O'Reilly v. Kerns, 52 Penn. St. 214 (1866); Brown v. Overbury, 11 Exch. 715 (1856). As to the conclusiveness of such certificates, see Sadler v. Smith, Law R. 5 Q. B. 40 (1869); Benbow v. Jones, 14 M. & W. 193; Dines v. Wolfe, Law R. 2 P. C. 280; Roberts v. Bury Improvement Com., Law R. 5 C. P. 310 (1870).