resting in implication is that performance of the promisee's obligation must precede the promisor's liability. Where a contract for the sale of land requires the seller to furnish an abstract of title, performance of this promise must precede the obligation to pay the price, since otherwise the abstract would have little value.35 So where parties to a contract agreed that each should give a bond to the other as security for his performance, the implication is necessary that each was to give his bond before liability of the other arose on his principle promise, since otherwise the bonds could not fulfil their purpose of giving security.36 35 In Martin v. Roberts, 127 Iowa, 218, 102 N. W. 1126, the court said: "By the terms of the contract, the defendant was to furnish the vendee an abstract showing good and sufficient title; and, while no particular time therefor was fixed, the law requires that it be furnished in reasonable time for examination before the contract is to be performed. It was a condition precedent, and the defendant was not entitled to the balance of the money due under the contract until he had complied therewith. Wilhelm v. Fimple, 31 Iowa, 131, 7 Am. Rep. 117; Maichen v. Clay, 62 Iowa, 452, 17 N.W. 658; Bartle v. Curtis, 68 Iowa, 202, 26 N. W.73; Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348; Webb v. Hancher, 127 Iowa, 269, 102 N. W. 1127. Such a case must be distinguished from one where the purchaser seeks to enforce an option which will expire at a given day. In Pollock v. Riddick, 161 Fed. 280, 282, 88 C. C. A. 326, the court said: "We think this case is fully covered by the decisions in Kelsey v. Crowther, 162 U. S. 404, 408, 16 Sup. Ct. 808, 40 L. Ed. 1017, and Kentucky Distilleries, etc., Co. v. Warwick Co., 109 Fed. 280, 283, 48 C. C. A. 363. In each of these cases an option to sell land, etc., was involved, and a proceeding to enforce the option. In each an abstract of the land covered by the option was to be furnished, and the failure on the part of the giver of the option to furnish the abstract was made the excuse for not paying or tendering the price of the land within the time fixed by the option. But the court held that the duty to tender the price of the land under the option and according to its terms existed regardless of the failure on the part of the giver of the option to furnish the abstract if the would-be purchaser desired to lay the ground for the suit for specific perform ance. Said the court, speaking by Mr. Justice Shiras (page 408 of 162 U. S., page 810 of 16 Sup. Ct. [40 L. Ed. 1017]). 'If the contract is construed as making it the duty of Crowther to tender the abstract, yet his failure to do so did not dispense with performance or the offer to perform on the part of the complainants. His failure to furnish the abstract might have justified the complainants in declaring themselves off from the contract and might have formed a successful defence to an action for damages brought by Crowther. But, if they wished to specifically enforce the contract, it was necessary for the complainants themselves to tender performance. To entitle themselves to a decree for a specific performance of a contract to sell land, it has always been held necessary that the purchasers should tender the purchase money.' 36 Roberts v. Brett, 11 H. L. C. 337. § 894. Promises impliedly conditional upon notice. One of the commonest necessary conditions is that of notice of some fact. "The rule to be collected from the cases seems See also Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 119 N. E. 698. Other illustrations may be found: Where a railroad company, having agreed to deliver to a contractor (who had undertaken to furnish ballast for the railroad) a crushing plant of a specified capacity and water and coal to operate it, delivered a plant of less capacity and failed to deliver suitable coal and water, the contractor could abandon the contract, performance of the railroad company's obligation being a condition precedent. El Paso & S. W. R. Co. v. Eichel & Weikel (Tex. Civ. App.), 130 S. W. 922. Where a contract to sell an automobile provided that the seller should find a source of credit to enable the buyer to borrow the price, the buyer was not liable until this had been done. Sandruck v. Wilson, 117 Md. 624, 84 Atl. 54. In National Cable, etc., Co. v. Filbert, 31 So. Dak. 