any notice unless he stipulates for it, but when it is an event which lies within the peculiar knowledge of the opposite party, then notice ought to be given him."2 If the contract or its rescission depends upon the will of one of the parties, notice of the exercise of his option is generally necessary.3 Insurance contracts provide in express terms that notice must be given within a designated time of a loss under the policy. Bonds conditioned for the honesty of employees require prompt notice of default to be given to the surety.4 When the vendor of land has the right to declare the contract void if certain things are not done by the purchaser and no time is fixed for doing them, he must give reasonable notice of his intention to claim the forfeiture.5

§ 140. Waiver of Conditions. A technical condition, that is, a condition other than a promise to do a certain thing or a warranty that a certain event has taken place, or will take place a promissory condition-cannot, as a rule, be waived by one of the parties so as to make the contract enforceable against the other, since the latter has agreed to be liable only in case the event placed as a condition happens.1 But if both parties treat the condition as having been fulfilled their conduct may be such as to estop them to assert the contrary, or they may be considered as making a new contract dispensing with the condition. Thus when a buyer has the right to return an article in case a certain report of a referee be made, if he returns it, although that report was not made, and it is accepted by the seller, the condition is waived.

When the condition is designed for the benefit of one of the parties only, that party may waive it and the rest of the

2 Lord Abinger in Vyse v. Wakefield, 6 M. & W. 452, affirmed in 7 M. & W. 126.

3 See post, § 146.

4 Fidelity & Dep. Co. v. Courtney, 186 U. S. 342.

5 Treat v. Detroit U. Rys., 157 Mich. 320.

1 King v. Warfield, 67 Md. 246; Neldon v. Smith, 36 N. J. Eq. 155.

2 Avery P. Co. v. Peck, 80 Minn. 519. When a lease provides that the tenant shall have the right to renew it upon giving three months' notice in writing, the lessor waives this condition by accepting an oral notice. McClellan v. Rush, 150 Pa. 57.

contract is then obligatory on both. A stipulation in a contract for the sale of land that the title shall be good may be waived by the purchaser, since it was for his benefit, although the vendor may desire to insist upon the condition as ground of discharge for himself." Defendant bought certain land from the plaintiff, and also agreed to buy an adjoining lot if the plaintiff could convey a clear title to it. Third parties then had certain easements in this adjoining land, but defendant took possession of all the property and exercised acts of exclusive ownership for ten years. It was held that the defendant had waived the condition as to the title, and that the plaintiff should have a decree for specific performance with interest on the purchase money from the date of possession. When a building contract makes the certificate of the architect a condition of the liability of the owner for the contract price, he may waive the condition. Taking possession of the building and making no objection to the work for more than a month and promising to pay is evidence of a waiver of the certificate.

When, upon the sale of a house, payment of taxes by the vendor is a condition precedent, if the purchaser accepts possession without requiring such payment, he cannot rescind the contract on account of non-performance of the condition, but is only entitled to an action to recover the amount of the taxes. If one party accepts performance of a contract by the other with knowledge that a condition precedent has not been fulfilled, he cannot afterwards rely upon the non-fulfillment as avoiding the contract. Promissory conditions are those that are generally susceptible of being waived.

§ 141. Preventing Performance of Condition. If one party prevents the occurrence of the event upon which his promise is conditioned, he violates an implied obligation. In such

3 Bennett v. Fowler, 2 Beav. 302. See also, Hawksley v. Outran [1892], 3 Ch. 376; Fry on Specific Performance. § 374.

4 Canton Co. v. Balto. & Ohio R. Co., 79 Md. 424.

5 Steelman v. Ludy, 77 N. J. L. 446.

6 Bechtel v. Cone, 52 Md. 698.

7 Carter v. Scargill, L. R. 10 Q. B. 564.

case the condition is dispensed with, and he is liable in the same manner as if the event had happened.1 Thus, if one who has agreed to pay for work upon the production of an architect's certificate induces the architect to withhold it, the condition is discharged. The refusal to allow a contractor to go on with the work relieves him from the duty of procuring the certificate of an engineer made by the contract a condition of payment.3

When one agrees to pay a sum of money if and when he collects a certain judgment, which he holds, his assignment of the judgment to a third party will be treated as dispensing with the condition and his promise to pay becomes absolute.* If the performance of a condition for the valuation of an article by third persons be rendered impossible by the act of the buyer, the price of the things sold may be fixed by the jury on a quantum valebat.5 Where a recognizance was given for the appearance in Court of a certain person, it is a defense to an action thereon that that person was prevented from appearing by his arrest and imprisonment in another county of the State, that being the act of the obligee.

