In some states acceptance of title waives right of damages for inferior quality. 708 Difficult position of the buyer under this rule.. 709 Exceptional cases where acceptance of goods does not preclude subsequent objection... 710 Nature of warranty as affecting the consequences of accepting goods. 711 722 Sales on approval or with right to return.. Acceptance of defective performance under a contract to sell real estate.... 723 Acceptance of defective performance under a contract for work or construc tion.... 724 Continuance of contract of employment after cause for discharge is known.... 725 Waiver of conditions in subscriptions to stock... 726 Surrender of rights accompanied by delivery of tangible property. 727 728 Waiver of vendor's lien on real estate. ... 729 Waiver of the condition of payment in a cash sale. 730 Giving the buyer a right to use the goods as his own, indicates transfer of title. 731 Effect of giving a worthless check..... 732 Summary of principles governing transfer of property without performance of conditions in cash sales. 733 Waiver in conditional sales-nature of such sales. 734 A conditional seller may recover the price though title has not passed.. 735 736 Analogy of mortgages. 737 Invalidity of reasons for distinguishing conditional sales from mortgages. 738 739 Discharge of covenants restricting the use of real estate by promissory estoppel or laches..... 740 Whether consent to breach of condition on one occasion excuses similar future breaches.... 741 Whether stating one ground of defence discharges other grounds.. 742 When refusing tender or demand on one ground, precludes setting up other reasons..... 743 Application of the principle to contracts of sale, insurance and employment... 744 Conditions in insurance policies. 745 Meaning of void and voidable. 746 Classification of cases where insurer's conduct has been thought to preclude insistence on a condition or excuse... 747 The insurer's conduct when the policy is issued.. 748 Decisions holding that the parol evidence rule forbids enforcement of a parol waiver contemporaneous with the creation of a written contract... 749 Contrary decisions.. 750 Presumption of knowledge on the part of the insurer of invalidating facts at the time of issuing the policy. ... 751 Waiver of condition after the issue of the policy .. 752 Whether inaction by an insurer after knowledge of a breach of condition waives the breach.... 753 Insurer's right to premiums after a breach avoiding a policy. 754 Life insurance... 755 Cases where the premium has been already paid.. 756 Right of insurer to retain the premium when the policy is avoided... 757 No affirmative action on the part of the insurer is generally necessary in order to avoid a policy for breach of condition... 758 Necessity of written modification or waiver of conditions in policy. 759 760 Whether an ineffectual attempt to collect a premium deprives the insurer of a Whether a breach of condition avoids an entire policy insuring several articles. 766 Excuse of conditions by conduct showing that the promisor will not perform even if the condition is performed.... 767 Conditions precedent as well as conditions concurrent are excused by the promisor's prospective non-performance... 768 § 676. Enumeration of excuses for non-performance of conditions. The first matter to be decided when an alleged right under a contract is considered is the interpretation of the contract. If upon such interpretation there is found to be an express condition, or one implied in fact, qualifying the promise alleged to have been broken, the next question is, has that condition been performed exactly. If it has not been so performed the alleged right cannot be sustained unless performance of the condition has been excused. The possible excuses for such conditions are few. It must be noted that so-called conditions implied in law depend to some extent upon different principles; and what is said here though much of it may be applicable to such implied conditions relates strictly only to conditions created by the terms of the contract. When it