§ 22. Contracts are also distinguished into executed and executory contracts. An executed contract is one in which nothing remains to be done by either party, and where the transaction is completed at the moment that the agreement is made, - as where an article is sold, and delivered, and payment therefor is made on the spot.1 Contracts to sell personal property are executory, while a completed sale by delivery is executed; but the language used in an agreement about the sale may not always be decisive whether the one or the other is meant.2 An executory contract is a contract to do some future act, - as where an agreement is made to build a house in six months, or to do an act on or before some future day, or to lend money upon a certain interest payable at a future time.3 Where the contract is executory, if the agreement be that one party shall do a certain act, or acts, for the performance of which the other party shall pay a sum of money, the performance of the act is a condition precedent to the payment of the money.4
1 Gibbs v. Bryant, 1 Pick. 119; Cornwall v. Gould, 4 Pick. 444; Gordon v. Martin, Fitz-Gib. 303; Guy v. Gower, 2 Marsh. 275; Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299.
2 Gibbs v. Bryant, 1 Pick. 121; Goodrich v. Lafflin, 1 Pick. 57; Lin-ningdale v. Livingston, 10 Johns. 36.
3 Thurston v. Percival, 1 Pick. 415.
4 Selway v. Fogg, 5 M. & W. 83; Ferguson v. Carrington, 9 B. & C. 59; Campbell v. Fleming, 1 Ad. & El. 40.
'see Grannis v. Hooker, 31 Wis. 474 (1870).
5 Ferguson v. Carrington, 9 B. & C. 59; Campbell v. Fleming, 1 Ad. & El. 40; Story on Agency, § 259, note (2), 2d edition.
§ 23. There is also a class of contracts, partaking of the nature both of executory and of executed contracts; where a portion of a contract is entirely performed, and a portion of the consideration paid, and still another portion remains to be completed, and its equivalent consideration to be paid. Thus, for instance, where a shipwright engages to build a ship, in consideration that certain instalments of the price shall be paid at stated times during the progress of the work,- after the payment of one instalment, the contract is so far executed, that if the vessel be destroyed in the hands of the builder, the money paid cannot be reclaimed; but the contract is at the same time executory as to the remainder of the vessel, which the builder is bound to go on and complete.5
1 "An executed contract is one, in which the object of the contract is performed." By Marshall, C. J., Fletcher v. Peck, 6 Cranch, 136.
2 See Blasdell v. Souther, 6 Gray, 152; Pettingill v. Merrill, 47 Me. 109; Gregory v. Stryker, 2 Denio, 628; Benford v. Sanner, 40 Perm. St. 9; Carnes v. Apperson, 2 Sneed, 562; Love v. Crook, 27 Ala. 624; Terry v. Wheeler, 25 N. Y. 520; Allen v. Hollis, 31 Geo. 143.
3 Plowden, R. 9; 2 Black. Comm. 447.
4 Willington v. The Inhab. of West Boylston, 4 Pick. 101; Hunt v. Livermore, 5 Pick. 395.
5 Clarke v. Spence, 4 Ad. & El. 448; 6 Nev. & Man. 399; Laidler v. Burlinson, 2 M. & W. 614 to 617; Goode v. Langley, 7 B. & C. 26; Simmons v. Swift, 5 B. & C. 857; Mucklow v. Mangles, 1 Taunt. 318; Woods v. Russell, 5 B. & Al. 942; Seymour v. Montgomery, 1 Keyes, 463; Wilkinson on the Law of Shipping, ch. 2; Story on Sales, § 232 to 235. See Read v. Fairbanks, 24 Eng. Law & Eq. 220.
§ 24. Again, a contract may be executory on one side, and executed on the other. As where an article is sold on credit and delivered to the buyer, or where wages for a certain amount of work are paid before the work is done.