A distinction is to be noted between those provisions of the contract which are considered conditional and those which are merely subsidiary promises. A breach of a condition destroys the rights of a party under a contract while a breach of a subsidiary promise merely furnishes a ground for a suit for damages.1 This distinction was discussed by the Court in Glaholm vs. Hayes et al.2 "The question raised upon this record is, whether the clause contained in the charter-party, set out in the declaration, viz., 'the vessel to sail from England on or before the 4th day of February next/ is a condition precedent on the part of the shipowner, upon the non-compliance wherewith on his part, the defendants, the freighters, were at liberty to throw up the charter. The defendants in their plea have treated the clause as importing a condition; alleging in such plea that the vessel 'did not sail from England on or before the said 4th day of February, but on the contrary, remained and continued in England, without the leave and against the will of the defendants, for a long time after; whereupon the defendants refused to perform and fulfill the said charter-party, as they lawfully might;' and the plaintiff having demurred to this plea, the question on the legal construction of the charter-party is thereby raised.

"Whether a particular clause in a charter-party shall be held to be a condition, upon the non-performance of which by the one party, the other is at liberty to abandon the contract, and consider it at an end; or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages, must depend upon the intention of the parties, to be collected, in each particular case, from the terms of the agreement itself, and from the subject matter to which it relates. 'It cannot depend,' as Lord Ellenborough observes, 'on any formal arrangement of the words, but (must depend) on the reason and sense of the thing as it is to be collected from the whole contract.' And looking, in the first place, at the terms of this agreement, we think some distinction must have been intended by the contracting parties, between this particular clause and those which precede and follow it, as to the nature of the obligations thereby respectively created. All the clauses of the charter-party, both prior and subsequent to the clause in dispute, are framed strictly and properly in the language of agreement only. The charter-party states, 'it is mutually agreed between the parties, that the ship, being tight, etc., shall proceed to Trieste, and there load a complete cargo; that the said vessel being loaded shall therewith proceed to a good and safe port in the United Kingdom; that the cargo shall be sent alongside; that the freight shall be paid in the manner therein stipulated; that forty running days shall be allowed the merchants.' And then-is interposed the clause now under discussion, viz., 'the vessel to sail from England on or before the 4th day of February next.' After which the charter-party continues in the same frame as before. That the vessel shall be addressed to the charterer's agents, etc. Referring, therefore, in the first place, to the variation between the language of the particular clause, and that of the clauses amongst which it is found, there is reasonable ground for surmising, that some distinction must have been intended between them; and no other distinction can exist, except that the one set of clauses sounds in agreement, and the other clause in condition.

1 Weintz vs. Hafner, 78 I11., 27.

2 2 Manning vs. Granger, 257.

"The very words themselves, 'to sail on or before a given day' do, by common usage, import the same as the words 'conditioned to sail' or 'warranted to sail on or before such a day;' and undoubtedly, if in the middle of a common bought and sold note for a cargo of corn, or any other goods, were found the words, 'to be delivered on or before such a day,' they would be held to amount to a condition; and the purchaser would not be bound to accept the cargo, if not ready for delivery by the day appointed.

"And looking at the subject-matter of the contract, without regarding the precise words, we think that construing the words as a condition precedent, will carry into effect the intention of the parties with more certainty than holding them to be matter of contract only, and merely the ground of an action for damages.

"Both parties were aware that the whole success of a mercantile adventure does, in ordinary cases, depend upon the commencement of the voyage by a given time. The nature of the commodity to be imported, the state of the foreign and home market at the time the contract of the charter-party is made, and the various other calculations which enter into commercial speculations, all combine to show that despatch and certainty are of the very first importance to their success; and certainly nothing will so effectually insure both despatch and certainty, as the knowledge that the obligation of the contract itself shall be made to depend upon the actual performance of the stipulation which relates to them.

'The present case appears to us to be distinguishable from those cited on the part of the plaintiff, in both the particulars to which we have averted, viz., that in this case the form of the stipulation is more nearly in the language of condition than in that of agreement, whilst in the cases cited the stipulation is in the language of covenant only; and again, that in this case the performance of the stipulation goes more to the very root and the whole consideration of the contract. And indeed, in most of all of those cases the objection has not been taken until after the voyage had been performed, nor in many cases until after the goods had been accepted; so that it is manifest, the breach of the agreement of which the defendant complained, and which he sought to set up as the nonperformance of a condition precedent, could not go to the whole of the consideration of the contract.

"Such was the case of Constable vs. Cloberie (Palmer, 397, Noy 75 Abbott, L. S. 191, 2 M. & Gr. 18), where the ship-owner covenanted, that his ship should sail with the first fair wind; the case of Bornman vs. Tooke, where the covenant was that the ship should sail with the first favorable wind; and the defense in each was set up against a demand for the freight, after the ship had performed her voyage and the merchant had accepted the cargo. So likewise in Davidson vs. Gwynne, the covenant to sail with the first convoy was held not to be a condition precedent, the voyage being in fact performed; and so of the rest.

"Upon the whole, therefore, we think the intention of the parties to this contract sufficiently appears to have been, to insure the ship's sailing at latest by the 4th of February, and that the only mode of effecting this is by holding the clause in question to form a condition precedent, which we consider it to have been."