supposition if time was of the essence of the contract both parties will be discharged unless one or the other takes the initiative and makes a conditional tender at or about the time stated in the contract. Even though time is not of the essence or if no time is mentioned in the contract for its performance the lapse of an unreasonable time must necessarily deprive the parties of the possibility of thereafter making an effective tender.64 The requirements for a plaintiff whose right is subject to a concurrent condition are qualified in the same way as the requirements of one whose right is subject to a condition precedent; namely,-"The necessity of a formal tender or demand is obviated by the acts of the party sought to be charged, as by his express refusal in advance to comply with the terms of the contract in that respect, or where it appears that he has placed himself in a position in which performance is impossible." 65

§ 833. What amounts to an offer to perform.

It is said that the strict rules of tender 66 are not applicable to a conditional offer to perform a concurrent condition; that what is essential is that it shall appear to the court and shall have been made clear to the other party to the contract that the exchange agreed upon would be carried out immediately if the latter would do his part. This requirement involves both ability on the part of the plaintiff to perform and an indication of that ability to the other party. The actual production of the money or other thing which the plaintiff is to give is said to be unnecessary.67 This must be rested, how

64 See infra, § 1970.

65 Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080. And see supra, §§ 677, 767.

66 See infra, §§ 1808 et seq.

67 Dunham v. Pettee, 8 N. Y. 508; Gourd v. Healy, 206 N. Y. 423, 99 N. E. 1099, 176 N. Y. App. D. 464, 163 N. Y. S. 637; Thomas Gordon Malting Co. v. Bartels Brewing Co., 206 N. Y. 528, 100 N. E. 461; Hughes v. Knott, 138 N. C. 105, 50 S. E. 586; Catlin v. Jones, 52 Or. 337, 97 Pac. 546; James

Higgins Co. v. Torvick, 55 Or. 274, 106
Pac. 22.

In Raudabaugh v. Hart, 61 Ohio St. 73, 88, 55 N. E. 214, the court said: "The case of Smith v. Lewis, reported in 24 Conn. 624, and again in 26 Conn. 110, is authority for the proposition that the word 'tender,' as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to

ever, on the ground of waiver, for generally the defendant, if he is not going to perform, will indicate that fact in some way, and thereby excuse a more particular tender.68 Even if it be supposed that a conditional offer of performance is made with ability to produce, but without actual production of the money or goods necessary for performance and the defendant declines the offer, without giving a reason for his refusal or in terms refusing to perform himself, the same principle seems applicable. Unless actual production is then demanded no doubt such an offer suffices, but, it does not seem too imaginative to say that the failure of the defendant to state the ground of his objection was such deceptive conduct as to induce the plaintiff to believe that the objection was based on some other ground than the technical defect of the tender.69 On the other hand, if at the time for performing mutual promises to buy and sell stock, the parties met, and the seller having a certificate in proper form in his pocket said: "I am ready and able to perform immediately and offer to do so," to which the buyer, having the money in his pocket, replied, "I am likewise ready and able and also offer to perform," it is clear that neither party has as yet acquired a right of action against the other by putting him in default and will not be able to do so without production of the certificate or the money and the actual tender of it. And it seems that in any case, if it is insisted upon, a strict tender may be required.

§ 834. Tender is not necessary in equity unless time is of the essence.

If time is of the essence, or where the contract, enforcement of which is sought, is an option, it is necessary for one who wishes to maintain a suit for specific performance, to perform or tender performance within the time fixed in the contract. The rule in equity is the same as the rule at law,70 except that

perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness." This quotation from Smith v. Lewis is

also made in Clark v. Weis, 87 Ill. 438, 441, 29 Am. Rep. 60.

