3 Worsley v. Wood, 6 T. R. 720; Com. Dig. D. 1; post, § 586, 587.
4 Worsley v. Wood, 6 T. R. 710; Roumage v. Mechanics' Fire Ins. Co., 1 Green, 110; Leadbetter v. Etna Ins. Co., 13 Me. 265; Protection Ins. Co. v. Pherson, 5 Ind. 417; Noonan v. Hartford Fire Ins. Co., 21 Mo.
§ 48. A waiver of the performance of a condition is not to be implied from the mere silence of the other party in case of a breach, unless such silence be inconsistent with any other explanation;5 nor will a mere indulgence be considered as a waiver of forfeiture.6 But if, a condition precedent being unperformed, the other party proceed to perform his part of the contract, such an act will be construed as a waiver of the condition by him, and he will thereby be estopped from relying upon the non-performance thereof in an action brought against him for negligence in the performance of his contract.1 So if the condition be to perform a certain thing by a certain day, and the performance of another thing on another day be accepted in place thereof, the strict performance of the condition will be waived.2 A parol waiver cannot, however, be made of a contract under seal.3 Conditions in a contract are to be construed strictly against those for whose benefit they are reserved, when they impose burdens on other parties; and they will not be extended by implication beyond their actual terms, and the indisputable intention of the parties.4 All statutes, therefore, imposing penalties, or duties, or taxes, on subjects or citizens (which are in the nature of conditions), are to be construed strictly against the government, and are not to be extended, by implication, beyond the clear import of the language used.5
81; Alderman v. West of Scotland Ins. Co., 5 Upper Canada, 37; Scott v. Phoenix Ass. Co., Stuart, 354.
1 See Harvy v. Gibbons, 2 Lev. 161; Nerot v. Wallace, 3 T. R. 17; Gilpins v. Consequa, Pet. C. C. 91; Hughes v. Edwards, 9 Wheat. 489; ib. 345.
2 Williams v. Bank of U. S., 2 Pet. 102; Cooper v. Mowry, 16 Mass. 7; Stockton v. Turner, 7 J. J. Marsh. 192; Webster v. Coffin, 14 Mass. 196; Badlam v. Tucker, 1 Pick. 287; Miller v. Ward, 2 Conn. 494; Crump v. Mead, 3 Mo. 233; Clark v. Moody, 17 Mass. 149; U. S. v. Arredondo, 6 Pet. 691; Whitney v. Spencer, 4 Cow. 39; Merrill v. Emery, 10 Pick. 507. And provisions that the contract shall become " void" for the failure to perform some condition subsequent are usually construed to mean that the contract shall be voidable at the election of the other party. And the consequence is that the breach may be waived. See Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526 (1871); Armstrong v. Turquand, 9 Irish C. L. 32 (1858).
3 Worsley v. Wood, 6 T. R. 720.
4 Jarvis v. Rogers, 3 Vt. 339; Gray v. Blanchard, 8 Pick. 290.
5 Gray v. Blanchard, 8 Pick. 292; Jackson v. Crysler, 1 Johns. Cas. 125.
§ 49. Conditions may be divided into four classes. 1st. Those which are possible at the time of their creation, and afterwards become impossible either by the act of God or by the act of the party. 2d. Those which are impossible at the time of their creation. 3d. Those which are against law or public policy. 4th. Those which are repugnant to the grant or gift by which they are created, or to which they are annexed.6 The rule in respect to the two latter classes is, that they are void.7 So, also, if they be impossible in their inception, or be rendered impossible by the act of the party entitled to the benefit of them, or by the act of God, they are generally held void, though courts of equity will in some cases afford relief.1 But if they be subsequently rendered impossible by the act of the party who is bound to perform them, he is treated as in delicto, and the condition is obligatory on him.2
1 Betts v. Perine, 14 Wend. 219.
2 Warren v. Mains, 7 Johns. 476; Lindsey v. Gordon, 13 Me. 60; Porter v. Stewart, 2 Aik. 427.
3 Gray v. Blanchard, 8 Pick. 290; Jackson v. Crysler, 1 Johns. Cas. 125; Porter v. Stewart, 2 Aik. 417.
4 Catlin v. The Springfield Fire Ins. Co., 1 Sumner, 440.
5 U. S. v. Wigglesworth, 2 Story, 369; Andrews v. U. S., 2 Story, 202.
6 2 Story, Eq. Jur. § 1304; Co. Litt. and note by Butler, 206 a.t.
§ 50. Again, in these cases, conditions subsequent may produce a different result from conditions precedent. Thus, where an estate is granted upon a condition subsequent to be performed after the estate is vested, and it is rendered void by any of the causes above stated, the estate becomes absolute. But if the condition be precedent to the vesting of the estate, if it be void, it renders the grant void also, and the grantee can take nothing thereby.3
§ 51. In addition to conditions precedent and subsequent, there are in certain classes of contracts implied conditions, as in the case of contracts for personal services. In such cases, where the services are to be performed during the lifetime of the party agreeing to perform them, there is an implied condition that the party shall live to do the work; and should he die before full performance, his personal representative would not be liable to an action for the breach. So a contract by an author to write a book, or by a painter to paint a picture, within a reasonable time, would, it is said, be deemed subject to the condition, that if the author became insane, or the painter paralytic, there would be no breach of the contract. So a contract to play the piano upon a certain occasion, is subject to the condition.that the party shall be physically able to do so at the time; and illness, rendering performance impossible, will be a valid excuse.4
1 See ante, § 26.
2 See 2 Story, Eq. Jur. § 1304 and 1307, and cases cited; Com. Dig. Condition, D. 1; Thornborow v. Whitacre, 2 Ld. Rayrn. 1164; Co. Litt. 206 b, 207 a, Butler's note; Graydon v. Hicks, 2 Atk. 18; Jones v. The Earl of Suffolk, 1 Bro. Ch. 528. See also Story on Bailm. § 25. See post, § 253.
3 2 Black. Coram. 156, 157; Co. Litt. 206a; Cary v. Bertie, 2 Vern. 339; 1 Fonbl. Eq., B. 1, ch. 4, § 1, note e.
4 Robinson v. Davison, Law R. 6 Exch. 269 (1871); Hall v. Wright, El. B. & E. 746 (1858), per Pollock, C. B.; Hubbard v. Belden, 27 Vt. 645 (1855). In Robinson v. Davison, supra, Chief Baron Kelly says, "that though the above rule was laid down in a dissenting opinion, it was still correct, and appeared to have been assented to by the majority." See also, as to implied conditions, Taylor v. Caldwell, 3 Best & S. 826 (1863);