is said that a promise is excused, the meaning is that no liability arises because of non-performance of the promised act; but when it is said that a condition is excused, it is meant that 1 See infra, § 813. liability on the promise arises in spite of the non-performance of the condition. The mere fact that a condition is impossible does not excuse it; but there are three clear grounds upon which an excuse may be rested, and the promisee allowed an action in spite of non-performance of the condition, namely,— (1) Prevention by the promisor. (2) Waiver by the promisor of the breach of condition, or election by him to continue the contract in spite of the breach. (3) Facts showing that even if the condition were performed, the promise would not have been kept; and that for this reason only the condition had not been performed. A fourth ground not yet very clearly admitted may be added, as occasionally applicable, namely-(4) that enforcement of the condition will cause forfeiture to a degree that equity and good conscience will not permit. The third of these excuses is by a liberal construction of the facts or a somewhat illogical extension of the law of waiver, often allowed when the controlling reason for the decision is in large measure the desire of court to avoid forfeitures, if it can in any reasonable way be accomplished. Where a contract expressly provides for forfeiture on breach of condition, and the provision has not been waived, it is usually enforced, but it will be seen that some courts, especially in the United States, occasionally at least refuse enforcement.3 § 677. Prevention of performance of conditions or promises. It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure. The illustrations of this principle are numerous. One who prevents an architect from giving a certificate, which is a condition of liability, cannot set up failure to give the certificate as an excuse for non-payment of the price. One who promises to 3 See infra, §§ 91, 852. * Germania F. Ins. Co. v. Pitcher, 160 Ind. 392, 397, 64 N. E. 921, 66 N. E. 1003; Kiernan v. Duchess County Mutual Ins. Co., 150 N. Y. 190, 194, 44 N. E. 698; Clark v. West, 193 N. Y. 349, 360, 86 N. E. 1. 4 Batterbury v. Vyse, 2 H. & C. 42; Catanzano v. Jackson (Ala.), 73 So. 510; St. Louis, etc., R. Co. v. Kerr, 153 Ill. 182, 38 N. E. 638; Crawford v. Wolf, 29 Ia. 567; Smith v. White, 5 5 buy goods if satisfactory cannot set up the failure to perform the condition if by refusing to examine the goods he has prevented the condition from happening. One who agrees to pay for goods on delivery, cannot set up the lack of delivery when caused by his own act; and the principle that prevention by one party excuses performance by the other both of a condition and of a promise may be laid down broadly for all cases. The condition is excused because the promisor has 6 Neb. 405; Feldman v. Goldblatt, 75 N. Y. Misc. 656, 133 N. Y. S. 945; Whelen v. Boyd, 114 Pa. 228, 6 Atl. 384; Fay v. Moore, 261 Pa. 437, 104 Atl. 686; Mills v. Paul (Tex. Civ. App.), 30 S. W. 558; Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 104 N. W. 94, 110 Am. St. Rep. 838. 5 Sidney School Furniture Co. v. Warsaw School District, 103 Pac. 76, 18 Atl. 604. • United States v. Peck, 102 U. S. 64, 26 L. Ed. 46. See also Vandegrift v. Cowles Engineering Co., 161 N. Y. 435, 55 N. E. 941, 48 L. R. A. 685; Greenwood v. Watson, 171 Fed. 619, 96 C. C. A. 421; infra, § 832; Williston, Sales, § 450. 7 Blandford v. Andrews, Croke Eliz. 694; Lancashire v. Killingworth, 1 Ld. Ray. 686; Morris v. Timmins, 1 Beav. 411; Inchbald v. Western &c. Co., 17 C. B. (N. S.) 733; Mackay v. Dick, 6 App. Cas. 251; Peck v. United States, 102 U. S. 64, 26 L. Ed. 46; United States v. United Engineering Co., 234 U. S. 236, 58 L. Ed. 1294, 34 S. Ct. 843; Anvil Mining Co. v. Humble, 153 U. S. 540, 552, 38 L. Ed. 814, 14 S. Ct. 876; Kingman v. Western Mfg. Co., 92 Fed. 486, 34 C. C. A. 489; Kelly v. Fahrney, 123 Fed. 280, 59 C. C. A. 298; Tennesese, etc., R. Co., v. Danforth, 112 Ala. 80, 20 So. 502; Wolf v. Marsh, 54 Cal. 228; Love v. Mabury, 