68 See supra, § 744.

69 See further, supra, §§ 744, 767.
70 Kelsey v. Crowther, 162 U. S. 404,

perhaps a conscientious and diligent effort which was unsuccessful without fault of the complainant, though the lack of success was not due to any conduct of the defendant which could be called prevention, may suffice in equity." Where, however, time is not essential, the situation in equity is different from that at law, as a court at law can give only an unconditional judgment, but a court of equity can make its decree conditional on some performance by the plaintiff. Therefore it is sufficient if a plaintiff in equity alleges in his bill readiness and willingness to perform, though the lack of tender may affect the matter of costs. The decree will protect the defendant's substantial rights by making any order for his performance conditional on concurrent action by the plaintiff; 72 and as this protection is possible at any time until

16 S. Ct. 808, 40 L. Ed. 1017; Martin v. Morgan, 89 Cal. 203, 25 Pac. 350, 22 Am. St. 240; Levy v. Lyon, 153 Cal. 213, 94 Pac. 881; Phelps v. Illinois Cent. R. Co., 63 Ill. 468; Durant v. Comegys, 3 Idaho, 204, 28 Pac. 425; Kimball v. Tooke, 70 Ill. 553; Billick v. Davenport, 164 Iowa, 105, 145 N. W. 470; Jones v. Noble, 3 Bush, 694; Harvey v. Bross, 216 Mass. 57, 104 N. E. 350; Heuer v. Rutkowski, 18 Mo. 216; Wells v. Smith, 2 Edw. Ch. 78; Duffy v. O'Donovan, 46 N. Y. 223; Blanchard v. Archer, 93 N. Y. App. D. 459, 87 N. Y. S. 665; Clarno v. Grayson, 30 Oreg. 111, 46 Pac. 426; In re Kutz's Est., 259 Pa. 548, 103 Atl. 293; Spokane &c. R. Co. v. Ballinger, 50 Wash. 547, 97 Pac. 739. See also Rude v. Levy, 43 Col. 482, 96 Pac. 560, 24 L. R. A. (N. S.) 91, 127 Am. St. 123. Cf. Horgan v. Russell, 24 N. Dak. 490, 140 N. W. 99, 43 L. R. A. (N. S.) 1150.

71 Emerson v. Fleming, 246 Ill. 353, 92 N. E. 890.

72 Jenkins v. Harrison, 66 Ala. 345; Ashurst v. Peck, 101 Ala. 499, 502, 14 So. 541 (cf. Smith v. Sherman, 174 Ala. 531); Atkinson v. Hudson, 44 Ark. 192; Jones v. Petaluma, 36 Cal.

230, 233; Koyer v. Williams, 150 Cal. 785, 788, 90 Pac. 135; Fall v. Hazelrigg, 45 Ind. 576, 579, 15 Am. Rep. 278; Jordan v. Johnson, 50 Ind. App. 213, 98 N. E. 143 (cf. Sowle v. Holdridge, 63 Ind. 213); Winton v. Sherman, 20 Iowa, 295; Nelson v. Wilson, 75 Ia. 710, 713, 38 N. W. 134; Harris v. Greenleaf, 117 Ky. 817, 79 S. W. 267; Maughlin v. Perry, 35 Md. 352; Snook v. Munday, 96 Md. 514, 517, 54 Atl. 77; Irvin v. Gregory, 13 Gray, 215; Cole v. Killam, 187 Mass. 213, 72 N. E. 947; Morris v. Hoyt, 11 Mich. 9, 18; Powell v. Dwyer, 149 Mich. 141, 112 N. W. 499, 11 L. R. A. (N. S.) 978; St. Paul Division Sons of Temperance v. Brown, 9 Minn. 157; Stevenson v. Maxwell, 2 N. Y. 408, 415; Thomson v. Smith, 63 N. Y. 301; Schieck v. Donohue, 92 N. Y. App. Div. 330, 334, 87 N. Y. S. 206, and cases cited; Hawk v. Greensweig, 2 Pa. St. 295; Chess's Appeal, 4 Pa. St. 52, 45 Am. Dec. 668; Brace v. Doble, 3 S. Dak. 110, 416, 52 N. W. 586, 53 N. W. 859; Seeley v. Howard, 13 Wis. 336. See also Mason v. Atkins, 73 Ark. 491, 84 S. W. 630; Brock v. Hidy, 13 Ohio St. 306, 310; Brixen v. Jorgensen, 33 Utah, 97, 92 Pac. 1004.

the decree is made, the fact that a vendor was unable until after suit brought to convey a good title does not conclusively establish that specific performance should be denied him.73 A few American decisions, however, adopt in equity the same rule as at law, and require a tender preliminary to suit.74 But even in such jurisdictions less strictness would doubtless be required than might be appropriate in an action at law."

