§ 39. Contracts are also divided into conditional and absolute. An absolute contract requires no explanations. It is simply tract is divisible in its nature. Thus, on a note or other contract payable by instalments, assumpsit lies for non-payment after the first day; or where interest is payable annually, the payment of the principal being postponed to a future time, assumpsit lies for the non-payment of interest, before the principal becomes due and payable. In all such cases, although the contract is in one sense entire, the several stipulations as to payment and performance are several, and are considered in respect to the remedy as several contracts. This principle has long been well settled, although the law in this respect has been very much modified by modern decisions.
"Still, however, the law seems to remain unchanged in respect to obligations to pay money by instalments, so that debt will not lie till all the days of payment are past. A distinction has been made between a contract to pay five sums of £20 each, on five different days, and a contract to pay £100 by five sums of £20 on different days; - a distinction, as Lord Loughborough remarks, in the case of Rudder v. Price, 1 H. Bl. 550, which is merely verbal, the substantial meaning being the same in each.
"After the action of assumpsit was introduced, a more liberal construction of contracts not under seal was adopted. But, at first, it was held, that although, where the contract was to pay by instalments, assumpsit would lie on default of the first payment, yet the plaintiff was obliged to demand his whole damages, although only one of the several instalments was payable; on the ground that the contract was entire, and that no new action could be maintained. In the case of Pecke v. Redman, Dyer, 113 a, the judges were equally divided. That was assumpsit on a contract to deliver twenty quarters of barley annually, during the lives of the contracting parties. The breach was for non-delivery of the twenty quarters of barley for three years, and the question was, whether the plaintiff was entitled to damages in recompense of the whole bargain, as well for the time to come as for the past. The case does not appear to have been decided; the whole doubt and difficulty arose from considering the contract entire and indivisible. This doubt does not appear to have been finally removed till the case of Cooke v. Wborwood, 2 Saund. 337, where the court determined, that in assumpsit to perform an award whereby the defendant was awarded to pay the plaintiff several sums of money, at several times, an action might be maintained for such sum only as was due at the time when the action was brought; and that the plaintiff should recover accordingly, and have a new an agreement to do or not to do something, at all events. A conditional contract is an executory contract, the performance of which depends upon a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, something; but it is a contract whose very existence and performance depend on a contingency and condition.
1 See Moffatt v. Laurie, 15 C. B. 583 (1855).
§ 40. A condition may be either precedent or subsequent. A condition precedent is a condition which must happen before either party becomes bound by the contract.1 Thus, if a person agree to purchase the cargo of a certain ship at sea, provided the cargo prove to be of a particular quality, or provided the ship arrive before a stated time, or at a particular port, each proviso is a condition precedent to the performance of such a contract, and unless the cargo prove to be of the stipulated quality, or the ship arrive within the agreed time, or at the specific port, no contract can possibly arise.2 So subscriptions to a public enterprise, which are not to be binding unless a certain sum is subscribed, are not valid unless the amount is bond fide subscribed. Confidential subscriptions, made for the sole purpose of completing the required amount, are a fraud action as the other sums became due toties quolies. In the case of Rudder v. Price, before cited, the cases on this point are reviewed by Lord. Loughborough in a very able opinion, and I am not aware that any question has since been made as to the law in this particular. So that the principle is well established, that a contract to do several things at several times, is divisible in its nature; and that an action will lie for the breach of any one of the stipulations, each of these stipulations being consideied as a several contract." See also Knight v. New England Worsted Co., 2 Cush. 286. It appears that the distinction between debt and assumpsit does not now obtain in England. See Stone v. Rogers, 2 M. & W. 443.
1 For a very elaborate discussion of the subject of conditions, see Grey v. Friar, 4 H. L. Cas. 565. See also Castle v. Playford, Law R. 5 Exch. 165 (1870); Coddington v. Paleologo, Law R. 2 Exch. 193 (1867); Phoenix Life Ass. Co. v. Sheridan, 8 H. L. C. 745; El. B. & E. 156; Roberts v. Brett, 11 H. L. C. 337; Edgeworth v. Edgeworth, Law R. 4 H. L. 35. Such a condition must be clearly shown, and not left to inference or conjecture. Clinton v. Hope Ins. Co., 45 N. Y. 454 (1871).
2 Hawes v. Humble, cited 2 Camp. 327; Boyd v. Siffkin, 2 Camp. 327; Idle v. Thornton, 3 Camp. 274; Ellis v. Mortimer, 1 Bos. & Pul. N. R. 257; Com. Dig. Agreement, A.; Hayward v. Scougall, 2 Camp. 56. But see Fischel v. Scott, 28 Eng. Law & Eq. 404.
upon the other subscribers.1 So, also, if A. agree with B. to manufacture for him certain articles of iron-work, and B. agree to furnish materials therefor, and the use of all necessary tools and certain mill-power, the furnishing of the tools, materials, and mill-power would be a condition precedent to the obligation of A. to manufacture the articles.2 Or, if A. agrees to do a piece of work, or manufacture an article to B.'s satisfaction, B. is not bound to take and pay for it unless satisfied with it, although it be well done, and ought to be satisfactory.3 So, also, sales of goods "on trial," the condition of which is that the seller shall not be bound to take the goods unless they prove satisfactory to the purchaser;4 and agreements to pay a certain freight,5 or to repay advances on bottomry bonds, conditioned on the arrival of the vessel at her port of discharge, are also examples of this species of conditional contracts. So, where there is a contract to deliver goods forthwith, the price to be paid in fourteen days, the delivery is a condition precedent to the payment.6 So, in an action for wages, it was held that the readiness and willingness of the plaintiff to perform the services were a condition precedent to the right.7 But where a tenant agreed to repair, having or taking sufficient housebote, the court ruled that it was not a condition precedent that there should be a sufficient supply of timber on the premises for the purpose.8