6

A. agreed by letter to repurchase certain bonds then sold by him to B. at any time within three years. Before the expiration of that time, B. notified A. that he wished to return the bonds and asked where they should be sent. A.

1 Rumsey v. Livers, 112 Md. 546. Quicunque sub conditione obligatur curaverit ne conditio existeret, nihilo minus obligatur. Dig. 45, 1, 85, 7. The condition of an arbitration bond was to abide by the performance of the award. The obligor revoked the authority of the arbitrators. and it was resolved that since by his own act he had made the condition of the bond impossible to be performed, "his bond is become single and without the benefit or help of any condition." Vynior's Case, 8 Coke, $1 b, followed in Union Ins. Co. v. Central Trust Co., 157 N. Y. 633; 44 L R. A. 227. See generally as to preventing performance of condition, Brown v. Rasin Monumental Co., 98 Md. 1; Vreeland . Vetterlein, 33 N. J. L. 249; Sibbold r. Bethlehem Iron Co., 83 N. Y. 378.

2 Smith r. Alker, 102 N. Y. 87: Rosenstock r. Ortwine, 46 Md. 38S. 3 Smith . Wetmore, 167 N. Y. 234.

4 Rumsey v. Livers, 112 Md. 546.

5 Humaston r. Telegraph Co.. 20 Wallace. 28.

6 People . Bartlett, 3 Hill (N. Y.) 571.

replied that he did not remember the agreement, but asked for a copy of it, and said that he always kept his contracts. B. sent him a copy of the agreement, to which A. made no reply until after the expiration of the three years, when he refused to make the repurchase. This conduct on the part of A. prevented B. from making a formal tender within three years, and, therefore, the condition as to time was dispensed with."

By a contract based on the consideration of one hundred dollars, A. agreed that he would transfer to B. certain shares of stock at any time before a day named upon the demand of B. and payment of a certain sum. Before the day fixed, B. repeatedly endeavored to find A., having with him the required amount to pay for the shares, but was unable to do so. At the expiration of the time limited, A. refused to make the transfer. These facts were held to be an excuse for the failure of B. to make the demand and tender within the time limited.8

This rule is not applicable if one party has a right to do that which prevents the other party from performing the condition. If you are entitled to return to me an article sold to you under a potestative condition subsequent, I can lawfully prevent your doing so by the seizure and sale of the article under an execution.

§ 142. Conditions Subsequent. When it is stipulated that upon the happening of a future event, the contract shall be rescinded in whole or in part, the condition is called subsequent. Such condition does not suspend the execution of the agreement which was enforceable from the time when made, but effects a revocation of it upon the occurrence of the given event. A condition subsequent is an accessory stipulation, which adds to an agreement creating an obliga

7 Pierce . Lukens, 144 Cal. 397.

8 Guilford . Mason, 22 R. I. 422. See also. Connolly r. Haggerty. 65 N. J. Eq. 596, where one party purposely kept out of the way.

tion, another agreement designed in a certain contingency to put an end to that obligation.1

Contracts giving to the seller a right to repurchase the thing sold at a future time or to the buyer a right to return it are typical conditions subsequent." When goods are sold on credit a stipulation that the seller may rescind the sale and re-take them if the price be not paid is a valid condition subsequent.3

The contract for the sale of a vessel stated that it was made "upon the express condition" that the boat should not be run upon certain waters within ten years. The seller sued to recover the damages suffered by him, which were in excess of the value of the boat, in consequence of a breach of this stipulation. It was held that the contract created a condition and not a covenant; that a covenant will not arise unless there be an agreement or promise for the performance or non-performance of some act. "The vendee took the property subject to the right which the law reserved to the vendor of recovering it upon breach of the condition specified. The vendee was willing to risk the loss of the steamboat when such breach occurred, but not to incur the personal liability which would attach to a covenant on his part that he would not use or permit others to use the boat on the prohibited waters."4

Conditions subsequent are frequently potcstative on the part of one of the parties, and are sometimes implied rather than expressed. These instances are considered in subsequent sections. Stipulations in a contract for the sale of goods relating to the price at which they may be resold to others, or as to the use that may be made of them, are often

1 Code Napoleon, Art. 1183, gives this definition: “A resolutory condition is that which, when it happens, effects a revocation of the contract, and puts the things back in the same situation as if the obligation had never existed. It does not suspend the execution of the contract; it only obliges the creditor to restore what he has received in case the event upon which the condition is based occurs.” 2 See post. § 146.

3 Monitor Drill Co. v. Mercer, 163 Fed. Rep. 943; 20 L. R. A. (N. S.) 1015; Cole r. Hines, 81 Md. 476.

4 Haler. French, 104 U. S. 261.