§ 835. When concurrent conditions are implied.

Since concurrent conditions protect both parties, courts endeavor, so far as is not inconsistent with the expressed intention of the parties, to construe performances of mutual promises as concurrent conditions.76 Therefore, not only, when no time is mentioned for either performance " but also, where each party promises to perform his side of a bilateral contract "on or before" a stated day, though the contract does not state that each shall perform on the same day, con

80

current conditions are implied, if the performances in their nature are capable of being performed concurrently.78 But this principle is modified in the exceptional cases where contemporaneous performances in a bilateral obligation were not regarded by the parties as equivalent one to the other," and where, therefore, the principle of failure of consideration is inapplicable. The holder of a negotiable instrument must surrender the instrument contemporaneously with payment, but he can bring suit without presentment, that is, without offering to perform on his part by surrendering or even producing the instrument.81 So a creditor holding collateral, though bound to surrender the collateral at the time when he receives payment of the debt, and though a refusal to surrender the collateral justifies a refusal to pay the debt," may sue on the debt without first tendering the collateral, 83 so the loss or destruction of a negotiable instrument does not preclude recovery, and loss or destruction of collateral would be no defence unless the

78 Goodisson v. Nunn, 4 T. R. 761; Phillips v. Sturm, 91 Conn. 331, 99 Atl. 689; Stierle v. Rayner, 92 Conn. 180, 102 Atl. 581.

79 In Roberts v. Brett, 11 H. of L. Cas. 337, 351, each party covenanted to give a bond forthwith as security for his performance. Lord Westbury said: "It was also contended by the Appellant, that the covenants to give the bonds by the Appellant and Respondent respectively were mutual covenants dependent one on the other; and there was no default by the Appellant until that instant of time at which there was alike default by the Respondent, and that the Respondent being in like default, could not defend himself by pleading the default of the Appellant.

"But I fear that this is not the true meaning and effect of the contract. The engagements to give the bonds are not entered into in consideration one of the other; but the fulfilment of his own engagement by each of the parties is a necessary preliminary to his right

creditor was in fault, and in

to recover on the agreement." See also Crompton v. McLaughlin Realty Co., 51 Wash. 525, 529, 99 Pac. 586, 21 L. R. A. (N. S.) 823, and infra, § 888.

80 Uniform Neg. Inst. Law, Sec. 74; infra, § 1166.

81 Uniform Neg. Inst. Law, Sec. 70; infra, § 1160; Ocean Nat. Bank v. Fant, 50 N. Y. 474, 476.

82 Schlessinger v. Wise, 106 N. Y. App. Div. 587, 94 N. Y. S. 718.

83 Lawton v. Newland, 2 Stark. 72; Scott v. Parker, 1 Q. B. 809; Sonoma Valley Bank v. Hill, 59 Calif. 107, 110; Foster v. Purdy, 5 Met. 442; Donnell v. Wyckoff, 49 N. J. L. 48, 7 Atl. 672; Spencer v. Drake, 84 N. Y. App. Div. 272, 82 N. Y. S. 573; Security Title & Trust Co. v. Stewart, 154 N. Y. App. D. 434, 437, 139 N. Y. S. 74; Gordon v. Benguiat, 95 N. Y. Misc. 132, 159 N. Y. S. 1; First Nat. Bank v. Gidden, 175 N. Y. App. I. 563, 162 N. Y. S. 317; Bank of Rutland . Woodruff, 34 Vt. 89. See also Wagner v. Kohn, 225 Fed. 718, 721, 140 C. C. A. 592.