a contract provides for a number of performances on each side of varying importance, it cannot be inferred that there was any actual intention that if default was made in some prior performance of slight importance, the subsequent performance should not be rendered. There is indeed a clear intention that if both performances are rendered, the performance first in order of time under the contract shall be first performed; but there is no clear intention expressed as to what shall happen if default is made in the prior performance; and in the absence of a clearly expressed intention, the consequence that for even permanent default in prior performance of slight importance subsequent performance should be wholly excused cannot be accepted.51 Therefore, unless an actual intention is clearly to be inferred that the consequence of non-performance of a prior performance v. the court said: "Whether or not the mutual and reciprocal agreements of parties to a contract are dependent or independent is determined by the order of time in which by the terms and meaning of the contract their performance is required. (Grant Johnson, 5 N. Y. 247; Glenn v. Rossler, 156 id. 161, 167, 50 N. E. 785.) If it appears that their performance of the whole or a part of the agreement of one party to the contract is to precede in time the performance by the other party of that part of the contract which the former seeks to enforce, then the right of the former to enforce as against the latter performance of the contract is dependent upon his prior performance of his part of the contract or tender thereof. (Grant v. Johnson, supra.)" See also Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975; Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280, 95 S. E. 1028; Lang v. Hedenberg, 277 Ill. 368, 115 N. E. 566; Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 119 N. E. 698; Massachusetts Biographical Soc. v. Russell, 229 Mass. 524, 118 N. E. 662; Kinney v. Federal Laundry Co., 75 N. J. L. 497, 68 Atl. 111; Gourd v. Healey, 176 N. Y. App. D. 464, 163 N. Y. S. 637; McCurry v. Purgason, 170 N. Car. 463, 87 S. E. 244, Ann. Cas. 1918 A, 907; Coos Bay R. Co. v. Nosler, 30 Oreg. 547. 51 In the following cases, for instance, default in prior performance was held not to excuse liability for breach of a promise of subsequent performance. Mersey Steel & Iron Co. v. Naylor, 9 A. C. 434. In Mayo v. American Malting Co., 211 Fed. 945, 128 C. C. A. 443, under a contract for the sale of malt in instalments during the ensuing year the seller agreed that he would not quote prices on malt to other persons in the buyer's State. It was held that a sale of malt to another party in such State did not entitle the buyer to refuse to take the malt thereafter, as agreed, unless he was thereby prevented from selling the malt purchased by him at a satisfactory price. The court said (p. 947): "It is not every breach of a term or provision of a contract which will justify its rescission by the other party. If the breach did him no hurt, it was immaterial." is to be non-liability of the other party for subsequent performance, the situation is better dealt with on the theory of failure of consideration. The court can then take into account the comparative magnitude of the default. § 830. Order of performances when one or both take time. When the performance of mutual promises cannot be performed at the same instant they must either be performed without reference to one another or one must be performed prior to the other. Unless the contract or usage otherwise indicates, if both promises need time for their performance, it seems that it is the duty of each party to proceed without waiting for the other to perform, since neither party can demand that the other's performance shall come first.52 Nevertheless the promises are not absolute and independent in any strict sense; for should one party go forward with his performance and the other in violation of his duty should fail for a considerable time to perform, there can be no doubt that the former would be excused from continuing to perform. If one performance is capable of execution in a moment of time while the other is not, the implication of law in the absence of agreement to the contrary is that the performance which takes time must be rendered first. The typical contract of this sort is a contract of service. The employee must render the service before the payment for it is due. In the nature of things there is no reason why this should be true, but usage is inveterate that the employee shall trust the employer for compensation rather than the employer pay first and trust the employee for the performance of his undertaking; and parties must be understood to contract with reference to the usage. Perhaps the origin both of the usage and of the law is that the employers have been in a position to establish both.53 The rule is the same in a contract for 52 See Rochester Distilling Co. v. Geloso, 92 Conn. 43, 101 Atl. 500. 53 Mixer v. Mixer, 2 Cal. App. 227, 83 Pac. 273; Thayer v. Wadsworth, 19 Pick. 349; Tipton v. Feitner, 20 N. Y. 423; Alexander v. Hoffman, 5 construction. Unless the contract expressly so provides no part of the price is due until the completion of the work.54 § 831. When performance on one side requires an indefinite time. A contract sometimes provides for performance on one side to begin immediately, or at a fixed day, and to continue permanently or for an indefinite time while the performance promised on the other side is stipulated to be rendered at a fixed day. Thus a contract to forbear or to refrain from competition may require an indefinite time for performance while the compensation may be promised on a fixed date after the performance should have begun but before it can be completed. The promises here are not strictly independent. Failure on the one side to forbear if occurring before the payment is made, will excuse the obligation to pay.55 And on the other hand long continued delay in making the payment where the promise to forbear had been duly kept, will justify a refusal to continue to keep it.56 So in the case of a promise to support for life in consideration of a promissory note payable at a fixed day, the maker of the note "could not be required to make payment unless the maintenance contracted for had been furnished, and the defendants [the payees] were not required to furnish it except for compensation in the form stipulated." 57 "Stewart v. Newbury, 220 N. Y. 379, 115 N. E. 984. 55 Jones v. Somerville, 1 Port. 437; Ward v. Textile Commission Co., 139 N. Y. App. D. 109, 123 N. Y. S. 918. 