244, 140 N. W. 741, 743, a hardware and implement dealer bought a quantity of lightning rod cable, material, and fixtures, under a contract giving him an exclusive agency, and providing that the seller should furnish a salesman to assist in starting the business, who should be paid a share of the profits for his services. The contract further provided that the dealer should not attempt to put up any rods until the seller's agent was present, and it clearly appeared that the stipulation with reference to the salesman was inserted because of the dealer's inexperience, both in selling and putting up lightning rods, and for the mutual benefit and protection of both parties. It was held that the furnishing of a salesman by the seller was a condition to be performed by it before it could be entitled to the purchase price. In Davis v. Jeffris, 5 S. D. 352, 58 N. W. 815, the court said: "Whether or not a covenant is dependent or independent must be ascertained from the contract and attending circumstances; the rule being that such covenants will be construed as dependent, unless a contrary intention appears from the terms of the contract." This was an action to recover on a contract for the construction of a creamery and cold storage plant, according to the plans and specifications contained in the contract. The contract provided that the cold storage department should be constructed under the McCray Cold Storage and Refrigerator patents, and contained the following covenant: "We agree to furnish with said contract a patent deed from the McCray Refrigerator Company, conveying all the rights under said patents." The provisions of the contract, so far as the erection and equipment of the plant is concerned, were carried out by the plaintiff, but the patent deed for the McCray Cold Storage and Refrigerator patents was not furnished; plaintiffs contending that the stipulation to furnish the said patent deed was an independent stipulation or covenant, and that the plaintiffs were not required to prove that they had furnished or tendered such deed to entitle them to recover on the contract. The contract provided that the defendants should pay for the creamery and cold storage when "completed." The court held that the completion of the plant without the patent deed was not a completion of the contract, and that proof that the patent deed had been furnished was essential to plaintiff's right of recovery, holding that, although the contract, so far as the completion of to be this, that where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him." 37 This principle has been applied in the law of landlord and tenant. Where a landlord covenants to repair and reserves no right of entry in the lease, his promise is impliedly conditional on notice from the tenant that the premises are out of repair.38 If the landlord has the right to enter to view and make improvements, no condition will be implied.39 And still more clearly is this true where the landlord retains under his control the portion of the premises in which the defect occurs. 40 Where an option is given in a contract to one party or the other, he must give notice of the exercise of the option. An option frequently given relates to the time or place of the plant was concerned, had been fully complied with by the plaintiff, still it would be of no value, and could be made of no use to the defendants, unless the patent deed conferring upon defendants the right to use the McCray Cold Storage and Refrigerator process was furnished; that they contracted for something that they knew would be valueless to them when they got it, or else the covenant to furnish the patent deed was one of the essential elements of the contract. "Abinger, C. B., in Vyse v. Wakefield, 6 M. & W. 442. Early authorities. are there discussed. * Makin v. Watkinson, L. R. 6 Exch. 25; London & S. W. Ry. Co. v. Flower, 1 C. P. D. 77; Manchester Warehouse Co. v. Carr, 5 C. P. D. 507; Tredway v. Machin, 91 L. T. 310; Chambers v. Lindsey, 171 Ala. 158, 55 So. 150; Hutchinson v. Cummings, 156 Mass. 329, 330, 31 N. E. 127; Gerzebek v. Lord, 33 N. J. L. 240; Thomas v. Kingsland, 12 Daly, 315; Sinton v. Butler, 40 Ohio St. 158. The principle seems to have been grotesquely misapplied in Hugall v. M'Lean, 53 L. T. Rep. 94. In that case the jury found that the tenant did not know and had not the means of knowing that the premises were out of repair and that the landlord though he did not know of the fact had the means of knowing, nevertheless the court held the landlord's promise to keep the drains in repair was impliedly conditional on notice from the tenant. Brett, M. R., added: "I doubt whether, if the landlord had notice aliunde he would be liable, but it is not necessary to decide this." But see Melles v. Holme, [1918] 2 K. B. 100. In Thomas v. Kingsland, 12 Daly, 315, there is an implication that knowledge by the landlord, however secured, would be enough to render him liable. 