simple contracts shall apply to and control instruments which in fact have a seal. In some states, it is provided that the presence of a seal raises a presumption of consideration. At common law, no consideration was necessary. There is a good deal of variation in the phraseology of the various statutes. Sometimes the statutes which change the law with respect to sealed instruments do so only with respect to certain kinds of contracts, leaving the rules of the common law to apply to all other kinds.

Seals are important, not only in the law of contract, but also in the law relating to conveyances of property. It is commonly provided that deeds and mortgages must be sealed, that is, unless they are sealed, they will not operate as deeds. Likewise, in the case of wills, statutes sometimes provide that the instrument must be sealed, as well as signed, by the testator.

4.

5.

Performance on Time as a Condition.

Performance to the Satisfaction of Another as a Condition.

6. Procuring Certificate of an Architect as a Condition.

7. Substantial Performance in Various Other Types of Contracts as Conditions.

14. Right of a Party Materially in Default to Recover for His Incomplete Performance.

15. Impossibility of Performance as a Condition.

SECTION 1.-INTRODUCTION

In this chapter we are concerned with two general questions: (1) The question of interpretation of contracts; and (2) the question of the legal effect of acts which occur after the contract has been entered into.

With respect to the first, it is obvious that in many cases the problem of interpretation is either not raised or, if raised, is easily settled. When there is no misunderstanding as to the meaning of words employed in the contract, there is virtually no occasion for interpreting the words. Where the terms of the contract are to be found in the conduct of the parties, or when their meaning is affected by custom and usage, the question, "What did each party promise to do?" becomes more difficult to answer. Even where the language forming the agreement is definitely fixed, there are many cases where it is not always easy to decide whether a particular act falls within the meaning of the words used. The discussion and cases in Section 2 present some aspects of the problem of interpretation.

The larger portion of the chapter is devoted to various detailed problems which concern the legal effect of acts done or omitted after the contract was entered into. These problems grow out of performance and of failure to perform contracts. Did the parties promise to do certain things, absolutely and at all events, or, did they, or either of them, promise to perform certain acts conditionally upon the happening of some event, or conditionally upon the prior performance of some act by the other party? What is a breach of contract? What is the legal effect of a breach upon the party's own rights and duties, and what is the legal effect of the

breach upon the other party's rights and duties? In the main, these are the broad outlines of the problem. A brief, but somewhat more detailed statement concerning the problems growing out of performance is made in Section 3 following.

SECTION 2.-INTERPRETATION

Before taking up the question of interpretation, it may be well to advert again to the problem which immediately precedes thatof interpretation. In the chapter on Offer and Acceptance, we noted that there are many situations where considerable difficulty is met in determining what promises were actually made by the parties. Whether we are dealing with an express or an implied contract, we are required to ascertain what words, or symbols or conduct are to be deemed parts of the contract. This problem is relatively more difficult with respect to contracts which, in whole or in large part, arise by implication from conduct; but in all cases, this aspect of the negotiations-i. e., the fixing of the subject-matter to be interpreted-must be settled before we may concern ourselves with the question of interpretation.

To present the problem involved in the interpretation of languages and conduct, it may be profitable to resort to a more or less extended illustration. If the idea which lies behind the illustration is grasped, it will contribute something toward an appreciation of the nature of one of the problems of the law. Suppose A. enters into a contract to sell to B., at a specified price, all of his ripe tomatoes then growing on vines in A.'s tomato patch. Let us assume, further, that the contract does not define what constitutes a ripe tomato, and does not provide that either A. or B. shall have the power, exclusive of the other, to select the tomatoes, or to determine what shall constitute a ripe tomato. The parties have simply contracted to buy and sell ripe tomatoes, when, at the time, they had no thought that there might be any differences of opinion on this question. Of course, in the great majority of cases, people would agree as to whether a particular tomato was ripe or not ripe. A very small boy, sent into the garden to bring in a half dozen ripe tomatoes for dinner, would know enough to execute the order without running any great risk of incurring maternal censure for bringing in green tomatoes. But we are dealing, supposedly, with a contract for the sale of several hundred bushels of tomatoes, where it may become of great importance to know what constitute ripe tomatoes for the purposes of this contract. If, for example, the price of tomatoes suddenly rose 20 or 30 cents on the market, the probabilities are that the buyer's judgment now as to what constituted ripe tomatoes would include a good many tomatoes which he would call green if the market price of tomatoes, instead of rising, had dropped 20 or 30 cents below the contract price. Obviously there should be some way of determining what constitutes

ripe tomatoes by some standard of interpretation which will be reasonably workable, certain, and fair to both parties. We are more interested here in discovering the various possible standards of interpreting the expression "ripe tomatoes" than we are in determining which standard ought to be adopted. Enough has been said to show that there may be disagreement between the parties on this question. From a business standpoint we are vitally interested in locating the source of controversy, to the end that the possibilities for dispute and litigation over contracts may be reduced as much as possible.