58 The decision of Judson v. Bowden, 1 Exch. 162, seems opposed to the text but is rightly criticised in Langdell, Summ. Con., § 129. 57 Bryne v. Dorey, 221 Mass. 399, 405, 109 N. E. 146. See also Bennett v. Burkhalter, 257 Ill. 572, 101 N. E. 189, 44 L. R. A. (N. S.) 733. Similarly in Gail v. Gail, 127 N. Y. App. Div. 892, the plaintiff sued for payments under a contract by which she had agreed to transfer certain real estate which had belonged to her late husband, and the defendant's son had agreed to make monthly payments to her during her life. Some payments had been made, but the plaintiff refusing to transfer the real estate the defendant had ceased paying. The court said (pages 898, 899): "The transfer of plaintiff's interest must be made by her within a reasonable time after the execution of the contract, or certainly within a reasonable time after demand by defendant. "The time at which she was to comply with and perform her part of the agreement had, therefore, arrived before defendant's default in his pay § 832. Readiness and willingness. Where a defendant's obligation is subject to a condition precedent, the plaintiff must allege and prove that he (1) performed the condition precedent, or (2) was excused from performance by prevention, waiver or the prospective unwillingness or inability of the defendant to perform in his turn. 58 This principle which is applicable to express conditions precedent,59 has also been applied to dependent promises where no condition precedent is expressed, and this is natural since the theory of dependency has been developed under the guise of implied conditions. So that the party whose performance is first in order of time must make the allegation and proof above stated.60 Where conditions are concurrent, the allegation of tender need not be of absolute tender. A tender conditional on contemporaneous performance by the defendant is sufficient. It has sometimes been said that in such a case readiness and willingness on the part of the plaintiff is a sufficient allegation; or that even this is not part of the plaintiff's case.61 Though in suits for specific performance a different rule prevails in many jurisdictions; 62 to maintain an action at law the plaintiff must not only be ready and willing but he must ments to her of which she now complains. Her right to insist on further performance by defendant of his part of the agreement was dependent, therefore, on her doing as she had agreed." 58 A common situation of the second type occurs where the plaintiff has made an unconditional offer of performance which has been refused. 59 See supra, § 674. 80 Moha v. Hudson Boxing Club, 164 Wis. 425, 160 N. W. 266, L. R. A. 1917 B. 1238. 61 Chalmers, Sale of Goods Act (5th ed.), p. 66: "In an action for nondelivery, it seems the buyer need not give evidence that he was ready and willing to pay, till the seller shows he was ready to deliver. Wilks v. Atkinson, [1815] 1 Marsh. 412. 'The averment of the plaintiff's readiness and willingness to perform his part of the contract will be proved by showing that he called on the defendant to accomplish his part.' Notes to Cutter v. Powell, 2 Smith Lead. Cas. (9th ed.), p. 18; (11th ed.), p. 15. Conversely, in an action for nonacceptance, the seller need not prove any tender of delivery. It is enough to show that he was ready and willing to deliver. Jackson v. Allaway, [1844] 6 M. & G. 942; Baker v. Firminger, [1859] 28 L. J. Ex. 130.'" The decisions cited by Judge Chalmers do not warrant the conclusion that readiness and willingness without demand upon or notice to the other party is sufficient. The statement is, however, made in Long v. Addix, 184 Ala. 236, 63 So. 982. 62 See infra, §§ 834, 844. have manifested this before bringing his action, by some offer of performance to the defendant; for otherwise both parties might be ready and willing and each stay at home waiting for the other to come forward.63 And while the situation is possible of each of two parties having a right to specific performance against the other, it is not possible that each shall have a right to damages for a total breach of the contract. It is one of the consequences of concurrent conditions that a situation may arise where no right of action ever arises against either party. Since a conditional tender is necessary to put either party in default, so long as both parties remain inactive, neither is liable and neither has acquired a right of action. Moreover, the possibility of putting either party in default will cease if the delay is too long. It may be supposed by the terms of the contract the concurrent performances were to be rendered on a day fixed, or it may be supposed that no time was stated for the performance. Under the first 63 In Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080, the court said: "Where by the terms of the contract the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for a breach of the contract, either by way of damages for the non-performance, or for the recovery of money paid thereon, not only to be ready and willing to perform on his part, but he must demand performance from the other party." In Eastern Oregon Land Co. v. Moody, 198 Fed. 7, 18, 119 C. C. A. 135, the court said: "In Englander v. Rogers, 41 Cal. 420, there was an action for the recovery of a deposit on the purchase price of real estate. The Covenants of the vendor and vendee were mutual and dependent, and it was held that neither could put the other in default except by actually tendering a performance on his own part. The court says: 'To entitle the plaintiff to maintain the action on the contract set out in the complaint, he should have averred a tender of the unpaid portion of the purchase money, or some sufficient excuse for the omission to tender it. The only allegation of the complaint on this point is that the plaintiff has been ready and willing during all the time aforesaid, and has offered to accept and take the conveyance, pursuant to said agreement, and to pay the balance of said purchase money.' It is not an averment that he tendered the purchase money. To constitute a valid tender in such a case, the party must have the money at hand, and immediately under his control, and must then and there not only be ready and willing but produce and offer to pay it to the other party on the performance by him of the requisite condition." See also Phillips v. Sturm, 91 Conn. 331, 99 Atl. 689; Cornett v. Best, 151 Mo. App. 546, 132 S. W. 35; Jendersen v. Hansen, 50 Mont. 216, 146 Pac. 473; Leuders v. Fahlberg Saccharine Works, 150 N. Y. S. 635; Burlington Paper Stock Co. v. Diamond, 88 Vt. 160, 92 Atl. 19, 21; Bendon v. Parfit, 74 Wash. 645, 134 Pac. 185. |