39 Hayden v. Bradley, 6 Gray, 425, 66 Am. Dec. 421. 40 Melles v. Holme, [1918] 2 K. B. 100. performance. Sometimes this is given to the seller; 41 sometimes to the buyer.42 Similarly where a buyer is bound to take goods when completed by the seller, his obligation is qualified by the condition that notice be given of the completion of the goods; 43 and where there is no definite time fixed in a contract for its performance or where the time originally fixed has been waived, there will often be implied a condition of reasonable notice before performance can be demanded.44 Not only is a condition of notice implied in fact but, under a bilateral agreement, where there is such a condition implied on one side only, there is also an obligation implied to give notice.45 Breach of this obligation will give rise to an action for such damages as may be caused thereby.46 41 Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Hirsch v. Georgia I. & C. Co., 169 Fed. 578, 95 C. C. A. 76; Majestic Milling Co. v. Copeland, 93 Ark. 195, 124 S. W. 521; Colvin v. Weedman, 50 Ill. 311; Posey v. Scales, 55 Ind. 282; Bell v. Hatfield, 121 Ky. 560, 89 S. W. 544, 2 L. R. A. (N. S.) 529; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147, 51 N. W. 197; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Drake v. White Sewing Mach. Co., 118 N. Y. S. 178, 133 N. Y. App. Div. 446; Pease Oil Co. v. Monroe County Oil Co., 138 N. Y. S. 177, 78 Misc. Rep. 285; Krebs Hop Co. v. Livesley, 55 Or. 227, 104 Pac. 3; Lockhart v. Bonsall, 77 Pa. St. 53; Hocking v. Hamilton, 158 Pa. 107, 27 Atl. 836. See also Lincoln v. Gallagher, 79 Me. 189, 8 Atl. 883. 42 Kawin v. American Colortype Co., 243 Fed. 317, 156 C. C. A. 97; Veitch v. Atkins Co., 5 Ala. App. 444, 59 So. 746; Dimmick v. Hendley, 117 Md. 458, 84 Atl. 171; Gourd v. Healy, 206 N. Y. 423, 99 N. E. 1099; Levant American Commercial Co. v. Wells, 186 N. Y. App. D. 497, 174 N. Y. S. 303. See also State's Prison v. Hoffman, 159 N. C. 564, 76 S. E. 3. Cf. British Aluminium Co. v. Trefts, 163 N. Y. App. Div. 184, 148 N. Y. S. 144. The contract there in suit provided for shipment at times "specified by the buyers between October 10th and Dec. 31, 1911." The court held that if the buyer failed to specify the times for shipment of all the goods, the contract became absolute on Dec. 31, 1911, and tender was necessary on that day in order to put the buyer in default. It was held like a contract to sell all the goods on Dec. 31st with an option to take any part earlier. 43 Bliss v. United States Gaslight Co., 149 N. Y. 300, 43 N. E. 859; Collum v. Wagstaff, 48 Pa. St. 300. 44 See supra, § 741. 45 Where either party may by giving notice fix the time for performance, this affords each sufficient protection without the implication of any obligation. 46 Kingman v. Hanna Wagon Co., 176 Ill. 545, 52 N. E. 328. The seller agreed to sell a large number of wagons to be delivered monthly “as ordered " by the buyer. The failure by the buyer to order the number specified in the contract was held to give the seller a right of action without the necessity of making tender. So in Weill v. American Metal Co., 182 Ill. 128, 54 N. E. 1050, when goods were to be shipped as directed by the buyer, and the seller sent for directions, the failure of the buyer to send such directions was held a breach of contract. So under a contract whereby the plaintiff was to transfer all passengers and baggage from the station of defendant road to another station in the city, it was held that there was an implied obligation on the part of the defendant to present passengers for transportation, for breach of which the plaintiff might recover. Chicago, R. I. & G. Ry. Co. v. Martin (Tex. Civ. App.), 163 S. W. 313. See also Krebs Hop Co. v. Livesley, 55 Or. 227, 104 Pac. 3. |