In how many ways, therefore, may we interpret the words "ripe tomatoes"? (1) The words "ripe tomatoes" might mean all those tomatoes which in the buyer's judgment were ripe. (2) These words might mean all those tomatoes which in the seller's judgment were ripe. (3) The words might include only those tomatoes which were regarded as ripe by both buyer and seller. (4) The expression "ripe tomatoes" might include only those tomatoes which would be regarded as ripe by the general consensus of opin10n. (5) The words might be given that meaning which they had acquired in that particular community, or which had been given to them by those persons who were engaged in the raising and marketing of tomatoes. (6) The words might be given that meaning which the party using them had reason to believe that the other party would attach to the words. No doubt there are other standards of interpretation.

It is reasonably certain that, if the contract contemplated the sale of several hundred bushels of ripe tomatoes, there would be considerable variation in the quantity of tomatoes delivered, according as one or the other of the above standards for interpreting the expression "ripe tomatoes" was employed. Between some of them there might be great variation; between others, the variation would be less. The problem with which the law has to deal is, therefore, to select the standard of interpretation to which contracts must be subjected. The adoption of a particular standard of interpreting language, does not, of course, solve the problem; it merely turns the investigation in a particular direction. The courts have adopted a great many rules, which aid in arriving at an actual result, but we shall not here undertake to consider them.

The problem of interpretation also has another setting, and, for the sake of completeness, we may turn our attention to this phase of the subject although it does not concern the interpretation of contracts. To continue the illustration, suppose that we have a state statute which imposes a tax upon all sales of fruit. Assuming that we have finally determined the number of bushels of tomatoes to which the buyer is entitled, and the question now is whether or not this particular sale should be taxed under a statute imposing a tax on sales of fruit. The character of the question is substantially the same as that presented above; that is: What kinds of physical objects may properly be regarded under the concept

"fruit"? There is this probable difference: It may be proper to interpret a particular word, when employed in a contract, according to some standard which would not be a fitting standard for the interpretation of the same word when found in a statute. We use the same words ofttimes to express different ideas, and the particular meaning is to be sought in the circumstances surrounding the use of the word. Certainly the circumstances surrounding the use of a word in a statute are different from those surrounding the use of the same word in a contract, although this fact in itself may not necessarily point to a different meaning. On the other hand, it is a circumstance which must be considered, because the fact of its use in a statute may indicate a meaning in some respects different from some other accepted meaning of the word.

Let us explore some of the possibilities in the subject. Where shall we search for the meaning of the word "fruit"? We frequently meet the expression that the interpretation of a statute involves an inquiry as to what the Legislature meant. It is altogether improbable that all of the members of the Legislature who voted for this particular measure had precisely the same meaning attached to the word "fruit." Even if they had, it would be impossible, years after the measure was passed, to find out what that meaning was. It is altogether possible that many of the members did not read the bill. It is just as probable that many of them voted for the bill because they had the assurance of some other members, in whom they had confidence, that the measure ought to be adopt

If we were in search of actual intention, we might accordingly be sent out on a search for the individual who drafted the bill. This individual might or might not be a member of the Legislature. Frequently he is not. If it be said, therefore, that a statute is to be taken as meaning that which the draftsman thought it meant, in many cases we should find that some persons who were not members of the law-making body were actually making laws for the community. Obviously, the proper method of interpreting statutes must be sought elsewhere.

Might it be that we should be justified in ascertaining the meaning of the word "fruit" from the standard treatises on botany? If there should happen to be a conflict of opinion, whose opinion should control? Suppose that, at the time the statute was passed, all the botanists were agreed as to the meaning of the word, but that now there was considerable disagreement, or it might be that they all now agreed, but that the present meaning was different from what it was at the time the statute was enacted. Which meaning is the proper one? Perhaps scientific opinion has nothing to do with the legal meaning of the word, but that, on the contrary, the meaning is that which is commonly accepted by the people. If so, how is that meaning to be found out?

It is hoped that enough has been said to show that it is impossible to be so specific and so definite as to put an end to the possibility of controversy over the meaning of words. For some purposes, at