59 Cal. 484; Griffith v. Happersberger, 86 Cal. 605, 25 Pac. 137, 487; Antonelle v. Kennedy & Shaw Lumber Co., 140 Cal. 309, 415, 73 Pac. 966; Anderson v. Quick, 163 Cal. 658, 126 Pac. 871; Durland v. Pitcairn, 51 Ind. 426; King v. King, 69 Ind. 467; Dill v. Pope, 29 Kans. 289; National Supply Co. v. United Kansas &c. Co., 91 Kans. 509, 138 Pac. 599; Jones v. Walker, 13 B. Mon. 163, 56 Am. Dec. 557; De La Vergne Co. v. New Orleans Co., 51 La. Ann. 1733, 26 So. 455; North v. Mallory, 94 Md. 305, 51 Atl. 89; Grice v. Noble, 59 Mich. 515, 26 N. W. 688; Lee v. Briggs, 99 Mich. 487, 58 N. W. 477; Famous Players' Film Co. v. Salomon (N. H.), 106 Atl. 282; Hawley v. Keeler, 53 N. Y. 114, 121; Gallagher v. Nichols, 60 N. Y. 438; Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561; Patterson v. Meyerhofer, 204 N. Y. 96, 97 N. E. 472; Baker v. Woman's Union, 57 N. Y. App. Div. 290, 67 N. Y. S. 949; Custen v. Robison, 180 N. Y. App. D. 384, 167 N. Y. S. 1013; Hulbert v. Felber Engineering Works, 75 N. Y. Misc. 621, 133 N. Y. S. 918; Browne v. Jno. P. Sharkey Co., 58 Oreg. 480, 115 Pac. 156; Scott v. Hubbard, 67 Oreg. 498, 136 Pac. 653; Kress House Moving Co. v. George Hogg Co. (Pa.), 106 Atl. 351; Guilford v. Mason, 24 R. I. 386, 53 Atl. 284; Olson v. Snake River Co., 22 Wash. 139, 60 Pac. 156; Jones v. Singer Mfg. Co., 38 W. Va. 147, 18 S. E. 478; Boggess v. Bartlett, 72 W. Va. 377, 78 S. E. 241; Mitchell v. Davis, 73 W. Va. 352, 80 S. E. 491. Prevention also may be breach of an implied promise, see infra, § 1318. caused the non-performance of the condition. Therefore, it is not enough that the promisor evidently would have prevented performance of the condition. If the promisee could not or would not have performed the condition or it would not have happened whatever had been the promisor's conduct, the condition is not excused. Any conditions which the facts show might have been performed by him, it will be assumed would have been performed if the conduct of the promisor was such as to preclude the possibility of performance. It must not be assumed when performance of a condition has been prevented that the promisor necessarily becomes liable for the same amount that he would have been if the condition had been performed. The extent of liability will be the same if performance of the condition was not part of the substantial consideration or exchange for the promisor's performance, but was nothing more than a circumstance on the happening of which performance of the promise became due, having no pecuniary value in itself, as a condition in a building contract requiring an architect's certificate. But if the performance, like the delivery of goods in a contract to buy and sell was the intended exchange for the promisor's performance, and was of pecuniary value, this value will be deducted from the value of what was promised in estimating the promisee's damages. It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it. The early decisions are to the contrary, 10 but it seems evident that the same principle of justice which See supra, § 595. 'Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120, 116 N. E. 789. Thus where the payment of money is a condition qualifying an obligation, though payment or tender of the money is excused by a repudiation of the obligation, yet “the circumstances must be such as to show that the party was ready to make actual payment, and that he would have done so but for such refusal." Shank v. Groff, 45 W. Va. 543, 32 S. E. 248. See also McCalley v. Otey, 99 Ala. 584, 12 So. 406, 4 Am. St. Rep. 87; Terrell v. Proctor (Tex. Civ. App.), 172 10 In Morris v. Lutterel, Cro. Eliz. 672, to debt on a bond conditioned for saving harmless another from an obligation to pay £100 at a certain day and place, the defendant pleaded that on the day of payment he was going to make the payment when the plaintiff "by covin betwixt him and another stranger caused the defendant to be imprisoned and to be detained in prison until after sunset of the same day, to the intent that the said £100 should not be paid." On demurrer the |